Ed Hall Drilling Co. v. Profitt

• Decision Date: 14 October 1966
• Citation: 424 S.W.2d 403
• Parties: ED HALL DRILLING CO., et al., Appellants. v. Johnnie PROFITT et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 403

424 S.W.2d 403

ED HALL DRILLING CO., et al., Appellants. v. Johnnie PROFITT et al., Appellees.

Court of Appeals of Kentucky.

Oct. 14, 1966.

As Modified on Denial of Rehearing Feb. 23, 1968.

J. W. Craft, Jr., (Craft & Haynes) Hazard, for appellants.

Martin Glazer, Frankfort, Paul Rehm, Versailles, for Special Fund.

Edward Jackson, Beattyville, Steve Robbins, Richmond, for appellees.

William A. Rice, Harlan, for amicus curiae.

PALMORE, Chief Justice.

Appellee, Johnnie Profitt, was injured in a fall from a mast while working as a tool dresser for the appellant Ed Hall Drilling Company. His application for workmen's compensation resulted in an award based on a finding of 20% permanent partial disability, half of which was attributed to a dormant non-disabling degenerative condition of the spine and the other half to the specific injury sustained in the accident. Profitt appealed, and upon a review of the record pursuant to KRS 342.285 the Lee Circuit Court adjudged him to be 100% permanently disabled solely as a result of the accident. The employer appeals.

The claimant having had the burden of proof, the issue presented by his appeal from the action of the Workmen's Compensation Board was whether the evidence as a whole forces a factual conclusion different from and more favorable to him than the conclusion reached by the Board. Cf. Sullivan v. Foster & Creighton Company, Ky., 394 S.W.2d 917, 918 (1965). If not, the circuit court was not authorized to disturb the award. The answer requires an analysis of the salient testimony.

At the time of the accident, July 7, 1964, Profitt was 36 years of age and in apparent good health. He had worked regularly at strenuous labor and had not sustained any serious injury. There is no evidence that he had ever experienced symptoms of back trouble. The accident in question consisted of his falling several feet onto a steel beam. The immediate manifestations of injury were a fractured cheek bone and painful hip. An attending physician referred him to Dr. Andrew Moore at Lexington. Dr. Moore treated the facial injury and called in Dr. Kearns Thompson, an orthopedic surgeon, for further examination and treatment. Dr. Thompson had an AP X-ray of the pelvic region made, and it did not reveal 'any abnormality of the pelvis or in the hip joints.' The doctor's 'tentative impression at the time * * * was that he had sustained a sprain of the right hip.' On July 13, 1964, Dr. Thompson noted that 'his right hip discomfort has healed completely' and released him from orthopedic care. The patient was hospitalized for a total of nine days.

Dr. Thompson next saw and again X-rayed Profitt on September 8, 1964, after he had been back to see Dr. Moore about his face and had advised Dr. Moore that he was having back trouble. According to Dr. Thompson, 'At this time he was complaining of pain in his low back. He noted the onset of this discomfort * * * when he got home and became active and particularly when he tried to cut some grass with a power mower * * * Patient pointing to the area of the lower lumbar spine as the region of his discomfort. This area was entirely pain free when he was examined initially on July 9th in the hospital.' The X-rays taken on September 8, 1964, disclosed 'some narrowing or degenerative change to the lumbo-sacral junction, primarily on the right side.'

As instructed, Profitt returned to Dr. Thompson on October 8, 1964, for reexamination. Meanwhile he had worked for one day, but this had produced soreness in his back and he had not worked thereafter. On this occasion the doctor advised him to go back to work 'and not be so energetic when he initially started his employment.' However, when Profitt made his next visit to Dr. Thompson, on November 5, 1964, he had not returned to work and the doctor again advised him to do so.

The next and last time Dr. Thompson saw the claimant was on January 4, 1965. Profitt reported that during December he had worked six days at mixing cement, but it had made his back sore. A clinical examination produced substantially normal findings, and the visit ended as follows:

'It was my feeling at this time that this patient manifested no residual impairment. Work was discussed with him. He was advised to return to work when such was available to him, and he was again released from orthopedic care, and it was my opinion that he related no residual manifestation as the result of his injury from an orthopedic standpoint. He had no complaint referable to his right hip at this time.'

Dr. Thompson's direct testimony for the defense concluded with the following question and answer:

Q 'Doctor, does the plaintiff have any permanent partial disability as the result of his injury in your opinion?'

A 'From an orthopedic standpoint, no, sir.'

All that was gleaned from Dr. Thompson by cross-examination was that the degenerative condition in the claimant's lumbosacral region is permanent.

Profitt was seen and examined by Dr. Carl W. Noble, of Beattyville, on November 10, November 13, and November 27, 1964, and on February 22, 1965. X-rays of the spine indicated 'chronic degenerative changes of the lumbo-sacral joint and a narrowing of the disc spaces at this level.' It was Dr. Noble's opinion that although the degenerative changes had developed over a long period of time, the accident had caused the narrowing of the disc spaces and this narrowing 'is the direct cause of his present symptamology.' He testified that Profitt is totally and permanently disabled for heavy manual labor, a condition which, in the absence of X-rays taken or symptoms existing prior to the injury, must be attributed entirely to the injury of July 7, 1964.

Dr. J. C. Coldiron, of Manchester, examined Profitt on February 22, 1965. X-rays revealed the same conditions observed by Dr. Noble. Dr. Coldiron stated that Profitt 'is unable to do any heavy work of any kind * * *. My opinion is that it is permanent.' He declined, however, to give an opinion as to the relationship between the pre-existing degenerative changes and the accidental injury of July 7, 1964.

Dr. T. R. Miller, an orthopedic surgeon of Lexington, examined Profitt on March 16, 1965, at the instance of the employer. He took X-rays and a case history and had before him the X-rays taken for Dr. Thompson in July of 1964. He observed 'unquestionable localized degenerative changes that may have been made symptomatic by such an accident,' and except for which the claimant should have recovered completely. It was his opinion that the aggravation of these changes by the injury 'might produce a present disability of perhaps ten per cent to the body as a whole.' In describing the narrowing of the intervertebral space at L5--S1 he said that the joint is about 25% the width of the other interspaces.

Responsive to an appropriate motion under KRS 342.120 the Special Fund was made a party defendant and Dr. William C. Mitchell, an orthopedic surgeon of Louisville, was appointed to examine Profitt and render an evaluation in terms of present disability, if any, and causative factors. KRS 342.121. Specifically, Dr. Mitchell was asked to report the following: (1) Prior conditions capable of being aroused into disability by the injury of July 7, 1964, and the respective percentages of disability to Profitt's body as a whole resulting from each; (2) Total percentage of disability to the body as a whole existing immediately prior to July 7, 1964: (3) Percentage of disability to the body as a whole resulting from the injury of July 7, 1964, assuming the absence of any dormant pre-existing condition capable of contributing to it; (4) Total percentage of permanent or other disability presently existing; (5) Percentage of disability, if any, attributable to a combination of (2) and (3) in excess of disability calculated by simple addition of (2-and (3); and (6) Percentage of present disability, if any, resulting from arousal of previously dormant conditions by the accident of July 7, 1964.

The report was in the form of a letter dated May 13, 1965, setting forth the case history obtained from the claimant and describing the examination and its results. X-rays showed 'an advanced degenerative and hypertrophic lumbosacral disc interspace with narrowing and mild degenerative changes.' The report concluded with an opinion that 'this man appeared to have a degenerative lumbosacral disc * * *. I think he would do well to have a firm back support and to work at a light type of work for a time and should do well * * *. As of this date and this evaluation, this man would appear to have a 15 to 20 per cent permanent partial impairment expressed in terms of his entire body, which by way of history can be properly relagated (sic) to the injury' of July 7, 1964.

Except for No. (4), total percentage of existing disability, Dr. Mitchell's report did not give the specific items of information requested by the Board. The employer filed...