Lehigh Const. Co. v. Womble

• Court: Kentucky Court of Appeals
• Writing for the Court: HOBSON, Commissioner.
• Citation: Lehigh Const. Co. v. Womble, 64 S.W.2d 479, 251 Ky. 150 (Ky. Ct. App. 1933)
• Decision Date: 03 November 1933
• Parties: LEHIGH CONST. CO. v. WOMBLE.

64 S.W.2d 479

251 Ky. 150

LEHIGH CONST. CO. v. WOMBLE.

Court of Appeals of Kentucky

November 3, 1933

Appeal from Circuit Court, Campbell County.

Proceedings under the Workmen's Compensation Act by W. P. Womble employee, against the Lehigh Construction Company, employer. From a judgment of the circuit court affirming an award by the Workmen's Compensation Board in favor of the emloyee the employer appeals.

Judgment affirmed.

Joseph Lawton and Burke & Lawton, all of Louisville, for appellant.

Orie S Ware, Elmer P. Ware, and William O. Ware, all of Covington for appellee.

HOBSON Commissioner.

W. P. Womble, while working for the Lehigh Construction Company as a carpenter on August 8, 1928, fell from a scaffold twenty feet high and was seriously injured. The company paid him for temporary disability the sum of $15 a week, beginning one week after the injury and continuing for a period of 140 weeks, making a total of $2,220. It discontinued payments in June, 1931, and Womble then filed his claim before the Workmen's Compensation Board for permanent injury. Proof was taken, and on final hearing the board entered judgment in favor of Womble for $15 a week for a period of 400 weeks, amounting to the sum of $6,000, less the sum of $2,220 which had been paid. The company took the case to the circuit court, which affirmed the judgment of the board, and from this judgment the company appeals.

By section 4897, Kentucky Statutes, it is provided that, when the injury to the employee causes total disability for work, the employer "shall pay the employee so injured a weekly compensation equal to sixty-five per cent. (65%) of his average weekly earnings, not to exceed fifteen dollars ($15.00) nor less than five dollars ($5.00) per week." Such payments to be made during the period of total disability, but not longer than eight years after the date of the injury nor in any case to exceed a maximum sum of $6,000. Section 4899, Kentucky Statutes, provides for payment for partial disability, and among other things provides that the employer shall pay the employee "for the loss of an arm, sixty-five per cent. (65%) of the average weekly wages during two hundred weeks." The question presented here is, Which of these two provisions shall be applied in this case?

Womble, at the time he was injured, was fifty-two years old. He had worked at the carpenter's trade for thirty-two years, and was earning $61.20 a week. He was rendered unconscious by the fall from the scaffold, and was taken to the hospital, where the physician who first attended him simply gave temporary remedies. Dr. Elmer A. Klein, who took charge of the case on August 11, says that then his left hand and forearm were markedly swelled and discolored, the forearm was deformed, with several open wounds on the arm, through which some of the fractured bones of the forearm had protruded; those wounds were infected. He also had pain in the left side of the pelvis; he was unable to move his back or either of his lower extremities without pain. The hospital record shows that he passed blood in his urine. Two X-rays were taken. One revealed a fracture of the pelvic bone on the left side with no displacement of the fragments. The other revealed a comminuted fracture of the lower end of the left arm at the wrist. He had numerous superficial abrasions in various parts of his body extremities. To get rid of the infection, he used various dressings and solutions. A number of pieces of dead bone separated from the patient's arm, and bone had to be removed a number of times. Pockets of pus formed in the bone and had to be drained. On September 1 an anesthetic was administered under his supervision. He took off the old dressings, cleansing the extremities, applied plaster cast from the base of the fingers to the top of the arm, the whole forearm being in neutral position, the wrist in a cock-up position holding elbow at right angles. The arm slowly improved after some weeks. On November 6, 1928, he put on a second plaster cast. On December 11, 1929, he removed a loose piece of dead bone lying along the lower end of the bigger bone of the forearm at the wrist, and treated an abscessed cavity, putting in some drainage tubes for irrigating the wound. Every once in a while the amount of discharge would be markedly increased, and after a varying length of time would subside a little. On December 20, 1930, another small piece of bone was removed from his arm, and a hole that was found in the bone was filled up with live bone pieces such as they could get to bridge across the dead places in the tissue. At the end of his treatment the long axis of his hand was out of alignment, and there are scars from the previous operations and from infected sinuses. The left arm is smaller in diameter than the right. The joint has about 30 per cent. active flexion and extension of the wrist. Rotational movements of the forearm are interfered with. So are movements of the finger joints. The range of the movement which the patient has in the wrist joint is limited. He cannot move it nor can any one else, showing that it is of mechanical origin. There is a limitation of about 40 per cent. in the abductional movement of the left shoulder. There is a limitation of both internal and external rotation. There is some crepitation of the shoulder joints on both active and passive movements and some sensitiveness to pressure over the joint region, causing a diminution of functional value of the shoulder. To use the doctor's own words, he says this:

"In a fall to protect the face and body the hand and arm are extended, and in the case of Mr. Womble his left hand takes the force on the heel of his hand. The force is

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