Consolidation Coal Co. v. Marcum's Adm'R
| Decision Date | 25 November 1941 |
| Citation | 289 Ky. 220 |
| Parties | Consolidation Coal Co. v. Marcum's Adm'r et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Workmen's Compensation. — Testimony of employee and his fellow workman, that there were noxious gases in room in which employee was working on day he claimed to have been injured as result of breathing those gases, sustained board's finding that there was impure air and gas in room, notwithstanding testimony to the contrary by employer's witnesses.
2. Workmen's Compensation. — The Workmen's Compensation Board is vested with broad discretionary powers and in reviewing board's findings of fact, the only question for court's determination is whether there was any evidence of a probative and substantial nature to support findings.
3. Workmen's Compensation. — The fact that medical experts in compensation case agreed that employee's symptoms were typical of those of victims of hardening of the arteries and high blood pressure, and that his disability was not caused by inhalation of noxious gases, did not conclusively establish that disability was not caused by inhalation of noxious gases, where inferences to be drawn from evidence that employee had been able to perform heavy work regularly up to time of alleged injury were to some extent contradictory of the medical testimony.
4. Workmen's Compensation. — Although opinions of skilled physicians will be given great weight by courts, issue raised by medical testimony is one of fact for board, where there are circumstances which, if true, would cast some doubt on correctness of experts' opinions.
5. Evidence. — Opinion or expert evidence is neither conclusive nor controlling as against evidence of facts.
Appeal from Letcher Circuit Court.
Ed C. O'Rear, Wm. A. Young and Harry L. Moore for appellant.
Hawk & Lewis for appellees.
Before R. Monroe Fields, Judge.
Affirming.
In August, 1937, Harlan Marcum filed his application for compensation with the Workmen's Compensation Board alleging that on the 3rd day of February, 1937, he was permanently and totally disabled by breathing impure air and gases in the course of his employment as a coal miner in one of appellant's mines. The case was prepared and submitted to a referee of the board who rendered an opinion adjudging Marcum to be totally and permanently disabled in the manner set out in his application and awarded him the maximum compensation of $15 per week for a period of 400 weeks. On review the opinion and award of the referee was adopted as the decision of the board and on appeal to the circuit court judgment was rendered affirming the findings and award, from which judgment appellant has prosecuted this appeal, contending: (1) that the evidence fails to establish that Marcum became ill in appellant's mine on February 3, 1937, from the inhalation of impure air or noxious gases or from any other cause; (2) the evidence fails to establish that Marcum's disability was brought about or aggravated by the inhalation of impure air or noxious gases but on the contrary establishes conclusively that his disability was caused solely by pre-existing disease. The questions presented require a brief resume of the evidence.
It is admitted by the parties that from the 7th day of February, 1937, the 4th day after Marcum claimed to have been injured, he was permanently and totally disabled and remained in that condition until his death on February 28, 1940. He appeared as a witness on the 28th of September, 1937, at which time he testified that he was 52 years of age and had been working as a coal miner for 13 years; that on February 3, 1937, he was loading coal in room 15 of appellant's mine at McRoberts, Kentucky; that the ventilation in room 15 was very bad and smoke created by explosives used in shooting the coal was caused to remain in the room by improper ventilation; the air was so devoid of oxygen as to permit his carbide lamp to burn only a part of the time on that day; after becoming sick and weak he quit work at 2:30 P.M. and walked approximately a quarter of a mile to the man station (a place in the mine where workmen assemble for the purpose of being transported out of the mine in cars hauled by an electric motor); he there met his foreman and told him that the smoke and impure air had just about killed him; he rode out of the mine and walked to his home a distance of approximately a quarter of a mile; that he continued to be weak and sick and called a physician, remaining under his care for a period of about 3 months; before the accident he had been in perfect health and able to work steadily to the satisfaction of his employers; immediately after the accident and continuously since, his lungs were affected, his heart beat faster, he was ill and weak and unable to do any work in gainful occupation. His evidence concerning the bad ventilation and noxious gases was corroborated in full by his fellow workman, Red Scarbro, and to some degree by the testimony of three other witnesses, Will Butrum, Sherman Haskins, and James Haskins. He introduced no medical testimony and no lay testimony other than that recited above.
Appellant introduced Carter Benton, mine foreman, J.M. Fuller, who is referred to as fire boss of the mine, E.P. Wolfe, superintendent of the mine, C.C. Collins, night section foreman, and Zach Adams, assistant foreman. Benton testified that he had been mine section foreman...
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