Maynard v. Pond Creek Collieries Co.

• Decision Date: 16 January 1945
• Citation: 299 Ky. 157,184 S.W.2d 991
• Parties: MAYNARD v. POND CREEK COLLIERIES CO. et al.
• Court: Kentucky Court of Appeals

184 S.W.2d 991

299 Ky. 157

MAYNARD v. POND CREEK COLLIERIES CO. et al.

Court of Appeals of Kentucky

January 16, 1945

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

Proceeding under the Workmen's Compensation Act by Clyde Maynard claimant, opposed by the Pond Creek Collieries Company and others, employers. From a judgment affirming an award of compensation granted by the Workmen's Compensation Board approving an award by a referee, claimant appeals.

Judgment affirmed.

Abner May, of Pikeville, for appellant.

Howard & Mayo, of Prestonsburg, for appellees.

REES Justice.

On September 6, 1940, Clyde Maynard was injured by a fall of slate while employed as a coal loader by the Pond Creek Collieries Company. He was taken to a hospital in Williamson West Virginia, and placed in a plaster cast which was removed October 25, 1940. His employer paid him compensation for temporary total disability at the rate of $15 a week for 20 weeks, and, a dispute having arisen concerning the amount and duration of the compensation payable, Maynard filed with the Workmen's Compensation Board an application for adjustment of his claim. In his application he described his injuries as 'back injured, several vertebrae fractured muscles lacerated and left leg affected,' and he stated that he had suffered total permanent disability. On October 7, 1941, a referee of the board who heard the evidence found that Maynard, as a result of the injury, was totally disabled from September 6, 1940, until February 15, 1941, and had a 33 1/3 per cent disability thereafter until March 31, 1941. He awarded Maynard compensation on account of temporary total disability at the rate of $15 a week from September 6, 1940 until February 15, 1941, a period of 20 weeks, and further compensation on account of temporary partial disability at the rate of $4 a week beginning February 16, 1941, and ending March 31, 1941. The claimant moved for a full board review, and on December 2, 1941, the full board approved the award of the referee. The claimant then filed his petition for review in the Pike circuit court, and on June 26, 1942, the award of the board was affirmed.

On this appeal it is argued that there is no evidence to sustain the findings of the board, and that the evidence introduced by appellant shows conclusively that he suffered permanent partial disability of 30 per cent. to 50 per cent. to the body as a whole. We have held consistently that in the absence of fraud or mistake a finding of fact by the Workmen's Compensation Board is conclusive where it is supported by competent evidence of probative value. Frazier v. Kentucky-Jellico Coal Company, 296 Ky. 777, 178 S.W.2d 601; Mills v. Casner, 296 Ky. 678, 178 S.W.2d 196; Bennett v. White Coal Company, 295 Ky. 527, 174 S.W.2d 749; Tackett v. Eastern Coal Corporation, 295 Ky. 422, 174 S.W.2d 707; Kabai v. Majestic Colleries Company, 293 Ky. 783, 170 S.W.2d 357. As said in Utley v. Pence, 295 Ky. 673, 175 S.W.2d 372, 375: 'It is the recognized rule that if there is any evidence of a substantive or probative nature tending to support the findings of the Workmen's Compensation Board the courts have no authority to substitute their own finding of fact for that of the board.'

The issue presented to the board was whether appellant had suffered a permanent partial disability or a temporary partial disability, and if the latter its extent and duration. The determination of the question turned on the proper evaluation of the medical testimony. Appellant introduced three witnesses, Dr. W. J. Smith, Dr. J. C. Gaskell, and Dr. L. F. Boland, and two physicians, Dr. W. W. Scott of Williamson, West Virginia, and Dr. Francis A. Scott of Huntington, West Virginia, were introduced by the employer. Dr. W. J. Smith testified that he made a superficial examination of appellant on April 8, 1941, and...