Young v. Mill Branch Mining Co.

435 S.W.2d 453, 1968 Ky. LEXIS 207
CourtCourt of Appeals of Kentucky
DecidedDecember 13, 1968
StatusPublished
Cited by1 cases

This text of 435 S.W.2d 453 (Young v. Mill Branch Mining 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. Mill Branch Mining Co., 435 S.W.2d 453, 1968 Ky. LEXIS 207 (Ky. Ct. App. 1968).

Opinion

WADDILL, Commissioner.

The Kentucky Workmen’s Compensation Board entered an award in favor of Thorn-ey Jack Senters, who was seeking workmen’s compensation benefits against his employer, Mill Branch Mining Company. The Special Fund was made a party defendant during the proceedings before the Board (KRS 342.120, 342.121). The Board found that Senters had sustained a com-pensable injury on June 21, 1966, which resulted in his being totally and permanently disabled. The award was based upon the following “findings of fact”:

“1. * * * all prerequisites to compensation benefits, if any be due, have been stipulated, leaving in consideration only the extent and duration of disability.
“2. The lay and medical testimony of record strongly militates to a conclusion of permanent and total disability in this claimant, resulting from the asserted traumatic injury of June 21, 1966. The evidence further indicates no pre-existing disability or a dormant condition aroused into a disabling reality or any circumstances which would justify the imposition of any part of this disability award against the defendant Special Fund.
“3. The report of the disinterested physician, Dr. T. Rothrock Miller, is unproductive and unresponsive to the questions propounded by this Board and at complete variance with the relatively un-controverted lay and medical testimony elsewhere adduced of record. Consequently, the objections propounded by plaintiff to Dr. Miller’s report are sustained and we have considered the entire record in reaching our designated findings of fact and conclusions of law.”

The Board concluded, as its “rulings of law,” that “the claimant has satisfied his evidentiary burden of proving a permanent and total disability, all of which is attributable to the asserted traumatic injury and no part thereof to a pre-existing condition or disability.” The Board dismissed the claim against the Special Fund and entered the aforementioned award.

The Mill Branch Mining Company took an appeal to the Pike Circuit Court where a judgment was entered remanding the case to the Board with directions to set aside the award against the Mill Branch Mining Company and to enter a new award assessing the entire payment of Senters’ compensation benefits for permanent total disability against the Special Fund.

On this appeal it is contended on behalf of the Special Fund that, since the Board’s finding that Senters’ permanent total disability was solely caused by the traumatic injury he sustained while at work is sup[455]*455ported by substantial evidence, the Board’s finding is decisive of the question concerning which party is liable under our Workmen’s Compensation Act. On the other side of the case the mining company urges that the medical testimony upon which the Board based the award conclusively shows that Senters’ injury would not have been sustained nor would disability have resulted except for the fact that Sent-ers had a dormant, non-disabling preexisting diseased condition which was aroused into disabling reality by the work-connected incident on June 21, 1966. Hence, it is argued that the circuit court correctly set aside the award against the mining company and properly directed the Board to assess the liability for Senters’ disability against the Special Fund under KRS 342.-120.

We take a look at the evidence. Senters, thirty-four years of age, testified that he had been regularly employed as a coal miner since 1949 and had been able tó perform manual labor until June 21, 1966, when he injured his back while helping remove some large rocks from the coal mine. Senters received conservative treatment to relieve the pain in his back and legs and after several days was advised by his physician to return to work and see how it affected his back. Senters stated he tried to work again in the mine but soon found that the pain in his back and legs was so intense that he had to quit.

Later Senters was examined and treated by Dr. W. C. Roland, an orthopedic surgeon, who was of the opinion that Senters had sustained a musculoligamentous strain from his rock-lifting episode. Dr. Roland stated there was no evidence of nerve root compression, nor of disc herniation, nor of disc syndrome. Dr. Roland attributed all of Senters’ back pain to a genito-urinary infection, and stated that no functional disability had resulted from it.

Senters was also examined and treated by Dr. Russell Meyers, a neurologist, and by Dr. J. Hunter Smith, an orthopedic surgeon. Dr. Meyers testified that Senters has a definite radiculitis of the SI nerve root on the left side and the presumption was that this condition was due to a herniated lumbar disc at the L5-S1 level. Dr. Meyers was of the opinion that the rock-lifting incident could not of itself have caused herniation of an intervertebral disc, and it was his further opinion that all of Senters’ 100% disability was predicated upon a preexisting or degenerative condition which predated the lifting incident of June 21, 1966.. Dr. Meyers concluded that Sent-ers’ disability would be permanent and irreversible unless it was reduced by a successful operation on his spine.

Dr. J. Hunter Smith diagnosed Senters’ back condition as stemming from radiculitis and was of the opinion that Senters was physically unable to perform the duties required of a coal miner or to perform any arduous labors. When asked if he believed that the injury as related to him by Senters was sufficient to cause the symptoms that he found on his examination of Senters, Dr. Smith answered in the affirmative.

On cross-examination Dr. Smith was interrogated concerning whether Senters’ back condition could have resulted from a strain superimposed upon a preexisting diseased condition. We quote some of the pertinent questions and answers:

“Q. It is not possible that in this particular case there is some nerve root irritation from these arthritic changes ?
“A. I suppose that’s possible.
“Q. Then if that is possible, could you say that his condition is that of a strain superimposed upon a preexisting condition, causing nerve root irritation and pain radiation?
“A. We could assume that. Of course, the best way to separate the sheep from the goats there would be as to whether or not this patient had any symptoms in this area prior to his injury. If he had some symp[456]*456toms in this area, then I believe we could more readily assume that it could be superimposed.
“Q. Doctor, we are talking about a lifting incident, rather than a traumatic incident or accidental injury. Do you concur that protruding discs mostly occur from degenerative changes caused from wear and tear and weakness from the structure of the disc material, which is triggered by some lifting incident, rather than caused by some traumatic injury, unless that traumatic experience is sudden and abrupt ?
“A. I believe I follow you, and I believe I agree with you, that there is usually some degenerative process taking place in the disc before the trauma is exposed to the disc.
“Q.

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435 S.W.2d 453, 1968 Ky. LEXIS 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-mill-branch-mining-co-kyctapp-1968.