Joseph W. Greathouse Co. v. Yenowine

• Decision Date: 03 May 1946
• Citation: 302 Ky. 159
• Parties: Joseph W. Greathouse Co. et al. v. Yenowine.
• Court: United States State Supreme Court — District of Kentucky

302 Ky. 159

Joseph W. Greathouse Co. et al. v. Yenowine.

Court of Appeals of Kentucky. Common Pleas Branch, Fourth Division.

March 22, 1946.

As Extended on Denial of Rehearing May 3, 1946.

1. Workmen's Compensation. — The function of court in compensation cases is to ascertain whether record discloses any competent evidence of probative value to support findings of Workmen's Compensation Board.

2. Workmen's Compensation. — The statutory requirement, that findings of fact of Workmen's Compensation Board shall not be disturbed by courts if there is evidence of convincing force to uphold them, has no application to a case which only presents a question of law based on undisputed facts.

3. Workmen's Compensation. — Where controlling facts are undisputed, whether injuries arose out of and in course of employment is a question of law reviewable by courts.

4. Workmen's Compensation. — Negative testimony of two fellow employees that they did not see anything happen to claimant or hear him complain was insufficient to raise an issue of fact as to whether injury arose as claimant stated.

5. Workmen's Compensation. — Undisputed evidence established as matter of law direct causal connection between disability due to sacroiliac slip and exertion of lifting heavy steel beams in course of employment so as to render disability compensable.

6. Workmen's Compensation. — Where undisputed evidence established that claimant had sustained a compensable injury, circuit court properly set aside order of Workmen's Compensation Board dismissing his claim for compensation, but court exceeded its authority in adjudging that claimant was permanently and totally disabled and in directing specifically the judgment to be entered by the board.

Appeal from Jefferson Circuit Court.

Robert F. Vaughan for appellants.

Edrington & Redmon for appellee.

Before Eugene Hubbard, Judge.

OPINION OF THE COURT BY JUDGE LATIMER.

Reversing.

The Jefferson Circuit Court entered a judgment reversing an order of the Kentucky Workmen's Compensation Board, wherein the Board had dismissed the appellee's claim for compensation. The employer, Joseph W. Greathouse Company, appeals.

The appellee, Leonard Yenowine, an employee of the Joseph W. Greathouse Company, claimed to have sustained an accidental injury at the plant of his employer on or about December 9, 1942.

On December 23, 1942, plaintiff signed a Form SF-5 issued by the Workmen's Compensation Board, which is a standard form for final compensation receipt, in which he acknowledged receipt of $12.84 covering a period of disability from the date of the accident to the 22nd day of December, 1942. He then returned to work on December 23, 1942.

On October 26, 1943, he filed application for adjustment of his claim on Form 11. The case was set down for hearing before a referee of the Board on January 27, 1944. Defendant objected to the proceeding, believing that the plaintiff had no right to proceed de novo, and being of the further belief that his remedy was limited by KRS 342.125. This objection was referred to the Full Board for final determination.

On March 21, 1944, the Board rendered an opinion on the question referred to it, wherein it held in substance that since the final compensation settlement receipt had never been approved by the Board, the agreement to pay compensation was not closed and it was not therefore, incumbent on the plaintiff to proceed under KRS 342.125. It overruled the defendants' objection and re-referred the cause to the referee with instructions to proceed in accordance with the original order.

The matter was then heard before L. Edmund Huber, Referee, who rendered an opinion and award, in which he found that the plaintiff suffered temporary total disability on December 9, 1942, for which he had been compensated by the defendant, and that from and after the 7th day of May, 1943, he had suffered a condition of permanent total disability and was entitled to compensation at the rate of $15 per week for a period of 500 weeks, subject to a credit of the amount theretofore paid.

The defendant company moved for a Full Board review of the opinion and award rendered by the referee. On November 14, 1944, the Full Board found that the employee, by the evidence submitted, failed to establish that he sustained a personal injury by accident arising out of and in the course of his employment; that he is not entitled to compensation therefor, and ordered and adjudged that the judgment and award of the referee be set aside and held for naught.

Petition was then filed by the plaintiff for a review by the Jefferson Circuit Court. Upon hearing and submission, the court adjudged that the plaintiff was totally and permanently disabled and that the opinion of the Board should be set aside and held for naught, and that the plaintiff should recover for 500 weeks at $15 per week with 6% per annum for each past due weekly payment, subject to a credit of $12.84, and remanded the cause to the Workmen's Compensation Board to reinstate the referee's award of August 15, 1944. From that judgment the appellants prosecute this appeal.

Appellants' counsel in brief states that the sole question involved in this appeal is whether the Jefferson Circuit Court had jurisdiction to enter its judgment. He states that the jurisdiction is strictly limited by the statute to a determination as to whether or not there was sufficient evidence to sustain the findings of the Board and that where there is any competent, credible testimony to support the findings of the Board, the Circuit Court may not reverse.

Our first task, then, is to see whether or not the award of the Board is supported on this record by competent, credible testimony. In its opinion the Board held that the plaintiff's alleged accident and resultant injury at the plant of the defendant did not qualify as an accident within the judicial definition of an accident, and found:

"There is no satisfactory evidence to show that it (plaintiff's alleged disability) resulted from any trauma or injury received in the course of his employment on December 9, 1942."

It is admitted that the plaintiff and defendant, through defendant company's insurance carrier, executed forms SF-4 and SF-5 wherein the insured com-company accepted liability on account of the alleged accident. The nearest the defendant comes to refuting any of the claimant's statements concerning his injury is the evidence of two fellow employees, one his boss, and another a fellow workmen, each of whom testified that he did not see any accident happen nor did the claimant complain of any accident or injury while he was working. There is no denial or attempted refutation of the fact that the claimant attended the general hospital for treatment and was there placed in a cast or brace, and that he now wears a brace on his back.

All the other testimony was that of doctors who based their findings upon the subjective symptoms as related to them by the claimant.

Dr. Wood, witness for appellant, testified that the claimant was complaining of tenderness which was localized over the left posterior-anterior iliac spine and that this particular bony landmark appeared larger than the corresponding one on the opposite right side. He stated further that in his opinion it was a result of a strain of the fascia and of the muscles arising from that bony prominence, with hemorrhage and scarred tissue forming as a result of it. He then testified as follows:

"52. Doctor, did you — were you able to attribute, then this pain to any particular cause? A. I felt it probably was due to what I just described, namely, the scar tissue resulting from hemorrhage around the posterior-inferior iliac spine.

"53. What, in your opinion, would cause the hemorrhage? A. That can be due to the tearing of the muscles and fascia attached to that region, in an accident such as he said he sustained.

"54. Then if you rule out all other causes, and still had this positive history of an accident, wouldn't it be more logical to attribute the pain and tenderness that Mr. Yenowine had over that iliac spine, to the accident? A. I think it is entirely possible to attribute it to the accident — yes, sir. That is what I was trying to do, as I say — would be to attribute it to the accident and to fit a diagnosis into the history of his accident with the findings which he had."

Dr. Dwyer testified as follows:

"7. Did you form any opinion as a result of your examination here as to what if anything the man is suffering from? A. He has a characteristic set of symptoms that follow a sacro-iliac slip. He describes it that when he stands he gets a bearingdown feeling on the...