Maynard v. Workmen's Compensation Board

Decision Date23 October 1925
Citation210 Ky. 708,276 S.W. 812
PartiesMAYNARD v. WORKMEN'S COMPENSATION BOARD.
CourtKentucky Court of Appeals

Proceeding under the Workmen's Compensation Act (Ky. St. § 4880 et seq.) by W. D. Maynard, claimant, against the Kingston-Pocahontas Coal Company. Award to claimant was remanded, with directions, on appeal to Court of Appeals (209 Ky. 431, 273 S.W. 34). Compensation Board, on petition of employer, awarded retrial on the merits, and claimant seeks by writ of mandamus to force the Board to apportion award according to directions on former appeal, to which Compensation Board demurred. Demurrer sustained, and petition dismissed.

W. G Riddle, of Toler, for plaintiff.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for defendant.

CLARKE C.J.

In Kingston-Pocahontas Coal Co. v. Maynard, 209 Ky. 431 273 S.W. 34, the case was remanded to the Workmen's Compensation Board, with directions "to determine the extent to which appellee's (Maynard's) injury and his pre-existing disease contributed to his disability, and apportion the award accordingly." Pursuant thereto the board notified the parties that it had redocketed the case and set it for hearing at its next meeting, "for the purpose of producing testimony that will enable the board to determine the extent to which the injured employé's injury and his pre-existing disease contributed to his disability."

Thereupon Maynard filed this action in this court, seeking a writ of mandamus to compel the board to make the apportionment upon the evidence already before it; and the Kingston-Pocahontas Coal Company filed its petition with the Compensation Board for a review of the award as and for the reasons authorized by section 4902 of the Statutes, which is section 21 of the Compensation Act. The Compensation Board then entered the following order and gave Maynard notice thereof:

"It is ordered that this case be and it is reopened, on motion of the defendant, for trial on its merits."

Thereupon Maynard filed an amended petition herein, setting up the above order, and again prayed "that a writ of mandamus issue to compel respondent, Workmen's Compensation Board, to apportion the award without any further or more evidence in the case," and for all proper relief. To the petition as amended the Compensation Board has filed a special demurrer, challenging this court's jurisdiction to grant the relief sought by writ of mandamus, or at all.

The jurisdiction exists, if at all, by reason of section 110 of the Constitution, which, after limiting this court to "appellate jurisdiction only," provides:

"Said court shall have power to issue such writs as may be necessary to give it a general control of inferior jurisdictions."

It will be noticed that the original jurisdiction conferred is narrowly limited to issuing such writs as are necessary to give this court general control of inferior jurisdictions. We uniformly have held that such original jurisdiction is not necessary, and therefore does not exist, where another and adequate remedy is available, either by appeal or otherwise. Duffin v. Field, 208 Ky. 543, 271 S.W. 596; Rush v. Childers, 209 Ky. 119, 272 S.W. 404.

Obviously such is the case here, since any action of the Compensation Board, either in apportioning the award pursuant to the mandate of this court or in reopening the case and reviewing the award, under section 4902, supra, is reviewable upon appeal to the circuit court, and thence to this court. Beaver Dam Coal Co. v. Hocker, 202 Ky. 398, 259 S.W 1010; Johnson et al. v. Hardy-Burlingham Mining Co., 205 Ky. 752, 266 S.W. 635; Wagner Coal & Coke Co. v. Gray, 208 Ky. 152, 270 S.W. 721; Louisville...

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