Young v. Fulkerson
| Decision Date | 05 February 1971 |
| Citation | 463 S.W.2d 118 |
| Parties | John W. YOUNG, Commissioner of Labor of the Commonwealth of Kentucky, et al., Appellants, v. Frank FULKERSON et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Martin Glazer, Frankfort, Gemma M. Harding, Louisville, for appellants.
John K. Gordinier, Curtis & Rose, S. Lloyd Cardwell, Stites, Peabody & Helm, Louisville, for appellees.
DAVIS, Commissioner.
Frank Fulkerson obtained a workmen's compensation award based on the Board's finding of total, permanent disability. The Board assessed two-thirds of the award (plus medical allowances) against the employer, Anaconda Aluminum Company, and its insurance carrier. The balance of the award was directed to be paid by the Special Fund. The circuit court affirmed the Board's decision. Appeals were taken by the Special Fund and the employer, but only the Special Fund has submitted brief for appellants. On the employer's motion, it was relieved from the necessity of submitting a brief. No cross-appeal has been prosecuted by Fulkerson.
The statement of the question presented is thus framed by the Special Fund:
'Can the Special Fund properly, under the provisions of KRS 342.120(4), be liable for a previous injury which has been litigated and held to be non-compensable?'
Fulkerson, while employed by Anaconda, presented claims for workmen's compensation based on three incidents involving claimed injury to his back. Two of these incidents were alleged to have occurred in May and September of 1962 and the third in January 1963. The Board denied compensation in the proceeding concerning those incidents on the basis that it found no disability as a result of any injury sustained by Fulkerson while working for Anaconda. Portions of the evidence heard in that proceeding were presented in the present hearing.
On October 18, 1965, Fulkerson allegedly suffered another back injury while performing heavy labor duty for Anaconda. He received medical attention from Dr. Wayne W. Kotcamp, an orthopedic surgeon. Ultimately, Fulkerson underwent two operations for spinal fusion, one administered anteriorly, the other posteriorly. Processing of his claim was necessarily delayed until stabilization of his medical status could be achieved.
On motion of Anaconda the Special Fund was made a party on the basis of the showing that Fulkerson had experienced previous back trouble, coupled with medical testimony that a portion of the disability suffered after the 1965 incident was ascribable to Fulkerson's previous back trouble. The Board appointed Dr. William C. Mitchell for the purpose of making the independent medical examination and report prescribed by KRS 342.121. Dr. Mitchell's report, after reciting pertinent background information, was concluded in the following paragraph:
Both the employer and employee filed exceptions to Dr. Mitchell's report, but the Board regarded the exceptions as lacking the required specificity and overruled them. That ruling of the Board is not challenged on this appeal.
The Board translated the reported 60% impairment into occupational disability of 100% to the body...
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Garrett Mining Co. v. Nye
...thus did not attribute any portion of the disability to that event. However, applying former KRS 342.1201 and Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971), he found that 25% of Nye's disability was attributable to the August 13, 1994, injury alone, 22% was attributable to a pre-existing a......
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Edwards v. Louisville Ladder
...the statutes as they existed at that time and not as they now exist.2 Edwards places considerable emphasis on the case of Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971), although she fails to identify how the case helps her argument. We fail to see its relevance.3 Classifications based upon......
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Parson v. Union Underwear Co.
...July 2, 1985. The Board found that Parson was 70% occupationally disabled, and following the procedure outlined in Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971), apportioned liability for benefits. The Board found that Parson had a preexisting occupational disability of 40% due to the Dece......
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Fleming v. Windchy
...liability where a subsequent injury, by itself, would not have caused the worker's entire disability was set forth in Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971). See also Yocom v. Spalding, Ky., 547 S.W.2d 442 (1977), and Ligon Preparation Plant Co. v. Hamilton, Ky., 482 S.W.2d 762 (197......