
    United States Coal & Coke Co. v. Gilley et al.
    Feb. 1, 1944.
    
      Sampson & Sampson and James Sampson for appellant.
    Golden & Lay for appellee.
   Opinion op the Court by

Van Sant, Commissioner

—Reversing.

As a result of complications growing out of an injury to one of his finger's while in the employ of appellant, appellee was found to be permanently and totally disabled by the Workmen’s Compensation Board, and was adjudged to be entitled to an award in the maximum amount provided by the Workmen’s Compensation Act.

Prom the time of the accident until the completion of taking of the evidence, appellee had not performed any work of any kind. After the case was “submitted to the full Board for its review of the Referee’s findings, appellant filed a motion to reopen the case, for the purpose of permitting it to introduce evidence newly discovered, to the effect that at the time the motion was filed, appellee was engaged in manual labor and actually performing work which it was found by the Referee he was unable to do. This motion was filed approximately seven (7) days previous to the rendition of the award by the'Board on its review of the case. The motion was not passed upon, and it is reasonable to assume that it was never called to the Board’s attention, because the opinion sustaining the findings of the Referee was delivered within a week after the motion was filed. Nevertheless, the findings of the full Board, in effect, over-' ruled the motion to reopen the case, which is one of the grounds upon which a reversal is sought.

The evidence as to permanent and total disability is close, and it is altogether possible that the Board’s findings would have been altered, in the event appellant could have developed the evidence recited in the affidavit in support of the motion to reopen the case. That being true, we are of the opinion that the Circuit Court should have remanded the case to the Board, with directions that the case be reopened for further proof in respect to the alleged- newly discovered evidence. Since this was not done, the judgment is reversed, with directions for further proceedings consistent with this opinion.

All other, questions are reserved.  