Fitzgerald, T. R.

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University of Kentucky

Kentucky Law JournalVolume 52 | Issue 4 Article 81964Workmen's Compensation--Judicial Review--FinalOrderT. R. FitzgeraldUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Workers' Compensation Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationFitzgerald, T. R. (1964) "Workmen's Compensation--Judicial Review--Final Order," Kentucky Law Journal: Vol. 52 : Iss. 4 , Article 8.Available at: https://uknowledge.uky.edu/klj/vol52/iss4/8Recent CasesWORK.W'S COMPENSATION - JUDICIAL REVmw - FINAL ODlm - Theclaimant filed an application with the workmen's compensation board,and the case was given to a referee for findings. The referee issuedan order dismissing the claim, subject to the right of the claimant toreopen the case for the purpose of proving jurisdiction. The claimantfiled a motion to reopen with the board, but it was overruled on theground that the case had been decided by the referee's order. Theclaimant then appealed to the circuit court, which took jurisdiction ofthe case and remanded it to the board with directions to reopen.Held: Reversed. A ruling on a motion to reopen is not a final orderwhere the board has not yet approved the award of the referee. Sincethere was no final order, the circuit court lacked jurisdiction for theappeal. Creech v. Roberts, 862 S.W.2d 784 (Ky. 1962).According to the statutory procedure, if the initial findings werenot made by the full board, the board must make a final award ororder upon application of a party.1 Appeal must be taken to thecircuit court within twenty days of such final order 2 It is establishedcase law that, under these provisions, the order of the referee is not afinal, appealable order.3 The court in the principal case treated thisprecedent as controlling of the issue before it.4 However, it should bepointed out that there was no motion to reopen in these cases. 5The principal case well illustrates the undesirability of rigidadherence to procedural technicalities in workmen's compensationcases. The referee has made his dismissal of the claim expressly sub-ject to the right to reopen to prove jurisdiction. Consequently, anattempt by the board to affirm his disposition summarily, while ignor-ing his proviso, would probably constitute reversible error. The cir-cuit court treated the cryptic ruling of the board as a final order,1 Ky. Rev. Stat. § 342.280(1) (1963).2 Ky. Rev. Stat. § 342.285(1) (1963).3 Epling v. Ratliff, 364 S.W.2d 327 (Ky. 1963); Kabai v. Majestic CollieriesCo., 286 Ky. 279, 150 S.W.2d 898 (1941); Spencer v. Chavies Coal Co., 280 Ky.152, 132 S.W.2d 746 (1939). The Epling case was decided after the principalcase in the same term, while the Kabai and Spencer cases anteceded and wererelied on by the principal case.4 Creech v. Roberts, 362 S.W.2d 734, 735 (Ky. 1962).5 It should also be pointed out that a motion to reopen has a different meaningwhen there has already been an award and the purpose of the motion is toestablish grounds for modifying the award. In that instance, the denial of themotion is a refusal to exercise further jurisdiction, while in the principal casethere is the possibility of further action by the board. See Paul v. AllenderBrown Co., 249 S.W.2d 163 (Ky. 1952).REcENT CASESsince it indicated the clear intention of the board summarily to dis-miss the claim, and held the action of the board to be erroneous. Thecourt of appeals, on the other hand, has looked at the technical formof the board's action and has invalidated the action taken by thecircuit court. The net effect is that the board must now go throughthe formality of issuing a final order which on appeal will be in-validated.The interval between the initial assignment to the referee and thedecision of the court of appeals was three years.6 A similar timelapse presumably is now attending the review of the erroneous finalorder. Still another period of delay very likely will accompany theultimate review on the merits. It is submitted that substantive treat-ment of the board's ruling could have reduced these detrimentaldelays by one, while the technical treatment given the ruling by thecourt of appeals unnecessarily postpones the possibility of recoveryby the injured workman and clutters the court docket with repetitiousreview of what is essentially one issue.T. R. FitzgeraldANTrTRUST LAw-APPLICATION OF THE SHERMAN ACr, SECION ONE, TOBANK MEac~ms.-The First National Bank and Trust Company and theSecurity Trust Company, both of Lexington, Ky., after receivingauthorization from the Comptroller of the Currency pursuant to theBank Merger Act,' consolidated2 to form the First Security NationalBank and Trust Company. Suit based on sections one3 and two4 of6 Creech v. Roberts, supra note 4, at 734.112 U.S.C. § 1828(c) (1960). It seems to be settled that Congress did notintend by its enactment of the Bank Merger Act to supersede the provisions ofthe Sherman Act in any respect. Approval by the Comptroller of the Currencydoes not immunize the plan from attack by the Justice Department. Californiav. Federal Power Commission, 369 U.S. 482 (1962); United States v. PhiladelphiaNational Bank, 374 U.S. 321, 350 (1963); United States v. First National Bank &Trust Co., 208 F. Supp. 457, 458 (E.D. Ky. 1962).2 There is a recognized distinction between "merger" and "consolidation"as applied to corporations. In a "merger," one corporation absorbs the other butremains in existence, while the other is dissolved. In a "consolidation" a newcorporation is created and the consolidating corporations are extinguished. PersonalCredit Plan v. Kling, 20 A.2d 704, 706 (N.J. 1941). In the Philadelphia NationalBank case, the "merger" was technically a "consolidation" and thus it is a mootquestion whether the rule of law of that case covers true mergers. In the FirstNational Bank case, although the district court referred to the plan as a consolida-tion or merger, it is implicit that the plan was in fact a consolidation.315 U.S.C. § 1 (1958). This section provides in part: "Every contract,combination in the form of trust or otherwise, or conspiracy, in restraint of tradeor commerce among the several states or with foreign nations, is declared to beillegal."4 15 U.S.C. § 2 (1958).

Workmen\u27s Compensation--Judicial Review--Final Order

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Workmen\u27s Compensation--Judicial Review--Final Order

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