Jones v. Western Union Telegraph Co.

• Court: Kansas Supreme Court
• Writing for the Court: BURCH, Justice.
• Citation: Jones v. Western Union Telegraph Co., 165 Kan. 1, 192 P.2d 141 (Kan. 1948)
• Decision Date: 10 April 1948
• Docket Number: 37127.
• Parties: JONES v. WESTERN UNION TELEGRAPH CO.

192 P.2d 141

165 Kan. 1

JONES v. WESTERN UNION TELEGRAPH CO.

No. 37127.

Supreme Court of Kansas

April 10, 1948

Appeal from District Court, Crawford County; Leland M. Resler Judge.

Appeal from District Court, Crawford County; Leland M. Resler Judge.

Proceeding on the petition of Western Union Telegraph Company, employer for review and modification of a prior award under the Workmen's Compensation Act to Margaret Jones Brewington now Margaret Arvilla Jones, employee, wherein the workmen's compensation commissioner made an award terminating compensation. From a judgment of the district court, on employee's appeal, setting aside the award and allowing employee a further recovery, employer appeals.

Syllabus by the Court.

1. In an appeal from a judgment awarding workmen's compensation for total disability not exceeding 415 weeks, and for medical and hospital treatment not exceeding $500, the record discloses substantial competent evidence to sustain the trial court's findings and judgment.

2. In a hearing upon review and modification of an award, the burden of proving a changed condition of a claimant is upon the party asserting it.

3. Upon appeal to the district court from the commissioner's award, on a review and modification such court has the duty of determining, from conflicting evidence in the transcript, whether the commissioner's award should be followed, reversed or modified, and this court, upon appeal from the district court, cannot change the findings of fact made by that court if they are supported by substantial competent evidence.

Peter F. Caldwell, of Topeka, and A. Staneart Graham, of Pittsburg (Harry W. Colmery, of Topeka, on the brief), for appellant.

Pete J. Farabi, of Pittsburg (Sylvan N. Bruner and Morris Matuschka, both of Pittsburg, on the brief), for appellee.

BURCH Justice.

This appeal is from a judgment of the district court in a workmen's compensation case in which the claimant was awarded $9 a week for a period not to exceed 415 weeks less the amount previously paid the claimant, and in addition an amount not to exceed $500 for medical and hospital treatment less the sums previously paid for such purpose. The sole specification of error is that the court erred in entering such a judgment because there was not sufficient substantial, competent evidence to sustain the judgment.

The appellee, Margaret Arvilla Jones, is the same person as Margaret Jones Brewington who was appellee in the case of Brewington v. Western Union Telegraph Co., 163 Kan. 534, 183 P.2d 872. The change in the appellee's name is due to her matrimonial status. As set forth in the cited case, the appellee, on January 17, 1946, obtained a judgment from the district court allowing her compensation at the rate of $9 a week for not to exceed 415 weeks or until the further order of the workmen's compensation commissioner. On June 3, 1946, the appellant filed an application for review and modification of the judgment before the commissioner. Upon hearing on the application for review and modification, the workmen's compensation commissioner, on January 7, 1947, made an award terminating the plaintiff's compensation as of that date. The appellee appealed from the order of the commissioner to the district court and such appeal was pending on August 9, 1947 at the time of our decision in the cited case. After our decision was filed, the appeal to the district court was heard and as a result, the district court in the present case, on October 20, 1947, set aside the order and award of the commissioner which terminated the plaintiff's compensation and allowed her further recovery on the basis set forth in the first paragraph of this opinion. The prior proceedings should not be confusing in the present case, however, as we have before us only another instance of an appeal to this court from a judgment of the district court in a workmen's compensation case.

The trial court in the present case, upon review of the transcript of the evidence introduced before the commissioner, found that as a result of an accidental injury which the appellee sustained on December 27, 1944, the appellee became and had remained totally disabled from performing manual and physical labor and that the period of time during which the disability would continue was indefinite and uncertain. Under our statute, now G.S.1947 Supp. 44-510, which sets forth that claimants under the compensation law are entitled to certain medical services but that the cost thereof shall not exceed $100 except in 'extreme cases', the district court found this to be an 'extreme case' and adjudged that the appellee should be entitled to recover for medical and similar services an amount not to exceed $500. Such amount was the statutory maximum prior to the 1947 amendment which increased the amount to $750. The trial court also provided for deducting from the judgment the amounts previously paid as compensation and for medical services, but the deductions may be disregarded as they are not controversial in the present case. The trial court also ordered that the appellant should pay the sum of $9.75, which amount was incurred as costs in connection with the taking of the deposition of a Dr. Newman who testified in behalf of the appellee.

1. The appellant calls our attention to a statement from the opinion in Brewington v. Western Union Telegraph Co., supra, reading as follows: 'The award of the commissioner under the review and modification statute constituted a new award. * * * In the instant case there was an appeal by the workman to the district court which appeal is now pending. * * * That appeal presents to the district court an entirely new and different record from the one previously presented to it. The new record reflects the changed condition in the workman from that which existed when the district court rendered its first award. The district court could affirm the new award or could allow compensation in accordance with what it believed the changed condition of the workman required.' 163 Kan. page 538, 183 P.2d page 876. (Emphasis supplied.)

The appellant approves the quoted statement and contends that the record in the present case does not establish by substantial competent evidence that the 'changed condition' of the appellee entitles her to the judgment entered in her favor by the district court. Obviously, the contention begs the conclusion that all the competent evidence confirms the contention that the appellee's condition had changed materially at the time the commissioner terminated her compensation. Therefore, we must examine the record to determine whether there was any competent evidence introduced in her behalf which justified the trial court, on appeal, in reaching a conclusion contrary to that reached by the commissioner. Moreover, even if it is found that all the competent evidence shows that the claimant's condition had changed, we must also determine whether there was any competent evidence establishing that her condition at the time of the last hearing before the commissioner was still such that she was then totally disabled from performing manual labor as a result of the accidental injuries.

Before examining the record, we note that appellant directs our attention to the rule that a finding of total future disability must be based on substantial evidence. In support thereof counsel for appellant cite Davis v. Fowler Packing Co., 101 Kan. 769, 168 P. 1111; Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P.2d 70; Whitaker v. Panhandle Eastern Pipe Line Co., 142 Kan. 314, 46 P.2d 862, and rely principally upon Hall v. Armour & Co., 153 Kan. 656, 113 P.2d 145. In the last-cited case this court held that an award of compensation for future disability is not supported by substantial evidence by mere opinion testimony of medical experts when there is an absence of objective indications of injuries to the workman on which the medical opinions can be founded. The appellant stresses in this case that the personal testimony of the appellee as to her condition at the time of the hearing on review and modification before the commissioner was wholly subjective in its nature as distinguished from objective. Appellant also asserts that Dr. Newman, who testified in appellee's behalf, necessarily based his conclusions upon X-ray pictures which he had taken of the appellee in October, 1945, because he had not taken any X-ray pictures since that date and that, therefore, he could not have referred to any condition disclosed by X-rays which were taken within a reasonable time before his deposition was taken on October 18, 1946.

The evidence in the record most favorable to the appellee, which is the only evidence we can consider on the question of law discloses that prior to December 27, 1944, she was apparently in good health. On such date, while riding a bicycle delivering a telegram for the appellant, her bicycle slipped on an icy concrete driveway and she was thrown to the pavement with such force that she was unconscious for a time and sustained injuries to her legs, head, back, and other injuries unnecessary to enumerate. The appellee testified that many of her injuries continued to bother her at all times thereafter to such an extent that she has been unable to work since her injury and was unable to work at the time her testimony was last taken on October 7, 1946. Appellant does not contend to the contrary but emphasizes that her testimony pertained only to subjective conditions, such as pain, dizziness, weakness, numbness, etc. In addition to her personal testimony, the appellee introduced the testimony of Dr. Newman by deposition. Dr. Newman testified that the appellee had been under his constant care and treatment since October 16, 1945, to...