Smith v. Workers' Compensation Commissioner

MILLER, Justice:

We have consolidated two workers’ compensation appeals for the resolution of a common legal issue involving whether the second injury fund statute, W.Va.Code, 23-3-1,1 can be invoked by a claimant to obtain a permanent total disability award where no additional disability has been proven in the current claim.

This issue arose in the following general procedural context. In both these cases, the claimants had previously filed occupational pneumoconiosis claims and were given permanent partial disability awards. They continued working after filing these claims and filed new…