Blankenship v. Lloyd Blankenship Coal Co.

• Decision Date: 11 December 1970
• Citation: 463 S.W.2d 62
• Parties: Claude BLANKENSHIP, Appellant, v. LLOYD BLANKENSHIP COAL CO., Inc., et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 62

463 S.W.2d 62

Claude BLANKENSHIP, Appellant, v. LLOYD BLANKENSHIP COAL CO., Inc., et al., Appellees.

Court of Appeals of Kentucky.

Dec. 11, 1970.

Rehearing Denied Feb. 19, 1971.

Ronald W. May, Pikeville, for appellant.

J. W. Craft, Jr., Hazard, Thomas R. Emerson, Dept. of Labor, J. Keller Whitaker, Frankfort, for appellees.

PALMORE, Judge.

Claude Blankenship appeals from a judgment sustaining a dismissal of his compensation claim by the Workmen's Compensation Board. We affirm.

After many years of employment as an underground coal miner the claimant quit working in July of 1967. He was then 56 years old and for some time had been suffering chest pains and shortness of breath which, he said, finally made him unable to work any longer. A Dr. Cox examined him in August of 1967, told him his 'lungs were full' and advised him to rest. A year later, in August of 1968, he was examined by Dr. W. C. Hambley, a general surgeon of Pikeville, Kentucky, who concluded that he had 'early second stage silical anthrocosilicosis' which had developed over the course of his entire underground coal mining experience.

On the basis of chest X rays Dr. Hambley testified that he found 'a marked increase in his hilar densities with radial linear fibrosis radiating into the peripheral lung fields; there was scattered throughout both lung fields fine discreet (sic) nodulation with large or soft associated nodules; there was a minimal, a very minimal focal emphysema present, limited mainly to the lower lobes. I interpreted this nodulation as representing an early second stage silical anthrocosilicosis, the fine nodulation being that of silicosis, and the larger soft nodules an anthrocotic nodules.' He said also that 'the linear fibrosis is the disabling part of the disease. The nodular disease is not the disabling component; it's only an identification component.'

The only expert testimony given in support of the claim was that of Dr. Hambley, and the only countervailing evidence was given by Dr. William H. Anderson and Dr. E. R. Gernert, both chest specialists, of Louisville, Kentucky, in behalf of the Special Fund. Cf. KRS 342.120.

Drs. Anderson and Gernert used stereoscopic X-ray films of the chest taken under the direction of Dr. Anderson, a full-time faculty member of the University of Louisville School of Medicine whose primary field of teaching is diseases of the chest and clinical pulmonary physiology. Dr. Anderson interpreted these films as revealing 'peleural (sic) thickening on the right, mild increase in bronchovascular markings but specifically no evidence of nodulation to indicate pneumoconiosis.' He diagnosed the claimant's condition as chronic bronchitis with mild obstructive ventilatory defect 'and mild decrease in arterial PO2' and a suspected arteriosclerotic heart disease 'because of paroxysmal nocturnal dyspnea and intermittent ankle edema.' Dr. Anderson did not agree with Dr. Hambley's opinion to the effect that linear fibrosis is the disabling aspect of silicosis whereas the nodulation is of importance mainly as an identification factor. He said further that bronchitis is the most frequent chronic pulmonary disease found in the general population.

Dr. Gernert drew the following conclusions from the X rays: 'Heart and vessels are normal. Left lung, root normal with few calcified areas in same. Normal blood vessel shadows to zone three. Diaphragm normal. Phrenic angles clear. Right lung, essentially same as left lung. * * * Note: No nodulation of pneumoconiosis. Conclusions: Negative for pneumoconiosis and/or silicosis.'

Dr. Gernert did not see the claimant, his examination being confined to the X-ray films. He testified that he did not observe any pleural thickening or any increase in the bronchovascular markings, and on the basis of this notable inconsistency between his testimony and that of Dr. Anderson the claimant contends that neither can provide a reliable basis for the board's refusal to accept Dr. Hambley's opinion as conclusive.

Under the heading, 'Findings of Fact,' the final order of the Board states, 'Although there is medical disagreement as to the nature of plaintiff's disability, the persuasive medical testimony of record establishes that plaintiff's disability is not occasioned by a compensable, industrial disease.' Under the heading, 'Rulings of Law,' it states the following: 'The plaintiff has failed in the burden of persuasion of a compensable, industrial claim.'

Although the first of these statements is couched in terms of a direct and categorical finding that the claimant is not suffering from a compensable disease, the second statement indicates that the board simply was not convinced that he was. Since the claimant had the burden of proof in this respect it was not necessary for the board to determine whether he was or was not unless, upon the evidence as a whole, it would have been clearly unreasonable...