Jones v. Davis

• Decision Date: 04 October 1932
• Citation: 54 S.W.2d 681,246 Ky. 293
• Parties: JONES v. DAVIS et al.
• Court: Kentucky Court of Appeals

54 S.W.2d 681

246 Ky. 293

JONES v. DAVIS et al.

Court of Appeals of Kentucky

October 4, 1932

As Extended on Denial of Rehearing December 13, 1932.

Appeal from Circuit Court, Bell County.

Proceeding under the Workmen's Compensation Act by John D. Jones claimant, for injuries, opposed by Howell J. Davis, trustee and others. From a judgment of the circuit court dismissing a petition for review of the award of the Compensation Board claimant appeals.

Reversed on original appeal; affirmed on cross-appeal, with directions to remand to Workmen's Compensation Board.

B. B. Golden and Golden, Gilbert & Golden, all of Pineville, for appellant.

V. C. McDonald, of Louisville, for appellee.

RICHARDSON J.

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, severely 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 preexisting 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 § 4959 of this act."

In section 4905 the rule for computing compensation is thus stated: "Compensation shall be computed at the average weekly wage earned by employee at time of injury, reckoning wages as earned while working at full time. If the employee, at the time of the injury, is regularly employed in a higher grade of work or occupation than formerly during the year, and with larger regular wages, only such higher grade of work or occupation, if the same be not seasonal, shall be taken into consideration in computing his average weekly wages."

It will be observed that the provisions of section 4957 contemplate suspension of work by the employee for not less than one year from the date of the election to work under the act, without affecting his contract of employment, and that by section 4905 it is provided that "if the employee, at the time of the injury, is regularly employed in a higher grade of work *** than formerly during the year, and with larger regular wages, only such higher grade of work ** shall be taken into consideration in computing his average weekly wages." It should be noted that both of these sections regard the period of one year for the purpose of the act. The Workmen's Compensation Board did not consider, when computing the compensation awarded Jones, the average weekly wages earned by him in the month of November, 1928, which was within one year next before the date of his injury. It only considered the one day on which he worked next before he was injured. It is not conceivable that his "average weekly wage" can be arrived at and determined by his wages for one day. Section 4899, Ky. Statutes, should control the board where the employer and employee have elected to operate and work under the act, and the employee is engaged in piece work as in the present case, but under his employment, has worked less than six days.

Our Statutes do not define "average weekly wage." Ordinarily where the workman has been in the same employment for more than six days, or for a term of weeks or months, at the same rate of wages, the term "average weekly wage" is the result obtained by dividing the total amount actually earned by him during the time he worked under his employment, by the number of weeks during which he was employed, although his work was irregular. Peacock, Nidre &c., Coal Co., Sc. Ct. Sess. 4 F. 443 and W. N. 162. Earl of Halsberry, L. C., in discussing the word "average" used this language: "I think in ordinary popular parlance when you talk of the employee's average wages, if he has earned irregular wages, whether annual, monthly or weekly, wages, you would say on the average he got so much a week or so much a month as the case might be. I think it was in that popular sense taking one with another, or one week with another, that the legislature used these words and I think it is what everybody would understand by 'average,' that his earnings were so much--not his earnings by contract, where it would be definite--that if the man was only employed at irregular intervals or irregular amounts you would get whatever the average was by putting them together and striking an average so as to get a test of the weekly sum to be paid."

In Ayers v. Buckridge, 1 K. B. 57, W. M. 222, 71 L. J. K B. 28, 85 L. T. (N. S.) 472, it was said: "If the workman at the time of his injury had worked more than one week but less than two weeks, his wages for six days were taken as his weekly earnings, and it was immaterial that he...