Stephens Elkhorn Coal Company v. Tibbs

374 S.W.2d 504

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: October 18, 1963
• Status: Published

Opinions

CULLEN, Commissioner.

The Workmen’s Compensation Board granted Luther Tibbs benefits for total disability resulting from silicosis which was contracted while working in the mine of Stephens Elkhorn Coal Company. The company seeks reversal of the judgment upholding the award on the ground that Tibbs failed to give it timely notice as required by KIRS 342.316(2). Under this subsection an employe is required to give notice to his employer within a reasonable time after he has a disability from an occupational disease which impairs his capacity to perform his work and he knows (or should know by the exercise of reasonable care) that he has contracted the disease. Peabody Coal Co. v. Powell, Ky., 351 S.W.2d 172.

Tibbs had been employed by the company since 1949. During 1952 he began having respiratory trouble and filed a claim for compensation for disability due to silicosis. Upon his condition being diagnosed as tuberculosis, Tibbs’ claim was dismissed without prejudice. Several months later he was re-employed by the company and, although suffering from chest pains, he continued to work in its mine until September 1, 1961, when he quit his job because he was unable to perform the work required of him upon being assigned to the night shift. On September 4, 1961, he gave the company notice of his disability and filed his claim with the Workmen’s Compensation Board.

Upon the hearing of his claim Tibbs testified that he was informed in 1956 that he had contracted silicosis by Doctor W. C. Hambley who examined him when his chest pains and breathing difficulties worsened and that he was partially disabled to perform his work from that time until he quit his job in 1961. It was conclusively established that he is now totally disabled.

Under the rule hereinbefore stated, the requirement of giving notice was conditioned on Tibbs’ having “a disability * * which impairs his capacity to perform his work.” The characteristics of the disease of silicosis, and its effects on employability, are such that it is difficult to say with any certainty when “disability” arises. Without attempting to lay down a set of rules or standards for determining when disability from silicosis shall be considered to exist, we shall say that in our opinion practical realities require the conclusion that so long as the employe, after first acquiring knowledge that he has the disease, continues to be employed in full-time employment by the same employer, he cannot be considered to be disabled within the meaning of the notice statute. If, according to the employer’s standards, the workman has sufficient capacity to be continued in full-time employment, it would seem that in practicality he is not disabled, even though by the employe’s subjective standards he is not able to work to full capacity. So the fact that Tibbs testified, in the instant case, that for several months he had been unable to do a full day’s work, did not establish that he was disabled within the meaning of the notice statute.

This decision is predicated, of course, on the terms of the statute in force at the time this case arose. We do not undertake to determine the effect of the 1962 amendments to the statute, KRS 342.316.

The judgment is affirmed.

MONTGOMERY, J., dissenting.