Wallins Creek Collieries Co. v. Jones and W. C. B. , 214 Ky. 775 ( 1926 )

Appellant's petition for an extension of the foregoing opinion presents the question as to the date from which appellee is entitled to draw the compensation awarded him.

As stated, appellee was injured on July 5, 1923. By an agreement entered into between him and the appellant, which agreement was filed with and approved by the Workmen's Compensation Board, and thus had the effect of an award, appellee was paid certain compensation up to August 7th, 1923, on which date a final receipt upon the final receipt form prescribed by the board was executed by appellee. On April 4, 1924, appellee filed his petition to reopen the agreed award and it is this proceeding which is involved in this appeal.

Appellant now insists that the period from July 5th, 1923, to April 4th, 1924, must be deducted from the compensable period and that it can be compelled to pay the rate of compensation awarded appellee herein only for that portion of the compensable period as remains after this deduction. Appellee insists that the only deduction appellant is entitled to is the period from July 5th, 1923, to August 7th, 1923.

To support its position, appellant relies on the case of Rex Coal Co. v. Campbell, 213 Ky. 636, 281 S.W. 1039. That case involved the construction to be placed on section 4902 of the statutes, providing for the reopening of award and under which the awards in the Rex Coal Company case and this case were reopened. The concluding sentence of that section 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."

Construing this language in the Rex Coal Company case, we said:

"It is therefore our conclusion, though reluctantly arrived at, that the judgment was in error in this case in giving the increased award a retroactive effect, since it is our opinion that the language of the sentence under consideration forbids it and preserves intact, as to both employer or employee or his dependents, the prior award until application for its review is made, and that any change made in it by the board on that hearing will have only a prospective effect from that time."

Appellant would put on this language of the court the interpretation that when an award is reopened, compensation can only date from this reopening, whether or not compensation had been paid for any part of the period prior to the date of the reopening. Every opinion is to be read having regard to the facts of the case and the question actually decided. The interpretation appellant thus puts on the language of the court is warranted neither by the statute itself nor by the facts of the Rex Coal Company case upon which that opinion of course was based. The statute forbids a retroactive effect to any new award only in so far as it affects any sums already paid under a previous award. And that was all that was decided in the Rex Coal Company case. Compensation had been steadily paid in that case from the date of the original award up to the reopening of the case. But a few weeks remained of the compensable period. The Rex Coal Company case only decided that the new award could not affect the old award as to sums already paid thereunder and as compensation under that award had never ceased up to the reopening of the case, the new award could have but a prospective effect.

In this case, though compensation ceased on August 7th, 1923, appellee concedes that appellant is entitled to have deducted from the compensable period the time between July 5th and August 7th, 1923. Appellee is correct in this concession under the Rex Coal Company case, because the new award could not affect the old award as to sums already paid thereunder. But since August 7th, 1923, no sums have been paid under the old award and so the new award with the concession granted by appellee does not affect the old award as to any sums paid thereunder. There is nothing in the statutes forbidding an award on the reopening of a case from having a retroactive effect except in so far as such effect would affect such sums already paid under previous awards, and so appellee is correct in his position that the only deduction from the compensable period appellant is entitled to is that period conceded by appellee. The award in this case, though, does not give appellant the deduction appellee concedes. To this extent, the award and the judgment of the circuit court affirming it are erroneous, but the amount of money to which appellant is thus entitled to a credit is too small to warrant a reversal here. The award and judgment, however, should be modified to the extent of crediting the compensable period here by the period during which compensation was paid under the original award. As so modified, the judgment of the circuit court is affirmed.