Patton v. Travis

• Court: Kentucky Court of Appeals
• Writing for the Court: HARRIS, Justice.
• Citation: Patton v. Travis, 298 Ky. 678, 183 S.W.2d 956 (Ky. Ct. App. 1944)
• Decision Date: 28 November 1944
• Parties: PATTON v. TRAVIS et al.

183 S.W.2d 956

298 Ky. 678

PATTON v. TRAVIS et al.

Court of Appeals of Kentucky

November 28, 1944

Appeal from Circuit Court, Crittenden County; H. F. S. Bailey Judge.

Proceeding under the Workmen's Compensation Act by Elvin T. Travis claimant, opposed by S. A. Patton, employer, and others. From a judgment sustaining an award of the Workmen's Compensation Board granting compensation, the employer appeals.

Judgment reversed with directions.

Craft &amp Stanfill, of Hazard, for appellant.

A. C Moore, of Marion, for appellees.

HARRIS Justice.

The appellant and the appellee were operating under the provisions of the Workmen's Compensation Act, KRS 342.001 et seq.--the former as the owner and operator of fluorspar mines, and the latter as a laborer in 'timbering in shafts and levels and in laying mud sills therein.' On the 26th day of August, 1942, in the course of his work, the appellee was seriously and permanently injured in his right hand and wrist by the fall of a heavy rock thereon. He testifies: That he now has no feeling and no grip in his hand and can not close it; that it is crooked and has a knot on it; that at the time he received his injury he was earning $2.80 a day; that since the eighth week following the accident he has been working for the appellant at a wage of $3.20 a day, but in a different type of work, namely, that of rolling ore from back in the drifts to the shafts, where it is hoisted out. The only medical evidence in the case is that of Dr. J. O. Nall. The substance of his testimony is that the appellee's right hand and forearm bear scars; that some of the nerves and tendons of the flexor and extensor muscles of the hand, thumb and fingers were cut; that the broken bones have healed and properly united, except that the lower end of the ulna bone projects up and out in an abnormal condition; that he is able to flex and extend his wrist and move it up sidewise, laterally and medially about one-half to two-thirds of normal; that he is able to flex and extend his thumb and fingers from one-half to two-thirds of normal; that these injuries hamper him in shaving, in feeding himself, in writing; that his right hand, thumb and fingers are almost useless for such practical purposes as buttoning his clothes, lacing his shoes, and for all work that requires him to grasp or lift anything with that hand, such as shoveling, wheelbarrowing and using axes, wrenches, picks and the like; that in his judgment the appellee has sustained a permanent partial disability of from 30% to 50% to his entire right hand. The testimony of the lay witness is to the effect that appellee can not perform the type of work that he was engaged in at the time he was injured, nor can he do any heavy or substantial work that requires the use of his right hand.

At the referee's hearing, and after Dr. Nall had testified that appellee's injury had resulted in a disability of from 30% to 50% to his hand as a whole, the parties stipulated that such disability was 40%. For some reason the referee did not adopt either the doctor's estimate or the stipulation of the parties. It was his notion, and he found, that in addition to a total disability of eight weeks to the body as a whole, the appellee was entitled to partial permanent disability of 33 1/3% to his body as a whole for a period of 277 weeks. The full board, on appeal to it, was even more generous with the appellee. It awarded him compensation of $10.92 a week, for a period of not exceeding 400 weeks, on the basis of permanent total disability to his body as a whole. The lower court having sustained the action of the full board, the appellant has appealed.

The Compensation Act provides, and this Court has consistently held, that, in the...