Peak v. State Compensation Commissioner

Haymond, Judge,

dissenting:

Believing as I do that the decision of the majority of this Court in this proceeding is logically and legally unsound, that it is contrary to many prior decisions of this Court, and that it adds to the confusion in cases involving claims for compensation resulting from silicosis which has followed the recent decision of this Court in Webb v. State Compensation Commissioner, 138 W. Va. 21, 76 S. E. 2d 248, I respectfully but emphatically express my dissent.

The evidence in this proceeding, upon which the State Compensation Commissioner and the Workmen’s Compensation Appeal Board, on appeal, denied the claimant compensation indicates clearly that, though Robert Henry Peak, the husband of the claimant, was suffering from silicosis while being treated in the hospital for that disease and that silicosis would have eventually caused his death, the actual cause of his death, as shown by the death certificate prepared by his personal physician, was the burns and the inhalation of fumes from a fire which was caused by the conduct of the employee in *461igniting a match for the purpose of lighting a cigarette while he was in an oxygen tent in the hospital after he had been warned of the danger of smoking in the oxygen tent. The evidence fails to show that he had active tuberculosis at the time of his death. The evidence, however, does show that though he suffered from tuberculosis after his last exposure to silicon dioxide dust in harmful quantities, which occurred before February 24, 1947, when he ceased to work, that disease had been arrested before he died.

Despite the stage of silicosis from which he was suffering and with which he had long been afflicted the undisputed fact, as indicated in the majority opinion, that he died less than two hours after he started the fire in the oxygen tent shows that, notwithstanding the report of the physician who performed the autopsy that he was suffering from silicosis in the third stage, the actual cause of his death was the burns and the inhalation of fumes resulting from the fire which he himself started. His own careless, indeed reckless, act in starting the fire created an independent intervening effective cause of the injuries which resulted in his death. As an ordinary prudent person, he should have known that the fire would occur if he lighted a match, as he did, in the oxygen tent.

As the death of the employee, Robert Henry Peak, did not result from silicosis, the claimant has not established the necessary element that the death of her husband resulted from that disease, and for that reason she is not entitled to any award of compensation under Section 10, Article 4, Chapter 23, Code, 1931, as amended by Chapter 131, Acts of the Legislature, 1945, Regular Session, which was in effect at the date oi his last injurious exposure to silicon dioxide dust in harmful quantities.

Notwithstanding the recent decision of this Court in the Webb case, it is my considered judgment that the instant claim is based upon and is governed by the provisions of Sections 6a and 10, Article 4, Chapter 131, *462Acts of the Legislature, 1945, Regular Session, which were in effect when the employee was last injuriously exposed to silicon dioxide dust in harmful quantities and when he was awarded benefits for silicosis in the second stage upon a claim filed with the compensation commissioner on October 30, 1947, and that the instant claim is not affected or controlled by the subsequent Act, Chapter 186, Acts of the Legislature, 1949, Regular Session, which amended those sections of the Act of 1945 and which Act of 1949 was in effect at the date of the death of the employee and at the time the instant claim was filed with the compensation commissioner.

The pertinent provisions of Section 6a of the Act of 1945 are that an employee shall be deemed to have silicosis in the third stage when it is found by the commissioner that the employee has silicosis accompanied by active tuberculosis of the lungs resulting in total and permanent disability and that if the employee dies from silicosis within six years from the date of his last injurious exposure to silicon dioxide dust in harmful quantities and the commissioner determines that he was suffering from silicosis in the third stage the benefits to his dependents shall be in the amounts provided in Section 10 of that Act. The 1949 Amendment to that section states that an employee shall be deemed to have silicosis in the third stage when it is found by the commissioner that the employee has silicosis resulting in total and permanent disability, whether or not accompanied by tuberculosis of the lungs, and that if the employee dies from silicosis within the foregoing period of six years and the commissioner has determined at the time of the original award that he was suffering from silicosis in the third stage, the benefits to his dependents shall be in the amounts provided in Section 10 of the amendment.

The pertinent provision of Section 10 of the Act of 1945 is that if the death of the employee results from determined third degree silicosis within six years from *463the date of his last injurious exposure to silicon dioxide dust in harmful quantities the benefits payable to a dependent widow of the deceased employee shall be $30.00 a month until her death or remarriage and in addition $10.00 a month for each child under sixteen years of age until such child reaches such age or if an invalid child $15.00 a month as long as such child remains an invalid. The amendment to this section by the Act of 1949 provides that if the death of the employee results from determined third degree silicosis or from any other occupational disease within six years from the date of the last exposure to the hazard of silicon dioxide dust or to the other particular occupational hazard involved, as the case may be, the benefits payable to a dependent widow of the deceased employee shall be $50.00 a month until her death or remarriage and in addition $15.00 a month for each child under eighteen years of age until such child reaches such age or if an invalid child $20.00 a month as long as such child remains an invalid.

It is clear to me that if the 1949 Amendment to Section 6a, Article 4, Chapter 131, Acts of the Legislature, 1945, Regular Session, applies to the husband of the claimant, who admittedly was suffering from silicosis which was not accompanied by active tuberculosis of the lungs at the time of his death on January 11, 1953, or for sometime prior to that date, that amendment, which removes the requirement of Section 6a, Article 4, Chapter 131, Acts of the Legislature, 1945, Regular Session, that silicosis of an employee in the third stage be accompanied by active tuberculosis of the lungs resulting in total and permanent disability, must be given retroactive effect.

A statute should not be construed to operate retrospectively instead of prospectively unless it clearly appears from the statute that in enacting it the Legislature intended that it should be given retroactive force and effect, and there is no provision in the Act of 1949 that indicates that the Legislature intended it to operate retrospectively instead of prospectively. On the con*464trary, it clearly appears that the 1949 Amendment was intended by the Legislature to operate prospectively rather than retrospectively. The manifest purpose of the amendment to Sections 6a and 10 of the Act of 1945 was to enable employees who suffered from silicosis which resulted in total and permanent disability, but which was not accompanied by tuberculosis of the lungs, to obtain an award for third stage silicosis instead of restricting such award to those employees only who suffered from silicosis which resulted in total and permanent disability and was also accompanied by active tuberculosis of the lungs; to limit the claims of the dependents of employees whose death resulted from silicosis to instances only in which there had been a prior determination, during the lifetime of the employee, that he had suffered from third stage silicosis; and to increase the amount of the benefits to the dependents of the deceased employee. The amendment was obviously intended to operate, after its effective date, to enlarge the group suffering from third stage silicosis by including employees who were totally and permanently disabled by silicosis even though that disease was not accompanied by tuberculosis of the lungs; to reduce the number of claims of dependents of deceased employees by imposing the requirement that there must have been a determination before the death of any such employee that he had suffered from third stage silicosis; and to increase the amounts of the benefits to his dependents.

This Court has said in numerous cases that the presumption is that a statute is intended to operate prospectively and not retrospectively in the absence of clear, strong and imperative words to show the legislative intent to give it retroactive force and effect or unless such intent is necessarily implied from the language of the statute which would be inoperative if not given retroactive force and effect. State ex rel. Conley v. Pennybacker, 131 W. Va. 442, 48 S. E. 2d 9; Lester v. State Compensation Commissioner, 123 W. Va. 516, 16 S. E. 2d 920; Fairmont Wall Plaster Company v. Nuzum, 85 W. *465Va. 667, 102 S. E. 494; Harrison v. Harman, 76 W. Va. 412, 85 S. E. 646; Barker v. Hinton, 62 W. Va. 639, 59 S. E. 614, 13 Ann. Cas. 1150; Burns v. Hays, 44 W. Va. 503, 30 S. E. 101; Walker v. Burgess, 44 W. Va. 399, 30 S. E. 99, 67 Am. St. Rep. 775; Casto v. Greer, 44 W. Va. 332, 30 S. E. 100; Rogers v. Lynch, 44 W. Va. 94, 29 S. E. 507; State v. Mines, 38 W. Va. 125, 18 S. E. 470; Stewart v. Vandervort, 34 W. Va. 524, 12 S. E. 736, 12 L. R. A. 50. Statutes of limitations, which do not destroy the right but merely affect the remedy, are no exception to the rule that a statute is to be construed as prospective in operation unless it shows a clear intention to the contrary. Harrison v. Harman, 76 W. Va. 412, 85 S. E. 646; Burns v. Hays, 44 W. Va. 503, 30 S. E. 101; Walker v. Burgess, 44 W. Va. 399, 30 S. E. 99, 67 Am. St. Rep. 775; Casto v. Greer, 44 W. Va. 332, 30 S. E. 100; State v. Mines, 38 W. Va. 125, 18 S. E. 470; Mastin’s Ex’rs v. Hiett, 37 W. Va. 15, 16 S. E. 437; Fowler v. Lewis’ Adm’r 36 W. Va. 112, 14 S. E. 447. Even a remedial statute is to be construed prima facia as prospective in operation. Fowler v. Lewis’ Adm’r, 36 W. Va. 112, 14 S. E. 447.

Under the workmen’s compensation statute of this State the relation between the employer and the employee with respect to compensation is contractual. State ex rel. Conley v. Pennybacker, 131 W. Va. 442, 48 S. E. 2d 9; Lancaster v. State Compensation Commissioner, 125 W. Va. 190, 23 S. E. 2d 601; Hardin v. Workmen’s Compensation Appeal Board, 118 W. Va. 198, 189 S. E. 670; Gooding v. Ott, State Compensation Commissioner, 77 W. Va. 487, 87 S. E. 862, L. R. A. 1916D, 637. By virtue of this contractual relation between employer and employee a statute affecting that relation may not be construed to give it retroactive force and effect if to do so impairs the obligation of a contract or disturbs vested rights. State ex rel. Conley v. Pennybacker, 131 W. Va. 442, 48 S. E. 2d 9; Lester v. State Compensation Commissioner, 123 W. Va. 516, 16 S. E. 2d 920; Cherry v. State Compensation Commissioner, 115 W. Va. 180, 174 S. E. 889; Carbon Fuel Company v. State Compensation *466Commissioner, 111 W. Va. 639, 163 S. E. 62; Jenkins v. Heaberlin, Compensation Commissioner, 107 W. Va. 287, 148 S.E. 117.

The holding of the majority in placing upon the 1949 Amendment to Sections 6a and 10, Article 4, Chapter 131, Acts of the Legislature, 1945, Regular Session, a construction which gives the amendment retroactive force and effect impairs the contractual obligation and disturbs the vested rights of the employer of the husband of the claimant, which existed under and were created and fixed by Sections 6a and 10, Article 4, Chapter 131, Acts of the Legislature, 1945, Regular Session, the statute in effect at the time of his last injurious exposure to silicon dioxide dust in harmful quantities.

In giving retroactive force and effect to the 1949 Amendment the character of silicosis in the third stage, as defined in Section 6a of the Act of 1945, is substantially changed by removing the necessary element of accompanying active tuberculosis of the lungs; the requirement of prior determination by the commissioner that the employee, at the time of the original award, was suffering from silicosis in the third stage is imposed; and the amount of compensation fixed by Section 10 of the Act of 1945 is materially increased. These changes affect the substantive rights of the employee and his dependents and the employer. In an annotation in 82 A. L. R. 1244, this pertinent language appears: “As regards an injured employee, the time to be considered in determining whether a case is within the earlier or later provisions of the workmen’s compensation act in relation to the compensation recoverable is the time of the injury. The right of the employee to compensation arises from the contractual relation between him and his employer existing at that time, and the statute then in force forms a part of the contract of employment and determines the substantive rights and obligations of the parties. No subsequent amendment in relation to the compensation recoverable can operate retrospectively to affect in any way the rights and obligations prior thereto fixed.” This quo*467tation is supported by numerous decisions of appellate courts in various jurisdictions. Volume 2, Section 577, Schneider on Workmen’s Compensation Law, contains this statement: “Amendments to the compensation act which affect the procedure only, and in no way interfere with the substantial rights of the parties, are retroactive in their operation and apply to cases which arose prior to the amendment. But where the amendment affects the substantive rights of the parties it has no retroactive effect. Thus questions of dependency are to be determined by the law in force at the time of the accident and not by the law as subsequently amended.” This language is quoted with approval by this Court in Hardin v. Workmen’s Compensation Appeal Board, 118 W. Va. 198, 189 S. E. 670.

A construction which permits the 1949 Amendment to operate retrospectively and, in that manner, to impair or disturb the substantive rights of the parties affected also violates a fundamental and well established rule of statutory construction. That rule is that when two constructions may be placed upon a statute, one of which renders it constitutional and the other of which renders it unconstitutional, the courts will give the statute the construction which will sustain its constitutionality unless it is plain that the other construction is required. Bennett v. Bennett, 135 W. Va. 3, 62 S. E. 2d 273; Simms v. County Court of Kanawha County, 134 W. Va. 867, 61 S. E. 2d 849; State v. Siers, 103 W. Va. 34, 136 S. E. 504; State v. Furr, 101 W. Va. 178, 132 S. E. 504; Eureka Pipe Line Company v. Hallanan, 87 W. Va. 396, 105 S. E. 506; Harrison v. Harman, 76 W. Va. 412, 85 S. E. 646; Coal and Coke Railway Company v. Conley and Avis, 67 W. Va. 129, 67 S. E. 613; Ex Parte Caldwell, 61 W. Va. 49, 55 S. E. 910, 10 L.R.A., N. S., 172; Webb v. Ritter, 60 W. Va. 193, 54 S. E. 484; Underwood Typewriter Company v. Piggott, 60 W. Va. 532, 55 S. E. 664; Charleston and S. Bridge Company v. Kanawha County Court, 41 W. Va. 658, 24 S. E. 1002; State v. Workman, *46835 W. Va. 367, 14 S. E. 9, 14 L.R.A. 600; Hartley v. Henretta, 35 W. Va. 222, 13 S. E. 375; State v. Richards, 32 W. Va. 348, 9 S. E. 245, 3 L.R.A. 705; Slack v. Jacob, 8 W. Va. 612; Osburn v. Staley, 5 W. Va. 85, 13 Am. Rep. 640; 11 Am. Jur., Constitutional Law, Section 97.

By prior decisions of this Court the principle is well established that when an injury results in the death of an employee the statute governing compensation to his dependents in effect at the time of the original injury controls the award and that the statute in force at the date of the death of the employee does not apply. Lancaster v. State Compensation Commissioner, 125 W. Va. 190, 23 S. E. 2d 601; Hardin v. Workmen’s Compensation Appeal Board, 118 W. Va. 198, 189 S. E. 670; Cherry v. State Compensation Commissioner, 115 W. Va. 180, 174 S. E. 889; Carbon Fuel Company v. State Compensation Commissioner, 111 W. Va. 639, 163 S. E. 62; Jenkins v. Heaberlin, Compensation Commissioner, 107 W. Va. 287, 148 S. E. 117. In Hardin v. Workmen’s Compensation Appeal Board, 118 W. Va. 198, 189 S. E. 670, this Court uses this language in point 1 of the syllabus: “In case of an injury resulting in the death of an employee, the statute governing compensation to the dependents of the deceased, in effect at the date of the original injury, controls the award, and not the statute in force at the date of the death of the employee.” The general rule, supported by the decisions of appellate courts in several other States, is expressed in an annotation in 82 A.L.R. 1245 in these terms: “As regards the rights of relatives or dependents of a deceased employee to compensation, it is generally held that their rights are controlled by the law as it existed at the time of the injury to the employee, rather than the law as it existed at his death or at the time of the award, the theory being that the workmen’s compensation act does not create new rights of action in the relatives or dependents of an employee on his death, but that his right merely survives for their benefit.” The foregoing statement is also quoted with approval in the opinion in the Hardin case.

*469In support of its conclusion that the rights of a dependent of a deceased employee to the benefits provided by Section 10, Article 4, Chapter 23, Code, 1931, as amended, are governed by the statute in effect at the time of the death of the employee, the majority cites and relies upon point 1 of the syllabus in Gibson v. State Compensation Commissioner, 127 W. Va. 97, 31 S. E. 2d 555, which contains this language: “A claim for death benefits, provided for by Code, 23-4-10, is separate and distinct from an injured employee’s claim for disability benefits.” The language just quoted is, of course, a correct statement of law. That statement is clear and it means what it says; but it also means only what it says.

The syllabus in the Gibson case does not say, as the majority would have it say, that a claim for death benefits, being separate and distinct from the claim of an injured employee for disability benefits, is not governed by the statute in effect when the employee received the original injury which resulted in his death, or that the statute in force at the date of the death of the employee applies to a claim for death benefits under the statute. The Gibson case does not say and can not, by even a tortured construction, be held to say or mean that a separate and distinct claim for death benefits is controlled by the statute governing compensation in effect at the time of the death of the employee instead of the statute in effect at the time of his original injury.

Nor does the opinion in the Gibson case say or even indicate that a claim for death benefits, though a separate and distinct claim, is not dependent upon or is not controlled by the provisions of the statute which authorizes such claim and prescribes the essential requirements for its establishment. On the contrary, the opinion in the Gibson case, involving the claim of dependents arising not from silicosis but from an injury which resulted in the death of an employee, contains this pertinent statement: “There can, of course, be no equivocation that dependents’ claim for compensation must be based upon *470the employee’s death resulting from injury within six years.” As an essential ingredient of the claim of the dependents in the Gibson case was the death of the employee as a result of the injury, so also an essential ingredient of the instant claim is the death of the employee as a result of silicosis in the third stage accompanied by active tuberculosis of the lungs resulting in total and permanent disability.

Section 10, Article 4, Chapter 23, Code, 1931, as amended by Section 10, Article 4, Chapter 131, Acts of the Legislature, 1945, Regular Session, the statute in effect when the husband of the claimant was last injuriously exposed to silicon dioxide dust in harmful quantities, expressly provides that, with respect to silicosis, a dependent widow or invalid widower of a deceased employee shall be paid the benefits provided by the statute if the death of the employee results from determined third degree silicosis within six years from the date of his last injurious exposure to silicon dioxide dust in harmful quantities; and Section 6a, Article 4, of the same Act of 1945, also in effect when the husband of the claimant was last injuriously so exposed, declares that to constitute silicosis in the third stage the silicosis with which the employee is afflicted must be accompanied by active tuberculosis of the lungs resulting in total and permanent disability.

There is no conflict or inconsistency whatsoever between the holding of this Court in point 1 of the syllabus in Gibson v. State Compensation Commissioner, 127 W. Va. 97, 31 S. E. 2d 555, that “A claim for death benefits, provided for by Code, 23-4-10, is separate and distinct from an injured employee’s claim for disability benefits.” and the holding of this Court in point 1 of the syllabus in Hardin v. Workmen’s Compensation Appeal Board, 118 W. Va. 198, 189 S. E. 670, that “In case of an injury resulting in the death of an employee, the statute governing compensation to the dependents of the deceased, in effect at the date of the original injury, controls the award, and not the statute in force at the date of the *471death of the employee.” The holding of this Court in each of the cases of Lancaster v. State Compensation Commissioner, 125 W. Va. 190, 23 S. E. 2d 601; Cherry v. State Compensation Commissioner, 115 W. Va. 180, 174 S. E. 889; Carbon Fuel Company v. State Compensation Commissioner, 111 W. Va. 639, 163 S. E. 62; and Jenkins v. Heaberlin, Compensation Commissioner, 107 W. Va. 287, 148 S. E. 117, accords with the decision in the Hardin case. The Gibson case simply and clearly decides that the claim of the dependent for death benefits is separate and distinct from the claim of an injured employee for disability benefits; and the Hardin case just as clearly decides that the claim for death benefits of a dependent of an employee, whose death results from an injury, is controlled by the statute governing compensation in effect at the date an employee received the original injury which resulted in his death and that the statute in effect at the date of his death does not apply to or control the claim of the dependent for death benefits. The principles enunciated and applied in those two cases, properly considered, demonstrate the manifest error in the conclusion of the majority that the statute in effect at the death of the employee resulting from his injury applies to and controls the claim of his dependents for death benefits. Certain it is that the conclusion reached by the majority on this decisive point is not sustained or justified by the decision of this Court in the Gibson case.

As the 1949 Amendment was clearly not intended to operate retrospectively and would not be valid if given that effect, the amendment does not affect or govern the instant claim. On the contrary the provisions of Section 6a, Article 4, Chapter 131, Acts of the Legislature, 1945, Regular Session, that an employee shall be deemed to have silicosis in the third stage when it is found by the commissioner that such employee has silicosis accompanied by active tuberculosis of the lungs resulting in total and permanent disability and that if the employee dies from silicosis within six years from the date of his *472last injurious exposure to silicon dioxide dust in harmful quantities and the commissioner determines that he was suffering from silicosis in the third stage the benefits shall be in the amounts provided in Section 10 of the same Act, and the provision of Section 10 that the dependent widow or invalid widower shall be paid the benefits provided in that section if the death of the employee results from determined third degree silicosis within the foregoing period of six years, apply to and control the instant claim. Admittedly the claimant has not satisfied the requirements of these statutory provisions and, in consequence, she has not established her claim to an award of death benefits.

If, however, as the majority of this Court holds, Sections 6a and 10, Article 4, of the 1949 Amendment, instead of Sections 6a and 10, Article 4, of the Act of 1945, apply to and control this claim, it should nevertheless be denied under the holding of this Court in Webb v. State Compensation Commissioner, 138 W. Va. 21, 76 S. E. 2d 248, for the reason that the original award to the husband of the claimant was for silicosis in the second stage, instead of for silicosis in the third stage. Unlike the employee in the Webb case who had received an original award for silicosis in the third stage, the only award received by the husband of the claimant was for silicosis in the second stage.

In discussing the significance of a prior award to an employee of silicosis in the third stage, required by the 1949 Amendment, the opinion in the Webb case contains these statements: “It will be noticed that the language used in the 1945 Act and the 1949 Amendment is the same, except that the amendment substitutes the words ‘and the commissioner has determined at the time of the original award that he (the employee) was suffering from silicosis in the third stage’, for the words ‘and the commissioner determines that he (the employee) was suffering from silicosis in the third stage’. The change in the wording effected by the amendment is, we think, *473very significant. By the 1945 Act the commissioner, in the consideration of the claim of a dependent, was authorized to determine whether the employee had suffered silicosis in the third stage, while under the 1949 Amendment the question to be determined by the commissioner is whether there was a finding of third stage silicosis ‘at the time of the original award’. The change effected by the amendment precludes the relitigation of the question, in a proceeding of a dependent claimant, as to whether the employee suffered silicosis in the third stage. No new right or claim is created by the amendment. The employer is merely prevented from relitigating a question which was, in a proper proceeding, previously decided against him.”

The husband of the claimant was never awarded compensation for silicosis in the third stage and, according to the language just quoted from the opinion in the Webb case, the 1949 Amendment precludes any redetermination or relitigation of the question of the stage of the disease from which the employee was suffering at the time of the original award. The commissioner having determined at the time of the original award that the husband of the claimant was suffering from silicosis in the second stage, instead of from silicosis in the third stage, and the determination of the status of his disease being final and conclusive under the 1949 Amendment, his death did not result from determined third degree silicosis as provided and required by Section 10 of the 1949 Amendment. It will not do to say or hold, as does the majority, that the status of the disease of the employee can be redetermined in this proceeding at the instance of the claimant for death benefits but not at the instance of the employer.. Under the 1949 Amendment, as interpreted and applied in the Webb case, the instant claim should be denied.

For the reasons stated and under the authorities cited in this dissenting opinion, I would deny the instant claim and I would affirm the final orders of the Workmen’s *474Compensation Appeal Board and the State Compensation Commissioner which rejected it.

I am authorized to say that Judge Browning concurs in the views expressed in this dissent.