Reeves v. Equipment Service Industries, Inc.

• Court: Kansas Supreme Court
• Writing for the Court: ALLEGRUCCI
• Citation: Reeves v. Equipment Service Industries, Inc., 777 P.2d 765, 245 Kan. 165 (Kan. 1989)
• Decision Date: 14 July 1989
• Docket Number: No. 61740,61740
• Parties: Clifford C. REEVES, Appellee, v. EQUIPMENT SERVICE INDUSTRIES, INC., and the Trinity Companies, Appellants.

Page 765

777 P.2d 765

245 Kan. 165

Clifford C. REEVES, Appellee, v. EQUIPMENT SERVICE INDUSTRIES, INC., and the Trinity Companies, Appellants.

No. 61740.

Supreme Court of Kansas.

July 14, 1989.

Syllabus by the Court

1. The scope of review by the district court in a workers' compensation case is by trial de novo on the record. The district court hears no new or additional evidence, but makes an independent adjudication of the facts and law based upon the transcript of the proceedings before the director of workers' compensation.

2. The scope of appellate review of a district court's findings of fact in a workers' compensation case is to view the evidence in the light most favorable to the prevailing party and determine whether the findings are supported by substantial competent evidence.

Brian C. Wright of Turner and Boisseau, Chartered, Wichita, argued the cause and was on the briefs, for appellants.

Michael T. Harris of Harris & Heath, Wichita, argued the cause and was on the briefs, for appellee.

ALLEGRUCCI, Justice:

This is an appeal by the employer, Equipment Service Industries, Inc., and its insurance carrier, The Trinity Companies, from the judgment of the district court awarding compensation to the claimant, Clifford C. Reeves. Reeves claims that he was injured at work, but his employer and the insurer argue that his injuries resulted from a fight with a co-employee later that night after work. The administrative law judge denied compensation, finding that the injury resulted from the fight and not during employment; the director of the division of workers' compensation affirmed this decision. The district court reviewed the administrative record and made new findings of fact that reversed the decision of the administrative law judge and awarded compensation to the claimant. The employer and its insurance carrier appealed. The Court of Appeals, in an unpublished opinion, 766 P.2d 204, affirmed the district court. We granted review.

The facts are essentially undisputed. Claimant Reeves, appellee, was employed as a diesel machinist for Equipment Service Industries, Inc. At the hearings before the administrative law judge, claimant testified that he was injured on June 25, 1986, when he assisted his employer in transferring a diesel head to a higher bench. The head weighed between 80 and 120 pounds. During the transfer, claimant felt a pinch in his neck and his arm hurt. He testified that, at the time, he said, "Ouch, that hurt." His employer did not recall hearing this statement. Claimant worked the rest of the day. After work he had two, possibly three, drinks with Seagram Seven at the shop with other employees. Later that evening, he went with his fellow employees to Ridgerunners, a club. There he drank bourbon and Seven-Up.

During the evening, claimant and a fellow employee, Frank Bookout, had an altercation of some kind. Claimant testified that he slapped Bookout and knocked him to the ground, but that Bookout did not strike him. Claimant said he did not hit a wall and slide to the ground. Immediately after the incident, he left Ridgerunners and did not know if police came to the scene. At the preliminary hearing, claimant did not recall how he got to work the next morning.

Another employee, Katherine Landwehr, testified that she walked out of the door at Ridgerunners in time to see Bookout's arm coming back and to see claimant flying backwards, hitting a wall, sliding down the wall, and hitting the floor. Claimant sat on the ground, stunned for a couple of minutes. Landwehr did not see claimant later that night, but noted that he was intoxicated the next day and drinking at work. She did not see the fight and did not actually see Bookout strike claimant.

In July 1986, claimant went to an orthopedic surgeon, Neonilo A. Tejano, due to the pain in his neck and down his right arm. His only relief from the pain was to hold his arm over his head. Dr. Tejano referred claimant to a neurosurgeon, John Hered, who performed surgery to remove a ruptured disk. During surgery, Dr. Hered found degeneration of the disk and bone spur formation. This condition was consistent either with the work injury as claimant described or with the fight, as described by witnesses for appellant Equipment Services Industries, Inc. The doctor concluded that he did not know enough facts about either incident for him to decide which caused the condition.

Although removal of the disk remedied the arm pain, the neck pain increased. Dr. Tejano performed surgery in which he fused C-4 to C-7 of the vertebrae in claimant's neck. Dr. Tejano testified that lifting of the diesel head described by claimant puts stress on the cervical spine and could have resulted in the injury that occurred. He testified that, to determine the cause of the injury, the question would be whether the pain occurred immediately after, or instantaneously with, the lifting. Dr. Tejano also noted that being hit and thrown against a wall, which jarred the neck, could cause the disk to bulge. Thus, either the injury at work or the fight could have caused the condition which required both surgeries. In conclusion, the doctor noted, if claimant had a pain in his arm at work while lifting the head, then that injury caused the disk to bulge, while the fight could have aggravated the condition. Dr. Tejano testified that claimant was disabled from the time he saw him on July 10, 1986, until the present.

The administrative law judge concluded that claimant was temporarily and totally disabled beginning July 10, 1986, and continuing until the date of his decision, which was rendered on June 19, 1987. The administrative law judge found, however, that claimant did not sustain his burden of proof to show an accidental injury arising out of and in the course of his employment on or about June 25, 1986. Instead, it was "more probable than not" that claimant was involved in a fight with another man on June 25, 1986. This resulted in claimant's being knocked backward against a wall, striking his shoulders and neck with such force that he was stunned. Thus, although the administrative law judge awarded claimant medical compensation, he denied the claim for workers' compensation. The director of the division of workers' compensation affirmed this decision.

The district court heard the case as a trial de novo on October 8, 1987. No record was made of that hearing and apparently no evidence was received in addition to the administrative record. After reading the record and hearing arguments of the parties, the district court found that the testimony of claimant was persuasive and more probably true than that of the witness who reported seeing the altercation between claimant and Bookout. The court found that claimant received personal injury by accident arising out of and in the course of his employment on or about June 25, 1986, that the disk injury and neck surgery were directly related to the work injury, and that the testimony of the doctors concluding the alleged fist fight "possibly" caused the disk injury was without foundation "and almost falls of its own weight." Finding that claimant suffers temporary total disability and had not been released for work, the court awarded temporary total disability benefits at the rate of $239 per week (the statutory maximum in effect at the time of the injury) from June 25, 1986, until the statutory maximum of $75,000 is reached or until an application for review and modification is heard by the director. The court also ordered payment of all medical expenses, past, present, and future.

Appellants raise two issues in this appeal. The primary issue is whether the district court applied the correct scope of review. However, before determining this issue on its merits, we must first consider claimant's contention that this issue was not raised before the district court and, therefore, cannot now be raised for the first time on appeal.

The issue regarding the scope of review of the district court was never mentioned in the record on appeal. Claimant contends that it was never raised below; appellants neither acknowledge nor deny that contention. Apparently a record was not made of the hearing before the district court and, therefore, no transcript is available to determine whether the issue was addressed. Failure to raise an issue before the trial court usually precludes consideration of the issue on appeal. Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 551-52, 731 P.2d 273 (1987). Arguably, parties can expect the trial court to apply the correct scope of review, but appellants are arguing the scope of review was changed by K.S.A. 77-621. Here, the trial court merely applied the scope of review that has been used in workers' compensation cases in Kansas since 1927.

The Court of Appeals did not discuss the fact that the issue had not been raised before the district court, but considered the issue on the merits. This court has never addressed the question of how the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., affects the Workers' Compensation Act, K.S.A. 44-501 et seq. Therefore, we have reviewed the entire record and find that it is appropriate for this court to consider the issue on its merits.

We first address appellants' argument that the scope of review pursuant to K.S.A.1988 Supp. 44-556 is unclear, thus implying that the district court erred in not deferring to the findings of fact made by the administrative law judge.

This court has consistently held that the scope of review of a district court regarding decisions made by the director of the division of workers' compensation gives the district court plenary power and jurisdiction to review the record and make new findings of fact and law. Gawith v. Gage's Plumbing & Heating Co., Inc., 206 Kan. 169, 171, 476 P.2d 966 (1970). This longstanding rule gives the district court the power to make findings of...