Jellico Coal Min. Co. v. Chatfield

• Court: Kentucky Court of Appeals
• Writing for the Court: McCANDLESS, J.
• Citation: Jellico Coal Min. Co. v. Chatfield, 200 Ky. 842, 255 S.W. 842 (Ky. Ct. App. 1923)
• Decision Date: 13 November 1923
• Parties: JELLICO COAL MINING CO. v. CHATFIELD.

255 S.W. 842

200 Ky. 842

JELLICO COAL MINING CO. v. CHATFIELD.

Court of Appeals of Kentucky.

November 13, 1923

Appeal from Circuit Court, Whitley County.

Petition by the Jellico Coal Mining Company to review an award of the Workmen's Compensation Board for compensation for injuries under the Workmen's Compensation Act in favor of Sim Chatfield. Judgment of dismissal, and petitioner appeals. Reversed and remanded.

Tye &amp Siler, of Williamsburg, and Frantz, McConnell & Seymour, of Knoxville, Tenn., for appellant.

R. L Pope, of Knoxville, Tenn. and R. C. Browning, of Williamsburg, for appellee.

McCANDLESS J.

The Workmen's Compensation Board made an award in favor of appellee against appellant. The latter filed a petition in the Whitley circuit court seeking a review. A demurrer was sustained to that pleading, and, upon it declining to further plead, its action was dismissed and it has appealed.

As set out in the petition the board's epitome of its rulings were as follows:

"Sim Chatfield was injured March 23, 1921, while in the employ of the Jellico Coal Mining Company. The accident arose out of and in the course of his employment. Plaintiff's average weekly wage was sufficient to entitle him to the maximum compensation. The injury resulted in total permanent disability."

Rulings of Law.

"In determining the degree and extent of disability, proper consideration must be given to the injured employee's age, occupation, capacity, and loss of opportunity to secure employment, in addition to the actual physical impairment.

The employer has the right at any time during the period for which compensation is paid to offer the injured employee employment suited to his capacity and physical condition."

Award.

"Sim Chatfield was awarded compensation for total disability, beginning March 30, 1921, at the rate of $15 per week for a period not exceeding eight years, with 6 per cent. interest on all past due weekly payments, and subject to credit by any amount heretofore paid as compensation."

The alleged errors are:

(1) "Because there is no proof in the record to support the finding and award of the board to the effect that the defendant Sim Chatfield is totally and permanently disabled."

(2) "Because the finding of the facts by the Workmen's Compensation Board do not support the order, decision, or award of the board."

(3) "Because the order, decision, or award is not in conformity with the provisions of the act in that the Workmen's Compensation Board has made award at the maximum rate of compensation of $15 per week, whereas, there is no proof in the record to support such award, the proof clearly indicating that the defendant's average weekly wage is not such as to entitle him to the maximum compensation of $15 per week, but is only sufficient to entitle him to compensation at the rate of $11.32 per week, this being 65 per cent. of the average weekly wages of the defendant at the time of the injury complained of."

(4) "Because there is no proof in the record to show total permanent disability."

The following grounds for review are provided by statute:

(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."

Section 4935, Ky. Statutes.

Except as to subsection 2 the award is final as to disputed questions of fact, and only legal questions can be considered in review. Bates & Rogers Const. Co. v. Allen, 183 Ky. 815, 210 S.W. 467; Andrews Steel Co. v. McDermott, 192 Ky. 679, 234 S.W. 275. No fraud is alleged; consequently section 2 is eliminated from consideration. The question to be determined is whether the petition alleges an error of law in the construction of the act, or in its application to the undisputed facts.

It is alleged that the maximum compensation of $15 per week was awarded, whereas there was no proof in the record to support such award; it is further alleged that $11.32 per week was 65 per cent. of the average weekly wages of the defendant at the time of the injury complained of. If these allegations are true, there was no evidence upon which to base the board's finding in that respect, and as to it the award was not a finding of fact upon an issue in the evidence, but an erroneous conclusion of law upon undisputed facts, and therefore subject to review.

As to the claim that there is no proof in the record to support the finding and award of the board that the complainant is "totally and permanently disabled," the petitioner alleges:

"Considerable medical testimony was introduced

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