Hardman v. City of Iola

• Court: Kansas Supreme Court
• Writing for the Court: KAUL; PRAGER
• Citation: Hardman v. City of Iola, 219 Kan. 840, 549 P.2d 1013 (Kan. 1976)
• Decision Date: 08 May 1976
• Docket Number: No. 48063,48063
• Parties: Leamon HARDMAN (Claimant), Appellee, v. CITY OF IOLA, Kansas, Respondent, and Western Casualty & Surety Co. (Insurance Carrier), Appellants.

Page 1013

549 P.2d 1013

219 Kan. 840

Leamon HARDMAN (Claimant), Appellee, v. CITY OF IOLA, Kansas, Respondent and Western Casualty & Surety Co. (Insurance Carrier), Appellants.

No. 48063.

Supreme Court of Kansas.

May 8, 1976.

Syllabus by the Court

1. In reviewing a trial court's findings in a workmen's compensation case this court's function is limited to a determination whether the record, viewed in the light most favorable to the party prevailing below, contains substantial competent evidence to support the trial court's findings.

2. The term 'substantial evidence,' when applied to workmen's compensation cases, means evidence possessing something of substance and relevant in consequence, and carrying with it fitness to conclude conviction that the award is proper, or furnishing substantial basis of fact from which the issue tendered can be reasonably resolved.

3. The correct standard for determining the loss in earning capacity of an injured workman is the extent to which his ability has been impaired to procure in the open labor market, and to perform and retain, work of the same type and character he was able to perform before he was injured.

4. The record in a workmen's compensation proceeding is examined and it is held: (1) The district court did not err in awarding compensation under K.S.A.1975 Supp. 44-510c(a); and (2) there was substantial competent evidence supporting the trial court's finding of permanent total disability.

J. D. Conderman, of Conderman & Talkington, Iola, argued the cause and was on the brief for appellants.

Mitchell H. Bushey, Iola, argued the cause and was on the brief for appellee.

KAUL, Justice:

This is a workmen's compensation case. The appeal is by the employer and its insurance carrier (hereafter referred to as respendents) from a judgment of the trial court which raised the director's award of twenty percent permanent partial disability to permanent total disability.

The basic question presented is whether there is any competent evidence supporting the trial court's judgment awarding claimant compensation on a basis of permanent total disability under K.S.A.1974[219 Kan. 841] Supp. 44-510c(a), now 1975 Supp. The principal contention of respondents is that compensation should have been determined by application of statutory provisions for scheduled injuries. (K.S.A.1974 Supp. 44-510d, now 1975 Supp.)

While there is some dispute as to the interpretation to be given the medical testimony, the evidence is essentially undisputed.

At the time of the accident, claimant had been employed by the City of Iola as an electrical lineman for fourteen years. He started as a groundman and had been promoted to lineman. Claimant described his duties as climbing poles; handling high voltage electric hot lines; cutting hot lines; and doing other prescribed work.

On September 26, 1972, claimant was injured when he grabbed a 7200 volt hot line and was knocked to the ground. He was taken to the Allen County Hospital where he remained for thirty-three days under the care of Dr. Gerald Pees. Claimant was then referred by Dr. Pees to the Kansas University Medical Center and was placed under the care of Dr. David Robinson, a plastic surgeon. After surgery on both hands and his buttocks claimant was released to outpatient status on January 4, 1973. He continued to see Dr. Robinson as an outpatient-until November 19, 1973.

Claimant returned to work for the City of Iola in April 1973. At the time of the hearing before the examiner in February 1974, claimant was working as a groundman at a reduction in pay of sixty cents per hour.

The issues presented to the examiner were (1) the nature and extent of claimant's disability; and (2) the amount of compensation due. There was substantial disagreement among the examiner, the director and the trial court on these issues, but none of them treated claimant's injuries as scheduled injuries under 44-510d.

The examiner allowed claimant sixty weeks temporary total disability at $56 per week from the date of the accident until his release from Dr. Robinson's care, thereafter 355 weeks of fifty percent permanent partial disability at $44.40 per week. On appeal by respondents, the director modified the award and found permanent partial disability of twenty percent. Claimant then appealed to the district court which found permanent total disability and awarded the maximum benefit under the statute, effective at that time, at the rate of $56 per week for 415 weeks.

The trial court found that claimant had suffered a permanent partial loss of use of the index finger and middle finger of his left hand and no longer had the ability to grip or make a tight fist; and that he had suffered similar injuries to the index and second fingers of his right hand and no longer had the ability to grip or make a tight fist with his right hand. The trial court further found:

'. . . Having suffered permanent partial functional loss of use of both the left and right hands, which in accordance with the provisions of K.S.A. 44-510(a), as determined in Honn v. Elliott, 132 Kan. 454 (295 P. 719), claimant's injuries fall in the category of a non-scheduled injury as set out in K.S.A. 44-510(e); and as a result of the partial functional loss of use of both hands which makes it impossible to grip wire and tools tightly with either hand, the claimant is incapable of obtaining on the open job market, and performing and retaining, work of the same type and character that he was able to do prior to the accident and the injuries as described herein. In addition to the partial functional loss of use of both hands, the plaintiff also suffers intermittent muscular spasms in his chest, legs and arms.

'The medical testimony is that such spasms or cramps, though rather severe in the beginning, tend to diminish in time. Nothing was offered to indicate medically when the spasms might commence to diminish or terminate. The intermittent muscular spasms in his chest, legs and arms, in conjunction with the partial loss of use of his hands, make it impossible for the claimant to obtain on the open job market, and perform and retain, work of the same type and character that he was able to do prior to the accident and the injuries described herein.'

Respondents first contend that statutory schedules for injuries to fingers should have been the basis for claimant's permanent disability award. This contention frames the basic dispute between the parties. It is respondents' position that the award for permanent disability should have been limited to the statutory schedule for injuries to fingers provided by 44-510d. Claimant, on the other hand, takes the position that since there was a partial loss of the use of both hands K.S.A. 44-510c(a) was the applicable statute rather than 44-510d, and that disability as a nonscheduled injury was the proper basis for the award. Claimant further syas that the injuries to both hands, coupled with other bodily injuries (muscle spasms), under the rule of Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P.2d 414, mandate an award for total permanent disability. The examiner, the director and the district court, all rejected the scheduled injury theory advanced by respondents.

At the outset, it should be noted that in this case we are concerned with disability stemming from a primary injury, as distinguished from that line of cases involving a situation where the injury results in objective physical damage to a member of the workman's body, which is included in the schedule under 44-510d, where an unscheduled part of his body also becomes disabled as a direct and natural consequence of the damage to the scheduled member. (See Jackson v. Stevens Well Service, 208 Kan. 637, 493 P.2d 264; Berger v. Hahner, Foreman & Cale, Inc., 211 Kan. 541, 506 P.2d 1175; Bergemann v. North Central Foundry, Inc., 215 Kan. 685, 527 P.2d 1044; Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 547 P.2d 751 (decided March 6, 1976); and Reese v. Gas Engineering & Construction Co., 219 Kan. 536, 548 P.2d 746, (decided April 10, 1976).)

In support of their position that statutory schedules for loss of the use of fingers must apply, respondents cite several cases involving injuries to fingers or theumbs which were held to be scheduled injuries. They rely heavily on Gallivan v. Swift & Co., 136 Kan. 234, 14 P.2d 665, wherein this court modified a district court's judgment awarding compensation for injury to claimant's left hand in an award for loss of use of two injured fingers according to the statute schedule. In Gallivan, claimant suffered a slight surface injury to the palm of his hand which had healed. In modifying the judgment below this court said:

'. . . Since the specific injury resulting from the accident was confined to the loss of use of the fingers, compensation must be measured according to the statutory schedule. . . .' (p. 236, 14 P.2d p. 666.)

In the instant case, claimant suffered injury to the palms of both hands as well as to other portions of his body.

Other cases cited by respondents on the point are, likewise, distinguishable from the case at bar in that the injuries were confined exclusively to a finger as in Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 72 P.2d 79, or to thumbs as in Wammack v. Root Manufacturing Co., 184 Kan. 367, 336 P.2d 441; and Neuhaus v. Hope Engineering Co., 132 Kan. 72, 294 P. 655.

In the instant case the trial court did not find claimant's injuries to be confined to his fingers, but rather that claimant had suffered partial loss of the use of both hands. We believe the finding is supported by the testimony of claimant and Dr. David W. Robinson. Claimant testified that he could not form a fist or grip with his right hand and that his left hand was worse; that he had no grip except for his left little finger; and that it was painful to attempt to grip with either hand. He further testified that: 'It is painful to try to grip with...