Summary
In Horton v. United States Steel Corporation, Ky., 384 S.W.2d 73, as in the instant case, there was a sharp conflict in the expert opinion evidence as to whether the claimant had silicosis. It was there held that the Board's determination upon conflicting evidence is conclusive. Also see Roark v. Alva Coal Corporation, Ky., 371 S.W.2d 856. The principle as set forth in the above cited cases is determinative of the instant one.
Summary of this case from Dobbs v. Inland Steel CompanyOpinion
October 16, 1964. Rehearing Denied December 18, 1964.
Appeal from the Circuit Court, Harlan County, Edward G. Hill, J.
C.W. Napier, Hazard, for appellant.
William A. Rice, Harlan, for appellee.
The appellant, Earnest Horton, an employe of the appellee United States Steel Corporation, was laid off on May 24, 1961, incident to a reduction in force. On May 18, 1962, he filed a workmen's compensation claim against the company alleging that he was totally and permanently disabled by reason of the occupational disease of pneumoconiosis. According to the proof thereafter taken, he had been extensively exposed to the hazard of such a disease during a career of some 45 years in the coal mines, and the defendant company was the employer in whose service he was last injuriously exposed. See KRS 342.316(12).
Competent medical witnesses who had examined the appellant gave opinions amply sufficient to support a favorable finding and award. However, the board chose to believe the opinion testimony of defense experts to. the effect that he did not have an occupational disease, and it so found. This determination having been affirmed on a review by the circuit court, he appeals to this court.
Testimony of defense experts. that is essentially noncommittal will not justify the rejection of a claim supported by positive medical opinions. Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47 (1961); Bethlehem Mines Corporation v. Davis, Ky., 368 S.W.2d 176 (1963). However, when the opinion evidence is in direct conflict the board's decision is conclusive. Roark v. Alva Coal Corporation, Ky., 371 S.W.2d 856 (1963).
For the record, we quote from the testimony of Drs. E.R. Gernert (Louisville) and John H. Skavlem (Cincinnati) as follows:
Question to Dr. Gernert: "Doctor, in your opinion, does this man have pneumoconiosis or silicosis?"
Answer: "He does not."
Question to Dr. Skavlem: "Doctor, in your opinion does this man have silicosis, or pneumoconiosis or any other occupational disease?
Answer: "No."
The Roark case being indistinguishable from this, the same principle governs.
The judgment is affirmed.