Fitch v. Princess Coals, Inc.

STEINFELD, Judge. Appellant, Charles H. Fitch, age 48, had spent most of his working life in the coal mines. In 1966 he noticed shortness of breath and on March 28, 1968, he terminated his employment with appellee, Princess Coals, Inc. He filed a claim for benefits under the Workmen’s Compensation Law asserting that he had silicosis naming Princess Coals, Inc. and the Special Fund as defendants. The board dismissed the claim, from which order Fitch unsuccessfully appealed to circuit court and now appeals here. We affirm. Fifteen physicians testified, eleven for Fitch and four for the defendants. Opinions were expressed that he had and did not have silicosis. The board found that “ * * * Fitch does not have the occupational disease of silicosis”. Four days later Fitch filed a “Petition for Reconsideration”. The responses took issue with the contents but did not attack the petition on the basis that KRS 342.281 says “The board shall be limited in such review to the correction of errors patently appearing on the face of the award, order or decision * * Cf. Commonwealth v. Robertson, Ky., 447 S.W.2d 857 (1969). For the first time, by that “Petition for Reconsideration”, Fitch claimed he had contracted bronchitis which was caused to worsen into ■ chronic bronchitis all by his employment and that it is an occupational disease. He contended then and now contends only that the testimony of Dr. Allen L. Cornish, a physician appointed by the board pursuant to KRS 342.315, was not contradicted and established the fact that chronic bronchitis is an occupational disease. In Young v. Dale, Ky., 446 S.W.2d 288 (1969), we decided that under the definition expressed in KRS 342.316(1) chronic bronchitis was a disorder that the population generally was exposed to and that it was not an occupational disease. We reached the same conclusion in Branham v. Inland Steel Co., Ky., 446 S.W.2d 287 (1969), and in Ward v. Republic Steel Corp., Ky., 460 S.W.2d 348 (1970). Those cases are dispositive of the issue now before us, therefore, even if the board “ * * * merely decided whether * * * plaintiff had silicosis or pneumoconi-osis” is unimportant. The ailment from which Fitch suffers is not an occupational disease under the Act. The judgment is affirmed. All concur.