Employers' Liability Assurance Corp. v. Gardner

• Citation: 204 Ky. 216
• Parties: Employers' Liability Assurance Corporation, et al. v. Gardner, et al.
• Decision Date: 01 July 1924
• Court: Court of Appeals of Kentucky

204 Ky. 216

Employers' Liability Assurance Corporation, et al. v. Gardner, et al.

Court of Appeals of Kentucky.

Decided July 1, 1924.

Appeal from Franklin Circuit Court.

POLK SOUTH, JR., for appellants.

LESLIE W. MORRIS, W. B. MOODY and FRANK E. DAUGHERTY, Attorney General, for appellees.

OPINION OF THE COURT BY JUDGE CLARKE — Reversing.

Appellee Gardner was employed as a lineman by appellant, Independent Long Distance Telephone & Telegraph Co., and both had accepted the provisions of the Workmen's Compensation Act. On June 5, 1922, while lifting a cable into its hangers at the top of a pole, appellee felt a "slip in his back," as he describes it. He at once climbed down off the pole, removed his climbers, and within less than 24 hours was completely paralyzed from his waist down. He filed his application for compensation with the compensation board, which awarded him $13.65 a week for not exceeding eight years, which is the maximum they could have allowed him for total disability. The circuit court affirmed the award, and the employer and its insurance carrier have prosecuted this appeal.

Appellants complain (1) That the board's finding of facts is not sustained by the evidence, (2) that the award is not sustained by the finding of facts, and (3) that this court erred in continuing the award in force pending the appeal.

The board found the facts to be:

"On June 5, 1922, claimant was employed by and working for the Independent Long Distance Telephone Company. He was working on a pole assisting in lifting a cable to its proper position when he strained his back. Within 24 hours thereafter the injured empoye became paralyzed from his waist down and since said date has been continuously unable to work. At the time of the injury, claimant was suffering from a pre-existing disease known as syphilis, and the injury was accelerated and aggravated by this pre-existing disease, and both the injury and the disease contributed concurrently and effectively to produce the condition resulting from the accidental injury.

"The accident occurred while claimant was doing the work required of him under his contract of employment, and arose out of and in the course of his employment.

"The average weekly wage of injured employee was $21.00 and both employe and employer had at the time and prior thereto elected to accept and operate under the Workmen's Compensation Act."

1. Unless there is an entire absence of substantial and credible evidence to support the board's finding of facts, this court, in the absence of fraud, cannot disturb it. Andrews Steel Co. v. McDermott, 192 Ky. 679, 234 S. W. 275; Valentine v. Weaver, 191 Ky. 37, 228 S. W. 1036; Ames Body Corp. v. Vollman, 199 Ky. 358, 251 S. W. 170; Robinson-Pettet v. Workmen's Compensation Board, etc., 201 Ky. 719, 258 S. W. 318.

There is no claim of fraud, and the evidence is ample in this case, under the above rule, or any other for that matter, to support the board's finding of facts, and appellant's first contention is clearly without merit.

2. But not so with the second. It will be noticed it was...