106 P.2d 690 | Kan. | 1940
This was a workmen’s compensation case. Claimant prevailed, and the employer and insurance carrier appeal. Appellants contend there was no substantial evidence to support the finding a written claim was made as required by law or to support the award of the district court.
Touching the first alleged error, appellants stoutly maintain the written claim for compensation was not made by the injured workman, George M. Bull, personally, and hence did not constitute a valid claim. The signature to the claim was — -“George M. Bull, by A. M. Etchen, his attorney.” On the dates the claim was signed and filed, claimant was an inmate of a penal institution in Milan, Mich. Claimant’s wife consulted with A. M. Etchen. According to the record counsel for claimant testified:
“I think Mrs. Bull came to see me possibly a few days before that date (i. e., of the written claim dated October 26, 1939). I don’t know whether I have a written contract (of employment) or not. He was not there at the time and she came to me there and had me do this — that is, she consulted with me and I advised her to do that and so she authorized me to go ahead and do it. I’m not sure Mr. Bull ever authorized me to send that letter in his behalf.
“I think he wrote me a letter, I’m not sure, or wrote her a letter to that effect. I don’t think I have that letter, and I don’t have a copy of a contract.”
Claimant- was present at the hearing. The record, touching authorization to act for him, reads:
“Q. Mr. Bull, did you authorize Mr. Etchen as your attorney to write correspondence or serve a notice upon the Patti Construction Company about your accident? A. Did I write him?
“Q. Yes? A. I told my wife' to go ahead with it. I wrote to my wife and told her to go ahead with it — I don’t remember when it was. Maybe September or October. I told her if I had anything coming to try to get it. Some words of that sort.”
Appellants contend G. S. 1939 Supp., 44-520a, and the decisions of this court, make it mandatory the claim be made personally by the workman except in one instance mentioned in G. S. 1939 S'upp., 44-509, which extends the right to a guardian to make the claim in the event of mental incompetency of the workman or a dependent of the workman. It is true the latter statute authorizes the guardian to make the claim in the event of mental incompetency and when the dependent is a minor. Does it, however, follow that during the mental competency of the workman, he must personally sign the
“No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or to his duly authorized agent, or by delivering such written claim to him by registered mail within one hundred twenty days after the accident, . . .” (G. S. 1939 Supp., 44-520a.)
The only change in the 1939 act is that time for making claim was thereby extended from 90 days to 120 days. It will be observed the statute does not provide the claim must be made personally by the workman. It merely provided “no proceedings for conpensation shall be maintainable hereunder unless a written claim for compensation shall be served,” etc. The statute, however, does specify upon whom the claim shall be served by specifically naming the employer or his duly authorized agent. The purpose of that provision and the requirement that it be made within a specified time is obvious. That purpose was to give notice of the claim to the employer and to give it within such time as would enable the employer to make the necessary investigation of the alleged injury for his own protection. The statute also specifies the exact manner in which the claim shall be made when not made by personal delivery to the employer or his duly authorized agent. When not so made it permits delivery of claim by registered mail. The latter provision relative to service by registered mail was enacted in order to eliminate endless confusion, uncertainty and conflict as to whether claim actually had been made by mail and to eliminate numerous questions of waiver of claim. (Klein v. McCullough, 135 Kan. 593, 597, 11 P. 2d 983.) True, it has been held express statutory requirements as to time and the manner of making claim upon the employer or his duly authorized agent are preliminary to the right of recovery, and are therefore imperative. A few of the decisions, cited by appellants, which state the principle and discuss the reasons therefor, are: Klein v. McCullough, supra; Suttle v. Marble Produce Co., 140 Kan. 13, 16, 34 P. 2d 116; Flanagan v. Lux, 141 Kan. 88, 92, 40 P. 2d 458; Graham v. Pomeroy, 143 Kan. 974, 975, 57 P. 2d 19. These decisions are not directly in point and do not support appellants’ contention. We find nothing in the statute or in our decisions which, in words or principle, militate against the right of an injured workman to authorize an attorney to file a claim in his behalf.
“The injured party is generally referred to in the compensation act as the claimant, and, as the word indicates, he is naturally the one expected to make the claim, although that part of the statute above quoted does not so state, but in the concluding part of said section it is specifically stated that if the claimant has been under disability, the time shall not begin to run until the removal of such disability.” (p. 91.)
In the Flanagan case it was held a letter written by the compensation commissioner, at the request of claimant’s doctor, to the contractor to obtain for the doctor the report of the accident and to ascertain the name and address of the insurance carrier in order that the doctor might communicate with the insurance carrier concerning the question of medical expenses, did not constitute a written claim of the workman for compensation. The letter by the doctor was written without the knowledge or consent of the injured workman. In the instant case claimant testified: “I told her (his wife) if I had anything coming to try to get it.” Clearly that unqualified instruction vested his wife with full authority, including the right to select a lawyer of her own choice for her husband, to effect the desired result. We think there was nothing lacking in the authority of the wife or the attorney to make the claim. True, as stated in .the Flanagan case, the workman is naturally the one expected to make the claim, but can it accurately be said the workman did not mak.e the claim when another, and especially a lawyer whose business it is to represent his client, was vested with full authority to make the claim for him? We think not. In the instant case nothing which we can discern prevented the claim from being sent to the workman for his own signature. It would be a far better practice, when at all possible, to have the workman sign his claim in person. Such a practice would eliminate all question concerning the desire of the workman to claim compensation. It would also eliminate all question on the subject of authorization of another to claim it for him. In the absence, however, of a'clear statutory requirement that the claim be signed by the workman, we cannot say it was the intention of the lawmakers to make his personal signature mandatory.
Appellants insist this court has definitely held strict compliance with steps preliminary to the right of recovery is imperative, and that as to such preliminary steps the rule of liberal construction does not apply in compensation cases. (Suttle v. Marble Produce Co., 140 Kan. 13, 16, 34 P. 2d 116.) It is true we have held claimant
The second contention is the award of the district court was not supported by substantial evidence. The findings of the trial- court were:
“The court further finds that said claimant’s injury consisted in a com-minuted fracture of the shaft of the proximal joint of his right great toe; that claimant sustained twenty (20) compensable weeks (excluding first week) temporary total disability, which was followed by ten (10) weeks 25 percent partial disability, which was followed by (10) percent partial permanent disability; that claimant is entitled to compensation as follows:
“Twenty (20) weeks (not counting first week) temporary total disability, at $18 per week, being 60 percent of average weekly wage of $34 per week, $360.
“10 weeks, twenty-five percent partial being 25 percent of 10 weeks or 2% weeks, at $18 per week, $45; total, $405.”
It will be observed no compensation was allowed for the last finding of ten percent partial permanent disability. The injury consisted of a comminuted fracture of the shaft of the proximal bone, midway back of the joint of the great toe on the right foot. Thirty weeks is the maximum period under the schedule for loss of a great toe or for the permanent loss of its use (G. S. 1939 Supp., 44-510 [7] [19]). The compensation for that period is sixty percent of the
The pertinent testimony of the workman, appellee, was in substance as follows: When he was in the employ of appellant, S. Patti Construction Company, on July 19, 1939, as a common laborer he sustained the injury while working at a food terminal in Kansas City, Kan. A two-by-four, about sixteen feet long, used by a fellow-employee, was dropped on his right great toe. Dr. H. L. Regier, at Kansas City, X rayed his toe and treated it two or three times. Doctor Regier told him the toe was broken in five places. Claimant was arrested by federal authorities on July 28, 1939. At the beginning of the hearing, June 24, 1940 (approximately eleven months after the injury), the toe was still swollen and claimant continued to suffer pain. He could not at that time walk the way he did before the injury. He continued to walk somewhat on the side of his foot. He was unable to spring his weight on the toe very well by reason of pain. The pain was practically'continuous. The-pain was located back of the joint and up into his foot to about the instep. He was taken to a Topeka jail by federal authorities, where he remained seven or eight days. He received treatments while in Topeka. He was then taken to El Reno, Okla., where he remained until October 1, 1939. From there he was taken to a correctional institution at Milan, Mich., where he remained until May 2, 1940. At El Reno he did janitor work in a cell house after a quarantine period of thirty-six days. His work at El Reno required him to be on his feet about two hours per day except on certain days when there was more work. He was relieved, by reason of his injury, of military exercises at El Reno which involved his toe, but he took arm exercises. At Milan, Mich., he worked in a bed factory. The work consisted of taking head frames from a paint rack and hanging them on a rack and helping push them into an oven. That work covered the period from October 1 to May, 1940, except for one week during which he worked on the farm. At Milan he put in approximately eight hours per day. The first week he was outside and was on his feet more than the rest of the time. While at Milan,
Dr. Willis H. McKean, called as a witness by appellee, testified in substance: He examined claimant June 28, 1940 (the hearing commenced June 24 and was continued to July 1, 1940); claimant complained of pain in the great toe, stating he was injured July 19, 1939. Claimant finished the day’s work on July 19 by doing lighter work. The toe was X rayed July 22, bandaged and taped. Claimant saw Doctor Regier on three occasions and was cared for by a government doctor at Topeka and at El Reno, Okla. His examination was limited to his big toe. The toe was swollen at the distal phalangeal joint. In his opinion claimant on June 28, 1940, had a permanent partial disability of between ten and fifteen percent. There probably will be some improvement in time. There is going to be a partial permanent ankylosis in the joint. He did not take X rays. The swelling was only at the distal phalangeal joint and is probably permanent, due to an overproduction of bone at the fractural situs. There was no necrosis, or shortening. He had treated many patients with injuries of this character, but had never seen any who could not get around some. The usual healing
Dr. H. L. Regier, called as a witness by respondent, testified in substance: He first saw appellee at three o’clock p. m., July 19, 1939. He was then suffering from a comminuted fracture of the shaft of the proximal bone. There was no joint involvement. The fracture was about midway back of the joint. The scar on top of the toe, extending into the foot, was healed and had nothing to do with the accident. That scar, according to the history obtained from claimant, was the result of an injury from an ax while he was a child. The patient made four visits to his office. When he last saw him on July 27, he made a prognosis which was that he had a ten percent stiffness of the distal joint of his large toe. There was then no loss of function in the toe at that joint. He couldn’t see any disability. All he could then see was ten percent stiffness and the joint could be worked almost normally by working it. He, at that time, anticipated about two or three weeks’ future disability, at the end of which period he expected he would be able to resume his work. It was his experience in cases of comminuted fractures of the great toe, where there is no displacement, that this would be the duration of his disability. The fragments were in perfect condition. He next saw appellee June 26, 1940. On the latter date he found the toe in perfectly normal condition except that there was a ten percent disability in movement of the distal joint. The X ray
Appellants state their contention as follows:
“An examination of the two physicians’ testimony limits, at the best, the extent of claimant’s toe disability to not to exceed four weeks temporary total disability and 10 to 15 percent permanent partial disability. There was no evidence, by any of the witnesses, of any temporary partial (and especially as to 25 percent temporary partial disability) disability to the toe, that would support the district court’s finding of 10 weeks of 25 percent temporary partial disability.”
It will be observed no contention is made that compensation for each of the two types of disability was not properly computed. The question of computation of compensation is, therefore, not before us. (For proper method of computing compensation for types of disability found in the instant case and other types of disability under the schedule, see Hering v. San Ore Construction Co., 130 Kan. 70, 285 Pac. 592; Orendoc v. Kaw Steel Construction Co., 131 Kan. 366, 291 Pac. 952; Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 509, 72 P. 2d 79.) The sole question is whether the evidence supports the findings concerning the two types of disability covered by the award.
We shall first consider the finding claimant suffered a total temporary disability of twenty weeks’ duration. He did not lose the great toe, but that he lost some of its use immediately following
“For aught the record discloses, claimant might have operated the wire-cutter with his right hand and performed his work, in a fashion, although his left index finger had been entirely useless or amputated. The fact he worked did not deprive him of scheduled compensation for the loss of the use of a finger, if he in fact lost such use.” (p. 508.)
The fact he did some work, therefore, does not constitute proof he did not totally lose the use of his toe for some period of time. What was the duration of its total disability? The answer is not free from difficulty. The medical testimony has been narrated and need not be repeated at length. It is sufficient to say there was medical testimony this was not the ordinary’case of a comminuted fracture of the shaft of the toe in which cases total disability, according to the medical testimony, continues only four weeks. The toe was still swollen and painful approximately eleven months after the injury. That fact was supported not only by the testimony of appellee, but also by the testimony of one physician. The testimony of the other physician also conceded the swelling had not entirely subsided approximately eleven months after the injury. Moreover, the findings as to duration of disability need not rest solely upon medical testimony. In this state, unlike some states, it is not essential that duration of disability or incapacity be established by medical testimony (Cowan v. Kerford Quarry Co., 146 Kan. 682, 72 P. 2d 999; Hardwell v. St. Louis S. & R. Co., 146 Kan. 870, 876, 73 P. 2d 1120.) There was evidence appellee “could not have made a hand” in less than six months. We must, and do assume, in the absence of any further elucidation of this statement that appellee intended thereby
What about the second finding of ten weeks’ temporary partial disability of twenty-five percent? As previously stated, there was evidence of twenty-six weeks’ total disability. The trial court found that disability continued only twenty-one weeks. The first week was, of course, deducted in accordance with the requirements of the statute. Thirty weeks constitutes the maximum period of compensation for the loss of a great toe or for loss of its use. (G. S. 1939, Supp., 44-510 [7] [19]). The trial court found twenty-five percent disability or incapacity in the use of the toe during the next ten weeks which was the remaining period of thirty weeks provided by the schedule. There was evidence appellee was not on his feet while performing the work at Milan, Mich., anywhere from one-third to one-half of an eight-hour day. He therefore did not use the toe from fifty percent to sixty-six and two-thirds percent of the day, and the work he was then doing was from nine-tenths to three-fourths lighter than his regular construction work. We think it cannot be said the finding of twenty-five percent temporary partial disability was unsupported by the evidence.
The total amount of the award is supported by the record upon another theory. The second finding of ten weeks’ twenty-five per
The judgment is affirmed.