Robinson-Pettet Co. v. Workmen's Compensation Bd.

• Citation: 201 Ky. 719,258 S.W. 318
• Parties: ROBINSON-PETTET CO. v. WORKMEN'S COMPENSATION BOARD ET AL.
• Decision Date: 29 January 1924
• Court: Court of Appeals of Kentucky

258 S.W. 318

201 Ky. 719

ROBINSON-PETTET CO. v. WORKMEN'S COMPENSATION BOARD ET AL.

Court of Appeals of Kentucky.

January 29, 1924

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Proceeding by Louis Selzer under the Workmen's Compensation Act to obtain compensation for personal injuries, opposed by the Robinson-Pettet Company, the employer. There was an award of compensation by the Workmen's Compensation Board, which was sustained by the circuit court, and the employer appeals. Affirmed.

Eugene R. Attkisson, of Louisville, for appellant.

James A. Speed, of Louisville, for appellees.

Robert F. Vaughan, Selligman & Selligman and Norton L. Goldsmith all of Louisville, and Robert T. Caldwell, of Ashland, amici curiæ.

CLAY J.

Claim was made by Louis Selzer for compensation for disability alleged to have been caused by an accident while he was in the employ of Robinson-Pettet Company. The Workmen's Compensation Board awarded compensation at the rate of $2.93 a week during total disability not to exceed eight years. On appeal by the Robinson-Pettet Company to the Jefferson circuit court, the finding and award were affirmed, and from that judgment this appeal is prosecuted.

It will not be necessary to state the facts, as they are fully set forth in the Board's opinion, which is as follows:

"In the month of June, 1920, the plaintiff, having forgotten the exact date, claims to have fallen from a ladder in the employer's store, hitting his back in the dorsal region against the counter and his leg against the ladder. Thinking the injury was slight, and that there would be no serious results, he continued his work, but immediately began limping, and observed a general decline in his condition of health until six months later he was compelled to give up his employment, since which time he has been totally disabled. After disability reached the point where the employee had to stop work, an agreement on form No. 9 was filed with the Board, and compensation was paid for total disability for two weeks, after which the defendant ceased payment. The plaintiff then filed petition with the Board for adjustment of claim.

When three years old, plaintiff developed Pott's disease, or tuberculosis of the spine, which resulted in considerable deformity. At the age of six, he had sufficiently recovered to permit him to attend the public school. He continued in school until the age of thirteen. At the age of thirteen, he procured employment, and worked continuously until January 1921, when the disability complained of compelled him to cease work. During the last five years, he had been employed by defendant, and the evidence shows that he worked practically every day and that his work was satisfactory to the employer.

Defendant claims that plaintiff's present condition is due to pre-existing disease rather than to the accident complained of. The preponderance of medical testimony, as well as the circumstances in the case, lead to the conclusion that the tubercular condition had lain dormant until the accident, and that the accident lighted it up. We must therefore determine what per cent. of his present disability is due to the injury and what per cent. to the pre-existing disease.

'Where an employee has previously been suffering from tuberculosis of the lungs, which tubercular condition had become quiescent, and upon the happening of the accident, causing a fractured rib, such tubercular condition is lighted up, compensation is payable for increased disability due to the recurrence of the tuberculosis.' Birk v. Matson Navigation Co., 2 Cal. I. A. C. Dec. 199.

It is impossible with exact certainty, in cases of this kind, to determine what per cent. of disability resulted from the accident and what per cent. from the disease. In the instant case, taking into consideration all the facts and circumstances, we conclude that one-fourth of the plaintiff's disability is due to the accident.

It is agreed that plaintiff's average weekly wages were $18. He would therefore be entitled to compensation at the rate of $2.93 a week.

Statement of Facts.

As above.

Ruling of Law.

Where disability is due both to pre-existing disease and to an accident, compensation will be awarded for the per cent. of disability due to the accident.

Award.

Louis Selzer is awarded compensation at the rate of $2.93 a week, during total disability, not to exceed eight years."

We have carefully considered the evidence on which the Board acted, and being unable to say that there is an entire absence of evidence to support its finding of facts, it results that such finding, in the absence of fraud, is conclusive and not subject to review. Andrews Steel Co. v. McDermott, 192 Ky. 679, 234 S.W. 275; Valentine v. Weaver, 191 Ky. 37, 228 S.W. 1036.

The principal question for decision is the proper construction and application...