Copenhaver v. Sykes

• Court: Kansas Supreme Court
• Writing for the Court: WEDELL, Justice.
• Citation: Copenhaver v. Sykes, 160 Kan. 238, 160 P.2d 235 (Kan. 1945)
• Decision Date: 07 July 1945
• Docket Number: 36373.
• Parties: COPENHAVER v. SYKES et al.

160 P.2d 235

160 Kan. 238

COPENHAVER v. SYKES et al.

No. 36373.

Supreme Court of Kansas

July 7, 1945

Appeal from District Court, Rice County; Robert Garvin, Judge.

Appeal from District Court, Rice County; Robert Garvin, Judge.

Proceeding under the Workmen's Compensation Act by Bernard Charles Copenhaver, claimant, opposed by Charles Sykes, trustee of C E. Skiles, individually, and C. E. Skiles and another copartners as Hinerman & Skiles, bankrupt, employer, and General Accident Fire & Life Assurance Corporation, Limited insurance carrier. From a judgment awarding compensation, the employer and insurance carrier appeal.

Syllabus by the Court.

1. Our Compensation Law prescribes no standard of health for workmen and it is well established that accidental injuries are compensable where the accident only serves to aggravate or accentuate an existing physical condition.

2. In this state, unlike some states, it is not essential that duration of disability or incapacity of an injured workman be established by medical testimony.

3. The question whether failure of a workman to submit to surgery as a possible cure for an ailment precludes recovery of compensation does not appear to have been presented to the district court, was not ruled on, and is not properly here for review.

4. The record in a workmen's compensation case examined, and held: If there was not substantial testimony to support a finding the workman sustained an injury to his back which independently and alone incapacitated him to perform his regular duties as a pumper on an oil lease, there was ample testimony the injury aggravated and accentuated a previous back ailment to such an extent as to disable him totally during the period in controversy, to perform the work he previously had done acceptably.

Glenn Porter, of Wichita (Getto McDonald, Dwight S. Wallace, and William Tinker, all of Wichita, on the brief), for appellants.

Bronce Jackson, of Lyons (Dorothy M. Jackson, of Lyons, on the brief), for appellee.

WEDELL Justice.

This is an appeal by respondent and its insurance carrier from an award in a workmen's compensation case.

The workman was a pumper on appellants' oil lease. On May 6, 1941, while cranking an Allis Chalmers engine in the course of employment, the engine kicked and threw appellee back about three and one-half to four feet against a steel tool box. His back struck the box. The top of the box was approximately three and one-half to four feet high. Compensation was paid until September 11, 1942. The trial court found appellee continued to be totally disabled from September 11, 1942, until June 30, 1944, the date of the last hearing before the commissioner and made an award covering that period. No testimony with respect to disability beyond June 30, 1944, was introduced and no award for further disability was made.

Appellants contend there is no substantial evidence to support the trial court's finding of disability after September 11, 1942. With respect to that contention we find it necessary to say again what we repeatedly have said heretofore, namely, that this court does not determine the credibility of witnesses or the weight of their testimony. Those are solely functions of the trial court with which we have no concern. It is also elementary that as an appellate court we are concerned only with evidence which supports or tends to support findings of a trial court and not with contrary evidence. Was there substantial evidence to support the finding made?

It is unnecessary to narrate all the testimony which supports or tends to support the finding. Some of that evidence, in substance, was:

Appellee suffered pain immediately after the accident but did not think much about the injury until three days later when he first consulted Dr. R. E. Bula of Lyons; he taped his back; some ten days later he removed the tape and put his back in a support, a belt; Dr. Bula referred appellee to Dr. Charles Rombold of Wichita; appellee quit his work about May 15 or 20, 1942, and since that time has performed no manual labor; following the services by Dr. Bula appellee had some light treatments administered to his back and legs by another doctor; later and in July and August, 1941, he was referred by the insurance carrier to Dr. Rombold; that doctor then told him, 'if it's what I think it is you might have to have an operation'; that statement was reported by appellee to his employer; appellee was treated by Dr. Rombold from June, 1941, until September 11, 1942; appellee thereafter sought the counsel and advice of other doctors including Dr. Frank D. Dickson of Kansas City, Missouri, and Dr. L. M. Eaton of the Mayo Clinic; according to appellee none of the doctors advised him personally and definitely what his trouble was; surgery was recommended by some of the doctors; others recommended exploratory surgery as a means of ascertaining the ailment; appellee was without financial means to obtain medical or surgical treatment; he had paid for diathermy treatments to his back and legs as the insurance company did not assume the expenses.

The testimony, in substance, further disclosed:

The pain in appellee's back and legs and the stiffness in his back continued until and including the date of the last hearing on June 30, 1944; his right leg was numb; the pain centered in his back about four or five inches above his hips; previous to the accident he had been strong; it was true that for a period of four or five years prior to the accident he would get a lame back occasionally after having done some especially heavy work but the pain, prior to the accident, lasted only a few hours; he now suffered pain and a burning in the middle of his back at all times; he also continued to suffer pain in both legs but the pain was more acute in the right leg; he worked for the State Corporation Commission from July or August, 1941, to about April, 1942, making out sales reports but his back also continued to bother him during that employment; he tried to obtain other employment but was rejected by reason of his inability to stoop and to do hard work; he had been deferred to a classification of 4-F in the draft by reason of his physical condition.

The doctors had made various examinations including X-rays in an effort to ascertain the cause of appellee's disability. All of the doctors agreed he was suffering pain in his back and legs, especially in his back and right leg. The record contains a letter dated June 8, 1943, written by Dr. Bula concerning the examination he made on May 6, 1941, and a call he made on appellee later. The pertinent portion of that letter reads:

'Examination at this time showed Contusions and Abrasions in the right lumbar region of the back. There was spasm of the muscles in the right lumbar region on motion in all directions. X-ray was negative for fracture and urinanlysis was also negative. [Our emphasis.]

'The pain persisted, and on May 20, 1941, h

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