Yocom v. Conley
| Decision Date | 05 August 1977 |
| Citation | 554 S.W.2d 416 |
| Parties | James R. YOCOM, Commissioner of Labor of the Commonwealth of Kentucky and Custodian of the Special Fund, Appellant, v. Edward Eugene CONLEY, General Telephone Company of Kentucky and Workmen's Compensation Board, Appellees. |
| Court | Kentucky Court of Appeals |
Gemma M. Harding, Deputy Gen. Counsel for Appeals, Dept. of Labor, Louisville, for appellant.
Stanley R. Hogg, Ashland, for appellee Conley.
Charles E. Palmer, Jr., Lexington, for appellee Gen. Tel.
Kenneth E. Hollis, Dept. of Labor, Frankfort, for Dept. of Labor.
Before HOWERTON, GANT and WILHOIT, JJ.
Edward Eugene Conley suffered an injury to his back when he fell approximately thirty-five to forty feet while working as a lineman for General Telephone Company of Kentucky. Conley had suffered a previous injury for which he had received a settlement of Workmen's Compensation benefits based upon a 20% disability of the body as a whole.
For his present disability, the Workmen's Compensation Board found that Conley was 80% permanently disabled and determined that 50% of this 80% was an active occupational disability which existed immediately prior to the injury. Thus, only the remaining 30% was compensable and was the responsibility of the employer, General Telephone Company. The Board dismissed the Special Fund, finding that there was no arousal of a dormant, non-disabling disease condition, nor was there an excess of disability from the cumulative effect of the recent accident coupled with the prior disability.
On review, the circuit court reversed the findings of the Board. The circuit court found that there was no evidence whatsoever that Conley was presently partially disabled. Rather, all evidence pointed to the fact that Conley was 100% disabled. Further, the court found that only 20% of the current 100% total disability was attributable to prior injury which had already been compensated, leaving 80% disability to be compensated. Based upon KRS 342.120 and the test developed in Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971), the court determined that the Special Fund should not have been dismissed. The circuit court found that the evidence dictated a finding that the 80% disability should be apportioned 30% and 50% between the employer and the Special Fund, respectively, for 30% disability would have resulted from the latter injury had it been the sole injury. The court determined that the Special Fund would be responsible for the disability ascribable to the combined effects of the latter injury and the pre-existing disability, namely 50%. In making such determination, the court found that there was no evidence of any occupational disability which existed prior to the injury other than 20%. Also, it held that the Board's finding of 50% pre-existing occupational disability was unsupported by any evidence in the record.
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