Young v. Floyd County Mining Engineering Co.

460 S.W.2d 838, 1970 Ky. LEXIS 599
CourtCourt of Appeals of Kentucky
DecidedNovember 27, 1970
StatusPublished
Cited by6 cases

This text of 460 S.W.2d 838 (Young v. Floyd County Mining Engineering Co.) 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
Young v. Floyd County Mining Engineering Co., 460 S.W.2d 838, 1970 Ky. LEXIS 599 (Ky. Ct. App. 1970).

Opinion

STEINFELD, Judge.

Appellee, Frank Goble, an engineer, suffered three work-connected injuries. In 1953 (or possibly 1952) he hurt his back while employed by Rimmer Engineering Company and on the basis that he was thereby disabled 20% to the body as a whole he received a settlement of $1,300 under the Workmen’s Compensation Law. Later he returned to full-time employment apparently free of occupational disability. On December 28, 1967, while working for appellee, Floyd County Mining Engineering Company, Goble’s hip was crushed in a slate fall. He resumed work July 1, 1968, at his full regular salary and continued with that employer, at least on a part-time basis, until January 2, 1969, when his knee was injured in a work-connected automobile accident. He did not work thereafter.

Goble filed claims for disability caused by the 1967 and 1969 injuries which claims were consolidated. He testified that the 1953 accident caused him no disability in an occupational sense, and that for seventeen years he worked as a mine surveyor, during which time he became a licensed surveyor (KRS 322.410); that the 1967 accident incapacitated him for about six months but thereafter he was reasonably able to follow his profession until he sustained the 1969 injury. He said then he became and is unable to work.

Dr. George M. Gumbert testified only as to Goble’s 1967 hip injury. He estimated a present 50% permanent disability all attributable to the hip injury. Dr. Samuel O. Hodges who treated Goble for his 1969 knee injury testified that 5% to 10% of his disability resulted from the knee injury and the remainder from the hip injury. He also said that the 1953 injury with the spinal fusion was not a disabling factor. Engineers and executives in the mining industry told of Goble’s condition as they knew it and said that they would not hire him as an engineer because of his disability, although there was demand for such employees in that area.

The board then ordered the Special Fund made a party (KRS 342.120) and appointed Dr. K. Armand Fischer as the independent examining physician. KRS 342.121. A [840]*840summary of his report with respect to apportionment of disability is as follows:

1952 accident — Partial permanent disability 15%
1967 accident — Partial permanent disability 15%
Arousal of dormant non-disabling disease condition by 1967 accident 0%
1969 accident — Partial permanent disability 5%
Aggravation by 1969 accident of 1967 injury into further disability 5%
Total 40%

Mining Engineering Company contends that the objections filed to the medical report were not specific, therefore, it is “the exclusive yardstick” and is not subject to review. KRS 342.121(4). Ed Hall Drilling Company v. Profitt, Ky., 424 S.W. 2d 403 (1966). It argues that the report “ * * * is clear, conclusive, unequivocal, complete and unambiguous, therefore, the award must conform.” Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905 (1964). The objections charge that the work evidence disputes the conclusion that “ * * * the 1952 injury resulted in 15% disability to the body” as reported by Dr. Fischer. Another charge is that the report omitted to say “whether the limitation in bending is due to the 1952 back injury or the 1967 hip injury * * * ”. KRS 342.004 requires that we give liberal construction to KRS 342.121(4). We find sufficient specificity in the objections to subject the medical report to attack. Kerns Bakery v. Hodges, Ky., 377 S.W.2d 88 (1964); Young v. Ashland Oil & Refining Co., Ky., 442 S.W.2d 286 (1969) and Young v. Mullins, Ky., 459 S.W.2d 593 (decided November 6, 1970). Other objections were either general, predicated on inaccuracies of the objector or misconceptions of law.

The board found “ * * * that (Goble) had no prior active disability at the time of his (1967 and 1969) injuries”, then translated the disability estimates furnished by medical testimony into 100% occupational disability. Cf. Columbia Coal Company v. Griffie, Ky., 425 S.W.2d 755 (1968). It found against the employer on the basis that Goble was “ * * * totally disabled as the result of his two injuries sustained on December 28, 1967, and January 2, 1969” (KRS 342.095) and dismissed the Special Fund.

The employer appealed to the circuit court, conceding Goble’s total and permanent disability, but contending that the Special Fund was liable for one-half of the benefits. That court reversed holding that the award should be so apportioned. The Special Fund appealed. We reverse.

In its findings of fact the circuit court said Goble “ * * * had a physical disability that limited him in the amount of work that he could do by reason of both the injury of 1952 and the injury of December 1967 (and that the) third injury (1969) caused him additional disability * * * ”. It adjudged that Dr. Fischer’s report required that “ * * * the employer should be held liable for one-half of claimant’s total disability (15% due to the accident of December 28, 1967, and 5'% attributable to the injury of January 2, 1969), and the Special Fund should be held liable for the other 50% of his total disability (15% due to the pre-existing disability from the 1952 injury and 5% due to the aggravation of the pre-existing injuries). The Special Fund “* * * should also pay the difference between the permanent partial disability apportioned to the employer and the amount of the increase in the award due to total disability calculations.”

On this appeal the Special Fund contends “The disability attributed to the 1952 injury (and 1967 injury) is not something for which the Special Fund is liable * * *. This is an active manifest condition and not now compensable by the Special Fund. Goble may be totally and permanently disabled but disability attributed to the 1952 injury should have been deducted from any award Goble received.” It argues that “ * * * none of the medical testimony * * * supports an award * * * against the Special Fund * * * ”, and refers us to the following testimony of [841]*841Dr. Gumbert which it says absolves the Special Fund.

“Q. 30. Is this man’s present disability * * * due to this accident of December 28, 1967?
A. Yes, sir.
Q. 31. Was there any contributing factor ?

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Bluebook (online)
460 S.W.2d 838, 1970 Ky. LEXIS 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-floyd-county-mining-engineering-co-kyctapp-1970.