
    Ajax Coal Co. et al. v. Stanfill.
    February 13, 1951.
    S. M. Ward, Judge.
    
      Craft & Stanfill for appellant.
    Don A. Ward for appellee.
   Judge Milliken

Reversing.

This is an appeal from a judgment of the Perry Circuit Court remanding the case to the Workmen’s Compensation Board with directions to enter an award allowing the plaintiff compensation for total and permanent disability.

The plaintiff, Elmer Stanfill, received a severe injury to his right foot on May 31, 1948, and was hospitalized for forty-six days. He was paid the maximum amount a week for temporary total disability from the time of the accident to June 6, 1949. Bis employer also expended the maximum allowance for medical fees. A referee of the Board found Mr. Stanfill had suffered permanent and total disability, but upon a Full Board Review the Board agreed with the referee in all respects except as to the extent of the disability; the Board found that the plaintiff had suffered a permanent partial disability-of 37% to the body as a whole, and applied KRS 342.-105(18) covering the loss of a foot as its means of gauging the extent of the injury. The foot had not been amputated.

Mr. Stanfill testified that he was fifty-three years of age at the time of the accident and, ■ at the time of his testimony nearly fifteen months after the accident, he stated that he had been unable to work on account of the pain in his foot; that he had attempted to do a little gardening, to shovel dirt and to milk a cow, and those were about the only things he had done since he was injured. He had the equivalent of a Fourth Grade education, and had been employed by tbe defendant company for twenty-seven years in various capacities, and at the' time of bis injury was tipple foreman. Most of tbe facts were stipulated, and tbe only other evidence offered was that of a physician who testified in behalf of tbe plaintiff and an orthopedic specialist of Louisville who examined the plaintiff and testified on behalf of tbe employer. The plaintiff’s physician testified that, in bis opinion, tbe plaintiff was totally disabled unless -bis right foot was amputated. On tbe other band, the physician who testified in behalf of the employer and who examined tbe plaintiff eight months after tbe accident agreed substantially with tbe medical findings of tbe plaintiff’s physician, yet concluded that tbe plaintiff bad suffered only a 25% permanent partial disability to tbe foot. He believed that 75% of the usefulness of the foot would be recovered if tbe plaintiff would attempt to use it. .

’.'.'In reaching its conclusion, tbe Full Board appar-' ently decided to treat tbe plaintiff’s injury as if it were equivalent to tbe complete loss of a foot. The opinion on Full Board Review states: “Had this been done (tbe foot amputated) plaintiff would have recovered only for tbe loss of a foot as was held in the case of Marshall v. Octavia J. Coal Mining Co., 252 Ky. 460, 67. S. W. 2d 697. ’ ’ The plaintiff was awarded compensation on tbe basis of 37% permanent partial disability to tbe body as a whole under KRS 342.110, which was nearly equivalent to tbe loss of a foot under KRS 342.105(18). This was a compromise between tbe conflicting conclusions of tbe medical witnesses. Tbe evaluation of disability is perhaps the most difficult part of the Board’s work, and if tbe plaintiff’s condition has deteriorated since tbe finding of tbe Board be may request it to reopen tbe case.

From tbe evidence offered different conclusions as to tbe extent and duration of tbe disability could be reached,' but so long as the Board has based its findings on competent evidence it is not within tbe province of the courts to review tbe findings of tbe Board or to direct tbe Board to make any specific finding of fact. Marion v. Frank R. Messers & Sons, 306 Ky. 743, 209 S. W. 2d 321.

Wherefore the judgment of the trial court is reversed and the opinion of the Full Board Review is sustained.  