Opinion
May 15, 1970. Modified on Denial of Rehearing December 11, 1970.
Appeal from the Pike Circuit Court, James B. Stephenson, J.
Reed D. Anderson, Dan Jack Combs, Combs Anderson, Pikeville, for appellant.
Stratton Johnson, Pikeville, Martin Glazer, Thomas R. Emerson, Department of Labor, Workmen's Compensation Board, Frankfort, for appellees.
The appellant, Zeldon Ward, is an underground-coal-miner forty-seven years of age. He is appealing from the judgment of the Pike Circuit Court, which affirmed an order of the Workmen's Compensation Board dismissing his claim.
Appellant claims that he was disabled as the result of a pulmonary occupational disease. The medical evidence is conflicting. Because of the conflicting evidence, the Board appointed Dr. John Myers, Jr., of Lexington, Kentucky, under the provisions of KRS 342.315. Dr. Myers filed his report stating that as a result of his examination he found the claimant suffering from a chronic lung disease manifested by chronic bronchitis, pulmonary emphysema (perennial asthma) with associated vasomotor rhinitis, mild to moderate obstructive defect in ventilation, functional class II. Also, he was suffering from bursitis, right shoulder, active; psychopathy, type undetermined, presently under therapy and no present evidence of silicosis or other pneumoconiosis.
Dr. Myers went ahead to testify that exposure to dust in the mines could be one factor in the production of chronic bronchitis and asthma; however, these are diseases of the population generally regardless of sex, age or occupation and that appellant could be just as asthmatic without being an underground-coal-miner.
The Board rendered its opinion on October 2, 1967, dismissing appellant's application for benefits. The Board adopted Dr. Myers' medical findings and concluded that appellant failed to prove to the satisfaction of the Board that he was suffering from a compensable occupational disease. This ruling was appealed to the Pike Circuit Court and there affirmed. We are of the opinion the case is controlled by Young v. Dale, Ky., 446 S.W.2d 288 and Branham v. Inland Steel Co., Ky., 446 S.W.2d 287.
The judgment is affirmed.
MILLIKEN, PALMORE, REED and STEINFELD, JJ., concur.
NEIKIRK, J., not sitting.