232 S.W.2d 994 | Ky. Ct. App. | 1949
Reversing.
Appellee, Foister Kelly, an employee of appellant, while in the line of duty, sustained an injury to his left foot. Application was made for compensation. The Referee found appellee's injuries to have resulted in a temporary total disability from March 6, 1947, to *563 July 1, 1947, and thereafter a permanent partial disability of 50% to the left foot as a whole. He awarded full statutory payment for the period of total disability and $7.50 per week thereafter, not to exceed 125 weeks for the compensable period, but further held appellant entitled to credit for those weeks it has paid or pays appellee a weekly wage equal to or in excess of the weekly wage paid appellee at the time of his injury.
Appellee appealed from the Full Board award. After a hearing, the court remanded the case to the Board with directions, the effect of which was to amend its award by deleting therefrom that part which gave appellant the credits above. In other words, the Board applied the Ditty rule. The court held the Ditty rule inapplicable. The employer company prosecutes this appeal.
There appears to be no dispute as to the disability found by the Board or the amount awarded to appellee. The sole question here is whether the court below was in error in holding that appellant was not entitled to be credited by the number of weeks appellee has worked, or will work, for appellant at an equal or greater wage than he was receiving when injured.
Appellee takes the position that the injury was a specific injury as enumerated in KRS
Appellee insists that since the finding was for a specific injury under the above statute the Ditty rule is not applicable. On the other hand, appellant takes the position that even though it was found under the above provision of the statute, still the Ditty rule applies. Both appellant and appellee cite cases which they contend are in support of their separate positions. If, as a matter of fact, the injury is one of the named injuries under KRS
The rule as set out in Atlas Coal Co. v. Moore,
However, the confusion here seems to arise, if there is confusion, by mistakenly treating the injury as a specific under KRS
Patton v. Travis et al.,
Since the injury arose prior to, our consideration herein is unaffected by and entirely without reference to, the 1948 amended portion of KRS
The judgment is reversed with directions to enter judgment consistent herewith.