#### E. E. Moorefield *v.*State Compensation Commissioner

(No. 7282)

Submitted April 19, 1932.

Decided April 26, 1932.

*Londa Lilly,*for appellant.

*H. B. Lee*Attorney General, and *R. Dennis Steed,*Assistant Attorney General, for respondent.

Maxwell, Judge:

Appellant’s claim for compensation was dismissed by the commissioner because not filed within six months after the *230date of injury as required by statute, Code 1931, 23-4-15.

Appellant, an employee of Rich-Beckwith Construction Company, a subscriber to tbe "Workmen’s Compensation Fund, was injured October 6, 1930, while unloading rock from a truck. His claim for compensation was not received by tbe commissioner until tbe 21st of April, 1931, being fifteen days subsequent to the expiration of tbe six months’ period fixed by statute.

Tbe employer’s report of tbe injury was received by tbe commissioner March 28, 1931, being more than five and one-half months subsequent to tbe date of tbe injury. There is no contradiction of appellant’s testimony that be repeatedly insisted that tbe report should be made by bis employer, and that on at least two occasions an officer of tbe company represented to appellant that tbe report bad been made. Appellant further says that when tbe report was finally made he did not have sufficient time between tbe date of tbe report and expiration of tbe six months’ period to file bis claim and procure statements of physicians.

That tbe employer did not deal fairly with applicant in delaying to make a report of bis injury and in falsely representing to him that tbe report bad been made is in no wise controlling of tbe case. Appellant’s right to file a claim for compensation was not contingent upon tbe filing of a report of tbe injury by tbe employer. In practice, ordinarily tbe employer’s report is promptly made and tbe claim for compensation is filed thereafter, but tbe claimant need not wait to file bis claim until after tbe employer’s report has been made.

Tbe statute cited has a proviso that if tbe employer fails to make report of an injury to an employee within six months, “tbe commissioner may in bis discretion accept an application for compensation filed after tbe expiration of six months.” Tbe applicant seeks to invoke that proviso here. But it has no application here because tbe report of tbe employer was filed within six months. Save only as expressly modified by tbe proviso tbe six months’ limitation must be respected and applied by tbe commissioner and this court. Neither has authority to enlarge the proviso by liberal construction or *231otherwise. Our case of *Poccardi*v. *Commissioner,*83 W. Va. 166, 98 S. E. 69, emphasizes the necessity of an injured workman’s filing his claim within the statutory period of six months in order that he may participate in the Workmen’s Compensation Fund. This is in accordance with the construction which is placed generally by the courts upon provisions of compensation acts fixing a time within which claim for compensation may be filed. *Petraska*v. *National Acme Co.,*(Vt.) 113 Atl. 536; *Rubin*v. *Fisher Body Corp.,*205 Mich. 605; *Haiselden*v. *Industrial Board,*275 Ill. 115; *Twonko*v. *Rome Brass & Copper Co.,*224 N. Y. 263. The principle is thus succinctly stated in II Schneider Workmen’s Compensation Law, section 545: “Where the time is prescribed in the act within which the claim must be filed and there is no qualification, such time limit is mandatory and unless claim is made for compensation within the statutory limit the claim is barred.” In accord: Bradbury’s Workmen’s Compensation (3rd Ed.), page 1197.

The finding of the commissioner that appellant’s claim is barred by the statute is, in our judgment, correct, and we affirm the same.

*Affirmed.*