Elliott v. Rains & Williamson Oil Co.

Owsley, J.,

dissenting: I cannot conscientiously give my approval to the majority opinion. Again, my brothers have relied on the oft-stated rule that in review of a workmen’s compensation case we are limited to ascertaining whether the record contains any evidence to justify the trial court’s findings of fact. In this case, the majority opinion is attempting to apply this rule to prevent review of a question of law.

The trial court in its memorandum opinion stated:

“It is this Court’s generally accepted opinion that in relating impairment of function to work disability that there is a correlation between the two up to the point where the impairment of function rating is between 15-20 percent. There is less correlation between it and work disability, where the impairment is greater than 15-20 percent.”

There is nothing in the compensation act or in the many decisions construing the act which forms any basis for this conclusion. In fact, many of our cases are to the contrary.

In Davis v. Winchester Packing Co., 204 Kan. 215, 460 P. 2d 617, claimant suffered a herniated intervertebral disc resulting in 15% impairment of function. Due to claimant’s employment (manual labor) this Court sustained the examiners finding that claimant suffered a 75% permanent partial work disability.

In Gray v. Beller, 199 Kan. 284, 428 P. 2d 833, the treating physician testified claimant had a 15% impairment of function. Claimant was employed as a common laborer in construction work. The injury was to his back and this Court sustained the examiners finding that claimant suffered 50% permanent partial disability.

The opposite situation is found in Gutierrez v. Harper Construction Co., 194 Kan. 287, 398 P. 2d 278, where the claimant, a carpenter and general laborer, suffered a back injury resulting in a 35% loss of function. This Court affirmed the examiner’s finding that claimant suffered a 40% permanent partial disability.

The majority opinion recognizes that the test set up in the trial court’s memorandum opinion is improper. It attempts to avoid its import by quoting the trial court’s statement that there are no set or rigid guidelines for the trial court in determining the correlation between the impairment of function and work disability. I am unable to follow this reasoning. It is difficult for me to understand why the trial court would set up the test unless it intended to give it application.

We cannot ignore the statement on the basis that the court also said there are no set or rigid guidelines when the court specifically pointed out there are guidelines. It appears to me we have a duty not only to disapprove the improper statement of law, but also to disapprove any judgment which even remotely might be based thereon.

Schroeder and Fontron, JJ., join in the foregoing dissenting opinion.