Young v. Newsome
| Decision Date | 29 January 1971 |
| Parties | John W. YOUNG, Commissioner, etc., Appellant, v. Andrew M. NEWSOME, et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Martin Glazer, Department of Labor, Frankfort, Gemma M. Harding, Department of Labor, Louisville, for appellant.
Scott Collins, Prestonsburg, E. R. Hays, Baird & Hays, Pikeville, for appellees.
Appellee Andrew M. Newsome, a coal miner, was employed by appellee Dix Fork Coal Company to work in its mine which has its entrance in Virginia but extends into Kentucky. On May 18, 1963, the employer elected to operate under the Kentucky Workmen's Compensation Act (KRS 342.005) and secured insurance coverage. Later that insurance was cancelled, none was obtained and the coal company did not qualify as a self-insurer. KRS 342.340.
On April 21, 1966, while Newsome was working in the Kentucky portion of the mine he was injured in a rock slide. Compensation payments were made to him until March 4, 1968. He filed his claim for benefits on May 3, 1968. It was resisted by the employer and the Special Fund which was made a party because Newsome had suffered an injury in 1955.
After hearing testimony of three physicians the board determined that 'The plaintiff is totally disabled after March 4, 1968; 20% of which is non-compensable as it is a result of a prior active compensable injury; 40% of which is due to a subsequent injury and 40% of which is due to additional permanent disability to his prior injury of 1955.' It ordered that Newsome should recover It also directed that
All parties appealed to the circuit court which dismissed the claim against the employer's Virginia insurance carrier, affirmed the award against the employer but modified the award against the Special Fund only to the extent of providing that Newsome should recover from it the sum of $20.00 per week. It ordered the coal company to '* * * pay all compensation adjudged against the Special Fund, for which it shall be reimbursed from the Special Fund * * *'. Only the Special Fund has appealed from that judgment. We affirm.
The appellant claims that it was error to require the Special Fund to pay because '* * * there is no self-insured employer or insurance carrier to reimburse * * *' as directed by KRS 342.120(4). Newsome contends that this issue was not presented below therefore we cannot consider it. He cites Hayden v. Elkhorn Coal Corp., Inc., Ky., 238 S.W.2d 138 (1951). Hayden stands for the proposition for which it is cited, however, Newsome is in error in contending that this issue was not raised below. The Special Fund filed a 'Special Answer' alleging that '* * * the defendant--employer is not operating under the Kentucky Workmen's Compensation Act and * * * does not have insurance coverage in Kentucky * * * then the plaintiff has no cause of action in Kentucky and the Kentucky Workmen's Compensation Board has no jurisdiction to render an award.' The same argument which we rejected in Young v. Young, Ky., 453 S.W.2d 277 (1970), is agiain asserted and rejected.
Newsome insists that his...
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