Andrews Steel Co. v. McDermott
| Decision Date | 01 November 1921 |
| Citation | 192 Ky. 679,234 S.W. 275 |
| Parties | ANDREWS STEEL CO. v. MCDERMOTT. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Campbell County.
Proceeding by Joseph M. McDermott for an award under the Workmen's Compensation Act, opposed by the Andrews Steel Company employer, in which an award was refused by the Workmen's Compensation Board and the petitioner appealed to the circuit court, where the order of the Board was set aside and the cause remanded, and the employer appeals. Judgment reversed with directions to dismiss petition.
Frank V. Benton, of Newport, for appellant.
William A. Byrne, of Covington, for appellee.
Appellee Joseph P. McDermott was in the employ of the Andrews Steel Company, in Newport, in February, 1919, and while in the performance of his duties received an injury to his left eye which he contends later caused the loss of the vision of that eye. As the steel company was operating under the Workman's Compensation Act, McDermott made application to the Board administering the act for compensation for his injury. Evidence was taken and the case prepared. In refusing the allowance the Board made the following finding of fact:
"It was not established by the testimony that there was any chemicals in the dirt or dust blown into plaintiff's eye. In fact the weight of testimony is otherwise. There was slag around the plant, but slag is a hard substance like rock and it was not established by the testimony of the plaintiff or any of the physicians, who examined the plaintiff, that any hard substance hit him in the eye or that any hard substance penetrated the eye, in fact no piece of steel, slag or other hard substance was removed from the eye.
(2) The plaintiff is suffering from cataract. There are several kinds of cataract, among them traumatic, congenital, senile and systemic. No physician directly stated that traumatism was the cause of plaintiff's cataract. In cases of traumatic cataract, the lens of the eye is necessarily involved. Traumatic cataract arises either by a foreign substance penetrating the cornea, going through the anterior chamber and reaching the lens or by a blow injuring the lens capsule. There is an entire absence of evidence to the effect that there was any penetration of the cornea by a foreign substance or a blow upon the eye. It is true that on April 9, 1919, an operation was performed by Drs. Thommasson and Miller, which punctured the anterior chamber to exclude pus and to save the eyeball, but the sight, at that time, was gone.
(3) The loss of the sight of the left eye of plaintiff was not caused by traumatic accidental injury."
On the foregoing facts the Board declared the law as follows:
"(1) There must be some cause or connection between the employment and the accidental injury. Where there is no natural connection between the risk and the employment, such as wind or lightning, it must affirmatively be shown that the nature of the employment peculiarly exposed the employé to such danger. Ordinarily an employé, while at work, who is injured by some force of nature, like wind, is not entitled to compensation unless the employment itself peculiarly exposes the employé to the hazard in a greater degree than the average member of the commonalty or unless the force of nature especially combined with some element or hazard of the employment to produce the injury.
(2) The alleged accident did not arise out of and in the course of the employment.
(3) The burden of proof is upon the plaintiff to show, not only that the accident and the injury arose out of and in the course of the employment, but that the condition of plaintiff was not the result of pre-existing disease."
Feeling aggrieved at the failure of the Board to award him compensation, McDermott appealed in the way and manner provided by section 4935, Ky. St. Supp. 1918, to the Campbell circuit court, where the case was tried upon the record certified to it by the Board of Compensation. The trial court arrived at a different conclusion from that of the Board of Compensation and ordered the findings of the Board set aside and cause remanded to the Board for further proceedings looking to an award of compensation to McDermott. From this judgment the Andrews Steel Company appeals to this court.
The first and only question we need consider on this appeal is may a court...
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Ajax Coal Co. v. Collins
... ... Valentine v ... Weaver, 191 Ky. 37, 228 S.W. 1036; Andrews Steel Co ... v. McDermott, 192 Ky. 679, 234 S.W. 275; ... Robinson-Pettet Co. v. Workmen's ... ...
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Ajax Coal Co. v. Collins
...is evidence to support it, in the absence of fraud, is conclusive. Valentine v. Weaver, 191 Ky. 37, 228 S.W. 1036; Andrews Steel Co. v. McDermott, 192 Ky. 679, 234 S.W. 275; Robinson-Pettet Co. v. Workmen's Compensation Board, 201 Ky. 719, 258 S.W. 318; Employers' Liability Assurance Corp. ......
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