Blue Diamond Coal Co. v. Napier , 1960 Ky. LEXIS 371 ( 1960 )

WADDILL, Commissioner.

The Workmen’s Compensation Board awarded appellee, Joe Napier, compensation benefits against the appellant, Blue Diamond Coal Company, for total permanent disability resulting from silicosis. KRS 342.095, 342.316. As grounds for reversal of the judgment affirming the award, it is contended that: (1) Appellee failed to establish that he sustained the last injurious exposure to the disease of silicosis while he was employed by appellant; (2), the evidence is insufficient to support the finding of the Board that appel-lee is totally and permanently disabled..

Appellee was 43 years of age when he filed his claim for compensation. He had been operating a coal cutting machine in appellant’s mine for over three years when he was laid off from work in August, 1958, due to a reduction of the working force at the mine. When the mine resumed full operation in February, 1959, appellee was offered re-employment on the condition that he could pass a physical examination. When it was ascertained that appellee’s lungs were congested from the effects of coal dust, he was refused re-employment. The examining physician was of the opinion that appellee had silicosis.

It is contended that appellee’s exposure to rock dust during the period he worked in appellant’s mine could not have produced the degree of silicosis from which appellee was suffering in February, 1959. Therefore, it is argued that appellee contracted silicosis prior to his employment with appellant.

Whilé there ■ is sbme medical testimony-to the effect" that it requires ten to twelve years’ exposure to develop the first stage bf silicosis, there was also medical testi--mony which supports the conclusion reached by the Board that appellee contracted silicosis during the course of his employment with appellant. The medical experts all agree "that- each exposure .which appellee had experienced while employed in appellant’s mine was injurious.

In Childers v. Hackney’s Creek Coal Company, Ky., 337 S.W.2d 680, this Court said: .

“It is provided in KRS 342.316(12) ' that the employer -in whose employment the -worker was ‘last injuriously ex- ' posed to the hazard of' the - disease’ shall be' liable for -compensation. Obviously this contemplates that the work- ' ■ er also' niáy have been exposed in some ' prior employment: and may even have contracted the’ disease in a substantial ' degree' in' stich priof employment. All that’is required under ICRS 342:316(1) (b) ’is’ that the ' exposure be ■ such as could -cause the.:disease independently : of any other cause. It will be noted ’ ; that.under neither of the cited,subsections is there any-minimum time re- , ,-quirement'for- the period'of exposure. Accordingly, it is not- required that the employe prove he did contract silicosis in his last employment, but. only , that the conditions were such that they could cause the disease over some in"definite period of time.”, -. ,

In the case at bar it was shown that ap-' pellee performed his duties in appellant’s mine for approximately three and one-half years before becoming disabled from silicosis.- It was also established that appellee was last injuriously exposed to the hazard’ of the diséase during his employment in appellant’s mine. These -facts are sufficient to support the finding of the Board-that appellee’s disability resulted from injurious-’ exposures to rock dust while émployed'by appellant.

Dr. B. E. Jones, whose qualifications as á specialist in diseases of the chest are quite impressive, testified that he examined appellee on February 25, 1959, and found extensive and moderate sized nodular areas-of fibrosis scattered throughout appellee’s lungs. Dr: Jones stated that- it was his opinion that appellee has’silicosis and that it is a-disease which will- cause appellee’s condition to become progressively worse. Dr. Jones further stated that ap-pellee was probably able to perform light work in moderation, but should not :be, engaged in any type of endeavor which, would cause him to be in contact with dust or any other bronchial irritants. It was the doctor’s opinion that appellee is totally disabled for work in a coal mine.

Dr. Jones’ testimony is sufficient to sustain the award of total permanent disa- . bility.

Judgment affirmed;