Jones v. Davis
| Decision Date | 13 December 1932 |
| Citation | 246 Ky. 293 |
| Parties | Jones v. Davis et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Master and Servant. — Award stating compensation was "for permanent partial disability, of 60 per cent. of the 100 per cent. disability claimed now," sufficiently separated disability resulting from pre-existing diseases and from injury (Ky. Stats., sec. 4880).
Such award sufficiently separated disability resulting from pre-existing disease and from injury as required by Ky. Stats., sec. 4880, because by implication it clearly fixed the result of pre-existing diseases at 40 per cent., and expressly fixed the result from employee's injury at 60 per cent. of his total disability.
2. Master and Servant. — Statute regarding partial permanent disability and compensation for specified injury should control in determining compensation where employer and employee have elected to operate under Compensation Act, but employee engaged in piece work under his employment has worked less than six days (Ky. Stats., sec. 4899).
3. Master and Servant. — Employer's books are not conclusive as to average earnings of employee.
4. Master and Servant. — Compensation Act should be liberally construed (Ky. Stats., sec. 4880 et seq.).
5. Master and Servant. — Where employee worked one day before injury, average weekly wages for fixing compensation could not be computed on basis of single's day's wages, but wages employee earned under same employer approximately three years previous should have been considered (Ky. Stats., secs. 4880 et seq., 4899, 4905, 4957).
Ordinarily, where workman has been in same employment for more than six days, or for term of weeks or months at same rate of wages, term "average weekly wage" is result obtained by dividing the total amount actually earned during time he worked under such employment, by number of weeks during which employee was employed. The generally recognized meaning of term "average weekly wages" is the average weekly wages actually earned during the time the employee was actually employed, reckoning wages earned while working full time, though there may be a period of suspension of work for less than one year from date of his election to work under Ky. Stats., sec. 4880 et seq.
6. Master and Servant. — Statutes prescribing time for making application for review to full board, and for filing petition to circuit court for review, held mandatory (Ky. Stats., sec. 4934).
7. Master and Servant. — Unless contrary affirmatively appears, it is presumed compensation board in hearing and determining compensation dispute discharged duties as prescribed by statute (Ky. Stats., sec. 4933).
8. Master and Servant. — Compensation Board's failure to send copy of award to employee or his counsel held omission of essential element of "rendition" of final award as respects right to review by full board (Ky. Stats., secs. 4933-4935).
The word "rendition," as used in Ky. Stats., sec. 4935, is the performance by the board of the duties set forth in section 4933; a discharge thereof by the board collectively or together is a "rendition" and not the mere act of preparing, dating, and signing of the award or order of the board. "Rendition" is the act of rendering; to "render" is to deliver, transmit, or to furnish.
9. Master and Servant. — Statutory duties of Compensation Board in hearing and determining compensation dispute may not be omitted so as to deprive party to proceeding of his statutory right to review before full board (Ky. Stats., sec. 4933).
10. Master and Servant. — Statutory requirement that copy of compensation award be sent immediately to parties to dispute held mandatory (Ky. Stats., sec. 4933).
11. Master and Servant. — Filing of application by employee's attorney for review by full board within seven days after receiving copy of award from third person to whom it was inadvertently sent held waiver of board's informality of sending of copy, and compliance with statute (Ky. Stats., secs. 4933, 4934).
Appeal from Bell Circuit Court.
B.B. GOLDEN and GOLDEN, GILBERT & GOLDEN for appellant.
V.C. McDONALD for appellee.
Reversing on Original and Affirming on Cross Appeal.
The Castro Mining Company, a corporation, was engaged in 1929, in Bell county, Ky., in the business of mining coal. J.D. Jones was in its employment, engaged in loading coal at its mine. It is conceded that the Castro Mining Company was operating, and Jones was working, under the Workmen's Compensation Act. While he was engaged in loading coal on the 2d day of September, 1929, slate fell upon him, severly and permanently injuring him. The extent and nature of his injury are not disputed. It is admitted that he sustained his injury by an accident "arising out of and in the course of his employment." Prior to the date of his injury and in 1928, Jones had worked for the Castro Mining Company in its mine. Since November next prior to his injury he had not worked at the mine of the appellee. He cultivated a crop for himself during the crop season of 1929. On Friday next before he sustained his injury, on Monday, Jones returned and began to work for the Castro Mining Company. The mine did not run on Saturday. On the following Monday morning he began loading coal in the mine when, some time during the day (the record is not definite as to the hours he worked on that day), he sustained the injury by the falling of slate.
On the 2d day of October, 1930, he filed with the Workmen's Compensation Board an application for adjusted compensation. On the 7th day of April, 1931, the board, on the evidence before it, awarded him $5.07 per week from the 2d day of September, 1929, for a period of 52 weeks, less one week waiting period, for temporary, total disability, and the further sum of $3.04 per week for 284 weeks for partial, permanent disability, or 60 per cent. of the 100 per cent. disability which he claimed as the direct and proximate result of his injury. It is clearly shown that Jones' disability was 90 per cent. below normal, and that 50 or 60 per cent. thereof was attributable to the injury which resulted from the slate falling upon him, and the remaining disability resulted from preexisting diseases, namely, acute infection, dysentery, and general senile changes of his body. He was 51 years of age at the time. At his request his application was reviewed and considered by the full board which approved its former award. Thereafter he filed in the Bell circuit court a petition for review under section 4935, Ky. Statutes, which was dismissed by the court, leaving the award in effect. From this order, he appeals.
For reversal, he insists that the board erred in its finding of fact when fixing his average weekly wages, and that it did not separate the result of pre-existing diseases and the result of the injury sustained, and failed to apportion the award accordingly.
It is his insistence that it was the duty of the board, under section 4880, Ky. Statutes, to separate explicitly and specifically his disability resulting from pre-existing diseases from that resulting from the injury for which he sought compensation. B.F. Avery & Sons v. Carter, 205 Ky. 548, 266 S.W. 50.
It should be noted that the board has not formally, nor in exact words, in its award, stated its finding as to pre-existing diseases. However, the language used by it is, "for permanent, partial disability, of 60% of the 100% disability claimed now," which language we deem adequate to meet the requirements of section 4880, Ky. Statutes. By implication it clearly fixed the result of pre-existing diseases at 40 per cent., and expressly fixed his disability resulting from his injury at 60 per cent. of his total disability.
His contention that it did not correctly find and fix his average weekly wage is more perplexing and requires a review of the evidence bearing on the question which it presents. On the 31st day of August, 1929, the wages of appellant for that day was $1.30. His wages for that portion of the day on which he was injured was 65 cents. Jones had been employed by, and worked for, the Castro Mining Company in its mine in November, 1928. His rate of wages during that time was the same as it was in 1929. The pay roll made and kept by the appellee, during the period of time in 1928 when he worked in its mine, appears in the record. It shows he worked fourteen days during the month of November, 1928, for which he received wages, $61.75, or average daily wages of $4.41. Counting six days to the week, this made his average weekly wages $26.46 during the time he worked in 1928. The board to ascertain and determine, as required by section 4905, Ky. Statutes, the "average weekly wages" earned by the appellant at the time of the injury, confined itself to $1.30 which he earned on Friday before he sustained his injury on Monday. In doing so, it multiplied the $1.30 by six week days, making $7.80 for the week, and multiplied this amount by 65 per cent. as required by section 4899, Ky. Stats. Thus obtaining $5.07, the award per week, from the 2d day of September, 1929, for 52 weeks. To fix the amount per week for partial permanent disability, as required by this section, it multiplied the $5.07 by the 60 per cent. of the total disability, making $3.04 per week for the period of 284 weeks.
Section 4957, Ky. Statutes, provides how the employer and employee shall elect to operate and work under the Compensation Act. Therein it is provided the election shall be effective from the date of its signing, and "if the employment at any time be suspended for less than one year, the original acceptance of the employee shall continue effective in subsequent employment under the same employer, unless withdrawn in the manner provided under sec. 4959 of this act."
In section 4905 the rule for computing compensation is thus stated:
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