Young v. Kimbler
Young v. Kimbler
Opinion of the Court
The circuit court upheld the opinion and award of the Workmen’s Compensation Board which determined that claimant was entitled to benefits based on total permanent disability to be paid by Special Fund. The employer, F & R Coal Company, was directed to pay the medical expenses. Only Special Fund appeals. We affirm.
Claimant’s testimony might be summarized as follows. At the time of filing his workmen’s compensation application
The board found that claimant was suffering from silicosis. Special Fund does not question that finding but contends claimant is not entitled to compensation because he had not been exposed to the hazards of the disease for two years immediately next before his disability, as required by KRS 342.316(4) which provides:
“In claims for compensation due to the occupational disease of silicosis or any other compensable pneumoconiosis it must be shown that the employe was exposed to the hazards of the disease in his employment within this state for at least two years immediately next before his disability or death.”
The board found that claimant was employed by Witten Coal Company from 1955 to 1967 and that he was employed by F & R Coal Company for two years from 1967 to 1969. The record discloses that after the termination of his employment with F & R Coal Company claimant operated a coal mine on his own for two months, and after that worked a few days for the Paul Daniels Coal Company. The board further found that claimant was last exposed to the hazards of silicosis for a period of six months or more while employed by F & R Coal Company and the exposure continued for at least two years immediately next before the disability.
Special Fund develops its contention by saying the evidence conclusively disclosed that claimant worked for F & R Coal Company only 42 days during a period of about four months which, it insists, was far short of the two-year requirement of KRS 342.316(4). Claimant testified categorically that he was employed by F & R Coal Company for two years next before his disability. Other than the statement of Fred VanHoose, one of the owners of F & R Coal Company, and that of the claimant, neither side presented any significant evidence in support of the respective contentions of the duration of employment. The evidence discloses that F & R Coal Company had no record of the date of the commencement or the termination of claimant’s employment. The board pointed out that F & R Coal Company paid its employees in currency without even placing the money in envelopes.
On the conflicting verbal statements of VanHoose and the claimant the board accepted the truth of claimant’s statement. We cannot say the finding of the board was clearly erroneous, thus under the holding of Hall v. Island Creek Coal Company, Ky., 474 S.W.2d 890 (1972), and numerous other cases, the finding will not be disturbed.
Special Fund also contends that if it be determined that the last employment where defendant became affected was with Wit-ten Coal Company then he is precluded
Special Fund’s final argument is that since the Paul Daniels Coal Company was not operating under the Workmen’s Compensation Act the board had no jurisdiction. KRS 342.316(13) (a) provides:
“The employer liable for compensation * * * for silicosis and any other com-pensable pneumoconiosis, shall be the employer in whose employment the employe was last exposed to the hazard of such occupational disease during a period of six months or more. In those cases where disability or death are not conclusively proven to be the result of such last exposure all compensation shall be paid out of the Subsequent Claim Fund. * *
No liability was sought to be attached or could attach to the Paul Daniels Coal Company under the circumstances of this case, so it is immaterial whether the company was operating under the compensation Act.
The effect of the short periods of employment subsequent to that of F & R Coal Company, as they might have a bearing on the date of claimant’s disability, as defined by Allen v. Commonwealth, Department of Highways, Ky., 425 S.W.2d 283 (1968), and kindred cases, was not presented by the parties and we are not constrained to initiate the argument.
The judgment is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.