Anderson v. Kinsley Sand & Gravel, Inc., 48371

• Decision Date: 11 December 1976
• Docket Number: No. 48371,48371
• Citation: 221 Kan. 191,558 P.2d 146
• Parties: Loyde ANDERSON, Appellant and Cross-Appellee, v. KINSLEY SAND & GRAVEL, INC., and St. Paul Insurance Company, Appellees and Cross-Appellants.
• Court: Kansas Supreme Court

Page 146

558 P.2d 146

221 Kan. 191

Loyde ANDERSON, Appellant and Cross-Appellee, v. KINSLEY SAND & GRAVEL, INC., and St. Paul Insurance Company Appellees and Cross-Appellants.

No. 48371.

Supreme Court of Kansas.

Dec. 11, 1976.

Syllabus by the Court

1. In a workmen's compensation claim based on a nonscheduled injury, the claimant may recover an award equal to the percentage of his functional disability even though there was no evidence introduced relating the functional disability to the work being performed by the claimant in his employment at the time of the injury.

2. Uncontradicted evidence which is not improbable or unreasonable cannot be disregarded unless shown to be untrustworthy, and is ordinarily regarded as conclusive.

3. The primary test used by courts in determining whether an employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor.

4. The record is examined in a workmen's compensation case and it is held: (1) The district court erred in failing to award claimant permanent partial disability, and (2) the district court did not err in finding an employer-employee relationship existed between the parties at the time of the injury.

Jack W. Shultz, of Shultz & Shultz, Chartered, Dodge City, argued the cause and was on the brief for appellant and cross-appellee.

Jerry M. Ward, of Ward & Berscheidt, Great Bend, argued the cause and was on the brief for appellees and cross-appellants.

OWSLEY, Justice.

Claimant in a workmen's compensation case was injured on October 24, 1972, when his sand truck ran off a road between Kinsley and Gray, Kansas. As his truck ran into the ditch and caught fire, sand in the box pushed the cab forward, pinning claimant. He felt a sharp pain in his left hip. By crawling through the windshield he escaped the burning truck. At the time of the accident claimant was hauling a load of sand for the respondent, Kinsley Sand & Gravel, Inc. As a result of the accident claimant suffered burns, superficial abrasions and injury to his lower left quadrant.

At a hearing before the workmen's compensation examiner, where it was stipulated that claimant sustained a personal injury claimant was found to have sustained temporary total disability and a twenty-five percent permanent partial disability, and was awarded compensation on that basis. This award was approved by the workmen's compensation director.

On appeal the issues were whether an employer-employee relationship existed between claimant and respondent at the time of the accident, and the nature and extent of disability. The district court found the employer-employee relationship did exist, but found claimant did not suffer permanent partial disability and denied recovery.

Claimant has appealed, claiming the district court's finding that he had no permanent partial disability is contrary to the law and the evidence. Respondent's cross-appeal asserts the finding by the district court that an employer-employee relationship existed at the time of claimant's injury is not supported by substantial competent evidence.

A search of the record fails to disclose any effort on the part of claimant to relate his injury to the type of work he was performing at the time the injury occurred. We must determine whether claimant is entitled to recover his functional disability when he has failed to relate the functional disability to work disability.

Charles F. McElhinney, M.D., testified that claimant was referred to him by Dr. McKim of Kinsley, who rendered emergency treatment; that he first saw claimant on October 24, 1972, and at that time he was complaining of pain in his chest and upper abdomen, in his left buttock, left hand and arm, and pain and numbness around his left eye; that examination revealed a large abrasion and loss of superficial tissue over the left buttock and lower left hip, first and second degree burns on the left buttock and left hand and arm, pain in the left hip with motion, as well as 'guarding and tenderness . . . and rebound' in the upper abdomen. Since claimant had been administered narcotics which failed to relax abdominal muscles, internal abdominal injury was suspected and an exploratory laparotomy was performed disclosing no major abdominal injury. X-rays of claimant's left hip and pelvis were negative.

Dr. McElhinney testified that at that time his major concern was possible internal injury; therefore, he did not focus his examination on the hip problem. During claimant's hospitalization he was at bed rest and hip pain was therefore minimal. After claimant was released from the hospital, he complained to the doctor of hip pain. The doctor noted complainant walked with a limp and had some atrophy of the left thigh muscle. He was still experiencing those problems when Dr. McElhinney released him on January 16, 1973, to return to work.

In a letter to claimant's counsel, dated February 9, 1973, Dr. McElhinney stated that at the time he released claimant from his care, claimant was no longer disabled and was able to return to work. On direct examination he indicated his statement meant the burns had healed, as had the abdominal incision, and it did not refer to claimant's hip and leg problems. He testified that if claimant was continuing to have pain, weakness and limitation of motion in the hip and leg, that would constitute a disability. He did not have an opinion as to the degree of disability.

Larry E. Stout, D.C., testified that he treated claimant from March 30, 1973, until September 17, 1974; that claimant complained of pain in the left hip radiating into the groin area, a burning sensation between the shoulder blades, and numbness in the left eye; and that complainant indicated the pain he experienced in his left leg while walking subsequent to the accident had lessened but would not go away. Dr. Stout conducted the Fabere-Patrick test of the left hip socket, which produced pain in the left hip. X-ray examination revealed a curvature in the dorsal spine, malformation in the articulation of the lumbosacral joints causing instability of the back, an increase in the lumbosacral angle, and a narrowing of the posterior of the disc space between the fifth lumbar vertebra and the sacrum, all of which the doctor attributed to a sprain and strain injury to the low back as a result of the accident. Treatment resulted in some improvement of claimant's condition, but he continued to experience pain, weakness and limitation of motion in the left hip and leg.

Dr. Stout determined claimant had fifteen percent permanent partial general bodily disability, preclding owrk such as carrying heavy objects or climbing, wich would aggravate the pain in the left leg and hip; that bending and squatting would also aggravate his condition; and that it was doubtful future treatment would improve the condition.

Claimant testified that he went to work as a punch press operator when Dr. McElhinney permitted him to do so. Later, he became a welder and was so employed at the time of the hearing. He testified he experienced pain and weakness in his left hip and leg in lifting heavy objects while he welded; that when he dressed and was standing on his left leg to get his right leg into his pants, he had to hold on to something to steady himself; that fast walking and running movements were restricted because his legs tired out; that he had trouble climbing and stepping up on to objects; and that he had to stop occasionally to pop his hip into place. Based on these facts, he estimated his disability at thirty percent.

Claimant's father-in-law testified he had observed claimant since the accident and claimant could not play golf or hunt as he did before the accident because he couldn't walk that far anymore. Weather also seemed to affect claimant's hip and leg, as there were times he limped worse than usual.

The record fails to disclose any evidence produced by respondent relative to claimant's injuries. The only evidence introduced by respondent related to the issue of whether claimant was an employee of respondent.

The primary purpose of the workmen's compensation act is to burden industry with the economic loss to a workman resulting from accidental injuries sustained by the workman in the course of his employment. (K.S.A. 44-501; Craig v. Electrolux Corporation, 212 Kan. 75, 510 P.2d 138; Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 358 P.2d 676.) To make such legislative intent effectual, the courts are directed to interpret the act liberally in favor of the injured worker. (Streff v. Goodyear Tire & Rubber Co., 211 Kan. 898, 508 P.2d 495; Chapman v. Victory Sand & Stone Co., 197 Kan. 377, 416 P.2d 754; Taylor v. Armour & Co., 186 Kan. 51, 348 P.2d 632.)

In construing the act, our decisions have held that the loss of earning power of the workman is the theoretical basis for allowance of compensation. (Gutierrez v. Harper Construction Co., 194 Kan. 287, 398 P.2d 278; Daugherty v. National Gypsum Co., 182 Kan. 197, 318 P.2d 1012.) We have repeatedly stated that the correct standard for determining loss in earning capacity is the extent to which a workman's ability has been impaired to procure in the open labor market and to perform and retain work of the same type and character he was able to perform before he was injured. (Reichuber v. Cook Well Servicing, 220 Kan.93, 551 P.2d 810; Davis v. Winchester Packing Co., 204 Kan. 215, 460 P.2d 617; Gray v. Beller, 199 Kan. 284, 428 P.2d 833; Mooney v. Harrison, 199 Kan. 162, 427 P.2d 457; Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P.2d 414...