Kabai v. Majestic Collieries Co.

• Decision Date: 09 March 1943
• Citation: 170 S.W.2d 357,293 Ky. 783
• Parties: KABAI v. MAJESTIC COLLIERIES CO. et al.
• Court: Kentucky Court of Appeals

170 S.W.2d 357

293 Ky. 783

KABAI v. MAJESTIC COLLIERIES CO. et al.

Court of Appeals of Kentucky

March 9, 1943

Rehearing Denied May 4, 1943.

Appeal from Circuit Court, Pike County; R. Monroe Fields, Judge.

Proceeding under the Workmen's Compensation Act by John Kabai claimant, opposed by the Majestic Collieries Company employer, and another. From a judgment affirming an award of compensation by the Workmen's Compensation Board in an unsatisfactory amount, claimant appeals.

Affirmed.

V. R Bentley, of Pikeville, for appellant.

J. J Moore, of Pikeville, for appellee.

VAN SANT, Commissioner.

On July 17, 1937, appellant, John Kabai, was injured in a mine operated by the Majestic Collieries Company. While he was laboring in an attempt to lift slate from the floor of the mine, another piece of slate fell from the roof of the mine against the back of his head. His head was driven against the slate he was endeavoring to lift, smashing his nose and face severely cutting him over the eye; and, it is claimed, causing a concussion of, and hemorrhages in, the brain. Claim was filed before the Compensation Board, and an opinion and order of the referee was entered. On appeal to this court the case was remanded, because the award was not a final order of the board or one of its members, but was a mere opinion of the referee. The opinion in that case may be found in 286 Ky. 279, 150 S.W.2d 898. After the case was remanded, additional testimony was taken and the case resubmitted to the referee, who found the claimant to have been totally disabled for a period of six weeks, two days and to be permanently partially disabled. Award was made accordingly, with an additional allowance for medical and hospital expenses in the sum of $200. This finding was approved by the board. On appeal to the circuit court the award was affirmed.

The sole question for our determination is whether there is any evidence of probative value to support the finding of the board. If this should be determined in the affirmative, we will be impelled to affirm the judgment. Mary Helen Coal Corporation v. Hensley, 237 Ky. 348, 35 S.W.2d 533; Wakenva Coal Company v. Combs, 232 Ky. 546, 24 S.W.2d 275; Wallins Creek Colliery Company v. Cole, 218 Ky. 116, 290 S.W. 1049.

Several doctors testified in behalf of defendant, after having examined the plaintiff for the purpose of giving their opinions in evidence. Each testified that in his opinion the claimant was not, at the time of trial, disabled to any extent, and three testified that they thought he was malingering. It is claimed that this evidence has no probative value because none of the doctors testifying for the defendant were skilled in mental afflictions, and none had an opportunity to observe the patient for a sufficient length of time to determine whether he had received internal injuries resulting in disability. It is further argued that the medical testimony introduced by the claimant was given by doctors skilled in diagnosis and treatment of mental diseases; and, because of their superior skill, their testimony, contrary to that of defendant's witnesses should have been accepted as conclusive. Further objection is made to the testimony because the witnesses took into consideration the history given them by the claimant and partially based their opinions thereon. It is claimed that such history is not competent to be used by a physician who makes an examination for the purpose of testifying, and the following cases are cited in support of this contention. Greer et al. v. Richards, 273 Ky. 91, 115 S.W.2d 568; Equitable Life Assur. Soc. v. Fannin, 245 Ky. 474, 53 S.W.2d 703; Equitable Life Assur. Soc. v. Spencer, 262 Ky. 478, 90 S.W.2d 704. The rule is that a physician may not testify to the history related by the patient in an examination held for the sole purpose of qualifying the physician to testify in behalf of the plaintiff. But, where the examination is conducted at the...