Young v. Vanover
| Decision Date | 18 February 1972 |
| Parties | Hon. John W. YOUNG, Commissioner of Labor and Custodian of the Special Fund and Royal Crown Bottling Company, Appellants, v. B. H. VANOVER and Workmen's Compensation Board, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Thomas R. Emerson, Kentucky Department of Labor, Frankfort, E. R. Hays, Baird & Hays, Pikeville, for appellants.
Kelsey E. Friend, Harry R. Stamper, Pikeville, J. Keller Whitaker, Director Workmen's Compensation Board, Frankfort, for appellees.
This is an appeal from the Pike Circuit Court in which the circuit court upheld the Workmen's Compensation Board's finding of total and permanent disability and the awarding of maximum compensation benefits, but ruled adversely to the Board's finding that all of the disability was attributable to the traumatic event of January 23, 1969. The court found that the liability should have been apportioned between the employer and the Special Fund.
The first issue raised by the appellants is that the claimant's wages were not sufficient to justify maximum compensation. The claimant and his wife testified that the claimant's wages were to be $125 per week. The claimant went to work on January 17 and injured his back on January 23. He had worked for a total of three and one-half days before the injury. He testified that he had received $29 and some few cents after deductions and withholdings. The superintendent of the company testified that the claimant was to be paid $1.65 per hour plus $.07 per case of drinks sold, and was not on a fixed salary basis of compensation. His records showed that the claimant was paid $39.80 for his three and one-half days of work. On the basis of this testimony, the Board and the circuit court held that the wages were sufficient to justify maximum compensation.
The employer relies on Elkhorn Coal Co. v. Stout, 293 Ky. 51, 168 S.W.2d 332 (1943) for the proposition that the records of the employer made regularly in the course of the service constitute evidence of the highest order for establishing the time of service and the amount of earnings. That case is not like this one. There, the claimant had testified twice concerning his daily salary and both times he testified differently. In this case, both claimant and his wife were steadfast that his weekly salary was $125. There clearly was a controversy as to the rate of pay. The Board is the fact-finding body and its determination of facts will not be set aside when there is evidence of substance upon which to base such a finding. Hall v. Isand Creek Coal Co., Ky., 474 S.W.2d 890 (decided November 19, 1971). The findings of the Board are based upon conflicting evidence. However, there is evidence of substance to support the fact found and we will not disturb it.
The second issue on this appeal centers around ...
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