Grounds v. Triple J Const. Co., Inc., 51031

• Decision Date: 08 February 1980
• Docket Number: No. 51031,51031
• Citation: 606 P.2d 484,4 Kan.App.2d 325
• Parties: Sheldon GROUNDS, Claimant, Appellant and Cross-Appellee, v. TRIPLE J CONSTRUCTION COMPANY, INC., Respondent and Appellee, and Maryland Casualty Company, Insurance Carrier and Appellee, and Kansas Workmen's Compensation Fund, Appellee and Cross-Appellant.
• Court: Kansas Court of Appeals

Page 484

606 P.2d 484

4 Kan.App.2d 325

Sheldon GROUNDS, Claimant, Appellant and Cross-Appellee, v. TRIPLE J CONSTRUCTION COMPANY, INC., Respondent and Appellee and Maryland Casualty Company, Insurance Carrier and Appellee and Kansas Workmen's Compensation Fund, Appellee and Cross-Appellant.

No. 51031.

Court of Appeals of Kansas.

Feb. 8, 1980.

Review Denied April 11, 1980.

Syllabus by the Court

1. In a workmen's compensation claim based on a non-scheduled injury, if an employee is not permanently totally disabled but cannot engage in work of the same type and character that he was performing at the time of his injury, he is partially disabled and he can recover under K.S.A.1979 Supp. 44-510e, but in an amount not to exceed the coverage provided by K.S.A.1979 Supp. 44-510c.

2. A claimant may be awarded payment for a functional disability even though no work disability is apparent.

3. Whether a disability is Total or Partial is determinative of which section of the statute applies. K.S.A.1979 Supp. 44-510c covers permanent or temporary Total disability, while K.S.A.1979 Supp. 44-510e applies to permanent or temporary Partial disability. The test of being Totally disabled on account of the injury is whether a worker has been rendered completely and permanently incapable of engaging in any type of substantial and gainful employment. If the worker is not totally disabled under that test, but is impaired in his ability to engage in work of the same type and character as was performed at the time of the injury, the disability is Partial.

4. The fact that a worker has never been denied employment because of a physical or mental impairment does not preclude a finding that he is a "handicapped employee" as defined in K.S.A.1979 Supp. 44-566.

5. The record contains sufficient competent evidence that (1) prior to the compensable injury the employee was suffering from a handicap as defined by K.S.A.1979 Supp. 44-566, (2) prior to the compensable injury the employer had knowledge of the handicap, (3) the compensable injury was caused by or contributed to by the preexisting impairment, and (4) the disability would not have occurred but for the preexisting physical impairment.

John S. Seeber, of Adams, Jones, Robinson & Malone, Chartered, Wichita, for Sheldon Grounds.

Douglas L. Baker, Pittsburg, for Kansas Workmen's Compensation Fund.

A. J. Wachter, of Wilbert, Lassman, Toburen & Wachter, Pittsburg, for Triple J Construction Company, Inc., and Maryland Casualty Company.

Before FOTH, C. J., and ABBOTT and MEYER, JJ.

MEYER, Judge:

In this workmen's compensation case the district court affirmed a director's award of 15 percent permanent partial disability. Claimant appeals, contending he should have been awarded 100 percent disability, and the Kansas Workmen's Compensation Fund (fund) cross-appeals contending it should not have been held solely liable for payment of claimant's award.

Claimant was injured July 5, 1974, while employed by Triple J Construction Company, Inc. (respondent). Respondent's business consisted of pouring concrete basement walls. Respondent is a corporation having three principal stockholders Howard Johnson, president; Billy Jack, vice president and manager; and Carlton Johnson, an inactive stockholder.

Claimant's injury occurred while he was trying to remove a 96-pound form from a basement, assisted by two other employees. The form struck claimant and injured his back. Claimant missed work the day following the accident, but then returned to work and reported his injury. On September 20, 1974, claimant had a spinal fusion operation performed by Dr. John Lance, an orthopedist. Doctor Lance had treated claimant for back trouble in 1971 and 1972. Prior to claimant's 1974 injury, he had performed manual labor consisting of farming, construction work, and applying fertilizer to fields. Since his injury, claimant performed manual labor; one such job consisting of lifting a maximum of 51 pounds on a limited basis.

At the workmen's compensation hearing, Doctor Lance testified claimant had a functional disability rating of 10 percent. Dr. Roy Coffey, also an orthopedic surgeon, testified claimant had a 15 percent functional disability, and Dr. Ernest Neighbor, another orthopedic surgeon, stated claimant had a 15 percent functional disability.

The examiner found claimant had a 15 percent permanent partial disability; that he had a preexisting physical impairment; that the previous handicap was known by respondent at the time it hired him; and that claimant had been retained by respondent with this knowledge. Additionally, the examiner found that the injury would not have incapacitated claimant "but for" the preexisting handicap. Thus, the fund was charged with the entire liability to claimant.

The examiner's award was sustained by the director, and the district court sustained the director's order and adopted the examiner's findings as its own.

Claimant argues there is no support in the record for anything but a finding of total disability. He relies on Reichuber v. Cook Well Servicing, 220 Kan. 93, 551 P.2d 810 (1976), and Scott v. Day and Zimmerman, Inc., 215 Kan. 782, 529 P.2d 679 (1974), pointing out the factual similarities of these two cases with the testimony of the experts and of claimant here. In essence, claimant asserts the fact he is totally unable to perform the work he was performing for respondent prior to the injury. Thus, claimant contends that according to the Reichuber test for determining disability, he is totally disabled.

Respondent and its insurer, Maryland Casualty Company, claim that under either the statutory definition of permanent total disability, K.S.A.1979 Supp. 44-510c(a)(2), or the test of Reichuber and Scott, claimant is not totally disabled. They argue that the test is not whether claimant can return to the same job as before, as claimant contends, but whether and to what degree claimant's ability has been impaired in the labor market for the same type of work he was capable of performing before the injury.

The fund contests the finding of sole liability. It disputes the finding that claimant is "handicapped" within the definition of K.S.A.1979 Supp. 44-566 by taking the position that before a physical condition can constitute a "handicap," the employee must demonstrate he was previously denied employment because of his "handicap." The fund admits claimant did have some preexisting back problems and that he was injured in 1971 prior to his being employed by respondent, but that since he was never denied employment for physical reasons he did not have a "handicap in obtaining employment" as required by statute. The fund also argues that even if claimant was handicapped within the meaning of the statute that there is no substantial competent evidence to show he was knowingly hired or retained by respondent as such. In effect, the fund challenges Howard Johnson's general knowledge of claimant's weak back as insufficient to constitute knowledge on either his part or on the part of respondent corporation that claimant was handicapped.

Respondent counters with the assertion that whether or not a claimant is ever denied employment because of his physical condition is not conclusive; that claimant was in fact "handicapped" as defined by statute; and that Howard Johnson's knowledge was sufficient notice of claimant's previous impairment not only to Howard Johnson, but also, by imputation, to respondent corporation.

We will first consider whether or not the finding that claimant has a 15 percent permanent partial general disability is supported by substantial competent evidence.

Jurisdiction on appeal of compensation cases is limited to a review of questions of law according to K.S.A.1979 Supp. 44-556(c). Where the findings below are supported by substantial competent evidence, those findings will not be disturbed. Cody v. Jayhawk Pipeline Corporation, 222 Kan. 491, 493, 565 P.2d 264 (1977); Reichuber v. Cook Well Servicing, 220 Kan. at 96, 551 P.2d 810. In determining that matter, all testimony must be viewed in a light most favorable to the party prevailing below. Day and Zimmerman, Inc. v. George, 218 Kan. 189, 542 P.2d 313 (1975).

The percentage of extent of a claimant's disability is a question of fact. Reichuber v. Cook Well Servicing, 220 Kan. at 96, 551 P.2d 810. The test for determining permanent partial general disability is the extent to which the injured workman's ability has been impaired to engage in work of the same type and character he was performing at the time of his injury. K.S.A.1979 Supp. 44-510e.

At the heart of the problem in the instant case is what the parties see as a conflict between K.S.A.1979 Supp. 44-510c and 44-510e. K.S.A. 44-510c(a)(2) gauges such disability on the ability of the workman to Engage in any type of substantial and gainful employment while K.S.A.1979 Supp. 44-510e(a) states the test is the workman's ability to Engage in work of the same type and character that he was performing at the time of his injury. Additionally, the parties are unable to agree on the application of the concepts of Functional and Work disability.

The distinction between these two forms of disability is stated in Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 195, 558 P.2d 146, 149-150 (1976):

"Functional disability is the loss of a part of the total physiological capabilities of the human body. Work disability is that portion of the job requirements that a workman is unable to perform by reason of an injury."

K.S.A.1979 Supp. 44-510c(a)(2) and 44-510e(a), which set out the two tests for permanent total and permanent partial disability, were passed as part of the 1974 amendments to the Workmen's Compensation statute, effective July 1, 1974.

K.S.A. 44-505(c) as amended in 1974 provides:

"This act shall not apply in any case where the accident occurred prior to the effective date of this act. All rights which accrued by...