Nolley v. Diamond Coal Co.
| Citation | 165 S.W.2d 841,291 Ky. 849 |
| Parties | NOLLEY v. DIAMOND COAL CO. et al. |
| Decision Date | 30 October 1942 |
| Court | Court of Appeals of Kentucky |
Rehearing Denied Dec. 11, 1942.
Appeal from Circuit Court, Webster County; M. L. Blackwell, Judge.
Proceedings under the Workmen's Compensation Law by E. H. Nolley against Diamond Coal Company and others for compensation for silicosis. From a judgment dismissing an appeal from a decision of the Compensation Board dismissing claim for compensation claimant appeals.
Affirmed.
Fox & Gordon, of Madisonville, for appellant.
Gordon Gordon & Moore, of Madisonville, for appellees.
SIMS Commissioner.
Appellant on June 28, 1941, filed claim with the Compensation Board and on December 18th, Referee who had heard the case recommended that the application be dismissed. Upon motion of applicant the matter was taken to the full Board, and that body after a hearing adopted the recommendation. Thereafter applicant petitioned for review in the Webster circuit court; the court upheld the Board's ruling and dismissed the appeal. From this order Nolley prosecutes appeal, it being contended that the Board erred in its conclusions of law.
It is agreed that parties had accepted the provisions of the compensation law; that appellee had timely notice of injury, which arose out of and in the course of employment, and that the wage earned by applicant at the time he ceased work would justify maximum compensation. The transcript shows that Nolley was forty-six years of age. He had worked in West Virginia coal mines prior to coming to Kentucky in 1925, where he later began operating a cutting machine for appellee, working continuously until some time in April, 1941, when he stopped on account of the condition of his health. At that time and prior thereto, he suffered from a soreness in his throat and chest; had trouble breathing and was subject to severe coughing spells. Nolley testified to these facts and described the mine, the place where he worked, and the operation of his machine used in cutting through a vein of coal. The bit of this machine was geared for hard cutting, creating heavy friction. In certain places in the coal there were substances much harder than the coal, making it difficult for the bit to pierce through. He said the dust "is carried back and dropped behind the machine," much of which he inhaled.
Appellant was examined by one doctor who advised him to go to bed for rest, which advice he followed. He had developed a severe cough which had existed for "a year or two"; prior to that time he had not suffered from any ailment. The dust he had inhaled, he described as coming from something like sandstone and "mother coal," which had shown in the coal "mostly all the time" he was working for appellee.
Other witnesses, miners, corroborate Nolley as to the character of the coal, and the difficulty in, and results from, cutting through the hard substances. The employer introduced no proof.
It is unnecessary to go further into details as to the character of the mine, or the working of the machine and results, since the determination of the question presented turns on the evidence of the doctors who examined Nolley, and the application of the provisions of the Compensation law. Both doctors agree that he was tubercular, the disease arising from a thoroughly developed silicosis condition, which they agree incapacitated him for work, and would eventually end in his death.
There is no argument concerning these two conclusions. That silicosis is universally treated as an occupational disease, is shown by reference to cases dealing with the subject. For example see Svoboda v. Mandler, 133 Neb. 433, 275 N.W. 599; Morrison v. Indus. Acc. Comm., 42 Cal.App.2d 685, 109 P.2d 767, and Bolosino v. Laclede Christy Clay Products Co., Mo.App., 124 S.W.2d 581.
The Referee in a comprehensive opinion, stating the undisputed proof substantially as above, found that while both parties were subject to the Compensation Act, there had been no acceptance under what is called the "Silicosis Amendment" of 1934, a finding not disputed, and on the basis of the doctors' conclusions that Nolley's trouble arose from silicosis, held the injury not compensable.
Upon review the Board found no factual questions involved. Its opinion went into detail in showing character, causes and effects of silicosis, the disease which Dr. Crimm, a specialist, found leading to tuberculosis. The Board then took up § 4880, Ky.Stats., K.R.S. 342.005, and construing and applying it to the facts, held that since the parties had not accepted the terms of the silicosis amendment, the claimant was not entitled to compensation
In order to get directly to the contentions of parties we here quote the statute in part as originally enacted, and the two amendments, the first italics being the 1924 amendment, Acts 1924, c. 70; the second the amendment of 1934, Acts 1934, c. 89. After designating employees to whom the act should apply, the section reads:
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...as being specially elective and that disability from silicosis was not compensable if the parties had not complied. Nolley v. Diamond Coal Co., 291 Ky. 849, 165 S.W.2d 841; Eastern Coal Corp. v. Morris, Ky., 287 S.W.2d 603. It is agreed in this case that there was no written application or ......
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...if the disease was contracted as a result of his negligence in failing to furnish a safe place in which to work. Nolley v. Diamond Coal Co., 291 Ky. 849, 165 S.W.2d 841. In 1934, the Legislature amended Section 4880, Carroll's Kentucky Statutes, by adding to the provisions of that section w......
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