Opinion
Decided March 22, 1927.
Appeal from Harlan Circuit Court.
SAMPSON SAMPSON for appellant.
G.G. RAWLINGS for appellees.
Reversing.
Clyde Howard was in the employment of the Wilson Berger Coal Company; both had accepted the provisions of the Workmen's Compensation Act. On October 23, 1923, he sustained an injury to his right knee in the course of his employment, and filed an application for compensation therefor before the board on March 17, 1924. On September 1, 1925, the application was heard before a referee, who awarded compensation to him for temporary total disability, at the rate of $15.00 per week for a period of 52 weeks, less the waiting period, and thereafter $6.00 per week for a period of 335 weeks, less 51 weeks. On September 3, 1925, the Wilson Berger Coal Company entered a motion for a review by the full board; this came on for bearing on October 19, 1925. The full board allowed the compensation of $15.00 per week for a period of 52 weeks, less the one week waiting period to stand, but fixed the allowance after this at $2.40 a week for a period of 283 weeks. On October 26, 1925, Howard entered a motion before the board to set aside the full board order on the ground that it was against the evidence, also that the insurance company had already settled with him on the award as originally made and paid him the sum of $315.00. This motion by him for a reconsideration of the matter coming on to be heard before the board on November 5, 1925, the full board reconsidered the case and sustained the award which it had theretofore made. Howard, on November 5, 1925, brought this action in the Harlan circuit court to set aside the action of the full board. He alleged in his petition that he had no notice of the motion to review the original award until the second award was made; that the board was without authority to set aside the award of the referee without notice to him, also that the insurance company entered into an agreement with him and paid the compensation due, and agreed to pay the balance due under the original award, and thereafter, without any motion being made on the part of the insurance company, the board set aside and vacated the award rendered by the referee. Sections 4929, 4933, 4934, Kentucky Statutes, provide:
"Any investigation, inquiry or hearing which the board is authorized to hold or undertake may be held or undertaken by or before any one member of the board or a referee acting for him, under authorization of the board. All investigations, inquiries, hearings and decisions of the board and every order made by a member thereof, when approved by a majority of the members and so shown on a record of its proceedings, shall be deemed to be the order of the board.
"The board, or any of its members, shall hear the parties at issue and their representatives and witnesses and shall determine the dispute in a summary manner. The award, together with a statement of the findings of fact, rulings of law and any other matters pertinent to the question at issue, shall be filed with the record of proceedings, and a copy of the award shall immediately be sent to the parties in dispute.
"If an application for review is made to the board within seven days from the date of the award the full board, if the first hearing was not held before the full board, shall review the evidence, or, if deemed advisable, as soon as practicable, hear the parties at issue, their representatives and witnesses, and shall make and award and file the same in like manner as specified in the foregoing section."
It is clear from these provisions that the full board had authority to review the action of the referee. Whether Howard should have had notice of the motion for review it is unnecessary to determine, for he filed his motion for a reconsideration of the matter; the board did reconsider the matter and adhered to the award which it had made. He was at least before the board when this was done, and it cannot be said that the board was without jurisdiction.
The fact that the insurance company made certain payments in no manner affected the right of the Berger Coal Company to a review by the full board. The insurance company was not a party to the proceedings; the coal company had a right to conduct its own defense, and nothing that the insurance company did in any manner affected this right. A litigant's rights are never affected by the acts of a stranger to the record, unless shown to be done by his authority.
The evidence fully sustains the modification of the award made by the full board.
Judgment reversed and cause remanded for a judgment dismissing the petition.