Watts & Williams Drilling Co. v. Slone

437 S.W.2d 723, 1969 Ky. LEXIS 446
CourtCourt of Appeals of Kentucky
DecidedFebruary 21, 1969
StatusPublished
Cited by1 cases

This text of 437 S.W.2d 723 (Watts & Williams Drilling Co. v. Slone) 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
Watts & Williams Drilling Co. v. Slone, 437 S.W.2d 723, 1969 Ky. LEXIS 446 (Ky. Ct. App. 1969).

Opinion

WADDILL, Commissioner.

In proceedings before the Kentucky Workmen’s Compensation Board the appel-lees, dependents of Devoe Slone, deceased, obtained an award of compensation dependency benefits against appellant, Slone’s former employer. The only finding of the board that is in question is the finding that “plaintiffs’ [appellees] decedent sustained a traumatic personal injury in the course of his employment with the defendant [appellant] on June 24, 1967, and that there existed a causal connection between his injury and subsequent death.” The finding and award was upheld on the appeal to the Knott Circuit Court and its correctness is now being questioned by an appeal prosecuted to this court.

It is argued for reversal that there is no competent, reliable and material evidence in the record to support the above quoted finding of the board. Under the provisions of KRS 342.285(3) (d) the scope of our review in this case is limited to whether the “order, decision or award is clearly erroneous.”

On June 24, 1967, Devoe Slone, who at that time was an employee of the appellant, sustained a work-connected injury to his back. Thereafter during Slone’s lifetime appellant voluntarily paid him weekly compensation benefits on account of his disability.

On August 29, 1967, Dr. R. J. Angelucci operated on Slone and removed a protruding disc from the right 1^5 interspace. Slone’s postoperative course was described by Dr. Angelucci as “good.” Slone returned to his home on September 24, 1967, and apparently was making a normal recovery until he suddenly died on the night of October 1, 1967.

[724]*724Dr. Angelucci testified that when he examined Slone during Slone’s convalescence he found no swelling in Slone’s legs or any evidence of a blood clot or any other complication from the disc operation. It was Dr. Angelucci’s opinion that Slone died from a coronary attack and that it was highly improbable there was any connection between Slone’s operation and his death. When asked whether Slone was complaining of tenderness or swelling in his left ankle or thigh when he was last, examined on September IS, 1967, Dr. An-gelucci responded in the negative. However, when asked a hypothetical question that contained some of the symptoms that Slone had manifested after his operation, Dr. Angelucci responded that he could not rule out a pulmonary embolism as the cause of Slone’s death.

Slone’s wife testified that prior to his back injury Slone was able-bodied, regularly employed to perform manual labor, and that his only ailment was asthma. Mrs. Slone stated that following the operation Slone was very weak, had pain in his back and legs, stayed in bed most of the time and used crutches to assist him in walking.

Mrs. Slone described the events preceding his death, thusly:

“Q.33 Now, Versie, on the day of De-voe’s death, would you tell the Board what transpired there that day, and what you saw Devoe do. Just go ahead and tell the Board.

“A. Well, he took his exercises. Then, after he took his exercises, he commenced complaining. * * *.

“Q.34 Don’t tell what he said. Just tell what you saw that went on there — what you saw, and what happened there.

“A. Well, all right. His back went to hurting him and he quit. He didn’t take all of his exercises, so he went on in there and laid down in the bed—

“Q.35 Went on where — on the bed?

“A. On the bed, yeah, in the bedroom, and he just kept saying he was feeling bad— >

“MR. CRAFT-.

“Object

“REFEREE:

“Sustained. Don’t tell what he said.

“Q.36 Just tell what you saw and observed.

“A. Well, I’m sorry. He was feeling real bad, and then later on in the night — I wouldn’t know exactly the time, but he started vomiting, and his back was jerking and the muscles in his back, and I got up, and where he had vomited, he had vomited all over his clothes, and his muscles all back in his back was jerking, and I helped him change his clothes, and he said: Well, I’m going to die if I don’t get a doctor — ’

“MR. CRAFT:

“Sustained.

“(To which ruling of the Referee, Counsel for the Plaintiff excepts).

“Q.37 Now, don’t tell what he said. Just tell what you saw there, Versie.

“A. Well, then I run off the hill to get a doctor, and when I come back he was already dead.

“Q.38 And you say you helped him change his pajamas?

“A. I helped him get his pajamas on before I went, and he was jerking all over in his back, and the muscles in his back, before I went off the hill. I run to get a doctor, and before I got back he was dead.”

Dr. D. G. Barker, who was described by Mrs. Slone as their family physician, signed Slone’s death certificate. Dr. Barker stated that the immediate cause of Slone’s death [725]*725was “coronary thrombosis with massive myocardial infarction.” In answering the question as to whether there were “contributing causes” he stated:

“(b) Coronary arteriosclerosis, approximate interval between onset of death — five hours. Approximate date the patient had been suffering from this condition — 3 to 4 years.”

Dr. Barker further stated in the death certificate that he had been Slone’s family physician from July 30, 1954 to October 1, 1967.

The only expert witness introduced in behalf of the appellees was Dr. Allan Zoeller, an orthopedic surgeon. Dr. Zoel-ler had never examined nor even seen Slone. To a hypothetical question seeking his opinion as to the cause of Slone’s death, Dr. Zoeller responded as follows:

“It’s my opinion that with swelling in his left leg, tenderness in his calf and thigh, both of which are quite characteristic of a phlebothrombosis, or a clot forming in the vein of his left leg. That this patient did develop some blood clots in the veins of his left leg as a complication of the surgery, and a piece of this clot broke loose and went to his lung, we call this a pulmonary embolism, causes the lungs to go into spasm, the great vessels in the lungs to go into spasm, causing death. And, that in my opinion would be the most likely cause of death.
“It could be some other things, but fitting the swelling in the leg and the tenderness in the calf together with this sudden onset of chest pain with fairly rapid demise, it all seems to fit together to me, as a case of pulmonary embolism.”

Appellant contends that the only testimony that tends to show a causal connection between the injury and the death is contained in Dr. Zoeller’s response to the hypothetical question and that this testimony was incompetent (and objected to) because the hypothetical question was not based on facts in evidence. There is merit in this contention. Sonne v. Booker, Ky., 310 S. W.2d 526; Sovereign Camp, W. O. W. v. Alcock, 273 Ky. 734, 743, 117 S.W.2d 938. However, neither the board nor the appel-lees rely entirely upon Dr. Zoeller’s testimony.

Apart from Dr.

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437 S.W.2d 723, 1969 Ky. LEXIS 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watts-williams-drilling-co-v-slone-kyctapp-1969.