Puckett v. C. K. Minter Drilling Co., 44338
| Decision Date | 22 January 1966 |
| Docket Number | No. 44338,44338 |
| Citation | 196 Kan. 196,410 P.2d 414 |
| Parties | Forrest PUCKETT, Appellee and Cross-Appellant, v. C. K. MINTER DRILLING COMPANY and United States Fidelity and Guaranty Company, Appellants and Cross-Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The purpose evidenced by K.S.A. 44-510(3)(c)(24) is that an injured workman should be compensated for such loss in earning capacity as results from a permanent partial disability.
2. The correct standard for determining the loss in earning capacity of an injured workman is the extent to which 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 he was injured.
3. The record in a workmen's compensation proceeding is examined and it is held: (1) That the test employed by the district court to determine the amount due for permanent partial disability was proper; and (2) that the court's finding that claimant is not wholly disabled is within the evidence shown in the record.
Richard C. Hite, Wichita, argued the cause, and William A. Kahrs, Robert H Nelson, H. W. Fanning, Darrell D. Kellogg and Roger Sherwood, Wichita, were with him on the brief, for appellants and cross-appellees.
Ted R. Morgan, Lakin, argued the cause, and was on the brief, for appellee and cross-appellant.
This is a workmen's compensation case. The claimant, Forrest Puckett, was employed as an oil field driller by the respondent, C. K. Minter Drilling Company. While so employed, he was struck on the side of the head by a heavy bushing, as a result of which he received a concussion, skull fracture and serious injury to his back.
At a hearing before the workmen's compensation examiner, where it was stipulated that claimant sustained personal injury by accident arising out of and in the course of his employment, the claimant was found to have sustained a twenty-five percent permanent partial disability and was awarded compensation on that basis. This award was approved by the Workmen's Compensation Director. On appeal, the district court found that claimant had suffered permanent partial disability of seventy-five percent and modified the award accordingly. The respondent and its insurance carrier have appealed from the judgment of the district court and the claimant has cross-appealed. We shall refer to the appellants and cross-appellees as the respondents and to the appellee and cross-appellant as the claimant.
The issue presented in this appeal is whether the district court applied the correct standard in determining the extent of the claimant's disability.
Before this question can be answered, a brief summary of the pertinent evidence is needed. The claimant testified, in substance, that he is 52 years old, married and has four children, two at home and two in college; that he has an 8th grade education and has always used his strength to make a living; that he had worked as an oil filed driller off and on about four years, before which he had done welding in the oil fields and prior to that had been a farmer; that all three occupations require a great deal of physical strength and labor and the work involves heavy lifting and straining.
Claimant also testified that after he had undergone a double spinal fusion, he tried general construction work but had to quit because it hurt his back and leg; since his operation he worked for a time at mechanical work and bench welding of small items and now does light machine work and bench welding for his old employer, where he has a hoist and is helped by fellow-employees; the job is part time, but not permanent; that he did receive $3.25 an hour in the oil fields but is paid only $1.65 per hour at his present job; that he cannot do drilling work or oil field welding now because he has to protect his back; that he still has difficulty with his back and legs when he goes home, and that his left leg hurts at night.
Dr. Cline D. Hensley, a Wichita physician specializing in orthopedic surgery who had performed the spinal fusion, testified that it would not be advisable for the claimant to lift heavy objects such as truck tires, pipes and objects of that nature, and that he should avoid shoveling and handling big trucks and machinery; that claimant is totally disabled for repeated heavy manual labor and should change his employment rather than do lifting and straining throughout an entire day; that claimant has a twenty-five percent permanent partial disability in the general labor market; that in arriving at this rating he did not take into consideration the type of work claimant had done during his lifetime or claimant's previous work experience. Dr. Hensley further testified:
On the basis of this record, the trial court made findings of fact which, in general, were to the effect that Dr. Hensley's rating of twenty-five percent disability was not correct because the standard he used was wrong; that the claimant's contention of one hundred percent disability was also faulty; and that claimant had suffered permanent partial disability of seventy-five percent. The court also specifically found:
'3. That the actual functions of a driller involve continuous heavy manual labor and lifting to such a large extent that the job of a driller cannot now be performed by the claimant.
'4. That the loss of earning power by the workman is the fundamental basis for allowance of compensation; that as used in the Kansas decisions, the words 'obtaining and retaining work in the open labor market' mean the ability to obtain and retain work of the same kind and character that the workman was able to perform prior to his injury.
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'7. That the correct standard of disability rating is the extent to which the claimant is impaired from performing the various functions of a driller; that in order to determine this impairment it is necessary to determine the functions of a driller.
Both claimant and respondents criticize the conclusions reached by the trial court, and have appealed from its judgment.
We shall consider first the respondents' contention that the basis used by Dr. Hensley in rating claimant's disability was correct, and that the trial court erred in not accepting the doctor's evaluation of disability. Coupled with this contention is the corollary claim that the trial court adopted an erroneous method of rating disability. We note, at this point, that the respondents have abandoned the claim originally made that the findings are unsupported by the evidence and now rely solely on the proposition that the findings are based on an improper conception of the law.
The statutory formula for measuring the compensation to be allowed for permanent partial disability resulting from non-scheduled injuries is set out in K.S.A. 44-510(3)(c)(24) as being '* * * sixty percent (60%) of the difference between the amount he [workman] was earning prior to said injury * * * and the amount he is able to earn after such injury in employment * * *' It will be seen that the legislature prescribed no method for determining the amount an injured workman is able to earn in employment after his injury. Many years ago, however, this court in Gorrell v. Battelle, 93 Kan. 370, 144 P. 244, said of a similar predecessor statute (L.1911, ch. 218, Sec. 12):
'It will be observed that compensation is awarded for incapacity to work as a result of injury. * * *
'What the Legislature had in mind was compensation for loss of earning power as a workman as a result of injury. * * *' (p. 375, 144 P. p. 246.)
Two years later, in Sauvain v. Battelle, 100 Kan. 468, 164 P. 1086, a case wherein Gailey v. Peet Bros. Manufacturing Co., 98 Kan. 53, 157 P. 431, and Dennis v. Cafferty, 99 Kan. 810, 163 P. 461, were cited and followed, it was said by this court:
'It is settled that, when one is totally or partially incapacitated for hard manual labor, he is not to be denied compensation because he obtains employment even at better wages at a task which he is physically able to perform.'
Thus was fashioned the pattern which has consistently guided the steps of this court to the present date. In Beal v. El Dorado Refining Co., 132 Kan. 666, 296 P. 723, we declared:
In a somewhat later case, Rupp v. Jacobs, 149 Kan. 712, 88 P.2d 1102, this court asserted that:
'* * * The whole theory underlying the compensation act is that by reason of his accident the employer is required to compensate the workman for loss resulting by reason of his inability to perform the same labor he was able to perform prior to the injury * * *' (p. 717, 88 P.2d p. 1105.)
A statement which fairly represents the tenor of our several holdings is found in the more recent case of Daugherty v....
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...and to perform and retain, work of the same type and character he was able to perform before he was injured. (Puckett v. C. K. Minter Drilling Co., 196 Kan. 196, 410 P.2d 414.) All our cases involving eye injuries to claimants, such as here presented, with the exception of Moore v. Western ......
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