192 Ky. 679 | Ky. Ct. App. | 1921
Opinion of the Court by
— Reversing.
Appellee, Joseph P. McDermott, was in the employ of the Andrews Steel Company, in Newport, in February, 1919, and while in the performance of his duties received an injury to his left eye which, he contends, later caused the loss of the vision of that eye. As the steel company was operating under the workmen’s compensation act, McDermott made application to the board administering the act for compensation for his injury. Evidence was taken and the case prepared. In refusing the allowance the board made the following finding of fact:
“It was not established by ithe testimony that there were any chemicals in the dirt or dust blown into plaintiff’s eye. In fact the weight of testimony is otherwise. There was slag around the plant, but slag is a hard substance like rock, and it was not established by the testimony -of the plaintiff or any of the physicians who examined the plaintiff that any hard substance hit him in the eye or that any hard substance penetrated the eye, in fact no piece of steel, slag or other hard substance was removed from the eye.
“2. The plaintiff is suffering from cataract. There are several kinds of cataract, among them traumatic, congenital, 'senile and systemic. No physician directly stated that traumatism was the cause of plaintiff’s cataract. In cases of traumatic cataract the lens of the eye is necessarily involved. Traumatic cataract arises either by a foreign substance penetrating the cornea, going through the anterior chamber and reaching the lens, or*681 by a blow injuring tbe lens capsule. There is an entire absence of evidence to the effect that there was any penetration of the cornea by a foreign substance or a blow u-pon the eye. It is .true that on April 9, 1919, an operation was performed by Drs. Thomasson and Miller, which- punctured the anterior’chamber to exclude pus and to save the eyeball, but the sight, at that time, was gone.
“3. The loss of the sight of the left eye of plaintiff wias not caused by traumatic accidental injury.”
On the foregoing facts the board declared the law as follows:
‘ ‘ 1. There must be some cause or connection between the employment and the accidental injury. Where there is no natural connection between the risk -and the employment, such as wind or lightning, it must affirmatively be shown that the nature of the employment pecularly exposed the employe to such danger. Ordinarily an employe, while at work, who is injured by some force of nature, like wind, is not entitled to compensation unless ithe employment itself peculiarly exposes the employe to, the hazard in a greater degree than the average member of the commonalty or unless the force of nature especially combined with some element or hazard of the employment to produce the injury. '
“2. The alleged accident did not arise out of and in the course of the employment.
“3. The burden of proof is upon the plaintiff to show, not only that the .accident and the injury arose out of and in the course of the employment, but that the condition of plaintiff was not the result of pre-existing disease.”
Feeling aggrieved at the failure of the board to award him compensation, McDermott appealed in the way and manner provided by section 4935, Ky. Statutes, to the Campbell circuit court, where the case was tried upon the record certified to it by the. board of compensation. The ¡trial court arrived at a different conclusion from that of the board of compensation and ordered the findings of the board set aside and cause remanded to the board for further proceedings looking to an award of compensation to McDermott. From this judgment the Andrews Steel Company appeals to this court.
The first and only question we need consider on this appeal is, may a court review the finding of fact made by the board, for if we cannot do so and are confined to the application of the law to the facts as found by the board,
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 the act.'
4. If findings of fact are in issue, whether such findings of fact support the order, decision or award. No claim of fraud in the order or decision is made by appellee and the trial court did not hear evidence on that subject.
The act under which this proceeding is had provides in sec. 4935 that an award or order of the board of compensation shall be conclusive and binding as to all questions of fact unless the order or award is the result of fraud or misconduct of 'some person engaged in the administration of the act. Appellee McDermott rests his claim to compensation upon the loss of the sight of his left eye occasioned by traumatic accidental injury received in the course -of his employment and arising out of such employment. The facts appear to preponderate in favor of appellee McDermott’s contention, but there is evidence in the record which supports a contrary view. Construing the statute with reference to the conclusiveness of findings -of fact by the board most of the- courts, both of this country and -of England, have given the language its- literal meaning, holding a finding or decision -of a board having original jurisdiction of a claim under the act conclusive -on a question of fact, if the finding has any support in the evidence, but the entire absence of -evidence to support such finding presents a .question of law subject to appellate review. In re Buckley (notes), 1916 American Annotated Cases, page 475. Courts can and do review findings -of law but not of fact except in cases of the fraudulent administration of the act. If there be any evidence warranting a finding of fact, or if there be no controversy about the facts, there is and can be but a question of law which a court may review, and, if proper, reverse the order, decision or award of the board. In the case of Hollenbach v. Hollenbach, 181 Ky. 262, which was the first opinion dealing with appeals from an order of the board of workmen’s compensation which came to
Following this general rule we held in Nelson v. Ky. River Stone and Sand Co., 182 Ky. 317, all awards or orders of the workmen’s compensation board are, in the absence of fraud, conclusive and binding as to all questions of fact, the court being forbidden by statute to review the finding of fact made by the board if that finding is such as to support the order of the board, there being nothing in the record to indicate that the finding of fact or the order was the result of fraud or misconduct on the part of any person administering or assisting in the administration of the act.
The finding of fact by the board in effect is th^t appellee McDermott had a diseased eye before and at the time he went to work for the Andrews Steel Company, and as time passed the affected eye grew worse until the vision of the eye was wholly lost; that the loss of the sight of the left eye of appellee McDermott was not the result of traumatic accidental injury. There is some evidence in the record to support this finding. In such cases courts must accept the finding of fact as true, and can only review the law of the case as applied to the facts as found ,by the board. Obviously, if the loss of the sight of the left eye of appellee McDermott was the result of a diseased condition of that organ existing at the time he began to work at the steel mills, it could not have resulted from 1 ‘ accident arising out of and in the course of his employment” within the meaning of the act and the board properly refused him compensation.
- The trial court erred in attempting to review the facts, and from this mistake came the erroneous judgment remanding the case to the board for reconsideration and the allowance of compensation to McDermott. There is some evidence in the record to support the finding of the
Judgment reversed with directions to dismiss the petition.
