Carter v. Koch Engineering

• Decision Date: 09 April 1987
• Docket Number: No. 59331,59331
• Parties: Charles L. CARTER, Appellee, v. KOCH ENGINEERING, Appellant, and Aetna Insurance Company, Insurance Carrier/Appellant.
• Court: Kansas Court of Appeals

Page 247

735 P.2d 247

12 Kan.App.2d 74

Charles L. CARTER, Appellee, v. KOCH ENGINEERING, Appellant, and Aetna Insurance Company, Insurance Carrier/Appellant.

No. 59331.

Court of Appeals of Kansas.

April 9, 1987.

Review Denied May 15, 1987.

Syllabus by the Court

1. K.S.A. 44-510d(b) allows the Workers' Compensation Director "in proper cases" to give an employee "additional compensation" for the "actual healing period."

2. K.S.A. 44-510d(b) gives the director discretion to award healing period compensation for scheduled injuries within the limits prescribed any time the employee is unemployed while recovering from the injury.

3. The purpose of the healing period under K.S.A. 44-510d(b) is to allow, to a limited extent, additional compensation for a delay in return to work.

4. When misconduct of a worker involves a prohibited overstepping of the boundaries defining the ultimate work to be done by the claimant, the prohibited act is outside the course of employment. But when misconduct involves a violation of regulations or prohibitions relating to the method of accomplishing that ultimate work, the act remains within the course of employment. Hoover v. Ehrsam Company, 218 Kan. 662, 666, 544 P.2d 1366 (1976).

5. Violation, alone, of instructions from an employer is not enough to render the employee's action "willful" as a matter of law under K.S.A. 44-501(d).

6. For a violation of instructions to be "willful" under K.S.A. 44-501(d), it must include "the element of intractableness, the headstrong disposition to act by the rule of contradiction." Bersch v. Morris & Co., 106 Kan. 800, 804, 189 P. 934 (1920).

7. Willfulness of the employee's acts is a question to be determined by the factfinder.

John L. Carmichael of Turner and Boisseau, Chartered, Wichita, for appellants.

Christine M. Tamburini and Edward J. Hund of Focht, Hughey & Hund, Wichita, for appellee.

Before DAVIS, P.J., and BRISCOE and BRAZIL, JJ.

BRAZIL, Judge:

Koch Engineering, Inc., and its insurance carrier, Aetna Insurance Company, both of which will be referred to as Koch, appeal the workers' compensation award made to an employee, Charles L. Carter.

Carter was working for Koch on August 16, 1983, operating a punch press when his right hand was crushed by the cutting dies on the machine. Carter had run such machines for Koch for six years prior to the accident and had never been disciplined for a safety violation. Material moving through the press would occasionally jam and the operator would need to free it to continue production.

Koch had certain procedures it taught machine operators to follow when a jam occurred:

(1) Turn off the power to the press;

(2) Slip a thin metal rod under the guard at the end of the press and try to free the material;

(3) Use pincer pliers to grab the material and try to free it;

(4) Remove the front of the guard that surrounds the dies in the compression area of the press and insert a set-up block to prevent the press from closing;

(5) Try again to move material with rod or pincer pliers;

(6) Contact foreman if set-up block, pliers, and rod are not available.

On August 16 Carter tried to clear a jam. He did not shut off the power. He tried to force the material through by hand, but had no luck. Carter opened the guard, exposing the cutting area, and tried to use a "little stick" he had found. He moved a counter that told the press when to cut the material so he would have some leeway before it cut again and then freed the material with his hand. Unfortunately, the freed material moved on through the press so quickly the dies compressed before Carter could remove his hand and it was crushed. Carter had looked for a set-up block but none was located near the press at the time.

Carter filed a workers' compensation claim on October 25, 1984. Koch alleged Carter was not entitled to compensation because he willfully failed to follow safety procedures. The administrative law judge (ALJ) found that Carter's failure to turn off the press and to find and use a set-up block was willful and, under K.S.A. 44-501(d), barred him from compensation. On appeal, the Workers' Compensation Director reversed, finding Carter had not acted willfully as that term is used in K.S.A. 44-501(d), and that he was entitled to compensation based upon 65% loss of use of his right forearm. The director also granted Carter compensation for a fifteen-week healing period. Koch appealed to the district court; it found Carter had lost 80% of the use of his right forearm and Koch had not met its burden under K.S.A. 44-501(d) to prove Carter had willfully failed to use safety devices. The court also allowed the fifteen-week healing period.

Koch raises three issues on appeal. We will address its third issue as issues three and four.

1. DOES SUBSTANTIAL COMPETENT EVIDENCE IN THE RECORD SUPPORT THE DISTRICT COURT'S FINDING THAT CARTER HAD LOST 80% OF THE USE OF HIS FOREARM?

Koch makes two arguments under this issue. First, it notes that the only doctor to state an opinion about Carter's disability said he suffered a sixty-five percent impairment of function of the forearm. Koch then asserts, "The eighty-percent figure chosen by the District Court is without support, or mention, in the evidentiary record." This claim assumes that someone must mention the specific number chosen by the district court in order for its conclusion to be supported by the record. However, the doctor also described Carter's injury and loss of use of the hand and Carter testified about the post-injury functioning of his hand. "The existence, nature and extent of the disability of an injured workman is a question of fact [citations omitted]. Medical testimony is not essential to the establishment of these facts [citation omitted]; hence it is not necessary that a workman's disability be given a medical name or label." Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 201, 547 P.2d 751 (1976). Thus, the district court, as factfinder, was free to consider all the evidence and decide for itself the percent of disability Carter suffered. The number the doctor chose to apply was not controlling.

Koch next points to the court's use of the word "work" in the following paragraph of its opinion:

"[Carter] then can do 20% of the work he was doing with the injured arm and hand prior to his injury. He is therefore suffering from an 80% permanent partial disability to his right forearm."

The word "work," under Koch's argument, shows the court confused the loss of use test properly applicable in this case with the work disability test used in general body disability cases. Immediately before reaching the quoted conclusion, however, the court reviewed the testimony of Carter relating to the functioning of Carter's hand:

"The Claimant testified that he was right handed. He cannot button the left sleeve of a shirt. He cannot make a fist. He must use the little finger of his right hand as one would normally use a thumb in order to grasp small objects. He cannot close any finger with the thumb of his right hand--the pincher movement. His thumb of the right hand will not move at all. The skin on the right hand is 'real sensitive.'

"The doctor testified that the Claimant will develop arthritis requiring additional surgery in the future."

This is the evidence the court was considering when it found Carter could "do 20% of the work he was doing ... prior to his injury." By using the word "work," the court did not mean those activities Carter had performed at his job but all useful activities Carter could perform with his hand. The court would have reviewed Carter's job activities had it been applying the work disability test as Koch claims.

2. DID THE DISTRICT COURT HAVE AUTHORITY TO AWARD CARTER ADDITIONAL COMPENSATION FOR A HEALING PERIOD?

Carter was injured on August 16, 1983. He received temporary total compensation for 51.71 weeks after which he returned to work for Koch.

The schedule for Carter's injury provided for 200 weeks of compensation. Both the director and the district court computed the award by first adding a fifteen-week healing period to the scheduled 200 weeks and subtracting 51.71 weeks of temporary total disability for a net balance of 163.29 weeks.

K.S.A. 44-510d(b) provides:

"Whenever the employee is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the benefits provided in K.S.A. 44-510 ... and no additional compensation shall be allowable or payable for either temporary or permanent disability, except that the director may, in proper cases, allow additional compensation during the actual healing period, such period not to be more than ten percent (10%) of the total period allowed for the scheduled injury in question nor in any event for longer than fifteen (15) weeks. The return of the employee to his or her usual occupation shall terminate the healing period."

Koch argues that the legislature meant for the healing period to apply only when a worker has received all compensation available for a scheduled injury but is still unemployed. However, Koch says, where an employee returns to work as soon as his injury has healed sufficiently for him to work again, allowing a healing period would provide double compensation for some of the weeks while the employee was temporarily totally disabled since the healing period ends when the employee returns to his or her usual occupation. Koch also argues the legislature did not intend to permit this double compensation because the Workmen's Compensation Act is intended to compensate injured workers for their loss of earning capacity, not to provide them with a windfall.

It appears, though, that the statute may be interpreted just as easily to support the district court's award. The statute does allow the director "in proper cases" to give the worker "additional compensation" for "the actual healing period." K.S.A. 44-510d(b)...