Scheurich & Fritz Roofing Co. v. Dewitt

• Decision Date: 16 February 1968
• Citation: 424 S.W.2d 390
• Parties: SCHEURICH & FRITZ ROOFING COMPANY, Inc., and Electric Mutual Liability Insurance Company, Appellants, v. Kenneth Earl DeWITT, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 390

424 S.W.2d 390

SCHEURICH & FRITZ ROOFING COMPANY, Inc., and Electric Mutual

Liability Insurance Company, Appellants, v. Kenneth Earl DeWITT, Appellee.

Court of Appeals of Kentucky.

Feb. 16, 1968.

Gavin H. Cochran, Marshall, Cochran, Heyburn & Wells and Charles H. Cassis, Louisville, for appellants.

James T. Robertson, Louisville, for appellee.

CULLEN, Commissioner.

Appellee Kenneth Earl DeWitt proceeded in the circuit court under KRS 342.305 to have reduced to judgment a workmen's compensation agreement which by board approval had the status of an award. The appellants, employer and insurer, sought to abate the action pending determination by the Workmen's Compensation Board of a motion to reopen the award which the appellants had filed. The court refused to abate the action and entered judgment awarding recovery for past-due payments and requiring that future payments be made until the award be set aside. The employer and insurer have appealed from that judgment

DeWitt was injured on August 28, 1965. Thereafter an agreement was entered that he be paid, on the basis of total permanent disability, the sum of $41 per week 'until terminated in accordance with the provisions of the Workmen's Compensation Law.' (The agreement later was approved by the board so as to acquire the status of an award.) Payments were made through February 11, 1966, and a tender was made of additional payments through March 4, 1966. The employer refused to make any further payments because the physician's report of an examination of DeWitt made on March 4, 1966, was that he had made a recovery, could 'return to any type duty,' and would 'have no permanent disability.'

The situation remained dormant until January 26, 1967, when DeWitt filed with the circuit court a motion under KRS 342.305 to have his award reduced to judgment. Thereafter, on February 14, 1967, the employer and insurer filed with the Workmen's Compensation Board a motion under KRS 342.125 to reopen the award, asserting DeWitt's recovery on March 4, 1966. Then the employer and insurer, on February 21, 1967, filed their answer in the circuit court proceeding, alleging the filing of their motion to reopen and praying that the circuit court action be stayed or abated pending determination by the board of the motion to reopen. Subsequently, in May, the employer and insurer filed a supplemental answer alleging that the board had assigned their motion for a hearing. The circuit court refused to stay or abate the action and on May 12, 1967, entered the judgment here appealed from, which awarded recovery for payments past due as of the date of commencement of the action and ordered future payments until such time as the award be set aside.

Much of the argument revolves around the provision of...