Chinn v. Gay & Taylor, Inc.

• Decision Date: 06 March 1976
• Docket Number: No. 47923,47923
• Citation: 547 P.2d 751,219 Kan. 196
• Parties: Lynn S. Chinn, Appellee, v. Gay & Taylor, Inc., and Travelers Insurance Company, Appellants.
• Court: Kansas Supreme Court

Page 751

547 P.2d 751

219 Kan. 196

Lynn S. Chinn, Appellee, v. Gay & Taylor, Inc., and Travelers Insurance Company, Appellants.

No. 47923.

Supreme Court of Kansas.

March 6, 1976.

Syllabus by the Court

1. When a primary injury under the workmen's compensation act is shown to have arisen out of the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.

2. Compensation is allowable for disability from a second and distinct injury to a workman where it can be traced to a covered accident through a primary injury. The fact that the primary injury is scheduled does not bar compensation for general bodily disability where a new, distinct, and disabling injury is a direct and natural result of the primary injury.

3. The existence, nature and extent of the disability of an injured workman is a question of fact. Medical testimony is not essential to the establishment of these facts and it is not necessary that a workman's disability be given a medical name or label.

4. The risk of employing a workman with a preexisting disability is upon the employer, and when a workman who is not in sound health is accepted for employment and a subsequent industrial accident suffered by him aggravates or accelerates the condition, resulting in disability, he is entitled to be fully compensated for the resultant disability.

5. In a workmen's compensation proceeding in which claimant was awarded benefits for permanent partial bodily disability which developed as a result of a knee injury, the record on appeal is examined and no error is found in the award made for disability resulting from a combination of scheduled and unscheduled injuries.

David R. Hills, Kansas City, argued the cause, and N. Jack Brown, Kansas City, was with him on the brief for appellants.

Thomas M. Van Cleave, Jr., of McAnany, Van Cleave & Phillips, Kansas City, argued the cause and was on the brief for appellee.

HARMAN, Commissioner:

This is a workmen's compensating proceeding in which claimant was awarded benefits for permanent partial bodily disability which developed as a result of a knee injury.

The claimant, Lynn S. Chinn, fifty years of age, was employed by respondent, Gay & Taylor, Inc., as a traveling sales executive. His job entailed travel by automobile in all states west and three east of the Mississippi river. On December 22, 1972, he twisted and injured his left knee while stepping out of a company car to attend a company business luncheon. At that time he did not injure his back of any other part of his body. About twenty years before this accident he had injured the same knee and had undergone surgery on it at that time consisting of removal of a medial cartilage.

After the December 22nd injury claimant experienced constant knee pain. He continued working but walked with a limp. In early January, 1973, he noticed a pulling sensation in his back which gradually became painful. Prior to the December 22nd incident he had had no back pain. On March 3, 1973, he first sought medical treatment for his knee. He had developed pain in his left heel and arch on walking. On April 24, 1973, claimant underwent surgery on his knee. A large free detached osteocartilaginous body, degenerated cartilage beneath the knee cap and bony spurs were removed from the knee. He underwent hospitalization, physical therapy, used crutches and was treated on a monthly basis until April, 1974, and again was treated in July, 1974. He returned to his job in June, 1973. In September, 1973, he complained to his doctor of a generalized tenderness in his back and pain when he moved his back. At the time of the hearing he was still having trouble with his left knee and leg which caused him to limp, which became more noticeable after sitting down or driving two hundred miles. Occasionally he would have a catch in his left knee which would cause him almost to lose his balance. He continued to have low back pain.

Claimant's treating physician and the only medical witness in the case was Dr. Harry B. Overesch, a qualified orthopedic surgeon who had operated claimant's knee twenty years earlier. He testified that claimant's back pain was related to his December 22nd accident because his limp altered his walking gait and the resultant postural changes caused low back pain; there was no evidence of actual injury to the back; the back pain was a combination of referred pain from the knee and pain caused by the change in posture and walking gait; the change of gait and positional difficulty in claimant's back resulted from his knee injury; there was no evidence of nerve root irritation or compression in the back; the alteration of gait and back mechanics came from efforts to relieve the knee pain.

It was the doctor's opinion claimant had a preexisting permanent partial disability to his left leg of about 20 to 25% as a result of his 1952 injury and surgery; claimant sustained a 30 to 35% permanent partial disability to the left knee attributable to the December 22, 1972, injury with some secondary involvement to the low back with a permanent partial disability to the back of less than 5%; some aggravation of the preexisting disability resulted from this later accident so there was a total disability to the left knee of between 55 and 60%; all the foregoing conditions in claimant's leg, knee and back resulted in a permanent impairment in terms of the whole man or bodily disability of between 22 ad 27%. In reaching this figure the doctor first determined claimant's general bodily disability caused by the back pain.

The workmen's compensation examiner, citing and relying on Jackson v. Stevens Well Service, 208 Kan. 637, 493 P.2d 264, found that claimant's primary injury was to his left knee and as a direct result of that condition his back was injured distinct and apart from the knee and he had a 20% permanent partial disability to the body as a whole. Compensation was awarded accordingly. Upon review, and in turn upon appeal, the director of workmen's compensation and the district court sustained and adopted the examiner's findings and award. Respondent and its insurance carrier have appealed.

Appellants contend an award for disability to the body should not have been entered and compensation should have been limited to the left leg and computed as a scheduled injury under K.S.A. 44-510d. They urge the situation is similar to that presented in Cornell v. Cities Service Gas Co., 138 Kan. 607, 27 P.2d 228, and should be governed by a statement made there. In that case claimant accidentally fractured both bones in his right leg immediately above the ankle. He made claim for compensation and after hearing received an award based on 60% loss of use of a foot under the scheduled injury statute. No appeal was taken from this award. Payments of compensation were made and accepted but prior to receipt of the last payment claimant made application for modification and review of the award. After hearing, both the compensation commissioner and the trial court refused to modify. The evidence showed that one of claimant's fractured bones did not set quite straight with the result claimant developed a slight limp which threw his body somewhat out of alignment and made an unnatural use or strain upon the muscles of the leg and back. Characterizing this evidence as a "slender thread" upon which to claim partial bodily disability this court affirmed the denial action upon two separate reasons: (1) The findings and award made by the compensation commissioner at the first hearing--that the injury was a scheduled one and not to the body as a whole--was a final adjudication of those questions and not open to review on a petition to modify; and (2) the findings in the present proceeding that there had been no material change since the former hearing with respect to the loss by claimant of the use of the foot were supported by substantial, competent evidence. The court further added this comment:

"... Fundamentally, almost any scheduled injury under our workmen's compensation law produces some--perhaps slight, although it may be substantial--unnatural result upon normal bodily functions. If it were to be held that all such results constituted general partial disability under the statute there would be little or no purpose in having scheduled injuries...." (p. 609, 27 P.2d p. 229.)

The precedential value of this comment in Cornell has been largely...