Wilson v. Santa Fe Trail Transp. Co.
| Decision Date | 12 December 1959 |
| Docket Number | No. 41558,41558 |
| Citation | 185 Kan. 725,347 P.2d 235 |
| Parties | Elmer H. WILSON, Claimant, Appellee, v. SANTA FE TRAIL TRANSPORTATION COMPANY, Self-Insurer, Respondent, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The record in a workmen's compensation proceeding is examined where the claimant alleged that he suffered an accident (coronary occlusion) and upon the application of familiar rules of law fully set forth in the opinion it is held: (2) Written claim for compensation was filed by the claimant with his employer within the time specified by the workmen's compensation act; and (b) the judgment awarding compensation is supported by substantial, competent evidence proving that claimant met with an accident arising out of and in the course of his employment.
2. On appeal in a workmen's compensation case to the district court where the judgment entered for the claimant is that the court 'is of the opinion that there was sufficient evidence introduced in the hearing before the Commissioner to support his findings,' it must be treated in effect as a statement that after independent determination the court 'adopted' the commissioner's findings and award.
3. Upon the facts set forth in the opinion G.S.1957 Supp., 44-557, is construed to mean that if the employer has actual knowledge of the accident, the injured workman is excused from giving the notice required under the provisions of G.S.1949, 44-520, and failure of the employer to file a report of accident with the commissioner of an accident to an employee, which occurs in the course of his employment, extends the limitation of time within which to commence a proceeding under the workmen's compensation act to one year.
4. At the time of the alleged accident to the claimant on February 11, 1957, G.S.1957 Supp., 44-520a, as amended in 1955, required the claimant to commence his proceeding before the workmen's compensation commissioner within one hundred eighty days. Effective July 1, 1957, prior to the expiration of one hundred eighty days from the date of the accident, G.S.1957 Supp., 44-557, was amended to give the claimant one year within which to commence a proceeding before the workmen's compensation commissioner, where the employer failed to file a report of accident with the commissioner within seven days after the receipt of knowledge by the employer of such accident, and it is held: The provisions as to the time within which to commence a proceeding before the workmen's compensation commissioner are not a substantive part of the contractual relation, but are procedural and remedial in nature, and whether the proceeding was commenced in time is to be determined under the provisions of 44-557, as amended in 1957.
5. Whether, upon the facts and circumstances stated in the opinion, ostensibly inconsistent positions taken by the claimant, prior to the filing of his claim for compensation under the workmen's compensation act, alter the right of the claimant to recover workmen's compensation from the respondent, must be viewed as evidence before the commissioner to be weighed and considered as other evidence, and upon appeal to the Supreme Court the question presented is whether as a matter of law there is substantial, competent evidence to support the findings made.
J. B. Reeves, Topeka, argued the cause, and C. J. Putt, W. E. Treadway and Edwin M. Wheeler, Topeka, were with him on the brief for appellant.
Wade A. Myers, Emporia, argued the cause, and Champ Graham, Emporia, was with him on the brief for appellee.
This is a workmen's compensation case. By written claim served on the respondent-employer on the 21st day of November, 1957, the claimant alleged that he suffered a coronary thrombosis on the 11th day of February, 1957, while in the employ of the respondent. After hearing the case, the commissioner on the 18th day of July, 1958, entered an award in favor of the claimant and against the respondent, a selfinsurer, for twenty-five weeks of temporary total disability, followed by 60% permanent partial general disability not to exceed the remaining three hundred ninety weeks, all payable at the rate of $32 per week, subject to review and modification as provided by law.
On appeal to the district court judgment was entered for the claimant as follows: The court 'is of the opinion that there was sufficient evidence introduced in the hearing before the Commissioner to support his findings.' From the foregoing order the respondent has duly perfected an appeal to this court.
The questions presented for review are stated by the appellant in its brief as follows:
The third question may be summarily answered. The trial court in October, 1958, had before it the oral arguments of counsel, briefs and transcripts. It took the matter under advisement and finally in March, 1959, five months later, rendered its judgment. It could hardly be suggested the trial court made a quick decision. The point presented was before this court in Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 339 P.2d 41. The rule was acknowledged that on appeal in a workmen's compensation proceeding, the district court must try the case de novo on the record and make its own findings. In the Davis case the judgment of the trial court was worded in language similar to that above, and it was said the court's statement in its letter of judgment to counsel must be treated in effect as a statement that after independent determination it 'adopted' the commissioner's findings and award. Thus viewed, it cannot be said here the court erred in entering judgment for the claimant on this point.
The facts, supported by the evidence, are that on February 11, 1957, the claimant, Elmer H. Wilson, while unloading furniture, felt a sharp pain go through his chest. At the time he experienced the sharp pain he was lifting a refrigerator. He was working for the respondent, The Santa Fe Trail Transportation Company, at the time of the attack as a pick-up truck operator. He continued with his work a few minutes there and then told Mr. Morfitt, a fellow employee who was also a pick-up truck operator for the respondent, he did not feel well and that he was going into town. He then went to Sears and Roebuck to pick up some freight, suffering with pain, and lifted sacks weighing approximately 75 to 125 pounds, and the pain became worse. Thereupon he sat in his truck for approximately an hour with no relief. He next went to Haynes Feed Store across the alley from Sears and Roebuck and telephoned his wife to bring him some anacin in an effort to get relief. While in the feed store he talked to Mr. John Fuller, a feed salesman, and told him he did not feel well and that he had severe pains. Mr. Fuller, when asked the purpose of the claimant's call on the 11th day of February, 1957, testified:
'Well, he just come in there and said he was sicker than hell, and said he wanted to call his wife; that's just about the way he worded it.'
He further testified the claimant used the telephone and he later saw the claimant with Mrs. Wilson, his wife, in the alley.
The claimant testified his wife came with some anacin. She asked him to leave his truck and go to the doctor but he told her he would 'try to suffer it out.' The claimant then made another call and returned to the respondent's dock about 4:00 p. m., where he spoke with Mr. Scheck and told him he had a 'hurting in my shoulders.' He sat around on the dock and did a little work there. At 5:30 that evening his father-in-law came to take him home.
His wife then called Dr. Charles R. Hopper who wanted to come by and give the claimant a shot, but the claimant declined thinking that he might get relief during the night. The claimant then propped himself up on the divan without taking off his clothes where he remained all night. He testified that he did not get any sleep that night and the pain was gradually getting worse. A little after 12:00 noon on the following day his wife took him to Dr. Hopper's office. After examination the doctor informed him he had suffered a heart attack twelve to twenty-four hours previous. The claimant was thereupon hospitalized under oxygen. He was released from the hospital on the 14th day of March and sent home by ambulance for bed rest for three weeks, during which time Dr. Hopper continued to visit him. Later he entered the Veterans Hospital in Topeka about May 16th and was there for nine days.
When the claimant returned to Emporia he continued to make visits to the hospital to see Dr. Hopper, his private physician. In the month of June, 1957, he saw Dr. Funston J. Eckdall, the respondent's contract doctor in Emporia, at the hospital in an attempt to get a release to return to work. Dr. Eckdall informed the claimant if he wanted to see his family raised he could not go back to work.
Dr. Hopper testified he consulted with Dr. Eckdall and when asked why he happened to consult with Dr. Eckdall he answered:
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