Broadway & Fourth Ave. Realty Co. v. Metcalfe

• Decision Date: 08 October 1929
• Court: United States State Supreme Court — District of Kentucky
• Parties: Broadway & Fourth Avenue Realty Company v. Metcalfe.

230 Ky. 800

Broadway & Fourth Avenue Realty Company v. Metcalfe.

Court of Appeals of Kentucky. Common Pleas Branch, First Division.

Decided October 8, 1929.

1. Master and Servant. — Under Ky. Stats.. sec. 4935, circuit court, on appeal from order of Workmen's Compensation Board dismissing claim, may remand case to board for further proof, where facts are not satisfactorily developed.

2. Master and Servant. — "Workmen's Compensation Board" is administrative agency appointed by law and informed by experience to find facts of each case submitted to it, and to apply the law to those facts in accordance with provisions and to effectuate purposes of statute.

3. Master and Servant. — Workmen's Compensation Board may not make finding of fact without competent evidence; "evidence," as used, meaning something of substance and relevant consequence and not vague or irrelevant matter not carrying quality of proof or having fitness to induce conviction.

4. Master and Servant. — Finding of facts by the Workmen's Compensation Board without legal efficacy or probative value will not sustain judgment.

5. Master and Servant. — Workmen's Compensation Board will not be permitted to immunize its orders against an effective review of erroneous conclusions of law by disguising them as findings of fact or by failure to make essential findings of fact from the evidence.

6. Master and Servant. — Where facts in workmen's compensation case are undisputed, conclusion legally to be deduced therefrom is a matter of law, to be determined ultimately by the courts.

7. Master and Servant. — Where legal conclusion of Workmen's Compensation Board is erroneous, it is not a finding of fact, but is an exercise of judgment which may be corrected by the court.

8. Master and Servant. — Where undisputed evidence showed that employee sustained injury causing fracture of transverse process with nonunion, resulting in total disability, recital in Workmen's Compensation Board's order dismissing claim that only injury employee sustained was fracture of transverse process with nonunion, and that overwhelming weight of testimony showed that injury was not serious and should not cause disability, afforded no support for board's judgment, and court, on appeal properly awarded compensation for statutory period.

9. Master and Servant. — Where employee's condition resulting from fracture of transverse process with nonunion appeared to be permanent, court properly allowed compensation to employee for full statutory period, with provision for reopening of matter as justice might require.

Appeal from Jefferson Circuit Court

FRED FORCHT for appellant.

HUBBARD & HUBBARD for appellee.

OPINION OF THE COURT BY JUDGE WILLIS

Affirming.

Appellant seeks reversal of a judgment in favor of Will Metcalfe rendered by the circuit court upon a review of the action of the Workmen's Compensation Board in a case instituted by him. Metcalfe was a hod carrier in the employ of the appellant and both parties had accepted the Workmen's Compensation Law. (Ky. Stats., sec. 4880 et seq.) Metcalfe fell from the fourth or fifth story of a building, a distance of some 60 feet, and was seriously injured. He was paid compensation for 20 weeks, when he was discharged by the doctor as cured and denied further payment of compensation. He immediately applied to the Workmen's Compensation Board for an award of compensation for total disability. A hearing was had resulting in dismissal of the claim. The order of the board stated that Metcalfe had a remarkable escape from death, and recited that "all the surgeons agree that the only injury he sustained was a fracture of the transverse process, right side of the lumbar vertebrae, with nonunion. This injury must not be confused with a fracture of the vertebrae. The transverse process is the bony substance that protrudes from the vertebrae of the backbone and it is of little use so far as the functioning of the spinal column is concerned. The overwhelming weight of the testimony showed that the injury was not serious and should not cause any disability." Upon this summary statement the board dismissed the application for adjustment of the claim. An appeal was prosecuted to the circuit court, where a hearing was had, which resulted in remanding the case to the board for further proof. Additional proof was heard, and the board found simply that its former order should stand. It did not amplify its previous statement. The case was again appealed to the circuit court, resulting in a reversal of the board's ruling. The circuit court directed that compensation be allowed for 333 weeks, less the 20 weeks for which he had been paid. The present appeal is from the final judgment, and it is insisted that: (a) The circuit court erred in remanding the first appeal, and (b) in reversing the result reached by the board.

1. It is argued here that the circuit court was without power or precedent to remand the case to the Workmen's Compensation Board for the purpose of supplementing the evidence or requiring a new decision. The review is limited, it is urged, and the power of the court circumscribed by section 4935, Ky. Statutes, which provides:

"No new or additional evidence may be introduced in the circuit court except as to the fraud or misconduct of some person engaged in the administration of this act and affecting the order, ruling or award, but the court shall otherwise hear the cause upon the record or abstract thereof as certified by the board and shall dispose of the cause in summary manner, its review being limited to determining whether or not:

"(1) The board acted without or in excess of its powers.

"(2) The order, decision or award was procured by fraud.

"(3) The order, decision or award is not in conformity to the provisions of this act.

"(4) If findings of fact are in issue, whether such findings of fact support the order, decision or award."

Manifestly these provisions do not forbid a remand of the case for further proof, if the facts are not satisfactorily developed. No new or additional evidence may be introduced in the circuit court, and if the board could not be authorized to amplify its finding or permitted to hear additional evidence, great injustice might be inflicted. But the further provision of the statute removes the question from the domain of doubt. It expressly invests the court with a discretion to remand the case to the board for further proceedings in conformity to the judgment of the court. The language is: "The board and each party shall have the right to appear in such review proceedings; the court shall enter judgment affirming, modifying or setting aside the order, decision or award, or in its discretion remanding the cause to the board for further proceedings in conformity with the direction of the court. The court may, in advance of judgment and upon a sufficient showing of fact, remand the cause to the board." Section 4935, Ky. Stats.

It will thus be seen that there is express statutory authority for the order of the court, and we find ample precedent to support the practice. South Mountain Coal Co. v. Haddix, 213 Ky. 568, 281 S.W. 493; B.F. Avery & Sons v. Carter, 205 Ky. 549, 266 S.W. 50; Noe v. Noe, 229 Ky. 490, 17 S.W. (2d) 405.

The court, on the first appeal, might have modified the order without remanding the case (Black Mountain Coal Corp. v. Humphrey, 211 Ky. 533, 277 S.W. 833), but the action taken was justified by the state of the record.

2. The Workmen's...