Consolidation Coal Co.'s Receivers v. Patrick

• Court: Kentucky Court of Appeals
• Writing for the Court: PERRY, Justice.
• Citation: Consolidation Coal Co.'s Receivers v. Patrick, 254 Ky. 671, 72 S.W.2d 51 (Ky. Ct. App. 1934)
• Decision Date: 01 June 1934
• Parties: CONSOLIDATION COAL CO.'S RECEIVERS v. PATRICK et al.

72 S.W.2d 51

254 Ky. 671

CONSOLIDATION COAL CO.'S RECEIVERS v. PATRICK et al.

Court of Appeals of Kentucky

June 1, 1934

Appeal from Circuit Court, Johnson County.

Proceeding under the Workmen's Compensation Act by C. H. Patrick opposed by the Consolidation Coal Company's receivers. From a judgment affirming an award of the Compensation Board the Consolidation Coal Company's receivers appeal.

Affirmed.

E. C O'Rear, of Frankfort, and J. E. Childers, of Pikeville, for appellants.

Wheeler & Wheeler, of Paintsville, for appellee.

PERRY Justice.

The appellants, Robert C. Hill and others, as receivers of the Consolidation Coal Company, seek by this appeal to have reversed a judgment of the Johnson circuit court which affirmed an award of the Compensation Board of Kentucky made the appellee, C. H. Patrick, in the sum of $6,000 for total permanent disability caused by his accidental injury, while working in the company's mines.

On July 29, 1930, the appellee C. H. Patrick received an injury to his right leg while employed in cutting coal in the appellant Consolidation Coal Company's mine at Van Lear, Ky. The appellee thus describes the circumstances and character of the accident: "I was caught in a mining machine with one foot on top of the rail with my toe resting over the rail and the machine came up and the wheel caught my toe; I was in a falling position at the time, and I went down and the machine traveling in the direction of the way I fell. I don't know what happened from that on. I saw the wheel catch my toe. At any rate, I got quite a flesh wound starting quite low on the calf of my leg and extending up to the knee, center of the knee and across the center of the kneecap. This portion in front here, of my leg was so badly mangled that it all decayed and left me with an open sore there now that does not heal. I have also, well I don't know the medical term of it, but a very nearly exposed nerve in this scar which is very tender and touches all the time." Further Patrick testifies that as the result of the accident his leg was so badly injured that he is now, had been, and will continue to be, totally and permanently disabled from performing all manual labor.

The appellee Patrick, who at the time of his injury was about forty-nine years of age, had been for some twenty-one years prior to the injury a miner, working at different jobs in coal mines, and is therefore without training or skill in any other character of work. He and all the physicians testifying for him state that since his injury, he has never been able to work at any kind of labor, nor will he ever again be able to go back to his work at the mines or to perform any manual labor. Appellee has received medical treatment for his leg injury for nearly two years by both the company doctors and those of his own selection, but its ulcerous sore remains open and unhealed, which, with his anklyosed knee and foot bones and nearly exposed nerve in the leg scar, causes him to suffer almost continuously.

Upon application being made to the Workmen's Compensation Board for compensation, his case was submitted to the board on the testimony of plaintiff and the expert testimony of the physicians who had examined and treated appellee's injury. On December 20, 1932, the board, after reviewing the evidence heard by it, made an award, based on its finding of fact, as follows: That the appellee and appellant had accepted the provisions of the Workmen's Compensation Act (Ky. St. § 4880 et seq.) and were at the time of the injury operating thereunder; that the plaintiff was working for the defendant company when injured, and that his injury arose out of and in the course of his employment; that his average weekly wage was at the time sufficient to entitle him to maximum compensation, under the act. Further it found upon the questions of law involved: That the injury to plaintiff's leg was not covered by the specific schedule contained in section 18 of the act, section 4899, Ky. Stat., but that he was entitled to recover therefor under section 16 thereof or section 4897 of the Statutes; that an employee can sustain an injury to his leg resulting in a disability greater than the loss of the leg and entitling him to compensation in excess of the amount allowed by section 4899 therefor; that "the impairment of a member is not to be compensated for on the basis of compensation allowed for the loss of a member, but under a general provision of act applicable to the disability sustained"; also that where an employee is by the proof shown to be so injured as to be thereby rendered totally and continuously unable to work, he is entitled, during said period, to compensation under section 4897 of the act; that "loss of a member," as provided for under section 4899 of the act, means severance of the member; and that the Legislature did not intend that compensation for a disabling injury to a member, impairing its usefulness, was to be limited to the amount provided in the specific schedule of section 4899 of the act, for the loss of the member.

Upon such findings of law and fact, the board, through the referee, awarded the plaintiff recovery of compensation for ninety-three weeks for total disability at the maximum sum of $15 a week and for three hundred and twelve weeks 65 per cent. partial disability at $9.75 per week; the said amount allowed to be credited by the sum of $950.40 found previously paid plaintiff on account of his injury.

Thereafter, the appellant coal company moved for a whole board review and asked that its prior award made December 20, 1930, be set aside on the grounds: (1) That the award made was greater than authorized by law, in that it was for $437 more than allowed for total disability under section 4899 of the Statutes; (2) that no injury having been sustained by the plaintiff to any part of his body but the leg, there was no reason to allow a greater compensation therefor than for the loss of his leg, which under section 4899 of the Statutes was 65 per cent. of the average weekly wage for two hundred weeks; and (3) that no weight was by the award given to the testimony of the five doctors who testified for the defendant to the effect that plaintiff's disability was not more than 35 per cent.

The full board, upon its requested review of the findings of the referee, found that his prior finding was justified as based upon the testimony of plaintiff and his five or more doctors testifying for him to the effect that he was totally and permanently disabled from performing manual labor or from ever again resuming his occupation of working in mines. It therefore approved the referee's finding (as interpreted by the board as established by the proof) that the plaintiff was by his injury totally and permanently disabled and therefore was entitled to be awarded, as compensation therefor, the maximum sum of $15 per week, as in such case provided by section 4897 of the Statutes. It approved the award to the extent so made of permanent total disability but ordered that in so far as it allowed plaintiff recovery for only partial permanent disability for three hundred and thirteen weeks at $9.75, it be set aside and in lieu thereof that the following award be made: "That defendant pay to plaintiff during the period of disability at the rate of $15.00 per week from the date of said injury on June 29, 1930, for a period of not longer than 415 weeks, but not exceeding in all the sum of $6,000, with interest on unpaid installments. *** Said sum, however, to be credited by the amount heretofore paid by defendant, to-wit: $950.40. That in addition to the aforesaid compensation the defendant will pay to plaintiff the costs incurred by him for physicians, hospital bills and medical attention furnished to him on account of the aforesaid injury, if any remain unpaid, not exceeding the sum of $100.00."

From this award made upon review by the full board the appellant coal company appealed to the Johnson circuit court, where it was affirmed, and from that judgment this appeal is prosecuted.

The appellant criticizes the propriety of this judgment upon the grounds: (1) That for the injury disabling plaintiff's leg only, appellee should have been compensated for not more than the sum allowed for the loss of a leg; (2) that upon the application of the defendant for a full board review of a single member's award and in the absence of any application for review by the claimant, the board was without authority to increase the award from $4,000 to $6,000; (3) that the circuit court did not have jurisdiction to change the method of payment from installments to a lump sum, since no appeal whatsoever lies from an order of the board determining the method of payment by installments rather than in a lump sum; and (4) that to entitle an employee to an allowance for doctors' bills, the claimant must show by evidence what expenses he actually incurred.

We will consider these objections in the inverse order in which made.

The fourth of these objections, attacking the board's award of not exceeding $100 to plaintiff for his costs incurred for physicians' and hospital bills on account of the aforesaid injury, we consider to be both frivolous and without merit. In Fame Armstrong Laundry Co. v Brooks, 226 Ky. 22, 10 S.W.2d 478, 480, to a like criticism of a similar award made an injured employee for medical bills, the court said: "The board should not make an allowance under section 4883 unless there is testimony that the injured employee has incurred expenses for the purposes therein mentioned, but this does not mean that the injured employee must have actually paid the expenses so incurred. The testimony before the board does not show that appellee had actually incurred medical expenses...