concurring:
As pointed out in the Court’s opinion, the facts of the instant proceeding bring it squarely within the holding in Kelly v. State Compensation Commissioner. In that proceeding, as in the instant proceeding, the employee contracted the disease silicosis while in the employ of a former employer, but failed to establish any perceptible aggravation of the disease as to an exposure occurring under the last employer. The Court denied the employee any award as to either employer, notwithstanding the necessary “exposure” was established as to a prior employer. In the order entered therein Judges Riley and Given dissented, saying they believed “that claimant is entitled to an award of silicosis benefits in the first stage; that the naming of former employers by claimant in his application for compensation has the effect of making such former employers parties to the proceeding”, and that the case should be remanded “for further development, especially as to the question of charge-ability of the claim”.
I see no objection to the action of the Court, in the instant proceeding, in reading the several pertinent statutory pro*10visions together but, when so read and considered they can not have the force of destroying certain clear, mandatory provisions found in Code, 23-4-1, as amended, which provide that “An application for benefits on account of silicosis shall set forth the name of the employer or employers and the time worked for each”, and “allocate to and divide any charges * * * among the employers”, and that “The allocation shall be based upon the time and degree of exposure with each employer”. It is significant that the allocation or charge “shall be based upon the time and degree of exposure”, not upon any proportional degree of aggravated disability. A truism, no one could believe the Legislature intended to direct that a charge be made against an employer against whom no liability had been created.
Even though some reasonable basis exists for the Court’s holding, which I can not discover, to the effect that the Legislature intended that the charge should be made according to the degree of disability or aggravation instead of “degree of exposure”, there still remains no valid basis for precluding the employee from recovering as to the former employer, against whom the exposure and occurrence of first stage silicosis has been definitely established. In Rogers v. State Compensation Commissioner, 140 W. Va. 376, 84 S. E. 2d 218, this Court held that the “workmen’s compensation fund * * * is chargeable against the account of his employer when the employee, in this State, has been exposed to the hazard of silicon dioxide dust * * (Emphasis supplied).
While the motive or purpose of the Legislature in enacting the pertinent statutory provisions may be immaterial, it may be that the insidious nature of silicosis served as a basis therefor. Of many employees subjected to the same exposure, only one may contract the disease; or, of two or more who may contract the disease, as to one the disease, without medical attention, may become completely arrested in first stage, but, in spite of the best medical care, as to others, may advance to second or third stage; and, in fact, as shown by the record herein, may so advance whether or not the exposure is continuous. If the Legislature believed the most just way to “allocate” or “charge” the accounts of employers was according to “time and degree of *11exposure with each employer”, this Court should not say otherwise.
Moreover, the decision in the Kelly case in effect held that perceptible aggravation must be affirmatively shown regardless of the amount of additional exposure in harmful quantities, in order to come within the provisions of Code, 23-4-8c, subsection (b), as amended, and inasmuch as the decision as to the failure to prove aggravation was based on x-ray pictures of the claimant, I would hold that upon proof of exposure in harmful quantities of a claimant who already has silicosis in the first stage, such aggravation may be presumed. This reasoning is based on the medical evidence contained in this case that x-rays do not always indicate aggravation when silicosis has already been contracted.
Nevertheless, so long as the holding in the Kelly proceeding remains the law of this State, I am forced to concur in the result announced by the Court in the present proceeding.
I am authoi'ized to say that Judge Berry concurs in this memorandum.