Hawley-McIsaacs Coal Company v. Grant
| Decision Date | 21 October 1930 |
| Citation | 235 Ky. 650 |
| Parties | Hawley-McIsaacs Coal Company v. Grant et al. |
| Court | United States State Supreme Court — District of Kentucky |
The injury was one general to the person of employee, and not the loss of any of the members enumerated in Ky. Stats., sec. 4899. Employee was awarded compensation for temporary total disability for a period of 25 weeks and a further allowance under the last literary paragraph of section 4899 for 200 weeks for permanent partial disability. Employer contended that the award for permanent partial disability should have been in lieu of all other compensation, and that, therefore, the additional award for temporary total disability was erroneous.
2. Master and Servant. — Right to have credit deducted from compensation award is in nature of offset which must be presented and relied on before board.
3. Master and Servant. — On review of compensation award by circuit court, only new evidence admissible is on issues relating to fraud and misconduct dehors record.
4. Master and Servant. — Petition for review in circuit court of compensation proceedings not presenting facts upon which board's alleged error in failing to allow credit was predicated, and record not being before court, defense could not be considered (Ky. Stats., sec. 4935).
Appeal from Ohio Circuit Court.
EUGENE R. ATTKISSON for appellant.
R. MILLER HOLLAND for appellees.
Affirming.
The appellee and one of the defendants below, Stanley Grant, was an employee of the appellant and plaintiff below, Hawley-McIsaacs Coal Company. The latter operated a coal mine in Ohio county, Ky. The provisions of our Workmen's Compensation Statute (Ky. Stats., sec. 4880 et seq.) had been accepted by both parties, and while so employed defendant sustained an injury to his left arm in the course of his employment, and within the time allowed he made application to the workmen's compensation board for such an award as the statute entitled him to for the character of injuries sustained by him. The arm was not totally lost, nor were any of the fingers on that hand destroyed, and which made defendant's injury a general one to his entire person and not any of the specific ones enumerated in sections 4897 and 4899 of our present Statutes, which are parts of our Compensation Act.
An individual member of the board awarded defendant temporary total disability under the provisions of section 4897 supra for a period of 25 weeks (less 1 week waiting period) at $15 per week, and the further allowance, under the last literary paragraph of section 4899 supra, of $9.00 per week for 200 weeks for permanent partial disability. That award, upon application made therefor by plaintiff, was later reviewed by the full board and was sustained by it; whereupon plaintiff applied to the Ohio circuit court for a review of the board's award, and it sustained a demurrer to the petition filed therefor and dismissed it, from which judgment this appeal is prosecuted.
It is argued here by learned counsel for plaintiff in the review petition, and we presume it was likewise done in the court below (1) that the award made by the board of a total sum of $1,800 for permanent partial disability should have been exclusive "of all other compensation, except such as may be payable under sections 4883 and 4885 hereof," as it is contended is so expressly enacted in the first literary paragraph of section 4899 under which that portion of the award, it is claimed, was made, and for which reason the additional award of compensation for 25 weeks of temporary total disability under the provisions of section 4897 was and is erroneous; and, as is alleged in the petition: (2) "The board erred in not crediting upon the award for permanent partial disability of 200 weeks at $9.00 per week, the amount which the respondent has heretofore paid to the said Stanley Grant for temporary total disability, viz., 126 1/7th weeks' compensation at the rate of $14.63 per week in the total amount of $1,845.47 as said sum should under the provisions of the Workmen's Compensation Act be credited upon and charged against the amount of the award so made." Each of which will be disposed of in the order named.
1. The only case relied on in support of argument 1 is that of Fame Armstrong Laundry Co. v. Brooks, 226 Ky. 22, 10 S.W. (2d) 478, the facts of which it is contended were on all fours with those appearing in this case and for which reason, following the conclusion announced in that opinion upon the facts there presented, no allowance should have been made in this case for temporary total disability under section 4897, supra, of the Statutes. The trouble, however, with that argument is that the injuries in that case were entirely different and distinct from the character of injuries involved in this case; and so much so as to bring the two cases under a different construction of the sections of the statute for the adjustment of the award to be made to the employee. In the relied-on Brooks case, the employee totally lost three of her fingers, for which she was entitled to a fixed and specified per cent. of her weekly wages for a specified number of weeks, under the first part of section 4899, supra, and which, when allowed, the statute prescribes shall be "in lieu of all other compensation," etc., and which means for such total losses only. The latter part of that same section relating to other injuries than total loss of specified members of the human body, and for which awards for permanent partial disability may be allowed, makes no provision that awards thereunder shall be "in lieu of all other compensation." Therefore, the partial permanent disability to the servant resulting alone from the total loss of any of the scheduled and specifically enumerated members of his body the statute provided should be in lieu of all other compensation, since the amount fixed in the statute for such total lost member was intended to and did cover all consequential permanent partial disability...
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