Crow v. City of Wichita

• Decision Date: 14 May 1977
• Docket Number: No. 48476,48476
• Citation: 222 Kan. 322,566 P.2d 1
• Parties: Cleveland CROW, Appellant, v. CITY OF WICHITA, Appellee.
• Court: Kansas Supreme Court

Page 1

566 P.2d 1

222 Kan. 322

Cleveland CROW, Appellant, v. CITY OF WICHITA, Appellee.

No. 48476.

Supreme Court of Kansas.

May 14, 1977.

Syllabus by the Court

1. The judgment of a trial court is to be upheld, if it is correct, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.

2. K.S.A. 44-512a (now 1976 Supp.) is remedial in character and supplemental to remedies provided in the Workmen's Compensation Act. It does not operate to impair vested rights of either the workman or the employer. A workman's cause of action does not accrue under the statute until an act of default by the employer has occurred as provided therein.

3. Amendments to K.S.A. 44-512a (now 1976 Supp.) apply to an action thereunder which is brought after the effective date of such amendments.

4. Amendments to the workmen's compensation act which are merely procedural or remedial in nature, and which do not prejudicially affect substantive rights of the parties, apply to pending cases. (Following, Eakes v. Hoffman-LaRoche, Inc., 220 Kan. 565, 552 P.2d 998, Syl. 2.)

5. Under the circumstances related in the opinion consolidation of an action under K.S.A. 44-512a (now 1976 Supp.) with an appeal from a director's award in a workmen's compensation proceeding did not constitute prejudicial error.

6. Rules relating to the consideration of evidence by the Supreme Court on appeal from a judgment of the district court in a workmen's compensation case are considered and applied.

7. In an appeal from judgments rendered in proceedings wherein an action under K.S.A. 44-512a (now 1976 Supp.) was consolidated with an appeal from a director's award, the record is examined and it is held : (1) The trial court did not err in applying amendments enacted in 1974 to an action brought under K.S.A. 44-512a (now 1976 Supp.) after the effective date of such amendments and (2) there was substantial competent evidence to support the trial court's judgment rendered in respondent's appeal from the award of the director.

James S. Phillips, Sr., Phillips & Phillips, Chartered, Wichita, argued the cause and James S. Phillips, Jr., Wichita, was with him on the brief for appellant.

Stephen J. Jones, Wichita, argued the cause, and John Dekker, and H. E. Jones, Wichita, were with him on the brief for the City of Wichita, appellee.

KAUL, Justice:

This is an appeal by the claimant-appellant, Cleveland Crow, from adverse determinations in two interrelated workmen's compensation actions which were consolidated for trial by the court below. The first case, docketed in the district court, was an appeal by the respondent-appellee, city, a self-insurer under our Workmen's Compensation Act (K.S.A. 44-501, et seq. (now 1976 Supp.)), from an award of the director granting claimant a fifty percent permanent partial general bodily disability. The trial court reversed that award finding there was no permanent disability which arose out of and in the course of the claimant's employment. The second case filed in the court below, was an action by claimant under K.S.A. 44-512a (now 1976 Supp.), for the city's failure to pay compensation within twenty days after written demand for the same had been made by claimant.

The claimant was employed by respondent city as a helper on a sanitation truck, a job he had held for over twenty years. On June 10, 1974, claimant accompanied the truck driver, Raymond Newell, to the City Ice Dock where they were to pick up trash. Newell backed the truck up to a concrete loading dock, whereupon claimant climbed on the dock and dumped several trash barrels into a hopper at the rear of the truck. Newell testified he then drove the truck up an incline and stopped it a short distance away from the loading dock so that some trash, which had fallen at the base of the dock, could be picked up. While claimant was picking trash off the ground, Newell's foot slipped off the brake and the truck rolled back, pinning claimant against the concrete loading dock. Hearing the claimant yell, Newell pulled the truck forward whereupon claimant fell to the ground. He was rendered unconscious from the accident and fall. Newell testified he told a man at the ice dock to call an ambulance for the claimant and then reported the accident to the city sanitation office.

Claimant was taken to St. Francis Hospital where he was examined in the emergency room by Dr. George J. Farha, a surgeon. Dr. Farha testified the claimant had severe abdominal pain and appeared to be in some type of shock. Exploratory surgery was performed by Dr. Farha because of suspected bleeding in the abdomen as a result of the accident. Dr. Farha testified in pertinent part:

". . . We explored him and found a tear in the mesentery. Because of that we had to resect a foot or so of the small intestine. This should have no effect on his function or physiological health.

"Once the incision has healed, after two months or so, he should be able to go back to heavy lifting. A similar job, if there are no other injuries.

"I did not see Mr. Crow after he was released from the hospital on June 25, 1974. We usually release people to return to work 9 or 10 weeks after surgery if they have done well. I don't see them again.

"Mr. Crow was to see Dr. Kneidel for disability of the hip. I released him to return to work on October 10, 1974. My release to return to work would go along with Dr. Kneidel. Usually, people with abdominal surgery who had an excellent course in the hospital for two weeks, they are allowed to go to work.

"My abdominal surgery would have no effect on a patient's back."

Dr. Thomas W. Kneidel, a Board Certified Orthopedic Surgeon, also examined claimant in the emergency room. Concerning this examination, Dr. Kneidel testified:

"I first saw Mr. Crow on June 10, 1974 in the emergency room of St. Francis Hospital. I again saw him on June 11, 1974. Mr. Crow's complaints at that time, aside from soreness from abdominal surgery, were tenderness around the iliac crest or the waistline area on the left side of the hip and some pain with motion at the hip joint. There was no neurologic deficit in the left leg, no evidence that a nerve was pinched or not functioning.

"A series of x-rays were taken which showed a fracture of the wing of the ilium on the blade of the iliac bone. It extended from the upper margin where the stomach muscles attach through the wing of the ilium to the greater sciatic notch. There was no involvement of the hip joint.

"I felt this was an undisplaced non-weight bearing fracture and it could be treated by keeping the patient off weight-bearing.

"I saw Mr. Crow each day in the hospital, and subsequently saw him on July 10, 1974. At that time he had complaints of some pain around the left hip area. Examination revealed a good range of motion in his hip joint and no specific tenderness over the fracture area. X-rays show progressive healing and satisfactory alignment of the fracture."

After claimant was released from the hospital on June 25, 1974, Dr. Kneidel continued to see claimant on a monthly basis. Concerning an examination of claimant in August of 1974 Dr. Kneidel testified:

"Mr. Crow did not have any complaints concerning his lower back on August 6, 1974.

"X-rays taken in August show market degenerative changes in the lower lumbar spine, including large spur formations and calcifications outside the disc spaces at the L3-4, L4-5 and L5-S1 level. These are degenerative arthritic changes, wear and tear type of arthritis. These degenerative changes antedated the accident and, although Mr. Crow was a very poor historian, he never made any complaints about his back."

Dr. Kneidel's final examination of claimant was on October 3, 1974, about which he testified:

". . . Upon physical examination the patient was able to walk without support, had a full range of motion in his hip and x-rays taken at the time showed complete healing of the fracture. I released Mr. Crow to return to regular work."

Dr. Kneidel further testified concerning his final examination of claimant that insofar as objective physical findings were concerned, claimant should have been able to return to work on a trash hauler and that the accident did not in any way diminish claimant's ability to perform the type of work that he was doing at the time of the accident. On cross-examination Dr. Kneidel admitted that an injury such as claimant's could have aggravated a preexisting condition, but he concluded his testimony by indicating that based on complaints received from claimant, physical findings made, history taken from claimant and treatment of him there was no evidence that he had suffered an injury to his lower back.

Claimant returned to work shortly after his October 1974 examination by Dr. Kneidel. Claimant and the truck driver, with whom he was working, testified that he was unable to do any lifting. Claimant testified that after several days of trying to work at his old job his supervisor advised him the city had no jobs he could perform and claimant was placed on an early retirement pension of the city's retirement plan.

Claimant went to see Dr. Daniel Thompson, a physician and surgeon who testified that he was certified by the Board of Family Practice, but had never had any orthopedic training. Dr. Thompson examined claimant and described his findings in these words:

"I saw Mr. Crow only one time, on November 12, 1974. He gave me a history of having been run over by a truck six or seven months prior to the time he was here. He stated that Dr. Farha did exploratory surgery for internal injuries. At the time he was here, he was complaining of pain in his back and pain in his left hip. He was here because he stated that he was unable to carry on his job and unable to lift barrels. He stated that he was unable to stoop over, that he had pain down his left leg when he did stoop, that there was some stiffness in the left leg and that his abdomen was...