Peabody Coal Company v. Powell

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351 S.W.2d 172 (1961)

PEABODY COAL COMPANY, Appellant, v. Marshall POWELL et al., Appellees.

Court of Appeals of Kentucky.

June 16, 1961.

Rehearing Denied December 15, 1961.

James Sampson, William A. Rice, Sampson & Rice, Harlan, for appellant.

J. Leonard Davis, Harlan, for appellees.

WILLIAMS, Judge.

This is an appeal from a judgment of the Harlan Circuit Court affirming an award of the Kentucky Workmen's Compensation Board allowing permanent and total disability benefits to appellee Marshall Powell as a result of silicosis. The appellee had worked for appellant Peabody Coal Company for many years until February 1958. Prior to that date appellee had complained of chest pains and shortness of breath. In October 1957 his trouble had been diagnosed as pulmonary fibrosis with pulmonary emphysema. The doctor who made that diagnosis did not advise appellee what was wrong with him at that time. On February 5, 1959, the appellee was examined *173 by Dr. Boyce E. Jones, who diagnosed silicosis. About two weeks later, on February 20, he filed his application before the Workmen's Compensation Board. The Board held as a fact that the appellee learned for the first time that he had silicosis when examined by Dr. Jones on February 5, 1959.

The sole issue in the case is notice. We have on this date decided in Mary Helen Coal Corporation v. Chitwood et al., Ky., 351 S.W.2d 167, that before notice is required to be given by the employee the following conditions must concur: (1) The employee has a disability from an occupational disease which impairs his capacity to perform his work; and (2) the employee knows or should know by the exercise of reasonable care and diligence that he is suffering from the disease.

The employee first learned he had silicosis on February 5, 1959, and filed his claim with the Workmen's Compensation Board approximately two weeks later. The filing of his claim within that time was sufficient notice to appellant.

Judgment affirmed.