Proven Products Sales and Service v. Crutcher

• Decision Date: 05 March 1971
• Citation: 464 S.W.2d 800
• Parties: PROVEN PRODUCTS SALES & SERVICE, Appellant, v. Earl CRUTCHER and John W. Young, Commissioner of Labor, etc., et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 800

464 S.W.2d 800

PROVEN PRODUCTS SALES & SERVICE, Appellant, v. Earl CRUTCHER and John W. Young, Commissioner of Labor etc., et al., Appellees.

Court of Appeals of Kentucky.

March 5, 1971.

Bernard J. Blau; Kaufmann, Jolly, Johnson & Blau, Newport, for appellant.

James L. Cobb, Jr., and Peter F. Beasley, Covington, Thomas R. Emerson, Dept. of Labor, Frankfort, for appellees.

CULLEN, Commissioner.

The Workmen's Compensation Board awarded Earl Crutcher (1) compensation for temporary total disability for a period of six months, to be paid by his employer, Proven Products Sales & Service; (2) medical benefits, also to be paid by the employer; and (3) compensation for 15 percent permanent partial disability, to be paid by the Special Fund. Crutcher had sustained an injury to his back when he fell from a low scaffold. In making the award against the Special Fund the board found that Crutcher's permanent partial disability was attributable solely to the arousal into disabling reality of a preexisting degenerative disc condition, which the board treated as being a disease condition within the meaning of KRS 342.120.

Crutcher and the employer both appealed to the circuit court. The Special Fund did not appeal. Nevertheless, the circuit court entered judgment remanding the case to the board with directions to relieve the Special Fund of any liability and to impose all liability on the employer. The judgment further directed the board to redetermine the extent of Crutcher's permanent partial disability 'based upon the entire record of evidence.' The employer alone has appealed from that judgment.

In directing that liability be placed on the employer rather than on the Special Fund the circuit court held that the board, in finding that the degenerative disc condition was a disease, was in error, by virtue of the decision of this court in Young v. City Bus Company, Ky., 450 S.W.2d 510. In so holding the circuit court misapplied City Bus. The actual decision in City Bus, as to the particular case there on appeal, affirmed the award of the Workmen's Compensation Board imposing liability on the Special Fund for compensation for disability attributable to the arousal of a degenerative disc condition. The reason for the affirmal was (450 S.W.2d at 514):

'Since the confusion present in this case is attributable, in part, to our own opinions, and considering that the Special Fund failed to raise the question before the Board or in the initial proceedings before the circuit court, we have concluded int his case to regard the finding of the Board-appointed physician as conclusive of the existence of a pre-existing, dormant, nondisabling disease as it was so treated by the parties and, therefore, affirm the action of the circuit court in directing apportionment in this case.'

In the instant case the board-appointed physician classified the degenerative disc condition as a disease condition. The Special Fund did not except to the report nor did any of the parties question his report in that regard. The Special Fund did not appeal to the circuit court from the order of the board which treated the degenerative disc condition as being a disease condition such as to furnish the basis for an award against the Special Fund. The situation, therefore, is the same as it was in City Bus. The...