Yocom v. Payne

STEPHENSON, Justice. The Daviess Circuit Court affirmed an award of the Workmen’s Compensation Board finding Payne permanently and totally disabled. The award provided that Arthur W. Baird, d/b/a Baird’s Plumbing and Heating Company, be liable for 25%, Parrish Avenue Plumbing and Hardware, Inc., 25%, and the Special Fund 50%. Both employers and the Special Fund appeal. We reverse. Payne filed a claim against Baird for a back injury which occurred in 1967. Later he filed a claim against Parrish for another back injury which occurred in 1968. The two claims were consolidated for hearing by the Board, and the Special Fund was made a party. In its findings of fact, the Board found Payne 25% permanently partially disabled as a result of the April 11, 1967, injury while an employee of Baird and 25% permanently partially disabled as a result of the April 17, 1968, injury while an em: ployee of Parrish. The Board further found that Payne had a prior injury to the back as a result of a 1961 injury and suffered 50% disability as a result of the arousal of a dormant, nondisabling, pre-ex-isting condition into disabling reality as a result of the accidents of April 11, 1967, and April 17, 1968. After the award of the Board was entered on September 20, 1971, petitions for reconsideration were filed by Parrish and by Baird. The Special Fund did not file a petition for reconsideration. By order dated October 4, 1971, the Board overruled the petition filed by Parrish. On November 8, 1971, the Board entered an order overruling the petition filed by Baird. On October 14, 1971, Parrish filed its appeal in Daviess Circuit Court; on November 22, 1971, Baird filed its appeal in Daviess Circuit Court; and on November 26, 1971, the Special Fund filed an appeal in the Daviess Circuit Court. The three appeals were consolidated by the trial court and the award of the Board was affirmed by judgment which further held that the appeal of the Special Fund was not timely filed. The Special Fund contends that the appeal was timely, and we agree. The Board consolidated the two cases for hearing, and thereafter they were treated as one case. The Special Fund was under no obligation to file a petition for reconsideration. When Baird and Parrish filed their petitions for reconsideration pursuant to KRS 342.281, the finality of the award was destroyed. Smyzer v. B. F. Goodrich Chemical Company, Ky., 474 S.W.2d 367 (1971), and Commonwealth, Department of Mental Health v. Robertson, Ky., 447 S.W.2d 857 (1969). We are of the opinion that the same rule should apply when there are multiple parties and multiple petitions for reconsideration as when there is only one party filing the petition for reconsideration as in Smyzer, supra. The finality of the award having been destroyed by the filing of the petition for reconsideration, the entire case as to all parties should be held in abeyance until the last of multiple petitions for reconsideration has been overruled. Until that time, the Board could change its award and a prior appeal would be premature, Robertson, supra: The cases having been consolidated, there remains one case; and the fact that the Board entered separate orders at different times on the petitions would be of no significance as to the time to appeal. When the last petition was overruled, the award again became final and the time for appeal to the circuit court as provided in KRS 342.285 again commenced. To hold otherwise would be to [519] set a series of procedural traps and to invite premature appeals to the circuit courts. The uncontradicted medical evidence is that Payne suffered a disability from the 1961 accident for which he was compensated. This was a pre-existing active condition, and there is no evidence to support the finding of the Board that Payne suffered from a pre-existing dormant nondisabling condition which was brought into disabling reality. KRS 342.-120(1)(b). The Board erroneously failed to apply the formula set out in Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971). The judgment is reversed with directions to remand to the Workmen’s Compensation Board for further proceedings consistent with this opinion. OSBORNE, C. J., and MILLIKEN, PALMORE, REED, STEINFELD and STEPHENSON, JJ., concur. JONES, J., dissents.