Ratzlaff v. Friedeman Service Store

• Decision Date: 06 November 1965
• Docket Number: No. 44301,44301
• Citation: 407 P.2d 513,195 Kan. 548
• Parties: Dean RATZLAFF, Appellant, v. FRIEDEMAN SERVICE STORE and Connecticut Fire Insurance Compamy, Appellees.
• Court: Kansas Supreme Court

Page 513

407 P.2d 513

195 Kan. 548

Dean RATZLAFF, Appellant, v. FRIEDEMAN SERVICE STORE and Connecticut Fire Insurance Compamy, Appellees.

No. 44301.

Supreme Court of Kansas.

Nov. 6, 1965.

Syllabus by the Court

1. In a workmen's compensation case the burden is on the claimant and he must prove the various elements that show his right to an award.

2. Following the established rule that it is the function of the district court, not that of the court of appellate review, to pass upon the facts, the record in a workmen's compensation case is examined and held: to disclose substantial, competent evidence to sustain the district court's finding that the claimant did not sustain an accidental injury on or about November 17, 1962.

J. Eugene Balloun, Great Bend, argued the cause, and H. Lee Turner and James Berglund, Great Bend, were with him on the briefs for appellant.

Richard C. Hite, Wichita, argued the cause, and W. A. Kahrs, Robert H. Nelson H. W. Fanning, Darrell D. Kellogg and Roger M. Sherwood, Wichita, were with him on the briefs for appellees.

FATZER, Justice:

In this workmen's compensation case, the claimant-appellant sought recovery of benefits for two different accidental injuries. One injury was alleged to have occurred to his cervical spine on November 17, 1962, and the other was alleged to have occurred to his low back on February 1, 1963. It was stipulated by all the parties that the claimant did suffer an accidental injury to his back on February 1, 1963, for which he was awarded temporary total disability compensation. No question is presented in this appeal concerning that award of compensation.

The sole issue presented is whether the claimant suffered an alleged accidental injury to his cervical spine on November 17, 1962. The district court found that the claimant 'did not sustain an injury on or about November 17, 1962, to the cervical spine'; hence, this appeal.

The following is a summary of the claimant's testimony before the compensation examiner. The claimant was 47 years of age, was five feet and four inches tall, weighed 113 pounds, and had an eighth grade education. He was employed in Friedeman's Service Store in Great Bend as a tire service man, where he had worked for seventeen years. He worked on tires, sold tires, mounted tires, and took tires off and mounted them on trucks and tractors, which was heavy labor. From time to time prior to November 17, 1962, he had received injuries to his body, and on November 17, 1962, he was changing a tire by using a tire changer and the bead of the tire suddenly broke loose and his body flew forward and his neck flew back, and he injured his neck. No one was present at the time of the injury, but he told the shop foreman, Herman Foos, about the accident. Ten or twelve days later the claimant went to see Dr. Kendall, of Great Bend, who took x-rays and concluded that his neck was injured, and prescribed traction treatments. While following the treatments, the claimant went back to work even though he was still suffering from a pain in his neck, because he had to support his wife. He continued the traction treatments while he worked, but he told his employer, D. L. Friedeman, and the insurance adjuster, Charles Smith, about the November 17, 1962, accident. At the time he told Friedeman about the accident, two other men, Jerry Friedeman and Elmer Friedeman, were present. The claimant further testified he told Friedeman and the insurance adjuster about an accident involving his neck which occurred on December 10, 1961, and that he told the insurance adjuster he had hurt it again recently, but he did not think the insurance adjuster 'wrote that down.'

D. L. Friedeman testified that he remembered a conversation with the claimant on December 6, 1962; that he recalled that conversation revolved around a back, not a neck, injury that claimant suffered on December 10, 1961, and not on November 17, 1962; that he completed a report with the claimant's assistance, showing the date of accident as December 10, 1961, and that the claimant did not say anything about any other date he was injured, even though Friedeman asked him why he had waited so long to report it.

Charles Smith testified he interviewed the claimant December 7, 1962, about the alleged injury to his neck and the claimant told him he injured his neck on December 10, 1961, while changing a car tire and did not mention an injury occurring on any other date.

Was there substantial, competent evidence to support the finding of the district court that the claimant did not sustain an accidental injury on November 17, 1962? We think there was. The claimant concedes the evidence mainly concerns the disputed testimony that on December 6-7, 1962, he informed Friedeman and Smith of the accident and alleged injury in question. He further concedes there was evidence to find that he did not expressly notify Friedeman on December 6, 1962, and Smith on December 7, 1962, of the accident and injury in question. He contends, however, that this fact pertains only to the issue of notice, and does not go to the issue whether there was an accidental injury on November 17, 1962. In making this contention, the claimant recognizes the general rule of law that this court's jurisdiction in compensation cases is limited to questions of law (K.S.A. 44-556), and if there is any substantial, competent evidence to support the district court's finding, it must stand. (Barr v. Builders, Inc., 179 Kan. 617, 296 P.2d 1106; Beaver v. Tammany Industries, 180 Kan. 440, 443, 304 P.2d 501; Phillips v....