Junior Oil Co. v. Byrd
| Decision Date | 02 May 1924 |
| Citation | 264 S.W. 846,204 Ky. 375 |
| Parties | JUNIOR OIL CO. ET AL. v. BYRD. |
| Court | Kentucky Court of Appeals |
Rehearing Denied, with Modification, Sept. 26, 1924.
Appeal from Circuit Court, Johnson County.
Proceeding by J. R. Byrd under the Workmen's Compensation Act to obtain compensation for personal injuries, opposed by the Junior Oil Company, the employer, and the Maryland Casualty Company, the insurance carrier. An order denying compensation was set aside by the circuit court, with directions to allow compensation, and the employer and insurance carrier appeal. Affirmed.
Beverley R. Jouett, of Winchester, for appellants.
Howes & Howes, of Paintsville, for appellee.
On January 31, 1922, appellee was injured while in the employ of the Junior Oil Company, and within about two hours after his employment. He had not accepted the provisions of the Workmen's Compensation Act, but the company had, and it reported the accident to the Compensation Board, and to the appellant Maryland Casualty Company, its insurance carrier on form 7 prescribed by the Compensation Board for the purpose. Thereafter the insurance carrier, with knowledge of these facts, and prior to the time it began the adjustment of plaintiff's claim, on the ______ day of February, 1922 procured the general manager of the employer to have plaintiff sign the register for the purpose of having him agree that his claim for compensation might be adjusted under the Compensation Act. After he had signed the register, the Maryland Casualty Company agreed to compensate him for his injury at the rate of $15 per week during the continuance of his disability, and made payments to him under that agreement and in accordance with its term until the 8th day of October 1922, when it ceased payments. The total amount thus paid him was $525, and for each payment he was required to and did sign a receipt, prepared by the insurance company upon the form prescribed by the Compensation Board. All of the receipts are alike, except as to amounts and dates, and one of them is as follows:
Workmen's Compensation Board, Frankfort, Ky.
Receipt on Account of Compensation.
Received of Maryland Casualty Company the sum of sixty dollars and no cents, being the proportion of the weekly wages of myself from the 27 day of March, 1922, to the 23 day of April, 1922, under the Kentucky Workmen's Compensation Law, subject to review by the Workmen's Compensation Board, said accident occurring on the 30 day of January, 1922, while in the employ of Junior Oil Company.
$60.00 J. R. Byrd.
Witness: Nannie Byrd.
Address: Staffordsville, Ky. ________.
Date: Apr. 24, 1922. ________.
If the employer, or the insurance company carrying such risk, as the case may be, and the injured employee reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the Workmen's Compensation Board on form No. 9 in case of injury, or No. 10 in case of death, and, if approved by it, shall be deemed final and binding upon the parties thereto. Such agreement shall be approved by said board only when the terms conform to the provisions of this act. Section 48.
Receipts not accepted unless witnessed and signed in ink.
On November 10, 1922, appellee filed his claim for compensation with the Compensation Board, and upon a hearing before a single member of that board his application was denied, solely because at the time of the injury he had not accepted the provisions of the Workmen's Compensation Act. Within 20 days thereafter he filed this action in the circuit court for review of the board's order and upon the trial the circuit court set that order aside and remanded the case, with directions that appellee be allowed $15 a week from the time of his injury for not exceeding eight years, less the $525 already paid him. There is no dispute as to any of the above facts, and it is agreed that appellee is totally disabled, and, if he is entitled to have his claim adjusted under the compensation act, he is entitled to the amount the judgment allows him.
The first contention of the appellants is that the court erred in overruling their motion to dismiss the petition because of appellee's failure to make application for review by the entire board within seven days from the date of the award by a single member of the board. In other words, it is the contention of the appellants that where, as here, an application for compensation is acted upon by a single member of the Workmen's Compensation Board, there can be no appeal to the courts for a review of the award, unless within seven days thereafter application is made for a review by the entire board. Section 4933, Kentucky Statutes, provides that an application may be heard and determined by the board or any of its members. Section 4934 provides:
"If an application for review is made to the board within seven days from the date of the award, the full board, if the first hearing was not held before the full board, shall review the evidence, or, if deemed advisable, as soon as practicable, hear the parties at issue," etc.
Section 4935 provides:
"An award or order of the board as provided in section 4933, if application for review be not filed as therein provided, or an award or order of the board upon review as provided in 4934, shall be conclusive and binding as to all questions of fact, but either party may, within twenty days after the rendition of such final order or award of the board, may by petition appeal to the circuit court that would have jurisdiction," etc.
It will be noticed that this latter section provides that the award, whether under section 4933 or 4934, shall be final and conclusive as to all questions of fact, but that either party may, within 20 days after the rendition of such final order or award, prosecute an appeal to the circuit court. The "such final order or award" from which an appeal may be prosecuted to the circuit court apparently, therefore, is such an award as may have been made under either of these sections. It seems to us that this language very clearly provides that either party may appeal directly to the court from an award under section 4933, or he may, before prosecuting an appeal to the circuit court, ask a review by the whole board of an award made under 4933 by less than all of the members of the board.
Nor do we believe that it is...
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