dissenting:
I cannot accept the conclusions reached by the majority. The crux of the matter is the status of the West Virginia claim, which the principal opinion admits is unclear.
If, in fact, the petitioner has no claim in West Virginia, it cannot be said that he has made an election of remedies, but that is the very point in issue. The credit of $66,420.65 on the Illinois claim does not solve the problem. From the petitioner’s standpoint, it does forfend a double recovery, but there is nothing to indicate that West Virginia will recognize it when the next claim is filed in that State. Unless there is affirmative evidence in the record that West Virginia will consent and concur in such an arrangement, the respondent and its insurance carriers may well face a double loss on the deductibles. The record is not clear whether the deductibles, either in West Virginia or Illinois, or both, apply to individual claims or to total claims in those jurisdictions. There is also a suggestion in respondent’s brief that subrogation rights differ as between West Virginia and Illinois.
Apart from the question as to the very existence of a remedy in West Virginia, but assuming arguendo that there is one, I feel that petitioner’s evidence is weak that he did not elect to pursue it in West Virginia. We have only his statement that he was in a debilitated condition when he signed the application form. He admits his signature, and further uncontradicted testimony is that the balance of the form was filled out by the wife of his fellow employee. There is no indication of pressure or overreaching by the respondent.
In short, the petitioner now stands with one foot in each of two camps, forcing the respondent into the same position. This is untenable under any notion of due process.
I would reverse the order of the circuit court and remand the cause to the Commission with directions to determine the precise status of the West Virginia claim. In the event it proves to be still viable, the Commission should then dismiss the claim here for lack of jurisdiction. On the other hand, if West Virginia is willing to close its books on the matter and allow whatever credits are equitable to both the respondent and the petitioner, then the Commission should make a new order incorporating these matters and take further proceedings accordingly.