HADEN, Chief Justice:
This is an appeal from a final order of the Workmen's Compensation Appeal Board which affirmed a decision by the Workmen's Compensation Commissioner denying appellant's application for widow and dependent death benefits. In denying the application, the Commissioner held that the provisions of W.Va.Code 1931, 23-4-10, as amended, in effect at the time appellant's husband, Oliver Sizemore, was injured, controlled the disposition of the application and not the statute in effect at the date of his death.
On September 25, 1961, Oliver Sizemore sustained serious injuries to his back, legs and ribs as a result of a slate fall occurring while in the employ of Sparks Coal Company as a coal miner. These injuries caused Sizemore to become a paraplegic, as a result of which he was granted a life award for total and permanent disability by order of the Commissioner dated January 25, 1963. Pursuant to this award Sizemore was paid benefits until his death occurred on May 21, 1970. The cause of his death, as listed on the death certificate, was "chronic glomerulonephritis with uremia." Ruby Sizemore, the widow, filed a timely application for death benefits under W.Va.Code 1931, 23-4-10, as amended, on behalf of herself and her four dependent children.
When Oliver Sizemore was injured on September 25, 1961, W.Va.Code 1931, 23-4-10, as amended, provided, in pertinent part:
In 1967, the Legislature amended this statute by inserting ten (10) years in place of six (6) years and by increasing benefits. The Legislature increased benefits again in 1969. At the time of the death of Oliver Sizemore on May 21, 1970, the statute provided, inter alia:
. . . . .
The Commissioner denied appellant's application on the ground that death did not
The broad question before this Court—whether the workmen's compensation statute in effect on the date of the employee's injury or the one in force at the time of his death governs dependents' claim for death benefits—is not one of first impression in West Virginia. The Court determined first in Hardin v. Workmen's Compensation Appeal Board, 118 W.Va. 198, 189 S.E. 670 (1937) and then in Lester v. State Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920 (1941) that the date of injury was the proper date from which to determine the validity of a dependent's claim and to measure the amount of death benefits. Later, the Court took the opposite view in Webb v. State Compensation Commissioner, 138 W.Va. 21, 76 S.E.2d 248 (1953) and in Peak v. State Compensation Commissioner, 141 W.Va. 453, 91 S.E.2d 625 (1956), ruling that the date of death was the crucial point in time. Sometime later, however, in an attempt to settle the issue once and for all, the Court in Maxwell v. State Compensation Director, 150 W.Va. 123, 144 S.E.2d 493 (1965) reviewed several West Virginia decisions, expressly overruled the Webb and Peak decisions and returned to the position earlier expressed in Hardin that the date of injury determined which statute applied.
The basis of the Court's decision in Maxwell was the generally recognized rule that a workmen's compensation statute or amendment which affects substantive or contractual rights, and not merely procedural matters, cannot be given retroactive effect by judicial fiat and that legislative bodies must express a clear intent to make a substantive amendment retroactive before the courts may so apply the statute. The Court then cited Lester v. State Compensation Commissioner, supra, for the proposition that an employer and its employees contract with regard to compensation for injuries on the basis of the particular law in effect at the time of the injury. The Maxwell Court further determined that an increase in compensation for dependents was not simply a change in procedure and concluded that to give retroactive effect to the statute, by making the date of death the key date, would abrogate vested rights.
This rule is followed in many jurisdictions and is based upon rationales that the dependents' rights are strictly derivative of the injured employee's rights or that the employee's rights survive merely for the benefit of the dependents. Jurisdictions which have adopted the "date of death" rule, on the other hand, view dependents' rights as accruing at the death of the employee and thus, as separate and distinct from the employee's rights. See 99 C.J.S. Workmen's Compensation § 21 c. (1958) and 58 Am.Jur. Workmen's Compensation § 301 (1948).
By the Maxwell case, West Virginia appears to have created a hybrid rule which this Court believes to be inconsistent, incorrect and fraught with potentials for misapplication and confusion. This is indicated because, although holding in Maxwell that the date of injury to the employee is determinative, this Court also has been committed to the premise that a dependent's rights and claims are unique and separate from those of an injured employee. Gibson v. State Compensation Commissioner, 127 W.Va. 97, 31 S.E.2d 555 (1944); Jones v. State Compensation Commissioner, 128 W.Va. 737, 38 S.E.2d 376 (1946); Webb v. State Compensation Commissioner, supra
Yet, the Court in Maxwell, in determining that the date of injury is controlling, appeared to view the dependents' rights as separate and distinct in name only. In disposing of the "separate and distinct" argument in a single sentence, the Court misinterpreted the holding in Terry v. State Compensation Commissioner, supra, stating:
The Terry decision does not stand for this proposition. Although disapproving of Webb and Peak, prospective or retroactive application of a statute was not in issue. In that case, there was no question that a 1953 amendment to W.Va.Code 1931, 23-4-10, as amended, was applicable to the claimant's rights since the deceased employee's last exposure to harmful silicon dioxide dust in August 1953 and his death in 1955 both occurred after the effective date of the 1953 amendment.
Rather, the Terry Court considered what effect should be given to certain language added to W.Va.Code 1931, 23-4-6(a), as amended, by a 1949 amendment. This provision read in pertinent part:
The Terry Court was of the opinion that this language was "plain and unambiguous" in requiring that, before a dependent may be awarded death benefits, the Commissioner must have determined at the time of the original award that the employee was suffering from silicosis in the third stage. Id., 147 W.Va. at 538, 129 S.E.2d 529. It disagreed with the interpretation in Peak and Webb that this new language merely precluded the employer from relitigating, i. e. after the employee's death, a previous determination by the Commissioner that the employee was suffering from third-stage silicosis. Under this view, dependents were not prevented from contesting a previous determination by the Commissioner, since, unlike the employer, they had not been a party to the previous litigation. Thus, Terry disapproved Webb and Peak only in regard to the meaning and effect to be given to this language. It did not, as the Maxwell decision suggests, consider the precise issue before this Court and determine that the date of the employee's injury, (rather than the date of his death), was crucial to the dependents' claim despite the separateness of the dependents' claim.
This Court, then, is of the opinion that, as the dependents' rights are truly separate and distinct from the injured employee's rights, the date of death of the employee logically governs which statute is to be applied. As explained in the Peak case, since the rights of the dependents accrue at the time of death, the statute in effect at the time of death should control as to such rights. No vested rights are impaired by applying the statute in force at the time of death because, until death occurs,
This view is perhaps best capsulized in the following language from a recent Idaho case, Frisbie v. Sunshine Mining Co., 93 Idaho 169, 457 P.2d 408 (1969):
To the extent that the holdings of the Court in Maxwell v. State Compensation Director, supra, Lester v. State Compensation Commissioner, supra, and Hardin v. Workmen's Compensation Appeal Board, supra, are inconsistent with the principles expressed in this opinion, they are expressly overruled. To be more precise, the Court likewise expressly disapproves syllabus points 1., 4., and 5. in Maxwell and syllabus points 1. and 2. in Hardin, supra.
To the extent that the holdings and supporting statements contained in the decisions of Peak v. State Compensation Commissioner, supra and Webb v. State Compensation Commissioner, supra were overruled and disapproved in syllabus point 5. of Maxwell v. State Compensation Director, supra, those holdings and supporting statements are reinstated and approved.
Courts should not be reluctant to discard prior rulings when cogent reasons demand that cases be overruled. Early on, Judge Brannon eloquently observed:
The final order of the Workmen's Compensation Appeal Board is reversed and the case is remanded to the Commissioner with directions to enter an appropriate order and to take such further action as is consistent with the principles expressed in this opinion.
Reversed and remanded.
Comment
User Comments