Jones v. Crummies Creek Coal Co.
| Decision Date | 11 December 1953 |
| Citation | 264 S.W.2d 294 |
| Parties | JONES v. CRUMMIES CREEK COAL CO. et al. |
| Court | United States State Supreme Court — District of Kentucky |
George R. Pope, Harlan, for appellant.
James Sampson, Edward G. Hill, Harlan, L. O. Siler, Williamsburg, for appellees.
We are asked to reverse an order of the Workmen's Compensation Board, affirmed by the lower court, denying recovery to the appellant for total and permanent disability alleged to have resulted from silicosis contracted in the employment of appellee employer. Appellant had been employed by appellee for approximately nine years prior to April 12, 1951, at which time he quit work because of the alleged disability. This claim was filed on April 24, 1951.
At the outset, we are required to consider the Board's ruling in its construction of KRS 342.316(3), which provides:
'In claims for compensation due to silicosis, it must be shown that the employe was exposed to the hazards of the disease of silicosis in his employment within this state for at least two years before his disability or death provided that no part of such period of two years shall have been more than five years before the last exposure, and only the employer in whose employment the employe was last injuriously exposed to the hazards of such disease and his insurance carrier, if any, on the risk when such employe was last so exposed under such employment during a period of sixty days, shall be liable for compensation payable for disability or death.'
Appellant accepted the provisions of the silicosis section of the Workmen's Compensation Act on February 28, 1951, and continued in the employment of appellee for only forty-three days thereafter. The Board contrued the statute as requiring employment for at least sixty days after election to operate under the silicosis section. The circuit court disagreed with the Board's construction of the statute but sustained denial of the award on other grounds. The written opinions of the Board and the lower court agree that the statute is ambiguous. We find ourselves in full accord with both the Board and the court in this respect.
Silicosis was not compensable under the provisions of the Workmen's Compensation Act as originally enacted. It was universally considered an occupational disease, and the only recourse of the employee, disabled by its effect, was an action at law in which the employer was liable if the disease was contracted as a result of his negligence in failing to furnish a safe place in which to work. Nolley v. Diamond Coal Co., 291 Ky. 849, 165 S.W.2d 841. In 1934, the Legislature amended Section 4880, Carroll's Kentucky Statutes, by adding to the provisions of that section what is known as the silicosis section of the Workmen's Compensation Act. Chapter 89, Acts of 1934. Under that amendment, employees and their employers engaged in certain occupations were permitted to elect to become subject to the provisions of the Act for death or disability due to silicosis.
In 1944, the silicosis provisions of the Act were again amended. Chapter 82, Acts of 1944. The latter amendment created certain standards which were prerequisite to recovery for disability or death arising from silicosis. One of the restrictions added by the amendment was:
'* * * that the only employer and insurance carrier liable shall be the last employer in whose employment the employee was last injuriously exposed to the hazards of the disease (silicosis) during a period of sixty (60) days or more after March 20, 1944, and the insurance carrier, if any, on the risk when the employee was last so exposed under such employer.'
March 20, 1944 was the effective date of the amendment, and it is significant that the exposure period was computed from that time without regard to the date on which the employer and employee elected to operate under the silicosis provisions of the Act.
In 1948, the silicosis provisions were again amended by adding further requirements for recovery. By that amendment, c. 151, the requirement as to the sixty-day exposure period was changed to read as...
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