215 S.W.2d 563 | Ky. Ct. App. | 1948
Reversing.
The appellee, James Dusina, suffered a broken leg below his knee in an industrial accident on November 30, 1942. He was awarded compensation for temporary total disability of 54 6/7 weeks and in addition $4.20 a week for 145 1/7 weeks on account of 35 percent permanent partial disability. His injured leg was left about an inch shorter than it was, and, of course, shorter than his other one.
The employee resumed his same employment as a miner and has been earning more than he earned at the time of his injury. His work since his injury compares favorably with that of other men doing the same type of labor. For the six-month period prior to his injury, Dusina's average daily wage was $10.71. After his return to work in August, 1943, it was $15.94, or $5.23 more per day. The employer, the appellant, Mary Helen Coal Corporation, claims that its employee is not entitled to collect disability benefits on this account, or so long as he is so paid. It relies upon what has come to be called the "Ditty Rule" by which this court has held that an employer is relieved of compensation payments so long as he furnishes his disabled employee a job at which he earns, or could earn, an amount equal to or greater than the compensation award. Consolidation Coal Co. v. Ditty,
It must be agreed that our decisions have not been altogether consistent and that some confusion has resulted. But the trend has been toward applying the rule more freely. In our most recent case, Warner v. Lexington Roller Mills,
This view was reinforced by taking note of KRS
In the present case the Board in approving the finding of a referee regarded his determination of compensation to be under KRS
Under the facts of this case we are of opinion that the Board should have applied the Ditty Rule and that the case should be sent back to the Board for consistent action.
It may be observed that the legislature at its 1948 session in amending KRS
The judgment is reversed.