dissenting:
Upon the rehearing of this case, I respectfully dissent from the majority opinion and would affirm the orders of the State Compensation Commissioner and the Workmen’s Compensation Appeal Board allowing compensation to the claimant.
The concurring opinion written by Judge Given, now deceased, in which I joined, heretofore filed in this case and reported in 123 S. E. 2d 880, is not only approved by me on the rehearing, but I now assign another reason to support my dissent from the majority opinion in the rehearing of this case.
The majority opinion admits that the claim for compensation benefits was timely filed by the claimant, i. e., within two years from the last harmful exposure, in compliance with the provisions of Code, 23-4-15, as amended, and also admits that the claimant has contracted silicosis in this state and therefore complies with the provisions of Code, 23-4-1, as amended, but holds that he is not entitled to compensation. It is my opinion that this construction of the statute would make it meaningless.
The purpose of the statute was to provide for the payment of compensation to workmen who contracted silicosis in their work in this state. To hold now that a workman, who had contracted silicosis while working in this state and who had never been paid for same, is not entitled to compensation, although his claim was filed within the time required for filing of such claim, does not appear to be within the purpose and meaning of the statute.
The majority opinion holds that if a claimant has contracted silicosis in this state before working for the last employer or employers he must show perceptible aggravation before he is entitled to compensation. I am of the opinion, as stated in the concurring opinion heretofore filed in this case, that if a claimant who has already contracted silicosis in this state and is later subjected to silicon dioxide dust in harmful quantities, perceptible aggravation may be presumed in order to allow compensation benefits where the claim is timely filed. See Henley v. Comp. Com'r., 129 W. Va. *15215, 38 S. E. 2d 380. The refusal to allow compensation benefits in such cases as the one at bar is based on charge-ability, the reason being that if the claimant did not contract silicosis while working, for an employer, or if silicosis already contracted was not aggravated while working for such employer or employers, they should not be charged with the payment of compensation benefits. This, in my opinion, would create a loss not otherwise specifically provided for and would come within the' purview of the provisions of the surplus fund, Code, 23-3-1, as amended, and payment could be made in such cases from such fund. This would alleviate the necessity of holding that a person contracting silicosis while working in this state for the statutory period, and filing his claim for benefits within the time prescribed by the statute, could not receive benefits therefor.
To allow compensation benefits in such cases would not be in conflict with the holding in the case of Rogers v. Comp. Com’r., 140 W. Va. 376, 84 S. E. 2d 218. The Rogers case merely held that a claim for compensation for silicosis in the first stage should not be charged against the surplus fund when it can properly be charged' against the account of the employer.