South Mountain Coal Co. v. Haddix

281 S.W. 493, 213 Ky. 568, 1926 Ky. LEXIS 568

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: March 16, 1926
• Status: Published

Opinion

Opinion of the Court by

Chief Justice Clarke

Reversing.

This is an appeal from an affirmance by the circuit court of an award by the Workmen’s Compensation. Board in favor of appellee Haddix.

While at work in appellant’s mine and following a strain from working, appellee suffered a hemorrhage of the left lung. The question at issue between the parties was whether the strain or pre-existing disease was the sole cause or whether both were contributing causes of the hemorrhage.

The preponderance, if not the whole of the evidence, supports the latter view, but neither the circuit court nor this court is permitted to review the evidence except to determine whether or not the board’s finding of fact is supported by some substantial evidence. Section 4935, Kentucky Statutes; Furnace Coal Mining Company v. Carroll, 212 Ky. 1, 278 S. W. 171. In this case the board made no finding of fact as it is required to do> by section 50 of the act (4933, Kentucky Statutes). This was duei no doubt, to the fact that at that time the board was act ing upon the belief that it was immaterial whether and! to what extent pre-existing disease contributed to the in-j jury if it resulted directly from an accident arising out of and in the course of the employment. This court, however, frequently has held that the board must separate the results of pre-existing disease from those of accidental injury and apportion the award of compensation accordingly. Robinson-Pettet Co. v. Workmen’s Compensation Board, 201 Ky. 719, 258 S. W. 318; Employers’ Liability Assurance Corporation v. Gardner, 204 Ky. 216, 263 S. W. 743, and B. F. Averv & Sons v. Carter, 205 Ky. 548, 266 S. W. 50.

As neither the circuit court nor this court is permitted to review the evidence except to determine whether it supports the board’s findings of fact and con elusions of law, it is at once apparent that a finding of facts by the board is not only determinative of the right to compensation and its amount, but is the necessary basis for any review of the award by the courts.

It was not intended, of course, that the board by failing or refusing to make such a finding could render an appeal from its award impossible. Hence it must follow, it seems to us, that an award not supported by a finding of facts is fatally defective and can not be sustained upon appeal unless, perhaps, where there is no conflict in the evidence upon any question of fact upon which the right to compensation or its amount might depend. ■

Such is not the case here and the judgment of the circuit court affirming the award must be reversed and the cause remanded to the board with directions to rehear the application and determine from the evidence whether pre-existing disease contributed to the injury, and if so to apportion the award accordingly: