Reed v. S. H. Cart Drilling Co. , 303 Ky. 467 ( 1946 )

Opinion of the Court by

Judge Cammack

Reversing.

O. H. Reed sustained an injury to his ring finger on his right hand which necessitated its amputation below the second joint. The first amputation was not satisfactory and later there was a reamputation which was successful. It appears also that the right wrist and other parts of the hand were injured to some extent. Three doctors who testified for Reed placed the extent of his injury to the right hand as a whole at from 30 to 331/3 per cent. He was finally awarded compensation on the basis of 33 per cent disability to his hand as a whole and was allowed 29 days loss of time. While Reed denies ever having signed Settlement Form 9, such a form appears in the record showing he was allowed compensation to the extent of $160. He refused to accept the last $4 of this amount and applied to the board for a reopening of the case, the outcome of which is shown above. The board’s opinion shows that it disregarded Form 9, so Reed’s charge that it was fraudulently executed need not concern us further. The company offered no testimony so the board had before it only the medical testimony mentioned above. Reed sought to show he had sustained an injury to his body as a whole, because when he sustained his injury his finger had become entangled in the cable on a drill bit which was hanging down in a well and he had the heavy weight of that instrument pulling on his arm and body until he became disengaged. The doctor who performed the second amputation also made an experimental operation on a muscle in his neck in an effort to relieve the pressure at the point of the injury. This operation was unsuccessful, but the doctor testified it could have in no way contributed to an injury to the body as a whole. The same doctor took X-ray pictures of Reed’s spine. These pictures showed rather pronounced hypertrophic arthritic changes present above the fifth, sixth and -seventh cervical vertebrae. The doctor testified positively that this condition was not the result of trauma, but was ‘‘ an anomalous condition which has been described under the name of Klippel-Fiel’s disease.” Under the evidence presented in the record we think the board made a proper award for Reed’s injury.

Reed was away from his work 36 days after his injury and after his finger was first amputated. This was the only loss of time considered by the board, notwithstanding the fact'that the record contains a statement prepared by Reed which shows that, because of the sec ond amputation of bis finger, tbe operation on bis neck and several visits to doctors, be was away from bis work 83 days. Tbe company offered no proof showing that Reed’s statement was in error, and, unquestionably, be was away from work more than tbe 36 days considered by tbe board, so we are of tbe opinion tbe loss of time allowance should have been made on the basis of 83 days.

When tbe record was forwarded from the board to tbe Pike Circuit Court, tbe loss of time statement just mentioned was omitted. Later, however, it was supplied. Because of tbe denial that Form 9 was executed, tbe omission of tbe loss of time statement, and tbe fact that counsel for Reed was not furnished a copy of tbe full board opinion, doubtless through inadvertence, a vigorous charge of fraud was made upon tbe member of tbe board who prepared the full boards opinion and tbe company’s insurance carrier. In bis attack upon tbe board member Reed’s attorney has made accusations and brought in matters wholly foreign to tbe record before us, and in no sense warranted under ethical legal practice. Regardless of what tbe personal views of tbe attorney may be aboiit tbe board member in question, we think tbe charges of fraud are wholly unwarranted.

Judgment reversed, with directions to set it aside and for tbe case to be remanded to tbe board for tbe entry of an award consistent with this opinion.