Manning v. State Comp. Comm'r. , 124 W. Va. 620 ( 1942 )

I concur in the result reached in this case and in my opinion the law, as expressed in the syllabus, is correct, but I do not agree with the conclusions stated in the opinion in the following language:

"The appeal board may either hear the case on the evidence which was before the commissioner, or take additional testimony, and then 'shall sustain the finding of the commissioner or enter such order or make such award as the commissioner should have made.' Code, 23-5-3. The hearing before the appeal board was therefore, not a review on error, but a hearing de novo. The finding of the commissioner wholly disappears, with all presumptions which have attached thereto. The appeal board displaces the commissioner and becomes the sole fact-finding body to be thereafter considered in the case. The order of the appeal board is a wholly new finding, which superseded that of the commissioner for all purposes."

I believe the foregoing statement is unnecessary to the decision of this case, but there is a more serious objection, in my opinion. Chapter 104, Article 5, Section 3, Acts of the Legislature, 1937, (referred to in the opinion as Code, 23-5-3) defines with some particularity the procedure to be followed by the workmen's compensation appeal board. Both the letter and spirit of this section contemplate a review by the board of the action of the compensation commissioner. The following pertinent parts of the statute seem controlling, "The board shall review the action of the commissioner * * *." "The board may remand any cause as often as in its opinion is necessary for a full development and just decision of the case. The board may take evidence or consider ex parte statements furnished in support of any motion to remand the cause to the commissioner." The last sentence quoted is the only part of the statute which expressly authorizes the board to take additional evidence, and that evidence is taken in support of a motion to remand and not on the merits of the case. Furthermore, if the board is an unlimited fact-finding agency, why should it review and remand the cases that come before it? This Court in the case ofRasmus v. Workmen's Compensation Appeal Board, 117 W. Va. 55,184 S.E. 250, decided prior to the amendment and reenactment of the statute in 1937, was dealing with a somewhat different statute than that now under consideration.

The appeal board is created by statute. Its powers are given and defined by the same agency, and should not be enlarged by judicial construction beyond the plain letter of the legislative enactment or the necessary implications thereof. Under the present statute the board has the power to review the action of the commissioner and remand the cause to him for full development and, in my opinion, may only take additional evidence in support of the motion to remand. I find no express or implied authority in the statute for the board to take evidence with reference to any other matter, nor do I find any authority statutory or otherwise for the statement contained in the opinion to the effect that the finding of the commissioner wholly disappears. By the express words of the statute, the board reviews the action of the commissioner. How can the board review the commissioner's action which includes his finding, if that finding disappears upon appeal? Does the rule announced in the opinion apply to a finding of the commissioner where the appeal board takes no evidence? The expression in the opinion creates a needless complication in the administration of the workmen's compensation act. In my view the board should do as the statute authorizes it — review the action of the commissioner, including his finding, and only take evidence on the motion to remand. I do not think the finding of the commissioner should limit the board, but I do believe that the finding of the commissioner should be considered by the appeal board along with the record supporting such finding. Furthermore, I believe that the workmen's compensation appeal board is a limited fact-finding agency on a motion to remand and not otherwise.