Yocom v. Butcher

551 S.W.2d 841, 1977 Ky. App. LEXIS 715
CourtCourt of Appeals of Kentucky
DecidedMarch 25, 1977
StatusPublished

This text of 551 S.W.2d 841 (Yocom v. Butcher) 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
Yocom v. Butcher, 551 S.W.2d 841, 1977 Ky. App. LEXIS 715 (Ky. Ct. App. 1977).

Opinion

PARK, Judge.

The appellee, Wilburn Butcher, filed a claim with the Workmen’s Compensation Board asserting that he was totally and permanently disabled from silicosis as a result of being exposed to the hazards of silicosis while employed over a long period of years in the coal industry. March 14, 1972, was given as the date of Butcher’s disability. On December 17, 1973, the Board entered an order dismissing Butcher’s claim on the ground that he had failed to prove that he had been continuously exposed to the hazards of the disease for at least two years immediately prior to his disability. The Board found that there was a four months’ interruption in Butcher’s exposure to the disease in that he did not work in the coal industry from December 10, 1970, through April 19, 1971. Young v. Jones, Ky., 481 S.W.2d 268 (1972); KRS 342.316(4). The order dismissing Butcher’s claim was appealed to the Johnson Circuit Court. The circuit court ruled that the refusal of the Board to consider a deposition of Butcher taken October 18,1973, was arbitrary, capricious and an abuse of discretion. KRS 342.285(3)(e). The circuit court remanded the case to the Board with directions that the Board consider all of the evidence offered by Butcher. The Special Fund appeals.

The record before the Board reveals the following chronicle:

April 4, 1972 Butcher’s claim filed with the Board.
April 14, 1972 The Special Fund filed a motion that the Board hold Butcher’s claim in abeyance, or, in the alternative, dismiss the claim on the ground that Butcher’s application failed to set forth his work history as required by KRS 342.-316(2)(b)(l). The motion asserted that, “the work history contained in plaintiff’s application is a rambling and narrative account containing few if any specific dates of employment.”
May 4, 1972 The Board sustained the motion to hold the claim in abeyance until Butcher filed a further work history. May 15, 1972 Butcher amends his original application by tendering a handwritten work history. This work history revealed a four month interruption in Butcher’s employment in the coal industry running from the date his employment was terminated with the Lois Coal Company on December 10, 1970, until his employment by the Bonnie Coal Company on April 19, 1971.
June 12, 1972 The Board set aside its order holding the case in abeyance and ordered the amended work history filed. June 23,1972 Butcher’s claim was heard by the Board. During his testimony, Butcher’s attorney read the amended work history to Butcher and asked “is that right?” Butcher answered “that’s right.” Following the hearing, the Board granted Butcher 30 days within which to complete his proof by deposition.
July 25, 1972 Butcher filed a printed form motion for an extension of time within which to complete his proof. August 2, 1972 Transcript of June 23 hearing filed.
August 7, 1972 By order, the Board granted Butcher until August 23,1972, to complete his proof.
August 21, 1972 Butcher files a second printed form motion for an extension of time to complete proof.
[843]*843September 6, 1972 Board grants plaintiff until September 23,1972 to complete proof.
September 8, 1972 Plaintiff files third printed form motion for an extension of time to complete proof.
September 25,1972 Board grants Butcher to October 23, 1972, to complete proof. November 14, 1972 The Special Fund moves for an extension of time to complete its proof in order that it may have Butcher examined, and a deposition taken if necessary.
December 4, 1972 The Board grants the Special Fund to December 23, 1972, to complete its proof.
December 13, 1972 The Special Fund files a second motion for an extension of time to complete proof.
January 3, 1973 The Board grants the Special Fund to January 15,1973, to complete proof. The Board’s order provided: “last extension to be granted.”
January 12,1973 The Special Fund files a third motion for an extension of time to complete proof.
February 5, 1973 The Board overrules the Special Fund’s motion for an extension of time.
February 8, 1973 Butcher files a fourth printed form motion for an extension of time to complete proof.
February 16,1973 Board orders the case submitted for opinion and judgment. March 8, 1973 Butcher files fifth printed form motion for extension of time to complete proof.
March 26, 1973 The Board sets aside its order of submission and grants Butcher an additional 30 days to complete rebuttal proof.
April 23, 1973 Butcher files sixth printed form motion for extension of time to complete proof.
May 7, 1973 The Board grants Butcher to May 26, 1973, to complete rebuttal proof.
May 29, 1973 Butcher files seventh printed form motion for extension of time to complete proof.
June 11,1973 The Board grants Butcher 30 days from May 26 within which to complete proof.
June 26, 1973 Butcher files his brief. September 10, 1973 The Board orders the case submitted for opinion and judgment.
September 20, 1973 The Special Fund files its brief in which it points out the four months’ interruption in Butcher’s employment between December 10, 1970, and April 19, 1971.
October 1, 1973 Butcher files a typewritten motion requesting fifteen days to take an additional deposition of the plaintiff concerning his work record. The motion states: “through error we failed to introduce this man’s entire work record during the last twenty-four month period.”
October 5, 1973 Butcher files eighth printed form motion for an extension of time.
October 18, 1973 By deposition, Butcher testifies that he was employed as a coal truck driver by Stambaugh & Blair between December 10,1970, and April 1971. October 22, 1973 The Board overrules Butcher’s motions of October 1 and October 5 for additional time to complete proof by deposition.
October 25, 1973 Butcher files supplemental deposition which was taken October 18.
December 17,1973 Opinion and order of the Board refuses to consider the deposition of October 18 “since the Board had previously overruled the plaintiff’s right to take this deposition.”

In support of his contention that it was an abuse of discretion for the Board to refuse to consider the deposition of October 18,1973, Butcher relies upon the decision in Searcy v. Three Point Coal Co., 280 Ky. 683, 134 S.W.2d 228 (1939).

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Related

Searcy v. Three Point Coal Co.
134 S.W.2d 228 (Court of Appeals of Kentucky (pre-1976), 1939)
Mitchell v. Jacks Creek Mining Co.
248 S.W.2d 926 (Court of Appeals of Kentucky, 1952)
Shackelford v. Shackelford
254 S.W.2d 503 (Court of Appeals of Kentucky, 1953)
Fayette County Board of Education v. Phillips
439 S.W.2d 319 (Court of Appeals of Kentucky, 1969)
Young v. Jones
481 S.W.2d 268 (Court of Appeals of Kentucky, 1972)

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Bluebook (online)
551 S.W.2d 841, 1977 Ky. App. LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yocom-v-butcher-kyctapp-1977.