Louisville Milling Company v. Turner

• Citation: 209 Ky. 515
• Parties: Louisville Milling Company v. Turner, et al.
• Decision Date: 09 June 1925
• Court: United States State Supreme Court (Kentucky)

209 Ky. 515

Louisville Milling Company v. Turner, et al.

Court of Appeals of Kentucky. Common Pleas, Third Division.

Decided June 9, 1925.

1. Master and Servant — Compensation Case May be Reopened by Order of Board for Change of Conditions After Settlement. — In view of broad interpretation to be placed on Workmen's Compensation Act, under Kentucky Statutes, section 4987, and in view of sections 4894, 4896, 4897, 4901, 4930, 4932, 4943, workmen's compensation board, under section 4902, held to have power to reopen case on change of conditions, after compensation had been fixed by agreement and release filed, and not restricted to diminishing or increasing compensation previously awarded and being paid pending application.

2. Master and Servant — Application to Reopen Compensation Case Need Not be Within Year After Injury. — Where compensation board has made an award, and injured employe seeks compensation for disability subsequently accruing, under Kentucky Statutes, section 4902, application need not be made within one year after injury, as required by section 4914, in case of death.

Appeal from Jefferson Circuit Court

HUMPHREY, CRAWFORD & MIDDLETON and LOUIS SEEL-BACH, JR., for appellant.

W.T. McNALLY and BEN CHAPEZE for appellees.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Affirming.

Arthur Turner was employed by the Louisville Milling Company at Louisville. On February 25, 1920, he was injured by an accident in the course of his employment in this way: While holding a chisel which another laborer was hitting with a sledge hammer Turner was struck over the left eye with the hammer. The injury appeared slight at the time and an agreement on form 9 of the workmen's compensation board was entered into, dated April 16, 1920, and filed with the workmen's compensation board, showing that he had sustained a temporary injury, for which compensation at the rate of $12.00 a week from March 3, 1920, was fixed by agreement of parties. On April 16, 1920, they filed with the board his receipt for $20.55, being the total amount due him under the compensation law, and he in consideration thereof released the employer from all claims and causes of action on account of the injury. On May 31, 1924, he filed an application and motion to reopen the case on the ground that he had suffered a change for the worse in his condition and that the injury to him had proved entirely different from what he had supposed at the time. The milling company objected to the motion to reopen the case, the objection was overruled and the motion was sustained by the board. After a full hearing it awarded Turner compensation for eight years at $12.00 a week from March 1, 1920, subject to a credit of $20.55 theretofore paid and twenty weeks during which Turner was able to work, but in all not to exceed the sum of $5,000.00. The milling company took an appeal to the Jefferson circuit court. That court affirmed the award of the workmen's compensation board. The milling company appeals.

It is conceded on the appeal that there was sufficient evidence before the workmen's compensation board on the question of injury to sustain the award of the board and the only question made is, as to the power of the board in the premises. Section 4902, Kentucky Statutes, is as follows:

"Upon its own motion or upon the application of any party interested and a showing of change of conditions, mistake or fraud, the board may at any time review any award or order, ending, diminishing or increasing the compensation previously awarded, within the maximum and minimum provided in this act, or change or revoke its previous order, sending immediately to the parties a copy of its subsequent order or award. Review under this section shall be had upon notice to the parties interested and shall not affect the previous order or award as to any sums already paid thereunder."

It is earnestly insisted that the power of the board is limited to "ending, diminishing or increasing the compensation previously awarded," and that the board had no power to act unless compensation was then being paid and there was a pending order with reference to which compensation might be ended, diminished or increased. This was the construction given to the English statute by the English courts. The Vermont statute, which practically followed the English statute, received the same construction by the Supreme Court of Vermont in Bosquet v. Howe Scale Co., 96 Vt. 364. The court there thus stated the reasons for its conclusion:

"A review is authorized for the purpose only of `ending, diminishing or increasing' the compensation previously awarded or agreed upon. This necessarily implies a matter still pending with the commissioner, something capable of being ended, diminished, or increased. If the legislature had intended to invest the commissioner with authority to...