Yocom v. Fleming

Court of Appeals of Kentucky

Yocom v. Fleming

492 S.W.2d 194, 1973 Ky. LEXIS 506

DecidedMarch 23, 1973

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This text of 492 S.W.2d 194 (Yocom v. Fleming) 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.

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Yocom v. Fleming, 492 S.W.2d 194, 1973 Ky. LEXIS 506 (Ky. Ct. App. 1973).

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Opinion

PER CURIAM.

The only authorized basis for an award against the Special Fund in this case would be a supportable finding that the claimant had a dormant nondisabling disease condition that was aroused or brought into disabling reality by reason of a subsequent compensable injury. Cf. KRS 342.120(1) (b), (3), (4). On the strength of its finding that he had “hysterical neurosis of a conservative type, which was dormant and nondisabling — arisen into disabling reality as a result of his injury,” the board apportioned 50% of the claimant’s 100% disability against the Special Fund, which has appealed from a judgment sustaining that action.

It is readily apparent from the context of the award that the board avoided the question of whether the preexisting condition was a disease. Moreover, in view of such opinions as Cabe v. Olin Mathieson Chemical Corporation, Ky,, 412 S.W.2d 250 (1967), and City of Pikeville v. Maynard, Ky., 428 S.W.2d 202 (1968), there is no substantial evidence in the record from which it would have been justified in finding that it was.

The judgment is reversed for further proceedings consistent with this opinion.

PALMORE, C. J., and MILLIKEN, OSBORNE, REED, STEINFELD and STEPHENSON, JJ., sitting.

All concur.

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PER CURIAM.

The only authorized basis for an award against the Special Fund in this case would be a supportable finding that the claimant had a dormant nondisabling disease condition that was aroused or brought into disabling reality by reason of a subsequent compensable injury. Cf. KRS 342.120(1) (b), (3), (4). On the strength of its finding that he had “hysterical neurosis of a conservative type, which was dormant and nondisabling — arisen into disabling reality as a result of his injury,” the board apportioned 50% of the claimant’s 100% disability against the Special Fund, which has appealed from a judgment sustaining that action.

It is readily apparent from the context of the award that the board avoided the question of whether the preexisting condition was a disease. Moreover, in view of such opinions as Cabe v. Olin Mathieson Chemical Corporation, Ky,, 412 S.W.2d 250 (1967), and City of Pikeville v. Maynard, Ky., 428 S.W.2d 202 (1968), there is no substantial evidence in the record from which it would have been justified in finding that it was.

The judgment is reversed for further proceedings consistent with this opinion.

PALMORE, C. J., and MILLIKEN, OSBORNE, REED, STEINFELD and STEPHENSON, JJ., sitting.

All concur.

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492 S.W.2d 194, 1973 Ky. LEXIS 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yocom-v-fleming-kyctapp-1973.

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