Berger v. Hahner, Foreman & Cale, Inc. , 211 Kan. 541 ( 1973 )

Fromme, J.,

dissenting: This court has taken a thorny path fraught with many future difficulties. I am unable to distinguish between incapacity resulting from a “causalgia” condition directly related to and arising from the loss of a scheduled member and a “psychological overlay” directly related to and arising from the loss of a scheduled member. Both terms indicate a neurosis which arises from trauma. Both are a form of “conversion hysteria” arising from trauma.

As pointed out in Cornell v. Cities Service Gas Co., 138 Kan. 607, 27 P. 2d 228:

". . . Fundamentally, almost any scheduled injury under our workmen’s compensation law produces some — perhaps slight, although it may be substantial — unnatural result upon normal bodily functions. If it were to be held that all such results constituted general partial disability under the statute there would be little or no purpose in having scheduled injuries. As to this the case is ruled by the bolding of the court in Gallivan v. Swift & Co., 136 Kan. 234, 14 P. 2d 665, and allied cases.” (p. 609.)

In Riggan v. Coleman Co., 166 Kan. 234, Syl. ¶ 2, 200 P. 2d 271, this court held that an additional incapacity which is caused by a “causalgia” condition directly related to and arising from loss of use of a scheduled member is not compensable. See also Schweiger v. Sheridan Coal Co., 132 Kan. 798, Syl., 297 Pac. 688, in which a “sympathetic affliction” is held not compensable.

Today this court holds that a “psychological overlay”, “conversion hysteria” or a “traumatic neurosis” directly related to and arising from loss of an eye (a scheduled member) may be compensable as a total temporary disability.

The thorny path we take now dictates we distinguish these terms for the benefit of the examiner, the director, the bench and the bar. Either we should now do so or we should overrule our “causalgia” and “sympathetic affliction” cases.

Under the facts of the present case there is a sound basis for upholding the award of the examiner not considered by the court but inherent in the facts of the case. The injury to the eye occurred in July, 1969. After three days the claimant returned to his work and performed his duties operating a crane until January 2, 1970. Traumatic neurosis like any other compensable disability must have a direct causal connection between the injury and the neurosis. As I view the medical testimony this unfortunate claimant became disabled more than six months after he was laid off, but his condition was the result of other factors; including the lay-off from work, and arose from anxiety, apprehension and economic problems which had their inception in his lack of a job. The claimant testified before the examiner and his testimony was transcribed in the record as follows:

"He feels that he could still operate a crane if it is a good one, but he just can’t do heavy manual labor because of his heart condition. ... He does not know what he will do unless he can find someone that will hire him.

This is a case of post-traumatic neurosis arising at least six months after a scheduled injury and is not compensable because of the lack of causal connection. (Cf. Phelps Dodge Corp. v. Industrial Com., 46 Ariz. 162, 49 P. 2d 391.)

The majority opinion in this case is based upon an erroneous premise that the psychological overlay was precipitated by a scheduled injury to the eye, a fact not supported by the evidence and not found by the lower court. The judgment of the examiner, the director and the district court should be affirmed.

One additional matter deserves comment.

The award of the examiner, which was approved by the director and the district court, was based upon the scheduled injury section of the act (K. S. A. 44-510d as amended) which provides in part:

“. . . If there is an award of permanent disability as a result of the injury there shall be a presumption that disability existed immediately after said injury and compensation is to be paid for not to exceed the number of weeks allowed in the following schedule: . . .” (Emphasis added.)

Because of the foregoing statutory presumption it was not necessary for the examiner or the trial court to determine when the disability began in order to award compensation for the loss of the sight of one eye.

Now, however, this court has ordered an award for total temporary disability under 44-510c which in my opinion requires a determination of when the total temporary disability began.

When did the claimant’s total temporary disability begin? The injury occurred July 25, 1969. He was off work three days. He returned to the job and continued to work as a crane operator until January 2, 1970 (a period of almost six months). Then he was laid off — not because of his injury but because of lack of available work. He was looking for work as late as March 15, 1970. When then did this “causalgia” or “conversion hysteria” set in? The medical testimony is based upon interviews with the claimant and his wife in May and July, 1970. The medical testimony is based upon social history and tests made. I discern nothing in the record from which the trial court or this court can determine the date of the inception of this disability. This court should direct the trial court on how to proceed to determine that question.