Anderson v. Kinsley Sand & Gravel, Inc. , 221 Kan. 191 ( 1976 )

The opinion of the court was delivered by

Owsley, J.;

Claimant in a workmen’s compensation case was injured on October 24, 1972, when his sand truck ran off a road between Kinsley and Gray, Kansas. As his truck ran into the ditch and caught fire, sand in the box pushed the cab forward, pinning claimant. He felt a sharp pain in his left hip. By crawling through the windshield he escaped the burning truck. At the time of the accident claimant was hauling a load of sand for the respondent, Kinsley Sand & Gravel, Inc. As a result of the accident claimant suffered bums, superficial abrasions and injury to his lower left quadrant.

At a hearing before the workmen’s compensation examiner, where it was stipulated that claimant sustained a personal injury, claimant was found to have sustained temporary total disability and a twenty-five percent permanent partial disability, and was awarded compensation on that basis. This award was approved by the workmen’s compensation director.

On appeal the issues were whether an employer-employee relationship existed between claimant and respondent at the time of the accident, and the nature and extent of disability. The district court found the employer-employee relationship did exist, but found claimant did not suffer permanent partial disability and denied recovery.

Claimant has appealed, claiming the district court’s finding that he had no permanent partial disability is contrary to the law and the evidence. Respondent’s cross-appeal asserts the finding by the district court that an employer-employee relationship existed at the time of claimant’s injury is not supported by substantial competent evidence.

A search of the record fails to disclose any effort on the part of claimant to relate his injury to the type of work he was performing at the time the injury occurred. We must determine whether claimant is entitled to recover for functional disability when he has failed to relate the functional disability to work disability.

Charles F. McElhinney, M. D., testified that claimant was referred to him by Dr. McKim of Kinsley, who rendered emergency treatment; that he first saw claimant on October 24, 1972, and at that time he was complaining of pain in his chest and upper abdomen, in his left buttock, left hand and arm, and pain and numbness around his left eye; that examination revealed a large abrasion and loss of superficial tissue over the left buttock and lower left hip, first and second degree burns on the left buttock and left hand and arm, pain in the left hip with motion, as well as “guarding and tenderness . . . and rebound” in the upper abdomen. Since claimant had been administered narcotics which -failed to relax abdominal muscles, internal abdominal injury was suspected and an exploratory laparotomy was performed disclosing no major abdominal injury. X-rays of claimant’s left hip and pelvis were negative.

Dr. McElhinney testified that at that time his major concern was possible internal injury; therefore, he did not focus his examination on the hip problem. During claimant’s hospitalization he was at bed rest and hip pain was therefore minimal. After claimant was released from the hospital, he complained to the doctor of hip pain. The doctor noted complainant walked with a limp and had some atrophy of the left thigh muscle. He was still experiencing those problems when Dr. McElhinney released him on January 16, 1973, to return to work.

In a letter to claimant’s counsel, dated February 9, 1973, Dr. McElhinney stated that at the time he released claimant from his care, claimant was no longer disabled and was able to return to work. On direct examination he indicated his statement meant the bums had healed, as had the abdominal incision, and it did not refer to claimant’s hip and leg problems. He testified that if claimant was continuing to have pain, weakness and limitation of motion in the hip and leg, that would constitute a disability. He did not have an opinion as to the degree of disability.

Larry E. Stout, D. C., testified that he treated claimant from March 30, 1973, until September 17, 1974; that claimant complained of pain in the left hip radiating into the groin area, a burning sensation between the shoulder blades, and numbness in the left eye; and that complainant indicated the pain he experienced in his left leg while walking subsequent to the accident had lessened but would not go away. Dr. Stout conducted the Fabere-Patrick test of the left hip socket, which produced pain in the left hip. X-ray examination revealed a curvature in the dorsal spine, malformation in the articulation of the lumbosacral joints causing instability of the back, an increase in the lumbosacral angle, and a narrowing of the posterior of the disc space between the fifth lumbar vertebra and the sacrum, all of which the doctor attributed to a sprain and strain injury to the low back as a result of the accident. Treatment resulted in some improvement of claimant’s condition, but he continued to experience pain, weakness and limitation of motion in the left hip and leg.

Dr. Stout determined claimant had fifteen percent permanent partial general bodily disability, precluding work such as carrying heavy objects or climbing, which would aggravate the pain in the left leg and hip; that bending and squatting would also aggravate his condition; and that it was doubtful future treatment would improve the condition.

Claimant testified that he went to work as a punch press operator when Dr. McElhinney permitted him to do so. Later, he became a welder and was so employed at the time of the hearing. He testified he experienced pain and weakness in his left hip and leg in lifting heavy objects while he welded; that when he dressed and was standing on his left leg to get his right leg into his pants, he had to hold on to something to steady himself; that fast walking and running movements were restricted because his legs tired out; that he had trouble climbing and stepping up on to objects; and that he had to stop occasionally to pop his hip into place. Based on these facts, he estimated his disability at thirty percent.

Claimant’s father-in-law testified he had observed claimant since the accident and claimant could not play golf or hunt as he did before the accident because he couldn’t walk that far anymore. Weather also seemed to affect claimant’s hip and leg, as there were times when he limped worse than usual.

The record fails to disclose any evidence produced by respondent relative to claimant’s injuries. The only evidence introduced by respondent related to the issue of whether claimant was an employee of respondent.

The primary purpose of the workmen’s compensation act is to burden industry with the economic loss to a workman resulting from accidental injuries sustained by the workman in the course of his employment. (K. S. A. 44-501; Craig v. Electrolux Corporation, 212 Kan. 75, 510 P. 2d 138; Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 358 P. 2d 676.) To make such legislative intent effectual, the courts are directed to interpret the act liberally in favor of the injured worker. (Streff v. Goodyear Tire & Rubber Co., 211 Kan. 898, 508 P. 2d 495; Chapman v. Victory Sand & Stone Co., 197 Kan. 377, 416 P. 2d 754; Taylor v. Armour & Co., 186 Kan. 51, 348 P. 2d 632.)

In construing the act, our decisions have held that the loss of earning power of the workman is the theoretical basis for allowance of compensation. (Gutierrez v. Harper Construction Co., 194 Kan. 287, 398 P. 2d 278; Daugherty v. National Gypsum Co., 182 Kan. 197, 318 P. 2d 1012.) We have repeatedly stated that the correct standard for determining loss in earning capacity is the extent to which a workman’s ability has been impaired to procure in the open labor market and to perform and retain work of the same type and character he was able to perform before he was injured. (Reichuber v. Cook Well Servicing, 220 Kan. 93, 551 P. 2d 810; Davis v. Winchester Packing Co., 204 Kan. 215, 460 P. 2d 617; Gray v. Beller, 199 Kan. 284, 428 P. 2d 833; Mooney v. Harrison, 199 Kan. 162, 427 P. 2d 457; Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P. 2d 414.) This rule has been followed even in those cases where the injured workman may actually earn a greater salary after the injury than he did before. (McGhee v. Sinclair Refining Co., 146 Kan. 653, 659, 73 P. 2d 39.)

We have reviewed all the workmen’s compensation cases appearing before this court and have failed to find a fact situation similar to the instant case. The distinction between functional disability and work disability has been accepted by this court in most instances without explanation. Functional disability is the loss of a part of the total physiological capabilities of the human body. Work disability is that portion of the job requirements that a workman is unable to perform by reason of an injury. Work disability generally oarries a higher percentage of disability than functional disability. Many of our cases center around an effort on the part of the claimant to transpose a lower functional disability into a higher work disability. Out of these cases arose the standard for determining loss in earning oapacity of an injured workman as hereinbefore stated. If we apply this standard strictly to the facts in this case, the claimant should be denied permanent partial disability. It was on this basis the district court denied compensation. Its memorandum decision stated:

“. . . We do not have a claimant that has always engaged in occupations requiring hard physical exertion. Claimant here was a truck driver and after an accident engaged in an occupation requiring hard physical exertion and claims he cannot do 30% of what he could do before the accident. Since there is no evidence to suggest that claimant cannot perform the same labor he was able to perform prior to the injury, the Court would conclude that claimant has no[t] suffered a permanent partial disability.”

The effect of the trial court’s judgment could result in a denial of workmen’s compensation benefits, even though the workman suffered a substantial injury, if he could not relate it to his work. This would be true of any sedentary employment such as a bookkeeper, cashier or bank teller receiving a non-scheduled injury. Upon a showing that this type of employee could perform his duties despite his injury, no compensation would be allowed. Similarly, in the instant case, the absence of a showing that claimant was unable to resume duties he was performing at the time of the injury would be a bar to the allowance of compensation.

We question the logic of this result and doubt it fulfills the intent of the workmens compensation act. We have heretofore stated that recovery for loss of earning power is a basic purpose of the act. In accordance with this principle we conclude a workman is entitled to recover an award equal to the percentage of his physiological capabilities lost by reason of an injury occurring within the scope of his employment. Stated more distinctly, he should recover his functional disability.

We believe the following illustration might serve to disclose the logic of our decision. Assume three employees of a construction company — a common laborer, a timekeeper, and a supervisor —were working on the same job. In the course of their employment and while traveling from one job site to another, they were involved in an automobile accident The common laborer received a whiplash injury which resulted in a ten percent functional disability. The timekeeper sustained a serious leg injury, which required amputation above the knee. The supervisor suffered a back injury which required a laminectomy and a fusion, resulting in a twenty-five percent functional disability.

At the workmens compensation hearing, the common laborer presented evidence to establish his ten percent functional disability resulted in a sixty percent work disability. The propriety of doing so is justified by our decisions of Gray v. Beller, supra; Puckett v. Minter Drilling Co., supra; Gutierrez v. Harper Construction Co., supra; and Taber v. Tole Landscape Co., 188 Kan. 312, 362 P. 2d 17. If the proof is convincing to the trier of the facts, the laborer should recover an award based on a sixty percent permanent partial disability.

At the timekeepers compensation hearing, he established that he received a scheduled injury for the loss of his leg. Because he was not required to prove his scheduled injury affected his work ability, he was entitled to recover compensation under the schedule. (Gross v. Herb Lungren Chevrolet, Inc., 220 Kan. 585, 587, 552 P. 2d 1360.)

At the hearing for the supervisor, it is established that he received an injury during the course of his employment, resulting in a twenty-five percent functional disability. He failed to establish that the injury affected his ability to obtain or retain employment of the same or similar nature as he had at the time of the accident. Under the rationale of the trial court, he would receive no compensation (other than temporary partial or temporary total disability and medical) because he failed to relate his injury to his work. This would be true even though two co-workers injured in the same accident received awards.

The plight of the supervisor is analogous to the position of claimant in the instant case. He, too, was denied recovery because he did not relate his functional disability to work disability. Applying the rules of construction heretofore set forth, it would appear it was not the intent of the legislature to deny recovery to the supervisor and permit recovery by the common laborer and timekeeper. Giving consideration to the purpose of the act and to the heretofore stated rules of liberal construction, the foregoing illustration supports the logic of our belief that the supervisor in the illustration and the claimant in the instant case should be entitled to recover an award equal to the percentage of functional disability irrespective of its relationship to work disability.

We are charged with the rule that we should eonsider all the testimony in the light most favorable to the prevailing party below and if the record contains any evidence which supports the trial court’s judgment, that judgment must be affirmed. (Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259.) We cannot apply this rule where the evidence is uncontradicted. In Berry v. Wondra, 173 Kan. 273, 246 P. 2d 282, this court said:

“Uncontradicted evidence which is not improbable or unreasonable cannot be disregarded unless shown to be untrustworthy, and is ordinarily regarded as conclusive.” (Syl. 3.)

The evidence before the district court was uncontradicted that claimant suffered a functional disability which was permanent in nature. We cannot say the evidence was inherently improbable, unreasonable, self-contradictory, or inconsistent with facts or circumstances in evidence. For this reason we believe it proper to reverse the judgment of the district court and remand the case, with instructions to determine the percentage of functional disability based on the record and enter an award in accordance with the determination.

Turning to the cross-appeal, we face the issue of whether claimant was an employee of the respondent sand company. The district court found an employer-employee relationship existed. The scope of review of such an issue was set forth in Jones v. City of Dodge City, 194 Kan. 777, 402 P. 2d 108:

“Under K. S. A. 44-556, the appellate jurisdiction of this court in workmen’s compensation cases is limited to reviewing questions of law only. Whether the district court’s judgment in a compensation case is supported by substantial competent evidence is a question of law as distinguished from a question of fact. (Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846, 148 A. L. R., Anno., 1131; Coble v. Williams, 177 Kan. 743, 747, 282 P. 2d 425; Bowler v. Elmdale Developing Co., 185 Kan. 785, 347 P. 2d 391.) In reviewing the record to determine whether it contains substantial evidence to support the district court’s factual findings, this court is required to review all of the evidence in the light most favorable to the prevailing party below. Where the findings of fact made by the district court are based on substantial evidence, they are conclusive, and we have no power to weigh the evidence and revise those findings or reverse the final order of the court. Although this court may feel the weight of the evidence, as a whole, is against the findings of fact so made, it may not disturb those findings if they are supported by substantial competent evidence. . . .” (pp. 778-79.)

The test for determining whether an employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee and whether the employer has the right to direct the manner in which the work is to be performed, as well as the result which is sought to be accomplished. (Scammahorn v. Gibraltar Savings & Loan Assn., 197 Kan. 410, 416, 416 P. 2d 771; Atwell v. Maxwell Bridge Co., 196 Kan. 219, 224, 409 P. 2d 994; Jones v. City of Dodge City, supra at 779-80; Snyder v. Lamb, 191 Kan. 446, 448, 381 P. 2d 508; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 723, 78 P. 2d 868.)

The employer-employee relationship has been established applying the above stated test, in several cases involving owner-drivers of trucks. Knoble v. National Carriers, Inc., 212 Kan. 331, 510 P. 2d 1274; Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 450 P. 2d 10; Wilbeck v. Grain Belt Transportation Co., 181 Kan. 512, 313 P. 2d 725; Shay v. Hill, 133 Kan. 157, 299 Pac. 263.)

We believe the record contains sufficient competent evidence to support 'the finding of the district court. The record indicates hauling sand was an inherent part of respondents business operation. On many occasions respondent selected the route the truck owned by claimant was to take. Respondent determined the kind and quantity of material to be loaded into the truck, where each load was to be taken, and the quantity of sand to be spread upon roads when claimant unloaded. Under these circumstances the fact claimant owned his own truck, paid his own expenses, and sometimes chose his own routes, is of little significance.

The judgment of the district court is reversed with directions on the appeal and affirmed on the cross-appeal.