Cody v. Lewis & West Transit Mix

• Court: Kansas Supreme Court
• Writing for the Court: PARKER
• Citation: Cody v. Lewis & West Transit Mix, 351 P.2d 4, 186 Kan. 437 (Kan. 1960)
• Decision Date: 09 April 1960
• Docket Number: No. 41707,41707
• Parties: Harry Frank CODY, Appellee and Cross-Appellant, v. LEWIS & WEST TRANSIT MIX (Construction Co.), U. S. Fidelity & Guaranty Company, Appellants and Cross-Appellees.

Page 4

351 P.2d 4

186 Kan. 437

Harry Frank CODY, Appellee and Cross-Appellant, v. LEWIS & WEST TRANSIT MIX (Construction Co.), U. S. Fidelity & Guaranty Company, Appellants and Cross-Appellees.

No. 41707.

Supreme Court of Kansas.

April 9, 1960.

Syllabus by the Court

1. Established rules relating to appellate consideration and review of judgments in workmen's compensation cases stated and applied.

2. The record in a proceeding under the workmen's compensation act examined, in the light of facts, conditions and circumstances set forth at length in the opinion, and held to disclose no error warranting a reversal of the judgment rendered by the district court.

Robert N. Partridge, Wichita, argued the cause, and W. A. Kahrs, Robert H. Nelson, Patrick F. Kelly, and H. W. Fanning, Wichita, were with him on the briefs for appellants and cross-appellees.

Fred R. Vieux, Augusta, argued the cause and was on the briefs for appellee and cross-appellant.

PARKER, Chief Justice.

This is a workmen's compensation case brought by Harry Frank Cody (hereinafter referred to as the claimant) against Lewis & West Transit Mix (Construction Co.) (hereinafter referred to as the respondent) and its insurance carrier, U. S. Fidelity & Guaranty Company.

The facts are complicated and must be detailed at length in order to insure a proper understanding of the appellate issues involved.

The Commissioner's findings disclose many of the essential facts. So far as here pertinent such findings read:

'The evidence disclosed that the claimant had injured his back on November 2, 1955, at which time Dr. H. O. Anderson, an orthopedic surgeon of Wichita, Kansas, had examined and treated him. He found a congenital defect in the claimant's lower back, second degree spondylolisthesis, which had been aggravated by the accident. Conservative treatment was started but the brace did not seem to give much relief, so surgery was performed on August 1, 1956, at which time a spinal fusion of the fourth lumbar, fifth lumbar and the first sacral vertebrae was done. The claimant was X-rayed on November 26, 1956, and there was some evidence of failure of fusion. It was not solid. Dr. Anderson estimated at that time if the fusion became solid that the claimant would have a 10 to 15 percent disability. If it did not become solid, his disability would be 25 to 30 percent. The claimant was told by Dr. Anderson to stay on light work.

'On December 10, 1956, the claimant settled his compensation claim [against Badger Materials, Inc.,] at which time he stated that he knew that Dr. Anderson had told him he was not conpletely well, but he, the claimant, stated that it was knitting back good and he was ready to go back to light work. This settlement was based on a 12 1/2 percent general bodily disability.

'The evidence disclosed that following this settlement the claimant did not work much, if any, until the summer or early fall of 1957 when he went to work at El Dorado, Kansas, helping build a schoolhouse. He pushed wheelbarrows cement mud, blocks and bricks for about two months. Then he went to work for the respondent and he worked for the respondent digging ditches, some of which were 4 to 9 feet deep. He dug out rocks weighing as much as 80 to 90 pounds and threw them out of the ditches. He also helped lay 4 inch pipe, sections of which it took 5 to 7 men to lift. The claimant stated that he had no trouble at all with his back during this time. * * * On January 30, 1958, he was operating a piece of equipment weighing between 90 to 120 pounds called a 'pavement breaker', breaking up concrete in a bridge. The bridge had been partly demolished and he was standing on a sloping portion of the concrete operating the 'breaker', and it went through the concrete and it stuck. The claimant jerked on it to pull it loose and, as he stated it, it 'tore my back up again.' * * * but there was apparently no question but that he hurt his back. He was unable to work the following day, and had not worked since. He did receive treatment from several doctors, all of whom agree that the claimant has a disability ranging from 25 to 35 percent by reason of his back condition.

'The medical evidence disclosed that the operation of 1956 was not completely successful and that the fusion was never solid. It did heal with a substantial amount of scar tissue so that the claimant felt that his back was well and he was able to do heavy work, although he should not have been doing it, as any strain or additional injury to the area of fusion would reproduce symptoms of low back pain. The accident of January 30, 1958, apparently tore the scar tissue built up around the area of attempted fusion. * * *

'It is found, in addition to the stipulations of the parties, that the claimant suffered personal injury by accident on January 30, 1958, arising out of and in the course of his employment with the respondent, and suffered temporary total disability therefrom for a period of 25 weeks for which hd has been, or should have been, paid $850.00 (at $34 per week), to the week ending August 1, 1958.

'It is further found that there was a failure of fusion of the claimant's back from the first operation of August, 1956, and that the claimant had at least a 25 percent general bodily disability as a result of the accident of 1956, and which he had at the time of his accident on January 30, 1958. By reason of the accident of January 30, 1958, claimant's disability was increased to 35 percent. It is, therefore, found that claimant suffered a 10 percent temporary partial disability by reason of his accident of January 30, 1958, and is entitled to $5.14 per week until the further order of the Commissioner, but not to exceed 390 weeks. * * *

'The respondent shall provide additional medical care for surgery to claimant's back, if such is advisable and requested by the claimant, but not to exceed a total of $2,500.00.'

After making the foregoing findings, the Commissioner entered an award accordingly in favor of the claimant and against the respondent and its insurance carrier.

The claimant appealed from the Commissioner's award.

Thereafter the district court found that the Commissioner's findings should be adopted in certain particulars and made additional findings which, so far as here pertinent, read:

'* * * that the claimant's average weekly wage was $85.69; * * *

'That the claimant suffered personal injury by accident on January 30, 1958, arising out of and in the course of his employment with the respondent, and suffered temporary total disability therefrom for a period of 25 weeks for which he had been paid or should have been paid $850.00 (at $34.00 per week, to the week ending August 1, 1958).

'That there was a failure of fusion of the claimant's back from the first operation of August, 1956, and that the claimant had at least a 25% general bodily disability as a result of the accident of 1956, and which he had at the time of his accident on January 30, 1958; that by reason of the accident of January 30, 1958, claimant's disability was increased to 35%.'

Thereupon the court rendered a judgment which increased the award of the Commissioner. It reads:

'It Is Therefore Considered Ordered, Adjudged and Decreed that claimant should be and is hereby awarded judgment for 25 weeks temporary total disability at the rate of $34.00 per week, followed by 35% permanent partial disability for not exceeding the remaining 390 weeks, payable at the rate of $17.99 per week, subject to review and modification as provided by law, less the compensation heretofore paid.'

The claimant, the respondent and the insurance carrier have perfected appeals from the judgment to this court wherein they raise questions to which we shall now give our attention.

Boiled down and stripped of excess verbiage the burden of all contentions briefed and argued in this court by respondent with respect to error in the involved judgment is that in computing the amount of compensation to be paid to claimant, who was disabled and drew compensation for a prior accidental back injury under the provisions of the workmen's compensation act before the accident for which he now claims compensation, the trial court was required to apportion the compensation to be allowed for a back injury received in a subsequent accident, percentage wise, according to the proportion of disability caused by the respective injuries; and that as to the involved nonscheduled disability conceded to fall within the scope of G.S.1957 Supp. 44-510(3)(c)(24), now G.S.1959 Supp., 44-510(3)(c)(24), such method of computation is required by the provisions of G.S.1957 Supp., 44-511(4), now G.S.1959 Supp., 44-511(4), which read:

'If a workman has suffered a previous disability and receives a later injury his average earnings as a basis for compensation for such later injury shall be such amount as will reasonably represent his earning capacity at the time of the later injury in the employment in which he was working at such time.'

We find nothing in the provisions of the section of the statute just quoted (44-511) to uphold respondent's position on the point now under consideration. Indeed our view is that, when applied to existing facts and circumstances, such section clearly indicates that since claimant had suffered a previous disability, the trial court in determining average earnings, as a basis for compensation for his later injury, had the right and duty to fix such amount as would reasonably represent his earning capacity at the time of the later injury in the employment in which he was then working. It appears from the record that, based on evidence disclosing claimant was fully and satisfactorily performing all duties of the full time job to which he had been assigned at a weekly wage of $85.69, the trial court properly concluded such amount reasonably represented his earning capacity and used it as a basis for computing his compensation for the involved...