Wells Elkhorn Coal Co. v. Vanhoose

• Decision Date: 11 February 1927
• Citation: 295 S.W. 464,220 Ky. 381
• Parties: WELLS ELKHORN COAL CO. v. VANHOOSE ET AL.
• Court: Kentucky Court of Appeals

295 S.W. 464

220 Ky. 381

WELLS ELKHORN COAL CO. v. VANHOOSE ET AL.

Court of Appeals of Kentucky.

February 11, 1927

Rehearing Denied, with Modification, June 24, 1927.

Appeal from Circuit Court, Floyd County.

Proceedings under the Workmen's Compensation Act by William Vanhoose employee, and others, against the Wells Elkhorn Coal Company employer. From an award of the Compensation Board, the employer appeals. Affirmed.

Robt. T. Caldwell, of Ashland, and James & Hobson, of Prestonsburg for appellant.

C. B Wheeler, of Prestonsburg, and Frank E. Daugherty, Atty. Gen., for Workmen's Compensation Board.

Gardner K. Byers, Asst. Atty. Gen., for appellee.

TURNER C.

Appellant is a coal mining corporation, and operates a mine in Floyd county under the provisions of the Workmen's Compensation Act (Ky. St. §§ 4880-4987). Appellee was in 1923 an employee of appellant and had accepted the provisions of that act. While engaged in the operation of a small engine at appellant's tipple and in "picking slate" out of the coal as it passed over a moving screen, he was injured on the 29th of October, 1923.

In December or January thereafter, the parties filed before the Compensation Board their written agreement that the employee was permanently disabled, either totally or partially, and the employer agreed for the time being to pay compensation at the rate of $15 per week, beginning November 5, 1923. Thereafter a controversy having arisen between the parties as to the amount and duration of the compensation payable; the employee filed his application before the board for an adjustment of the claim, stating the nature of his injuries and asking the board to award him such compensation as he was entitled to.

In April, 1924, a hearing was had before a member of the board and evidence introduced, and in November, 1924, there was a finding that appellee was totally disabled as a result of his injuries, and awarded compensation at the rate of $15 a week, beginning November 15, 1923, and continuing for a period not exceeding eight years and in amount not to exceed $6,000.

Thereafter upon motion of the company the question was opened up and there was a review by the full board of the original finding, and, upon such second hearing, held about 18 months after the injury, the board again granted an award of $15 per week as had been previously done, and found as a fact that the employee was permanently and totally disabled as a result of his injuries.

The company filed a petition in the circuit court for a review of this last award, and, that court having entered a judgment approving the award and directing its execution, this appeal is prosecuted from that judgment.

The award was made under the provisions of section 4897 of the act providing for compensation for injuries causing "total disability for work," and this appeal is prosecuted chiefly upon the ground that there is really no conflict in the evidence as to the extent of appellee's injuries, and that the board under the evidence should have awarded compensation under the provisions of section 4899 providing for compensation for injuries resulting in partial permanent disability. It is conceded that the injuries authorized an award for permanent partial disability under the provisions of the last named section, but it is insisted that because there is no substantial evidence of permanent total disability that the action of the board is reviewable by the courts because under the uncontradicted evidence it applied the wrong section of the statute.

It is true that where, under the admitted or uncontradicted facts, the board enters an award not authorized by the law, the award is not a finding of fact upon an issue, but is an erroneous application of the law to the facts and is therefore reviewable by the courts as a question of law and not of fact. Jellico Coal Mining Co. v. Chatfield, 200 Ky. 842, 255 S.W. 842.

But where there is substantial evidence before the board tending to establish the fact which it finds to be a fact, and there is no misapplication of the law to the facts, then the finding of fact by the board is conclusive upon the courts. Bates & Rogers' Construction Co. v. Allen, 183 Ky. 815, 210 S.W. 467; Andrews Steele Co. v. McDermott, 192 Ky. 679, 234 S.W. 275; Nelson v. Kentucky River Stone & Sand Co., 182 Ky. 317, 206 S.W. 473.

But it is said for appellant that the provision of section 4935, Ky. Stats., part of the Compensation Act, that an award or order of the board upon review shall be conclusive and binding on appeal as to all questions of fact, is unconstitutional, because it confers upon the board judicial powers as expressly denied by the Constitution. In reliance upon this view counsel cites Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648, Ann. Cas. 1918B, 604; Hoblitzel v. Jenkins, 204 Ky. 122, 263 S.W. 764; Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 66 S.W. 405, 23 Ky. Law Rep. 1356, 1858; Williams v. Wedding, 165 Ky. 361, 176 S.W. 1176; L. & N. v. Greenbrier Distilling Co., 170 Ky. 775, 187 S.W. 296. The first named case is the one in which this court upheld the constitutionality of the Compensation Act of 1916 (Acts 1916, c. 33) as a whole; the second named is an opinion of this court upholding the constitutionality of an act creating a real estate commission, but declaring unconstitutional one provision of the act; the third was an action involving the validity of provisions authorizing an election board to try contested election cases; the fourth was an opinion involving the validity of certain provisions of a drainage act; and the fifth involving the validity of certain legislative acts conferring power upon the State Railroad Commission.

The distinction between the questions discussed in the four last named cases wherein certain powers were by statute conferred upon administrative bodies and that conferred upon the Compensation Board here involved becomes manifest when the opinions of this court determining the validity and constitutionality or unconstitutionality of the 1914 and 1916 Compensation Acts are considered. In none of them is the validity of a statute conferring power upon an administrative body considered with relation to a voluntary contract entered into between individuals as affecting the power of such administrative body, except that in the first named case.

In Ky. State Journal Co. v. Workmen's Compensation Board, 161 Ky. 562, 170 S.W. 437, 1166, L. R. A. 1916A 389, Ann. Cas. 1916B, 1273, the validity of the 1914 Compensation Act (Acts 1914, c. 73) was involved, and one of the vital controlling considerations impelling the court to declare that act invalid was that it was compulsory and coercive upon the employee. Then in the extended opinion (162 Ky. 387, 172 S.W. 674, L. R. A. 1916A, 402) this idea was emphasized, when it was held that an employee coming within the provisions of the act may voluntarily agree to accept its provisions, and thereby limit the amount of his recovery by contract in case of personal injury; also that he might...