Demars v. Rickel Mfg. Corp.

• Court: Kansas Supreme Court
• Writing for the Court: FROMME
• Citation: Demars v. Rickel Mfg. Corp., 573 P.2d 1036, 223 Kan. 374 (Kan. 1978)
• Decision Date: 21 January 1978
• Docket Number: No. 48943,48943
• Parties: Kim DEMARS, Claimant, Appellant, v. RICKEL MANUFACTURING CORPORATION, Respondent, and Gulf Insurance Company, Insurance Carrier, and Kansas Workmen's Compensation Fund, Appellee.

Page 1036

573 P.2d 1036

223 Kan. 374

Kim DEMARS, Claimant, Appellant, v. RICKEL MANUFACTURING CORPORATION, Respondent and Gulf Insurance Company, Insurance Carrier and Kansas Workmen's Compensation Fund, Appellee.

No. 48943.

Supreme Court of Kansas.

Jan. 21, 1978.

Syllabus by the Court

1. The risk of employing a workman with a pre-existing disability is upon the employer, and when a workman who is not in sound health is accepted for employment and a subsequent industrial injury aggravates his condition, resulting in disability, he is entitled to be fully compensated for the resultant disability.

2. Injury to a worker by a strain sustained in performing the usual tasks in the usual manner may constitute an accident within the meaning of the worker's compensation act even though there be no outward and discernible force to which the resultant disability can be traced.

3. A disability whether occurring as a result of a single injury or a series of similar injuries, all occurring in the course of the employment, may be compensable.

4. Under the worker's compensation act any lesion in the physical structure of a worker causing harm may be a personal injury if it occurs under the stress of usual labor. It is not essential that external or visible signs of its existence be manifest.

5. Uncontradicted evidence which is not improbable or unreasonable cannot be disregarded by a district court in a worker's compensation case unless it is shown to be untrustworthy; and such uncontradicted evidence should ordinarily be regarded as conclusive.

6. The record is examined in a worker's compensation case and it is held as a matter of law the district court erred in setting aside the award.

Robert B. Wareheim, of McCullough, Wareheim & LaBunker, Topeka, argued the cause, and George E. McCullough, Topeka, was with him on the brief for appellant.

Philip Shaffer, Salina, argued the cause and was on the brief for appellee.

FROMME, Justice.

Kim Demars, a former employee of Rickel Manufacturing Corporation, appeals from a judgment of the district court setting aside an examiner's award in his favor in a worker's compensation case. The award had been entered against the Kansas Workmen's Compensation Fund for temporary total disability compensation at the rate of $95.20 per week, commencing December 31, 1974, and continuing until further order of the examiner. In addition medical expenses had been allowed. No review by the Kansas Worker's Compensation Director was requested and after ten days the examiner's award became the director's award.

The Kansas Workmen's Compensation Fund, formerly the second injury fund, was impleaded in the case and the examiner found that claimant's accidental injury would not have occurred but for his pre-existing back condition. Accordingly under K.S.A. 44-567 as amended the award in its entirety was ordered paid from the workmen's compensation fund. On appeal to the district court no issue was raised concerning the responsibility of the fund if the award was upheld.

The district court in setting aside the director's award concluded that claimant's disability did not result from an accidental injury or injuries while working on the job for the respondent, Rickel, but resulted solely from a physical condition present when he was employed. Claimant had a congenital back defect, dual spondylolisthesis, and a nonunion of his back which followed a fusion operation. So the question is whether the disability resulted from personal injury or injuries arising out of and in the course of his employment. The claimant contends the district court erred as a matter of law in disregarding the uncontradicted evidence which was reasonable and probable. See Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 558 P.2d 146.

At the hearing before the examiner the claimant and Dr. Roy B. Coffey, an orthopedic surgeon, were the only witnesses. Both testified on behalf of claimant. The facts are not in dispute. Kim Demars was born with a back condition referred to as "a dual level spondylolisthesis." While in high school he slipped and fell down a stairway. The resulting injury necessitated a back operation which was performed by Dr. Coffey. The operation was not entirely successful for the fusion did not form a solid union. However, Demars returned to school, continued running on the track squad, and had no further trouble with his back. The operation was performed in 1972.

In March, 1974, Demars was employed by Rickel Manufacturing Corporation for work requiring heavy lifting. On his job application Demars advised the company that he had a back injury in high school and had a spinal fusion. He was accepted for work and no physical examination was required by the company before his employment began. After he had worked for a month and a half in his job, which required heavy lifting, he began to experience some soreness and pain in his back. He continued work until sometime in July when he suffered a non-work-connected injury to his back while checking the pressure in his car tires. He was hospitalized and remained in traction for ten days. He recovered and was released to return to work by the end of August. From the middle of September to the end of December, 1974, his back became progressively worse. Demars testified:

"Q. Progressively, tell us what happened up through the last days you worked.

"A. Well, I would go to work and the more I would bend over and move, the more my back would start hurting. Each time I would bend over and pick something up, have any weight, I would start to raise up and it would just have kind of a catch in there and then sharp pains. Then finally it got to where I couldn't do it at all and I went and seen Dr. Coffey beforehand and he gave me some pain pills to take while I was at work. My foreman at work knew I was taking the pain pills.

"Q. Did you tell your foreman at work what was causing you to have to take the pain pills?

"A. Yes, it was the work that I was doing, the bending over, picking up the heavy materials."

By the end of December Dr. Coffey decided a second operation was necessary. This operation was scheduled for January 13, 1975. However, on December 31, the last day Demars was scheduled to work before the operation, he was injured when he raised up while under a machine. The blow to his back knocked him to the ground and he received a cut on his back which left a two inch scar.

The second back operation was completed on January 13. The fusion was apparently successful but because of the congenital condition of the back and its aggravation from heavy lifting Dr. Coffey released Demars for work with a 15 pound weight limitation. Rickel, the former employer, could not use Demars under that condition so he was released from his job. Dr. Coffey advised him that in the future he would be unable to work in any job where heavy lifting was required. Demars then went to Kansas City and enrolled in a vocational rehabilitation program in the field of electronics.

In Poehlman v. Leydig, 194 Kan. 649, 400 P.2d 724, it is pointed out that the risk of employing a workman with a pre-existing disability is upon the employer. This rule may be traced back through Cody v. Lewis & West Transit Mix, 186 Kan. 437, 351 P.2d 4; Johnson v. Skelly Oil Co., 181 Kan. 655, 312 P.2d 1076; and Conner v. M & M Packing Co., 166 Kan. 98, 199 P.2d 458. The facts in Cody are strikingly similar to those of our present case. Cody had what was referred to as second degree spondylolisthesis. After his first operation there was a failure of fusion. Two years later while engaged in heavy labor he tore the scar tissue which had built up around the area of the attempted fusion. The aggravation of the pre-existing condition was held to justify an award for further disability.

The risk of employing a workman with a pre-existing disability is upon the employer, and when a workman who is not in sound health is accepted for employment and a subsequent industrial injury aggravates his condition, resulting in disability, he is entitled to be fully compensated for the resultant disability. (Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 202, 547 P.2d 751.)

Dr. Coffey testified as to the examinations and operations performed. In response to a hypothetical question he stated that Demars probably suffered a series of injuries while lifting heavy objects on the job...