Ruby Const. Co. v. Curling
| Citation | 451 S.W.2d 610 |
| Parties | RUBY CONSTRUCTION COMPANY, Inc., Appellant, v. Pink CURLING, Jr., and Kentucky Workmen's Compensation Board, Appellees. |
| Decision Date | 20 March 1970 |
| Court | United States State Supreme Court (Kentucky) |
James L. Hardy, Burke B. Terrell, Terrell, Schultzman & Hardy, Paducah, for appellant.
James H. Warren, Fulton, H. W. Roberts, Jr., Clinton, for Pink Curling, Jr.
Appellee Pink Curling, Jr., an employee of appellant Ruby Construction Company, Inc., was awarded compensation for total permanent disability by the Workmen's Compensation Board. On appeal to the circuit court the award was affirmed. The employer has appealed from the judgment.
Curling, a forty-one-year-old man, was employed as a carpenter. He sustained under compensable circumstances a traumatic injury diagnosed as a herniated disc. Later, the intervertebral disc at L--5 interspace was removed by surgery. When appellee Curling was released from the hospital, the doctor told him that he could do light work but not to do heavy lifting or engage in activities that require a great deal of bending. At the time of the hearing before the Board, Curling had not sought any employment.
The employer insists that there was not sufficient probative evidence to support the award.
Curling detailed at the hearing his great physical incapacities and his total disability. His wife's testimony substantiated his claims. The only other witness was Dr. Joseph Miller, a neurosurgeon at Baptist Hospital, Memphis, Tennessee. Dr. Miller had performed the operation.
In rating Curling's disability, Dr. Miller stated in part:
'Q Doctor, from your observation and considering your opinion as to his condition, do you have an opinion as to his percentage of disability to perform the duties of a carpenter as I have described it to you or as you know the job of a carpenter?
A Yes.
Q What is your opinion as to his percentage of disability to perform that type of work?
A I would like to say that I rate disability on the basis of comparing the patient with a normal individual. It has nothing to do with his ability to perform work. In other words, a banker or baseball player, a farmer or a lawyer would have the same disability rating. The percent rate is not in any way in consideration of what the man can or cannot do. On that basis, I have rated him as ten percent permanent partial disability of the body as a whole.
Q This is as you say strictly a clinical analysis without any consideration of his job or experience?
A That is correct.
Q In your opinion can he today perform the duties of a carpenter?
MR. HARDY: Object.
A This requires some speculation, in that we have operated on carpenters or farmers and many of them have returned to their work. However, we have advised that they not do the extremely heavy activities or bending that might be required in these jobs. If this man was told that he had to return to a job without restrictions, I would advise him not to do it.
Q And that condition which you have described and your advice, would that apply permanently?
A Yes.'
The only other evidence as to occupational disability was the testimony of Curling and his wife. Appellant would have us discount this proof and determine that such evidence, standing alone, is not sufficient to support the award.
We said in Mary Helen Coal Corp. v. Hensley, 237 Ky. 348, 35 S.W.2d 533:
'Though there was no surgical evidence introduced corroborating the testimony of the claimant that he was injured as stated, and that such injury incapacitated him from labor, nevertheless his testimony is deemed to be sufficient to support the decision of the board.'
This holding was later approved in Hardwood Sales Company v. Meeks, 286 Ky. 500, 151 S.W.2d 406.
Appellant urges that we should overrule Mary Helen Coal Corp. v. Hensley, supra. We decline.
If the only evidence as to occupational disability is the testimony of the claimant, the Board, as a fact-finding agency, nevertheless is justified in reaching a determination based on such evidence. Its position is that of a jury. Ferrell v. A. O. Smith Corporation, Ky., 445 S.W.2d 121.
The Board is not confined in its determination of the extent of a claimant's occupational disability to the findings of doctors as...
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