Black Mountain Corp. v. Dean

• Decision Date: 25 October 1938
• Citation: 120 S.W.2d 1030,275 Ky. 121
• Parties: BLACK MOUNTAIN CORPORATION v. DEAN et al.
• Court: Kentucky Court of Appeals

120 S.W.2d 1030

275 Ky. 121

BLACK MOUNTAIN CORPORATION v. DEAN et al.

Court of Appeals of Kentucky

October 25, 1938

Appeal from Circuit Court, Harlan County.

Proceeding under the Workmen's Compensation Act by Will Dean and another, claimants, opposed by the Black Mountain Corporation, employer. From an order of the circuit court affirming the award of the Workmen's Compensation Board the Black Mountain Corporation appeals.

Affirmed.

B. M Lee, of Harlan, for appellant.

John L Williams, of Harlan, for appellees.

REES Justice.

While at work as a coal loader in the mine of the Black Mountain Corporation on September 9, 1935, Will Dean claims to have sustained an accidental injury which resulted in hernia. He continued working in the mine until October 17, 1935, when the company's physicians informed him that an operation was necessary. He was operated upon December 9, 1935, by one of the company physicians, and was discharged from the hospital December 25, 1935. The company physicians were of the opinion at that time that the operation was successful and that he had been cured. On March 9, 1936, Dean filed a claim for compensation with the Workmen's Compensation Board, alleging that he was totally disabled as a result of the injury. After proof was heard, a referee of the board made an award allowing Dean compensation at the rate of $6 per week for a period of 335 weeks, representing a permanent partial disability of 50 per cent. The company's motion for a full board review was sustained, and the board found that Dean sustained an accidental injury on September 9, 1935, which arose out of and in the course of his employment, and resulted in umbilical hernia causing a permanent partial disability to the extent of 33 1/3 per cent. to the body as a whole. Dean was awarded compensation at the rate of $12.68 per week for a period of 12 weeks for temporary total disability following the operation, and at the rate of $4 per week for permanent partial disability for a period of 335 weeks, less 12 weeks for which he was awarded compensation for temporary total disability, and less 11 1/7 weeks, the period from the date of the accident to the date of the operation. The board found that Dean worked until October 17, 1935, and that the operation was delayed by the condition of his health which was not caused by the injury. A petition for review was filed in the Harlan Circuit Court, and the award of the Workmen's Compensation Board was affirmed. The Black Mountain Corporation has appealed.

It is appellant's contention that there was no evidence to support the finding of the Compensation Board that Dean suffered a compensable hernia. Section 4884, Kentucky Statutes, prescribes the conditions under which hernia is compensable. The pertinent parts of the statute read "In all claims for hernia resulting from injury received in the course of and resulting from the employee's employment it must be definitely proved to the satisfaction of the board: One. That there was an injury resulting in hernia. Two. That the hernia appeared suddenly and immediately following the injury. Three. That the hernia did not exist in any...