McIntosh v. John P. Gorman Coal Co.

• Decision Date: 27 February 1934
• Citation: 253 Ky. 160,69 S.W.2d 7
• Parties: McINTOSH v. JOHN P. GORMAN COAL CO. et al.
• Court: Kentucky Court of Appeals

69 S.W.2d 7

253 Ky. 160

McINTOSH v. JOHN P. GORMAN COAL CO. et al.

Court of Appeals of Kentucky

February 27, 1934

Appeal from Circuit Court, Perry County.

Proceeding under the Workmen's Compensation Act by America McIntosh on behalf of herself and three infant children, for the death of her son, Clay McIntosh, claimant, opposed by the John P Gorman Coal Company, employer, which was consolidated with the application of the Hazard Bank & Trust Company, as guardian for Sybil McIntosh, widow of Clay McIntosh, and docketed for hearing. From a judgment dismissing petition for review of order of Workmen's Compensation Board dismissing claimant's application for adjusted compensation, claimant appeals.

Affirmed.

Roy Helm, of Hazard, for appellant.

Craft &amp Stanfill, of Hazard, for appellees.

RICHARDSON Justice.

The John P. Gorman Coal Company, a corporation, on November 16, 1926, was engaged in Perry county, Ky. in mining coal. Clay McIntosh was in its employ. They had accepted the Workmen's Compensation Law (Ky. St. § 4880 et seq.).

While loading coal he was accidentally killed by the falling of slate. His average weekly wage was $25. His death arose out of and in the course of his employment. He left surviving him a widow, Sybil McIntosh, and his mother, America McIntosh, who was the mother of three children under the age of 16. By the Hazard Bank & Trust Company as her guardian, Sybil McIntosh made application to the Workmen's Compensation Board, on January 13, 1927, for adjusted compensation. On January 27, 1927, the guardian and the John P. Gorman Coal Company filed with the board an agreement for the latter to pay her compensation at the rate of $12 a week. The board by proper order approved their agreement. In accordance with the approved agreement, compensation was paid to her guardian at the rate of $12 a week from the date of McIntosh's death to January 2, 1930, when Sybil McIntosh married and her right as a dependent terminated under section 4894, Ky. St. Thereafter on April 4, 1930, America McIntosh, the mother of Clay McIntosh, filed with the Workmen's Compensation Board an application for adjusted compensation, for herself and children, asserting she and her three infant children were dependents of Clay McIntosh at the time he sustained the injury causing his death. Her application was consolidated with that of the Hazard Bank & Trust Company, as guardian for Sybil McIntosh, and docketed for hearing.

A plea of limitation was made by the John P. Gorman Coal Company to the application made by her for herself and children. The board sustained the plea of limitation and dismissed her application. She filed a petition for review in the Perry circuit court (section 4935, Ky. St.), within the time fixed by the statute. The circuit court also sustained the plea of limitation and dismissed her petition. Hence this appeal.

The sole question presented is, whether her application is within the inhibition of the statute of limitation, prescribed by the Workmen's Compensation Law (sections 4914 and 4919, Ky. St.). It is her insistence the application in her behalf, and her children, is saved by section 4902, Ky. St. It authorizes the board upon its own motion, or upon the application of any party interested and a showing of changed conditions, mistake, or fraud at any time, to review an award or order, ending, diminishing, or increasing the compensation previously awarded, or change or revoke its previous order.

Section 4914 deals with an entirely different subject, and applies to and controls an entirely different situation. This section provides a limitation with regard to the original presentation of a claim to the employers and to the board for adjustment and determination. It is mandatory, and, unless a claim is made for compensation by the filing with the board an application therefor within the statutory limit, the claim is barred. Wilburn v. Auto Exchange et al., 198 Ky. 29, 247 S.W. 1109; Carnahan Oil & Refining Co. v. Miller et al., 232 Ky. 78, 22 S.W.2d 430; Hill v. Consolidated Coal Co. et al., 232 Ky. 641, 24 S.W.2d 261; Ashland Iron & Mining Co. v. Fowler, 208 Ky. 422, 271 S.W. 589; J. R. Kirk, etc., v. Sullivan, 213 Ky. 154, 280 S.W. 925; Johnson v. J. P. Taylor Co., 211 Ky. 821, 278 S.W. 169; Lockhart's Guardian v. Bailey Pond Creek Coal Co., 235 Ky. 278, 30 S.W.2d 955. Section 4902, Ky. St. deals with the administration, power, and procedure of the Workmen's Compensation Board, as they concern the applicant for adjusted compensation and those claiming same in privity with the applicant or applicants to whom an award has been granted or refused by the board. The application to reopen the case (section 4902) need not be within the year after the injury. Louisville Milling Co. v. Turner, 209 Ky. 515, 273 S.W. 83.

It may be made thereunder for review at any time within the period for which compensation was allowed for the particular injury notwithstanding the duration of the original award may have expired or become satisfied by...