McCullough v. Southwestern Bell Tel. Co.

• Decision Date: 11 July 1942
• Docket Number: 35572.
• Citation: 155 Kan. 629,127 P.2d 467
• Parties: McCULLOUGH v. SOUTHWESTERN BELL TELEPHONE CO.
• Court: Kansas Supreme Court

127 P.2d 467

155 Kan. 629

McCULLOUGH v. SOUTHWESTERN BELL TELEPHONE CO.

No. 35572.

Supreme Court of Kansas

July 11, 1942

Syllabus by the Court.

Where medical attention will cure or greatly benefit a workman suffering from disability for which he would be entitled to compensation, an unreasonable refusal of the workman to receive such medical attention will justify the denial of compensation. Gen.St.1935, 44-501 et seq., 44-510, subd. (1).

The schedule contained in Workmen's Compensation Law providing for the compensation to be paid for injuries to specific parts of the body is the sole guide in determining the amount of compensation to be awarded for an injury thus scheduled. Gen. St.1935, 44-501 et seq.

In determining the amount of compensation to be awarded for partial loss of the use of an eye, the compensation for which was provided for in schedule contained in Workmen's Compensation Law, the percentage loss of vision was properly computed without the aid of corrective lens furnished by employer. Gen.St.1935, 44-501 et seq., 44-510, subd. (3) (c) (1)-(26).

Under our Workmen's Compensation Law, Gen.St.1935, 44-501 et seq., when a workman sustains an injury to an eye so that the measurement of compensation is subject to the schedule, the percentage loss of vision should be computed without the aid of corrective lens.

Appeal from District Court, Neosho County; Leroy Bradfield, Judge.

Proceeding under the Workmen's Compensation Law by Edgar L McCullough, claimant, opposed by the Southwestern Bell Telephone Company, employer. From a judgment confirming the award of the Workmen's Compensation Commission, the employer appeals.

Judgment affirmed.

S. L Harris, Arthur S. Brewster, of Kansas City, Mo. (Lloyd S Miller, of Kansas City, Mo., on the brief), for appellant.

Earl H Hatcher, of Topeka, for appellee.

HARVEY Justice.

This is a workmen's compensation case. It was presented to the compensation commissioner upon the joint petition and stipulation of the claimant and respondent. This may be summarized or quoted as follows: Claimant and respondent were operating under the Workmen's Compensation Act. Gen.St.1935, 44-501 et seq. On October 21, 1939, claimant met with personal injuries by accident arising out of and in the course of his employment when he was struck in the eye by a piece of gravel. Claimant's injuries and disabilities are:

"(A) According to expert medical opinion as set out in medical reports of J. N. Sherman, M. D.

"(B) That according to the consensus of opinion of the parties hereto, claimant's injuries and disability for which he is entitled to claim compensation are: The total loss of the use of the left eye for a period of 16 weeks followed by partial loss of 80% of the use of said eye for a period of 38 weeks from February 11, 1940, to November 6, 1940, at which time his disability was reduced to 20% loss of the use of said eye by the use of corrective lens furnished by the respondent, and that the parties agree that claimant is entitled to compensation for 57.6 weeks therefor."

The wages of claimant, notice of accident, claim for compensation, and the reasonable medical and hospital expenses amounting to $266.75 paid by respondent, and the fact claimant had returned to work, were all stipulated, and no question concerning them is raised. The parties request that the Workmen's Compensation Commission issue its order making such an award as is just and proper under the facts, and that the costs be taxed to respondent.

The abstracted portion of the medical report referred to in the stipulation may be summarized or quoted from as follows:

"There was a cut through the cornea in which the iris was incarcerated. The anterior chamber of the eye was filled with blood." The injury resulted in a permanent defect and loss of use, "Impairment of vision. *** Only partial loss. About 20% with use of glasses. Without glasses, about 85% loss assuming, of course, the vision was normal in this eye before the accident." Normal recovery was delayed "by reason of adhesion of the iris of [to] the cornea and absorption of the lens." Under the head of "Remarks" requesting information of value not previously included: "By reason of the patient having an aphicic [aphakic] eye of course he is permanently disabled being unable to see either at a distance or close without a very strong lens. Even though this lens is put on the patient he will be unable to use it because the uninjured eye is very strong and he will use it regardless of the correction on the injured eye."

The pertinent finding of the commissioner is as follows:

"The commissioner, having considered the joint petition and stipulation and the medical reports attached thereto, is of the opinion and finds that the claimant herein has sustained fifteen (15) weeks' compensable temporary total disability as the result of his accidental injury of October 21, 1939, which has been followed by eighty (80%) percent permanent partial loss of vision of his left eye, being the loss of vision found to exist without the aid of corrective lens. With the aid of corrective lens the loss of vision in the eye is reduced to twenty (20%) percent. However, there is no evidence whatever to show that this workman was required to wear glasses or corrective lens prior to the date of his accidental injury. The commissioner is of the opinion therefore and finds that the loss of vision of the eye should be based on that percentage of loss of vision found to exist without the aid of corrective lens."

An award was made in accordance with this finding. Respondent appealed to the district court where, after a hearing the court found that a complete statement of the history and facts of the case are set out in the findings and award of the commissioner.

"*** that all facts were agreed upon by claimant and respondent, and that the only question for determination by the court is a question of law, whether the claimant's loss of vision of the eye should be based on the percentage of loss of vision found to exist with the aid of corrective lens, or without the aid of corrective lens.

"The court further finds that the findings and award of the workmen's compensation commissioner should be approved and confirmed and that the 1oss of vision of the eye should be determined without the aid of corrective lens; that claimant has an eighty percent permanent partial loss of vision of the left eye and that award should be made in accordance therewith."

Judgment was rendered for the claimant in harmony with these findings.

From the record we understand respondent furnished claimant the corrective lens November 6, 1940; also that the workman was about fifty years of age at the time of his injury.

The parties in preparing the stipulation, and the compensation commissioner and the court in determining the award, followed the method of computation in such a case outlined in Hering v. San Ore Construction Co., 130 Kan. 70, 285 P. 592. However, that case did not involve a question relating to a decrease of the award because of a corrective device or appliance furnished the workman by his employer.

Respondent has appealed and presents as the only legal question involved whether, in determining the partial loss of the sight of the eye, consideration should have been given to the use of corrective lens.

The parties will have no difficulty computing the amount of compensation either under the judgment of the court or under the theory contended for by appellant.

Counsel for appellant quote excerpts from the opinions in Cramer v. Kansas City Railways Co., 112 Kan. 298, 211 P. 118; Gentry v. Williams Brothers, 135 Kan. 408, 10 P.2d 856, and Rupp v. Jacobs, 149 Kan. 712, 717, 88 P.2d 1102, which in differently worded language set out the purpose of the Compensation Act and state that the public, the employer and employee are interested; that the measure was enacted because of the waste of life and limb in industrial accidents; that the public in the end pays the financial loss in the increased price of the product, and that it was designed to establish a just and equitable basis for compensation of such workmen engaged in hazardous employment. There is no controversy over these general purposes of the act. They cite G.S.1939 Supp. 44-510, as follows:

"The amount of compensation under this act shall be: (1) Treatment and care of injured employees. It shall be the duty of the employer to provide the services of a physician or surgeon and such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, ambulance, crutches and apparatus,

as may be reasonably necessary to cure and relieve the workman from the effects of the injury; *** (3) Where death does not result from the injury. *** (c) Where disability, partial in character but permanent in quality, results from the injury, the injured workman shall be entitled to the compensation provided in paragraph 1 of this section, but shall not be entitled to any other or further compensation for or during the first week following the injury. Thereafter compensation shall be paid as provided in the following schedule. ***

"(15) For the loss of an eye, or the complete loss of the sight thereof, 60 percent of the average weekly wages during one hundred ten weeks. ***

"(19) *** For the permanent partial loss of *** the sight of an eye *** compensation shall be paid at 60 percent of the average weekly wages, not in excess of eighteen dollars per week, during that proportion of the number of weeks in the foregoing schedule provided for the loss of *** the sight of an eye *** which the partial loss thereof bears to the total loss of *** the sight of an eye ***."

The medical attention...