McCown v. Hellier Elkhorn Coal Co.
| Decision Date | 25 February 1966 |
| Citation | 399 S.W.2d 719 |
| Parties | Dock McCOWN, Appellant, v. HELLIER ELKHORN COAL COMPANY et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Ronald W. May, Combs & May, Pikeville, for appellant.
E. R. Hays, Baird & Hays, Pikeville, Stuart Alexander, Louisville (for Special Fund), for appellees.
This is an appeal from a judgment affirming an opinion and order of the Workmen's Compensation Board which awarded compensation for partial disability, and the employee appealed.
Dock McCown, the appellant, was injured on August 4, 1962, while helping to load some lumber on a truck. He was employed at the time by the appellee, Hellier Elkhorn Coal Company. The appellant made a claim for injury to one of his testicles, and the claim was accepted by the appellee. McCown was operated on for the injury, made a complete recovery and returned to work without disability from that injury.
Several months later the appellant claimed that he had injuries to his back from the August 4, 1962, accident. The X-rays taken disclosed a compression fracture to the third lumbar which had healed, and some symptoms indicating lumbar muscular strain. The doctor could not say whether it was a result of the August 4, 1962, accident. Evidence was introduced which disclosed that the appellant had had a fracture of the transverse processes of the third lumbar vertebra in 1936, and that this old injury was the one which was causing pain.
On June 22, 1964, the Workmen's Compensation Board, by and through its Referee, entered an opinion and award finding all issues in favor of appellant and awarded him 50% disability to the body. Both parties filed a motion for Full Board review, and on motion of the employee the custodian of the Special Fund was made a party.
On July 20, 1964, the Board, in an opinion and order, stated that it could not make a decision on the ultimate question of disability under the medical evidence contained in the file and, on its own motion, ordered the appellant to submit himself to Dr. T. Rothrock Miller for examination by an independent Board-appointed physician, and further ordered that Dr. Miller's deposition be taken after his written report was filed. Dr. Miller conducted the examination and on deposition said that he would set the disability of the appellant at 15%. The Board then rendered an opinion awarding appellant 15% disability, payable by the Special Fund, and the Circuit Court affirmed the award. No cross-appeal was filed in behalf of the Special Fund.
The appellant argues that the Board did not cite the specific statute it invoked for the examination by an independent physician, and he asserts that under KRS 342.315 the filing of exceptions to the physician's report is not required, which is true. We see no merit in this contention, for KRS 342.121(1), (4) governs in this area when the Special Fund is involved. (KRS 342.315 governs the appointment of disinterested physicians when the Special Fund is not involved.) The statute (KRS 342.121(1), (4)) says:
'(1) If on a claim for compensation for disability resulting from a subsequent injury by accident or occupational...
To continue reading
Request your trial
-
Osborne v. Johnson
...disability (mere bodily impairment). 1 Our adherence to this proposition is evidenced by such decisions as McCown v. Hellier Elkhorn Coal Company, Ky., 399 S.W.2d 719; Kilgore v. Goose Creek Coal Company, Ky., 392 S.W.2d 78; Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905; Leep v. Kentuc......
-
Whittaker v. Johnson
...disability) as well as to an occupational loss (occupational disability) has long been a source of dispute. See McCown v. Hellier Elkhorn Coal Company, Ky., 399 S.W.2d 719 (1966); Kilgore v. Goose Creek Coal Company, Ky., 392 S.W.2d 78 (1965); Deby Coal Company v. Caldwell, Ky., 383 S.W.2d ......
-
Whitis v. Southern Belle Dairy, Inc.
...is a medical question but occupational disability is not. Kilgore v. Goose Creek Coal Co., Ky., 392 S.W.2d 78; McCown v. Hellier Elkhorn Coal Co., Ky., 399 S.W.2d 719. (3) If the appointed physician states (either along with or without a disability percentage estimate) that the claimant can......
-
Adkins v. R & S Body Co.
...capacity and, thereby, to enable them to meet their essential economic needs and those of their dependents. See McCown v. Hellier Elkhorn Coal Co., Ky., 399 S.W.2d 719 (1966); Kilgore v. Goose Creek Coal Co., Ky., 392 S.W.2d 78 (1965); Olson v. Triplett, 255 Ky. 724, 75 S.W.2d 366 (1934). O......