Hoover v. Ehrsam Co., 47826

• Decision Date: 24 January 1976
• Docket Number: No. 47826,47826
• Citation: 218 Kan. 662,544 P.2d 1366
• Parties: Charles C. HOOVER, Appellant, v. The EHRSAM COMPANY, Appellee.
• Court: Kansas Supreme Court

Page 1366

544 P.2d 1366

218 Kan. 662

Charles C. HOOVER, Appellant, v. The EHRSAM COMPANY, Appellee.

No. 47826.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

1. The phrase 'in the course of' employment as used in our workmen's compensation act relates to the time, place and circumstances under which the accident occurred, and means the injury happened while the workman was at work in the employer's service.

2. If an employee is performing work which has been forbidden, as distinguished from doing his work in a forbidden manner, he is not acting in the course of his employment.

3. An exception to the foregoing rule is to be made when the employer has previously accepted the benefit of the forbidden practice with knowledge that the prohibition has been violated.

4. Another exception to the rule stated in paragraph 2 is to be made when the prohibition is so general in its terms that it is readily outweighed by the specific benefit to the employer of the doing of the prohibited act.

5. In an appeal by an employee from a denial of his claim for workmen's compensation because he was engaged in forbidden conduct at the time of his injury, it is held: (1) There was no evidence the employer was aware that the employee had previously engaged in the forbidden conduct; (2) the employer's prohibition was not so general in its terms as to be readily outweighed by the specific benefit to the employer of the doing of the prohibited act; and (3) the trial court's findings were sufficiently supported by the evidence.

William A. Hensley, Turner & Hensley, Chartered, Great Bend, argued the cause, and H. Lee Turner and Raymond L. Dahlberg, Great Bend, were on the brief for appellant.

John F. Christner, Abilene, argued the cause and was on the brief for appellee.

HARMAN, Commissioner:

This is an appeal by an employee from a district court's denial of a workmen's compensation claim. The case turns upon whether, at the time of injury, claimant was removed from worken's compensation coverage by reason of doing work which he had been prohibited from performing.

Claimant Charles C. Hoover was an employee of respondent Ehrsam Company, a self-insurer, which company engaged in machine and foundry work, including the processing of sheet metal. Claimant started working for respondent in 1953 after navy service which resulted in a lung disability, and he continued that employment until his injury in May, 1972.

Claimant performed manual labor in various departments in respondent's plant up until sometime in 1969 when he was made a lead man or supervisor and was forbidden by respondent to do any kind of manual labor. Thereafter his job was solely to supervise and direct those working under him.

Throughout his employment with respondent claimant appears to have been a good, faithful, hardworking employee, despite the fact he suffered a good bit of physical disability of different kinds. In 1960 claimant hurt his back in a fall on ice; he testified his back had never since been the same. He received some workmen's compensation from this fall. In 1967, while lifting some material, he hurt his lower back. He consulted and was treated by an osteopathic physician, Dr. Carson, who was his family physician and also doctor for the company. He was able to return to work some time thereafter but he consulted Dr. Carson periodically in 1968, 1969, 1970 and 1971 with recurrences of his back problem. During this same period Dr. Carson also treated claimant for a problem with his neck. He was hospitalized at various times and in 1970 underwent neck surgery consisting of a cervical disc removal.

On April 28, 1972, Dr. Carson saw claimant again. They discussed claimant's aliments: Neck, shoulder and arm pain, his surgery and his low back problems; dizziness and blackouts; a mild to moderate hearing disorder; abdominal problems diagnosed as pancreatitis, and apparently some nervous and emotional problems. Claimant brought up the subject of retirement. Dr. Carson believed claimant was in no condition to continue work and he advised claimant to consider retirement and discuss it with his wife. On May 1, 1972, claimant told the doctor he wished to retire if he could work out a financially feasible way to do so. Meanwhile respondent apparently was in the process of being taken over by a larger company and the department in which claimant worked was to be closed. During the first week in May claimant learned he would retire on June 1, 1972.

On or about May 10, 1972, a version press in the sheet metal department jammed or locked. Claimant was a lead man in this department. Apparently there were two different methods used to release the press when this occurred. One method was to place a large stillson wrench on the end of the shaft and then apply power to the wrench by means of a chain hoist. A second method was to place a piece of shafting in the flywheel and use manual leverage to turn the jammed flywheel back so as to release the press. This method required the use of four men to exert sufficient leverage. The only testimony on the subject was that one man alone could not thus unjam the press.

At the time in question a workman under claimant had procured a large wrench from the tool room and had placed it on the end of the shaft. While this workman was attaching the wrench to the hoist claimant put a jack bar in the flywheel, pulled downward on the bar, then collapsed and fell. At the time there were other workmen available in the immediate area to assist in releasing the jam. Claimant made report of his accident to respondent on May 12 but did not mention it to Dr. Carson on May 15, 1972, when he consulted the doctor in the Abilene hospital where he had gone for emergency treatment for pancreatitis. Claimant last worked for respondent on May 11.

Prior to any adjudication in this proceeding, and at a time not disclosed in the record but apparently as a part of claimant's retirement, claimant and respondent worked out some sort of agreement whereby respondent paid claimant $1,544.00 in a lump sum-this ostensibly in settlement of claimant's back injury in 1967 and his 1970 neck condition. Also respondent agreed to pay claimant $56.00 per week workmen's compensation for a period of twenty-six weeks-this, according to respondent's personnel manager, 'until he would get his social security and his V.A. pension and this sort of thing'. Dr. Carson had advised respondent that claimant should be retired for disability. In connection with claimant's May 10 accident respondent also paid $5.00 to Dr. Carson and a drug prescription bill of $6.95.

The examiner and the director of workmen's compensation upon review awarded claimant compensation for temporary total disability for 415 weeks for his May 10, 1972, accident. The director specifically found claimant had not deliberately intended to injure himself. Upon respondent's appeal the district court reversed the award for reasons stated in its memorandum opinion as follows:

'. . .

'6. The court does find specifically that the claimant was injured on the date in question.

'7. The injury occurred while the claimant was attempting to release a machine that had jammed.

'8. The claimant on April 28, 1972, consulted with a doctor concerning retirement by reason of his physical disabilities.

'9. The claimant again saw the doctor on May 1, 1972, advising the doctor that he would retire if he could receive Workmen's Compensation.

'10. The claimant knew through meetings with the respondent that retirement would be effective June 1, 1972.

'11. Subsequent to the accidents set forth in paragraph 3 above, and prior to the date in question, claimant was retained in employment subject to specific limitations on his employment.

'12. Claimant's job obligation and employment agreement specifically excluded him from direct manual labor without the use of a compensating installed mechanical device.

'13. Claimant was at the time material hereto employed as a lead man, a supervisory job.

'14. The personnel under the supervision of the claimant knew that he was to perform no direct manual labor.

'15. At the time of the accident, the claimant was attempting to release a jammed 'version press' by using a jack bar as a fulcrum, by pulling down with his hands and body to release the jam.

'16. The machine held dies weighing between 200 and 500 pounds.

'17. Restricted employment subject to mental or physical limitations is a procedure to be approved.

'18. Restrictions placed on an employee which do not preclude him from fulfilling his job obligation limit the scope of his employment.

'19. The claimant exceeded the confine of his employment.

'20. The injuries sustained by the claimant did not arise out of or in the scope of his employment.'

The court made no finding as to any notice on respondent's part that claimant would violate its order not to engage in manual labor.

Claimant-appellant's first contention is that the trial court erred factually in finding that his job obligation specifically excluded him from direct manual labor 'without the use of a compensating installed mechanical device'. He says there was no mention in the evidence of such a device in connection with appellant's prohibition. The record before us supports this contention but it is of no moment in determining the matter at issue. Undoubtedly the court had in mind the method of releasing the jam by chain hoist, as described in the testimony. The record is clear appellant was expressly directed by at least three different company officers not to perform manual labor in his job. The matter complained of is surplusage and may be disregarded. More serious is the assertion of error in the finding that appellant's injury did not fall within the purview of the workmen's compensation act.

The claimant has the burden of establishing that the injury to the workman occurred as a result of an accident arising out of and in the course of the...