Consolidation Coal Co. v. Crislip
| Citation | 289 S.W. 270,217 Ky. 371 |
| Parties | CONSOLIDATION COAL CO. v. CRISLIP ET AL. |
| Decision Date | 17 December 1926 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Johnson County.
Proceeding under the Workmen's Compensation Act by Fred Crislip and others, claimants, opposed by the Consolidation Coal Company employer. After an award by the the Workmen's Compensation Board, upon defendant's motion the case was reopened, and defendant's motion to set aside, modify, or reduce compensation was overruled. From a judgment of the circuit court affirming the action of the Compensation Board defendant appeals. Affirmed.
J Woodford Howard, of Prestonsburg, O'Rear, Fowler & Wallace, of Frankfort, and Wheeler & Wheeler, of Paintsville, for appellant.
W. H. Vaughan & Sons, of Paintsville, for appellees.
The appellant, whom we shall call the defendant, asked the circuit court to review the action of the Workmen's Compensation Board in refusing to set aside an award it had made to Fred Crislip, whom we shall refer to by name. Crislip, during the course of his employment as a coal loader for the defendant, on May 4, 1921, sustained an injury to his left hip. The Workmen's Compensation Board, under statute (section 4897), awarded Crislip compensation at the rate of $15 per week, during total disability, not to exceed the sum of $6,000. On February 17, 1924, the defendant moved the board to reopen the case. The board did so, and, after receiving considerable evidence, made the following order:
"The defendant's evidence shows that Crislip has attempted to do some light work, but even in this he has been unsuccessful. The defendant lays much stress on the fact that the plaintiff is not totally disabled, because he could use his hands with which to drive a wagon, although not a single witness is introduced to show that Crislip at any time loaded or unloaded the wagon or has done any manual labor. The defendant says that Crislip carried a couple of bushels of potatoes to his wagon, and that is the nearest that he has approached to performing manual labor.
The board is of the opinion that Crislip may improve, but he is at the time of the hearing wholly disabled from performing manual labor, and the evidence shows that no one has employed him or offered him employment. He has hobbled around his store and driven his own wagon, but nearly always with a man present on the wagon to aid him. Plaintiff's doctors testify positively that Crislip is wholly unable to perform manual labor.
In view of the serious injury that the plaintiff received, and the strong and emphatic evidence of his doctors, we can reach no other conclusion than that he is at this time wholly disabled, and we see no reason why the award should be disturbed.
The motion to set aside, modify, or reduce the compensation paid herein is overruled, and the defendant is directed to continue payments until further ordered by this board."
The circuit court affirmed the action of the board. The defendant has appealed, and is contending that this action is erroneous for three reasons.
The first reason is based upon this part of section 4886, Ky. St.:
"No compensation shall be payable for the death or disability of an employee if his death is caused, or if and in so far as his disability may be aggravated, caused or continued, by an unreasonable refusal, failure or neglect to submit to or follow any competent surgical treatment or medical aid or advice."
Crislip, after he was injured, was taken to the Paintsville hospital where he stayed a period of 23 days. He testifies that at the end of that time Dr. Sparks, who had charge of his case, told him he could go home if he had crutches; that some of the nurses or doctors at the hospital sent to Prestonsburg and secured some crutches there, which were sawed off and adjusted for his use; that some one at the hospital called a taxi, and he left the hospital, made a trip to Van Lear, and then returned to a house near the hospital. While he was at the hospital, the doctors, so he testifies, told him he had no fracture of the hip, but had merely sustained an injury to the muscles and ligaments, and that use would probably help him. It is claimed now by doctors, who have examined a skiagraph of his hip taken then, that his hip was broken, and that, if he had remained in the hospital and had not used his hip, he would have made a complete and perfect recovery. As it is, his leg has shortened an inch and a half or more, and his hip joint is stiff. It is now suggested that by an operation it may be possible to relieve the stiffness of this joint. The evidence is that this is a very serious operation, and that, if this stiffness is due to some intracapsular trouble, it will be impossible to relieve that condition, but, if the stiffness is due to some extracapsular trouble, the operation may probably relieve the stiffness. He has declined to submit to such an operation, and the defendant is contending that, by the provisions of the statute quoted supra, it should be relieved from paying further compensation. This same question was presented and discussed in an elaborate opinion by this court, in the case of Wallins Creek Collieries Co. v. Hicks, 216 Ky. 262, 287 S.W. 713. The reasoning in that opinion applies here, and furnishes a complete answer to the suggestion that Crislip should now submit to an operation.
It is further suggested that Crislip's condition is the result of his failure to remain in the hospital; but it cannot be said that this was an unreasonable refusal, failure, or neglect to submit to or follow competent surgical treatment or medical aid or advice, as he says he was advised to leave the hospital and to use his leg, and no one denies that. There is evidence, however, that this was a very unwise thing to do, but, wise or otherwise, it was what he was told to do by the physician or surgeon who had his case in charge, and the defendant cannot be now relieved because, in the light of subsequent developments, it has been found that his hip was broken, and that, by the use of it before the fracture had healed, the shortening and other bad results were produced. In the case of Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 P. 24, McKay, the injured employee had broken his arm while cranking an automobile. The injury received proper medical and surgical treatment, the bones knit well, and he was on fair way to recovery when he made a trip of several days to Kurnville, during which the broken bone slipped and shifted in such a way that it became necessary to break it apart and reset it. The question before the California court was that of the allowance of compensation for this second surgical work. The California court said:
In that case, many authorities are cited in support of that holding. It will be observed that the California court speaks of McKay carelessly using his arm too soon. Therefore, what was said in that case is not applicable here, for while Crislip may have unfortunately used his leg too soon, it cannot be said that he carelessly did so, for he used his leg upon the advice of and in the manner directed by the physician and surgeon in charge of his case and of the hospital where he was being treated. His experience shows plainly that the use of his leg then was a mistake. He knows now that was not the proper thing to do, but there is nothing to show he knew so then. No one disputes that, except Dr. Archer, who in his deposition says, "It was common talk around the hospital that somebody gave Crislip a pair of crutches and he slipped off from the hospital and walked home." Common talk is not evidence in a case like this. This disposes of the first contention.
The defendant's next contention is that it has already paid to Crislip $2,423.56, that Crislip still has his leg, whereas the maximum allowance for the loss of a leg is $2,400, and that the defendant has already paid for the injury to this leg more than it would have had to have paid if the leg had been amputated. That is true, but, in the case of Ky. Distillery & Warehouse Co. v. James et al., 205 Ky. 185, 265 S.W. 629, we had a similar case with a similar contention, and it was decided adversely to the contention of defenda...
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