Ours v. Lackey

• Decision Date: 03 November 1973
• Docket Number: No. 46884,46884
• Citation: 515 P.2d 1071,213 Kan. 72
• Parties: Duane F. OURS, Appellee, v. Arthur W. LACKEY d/b/a Lackey Construction Company, and Tri-State Insurance Company, Appellants.
• Court: Kansas Supreme Court

Page 1071

515 P.2d 1071

213 Kan. 72

Duane F. OURS, Appellee, v. Arthur W. LACKEY d/b/a Lackey Construction Company, and Tri-State Insurance Company, Appellants.

No. 46884.

Supreme Court of Kansas.

Nov. 3, 1973.

Syllabus by the Court

1. Whether an intrument propounded as a written claim in a workmen's compensation case or whether a claim for compensation has been filed in time is primarily a question of fact. As to questions of fact the appellate court reviews the record only to determine whether it contains substantial evidence to support the trial court's finding, and in doing so all the evidence is reviewed in the light most favorable to the prevailing party below. If substantial evidence appears, such finding is conclusive and will not be disturbed on review. Only in the event the evidence is undisputed, is the question one of law for appellate review.

2. In a workmen's compensation case, the written claim for compensation prescribed by K.S.A.1972 Supp. 44-520a need not take on any particular form so long as it is in fact a claim. In determining whether or not a written claim was in fact served on the respondent the trial court will examine the various writings and all the surrounding facts and circumstances, and after considering all these things, place a reasonable interpretation upon them to determine what the parties had in mind. On the facts related in the opinion the question is, did the employee have in mind compensation for his injury when the various documents were prepared on his behalf, and did he intend by them to ask his employer to pay compensation?

3. The provisions of the Workmen's Compensation Act are to be liberally construed in favor of the workman and compensation awarded where it is reasonably possible to do so.

4. The written claim required by K.S.A.1972 Supp. 44-520a to be served upon the employer under the Workmen's Compensation Act need not be signed by or for the claimant. The written claim may be presented in any manner and through any person or agency. The claim may be served upon the employer's duly authorized agent.

5. Where a workman sustain a second injury to his right elbow arising out of and in the course of his employment, aggravation of the preexisting condition is compensable under the Workmen's Compensation Act, and the act does not relieve the employer from liability on the second injury.

6. An accident within the Workmen's Compensation Act is simply an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, often accompanied by a manifestation of force.

7. The elements of the definition of an accident as applied to the Workmen's Compensation Act should not be construed in a strict and technical sense, but in a manner designed to effectuate the true intent and purpose of the act, namely, that industry should bear the expense of accidental injury to workmen occasioned by the employment.

Kenneth E. Peirce, Hutchinson, argued the cause, and Frank S. Hodge, H. Newlin Reynolds, Dennis O. Smith, and Dan W. Forker, Jr., Hutchinson, were with him on the brief, for appellants.

Abraham Weinlood, Weinlood, Cole, Oswalt & Shaffer, Hutchinson, argued the cause, and was on the brief, for appellee.

SCHROEDER, Justice:

This is an appeal by the respondent and its insurance carrier in a workmen's compensation case challenging an award of compensation to the claimant.

The primary question presented is whether a timely written claim was made by the injured workman.

On March 4, 1969, Duane F. Ours (claimant-appellee) worked as a foreman for Lackey Construction Company. That day while installing some pipe his wrench slipped, resulting in injury to his right elbow. The claimant stopped work for a few minutes then returned to other work. For several months thereafter claimant continued to work, receiving no medical attention, although he experienced occasional discomfort and locking of his right elbow. During this period he made no claim for workmen's compensation.

On July 2, 1969, claimant was still working for the respondent under circumstances covered by the Kansas Workmen's Compensation Act. On that date, while working under a vehicle, claimant reached for a wrench and his right arm locked at the elbow. There is some dispute in the evidence as to whether claimant bumped his arm in the process of reaching or not. He got out from under the vehicle and pulled on his wrist until the elbow joint unlocked. He told his employer about the incident the same day it occurred.

After the July 2 incident claimant experienced increasing discomfort with his elbow. On July 14, 1969, he consulted his family physician who attempted conservative treatment for several days. When this proved to be unsuccessful claimant was referred to Dr. Anderson, a qualified orthopedic surgeon. After several more weeks surgery was determined to be necessary and the surgery was performed on December 15, 1969.

Dr. Anderson testified that during the operation he found three loose bodies in the superior of the joint. He further testified that, assuming the loose bodies preexisted July 2, 1969, the action of stretching the arm to pick up a wrench could 'definitely' have caused claimant's elbow to lock. The doctor said experience had shown that in order for a loose body to become wedged between two bones the stretching and twisting would likely have to be accompanied by sufficient force to cause the body to be forced into place. To illustrate this point he explained that if a person wants to get a marble through a piece of cardboard with a pinhole in it, he would have to push the marble through the hole. The chances of the marble falling through the hole are very slim. He said the same principle applies to the wedging of a loose body in the elbow joint; the body would have to be forced into the joint. Dr. Anderson testified that in his opinion the July 2, 1969, accident was the immediate cause requiring claimant's surgery, and he concluded that the claimant had sustained a 15% permanent loss of physical function in the right upper extremity.

Subsequent to the July 2 incident the claimant frequently consulted with his employer's office manager about forms to be completed for workmen's compensation payments. The office manager never had any forms, but always promised to obtain some. In early September, Mrs. Lackey, wife of the respondent company owner, took over the office management. She testified that claimant inquired at frequent intervals about getting his bills paid, and that she assisted him by writing several letters on his behalf.

From September of 1969 to the following September there were numerous letters written between the various parties involved. The respondent's insurance carrier until July 1, 1969, was Iowa Mutual Insurance Company (designated as appellee, but not a party to this appeal), and from July 1 (including July 2, 1969) Tri-State Insurance Company (appellant) was the respondent's insurance carrier. The various communications are summarized in their chronological order.

On September 30, 1969, the respondent wrote to McInteer, Jukes & Kennedy, the local agents for Tri-State. The substance of this communication was to submit an accident report on workmen's compensation form A with a brief report concerning the accident. The letter also indicates the respondent had previously sent a letter to Iowa Mutual, but Iowa Mutual had called and told them to send a report to Tri-State's representative.

On Sunday morning October 19, 1969, a full report was made in person by the claimant to Mr. Brownlee of Kansas Claims Service of Wichita, Inc., who also represented Tri-State. This meeting was arranged as a result of the September 30 communication from the respondent. The substance of this report, recorded in the handwriting of Mr. Brownlee, was retained in Tri-State's files. The report was an accounting of how the accident occurred and the medical attention claimant had received. It set forth all of the information necessary to make a claim for workmen's compensation.

On November 19, 1969, Kansas Claims Service wrote claimant a letter advising him that after an 'investigation' it was the 'opinion of the company (Tri-State) that your July injury was a reoccurrence' of the March 4 injury. The letter recommends contacting the respondent 'and advise him that claims should be presented to' Iowa Mutual who carried the insurance on March 4.

On December 15, 1969, local representatives of Tri-State wrote the respondent. This was a letter of transmittal enclosing a copy of K.S.A. 44-520 and 44-520a, which pertain to the notice of injury and the time limitation applicable to the filing of a workmen's compensation claim.

On December 17, 1969, Kansas Claims Service wrote to claimant for Tri-State. This letter was 'Supplemental to ours of 11/19/69,' and its purpose was to 'advise that we have been instructed by the insurer of Lackey Construction Company to respectfully decline liability on your workmen's compensation claim.' (Emphasis added.)

On January 11, 1970, the respondent wrote to the representative of Iowa Mutual (insurer up to July 1, 1969). The letter recites that claimant informed the respondent he hasn't received 'weekly compensation pay' from Iowa Mutual, and the respondent states it has sent all the bills and insurance reports necessary. An immediate reply was requested and the respondent retained a copy of this letter on file. It was not signed by the claimant.

On January 16, 1970, Iowa Mutual's representative replied to the respondent's letter of January 11. The letter informs the respondent that Iowa Mutual will not assist in 'this claim' because the injury occurred after their policy expired.

On August 25, 1970, the respondent wrote to the Workmen's Compensation Director. This letter was written to apprise the director of claimant's difficulty in getting compensation for his injury.

On September 1, 1970, the Workmen's Compensation Director...