Opinion
Decided March 13, 1928.
Appeal from Harlan Circuit Court.
ASHER SHEEHAN for appellants.
C.B. SPICER for appellee.
Reversing.
Appellee, Steve Scott, was an employee of appellant Looney Creek Coal Company. It had elected to operate its coal-mining business under the Workmen's Compensation Act, and he had signed the register. He was injured in the course of his employment, and has been paid for the ensuing total temporary disability. On April 5, 1927, the Workmen's Compensation Board, on a review by the full board of an award previously and within seven days theretofore made by a single member, concluded and adjudged that appellee's period of temporary total disability ended January 28, 1926, and that no partial disability either temporary or permanent existed thereafter, and hence that appellee was not entitled to receive compensation after that date. Being dissatisfied with that award, appellee prosecuted an appeal to the Harlan circuit court where it was adjudged that the award of the board was erroneous and that appellee recover the full amount allowed for total disability for the maximum period of time. This appeal is prosecuted from that judgment.
Four grounds are provided by section 52 of the Kentucky Workmen's Compensation Act (section 4935, Kentucky Statutes), for which on appeal to the circuit court an award of the board may be reversed, namely:
"(1) The board acted without or in excess of its powers.
"(2) The order, decision or award was procured by fraud.
"(3) The order, decision or award is not in conformity to the provisions of this act.
"(4) If findings of fact are in issue, whether such findings of fact support the order, decision or award."
No contention is made that the reversal of the award of the board by the judgment of the Harlan circuit court is justified upon either of the first three grounds mentioned. The reversal was predicated upon the fourth ground mentioned. It has often been written by this court that, where findings of fact are in issue, if the award of the board is supported by any competent evidence, it will be upheld upon appeal to the courts. See Andrews Steel Co. v. McDermott, 192 Ky. 679, 234 S.W. 275; Pope Mining Co. v. Brown, 194 Ky. 714, 240 S.W. 755; Cogar Grain, Coal Feed Co. v. Workmen's Compensation Board, 195 Ky. 477, 242 S.W. 863; Golden Ash Coal Co. v. Davis, 220 Ky. 224, 294 S.W. 1029; Allen v. Columbus Mining Co., 207 Ky. 183, 268 S.W. 1073; Wallins Creek Collieries Co. v. Jones et al., 214 Ky. 775, 283 S.W. 1067; Wallins Creek Collieries Co. v. Hicks, 216 Ky. 262, 287 S.W. 713.
This court's examination of the evidence heard by the Compensation Board upon which it based the finding of fact that appellee was not disabled as a result of the injury received by him after the date above indicated leads to the conclusion that the Harlan circuit court was in error in concluding that there was no competent evidence to support it. The physician and surgeon who treated appellee testified positively that he had recovered entirely from the injury received in the course of his employment and was no longer disabled thereby. His testimony, as well as that of a number of appellee's acquaintances, was to the effect that such disability as appellee now complains of is due to pre-existing disease and not to the injury in question. The testimony of appellee himself and that of a physician who testified for him tended to establish that he was still disabled as a result of the injury received while engaged in employment from appellant. This court's view of the entire record on the question presented is that the evidence preponderates in favor of the conclusion reached by the Compensation Board that appellee's present disability, if any, is not the result of the injury which he received. In no event is there room for the conclusion that the award of the board is not supported by any competent evidence, the test by which we are bound.
It follows, therefore, that the judgment of the Harlan circuit court reversing the award of the Compensation Board on the question of fact is erroneous, and must be reversed, with direction that appellee's petition to the circuit court be dismissed.