E. & L. Transport Co. v. Hayes

• Decision Date: 16 December 1960
• Citation: 84 A.L.R.2d 1102,341 S.W.2d 240
• Court: United States State Supreme Court — District of Kentucky
• Parties: E. & L. TRANSPORT COMPANY, Inc., Appellant, v. William David HAYES et al., Appellees.

Page 240

341 S.W.2d 240

84 A.L.R.2d 1102

E. & L. TRANSPORT COMPANY, Inc., Appellant, v. William David HAYES et al., Appellees.

Court of Appeals of Kentucky.

Dec. 16, 1960.

Armer H. Mahan, Davis & Mahan, Louisville, for appellant.

William C. Edrington, Louisville, for appellees.

CULLEN, Commissioner.

By order of the Workmen's Compensation Board William Hayes was awarded compensation for total permanent disability resulting from post-traumatic epilepsy. On appeal to the circuit court by his employer the order was affirmed. The employer has appealed to this Court from the circuit court judgment.

The appellant concedes that the evidence was sufficient to sustain the board's finding that Hayes' epileptic condition resulted from an accident that occurred in his employment. However, the medical testimony was sharply conflicting and the appellant maintains that the board erred in overruling a motion that Hayes be directed to report to a named doctor for an electroencephalogram.

It appears that Hayes had submitted to a physical examination by a neurological surgeon selected by the appellant, and also had been examined by three other neurological surgeons selected by him, one of whom had taken an electroencephalogram which was reported as normal. Since the normal report was favorable to appellant's contention that Hayes was not suffering from epilepsy (but from an emotional disturbance) it is difficult to see how the taking of another electroencephalogram, which the appellant could only hope would also be reported as normal, could have been of any help to appellant's case.

Appellant argues that despite the fact that Hayes had submitted to a neurological examination by one doctor of its choice, it had the unqualified right under KRS 342.205 to require him to submit to further examinations. We do not construe this statute as meaning that during the course of a hearing on a compensation claim the employer is entitled to have examinations by as many physicians as he chooses. We think the matter of additional examinations is within the board's discretion and we find no abuse of that discretion in the instant case.

The main contention of the appellant is that Hayes was not in fact totally disabled from work and the board did not find him to be totally disabled from work, but found only that he was disabled 'as a truck driver,' and therefore he was not entitled to compensation for total disability.

Hayes' condition as found by the board was that he suffered from blackout spells and a general mental dullness, with lack of ability to concentrate or maintain a continued line of thought. The only doctor who was asked to express an opinion as to the disabling effect of this condition said that Hayes was totally disabled to perform any occupation involving the driving of a motor vehicle.

Prior to his accident Hayes was employed as the operator of a drive-away truck hauling new cars from manufacturer to dealer. After the accident he worked for a time as a dockman, then resumed driving the truck for several months, but with unsatisfactory results. At the time of the hearing on his claim he was employed at the appellant's terminal with the principal duty of filling trucks with gasoline.

The appellant argues that since Hayes is able to work as a dockman or a 'gasser' he is not totally disabled; that KRS 342.095 requires a finding of total disability 'for work' as a condition of an award of compensation for total disability; and that it is not enough that he be disabled only to perform the particular job he formerly held. The appellant says that this Court has wandered erroneously into the application of an 'occupational' theory of total disability that has no basis in the statute.

We do not find it necessary to consider the question of whether an employe who is totally disabled from work in the general occupational classification which he had achieved by training and experience at the time of his injury is ineligible for total disability compensation if he has full ability to work at a job requiring no training or experience or one for which he could become qualified by future training. The question actually presented is whether the employe is disqualified from receiving total disability compensation if his ability to perform other work is an impaired ability.

Here it is evident that Hayes not only is totally disabled from following his former occupation but his condition is such that he cannot compete in the labor market for any work other than such as is capable of being performed by impaired or handicapped persons.

Our previous decisions under KRS 342.095 stand for the proposition that if a workman is totally disabled from the performance of work in his former occupational classification and his capacity to perform other kinds of work is impaired, he is entitled to compensation for total disability. See Clark v. Gilley, Ky., 311 S.W.2d 391; Anderson v. Whitaker, Ky., 247 S.W.2d 980; Cornett-Lewis Coal Co. v. Day, 312 Ky. 221, 226 S.W.2d 951; Black Mountain Corporation v. Letner, 303 Ky. 807, 199 S.W.2d 611; Olson v. Triplett, 255 Ky. 724, 75 S.W.2d 366. We think this is the proper interpretation of the statute, and it sustains the award of compensation for total permanent disability to Hayes.

While the board's finding recited only that Hayes was disabled 'as a truck driver' the evidence would require the conclusion that his ability to perform other work was impaired, so the quoted words may be considered mere surplusage.

The final contention of the appellant is that under the 'Ditty Rule' the board should have allowed credit against the compensation payments for weeks in which the appellant employed Hayes after his accident at wages equal to or exceeding the wages he formerly received. We welcome this opportunity for a reexamination of the 'Ditty Rule.'

The 'rule' originated in Consolidation Coal Co. v. Ditty, 286 Ky. 395, 150 S.W.2d 672, 673. There the compensation board found the employe was totally disabled to do hard manual labor and awarded compensation for total permanent disability, but directed that credit be given against the compensation payments for the weeks in which the original employer continued to employ the injured man at wages equal to the weekly compensation payment. This Court, in affirming the order of the board, concluded that the board had given consideration to KRS 342.115 and that the board's solution of the case was 'fair and equitable.'

Subsequent cases applying the so-called rule gave indication that its basis was in KRS 342.115. See Black Mountain Corporation v. Gilbert, 296 Ky. 514, 177 S.W.2d 894; Lawson v. Wisconsin Coal Corporation, 290 Ky. 375, 161 S.W.2d 600; Warner v. Lexington Roller Mills, 306 Ky. 142, 206 S.W.2d 471, 175 A.L.R. 722.

As the rule...