Kentucky Cardinal Coal Corp. v. Delph

• Citation: 176 S.W.2d 886,296 Ky. 295
• Parties: KENTUCKY CARDINAL COAL CORPORATION v. DELPH et al.
• Decision Date: 26 October 1943
• Court: Court of Appeals of Kentucky

176 S.W.2d 886

296 Ky. 295

KENTUCKY CARDINAL COAL CORPORATION v. DELPH et al.

Court of Appeals of Kentucky

October 26, 1943

Rehearing Denied Feb. 1, 1944.

Appeal from Circuit Court, Bell County; James S. Forester, Judge.

Proceeding under the Workmen's Compensation Act by Granville Delph opposed by the Kentucky Cardinal Coal Corporation. From a judgment affirming an award by the Workmen's Compensation Board, the employer appeals.

Reversed with directions.

Murray L. Brown, of London, for appellant.

Golden & Lay, of Pineville, for appellee.

MORRIS Commissioner.

Appellee an experienced miner about forty-three years of age, at the time of his injury was operating a coal cutting machine in appellant's mine, and while thus engaged a large quantity of rock fell, catching and badly crushing his hand and wrist. It is agreed that Delph received his injury in the course of employment; that parties were operating under the Act; that his wage was sufficient to entitle him to maximum compensation.

On February 10, 1942, all interested parties signed an agreement to the effect that Delph's disability was temporary total, followed by 85 percent permanent partial. Settlement was had on a basis of $15 per week for 22 weeks and $10.20 for 128 weeks. Delph signed a receipt for a total of $1,635.60.

The settlement was approved by the Board on February 26, 1942. On March 4, 1942, Delph moved the Board to set aside the order of approval and filed application for adjustment. In support he filed his affidavit in which he said that in making the settlement he had been advised by the company and the insurance carrier that he was only entitled to 85% compensation for loss of his hand, and that the company would find him light employment, which promise they had failed to carry out; further that he was unable to secure employment because of the disability. He said he had been informed that under the law his injury should not have been limited to the loss of use of his hand, since there had been no amputation but that so far as use is concerned there is greater disability than if his hand had been removed. Counter affidavits denied the charges and asserted that settlement was made fairly and upon Delph's insistence for a cash settlement so that he might buy a small farm.

On April 21, 1942, the Board, over objection, reopened the case. The plaintiff introduced proof, and upon closing the Board sustained appellant's motion to have Delph to submit to an examination. On June 16, 1942 appellant in writing offered to Delph an operation at its expense, by competent surgeons to be agreed upon by parties, with a view of removing the injured member. This was declined, however, the Board naming Dr. Carr to make the examination. The exception to the order reopening the case was passed to merits.

On the question of extent of injury the Referee said: 'There is doubt in the minds of defendant's doctors whether it would be better to amputate the hand above the wrist or leave it as it is. It seems to us that the hand is useless as it is, but we think the plaintiff is within his rights in not submitting to the offer of an amputation operation. From common sense and reason we know a man with only one hand * * * would not be totally permanently disabled, if he were otherwise qualified to perform certain work, such as watchman, clerical or other light work. The plaintiff is not qualified to do any work that requires an education. If he was able to do many jobs around a coal mine, the defendant or no other employer would employ him because of the condition of his right arm; * * * if he is unable to obtain employment he is totally disabled.'

The Referee recommended compensation at $15 per week for a period not to exceed ten years, or a total of $7,500 with credits of amounts theretofore paid. Appellant called for a review, and the Board after review affirmed the Referee's finding. Appellant filed petition for review and the circuit court upheld the Board. While appellant set up numerous grounds for reversal in the circuit court, these are reduced to arguments; (1) That there is no conflict in the medical testimony, which it is claimed shows that the injury is confined to the right hand, and due to ankylosis, a consequence of Delph's failure or refusal to submit to amputation of the member. (2) It is argued that the injury to the hand falls within the meaning and intent of K.R.S. 342.105(12), (13), for loss of hand or arm, or that award should have been made, according to the proof, under (11) of K.R.S. 342.105, providing compensation for ankylosis.

The injury to Delph occurred on August 28, 1941. Up to the time of the agreement employer had paid Delph something, including medical and hospital bills. The agreement, signed February 10, 1942, was approved by the Board on the 26th. The receipt, received by the Board on February 23, was not dated. Delph's application for 'adjustment claim' was sworn to by him on February 27, 1942, and his motion to reopen the case was received by the Board on March 4, 1942. These dates are significant. Delph alleged in his affidavit that he had been misled as to the extent of his injury; he does not by any proof justify this claim, since before he signed he consulted at least one physician and perhaps two on this point. He says that he signed because of inducement by proffer of light work by employer, a charge that is not sustained by the proof in respect of employment prior to the filing of his motion to reopen, a move set in operation one day after the signing of the agreement. It is doubtful as a matter of law that such a promise, if made, and failure to carry it out, constituted fraud. A promise in itself is not a false representation. A charge of fraud may be predicated only upon nonperformance of a promise where the promise is accompanied by the present intention not to perform, and made to deceive the promise. Kentucky Road Oiling Co. v. Sharp, 257 Ky. 378, 78 S.W.2d 38. Here Delph, according to record figures, gave the employer only a brief time in which to carry out its agreement, if there was such, prior to the time he elected to ignore his agreement. After he got his check, two weeks after agreement, he told some one in the office he would like to go back to work, and he was then handed a slip (not dated) which apparently was intended for the insurance carrier, since it said that employe was incapacitated and the company had no available work for him, and he was 'separated' from benefits.

Delph testifying told of the manner of his injury, and made it clear that the hand was useless to him, except for limited purposes. He could not handle tools with that hand. He said that he had applied to the employer, and to two or three other mines, but had been denied, or had not received employment, and that he had done no work since the injury. He does not make it clear in his proof as to the times or dates when he sought mine employment, except in the one instance above mentioned.

The medical testimony turned rather to the question as to whether or not Delph's disability could be lessened in degree by the amputation of the hand, a matter upon which the physicians seemed to agree in the affirmative, and which Delph had strongly insisted upon when under primary treatment. Whether Delph should have accepted the proffer of employer, it being shown amputation could be done without much pain or any danger and with improving results, we need not discuss.

Dr Foley, testifying for, and who had examined Delph at various times and made X-Ray pictures, made his last examination on June 12, 1942. He described the injury, and as a result of his last examination testified that there was total ankylosis of the thumb and all fingers; the metacarpal bones had been mashed, and some ankylosis of the wrist. He found no 'general...