Consolidation Coal Co. v. Dugan

Delaplaine, J., delivered the opinion of the Court. Consolidation Coal Company is appealing here from an order of the Circuit Court for Allegany County affirming an order of the State Industrial Accident Commission awarding workmen’s compensation to William Jesse Dugan, a coal miner, of Frostburg, for permanent total disability resulting from silicosis arising out of and in the course of his employment. The claimant began working for the coal company in 1894, and worked in various mines operated by the company during a period of 49 years. He first noticed symptoms of some ailment in 1919.

Those symptoms included a cough, shortness of breath, and expectoration of colored sputum. He continued to work, however, for 24 years until April 28, 1943, when the symptoms became so severe that he had to stop work. On the following day he consulted Dr. Harold C. Diehl, of Frostburg, who told him that his lungs were “loaded” and diagnosed his disease as asthmatic bronchitis. On January 13, 1950, the claimant, then 72 years old, was given an X-ray examination in the Miner’s Hospital in Frostburg, and on January 16 he was informed that the X-ray examination disclosed that he had silicosis.

On January 18 he ³³³ filed his claim with the Industrial Accident Commission. The Medical Board found that, although he had contracted a compensable occupational disease by inhaling silica dust, his claim was barred by limitations. The Commission, on the contrary, decided that his claim was not barred, and on October 16, 1950, awarded him compensation at the rate of $20 per week, commencing May 3, 1943, and payable during the continuance of permanent total disability resulting from silicosis, but not to exceed $2,800. The employer appealed, but on February 14, 1951, the Circuit Court affirmed the award.

The employer then appealed here. After the appeal was entered the claimant died, and his widow, Ida May Dugan, administratrix of his estate, was substituted in his place as appellee. Prior to 1951 the Workmen’s Compensation Act provided that every employee who, in the course of his employment, is subjected to exposure to any of the occupational diseases named therein shall be deemed to be engaged in an extra-hazardous employment, and that compensation shall be payable for disability or death of an employee resulting from such occupational diseases. Among the diseases listed were: (1) miners’ diseases, including only cellulitis, bursitis, ankylotomiasis, tenosynovitis and nystagmus, and (2) silicosis, contracted in any process or occupation involving an exposure to or direct contact with silicon dioxide.

Laws of 1939, ch. 465, Laws of 1945, ch. 463, Code Supp. 1947, art. 101, sec. 21. The statute made no provision for compensation for asthmatic bronchitis. By Act of 1951 all occupational diseases are now compensable. Laws of 1951, ch. 287.

The first question is whether the claimant complied with the statutory requirement that written notice shall be given to the employer of an occupational disease by the employee or someone in his behalf within ten days after the first distinct manifestation thereof. Code Supp. 1947, art. 101, sec. 26. In 1951 the Legislature amended the law by providing that the written notice of an occupational disease shall be given within thirty days after the employee has actual knowledge thereof; ³³⁴ but on this appeal we are not considering the present law. Laws of 1951, ch. 292.

It appeared in this case that the claimant was not advised by his physician that he had silicosis until January 16, 1950. Two days later he filed his claim for compensation with the Commission. On January 20 the Commission mailed a notice of the claim to Consolidation Coal Company, Fairmont, West Virginia, his employer. There can be no doubt that this letter was duly received by his employer, for on January 24 one of the attorneys for the employer wrote a letter to the Commission requesting a hearing before the Medical Board at its next session in Cumberland.

As the statute does not prescribe any particular form of written notice, we think the notice given to the employer in this case complied with the statutory requirement. The second question is whether the claim was filed with the Commission within