| Ky. Ct. App. | Nov 7, 1924
Reversing.
Upon a former appeal it was held that the petition herein stated a cause of action for review of an aw'ard by the workmen’s compensation board upon the single question as to whether or not there was any evidence before the compensation board to sustain its award of $15.00 a week to the employe, Chatfield for the period as fixed. Jellico Coal Mining Co. v. Chatfield, 200 Ky. 842" court="Ky. Ct. App." date_filed="1923-11-13" href="https://app.midpage.ai/document/jellico-coal-mining-co-v-chatfield-7148440?utm_source=webapp" opinion_id="7148440">200 Ky. 842, 255 S. W. 842.
The rule for so doing, as fixed by the compensation act is, as stated in that opinion, that “if there is a conflict of evidence as to the amount of it, the award is final on that question.” The act provides that where, as here, the employee is totally disabled, a weekly compensation shall be paid him,
“equal to sixty-five per cent (65%) of his.average weekly earnings, not to exceed fifteen dollars ($15.00) nor less than five dollars ($5.00) per week.” Section 4897, Kentucky Statutes.
The uncontradicted evidence before the board upon the question of appellant’s average weekly earnings was, that he earned from five to six dollars a day when he worked, but that in the period of eight months next preceding his injury he actually earned only an average of $18.41 per week, because appellee’s mine during that period was in operation and afforded employment only part of the time.
There was therefore no conflict in the evidence upon the subject; and the question for decision is one of law rather than fact, and dependent upon whether his earnings for the purpose of determining his weekly compensation are to be calculated at between five and six, dollars a day, as though he worked full time, or only for the time he actually worked. If the former, his average weekly earnings, as contemplated by the act, amounted to at least $30.00, whereas his actual weekly earnings averaged only $18.41.
The lower court adopted the latter plan and reduced the award from $15.00 to $11.70 per week. In so doing, the court clearly erred, since the act (section 4905, Kentucky Statutes) expressly provides:
“Compensation shall be computed at the average weekly wage earned by employe at time of injury, reckoning wages as earned while working at full time.”
Wherefore, the judgment is reversed and the cause remanded to the circuit court with directions to enter a judgment confirming the award.