Piper v. Kansas Turnpike Authority

• Decision Date: 08 March 1969
• Docket Number: No. 45500,45500
• Citation: 451 P.2d 152,202 Kan. 771
• Parties: Glenn H. PIPER, Appellant, v. KANSAS TURNPIKE AUTHORITY and Phoenix Assurance Corporation, Appellees.
• Court: Kansas Supreme Court

Page 152

451 P.2d 152

202 Kan. 771

Glenn H. PIPER, Appellant, v. KANSAS TURNPIKE AUTHORITY and Phoenix Assurance Corporation Appellees.

No. 45500.

Supreme Court of Kansas.

March 8, 1969.

Rehearing Denied April 3, 1969.

Syllabus by the Court

1. This court is committed to the rule of liberal construction of the Workmen's Compensation Act in order to award compensation to workmen where it is reasonably possible to do so and to make the legislative intent effective and not to nullify it. (Following Bright v. Bragg, 175 Kan. 404, 264 P.2d 494.)

2. A workman who previously lost the sight of one eye and sustains an industrial injury to his remaining eye resulting in the loss of visual acuity does not sustain the loss of, or partial loss of, the sight of one eye, but sustains the loss of vision itself, which is not provided for in the schedule of specific injuries prescribed in K.S.A. 44-510(3)(c)(17) and (21).

3. Where the loss of visual acuity to the remaining eye of a workman described in the foregoing paragraph of the syllabus is of such a degree that his ability has been impaired to procure in the open labor market, and to perform and retain, work of the same type and character he was able to perform before the injury, he sustains total permanent disability within the meaning of K.S.A. 44-510(3)(c)(26).

4. A claimant in a workmen's compensation case should be awarded compensation under the pertinent provisions of the Act as the facts entitle him to even though he has misconceived their legal effect.

5. The record in a workmen's compensation proceeding is examined, and, as more fully set forth in the opinion, it is held: There was no substantial evidence in the record to support the district court's finding the claimant was not totally disabled based upon the finding he was employable and that he denied he was totally disabled. It is further held the district court erred in failing to enter judgment in favor of the claimant pursuant to K.S.A. 44-510(3) (c)(26) as more fully set forth in the opinion.

George E. McCullough, Topeka, for appellant, W. L. Parker, Jr., Robert B. Warehein, Reginald LaBunker, James L. Rose, Topeka, on the brief.

George V. Allen, Lawrence, on the brief, for appellees.

FATZER, Justice.

This is a workmen's compensation case and is before this court the second time as a result of the appeal of the claimant, Glenn H. Piper, from the findings and judgment of the district court entered on July 3, 1968.

The first appeal, Piper v. Kansas Turnpike Authority, 200 Kan. 438, 436 P.2d 396, involved the question of the district court's refusal to permit the claimant the right to use corrective lens in determining the loss of vision to the claimant's left eye. In reversing the district court's judgment, and under the facts and circumstances presented, this court held that where an injured workman sustains the loss of an eye industrially blind with naked vision, but normal with correction, the valuation of industrial visual loss, for the purpose of determining the amount of compensation due, shall be based on visual efficiency findings which are made with the aid of corrective lenses; the loss being the difference between the corrected vision before the injury and the corrected vision after the injury.

Based upon the foregoing holding, the court's opinion stated:

'* * * This requires a reversal of this cause. Since the district court has not determined from the record whether the claimant's disabling injury is permanent in nature, and if so, whether such impairment is total or partial in character, it is necessary to remand this case to the district court to make findings based upon the evidence and determine the amount of compensation, if any, due the claimant.

'In reviewing the record, the district court should be guided by what was said and held in Polston v. Ready Made Homes, 171 Kan. 336, 232 P.2d 446, and Justice v. Continental Can Co., 174 Kan. 539, 257 P.2d 564, and whether, as a result of the accidental injury to the claimant's left eye on December 13, 1963, together with the previous disability of the claimant's right eye, he became totally disabled.' (l. c. 445, 436 P.2d l. c. 401.)

The cause was reargued before the district court and on July 3, 1968, it concluded that Polston v. Ready Made Homes, 171 Kan. 336, 232 P.2d 446, and Justice v. Continental Can Co., 174 Kan. 539, 257 P.2d 564, applied only to total disability, and determined the claimant did not suffer total disability and found he was limited to an injury to the one eye without regard to the eye that had been eviscerated prior to the accident. The findings of the district court are quoted in toto:

'1. That the claimant, on December 13, 1963, sustained an accidental injury to his left eye and a hernia and such injuries rose out of and in the course of his employment with the respondent.

'2. That the two subsequent retinal detachments sustained by the claimant were connected with the original accident.

'3. That claimant's average weekly wage was $131.77.

'4. That as a result of an operation performed on May 25, 1963, the claimant's right eye was eviscerated prior to December 13, 1963 which evisceration destroyed all sight therein.

'5. That immediately prior to December 13, 1963, vision in claimant's left eye was correctible to Snellen 20/20 for distant vision and Jaeger-1 for near vision.

'6. That subsequent to the operations made necessary by the additional retinal detachments sustained by the claimant, his vision of the left eye was corrected to Snellen 20/70 for distance and Jaeger-7 for near vision. Applying Director's Rules, Claimant's remaining visual acuity at 20 feet measured as 20/70 is a loss of 45%, while Jaeger-7 is a loss of 37.625% and giving twice the weight to the short measurement results in a figure of 75.35%, to which is added the 45% loss for distance, making a total 120.35%. This figure, divided by 3, gives a final figure of 40.11% as claimant's permanent partial loss of vision of the left eye.

'7. That claimant denies he is totally disabled as a result of the accident of December 13, 1963, and the subsequent retinal detachments, and claimant's doctor confirms this. Therefore, it is found that he is not totally disabled.

'8. That claimant's doctor's report indicates that claimant can do some types of work, and this condition has existed since June 6, 1964, and hence he is employable.

'9. That claimant suffered temporary total disability from December 13, 1963, to June 6, 1964, amounting to 25 weeks of which 24 weeks is compensable at the rate of $42.00 per week.

'10. That claimant did not coincidentally and industrially sustain a permanent partial visual efficiency loss to each eye, and therefore Director's Rule 51-8-7 is not applicable.

'11. That although industrial blindness existed in the right eye prior to the injury, claimant has not sustained complete loss of vision of the left eye, and therefore Director's Rule 51-8-9 is not applicable.

'12. That the injury and disability suffered by the claimant is covered by K.S.A. 44-510(3)(c)(17) and (21), hence the provisions of K.S.A. 44-510(3)(c) (24) are not applicable.

'13. That inasmuch as claimant admits he is not totally disabled, and this Court finds that the claimant is not permanently totally disabled, therefore the provisions of K.S.A. 44-510(3)(c)(26) are not applicable.

'14. That claimant sustained no permanent disability as a result of the hernia received in the accident in question.

'15. That respondent and insurance carrier have paid compensation for the period of 64 weeks at the rate of $42.00 per week, of which 24 weeks was for the temporary total disability of the claimant.

'16. That claimant has suffered permanent partial loss of vision of the left eye of 40.11%, for which he is due compensation for 48.13 weeks at the rate of $42.00 per week, in the total amount of $2,021.46, of which respondent and insurance carrier have paid 40 weeks at $42.00 per week, in the total amount of $1,680.00, and there remains due the sum of $341.46.

'17. That respondent and insurance carrier are responsible for medical attention incurred by the claimant as provided in Director's Order of the 20th day of June, 1966, and made a part hereof as if fully set forth herein.'

The claimant's evidence consisted of his own testimony and that of Dr. James E. Hill, a highly qualified ophthalmologist. It is unnecessary to summarize the evidence before the district court since that was done in the first appeal, and the reader is referred to that opinion. However, to bring the question presented into proper focus, a brief resume of the condition of both of the claimant's eyes and the loss of visual acuity, follows:

On September 15, 1962, the claimant underwent a series of operations for the removal of cataracts from both eyes. The operation on the right eye was not successful, the eye became painful, and on May 25, 1963, it was eviscerated which removed all vision. The operation on the claimant's left eye was successful, and with the aid of corrective lens the left eye was corrected to 20/20 for distant vision and Jaeger-1 for near vision, the equivalent of Snellen 14/14.

Thereafter, and on December 13, 1963, and in the course of his employment, the claimant sustained the first of a series of retinal detachments to his left eye, which were corrected by a series of operations. With the aid of corrective lens the left eye could be corrected to Snellen 20/70 and Jaeger-7, or a permanent partial loss of vision to the left eye of 40.11 percent. The claimant can now only identify a person at twelve feet and can only read with the aid of a magnifying glass. The medical testimony was that claimant's eye was quiescent, and its condition could not be expected to improve.

At the hearing on remand and on July 3, 1968, the district court found that the claimant denied he was totally disabled as a result of the accidental injury and the subsequent retinal...