197 S.W.2d 254 | Ky. Ct. App. | 1946
Affirming in part, reversing in part.
Walter Moock filed his application with the Workmen's Compensation Board, hereafter referred to as the Board, for total permanent disability which he claimed to have suffered in an accident on August 31, 1943, by falling down some steps while painting a stairway. The only issue before the Board was one of fact as to whether the claimant had sustained a disability as a result of the accident, and the extent thereof.
The Board found against the claimant, Moock, dismissed his application and he petitioned the circuit *223 court to review that finding. This appeal is prosecuted from the judgment of the Jefferson Circuit Court wherein it ordered "that a judgment be entered setting aside the findings of said Board and the case is remanded back to the Compensation Board with instructions to enter an award in accord with the facts and the evidence in the record herein."
It is insisted by appellant that there was competent evidence of probative value in the record to support the Board's finding, and that in the absence of fraud or mistake such a finding will not be disturbed by the courts. While appellee contends that the Board made no finding of fact or ruling of law as is required by KRS
It is provided in KRS
"The alleged trauma, occurring on the second day after employment started, and plaintiff's refusal to permit testimony of his former physical condition, and also at least two former recent claims before this Board, at least, casts such cloud on the plaintiff's claim of injury, as to definitely require convincing proof, of injury, which Referee thinks has not been done in this case.
"Therefore, it is ordered, that this case, be, and the same is now dismissed by the Board, this November 20, 1945."
Appellant argues that this order of the Board in effect contained a separate finding of fact and a ruling of law, and had the Board listed that part of its order which recites that there was no convincing proof of injury under the formal heading "Finding of Fact," and then put that part which dismissed the claim under the heading "Ruling of Law," the requirement of KRS
The order of the Board reviewed in the Yeager case is practically the same as the one made by the Board in the instant case, both reciting that the claimant had failed to establish by convincing proof that the injury was the result of an accident. In Consolidation Coal Co. v. Fields,
The circuit court was correct in remanding the case to the Board, but the order went too far when it instructed the Board "to enter an award in accord with the facts and the evidence in the record." As was said in Tackett v. Eastern Coal Corp.,
It is provided in KRS
Dr. Jelsma had examined claimant, but when the latter refused to consent for the Doctor to testify, he declined to do so and a motion was sustained by the Board to require him to testify. However, the Doctor still refused to testify, thinking that he was not amply protected by the Board's order.
The Board was correct in ordering Dr. Jelsma to testify since sec. 606, subsec. 4, of the Civil Code of Practice only excepts attorneys, clergymen and priests from testifying concerning professional confidences, without the consent of their clients or parishioners, and does not apply to communications between physicians or surgeons and patients. At common law neither the physician and surgeon nor the patient is exempt from testifying as to communications between themselves. 28 Rawle C. L. sec. 121, p. 532; 70 C. J. sec. 234, p. 178; Louisville N. R. Co. v. Crockett's Adm'x,
The judgment is affirmed in part and reversed in part with directions that the case be remanded to the Board which will direct Dr. Jelsma to testify, and then the Board will report separately its findings of fact and rulings of law.