Rose v. Thornton & Florence Elec. Co.

• Court: Kansas Court of Appeals
• Writing for the Court: Before FOTH; REES
• Citation: Rose v. Thornton & Florence Elec. Co., 609 P.2d 1180, 4 Kan.App.2d 669 (Kan. App. 1980)
• Decision Date: 25 April 1980
• Docket Number: No. 51178,51178
• Parties: Thomas J. ROSE, Claimant Appellee, v. THORNTON & FLORENCE ELECTRIC COMPANY and Home Insurance Company, Respondent and Insurance Carrier Appellees, and Kansas Workmen's Compensation Fund, Appellant.

Page 1180

609 P.2d 1180

4 Kan.App.2d 669

Thomas J. ROSE, Claimant Appellee, v. THORNTON & FLORENCE ELECTRIC COMPANY and Home Insurance Company, Respondent and Insurance Carrier Appellees and Kansas Workmen's Compensation Fund, Appellant.

No. 51178.

Court of Appeals of Kansas.

April 25, 1980.

Review Denied June 26, 1980.

Syllabus by the Court

1. The purpose of temporary total disability compensation is to compensate an injured worker for loss of wages during the healing period, the time it takes the worker to recover from the injury.

2. An injury is no longer temporary when maximum recovery is reached or when the worker's condition becomes medically stationary or stable.

3. Maximum recovery and medical stability are key factors in determining the time demarcation between temporary disability and permanent disability.

4. In an appeal from an award for temporary total disability in a worker's compensation case, it is held the award was erroneous for the reason that the disability was no longer temporary.

Steven L. Foulston, Wichita, for appellant.

John B. Rathmel and James B. Zongker of Render & Kamas, Wichita, for claimant appellee.

Frederick L. Haag of Foulston, Siefkin, Powers & Eberhardt, Wichita, for respondent and insurance carrier appellees.

Before FOTH, C. J., and REES and PARKS, JJ.

REES, Judge:

This appeal arises out of a worker's compensation claim made by Thomas J. Rose against his employer, Thornton & Florence Electric Company. The Workmen's Compensation Fund was properly impleaded and it appeals from district court approval of an award for temporary total disability resulting from a second injury. We reverse.

Claimant sustained an injury on September 7, 1973, for which he made a worker's compensation claim; a permanent partial disability award was entered in due course. He sustained a second injury on January 29, 1975. On November 15, 1978, more than forty-five months after the second accident, the examiner found claimant was totally disabled, had been totally disabled since the date of the second accident, and would continue to be totally disabled for an indeterminate time in the future. The examiner also found the second injury would not have occurred "but for" the preexisting back condition. An award was entered for payment of temporary total disability compensation subject to further order or payment of the statutory maximum of $50,000. The Fund is wholly responsible for payment of the second award. K.S.A.1979 Supp. 44-567(a )(1). (The current versions of relevant statutes will be cited since they do not substantially differ from those in effect at the time of claimant's second injury. See Vol. 3A of K.S.A.1974 Supp.)

When the subject award for the second injury was entered, compensation for the first injury remained collectible. Because the award is for temporary total disability, there is no reduction in the amount of compensation to be paid by the Fund which otherwise would occur pursuant to K.S.A.1979 Supp. 44-510a:

"(a ) If an employee has received compensation or if compensation is collectible under the laws of this state or any other state or under any federal law which provides compensation for personal injury by accident arising out of and in the course of employment as provided in the workmen's compensation act, and suffers a later injury, compensation payable for any permanent total or partial disability for such later injury shall be reduced, as provided in subsection (b ) of this section, by the percentage of contribution that the prior disability contributes to the overall disability following the later injury. The reduction shall be made only if the resulting permanent total or partial disability was contributed to by a prior disability and if compensation was actually paid or is collectible for such prior disability. Any reduction shall be limited to those weeks for which compensation was paid or is collectible for such prior disability and which are subsequent to the date of the later injury. The reduction shall terminate on the date the compensation for the prior disability terminates or, if settled by lump sum award, would have terminated if paid weekly under such award and compensation for any week due after this date shall be paid at the unreduced rate. Such reduction shall not apply to temporary total disability, nor shall it apply to compensation for medical treatment.

"(b ) The percentage of contribution that the prior disability contributes to the later disability shall be applied to the money rate actually collected or collectible for the prior injury and the amount so determined shall be deducted from the money rate awarded for the later injury. This reduced amount of compensation shall be the total amount payable during the period of time provided in subsection (a ), unless the disability award is increased under the provisions of K.S.A.1979 Supp. 44-528 and amendments thereto." (Emphasis added.)

On appeal, the Fund contends claimant's disability is not temporary total in nature but rather permanent partial disability. The Fund's argument is centered not on the question of total versus partial disability (see Grounds v. Triple J Constr. Co., 4 Kan.App.2d 325, 606 P.2d 484 (1980)), but rather on the distinction to be drawn between temporary and permanent disability.

It is the Fund's position that claimant's condition, his impairment, is not temporary because it cannot reasonably be expected to improve. We agree.

The material evidence in this case is found solely in the testimony of Dr. Kaufman, an orthopedic surgeon. He examined claimant after the first injury and found him to have permanent partial disability resulting from injury to his back; the disability was evaluated by Dr. Kaufman to be a functional disability of approximately 25%. Dr. Kaufman treated claimant, both in and out of the hospital, following the second injury, an injury described as an aggravation of claimant's then preexisting condition. It was the doctor's opinion that as of the date of his last examination of claimant on June 23, 1978, claimant's functional disability had increased to about 35%. According to Dr. Kaufman, claimant was totally disabled from performing manual labor when last examined. Whether claimant could obtain substantial gainful employment (see K.S.A.1979 Supp. 44-510c(b )(2)), an issue as to which lay testimony as well as medical or expert testimony may be considered (see e. g. Conner v. M & M Packing Co., 166 Kan. 98, 100, 199 P.2d 458 (1948); 3 Larson, Workmen's Compensation Law § 79.53), is not before us.

Dr. Kaufman testified that although he did not presently recommend surgery, he wished to review claimant's condition again in another six months or a year; and although claimant's physical situation quite likely is going to be...