Dismond v. State Compensation Commissioner, 148 W. Va. 26, 132 S.E.2d 743 (1963); Burr v. State Compensation Commissioner. 148 W. Va. 17, 132 S.E.2d 636 (1963); Cottrell v. State Compensation Commissioner, 145 W. Va. 336, 115 S.E.2d 153 (1960). However, there is an exception to this rule where the final order was procured through fraud or mistake. Munday v. State Workmen's Compensation Commissioner, 154 W. Va. 571, 177 S.E.2d 221 (1970); Bales v. State Workmen's Compensation Commissioner, 154 W. Va. 245, 175 S.E.2d 182 (1970); Dickerson v. State Workmen's Compensation Commissioner, 154 W. Va. 7, 173 S.E.2d 388 (1970); Burr v. State Compensation Commissioner, supra; State ex rel. Garnes v. Hanley, 150 W. Va. 468, 147 S.E.2d 284 (1966); Partlow v. Workmen's Compensation Commissioner, 150 W. Va. 416, 146 S.E.2d 833 (1966); Stewart v. State Compensation Director, 150 W. Va. 103, 144 S.E.2d 327 (1965); Collins v. State Compensation Commissioner, 145 W. Va. 774, 117 S.E.2d 313 (1960). Several of the cases cited in the preceding paragraph state as a general proposition that a "mistake" which would justify the commissioner in setting aside a final order must be something more than an "erroneous decision" of the commissioner.
These symptoms did not exist prior to August 4, 2010. The Office of Judges determined that Dr. Dauphin's report is unpersuasive because even though the radiographic evidence showed pseudoarthrosis, Ms. Nichols described an isolated fortuitous event that amounted to an injury within the meaning of Dickerson v. State Workman's Comp. Comm'r, 173 S.E.2d 388, 154 W.Va. 7 (1970). The Office of Judges concluded that a claimant is not deprived of compensation merely because he is afflicted with a malady at the time of employment.
In occupational disease claims, e.g., occupational hearing loss, occupational pneumoconiosis, and occupational silicosis, the date of injury is determined by the "date of last exposure,"or the day upon which the employee was last exposed to the hazards believed to have caused the contraction of his/her occupational disease. See W. Va. Code § 23-4-1 (1989) (Repl.Vol. 1998) (discussing "injury" and "occupational disease"); W. Va. Code § 23-4-14(a)(1) (1994) (Repl.Vol. 1998) (defining "date of injury" for occupational disease); Syl.pt. 1, Meadows v. Workmen's Compensation Comm'r, 157 W. Va. 140, 198 S.E.2d 137 (1973) (defining "hazard" in context of disease of occupational pneumoconiosis); Dickerson v. State Workmen's Compensation Comm'r, 154 W. Va. 7, 10-11, 173 S.E.2d 388, 391 (1970) (clarifying meaning of "injury"). It is unclear from the record whether these employees are still employed by these employers or whether they have terminated such employment.
Jordan, 156 W. Va at 163, 191 S.E.2d at 500. See also Dickerson v. State Workmen's Compensation Commissioner, 154 W. Va. 7, 10, 173 S.E.2d 388, 391 (1970). This Court has recognized that: "One does not have to be struck by a truck or to be deluged by a slate fall to receive a compensable injury within the contemplation of our compensation law. . . . [W]hen considering compensability under the compensation law an accident need not be a visible happening; it may be an unusual or unexpected result attending the operation or performance of a usual or necessary act or event."
"[I]t was the intention of the legislature with regard to disability that an injured workman should be paid on what is denominated total temporary disability for the period of time necessary for him to reach maximum degree of improvement when he would be examined and given a permanent partial disability or a total permanent disability award. . . ." Much the same language can be found in Dunlap v. State Workmen's Compensation Commissioner, ___ W. Va. ___, 232 S.E.2d 343, 344 (1977), and Dickerson v. State Workmen's Compensation Commissioner, ___ 154 W. Va. 7, 11, 173 S.E.2d 388, 391 (1970). In Dunlap, we noted that there was no "specific language that relates return to work as affecting total temporary disability benefits."
In Perry v. State Workmen's Compensation Commissioner, 152 W. Va. 602, 165 S.E.2d 609 (1969), this Court stated it was the purpose of the Workmen's Compensation law to provide temporary total disability benefits to an injured workman for the period of time necessary for him to reach the maximum degree of improvement, at which point he should then be rated for a permanent disability award. See also, Dickerson v. State Workmen's Compensation Commissioner, 154 W. Va. 7, 173 S.E.2d 388 (1970). In reviewing the Workmen's Compensation Act, we do not find any specific language that relates return to work as affecting total temporary disability benefits.
" This Court has also held in the more recent cases of Partlow v. Workmen's Compensation Commissioner, 150 W. Va. 416, 146 S.E.2d 833, and Dickerson v. State Workmen's Compensation Commissioner, 154 W. Va. 7, 173 S.E.2d 388, in point 1 of the syllabus in each case, that "The state compensation commissioner has no power or jurisdiction to vacate, set aside or modify a final order made by him, except in instances in which it appears that he lacked jurisdiction to enter such order or that it was made or procured through fraud or mistake." Though no decision of this Court expressly states that the state compensation commissioner has jurisdiction to set aside or modify an order of the commissioner to which no protest or objection is filed within the statutory period, the statements in the opinions and in the syllabus of some of the above cited cases indicate clearly that this Court recognizes an exception to the rule stated in point 1 of the syllabus in the Cottrell case and followed in the subsequent cases, and that by virtue of such exception the commissioner has jurisdiction to set aside, vacate or modify a mistake of the character mentioned in the opinion in the Stewart case as distinguished from an err
The state compensation commissioner has no power or jurisdiction to vacate, set aside or modify a final order made by him, except in instances in which it appears that he lacked jurisdiction to enter such order or that it was made or procured through fraud or mistake. Furthermore, it was held in the recent case of Dickerson v. Workmen's Compensation Commissioner, 154 W. Va. 7, 173 S.E.2d 388, that "a mistake" which would justify setting aside "by the Workmen's Compensation Commissioner of a final order must be something other than an erroneous decision." There is nothing in this record to indicate that the order of February 7, 1953, closing the claim, was procured through fraud or mistake, or that the Commissioner lacked jurisdiction to enter it. The record is silent as to why a period of fourteen years had elapsed after hearings were held pursuant to the deceased's protest to the October 19, 1954 order setting aside the life award and finding that the deceased had been fully compensated by the sixty per cent permanent partial disability award for which he had been paid. Apparently, the Commissioner's order of January 10, 1969, which reinstated the ruling of September 9, 1943, was an attempt to pass upon the hearings which were held after the October 19, 1954 order which was protested by the claimant. If the Commissioner had not lost "jurisdiction" to enter such an order