Beaver Dam Coal Co. v. Hocker

• Decision Date: 11 March 1924
• Citation: 259 S.W. 1010,202 Ky. 398
• Parties: BEAVER DAM COAL CO. v. HOCKER.
• Court: Kentucky Court of Appeals

259 S.W. 1010

202 Ky. 398

BEAVER DAM COAL CO. v. HOCKER.

Court of Appeals of Kentucky.

March 11, 1924

Appeal from Circuit Court, Ohio County.

Proceeding by John Hocker under the Workmen's Compensation Act to obtain compensation for personal injuries, opposed by the Beaver Dam Coal Company, employer. There was an award of compensation, which was affirmed by the circuit court, and the employer appeals. Affirmed.

Gordon Gordon & Moore, of Madisonville, and Barnes & Smith, of Hartford, for appellant.

A. D Kirk and Clarence Bartlett, both of Hartford, and D. B Rhoads, of Beaver Dam, for appellee.

CLAY J.

On May 5, 1917, John Hocker, an employee of the Beaver Dam Coal Company, was struck by falling coal and severely injured. An open agreement providing for compensation at the rate of $5.85 a week for total disability based on an average wage of $9 a week was filed with and approved by the Workmen's Compensation Board. On December 12, 1922, Hocker filed with the board a petition for the adjustment of his claim on the ground that his average weekly wage was greater than $9 at the time of the accident, and that a mistake was made in computing the same. At the hearing the coal company denied all liability, and offered several defenses. The board found as a matter of fact, that Hocker was totally disabled by an accident arising out of and in the course of his employment; that his average weekly wage was sufficient to entitle him to the maximum compensation of $12 a week, and that in reaching the agreement originally entered into a mistake was made in computing his average weekly wage. The board also ruled, as a matter of law, that compensation cases were governed exclusively by the Workmen's Compensation Act, except where the act is silent, or specifically stipulates that some other provision of the Statutes shall apply, and that the board has authority at any time to correct the mistake in the settlement of the compensation claim. Following these findings, the board awarded Hocker compensation at the rate of $12 a week for a period of 8 years, not exceeding a total amount of $5,000, subject to a credit by the amounts theretofore paid, and with 6 per cent. interest on all past-due weekly payments. Thereafter the company filed a motion for review, and the award was sustained. On appeal to the Ohio circuit court, a judgment was rendered affirming the award, and from that judgment this appeal is prosecuted.

There being some evidence to support them, the board's findings of fact are conclusive. Andrews Steel Co. v. McDermott, 192 Ky. 679, 234 S.W. 275; Cogar Grain, etc., Co. v. Workmen's Compensation Board, 195 Ky. 477, 242 S.W. 863. And we shall proceed to determine whether its rulings of law were correct. Section 4902, Kentucky Statutes, is as follows:

"Upon its own motion or upon the application of any party interested and a showing of change of conditions, mistake or fraud, the board may at any time review any award or order, ending, diminishing or increasing the compensation previously awarded, within the maximum and minimum provided in this act, or change or revoke its previous order, sending immediately to the parties a copy of its subsequent order or award. Review under this section shall be had upon notice to the parties interested and shall not affect the previous order or award as to any sums already paid thereunder."

Appellee's application for a review of the award was based on...