Allen v. Com., Dept. of Highways

• Decision Date: 08 March 1968
• Citation: 425 S.W.2d 283
• Parties: Steve ALLEN, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 283

425 S.W.2d 283

Steve ALLEN, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS et al Appellees.

Court of Appeals of Kentucky.

March 8, 1968.

John Frith Stewart, Louisville, for appellant.

Robert Matthews, Atty. Gen., H. C. Smith, Robert Rieckhoff, Frankfort, Dept. of Highways, Robert A. Becht, Louisville, for appellees.

PALMORE, Judge.

The appellant and cross-appellee, Steve Allen, has been employed since 1951 by the Department of Highways as a light equipment operator. He drives a truck, and because of the nature of the Department's work he is exposed to gasoline fumes more than an ordinary truck driver would be. One example of such exposure is that his truck gets tar on it and he is required frequently to use gasoline to clean it off. In 1960 it was determined by a hematologist that as the result of this exposure he had developed an occupational disease which, for the sake of simplicity, we shall call lead poisoning. Efforts to secure a transfer or reassignment to another job at a comparable rate of pay which would not entail similar exposure proved unsuccessful, so he has remained on the same job despite the physician's recommendation that he find work that will not expose him to gasoline fumes. This proceeding arises out of his claim for workmen's compensation and medical expenses, filed in 1965, at which time the proof shows that from a medical standpoint he was (and is) totally and permanently disabled from performing any work that will bring him substantially in contact with the fumes of gasoline or other substances containing lead. In other words, it appears that he cannot continue in his present job without serious danger to his life.

The board found that Allen is affected by an occupational disease, and to some extent disabled as the latter word is commonly understood, but rejected his claim as premature for the sole reason that in view of this court's construction of the word 'disability' as it is used in KRS 342.316, the occupational disease statute, he cannot have a compensable claim for any period of time in which he has continued and continues to work full-time for the same employer. See, for example, Mary Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167 (1961); Bethlehem Mines Corporation v. Davis, Ky., 368 S.W.2d 176 (1963); Stevens Elkhorn Coal Company v. Tibbs, Ky., 374 S.W.2d 504 (1964); Alva Coal Company v. Trosper, Ky., 375 S.W.2d 406 (1964); and American Radiator & Standard Sanitary Corporation v. Gerth, Ky., 375 S.W.2d 817 (1964).

Allen's appeal to the circuit court, KRS 342.285, resulted in a judgment affirming the disallowance of compensation but reversing as to the disallowance of medical expenses and remanding the proceeding to the board with directions to determine such expenses and make an award under KRS 342.020. Both sides now appeal to this court. KRS 342.290.

The rule exemplified by the line of cases cited above is, essentially, that so long as a man actually continues, despite an occupational disease, to satisfy the requirements of his work it can hardly be found that he cannot do it. Whatever may be his physical ailment, it becomes a 'disability' only when in fact it results in a cessation or curtailment of performance. In this respect, the existence of disability is determined by an objective standard which we have held to be conclusive. From the standpoint of legal policy, this position protects the workman against the pitfalls of the notice and limitation sections of KRS 342.316 and at the same time gives reasonable regard to the ultimate object of workmen's compensation, which is to offset...