¶1concurring:
¶2I concur with the result reached by the Court in this case, but disagree with the reasons assigned for the decision. In my opinion, there is no ambiguity in the Commissioner’s order of May 14, 1959, granting the claimant a “35% permanent partial disability award, less any compensation heretofore paid”. This is a routine order which complies fully with the provisions of Code, 23-4-6 (i), which provides that, when a claimant receives a permanent partial disability award, the amount of compensation theretofore paid for temporary total disability resulting from the same injury shall be deducted therefrom. The record shows that the claimant had previously received payments totaling $642.86 as compensation for temporary total disability under the claim.
¶3The Commissioner, or someone acting for him, simply made a mistake and granted the claimant a 35% award when he was entitled only to a 10% award. The Court in its opinion agrees with that conclusion, and stated the evidence on which the award was based: “ … clearly indicates, perhaps conclusively demonstrates, that the only order which the commissioner should have entered was one for a ten per cent permanent partial disability for the second injury. …” Admittedly, for an injury of January 6, 1954, the claimant had received a 25% permanent partial dis*342ability award and bad been paid in full thereunder, but the order of May 14, 1959, makes no reference to that injury, to the claim number of the old case, nor in any way identifies the previous 25% award as “compensation heretofore paid”. If the usual language contained in the Commissioner’s permanent partial disability orders, pursuant to the statutory provision above noted, “less any compensation heretofore paid”., may be construed to include compensation paid for all previous injuries which the claimant may have received during his lifetime, when no reference is made to such previous injuries, I fear the creation of confusion in the administration of the Workmen’s Compensation Fund and the possible opening of loopholes by which an employer might be permitted, after the thirty day statutory period, to come in and deny responsibility for any charge against his account until all deductions had been made for payments received under previous awards.
¶4It is true that there is no express provision of the Workmen’s Compensation Law of this State, all of which is contained in Chapter 23 of the Code, for vacating or changing an award procured or made through fraud or mistake. However, it is my view that the broad express powers given the State Compensation Commissioner under Chapter 23 are such that he is invested with the implied power to vacate an award procured or made through fraud or mistake. Of the thousands of claims that are handled in that department every month, it is reasonable to assume that mistakes are made, both favorable to claimants and employers, and, if they go unnoticed until after such Awards have become “final”, it would appear incongruous indeed if the Commissioner’s only recourse to correct such a mistake was to resort to an independent suit in equity, with all of the delays incident thereto, to correct the mistake. Although the statute gives the Commissioner no authority to maintain an action or suit, the first syllabus point in Mathews, State Compensation Commissioner v. Dale, et al., 118 W. Va. 303, 109 S. E. 338, reads: “Where an award of compensa*343tion is secured through, a fraudulent misrepresentation, and money paid thereon, the Compensation Commissioner is a proper plaintiff in a suit to recover the same. ’ ’ The passage of time for protest or appeal does not prevent the Commissioner from maintaining a motion for judgment proceeding to recover compensation erroneously paid to an employee as was held in State v. Pritt, 132 W. Va. 184, 51 S. E. 2d. 105. If the State Compensation Commissioner may recover the amount of money erroneously paid under an award that has become final in all respects, it is my opinion that he has the implied power, in the first instance, to correct his own order before payment is made, and thus avoid subsequent litigation. In accord with this view, the Virginia court, in Harris et al. v. Diamond Const. Co., Va., 36 S. E. 2d. 573, held that the Industrial Board of that state “has the implied power, incidental to those expressly granted, to entertain and hear an application seasonably presented, to vacate and set aside an award procured through fraud or mistake.…” To the same effect are: Homan v. Belleville Lumber & Supply Co. (Ind.), 8 N. E. 2d. 127; Butts v. Montague Bros. (N. C.), 179 S. E. 799; In Re Crawford (S. C.), 30 S. E. 2d. 841. See also 2 Larson’s Workmen’s Compensation Law, §81.51 and §81.53.
¶5For the reasons herein stated, I, therefore, disagree with the syllabus prepared in conformity with the majority opinion, but concur in the affirmance of the orders of the Workmen’s Compensation Appeal Board and the State Compensation Commissioner.