Johnson v. Elkhorn & Jellico Coal Co.

479 S.W.2d 582, 1972 Ky. LEXIS 293

• Court: Court of Appeals of Kentucky
• Decided: March 31, 1972
• Status: Published

Opinion

NEIKIRK, Judge.

The Workmen’s Compensation Board, in an opinion and award dated June 7, 1971, dismissed Everett Johnson’s claim against Elkhorn & Jellico Coal Company for compensation for total and permanent disability. The Letcher Circuit Court affirmed. Johnson appeals. We affirm.

The appellant was employed by appellee Elkhorn & Jellico Coal Company. He testified that on the morning of May 17, 1968, while pitching timbers from a shuttle buggy, he sustained an injury to his low back of such magnitude that he is now totally and permanently disabled.

The Board dismissed appellant’s claim, concluding that appellant “failed to show that his injury was sustained by an accident which arose out of and in the course of his employment.”

The evidence before the Board as to whether the appellant’s injury arose out of and in the course of his employment was conflicting. Appellant had the burden of proof and the risk of persuading the Board in his favor. The Board, as the fact-finder, found against the appellant. We have examined the entire record and we cannot say that the total evidence was so strong and persuasive as to compel a finding favorable to the appellant. Hudson v. Owens, Ky., 439 S.W.2d 565 (1969); Butcher v. Island Creek Coal Company, Ky., 465 S.W.2d 49 (1971); Wells v. Kentucky Appalachian Industries, Inc., Ky., 467 S.W.2d 365 (1971); Duggins v. Kosmos Portland Cement Company, Ky., 477 S.W.2d 785 (decided March 3, 1972).

The judgment is affirmed.

All concur.