Harry Gordon Scrap Materials, Inc. v. Davis

478 S.W.2d 731, 1972 Ky. LEXIS 345
CourtCourt of Appeals of Kentucky
DecidedMarch 17, 1972
StatusPublished
Cited by8 cases

This text of 478 S.W.2d 731 (Harry Gordon Scrap Materials, Inc. v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harry Gordon Scrap Materials, Inc. v. Davis, 478 S.W.2d 731, 1972 Ky. LEXIS 345 (Ky. Ct. App. 1972).

Opinion

CULLEN, Commissioner.

This is an appeal from a circuit court judgment affirming a Workmen’s Compensation Board award based upon a finding that the claimant had sustained a 20 percent partial disability.

Appellee Willie Davis, Sr., a manual laborer with a fourth-grade education, fractured his right wrist on June 9, 1969, in a work-connected accident while he was employed by appellant Harry Gordon Scrap Materials, Inc. He fell twelve feet from the roof to the floor of a railroad box car. He testified that the fall made him “ . . . awfully sick ...” and that he “ . . kind of passed out for a few minutes . ” Davis was hospitalized as an outpatient for several hours, during which time his wrist was placed in a cast. The following day he returned to his same employment and continued working full time, at equal or greater wages, until November 18, 1969. Thereafter, he was unemployed until January IS, 1970, when he resumed working for the same employer, and he continued until April 22, 1970, during which latter time he received wages at a greater rate than at the time of the injury. Davis was asked and answered:

“Q 53. Did you state you had done some welding ?
A. No, sir.
Q 54. I mean cutting.
A. I used the torch.
Q 55. Could you do that satisfactorily ?
[732]*732A. Well, you take a right-handed man, he can’t do much left-handed.
Q 60. Will you tell the board the reason you are not working for anybody?
A. I just can’t do no heavy lifting and digging, and that is about all a man with no education can do, is rough work.”

However, Davis had told Dr. Kenneth Phillips that the reason he quit was to retire so that his earnings would not disqualify him from receiving Social Security benefits.

With respect to traumatic injuries Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), directs that:

“ . . .in those instances in which the workman has sustained no loss of immediate earning capacity but has incurred a permanent injury of appreciable proportions, the Workmen’s Compensation Board, under KRS 342.110, can and should make an allowance for some degree of permanent partial disabililty on the basis of the probability of future impairment of earning capacity as indicated by the nature of the injury, the age of the workman, and other relevant factors.”

Appellants contend that Davis did not sustain "... a permanent injury of appreciable proportions . . .,” wherefore, the board erroneously made the award. They note that Davis returned to his job the day following the accident and that except for a period of less than two months, during which time he was unemployed for personal reasons unrelated to the injury, he worked constantly up to April 22, 1970, as a manual laborer. He filed his claim for benefits on June 5, 1970.

The physician who treated Davis, Dr. Phillips, was asked and answered questions as follows:

“A 47. Are you of of the opinion, based upon reasonable medical certainty, as to whether or not Mr. Davis will be able to continue as a laborer by reason of his disability?
A. I think he could continue with his regular work.
Q 22. It is your further opinion that whatever functional disability he might have would not interfere with the performance of work as he was doing at the time of his injury?
A. Yes, sir.
Q 23. In other words, you feel that at the present time, or as of the date of your last examination, Mr. Davis is able to physically perform the same type of work activities that he was doing at the time of his accident?
A. Yes, sir.
Q 1. Doctor, I believe you testified that in your opinion Mr. Davis could perform the same type of labor now after the injury that he could immediately prior to injury, and by that do you mean welding or all types of labor ?
A. All types of labor.
Q 5. Then I gather you are of the opinion that he could perform all types of manual labor.
A. Yes, I believe he could.”

The physician testified that on October 28, 1969, during one of Davis’ eighteen office visits, Davis complained of pain in his shoulder and that Davis “ . . . still could not fully flex the fingers and that there was still some weakness in gripping with the hand . . . (also) there was a little tenderness around the front of the right shoulder.” The physician estimated that on the November 11, 1969 visit Davis “ . . . had about 50 percent weakness in grip with the right hand.” Davis continued to have pain in the right shoulder area and in the wrist on December 9, 1969. On other visits the physician found aching [733]*733in the shoulder area and some limitation of motion in the wrist, arm and shoulder. Dr. Phillips was interrogated and answered as follows:

“Q 44. Doctor, you have spoken of your findings concerning Mr. Davis’ hand, wrist and shoulder areas. Are you of the opinion that these disabilities are of a permanent nature or temporary nature ?
A. I think he has some permanent impairment of the extremity.

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Bluebook (online)
478 S.W.2d 731, 1972 Ky. LEXIS 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harry-gordon-scrap-materials-inc-v-davis-kyctapp-1972.