Leiker v. Manor House, Inc.

• Decision Date: 17 July 1969
• Docket Number: No. 45577,45577
• Parties: Robert L. LEIKER, Appellee, v. MANOR HOUSE, INC., and American Employers Insurance Company, Appellees and Cross Appellants, and The Second Injury Fund of Kansas, Appellant.
• Court: Kansas Supreme Court

Page 107

457 P.2d 107

203 Kan. 906

Robert L. LEIKER, Appellee, v. MANOR HOUSE, INC., and American Employers Insurance Company, Appellees and Cross Appellants, and The Second Injury Fund of Kansas, Appellant.

No. 45577.

Supreme Court of Kansas.

July 17, 1969.

Rehearing Denied Sept. 3, 1969.

Syllabus by the Court

1. The declared purpose of the Second Injury Fund (K.S.A. 44-566 et seq.) is to encourage employers to hire the handicapped and the Legislature intended this to be achieved by shifting the increased burden of compensation from the employer to a Second Injury Fund which is funded by payments from insurance carriers and from legislative appropriations.

2. The Second Injury Fund statute is remedial in character and is not to be interpreted in a narrow, technical or illiberal manner. A liberal construction of its provisions should be indulged, if necessary, to give effect to the purpose intended by the Legislature.

3. K.S.A. 44-567(a) is construed and applied, and it is held: The burden of proving that notice of the employment of a handicapped person, together with a description of such handicap, was filed with the director of workmen's compensation prior to the occurrence of a compensable injury, and that a causal relation existed between the handicap and the compensable injury, is on the employer. The statute is further construed and it is held its provisions distinguish between a compensable accidental injury which would not have occurred 'but for' the pre-existing impairment, and an injury which would have occurred irrespective of such impairment. Under subsection (1), where it is determined the accident causing the injury or death would not have occurred 'but for' the pre-existing physical or mental impairment, all compensation awarded such a claimant shall be paid from the Second Injury Fund. The words 'but for' are used in a causation sense, and the accident must be proximately caused by the prior physical or mental impairment. The statute is further construed and it is held under subsection (2), where it is determined the accidental injury would have been sustained without regard to the pre-existing physical or mental impairment but the resulting disability or death was contributed to by such impairment, the cost of compensation shall be apportioned in an equitable and reasonable manner and based upon medical evidence, and the amount of the disability attributed to the pre-existing impairment shall be ordered paid from the Second Injury Fund.

4. The record in a workmen's compensation proceeding is examined, and it is held: (1) The Second Injury Fund statute is supplemental to the Workmen's Compensation Act; (2) the notice filed with the director of workmen's compensation by the claimant's employer on April 3, 1966, contained a sufficient description of the claimant's pre-existing physical impairments so as to comply with K.S.A. 44-567(a), and to entitle the employer to the benefit of the Second Injury Fund; (3) all decisions of the director of workmen's compensation with respect to the administration of the Second Injury Fund involve questions of law and fact, and are subject to review by the district court pursuant to K.S.A. 44-556, and (4) there is no substantial competent evidence to support the district court's judgment ordering payment of the full amount of compensation awarded the claimant from the Second Injury Fund.

Warren R. Southard, Wichita, argued the cause, and Walter A. Sawhill, Wichita, was with him on the brief for appellant The Second Injury Fund of Kansas.

John Prather and Philip Kassebaum, Wichita, argued the cause, and John T. Conlee, Douglas D. Johnson, John E. Rees, Robert T. Cornwell, Willard B. Thompson, Wayne Coulson, Paul R. Kitch, Dale M. Stucky, David W. Buxton, Richard I. Stephenson, Donald R. Newkirk and Gerrit H. Wormhoudt, Wichita, were with them on the brief for respondents Manor House, Inc. and American Employers Insurance Co.

Clarence R. Sowers, John W. Sowers, Davis C. Carson, and James P. Johnston, Wichita, were on the brief for claimant.

FATZER, Justice.

This is a workmen's compensation case. The point at issue is whether all compensation awarded the claimant was properly ordered paid from the Second Injury Fund (K.S.A. 44-566 et seq.) as directed by the district court.

The claimant, Robert L. Leiker, commenced a proceeding before the workmen's compensation director to recover compensation as a result of an injury he sustained to his low back and left knee on August 19, 1966, while employed by Manor House, Inc., Wichita, Kansas. The claimant was warehouse foreman, delivery man, and ran the warehouse.

Previously, and in July, 1965, and while employed by Manor House, the claimant sustained an injury to his low back and his left knee when he stepped off a dock backwards. He was treated by C. P. Huey, a chiropractor, and he saw Dr. Rombold at the Wichita clinic. Dr. Rombold took x-rays of the back and the left knee in 1965, and recommended the claimant have surgery on his left knee. The claimant received no compensation for this injury.

At the hearing before an examiner which commenced March 24, 1967, the parties stipulated they were covered by the Workmen's Compensation Act; that the claim for compensation was timely filed; that the respondent's insurance carrier was the American Employers Insurance Company, and that on April 3, 1966, the respondent and its insurance carrier filed notice with the workmen's compensation director (Form 88, Notice of Handicapped Employees, prescribed by the Director of Workmen's Compensation) that the claimant was a 'handicapped employee' and was employed January 19, 1958, and listed the nature of his impairment as:

'Osteochondritis of the left knee. Narrow intervertebral disc at L/4-L/5 interspace, congenital abnormality lumbo sacral level, arthritic changes of lumbar spine.'

On October 23, 1967, the examiner made findings of fact that on August 19, 1966, the claimant sustained personal injury by accident arising out of and in the course of his employment with respondent, and further found:

'* * * that except for a preexisting physical condition which this examiner determines to be a physical deformity within the meaning of The Second Injury Fund, both in his back and knee, together with some arthritic condition, which is within the meaning of The Second Injury Fund provisions of the Workmen's Compensation Act, said claimant would not have suffered the disability which resulted from his injury.' (Emphasis supplied.)

* * * * * * 'It is further found that * * * the claimant has suffered a 40 percent permanent partial general disability as a result of the accident, and inasmuch as the claimant was hired under the handicapped employees provision of the Workmen's Compensation Act, benefits to the claimant should be paid from The Second Injury Fund.'

* * * * * *

'It is further found that the Form 88 filed with the Director on April 3, 1966, as a handicapped employee, was sufficient under the law.'

In accordance with his findings, the examiner entered an award of compensation in favor of the claimant and against the Second Injury Fund for 33 weeks of temporary total disability at the rate of $42 per week, and for 379 weeks at the rate of $32.13 per week for a 40 percent permanent partial general disability, and ordered payment in a lump sum of temporary and permanent partial disability, then due and owing, of $1,559.25. Medical and hospital expenses were allowed the claimant and charged against the Second Injury Fund.

On October 24, 1967, the Second Injury Fund made written request to the director to review the examiner's award pursuant to K.S.A. 44-551. Upon review, and on March 29, 1968, the director made findings of fact and modified the examiner's award. His findings read, in part:

'* * * The director finds that the filing of the Form 88 by the respondent, Manor House, Inc., with the director on April 3, 1966, was sufficient. Although the said filing does not specifically state which of the sixteen types of handicaps listed in K.S.A. 44-566 the claimant had at the time of the filing, it does describe in sufficient detail said handicaps to meet the general requirements of the statute. The director finds that the claimant's knee problems were only temporarily aggravated by the accident he sustained on August 19, 1966; that the operation on said knee was not caused by said accident but that the operation was needed and recommended prior to said accident and that claimant has suffered no further disability to his knee as the result of said accident.

'The director further finds that the permanent partial disability of the claimant, in view of the above findings in the regard to claimant's knee and in view of the medical testimony, is 30% of the body as a whole.

'The director further finds that the accidental injuries incurred by the claimant to his back on August 19, 1966, aggravated an existing condition but that the claimant's back would have been injured regardless of said preexisting condition and that therefore compensation for claimant's disability should be apportioned between the (Second Injury Fund and Manor House) * * * on a 50-50 basis, that is to say claimant's preexisting handicap has contributed 50% of his present disability and therefore the * * * Second Injury Fund should assume one-half of the responsibility for said disability.

IT IS THEREFORE ORDERED, DECREED AND ADJUDGED THAT the award entered herein by Examiner Lee R. Meader on October 23, 1967, be and the same is hereby modified as follows: An award of compensation is hereby made in favor of the claimant, Robert L. Leiker, and against the * * * Second Injury Fund and against the respondent Manor House, Inc. and its insurance carrier, American Employers Insurance Company, as the result of an accidental injury occurring on August 19, 1966, for 413 weeks of compensation, after deducting the two weeks claimant worked following the accident. Claim...