A. C. Lawrence Leather Co. v. Barnhill
| Decision Date | 30 May 1933 |
| Citation | 61 S.W.2d 1,249 Ky. 437 |
| Parties | A. C. LAWRENCE LEATHER CO. v. BARNHILL et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Boyd County.
Proceeding under the Workmen's Compensation Act by Bud Barnhill claimant, for injuries, opposed by the A. C. Lawrence Leather Company, employer. The Workmen's Compensation Board awarded compensation, and the circuit court approved the award, and the employer appeals.
Affirmed.
Frank C. Malin and Hubert T. Willis, both of Ashland, for appellant.
Dysard Tinsley & Prichard, of Ashland, for appellees.
The A C. Lawrence Leather Company is insisting that, whether the facts of the case be considered as disputed or undisputed, the award of the Compensation Board, brought here for review, is erroneous, because it is without any evidence to support it; based entirely on conjecture, surmise, and guess, and because of the failure of the board to comply with section 4880, Ky. St. It argues that the evidence does not show a compensable injury; i. e., (1) the injury did not arise out of nor (2) in the course of his employment, and (3) was caused by a pre-existing disease.
To consider intelligently the questions presented, the proven facts must be considered.
Bud Barnhill, 35 years of age, was on February 14, 1931, an employee of the A. C. Lawrence Leather Company, as a "gin hand." On the morning of that day he appeared as usual at his place of work, and engaged in stacking tanbark for about 7 1/2 hours. Thereafter he and a fellow workman were put to stacking sacks of some sort of substance, weighing, according to his testimony, about 200 pounds, but, according to that of the company, exactly 169 pounds each. During the day, to several of his fellow employees, Barnhill stated that he had been feeling unwell all day, and that he was "chilly." On this account, he worked wearing a heavy sheepskin coat. Those with him were without any sort of heavy outer garment. His condition during the day is shown by his statements to others, while in the hospital. In fact, his testimony in his own behalf substantially shows that he was not feeling well on that day. About the time he and his companion completed stacking the sacks, the whistle, signifying the end of the day's work, blew, when he prepared to go home. There was provided, for the coming in and going out of the employees, a cinder roadway leading straight into the company's premises from Central avenue. On the right of it is an open chute filled with tanbark. The roadway parallels this chute, probably 100 feet or more, and then crosses several railroad tracks which run into, and past, the bark chute, and at right angles with the roadway. The roadway is about 100 feet from the tanbark chute, leaving an open space between them, the road paralleling both. Immediately across the railroad tracks to the right of the road, behind the corner of the tanbark chute, on the opposite side of the railroad track, and next to what is known as a "gas house," is a parking space used by the employees. Barnhill parked his car in this space. After he completed his day's work, he went to his car with the intention of driving in it to his home, but could not start it. To accomplish this purpose, he went to the car of Kiser, a fellow workman, which was parked across the tracks about 50 or 75 feet from Barnhill's car, on the driveway from Central avenue, to procure a crank in this car. After getting it, he started back to his own car, but, instead of walking along the driveway provided for the use of the employees, he left it and took a short cut, walking in the space between the driveway and the tanbark chute. He passed the corner of this chute, across the tracks. At this point he turned blind or dizzy, falling, breaking his leg. For this accident and injury he made application to the Workmen's Compensation Board for adjusted compensation. Both he and the A. C. Lawrence Leather Company had accepted the provisions of the Workmen's Compensation Act, as provided by sections 4956 and 4957, Ky. St. The board, on hearing the evidence, awarded Barnhill compensation at the rate of $12.23 per week, from the 14th day of February, 1931, to the 24th day of June, 1931, less one week waiting period, and the further sum of $1.20 per week for a period of 355 weeks, less the 18 weeks for temporary, total disability, with interest on past-due payments. The motion for a full board review was sustained on the application of the A. C. Lawrence Leather Company, and the above award was approved by the full board. On the hearing of the petition for a review, the circuit court approved the award, and a judgment was so entered.
A proper disposition of the questions presented requires that it be kept in mind that the application of Barnhill for adjusted compensation was for breaking his leg and not for a disease pre-existing or resulting. The breaking of his leg is the basis of the claim for which compensation was awarded him. Section 4880, Ky. St., authorizes adjusted compensation for personal injury sustained by an employee by an accident arising out of and in the course of his employment; "provided, however, that personal injury by accident *** shall not include diseases except where the disease is the natural and direct result of a traumatic injury by accident, nor shall they include the results of a pre-existing disease." The statute does not exclude the "results" of an accident. It merely excludes the "results" of a pre-existing disease. The "results," as the term is used in the statute, are the ordinary and natural consequences of the disease itself, and not the accident resulting from such disease. Robinson-Pettet Company v. Workmen's Compensation Board, 201 Ky. 719, 258 S.W. 318; B. F. Avery & Sons v. Carter, 205 Ky. 548, 266 S.W. 50. In making the award for the compensation for a disability resulting from a traumatic injury, but presumably contributed to by a pre-existing disease, where there is a contrariety of evidence, it is the duty of the board to make a finding of facts, and the award should be apportioned according to contribution of each to the disability. Standard Elkhorn Coal Company v. Royark, 243 Ky. 828, 50 S.W.2d 33; Consolidated Coal Company v. Fields, 243 Ky. 488, 49 S.W.2d 330.
In such case it will not be permitted to immunize its order against erroneous conclusions of law by disguising them as findings of facts. South Mountain Coal Company v. Haddix, 213 Ky. 568, 281 S.W. 493. If there is no issue of fact, or if the facts are undisputed, the question becomes one of law, and the finding of the board is a finding of law and not of fact, although it may be styled a finding of fact by the board.
The evidence shows that Barnhill was feeling unwell during the day on which he was injured, and simultaneously with his falling and breaking his leg he temporarily turned dizzy or blind. His right to compensation for the breaking of his leg, in these circumstances, on the premises of the employer, while departing for his home, at the close of the day's labor, is the vital and decisive question.
In every case it is incumbent upon the employee to establish that his injury "arose out of and in the course of his employment." The words "arose out of and in the course of his employment" impose a double condition on him, i. e., the burden of proving the injury arose "in the course of," and also "out of his employment." The evidence establishing the one without proving the other will not bring his claim for adjusted compensation within the statute. Warfield Natural Gas Co. v. Muncy, 244 Ky. 213, 50 S.W.2d 543. It is likewise incumbent upon him to establish the proximate cause of his injury, for it is not permissible to render an award for compensation based upon mere suspicion or conjecture. Rayner v. Sligh Furniture Co., 180 Mich. 168, 146 N.W. 665, Ann.Cas. 1916A, 386, L.R.A. 1916A, 22, Anno. p. 63. While section 4987, Ky. St., authorizes a liberal construction of the Workmen's Compensation Act, it permits liberality on investigation, and no more. It does not dispense with the imperative duty of the claimant to prove his case, nor relieve the board of its duty to rest its findings and award upon some competent and relevant evidence of a sound, probative character, either direct or circumstantial. Valentine v. Weaver, 191 Ky. 37, 228 S.W. 1036; Billiter, Miller & McClure v. Hickman, 247 Ky. 211, 56 S.W.2d 1003.
The words "arose out of" the employment as...
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