Wallins Creek Collieries Co. v. Hicks

• Decision Date: 29 October 1926
• Citation: 216 Ky. 262
• Parties: Wallins Creek Collieries Company v. Hicks, et al.
• Court: United States State Supreme Court — District of Kentucky

216 Ky. 262

Wallins Creek Collieries Company v. Hicks, et al.

Court of Appeals of Kentucky.

Decided October 29, 1926.

1. Master and Servant — Reasonableness of Employee's Refusal to Submit to Operation or Failure to Follow Medical Advice is Question of Fact, to be Determined by Circumstances (Kentucky Statutes, section 4886). — Whether or not action of employee in refusing to submit to surgical operation, under Kentucky Statutes, section 4886, or in failing to follow competent medical advice, is reasonable,

is a question of fact to be determined by the circumstances of each case.

2. Master and Servant. — If there is any competent evidence to sustain findings of fact by compensation board, such findings are conclusive, in absence of fraud or mistake.

3. Master and Servant — In Absence of Claim of Fraud or Mistake, Appellate Court Need Only Determine Whether There was Any Competent Evidence to Sustain Finding of Compensation Board. — In absence of claim of fraud or mistake, in finding by compensation board that employee did not unreasonably refuse to submit to competent surgical treatment or medical aid, appellate court need only determine whether or not there was any competent evidence to sustain finding.

4. Master and Servant — Evidence Held to Sustain Finding that Employee's Refusal to Submit to Operation for Fractured Leg was Not Unreasonable (Kentucky Statutes, Section 4886). — Evidence of danger of pneumonia from use of anesthetic and danger of infection of knee joint and lack of assurance of success of operation for fractured leg held to sustain finding by compensation board that employee's refusal to submit was not unreasonable, under Kentucky Statutes, section 4886.

5. Master and Servant — Question as to Payment of Compensation Pending Appeal Held Now Moot, where no Payments were made and Act was Passed Suspending Payments (Acts 1926, chapter 193). — Question whether circuit court may compel payment of compensation, pending an appeal, despite execution of a supersedeas bond, held to have become moot, where no compensation had been paid and Acts 1926, chapter 193, was passed suspending payments.

Appeal from Bell Circuit Court.

A.G. PATTERSON for appellant.

J.S. GOLDEN for appellees.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Affirming.

Section 4886 of the Kentucky Statutes, being section 6 of the Workmen's Compensation Act, provides inter alia: "No compensation shall be payable for the death or disability of an employee if his death is caused, or if and in so far as his disability may be aggravated, caused or continued, by an unreasonable refusal, failure or neglect to submit to or follow any competent surgical treatment or medical aid or advice." The sole question presented by this appeal is whether or not the appellee unreasonably refused to submit to competent surgical treatment or medical aid or advice in connection with the injury which he received and for which he is claiming compensation from appellant. The compensation board found that he did not, and on appeal to the circuit court the award of the compensation board was affirmed. From this judgment of the circuit court, appellant brings this appeal.

Whether or not the action of an employee in refusing to submit to a surgical operation or in failing to follow competent medical advice is reasonable is almost universally held to be a question of fact to be determined by a careful inquiry into the circumstances of each case. A list of the English cases supporting this proposition may be found in the annotation to section 4886 of the Kentucky Statutes, 1922 edition. A like rule was laid down in the case of Strong v. Sonken-Galamba Iron & Metal Co., 109 Kan. 117, 198 Pac. 182, 18 A.L.R. 415. To this case as reported in 18 A.L.R. is appended a short note. The case of B.F. Avery & Sons v. Carter, 205 Ky. 548, 266 S.W. 50, necessarily involved the same principle. Now it is settled that if there is any competent evidence to sustain the findings of fact by the...