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Thompson v. Harlan Wallins Coal Corp.

March 13, 1953

THOMPSON
v.
HARLAN WALLINS COAL CORP. ET AL.



Duncan, J., not sitting.

Moremen

MOREMEN, Justice

On January 12, 1943, appellant, Walter Johnson, was injured while working for appellee, Harlan Wallins Coal Corporation.

On September 4, 1943, under the terms of the Workmen's Compensation Act, the parties agreed upon compensation of $15 per week for 26 weeks for temporary total disability and, further, for permanent partial disability on the basis of twenty per cent impairment, or weekly compensation at the rate of $2.40 for 309 weeks. A lump sum payment for 335 weeks was made. This payment covered a period of time from January 12, 1943 (the date of injury) to about June 14, 1949, or six years and 19 weeks. It was approved by the Board.

On September 21, 1948, under KRS 342.125, appellant filed motion to re-open the case and set aside the settlement.

On January 2, 1949, the Full Board filed an opinion and award wherein it found that appellant was entitled to compensation on the basis of total permanent disability. The Board, even though it had doubt concerning its soundness, felt compelled to follow the rule in Williams v. Gordon, 313 Ky. 377, 231 S.W.2d 89, and adjudge that compensation be 'made retroactive to the date of the original injury instead of the date of the motion to re-open, and subtracting therefrom the period for which compensation has been paid, with interest from the date that the motion to re-open was filed.' In the opinion it was remarked that the court had approved the procedure in Lincoln Coal Company v. Watts, 275 Ky. 130, 120 S.W.2d 1026, where the first award was for a temporary total period of some weeks, followed by a permanent partial period which was commuted to a lump sum, and had allowed credit on the new award for the number of weeks paid under the first award and at the rate per week of the first award.

Accordingly, in the instant case, the Board awarded appellant '$15.00 per week during the period of total disability but not longer than 10 years from January 12, 1943, (date of injury) and not to exceed $7500.00 less 26 weeks at $15.00 per week and less 309 weeks at $2.40 per week * * *.'

On March 19, 1951, the circuit court reversed the award of the Board and the cause was remanded with directions to enter an award in favor of appellant at the rate of $15 per week, beginning 335 weeks after January 12, 1943, and continuing for 165 weeks at the rate of $15 per week. Therefore, the payments would begin as of June 14, 1949, which date was 335 weeks after the injury and was about 8 months after the motion to re-open had been filed.

Appellant insists that the judgment was not in conformity with the opinion in Hayden v. Elkhorn Coal Corp. Inc., Ky., 238 S.W.2d 138, 140.

In that case, Hayden was injured on November 18, 1947, and a lump sum settlement was had (approved by the Board on April 20, 1948) on the basis of $18 per week for 20 weeks and $3.05 per week for 400 weeks. Therefore, the sum paid under this award covered a period which extended from the date of the injury to about December 6, 1955. Hayden's motion to re-open his case was filed on January 6, 1949. He was awarded payments on the basis of permanent total disability and this court, in deciding that the payments commenced and accrued prospectively from the date of the motion rather than retroactively as of the date of the injury, said:

'The payments, in fact, had been made in advance to him under the lump sum settlement of April 20, 1948, but the first award remained in full force and effect up to the date of appellant's motion to reopen his case. If the new award had permitted weekly installments to begin prior to January 6, 1949, it would have had the result of increasing the payments from $3.05 to $18 per week during the period the first award was in effect, and this is the procedure expressly forbidden under KRS 342.125.'

KRS 342.125, referred to in the quotation, pertains to methods of review by the Board of previous awards and the portion, which has given rise to so many difficult problems, reads:

'Review under this section shall be had upon notice to the parties interested and shall not affect the previous order or award as to any sums already paid thereunder.'

See Rex Coal Company v. Campbell, 213 Ky. 636, 281 S.W. 1039; Lincoln Coal Co. v. Watts, 275 Ky. 130, 120 S.W.2d 1026; Williams v. Gordon, 313 Ky. 377, 231 S.W.2d 89, and Hayden v. Elkhorn Coal Corp. Inc., Ky., 238 S.W.2d 138.

However, in all of these cases, the date of the motion to re-open had been treated as the 'cut-off' date, and then concern was had as to whether the new award was to be given retrospective or prospective effect.

In the Hayden case, relied upon by appellant in the case at bar, although the period for which the first award had been made extended into the year of 1955, the court stated that the first award remained in effect only until the motion to re-open was filed, when the new award was to begin at the maximum rate 'for a period not to exceed 10 years, all subject to credit for any sums already paid by appellee Corporation to appellant.'

But in that case the formula for giving credit for sums already paid was not discussed. There, as here, the payments covered a period which extended into the future beyond the date upon which the motion was made, but the opinion does not state the manner by which sums paid should be credited. It is certain that all the weeks, which had expired before the motion, had been paid for, and the opinion stated that the period covered and payments made during those weeks were not to be disturbed. But what about the unexpired period after the motion? Payments had also been made for weeks which projected several ...


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