Consolidation Coal Co. v. Burns

Decision Date19 November 1935
PartiesCONSOLIDATION COAL CO. et al. v. BURNS.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Johnson County.

Proceeding under the Workmen's Compensation Law by Edgar Burns employee, opposed by the Consolidation Coal Company employer, and another. From an adverse judgment, the employer and another appeal.

Reversed with directions.

Edward C. O'Rear, of Frankfort, C. F. Pace, of Paintsville, and Allen Prewitt, of Frankfort, for appellants.

Vaughan & Kirk, of Paintsville, for appellee.

RICHARDSON Justice.

Edgar Burns, claiming that on January 15th, while performing the services of a "coal loader" of the Consolidation Coal Company, he fell on his right leg, thereby sustaining in this leg a ruptured blood vessel, resulting in varicose veins, filed his application with the Workmen's Compensation Board for adjusted compensation.

On the evidence presented to it, the board declined to award Burns compensation. Its finding of facts was that if he had suffered the accidental injury to his leg as claimed by him it did not result in the disability for which he sought compensation, but it was due solely to pre-existing diseases; i. e., "varicose veins and arthritis." Its conclusion of law was that the burden was upon him to establish that his disability was the result of injury by accident arising out of, and in the course of, his employment. It dismissed his application.

Within the time prescribed by the statutes (section 4935), he filed in the Johnson circuit court a petition for a review. No new or additional evidence was introduced in the circuit court.

The circuit court's finding of facts was diametrically opposite that of the Workmen's Compensation Board.

The evidence certified by the Workmen's Compensation Board establishes that while Burns "was pulling slate off of the brow of the room" in which he was loading coal, the rails of the track on which the car, in which he was loading coal, was setting, spread. He placed his shoulder against the right-hand side of the car, and his feet against the side of the rail, with the view of placing the car on the rails, and while so lifting it, his foot slipped, his leg went across the rail with the weight of his body on it, at which time he claims the veins of his "leg seemed to break," and "caused serious pain." He admits, and the testimony of physicians establishes, that prior to that time he had varicose veins; his knees, ankles, and feet were affected with arthritis. The slipping of his foot, as he described it did not break the skin on, but bruised, his leg. On the next day he visited a physician, but did not inform him of the injury to his leg. This physician treated him for seven days. About the 1st of February, Drs. Spencer and Munn began to treat him and continued to do so for five or six weeks. They diagnosed his trouble to be varicose veins and arthritis. The varicose veins were in both legs, and in their opinion had existed for a long time prior to the beginning of their treatment. He had an infectious condition of the joints--an inflammation of the knee joints, ankles, and feet--which showed some redness and swelling. He did not make known to them that he had sustained an injury at the time he claimed he was lifting the car when his foot slipped. They did not treat him for this, or any, injury. They agreed in the opinion that the inflammation, redness, and swelling of his knee joints, ankles, and feet were the result of an infection, and that neither this condition nor the varicose veins could, or would, have resulted from the injury claimed to have been sustained by him at the time he attempted to lift the car onto the track. Their testimony is convincing that there was no...

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