Polston v. Ready Made Homes

• Court: Kansas Supreme Court
• Writing for the Court: HARVEY
• Citation: Polston v. Ready Made Homes, 232 P.2d 446, 171 Kan. 336 (Kan. 1951)
• Decision Date: 09 June 1951
• Docket Number: No. 38355,38355
• Parties: POLSTON v. READY MADE HOMES, Inc., et al.

Page 446

232 P.2d 446

171 Kan. 336

POLSTON v. READY MADE HOMES, Inc., et al.

No. 38355.

Supreme Court of Kansas.

June 9, 1951.

Rehearing Denied July 3, 1951.

Syllabus by the Court.

Examining the record in a workmen's compensation case, the trial court did not err (1) in finding that the claimant is totally and permanently disabled from performing manual labor and physical labor; (2) in making an award in harmony with G.S.1949, 44-510(3)(c)(24); (3) nor in finding that this is an extreme case, that claimant is in need of medical treatment and services and is entitled to a further award of not exceed $750 for medical care and treatment.

Paul L. Wilbert, of Pittsburg, argued the cause, and A. B. Keller, C. A. Burnett, and Randall D. Palmer, all of Pittsburg, were with him on the briefs for appellants.

Sylvan Bruner and Morris Matuska, both of Pittsburg, argued the cause, and Pete Farabi, of Pittsburg, was with them on the briefs for appellee.

HARVEY, Chief Justice.

This was a workmen's compensation case. The claimant, James K. Polston, had been employed as a carpenter for about three years by the respondent, Ready Made Homes, Inc., which was building residences in and near Pittsburg, Kansas. He was 58 years of age. On the 28th day of September, 1949, he was laying oak flooring when a nail glanced off his hammer and struck his left eye. Before the examiner of the workmen's compensation commission the parties stipulated that the relationship of employer and workman existed at the time of the alleged accident, September 28, 1949; that the parties were governed by the Kansas workmen's compensation act; that the claimant's average weekly wage was $70; that respondent had actual knowledge of the accident within ten days; that written claim for compensation had been made as required by law; that the claimant met with an accidental injury which arose out of and in the course of his employment; that respondent had furnished and paid for medical service in a sum stated, and that claimant had been paid weekly compensation for 34 weeks at $20 per week. It was further stipulated that the issues are: (1) Nature and extent of claimant's disability, if any, and (2) the amount of compensation due, if any.

The claimant testified about the injury to his left eye and stated that he had only enough vision in the left eye to distinguish daylight from darkness. He further testified that when he was about twelve years old he got some powder in his right eye; that a tube blew out of an old muzzle loading shot gun and the powder cam into his face and right eye. He testified that when he was examined for work in Tulsa, Oklahoma, in 1941 or 1942, and the examiner blocked his left eye, he could not read as well with his right eye. A year or two before the injury to his left eye he was shooting a rifle and discovered that when shooting righthanded he could not see through the sights very well, but when he put the rifle over and shot lefthanded he could see through the sights. Through the years up until the injury to his left eye he had not noticed very much the injury to his right eye. He had worked at carpenter work and had driven a truck before he was employed by respondent and had no difficulty in seeing how to do his work; that since the injury to his left eye he had been unable to see enough with his right eye to perform any work. At the hearing before the examiner for the workmen's compensation commission counsel for claimant made it clear that he was claiming the claimant is totally and permanently disabled. The examiner thought that claim might involve the second injury fund, G.S.1949, 44-566 to 44-572, although claimant's attorney was not limiting his claim to that fund, but relied also on G.S.1949, 44-510(3)(c)(24). In view of the claimant's theory that he is totally and permanently disabled the examiner thought it best to contact the compensation commissioner to see if he desired a further record made, and a continuance was had for the hearing of medical evidence. The workmen's compensation commissioner appointed Dr. Earl E. Miller, a physician of Pittsburg, Kansas, specializing in the treatment of eye, ear, nose and throat, to make an examination of the claimant. At a further hearing it was stipulated that his written report might be offered in evidence, the parties waiving an oral examination and cross examination of the doctor. The pertinent part of his report reads: 'He does not wear glasses and the vision uncorrected is 20/100 plus 3 in the right eye and less than 20/200 in the left eye, which amounts to a loss of visual efficiency of about 45% in the right eye and about 85% in the left eye. He has central immature cataracts, worse in the left eye. Glasses do not seem to improve his vision because of the cataracts. Surgery may be of held at a later date.'

The claimant had been examined on two occasions by Desmond Curran, M.D. of Kansas City, Missouri. The pertinent part of the first report reads:

'The above patient was first seen by us on November 4, 1949. He gave a history of being struck in the left eye with a nail six weeks prior to that time. The vision in his left eye had been bad since the above accident. There was considerable watering of the left eye due to a corneal scar which is linear and in the region of about ten o'clock.

'The right eye had multiple areas of cloudy cornea with some powder impregnation which was evidently due to an old powder burn of the right eye at the age of fourteen.

'A posterior capsular cataract is present in each eye and our studies with the corneal microscope are convincing enough to say that they existed prior to the above accident and this visual impairment is due to the corneal scar and also to the fact that the eye is healing and the vision is not as good as it will be when the healing is completed.'

The second report of Doctor Curran reads:

'The last examination of the above named patient was on March 29, 1950. The vision in his right eye was 20/100 and in his left eye the vision was 20/200.

'The left cataract appears to be larger than when he was examined in November 1949. The vision has decreased in the left eye.

'I believe this cataract could be removed successfully in the near future.'

The examiner for the commissioner concluded that the claimant is not totally and permanently disabled and therefore not entitled to benefits under the second injury fund. He found that the claimant was entitled to compensation for the loss of an eye for a period of 110 weeks, G.S.1949, 44-510(3)(c)(15), and made an award accordingly.

The claimant appealed to the district court, where the court, after having carefully read and considered all the evidence and record taken and the award of the commissioner, and being fully advised in the premises, found that the award of the workmen's compensation commissioner should be modified, and specifically found that on September 28, 1949, claimant sustained an accidental injury to his left eye causing him to have a 100 per cent loss of visual acuity and to be industrially blind in that eye, which arose out of and in the course of his employment with respondent; and further found: '* * * that prior to claimant's said accidental injury to his left eye on September 28, 1949, claimant had suffered a previous disability of his right eye and has a loss of vision in the right eye of 68.875 per cent, which in conjunction with the injury to his left eye renders claimant unemployable and industrially blind and totally and permanently disabled.'

The court further found: 'That as a direct result of said accidental injury suffered by the claimant to his left eye on the 28th day of September, 1949, together with his said previous disability of claimant's right eye, the claimant became totally disabled on October 8, 1949, and is totally and permanently disabled from performing manual labor and physical labor; that by reason thereof the claimant is entitled to compensation for a period of 415 weeks provided for total and permanent disability.'

The court further found the amount due at the date of hearing and orderd it to be paid in a lump sum, less the compensation previously paid. The court further found it to be an extreme case and that the claimant is in need of medical treatment and service for his injury and disability arising therefrom and is entitled to a further award of not to exceed the statutory maximum of $750 for medical care and treatment, less the sum of $71.52 previously paid. The award made was in harmony with these findings.

From these findings and award respondent and its insurance carrier have appealed and present three questions for decision: First, that there was no substantial, competent evidence to support the finding of the district court that the claimant is totally and permanently disabled. On this point claimant testified that after his injury on September 28 he returned to work October 5; that he tried to work, but would miss the nail, hut under it or over it; that he could not fit the studding together; or climbing ladders or working on a scaffold because he couldn't see well enough; that he could not fit the studding together; that he was unable to read--the lines all ran together and it gave him a headache; that he could see a person to recognize him 20 or 30 feet away if he were not standing between him and a light; that if there was a light back of him he could not recognize him even if he was as close as seven or eight feet away; that he thought he could drive nails, but that if he did that for two or three minutes his eye got to hurting, and he said to Mr. Trout, the foreman: 'Can you see my eye?' and he said: 'Did you get hurt?' The witness answered, 'Yes,' and Mr. Trout said, 'It is watering so much I can't see it, but you better go to the doctor.' He did go to Doctor Mehrle, who put some medicine in his eye and a bandage of it. He went back and told his foreman: 'I won't be able to work,' and he went home. T...