Rogers v. Board of Public Utilities of Kansas City

• Decision Date: 10 June 1944
• Docket Number: 36143.
• Citation: 149 P.2d 632,158 Kan. 693
• Parties: ROGERS v. BOARD OF PUBLIC UTILITIES OF KANSAS CITY.
• Court: Kansas Supreme Court

149 P.2d 632

158 Kan. 693

ROGERS v. BOARD OF PUBLIC UTILITIES OF KANSAS CITY.

No. 36143.

Supreme Court of Kansas

June 10, 1944

Rehearing Denied Aug. 7, 1944.

Syllabus by the Court.

Where a workman while engaged in performance of his duties suffered injury in an accident which resulted in sustaining of two separate and distinct hernias, workman was entitled to compensation for each of the injuries so received in accordance with schedule contained in the Workmen's Compensation Law. Gen.St. Supp. 1943, 44-510(3) (c).

It is common knowledge that in absence of some unusual condition a hernia is curable by scientific means and its result so far as disability is concerned is no more partial in character and permanent in quality than loss of certain members of body referred to in schedule contained in Workmen's Compensation Law. Gen.St. Supp. 1943, 44-510(3) (c).

When a statute is susceptible of more than one construction it must be given that construction which considered in its entirety gives expression to its intent and purpose.

Under subdivision 3(c) of section 44-510 setting up schedule providing for compensation to be paid for injuries to specific parts of the body, hernia alone is a scheduled injury for which compensation has been fixed regardless of its character or quality. Gen.St.Supp. 1943, 44-510(3) (c).

The allowance of an additional award beyond statutory schedule provided in Workmen's Compensation Law is applicable only where some subsequent complication, distinct from the scheduled injury itself as orginally sustained, but resulting from its sufferance, has developed and affects that portion of the body originally injured or some member of it, and results in further and additional temporary or permanent disability. Gen.St.Supp. 1943, 44-510(3) (b) (c).

Where only injuries suffered by workman were two hernias, but workman's diabetic condition prevented a successful operation, workman was not entitled to an additional award beyond statutory schedule for the two hernias on ground of subsequent unusual and extraordinary conditions, since subsequent complications were not established by the evidence. Gen. St. Supp. 1943, 44-510(3) (b) (c).

Where workman was entitled to compensation for injuries scheduled under subdivision 3(c) of section 44-510, and such injuries consisted only of scheduled ones, compensation authorized under terms of such subdivision for disability resulting from them was exclusive of all other injuries provided for in the Workmen's Compensation Law, and neither the Compensation Commissioner nor the district court had jurisdiction to make an award on any other basis than that provided for therein. Gen.St.Supp. 1943, 44-510(3) (b) (c).

1. The provisions of G.S.1943 Supp., 44-510 (3) (c), which allow the recovery of compensation for traumatic hernia, do not limit that recovery to a single hernia, and where a workman while engaged in the performance of his duties suffers injuries in an accident which result in the sustaining of two separate and distinct hernias, he is entitled to compensation for each of the injuries so received.

2. When a workman is entitled to compensation for injuries scheduled under subdivision 3 (c) of the section of the statute referred to in the preceding paragraph of the syllabus, and such injuries consist of scheduled ones and of them alone the compensation authorized under the terms of such subdivision for disability resulting from them is exclusive of all other provided for in the Compensation Act and the commissioner or trial court is without jurisdiction to make an award on any any other basis than that provided for therein.

Appeal from District Court, Wyandotte County, Division No. 1; E. L Fischer, Judge.

Proceeding under the Workmen's Compensation Law by George R. Rogers claimant, opposed by the Board of Public Utilities of Kansas City, Kan., employer and self-insurer. From a judgment confirming the award of the Workmen's Compensation Commission, the employer appeals.

Modified and remanded.

William Drennan, of Kansas City (Otto Ziegelmeyer and Charles W. Lowder, both of Kansas City, on the brief), for appellant.

Joseph Cohen, of Kansas City (David H. Bresler, of Kansas City, Mo., on the brief), for appellee.

PARKER Justice.

This is a workmen's compensation case. The claimant recovered in the proceeding before the compensation commissioner and in the district court. The respondent appeals.

So far as it affects appellate review no dispute exists as to the facts. The respondent operates the electric power, light, and water system in Kansas City, Kansas, and is subject to the workmen's compensation laws of the state of Kansas. The claimant, a man 64 years of age, worked for it as a steam locomotive crane operator for almost a quarter of a century and was a trustworthy and valued employee. On February 19, 1943, while engaged in the performance of his duties he suffered an accidental injury resulting in a double hernia--a direct inguinal hernia on the right side and a direct hernia on the left side. For twelve years preceding its occurrence he had been suffering from and taking treatments for diabetes. Twenty-two years before its happening a physician had performed a left side herniotomy on claimant and eight years prior thereto he had undergone a similar operation.

There was medical testimony to the effect claimant could not be successfully operated upon because of his diabetic condition and that in the plight he was in when examined he was totally disabled from performing manual labor. In addition, one expert testified that aside from the diabetic complication an operation, if performed, would not be successful for the reason it would not hold and the hernia would come hack notwithstanding.

No evidence is to be found in the record claimant suffered any other injuries as a result of the accident or that his diabetic condition was in any way affected or aggravated by those he did receive. Nor does the record disclose any evidence, either direct or inferential, his status, so far as ability to perform manual labor was concerned, would improve or change without an operation.

Based upon the evidence just summarized, the compensation commissioner made the following finding and a corresponding award:

"It is found from the evidence that the claimant herein as a result of the accidental injury of February 19, 1943, has been, is now and will be temporarily totally disabled for an indefinite period in the future and that he is, therefore, entitled to compensation for not to exceed four hundred fifteen (415) weeks, payable at the rate of eighteen ($18) dollars per week. Compensation now due and owing for thirty-two (32) weeks from February 26, 1943, one week after the accidental injury, to October 8, 1943, or five hundred seventy-six ($576) dollars should be paid in one lump sum. The balance of the compensation awarded this claimant should be paid at the rate of eighteen ($18) dollars per week until fully paid, or until the further order of the Commissioner."

In explanation of his award, which was in writing, the commissioner among other things stated:

"The respondent company contends that claimant has a scheduled injury of hernia for which it is willing to pay the statutory amount of compensation. The claimant contends that by reason of the double hernia he is not [sic] temporarily totally disabled for an indefinite period and will continue to be in such condition by reason of the fact that his preexisting condition of diabetes prevents a successful operation being performed.

"It is true that a hernia is an injury set out in the schedule, but it cannot be applied as affecting a body member. A hernia occurs in the body itself and not to one of the body members. In this respect a hernia injury is different than the rest of the scheduled members. In the opinion of this Commissioner the age of this man, his diabetic condition, his lack of education, and his two hernias, do render him totally disabled as far as the performance of work and labor as contemplated by the Workmen's Compensation Law is concerned. His condition in the opinion of this Commissioner, is covered by the statute previously quoted at the beginning of this award [G.S.1935, 44-510, subd. 3(b)]. He is now temporarily totally disabled by reason of a scheduled injury, as well as the preexisting condition of diabetes, and his temporary total disability will last for an indefinite and uncertain period of not more than four hundred fifteen weeks, and it is so found. In connection with this opinion see the case of Texas Employers Ins. Ass'n v. Howell, Tex.Civ.App., 37 S.W.2d 343".

On appeal the district court affirmed the award made by the commissioner but based its affirmance upon the following grounds, which as they appear in the journal entry of judgment are:

"That claimant's disability, being temporary and total, is not such a disability as is covered by the schedule provided for hernia in the Workmen's Compensation Act.

"That the schedule provided in the Workmen's Compensation Act covers only a single traumatic hernia and does not cover double traumatic hernias of the character and kind which this court finds to exist in the claimant."

Appellant's specification of errors, while predicated on several grounds really raises but one material issue. Briefly stated, its position is that the allowance to the appellee by the commissioner and the district court of "temporary total disability for a period not to exceed 415 weeks" is contrary to the provisions of the Workmen's Compensation Act. In fact in the final paragraph of its brief it frankly states:

"*** we believe the judgment of the court should be that the appellee is entitled to compensation for his scheduled

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