W. E. Caldwell Co., Inc. v. Borders
| Decision Date | 22 March 1946 |
| Citation | 301 Ky. 843,193 S.W.2d 453 |
| Parties | W. E. CALDWELL CO., Inc., et al. v. BORDERS. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division; Burrell H. Farnsley, Judge.
Proceeding under the Workmen's Compensation Act by Guinn Borders claimant, opposed by W. E. Caldwell Company, Inc., employer and employer's insurer. The circuit court overruled a demurrer to claimant's petition for a review of an order of the Compensation Board dismissing claimant's motion to reopen the case for the taking of additional proof on the grounds of mistake and a change in condition, and the employer and insurer appeal.
Reversed with directions to sustain demurrer to the petition and for other proceedings consistent with opinion.
Robert F. Vaughan, of Louisville, for appellants.
Mahan & Mahan, of Louisville, for appellee.
On November 30, 1943, W. E. Caldwell Company was engaged in the lumber business in Louisville, Ky. including preparing it for building purposes, whilst appellee was one of its servants and employees. Both parties had accepted the provisions of the Workmen's Compensation Act. On that day appellee claims to have received a strain in some part of his back when lifting and delivering to the operator of a planing machine a piece of lumber to be dressed. He worked the balance of the day, and reported the injury to his employer. It in turn made report to its indemnifying company. There was also a report made by Dr. Wilbur Helmus, the company's physician, who examined plaintiff and prescribed for him. In his report the physician stated that he examined plaintiff who complained of pain in the lumbo-sacral muscles of the back, the examination having been made on December 1 of the same year. He revealed in his report that X-ray examinations were made showing no bone injury and that the only injuries were purely muscular supported only by subjective symptoms. The doctor recommended a plaster over the complained of parts, and prescribed heat applications, plus some tablets to ease plaintiff's pain of which he complained.
In the meantime the parties agreed on a settlement of the damages produced by the temporary injury, whereby the employer paid appellee $70.70 for which he executed his receipt, which was delivered to and accepted by the Board as a settlement of the claim. On January 3, 1944, plaintiff returned to work at a weekly wage of $25 and continued his service for a few days more than a year, when he filed before the Board, pursuant to notice given, a motion to reopen the case, the entire motion stating: 'Comes the plaintiff in person, and by counsel, and moves the honorable Board to set aside the final order in this case and to reopen same for the taking of additional proof on the grounds of a mistake and a change of condition.'
On February 15, following plaintiff's motion, defendant answered denying that plaintiff sustained any permanent injuries, or that there had been any change of condition as a result of the accident complained of; but that if plaintiff was in the condition described at the time he sought a reopening of the case 'then the condition is attributable to other causes and conditions unknown to this defendant.' With the motion to reopen plaintiff filed his affidavit and that of Dr. R. Hays Johnson, who had never treated him for his alleged injury but who incorporated in his affidavit the subjective symptoms related to him by movant, and plaintiff herein, with his conclusions therefrom. In plaintiff's affidavit filed with his motion (which may be treated as a pleading and was denied by his employer) he stated his present condition and that 'he is now advised by his doctor that his condition is permanent and he will no longer be able to perform manual labor.' The only physician shown by the record to whom he applied after returning to work was Dr. Johnson who was not employed to treat plaintiff, but solely to qualify him to testify as an expert in plaintiff's motion to reopen the case.
The Board overruled the motion and on March 8, 1945, plaintiff filed in the Jefferson circuit court his petition for a review of the order of the Board dismissing his motion and filed therewith the entire proceedings had before the Board. Defendant demurred to the petition, which the court overruled and from that ruling appellants prosecute this appeal. However, the court failed to enter judgment following that ruling directing the Board to reopen the case. Notwithstanding such failure the parties consent in this court that the appeal might be considered and determined as if such an order had been made by the court. In disposing of the case it should be remembered that on such a review proceeding from the orders and judgments of the Board to the circuit court the latter considers no evidence, except that which was made before the Board which, as we have seen was made a part of the petition herein.
Looking at the Board record alone it will be perceived that, notwithstanding defendant denied the grounds for a review set out in plaintiff's motion, no evidence whatever was introduced before the Board save the affidavit of Doctor Johnson; the plaintiff's affidavit being no more--even if it contained matter authorizing a review--than a pleading by him which defendant's denial put in issue, thereby casting the burden on plaintiff to prove, not only a change in condition, but also that such change was a direct and proximate result of the injury he received.
Our statute authorizing the Compensation Board of reopen awards for reasons therein stated is KRS 342.125, which says '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 chapter, or change or revoke its previous order, sending immediately to the parties a copy of its subsequent order or...
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...the evidence presented upon reopening but also that which was considered at the time of the original award. W.E. Caldwell Co. v. Borders, 301 Ky. 843, 193 S.W.2d 453, 455 (1946). As fact-finder, the ALJ has the authority to determine the quality, character, and substance of all the evidence......
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Martin County Board of Education v. Phyllis Pack, No. 2006-CA-001691-WC (Ky. App. 2/2/2007)
...law, an ALJ has a duty to compare the evidence on reopening with that considered at the time of the original claim. W.E. Caldwell Co. v. Borders, 193 S.W.2d 453 (Ky. 1946). In this instance, after conducting an appropriate review of the whole record, including that evidence submitted at the......
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Clear Fork Coal Co. v. Gaylor
...and it may re-examine the record of a former hearing with reference to a reconsideration of the same accident. See W. E. Caldwell Co. v. Borders, 301 Ky. 843, 193 S.W.2d 453. Appellee testified generally that his back was not well of its infirmity and had given him trouble all the time sinc......
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