Jackson v. Stevens Well Service

• Court: Kansas Supreme Court
• Writing for the Court: OWSLEY
• Citation: Jackson v. Stevens Well Service, 208 Kan. 637, 493 P.2d 264 (Kan. 1972)
• Decision Date: 22 January 1972
• Docket Number: No. 46270,46270
• Parties: Harvey J. JACKSON, Appellant, v. STEVENS WELL SERVICE and Tri-State Insurance Company, Appellees.

Page 264

493 P.2d 264

208 Kan. 637

Harvey J. JACKSON, Appellant, v. STEVENS WELL SERVICE and Tri-State Insurance Company, Appellees.

No. 46270.

Supreme Court of Kansas.

Jan. 22, 1972.

Syllabus by the Court

1. When a primary injury under the Workmen's Compensation Act is shown to have arisen out of the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.

2. A claimant under the Workmen's Compensation Act who suffered scheduled injuries to the right hand and to the index finger of the left hand should not be limited to an award under the schedule when he also suffered an injury to the right shoulder which contributed to his disability.

3. A claimant who sustained a temporary disability in some part of his body not included in scheduled injuries as set forth in K.S.A. 44-510(3)(c) when coupled with his scheduled injuries results in total disability, is entitled to an award for total temporary disability under the Workmen's Compensation Act.

4. The record is examined in a Workmen's Compensation case and under the facts and circumstances as more fully set forth in the opinion, it is held: The trial court erred in not entering an award in favor of claimant for total temporary disability.

5. Respondent's motion to dismiss the appeal on the grounds that claimant acquiesced in the judgment of the trial court by accepting a final payment under said judgment is denied for the reasons set forth in the opinion.

J. Eugene Balloun, of Turner & Balloun, Chartered, Great Bend, argued the cause, and Lee Turner, Great Bend, was with him on the brief of appellant.

Thomas C. Berscheidt, of Hampton & Ward, Great Bend, argued the cause, and Tudor W. Hampton, and Jerry M. Ward, Great Bend, were with him on the brief of appellees.

OWSLEY, Justice:

This is an action for workmen's compensation benefits. The Examiner made an award for temporary total disability at the rate of $49.00 per week. The Workmen's Compensation Director, on an application for review and modification, modified the award to a finding of 100% loss of use of the right hand and for amputation of the left index finger making a total of 190.7 weeks at $49.00 per week.

On appeal to the District Court, the ruling of the Director was affirmed. The claimant appeals from this judgment.

The question on appeal is whether the claimant is entitled under the facts to an award of temporary total disability or is limited to an award for scheduled injuries as found by the trial court.

The claimant testified that his previous work experience was that of a truck driver, farm laborer, and worker in the oil field. That he was fifty years of age, married and had three children. That he had worked for the respondent for about one year prior to the accident and this work called for manual labor which required considerable lifting of weights of 35 to 40 pounds and sometimes 100 to 150 pounds and that the job also required a great deal of stopping and bending, working overhead and in all weather conditions.

He further testified that on the day of the accident a 22 foot pipe with a swab on the end dropped directly on his hands. That as a result he sustained a traumatic amputation of the first and second fingers of the right hand into the knuckle of the right hand, a partial amputation of the thumb of the right hand and an amputation of the first finger of the left hand below the second joint. That the accident occurred on September 25, 1967, and that his right arm and shoulder started giving him difficulty in January of 1968. He further stated that his right shoulder hurts and on many occasions it hurts nearly all day; that he cannot extend his right arm full length without pain; and that he cannot lift his right elbow over his head.

Larry L. Axline, placement director with the Associated Personnel Technicians, testified that the claimant had an IQ of 93 which is below the average for the general population.

Harry Thornton, an interviewer for the Kansas State Employment Service, testified that he had been unable to place the claimant in any employment, but he felt there might be some jobs claimant could do after vocational rehabilitation.

Bentley Barnabas, an industrial psychologist, testified that claimant might possibly qualify as a flagman or operate an elevator if it had power-driven doors. He also stated that claimant could not do the same or similar work as he had previously done.

Roy B. Coffey, M.D., testified for the claimant stating that on the right hand the claimant had a 25% loss of use of the thumb or a 60% loss of the use of the right hand and 100% loss of use of index finger on the left hand. That further the claimant suffered from bicipital tendonitis in the right shoulder which he felt was probably a temporary loss and he did not rate it but felt that it had need of further treatment. That although plaintiff was right handed, his upper right arm measured 9 3/4 inches in circumference and the left 10 1/2 inches, and the right forearm measured 9 inches while the left forearm measured 10 inches. He further testified that all of the injuries were in his opinion related to the accident which the claimant had sustained and that while he considered the shoulder difficulty to be secondary he did feel that it was a direct result of the injury. That in his opinion the claimant had a 25% impairment of the body as a whole as a result of his injury to his hands and it was too early to arrive at a permanent disability rating to the shoulder. That he would not pass this man for a pre-employment examination on any type of heavy labor and that he would not pass him for any type of oil field work other than the reading of gauges and so forth. That in his opinion this man is out of any occupation that requires hand work, tool work, lifting or other heavy labor.

Based on this undisputed evidence, the Examiner found the claimant was temporarily totally disabled as a result of the injury to his right hand and to the index finger of his left hand. The Examiner also found that the shoulder difficulties aggravated his disability and that the difficulty is either (a) a direct result of the injury, or (b) an aggravation during the normal course of treatment, and not of a referral or causalgia nature as was the case in Riggan v. Coleman Co., 166 Kan. 234, 200 P.2d 271.

The Director, in modifying the award, found the only disability of a permanent nature was the injury to the right hand and to the left index finger and compensation was limited to the scheduled injuries, and otherwise affirmed the award of the Examiner.

The District Court on appeal found the following:

'If a workmen's compensation act were being drafted in the light of the facts in this case, it would be reasonable to assume that it would be worded in such a way that this claimant would be entitled to an award of total permanent disability. This is the claimant's disability when measured by any realistic standard.

'Under the wording of the Kansas act, however, his compensation must be limited to scheduled injuries: complete loss of use of the right hand plus loss of the left index finger. Since the Kansas Supreme Court declined to soften the occasional unfairness of our scheduled injury statute in Wammack v. Root Manufacturing Co., 184 Kan. 367, 336 P.2d 441 (1959), and Rogers v. Board of Public Utilities, 158 Kan. 693, 149 P.2d 632 (1944), it would seem improper for a trial court to attempt to do so.

'Neither is the court justified in utilizing the tendonitis in claimant's shoulder to convert his permanent injuries into a classification of temporary total disability. Viewed in a way most favorable to claimant, the shoulder difficulty is only temporary in nature and results from injury to the hand, a scheduled injury. It is not a separate injury by accidental means; he is not disabled because of the shoulder, but he is disabled because of the injury to the two hands.

'Counsel for respondent will please prepare and circulate a journal entry affirming the award as made by the Director.'

There appears to be no question that the claimant is totally disabled from obtaining and retaining work of the same kind and character he was able to perform prior to his injury. We must determine, however, whether the claimant's award under our Workmen's Compensation law is limited to scheduled injuries as defined in K.S.A. 44-510. The answer to this question is based on the nature and effect of the injury to claimant's right shoulder. We can safely say that the injury to the shoulder contributed to the claimant's total disability even though he was considered totally disabled without the shoulder injury by the trial court.

The trial court stated that it was prevented from granting a temporary total disability award by reason of Wammack v. Root Manufacturing Co., supra, and Rogers v. Board of Public Utilities, supra.

In the Rogers case, the claimant suffered two hernias which could not be surgically repaired because of the claimant's diabetic condition. We denied relief beyond the statutory schedule and in so doing stated:

'We turn now to consideration of those of our decisions where, even though the original injury was a scheduled one, an additional award beyond the statutory schedule was allowed because of subsequent unusual and extraordinary conditions. Appellee cites Bidnick v. Armour & Co., 113 Kan. 277, 214 P. 808, and Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 96 P.2d 684. He places particular emphasis on the Chamberlain case and asserts it is authority for the award made by the commissioner and the trial court in the instant proceeding. We do not agree. Without entering into a detailed discussion...