Deby Coal Co. v. Caldwell
| Decision Date | 16 October 1964 |
| Citation | 383 S.W.2d 905 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | DEBY COAL COMPANY and the Subsequent Claim Fund, Appellant, v. Millard CALDWELL, Appellee. |
Reeves, Barret & Cooper, J. W. Craft, Jr., Hazard, Paul Rhem, Versailles, for appellant.
Denver Adams, Robert Muncy, Hyden, for appellee.
Deby Coal Company and the Subsequent Claim Fund appeal from a judgment of the Leslie Circuit Court raising from 50% to 100% the degree of permanent disability for which the Workmen's Compensation Board had awarded compensation to the appellee, Millard Caldwell.
Caldwell suffered a ruptured intervertebral disc while working at hard labor in the company's coal mine. The injured nucleous was thereafter removed by surgery. Two physicians testified in substance that he is totally and permanently disabled to do heavy manual labor. For the defense, an orthopedic surgeon and the neurosurgeon who had performed the operation estimated his permanent disability from 10% to 25%.
During the course of the medical testimony the opinion was expressed that Caldwell had a nondisabling degenerative disc condition prior to the accident which contributed to the degree of his disability existing thereafter. Hence the Subsequent Claim Fund was made a party defendant. KRS 342.120. Pursuant to KRS 342.121 the Workmen's Compensation Board appointed Dr. K. Armand Fischer to examine Caldwell and directed, among other things, that he determine 'the total percentage of permanent disability which plaintiff now suffers to his body as a whole' and the extent to which the disability is attributable solely to the accident.
Answering the specific questons submitted to him by the board, Dr. Fischer estimated that Caldwell has 'Fifty percent partial permanent disability to the body as a whole,' 10% being attributable to a preexisting congenital defect and 40% to the accident. On the basis of this report the board set aside its referee's finding of 100% permanent disability suffered wholly from the accident and awarded compensation on the basis of 50% permanent disability, apportioning 40% against the employer and 10% against the Subsequent Claim Fund.
The problem in the case arises from the fact that Dr. Fischer's report employs the word 'disability' in terms of general physical impairment rather than the claimant's capacity to perform the type of work demanded by his occupation. See Leep v. Kentucky State Police, Ky., 366 S.W.2d 729, 731 (1963), in which a precisely similar misconception occurred.
The prefatory portion of Dr. Fischer's report, describing the examination and setting forth his findings, concludes with the following paragraph:
(Emphasis added.)
In view of this unequivocal statement it is beyond...
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