Workmen's Compensation Bd. v. U.S. Coal & Coke Co.

• Decision Date: 15 December 1922
• Citation: 245 S.W. 900,196 Ky. 833
• Parties: WORKMEN'S COMPENSATION BOARD ET AL. v. UNITED STATES COAL & COKE CO.
• Court: Kentucky Court of Appeals

245 S.W. 900

196 Ky. 833

WORKMEN'S COMPENSATION BOARD ET AL. v. UNITED STATES COAL & COKE CO.

Court of Appeals of Kentucky.

December 15, 1922

Appeal from Circuit Court, Harlan County.

Proceeding under the Workmen's Compensation Act by Tony Stuck claimant, opposed by the United States Coal & Coke Company. Award to claimant by the Workmen's Compensation Board was modified, and the Board and others appeal. Judgment reversed with directions to enter judgment approving award of the Compensation Board.

Chas I. Dawson, Atty. Gen., Thos. B. McGregor, Asst. Atty. Gen and Clyde R. Levi, of Ashland, for appellants.

Sampson & Sampson, of Harlan, for appellee.

John D. Carroll, of Frankfort, amicus curiæ.

TURNER C.

In July, 1920, Tony Stuck, an employee of the United States Coal & Coke Company, while engaged in the discharge of his duties as a coal miner, was injured by falling slate in the mine of that company in Harlan county.

The company had elected to operate under the Workmen's Compensation Act (Ky. St. §§ 4880-4987) and Stuck had agreed to accept the provisions of the act. The company admitted liability for the injury, and voluntarily paid Stuck at the rate of $12 per week for 28 weeks, making a total voluntary payment of $336. Then, however, the company ceased such payments, and Stuck, believing he was entitled to more compensation, filed claim therefor with the Workmen's Compensation Board under the provisions of section 4932, Kentucky Statutes, authorizing the filing of such a claim upon such disagreement by the parties.

The Compensation Board, after the introduction of evidence by each party and a full hearing, awarded to Stuck for total temporary disability $15 per week for a period of 16 weeks, and $1.50 per week for 319 weeks for permanent partial disability, to be credited by the $336 theretofore paid. The board found as a fact that Stuck had sustained a total temporary disability for a period of 16 weeks and a permanent partial disability of 12 1/2 per cent., for which partial disability it allowed him $1.50 per week for 319 weeks, deducting from the maximum of 335 weeks the 16 weeks for which allowance had been made for total temporary disability.

The company, as is authorized by the act, filed a petition in the Harlan circuit court for a review of the award, and that court in its judgment modified the award by allowing Stuck $15 a week for 16 weeks on account of total temporary disability and $1.50 per week for permanent partial disability for the maximum period of 335 weeks, but directed that this latter total amount should be credited by the amount allowed as compensation for total temporary disability during the period of 16 weeks, and directed an additional credit of the $336 theretofore paid on this amount, of which latter credit there is no complaint.

This appeal is from the judgment of the circuit court, and raises the question whether under the terms of our statute, where a temporary period of total disability is followed by a permanent period of partial disability, the amounts paid to or accruing to the claimant during the period of total temporary disability shall be credited upon the amount allowed for permanent partial disability; the allowance for the latter not having reached the maximum. This involves the interpretation of three sections of the Compensation Act, and presents a question which has not heretofore been passed upon in this court or elsewhere, so far as we have been able to ascertain.

Section 4897, in so far as it is applicable, is as follows: "When the injury causes total disability for work, the employer, during such disability, except the first seven days thereof, shall pay the employee so injured a weekly compensation equal to sixty-five per cent. (65%) of his average weekly earning, not to exceed fifteen dollars ($15.00) nor less than five dollars ($5.00) per week such payments to be made during the period of total disability but not longer than eight years after the date of the injury, nor in any case to exceed a maximum sum of six thousand dollars ($6,000.00). In case the period of total disability begins after a period of partial disability, the period of partial disability shall be deducted from the total period of eight years during which compensation for total disability may be payable, and the payments made on account of such partial disability shall be deducted from the maximum of six thousand dollars ($6,000.00)."

Section 4898 is as follows:

"In case of an injury resulting in temporary partial disability, the employee shall receive during such disability, except the first seven days thereof, a weekly compensation equal to sixty-five per cent. (65%) of the difference between his average weekly earnings which he earns, or is able to earn, in some suitable employment after the injury and during such disability, not to exceed 333 weeks from the date of injury, nor exceeding the sum of fifteen dollars (15.00) per week nor the maximum sum of four thousand dollars ($4,000.00). In case partial disability follows a period of total disability, such period of total disability shall be deducted from the maximum period allowed for partial disability and the benefits paid on account thereof from the maximum allowed for partial disability."

Section 4899, in so far as it is applicable, is as follows:

"In all other cases of permanent partial disability, including any disfigurement which will impair the future usefulness or occupational opportunities of the injured employee, compensation shall be determined according to the percentage of disability, taking into account, among other things, any previous disability, the nature of the physical injury or disfigurement, the occupation of the injured employee and age at the time of injury; the compensation paid therefor shall be sixty-five per cent. (65%) of the average weekly earnings of the employee, but not less than five dollars ($5.00) nor more than twelve dollars ($12.00), multiplied by the percentage of disability caused by the injury, for such period as the board may determine, not exceeding 335 weeks nor a maximum sum of four thousand dollars ($4,000.00). Whenever the weekly payments under this paragraph would be less than three dollars ($3.00) per week, the period may be shortened and the payments correspondingly increased to that amount. Where compensation, except as provided in §§ 4883 and 4885 of this act, is paid under any other provision of this act, the period during which such other compensation is paid and the amount thereof shall be deducted respectively from the maximum period and maximum amount which may be paid under this paragraph."

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