Leep v. Kentucky State Police
| Decision Date | 12 October 1962 |
| Citation | 366 S.W.2d 729 |
| Parties | William C. LEEP, Appellant, v. KENTUCKY STATE POLICE et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
R. I. McIntosh, Woodward, Hobson & Fulton, Louisville, for appellant.
Thomas A. Ballantine, Jr., McElwain, Dinning, Clarke & Winstead, Louisville, for appellees.
The question here is whether the evidence before the Workmen's Compensation Board compelled, as a matter of law, a finding of total permanent disability by reason of a leg injury, thus eliminating KBS 342.110 as a limitation on the award. Cf. Department of Mines & Minerals v. Castle, Ky.1951, 240 S.W.2d 44.
In February of 1950 the appellant, a state trooper, suffered a severe injury, including a compound fracture, to his leg below the knee. Since that time there has never been a satisfactory union of the bones (nor, evidently, a healing of the skin and other soft tissues), and when the evidence was taken in 1957 amputation of the leg was indicated as the eventual probability.
At the time of the injury in this case, what is now the first sentence of KRS 342.110(2) read as follows: 'In no event shall compensation for an injury to a member exceed the amount allowable for the loss of such member.' But as pointed out in Holt v. West Kentucky Coal Co., Ky.1961, 350 S.W.2d 155, it was held in Department of Mines & Minerals v. Castle, Ky.1951, 240 S.W.2d 44, that the limitation did not apply to cases of permanent total disability, and this ruling was followed in Hardy Burlingham Mining Co. v. Sawyer, Ky.1953, 254 S.W.2d 350, and Clark v. Gilley, Ky.1958, 311 S.W.2d 391. In 1960 both KRS 342.110 and KRS 342.095 were amended to reflect the law as it had been thus construed. Though we criticized this result (under which the compensation of a claimant 98% disabled by reason of injury to one of the members listed in KRS 342.105 is limited by KRS 342.110, but if he is 100% disabled and there is no severance KRS 342.110 does not apply at all) in the Holt case, in view of the fact that it had now become statutory we did not undertake to rectify it. The construction applicable to the instant case therefore is governed by the Castle decision.
Following his injury the appellant was assigned to office duty as a radio operator. He voluntarily resigned his employment with the state police in December of 1951, and during part of the interim since then he did a different type of work for another employer and earned approximately $4600 per annum before being discharged incident to a reduction in force. This subsequent employment appears to have been a decisive factor in the Board's finding against total disability, as evidenced by the following excerpt from its opinion:
'* * * the evidence does not warrant a finding of total disability for work, for he has worked, regularly and in responsible, well paid positions, during a major portion of the time subsequent to the injury.'
But the term 'total disability for work' as used in KRS 342.095 has been construed to mean 'that if a workman is totally disabled from the performance of work in his former occupational classification and his capacity to perform other kinds of work is impaired, he is entitled to compensation for total disability.' E. & L. Transport Co. v. Hayes, Ky.1960, 341 S.W.2d 240, 241. (The writer of this opinion does not believe this construction is justified by the language of the statute, but the majority of the court is disinclined to reconsider it.) Hence the fact that appellant has been able to earn substantial wages at a different type of work was not a dispositive consideration in this case. As we view it, the question was whether he is totally disabled to perform the duties generally required by his calling, that of a state police...
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