Pittsburg & Midway Coal Min. Co. v. Rushing
| Decision Date | 21 November 1969 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | The PITTSBURG & MIDWAY COAL MINING COMPANY and the Travelers Insurance Company, Appellants, v. William Ray RUSHING, Appellee. |
James Holloran, Sturgis, for appellants.
George B. Simpson, Sturgis, for appellee.
The Workmen's Compensation Board (hereinafter Board) awarded appellee 'permanent partial disability of 25% to the body as a whole.'
Rushing appealed to the circuit court, wherein judgment was entered adjudging that certain findings of the award were not supported by 'competent evidence of probative value' and remanding the case to the board 'for a re-determination of the degree of disability of the claimant and for an adequate award in keeping with the evidence.' The Pittsburg & Midway Coal Mining Company (hereinafter Pittsburg) and its insurance carrier, Travelers Insurance Company, appeal to this court insisting (1) the circuit court was powerless under KRS 342.285(3) and the case law of this state to substitute its judgment for that of the Board; and (2) the circuit court had no jurisdiction after Rushing filed a motion before the Board to reopen his case on the same day he appealed to the circuit court.
We reverse the circuit court judgment and affirm the award of the Board.
In the interest of brevity, we relate only the high points in the facts.
Appellee Rushing was a coal miner for Pittsburg on February 19, 1965, when he received a back injury. An agreement was reached July 6, 1965, between Pittsburg and Rushing with respect to compensation for the injury of February 1965, which was approved by the Board.
Rushing claims he received a second back injury on July 12, 1966, while working for Pittsburg. He also claims that in July 1967, he received a fall in his home as a result of disability arising from his previous injuries, which fall resulted in injuries to his knee.
The Board had evidence before it that in 1963 Rushing received an injury to his back from a fall from a tree while coon hunting and that his knee was injured seriously when he was a young man.
In November 1965, appellant underwent surgery to have a disc removed from his back. In January 1966, he again submitted to surgery for the removal of a second disc.
Shortly after July 1966, and after he claimed to have received a second injury, Rushing filed claim for the second injury and moved to reopen his case for the first injury.
In the fall of 1966, he claims he began having bladder trouble. In March 1967, he was operated on to correct the bladder trouble. He returned to work in June 1967, but the next month (July 1967) he alleges he fell in his home and injured his knee. He again underwent surgery to repair a torn cartilage in his left knee.
So it is apparent Rushing has been plagued by injury after injury and by operation on top of operation. He has consulted with, been examined and treated by doctors of nearly all specialties in cities both far and near and from all directions.
The Workmen's Compensation Board on December 5, 1966, ordered that the first claim be reopened on the ground of change of condition and be consolidated with the claim for injuries received July 12, 1966.
The final opinion, award, and order of the Board found that Rushing sustained an injury February 19, 1965, while in the course of his employment. It rejected the contention of Pittsburg that the 'coon hunting accident' contributed to his disability.
The Board found that Rushing did not receive an injury on July 12, 1966, while working for Pittsburg.
The Board also found that the bladder problem did not result from his first injury and that his knee injury and resulting operation and disability were in no way work-related or caused by the back injury.
Appellants argue first that KRS 342.285(3) inhibits the circuit court from substituting its judgment for that of the Board and cite E. I. Dupont De Nemours & Company v. Burns, Ky., 427 S.W.2d 581, and other cases of like authority. With this theory we readily agree. But the real argument goes to the weight of evidence before the Board. The wife of Rushing first testified most favorably to her husband. Later on, after her separation from her injured and aching husband, she again testified in the case but very unfavorably to the numerous contentions of her then estranged husband.
Obviously the Board gave considerable weight and credibility to her last evidence. The circuit court took the opposite view holding that her last evidence was self-discrediting, totally destroying the probative value of all her evidence before the...
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