B. F. Avery & Sons v. Carter

• Decision Date: 14 November 1924
• Citation: 205 Ky. 548
• Court: Kentucky Court of Appeals
• Parties: B. F. Avery & Sons v. Carter.

205 Ky. 548

B. F. Avery & Sons v. Carter.

Court of Appeals of Kentucky.

Decided November 14, 1924.

Appeal from Jefferson Circuit Court (Common Pleas, Second Division).

ROBERT F. VAUGHAN for appellant.

SELIGMAN & SELIGMAN and NORTON L. GOLDSMITH for appellee.

OPINION OF THE COURT BY JUDGE THOMAS — Reversing.

C. Harvey Carter was an employe of appellant, B. F. Avery & Sons, a corporation engaged in the manufacturing business in the city of Louisville and had been for a great number of years. Both employer and employe had accepted the provisions of our workmen's compensation act. On May 27, 1921, some molten iron accidentally fell upon and burned the top of the left great toe of Carter and which accident, it is conceded, arose out of and in the course of his employment and its proximate injuries and results are, therefore, compensable under the provisions of the act. An ungraduated, though perhaps practical, nurse who was employed at appellant's plant rendered first aid treatment by applying some common remedy for burns and bandaged the toe. Carter, during his long service, had sustained a great number of such accidents and had treated them at his home by applying the usually understood remedies in the way of salves, ointments, poultices, etc., and had never suffered any serious results from any such previous burns. He continued to work thereafter at the same service. He was living with the appellee, Ida M. Carter, who was a maiden sister and dependent upon him, and both of them treated the burn, which was, according to the witnesses, no larger than a silver dime, with the same home treatments, but it did not heal and continued inflamed, and in the course of time produced considerable pain to Carter, so much so that he opened his shoe covering the wound by cutting a hole in it, but continued at his work until January 7, 1922, when he applied to a physician. In the meantime the wound had suppurated and the physician applied to discovered that infection had set in and that the place was hollowed out and had increased in size to that of a nickel and there were evidences of what is commonly known as "proud flesh." An operation thought to be necessary was performed and thereafter the toe was treated by the physician, but a gangrenous condition formed, and on March 10, 1922, Carter died.

His sister, the appellee, made application to the compensation board for an award to her as his sole dependent, which the employer resisted on the grounds (1) that (a), the infection of the parts was not the proximate result of the burn, and (b), that the death of Carter was due to his "unreasonable refusal, failure or neglect to submit to or follow any competent surgical treatment or medical aid or advice," which if true would constitute a defense under the provisions of section 4886 of our statutes and section 6 of the act as originally enacted; and (2), that the injuries did not produce the death of Carter, but that he died from the effects of diabetes, a pre-existing disease, which under the act is not compensable under the terms of section 4880, saying: "Nor shall they include the results of a pre-existing disease." A trial before the board resulted in full compensation under the act, which it declined to modify on petition for review. Afterwards appellant filed its appeal by petition in the Jefferson circuit court to review the finding of the board, in which court it relied on the same defenses, but the court declined to modify or in any way to disturb the award, and from that judgment this appeal is prosecuted.

The board necessarily found against the employer both of the facts urged in defense (1), and under the provisions of section 4935 (a part of the act), neither the circuit court nor this court on appeal therefrom can reverse that finding if there is any substantial competent evidence in support thereof, and which has heretofore been held by us in a number of cases. We do not deem it necessary to recite the evidence directed to defense (a), of ground (1), more than to state that the testimony of the professional witnesses furnished evidence amply sufficient to support the finding of the board that the infection of the wound was the proximate result of the burn, and although there might be testimony and circumstances refuting that theory, yet, under the prior opinions of this court applying the provisions of section 4935, supra, as to the power of this and the circuit court to review the findings of fact by the board, we are without authority to disturb that finding under this contention.

The developed facts with reference to defense (b) under ground (1), are in substance that, as heretofore stated, the deceased had served appellant in the same capacity for a long period of time, during which he had sustained many burns as a result of similar accidents and some of which were more severe than the one here involved. He had in each of those instances treated the injury in practically the same manner as he did this one and had experienced no serious consequences, and it appears that had he been in a normal state of physical health his home treatment by himself and sister would have resulted in the same way as to his last accident, the instant case. No physician or surgeon had advised the decedent to submit his case to any surgical or medical treatment or advice. It is true the ungraduated and locally employed nurse suggested that he consult a physician, which was also done by some of his co-employes, but he insisted that he had theretofore successfully treated similar injuries and that he was pursuing such treatment with that one. He knew nothing of the effects of a prior existing disease upon creating nonresistance to the treatment which he was then applying and had theretofore applied to similar injuries; and in the light of his experience with such matters he did not regard his course as an "unreasonable refusal, failure or neglect" to call upon a physician, but proceeded upon the expectation that the wound would eventually heal as...