Black Mountain Corp. v. Murphy

• Decision Date: 01 February 1927
• Citation: 290 S.W. 1036,218 Ky. 40
• Parties: BLACK MOUNTAIN CORPORATION v. MURPHY.
• Court: Kentucky Court of Appeals

290 S.W. 1036

218 Ky. 40

BLACK MOUNTAIN CORPORATION v. MURPHY.

Court of Appeals of Kentucky.

February 1, 1927

Appeal from Circuit Court, Harlan County.

Proceeding under the Workmen's Compensation Act by Johnson Murphy claimant, against the Black Mountain Corporation, employer. From a judgment of the circuit court reversing the findings of the Workman's Compensation Board denying a motion to reopen the case, the employer appeals. Affirmed.

Hall Lee & Snyder, of Harlan, for appellant.

Lyttle & Morgan and D. Y. Lyttle, all of Harlan, for appellee.

LOGAN J.

The appellant, Black Mountain Corporation, is appealing from a judgment of the Harlan circuit court wherein that court reversed the findings of the Workman's Compensation Board. The appellee, Johnson Murphy, while employed by the Black Mountain Corporation as a coal miner, sustained an injury on the 3d day of January, 1924, arising out of and in the course of his employment. On January 18, 1924, the appellant made its report to the Workman's Compensation Board showing that appellee, Murphy, had been injured on January 3, 1924, and that the injury sustained consisted of a sprained back and right rib, and that the appellee would probably be disabled for ten days. Thereafter an agreement was entered into between the employer and the employee as to the payment of compensation, which agreement was approved by the Workman's Compensation Board. This agreement provided for the payment of $15 per week for one and one-seventh weeks. On February 26, 1924, appellee signed a receipt showing that he had been paid in full for the injury which he had received on January 3d. The total amount acknowledged in this receipt as having been paid was $17.14.

On the 22d day of October, 1924, the appellee, Murphy, entered a motion before the Workman's Compensation Board asking that his case be reopened. He gave as a reason for the motion that his receipt for final settlement growing out of the injury of January 3, 1924, was obtained by fraud, and further, that there had been such change in his condition as to show that compensation paid him was not adequate for the injury received. In support of his motion to reopen the case he filed the affidavit of Dr. A. C. Foster, in which he stated that he had examined the appellee, Murphy, and had found him suffering from hernia, which appellee claimed had been caused as the result of the injury received by him on January 3, 1924, while he was working for the Black Mountain Corporation. The case was reopened by the Workman's Compensation Board, and on the 10th day of December, 1924 proof was taken at Harlan, Ky. It was agreed that appellee was injured on January 3, 1924, and that by agreement of parties he was paid compensation for eleven and one-seventh weeks at the rate of $15 per week for disability to his back and hip or rib. This agreement appears to contain an error as to the time the compensation was paid, as the receipt referred to shows that compensation was paid for one and one-seventh weeks instead of eleven and one-seventh weeks. The case was reopened, so we find in the record, on the ground that a mistake had been made in determining the entire disability as a result of the accident. The plaintiff was claiming at the time, so the record shows, that the accident resulted in a hernia, and that there was no other question before the court for determination other than to determine whether the accident resulted in a hernia, and, if so, the extent of the resulting disability.

Proof was taken, and by agreement of parties Dr. W. M. Martin testified before the other witnesses. He examined appellee on the day that he gave his deposition, and found appellee with a hernia He could not say whether it was a new trouble, but expressed the opinion that it was large, and that a hernia usually became larger with age. He said, however, that he could not say how old the hernia was when he examined it, and that he did not think any one could tell how old a hernia is after it has become that large. He then said:

"I do not care who says they can tell; I do not believe any one can tell the exact age of a hernia that large."

He said that he could not give an opinion as to how long this hernia had existed, but appellee may have been afflicted with it all of his life, and Dr. Martin makes this statement, as he says, because he is one of the doctors who believes that most hernias are congenital, but he says they do not all agree about that. There is no evidence in the deposition of Dr. Martin except that which shows that appellee had a hernia. He gives his opinion in a modified way as to what he thinks about the age of this hernia, but he himself places little value on the opinion which he gave He does not think that a hernia seriously interferes with a man's ability to labor. His evidence as to the extent of disability of appellee is confusing and of little value.

Johnson Murphy testified in his own behalf. He said he was loading coal at the time of his injury on the 3d day of January, 1924. A big rock fell in the way of the motor, and he did not have any hammer, and had his car loaded, and he leaned over, and tried to raise the rock up and throw it out of the way of the car, when something happened to him which made him ill, and he immediately went to his home, suffering with a pain in his back and in his lower bowels. After he arrived at his home, he sent for Dr. Giannini, who was the doctor for the appellant, and, when the doctor came, Murphy said that he told him that he thought he was hurt in the back, but he did not know what was the matter with him, as he had never had anything like it before. He said he told the doctor that he was not well and wanted to be examined; that he pointed out to the doctor the place where he was suffering, and that it was where the hernia developed; that the doctor told him to come down to his office as soon as he was able to walk. He also states that the doctor told him on the day that he was injured that he would never do any good until he was operated on. Murphy testified rather positively and very satisfactorily that the hernia developed on the day of his injury. According to his testimony, he went to the office of the doctor about a week after the injury, when the doctor examined him, and told him again that he would have to be operated on. The appellee is an ignorant colored man, unable to read or write, and from his testimony he placed his whole case before Dr. Giannini. The attorneys representing the respective parties and the members of the Workman's Compensation Board carefully interrogated appellee, but he did not deviate from his first statement that the hernia followed immediately after he received this injury and that he so told Dr. Giannini.

Murphy gives a history of his work in the coal mines. He says that he worked at Parded, Va., and that he then went to Madisonville, and worked there for some time, but he had never been treated for any injury, except for getting smoked and gassed. Dr. Giannini testified on the hearing that he had known the appellee ever since the doctor had been working for appellant. He said that Murphy had been hurt a number of times in different ways. He admits that appellee came to him complaining of a hernia, but he does not recall the exact date, but thinks it was some time after the injury on January 3d. The doctor is...