*1 45,500 No. Authority Turnpike

Glenn H. Appellant, Piper, v. Kansas Corporation, Appellees. Phoenix Assurance (451 152) P. 2d Opinion filed March 1969. George McCullough, Topeka, argued cause, E. Parker, Jr., and W. L. Wareheim, Rose, Reginald Topeka, Robert B. LaBunker and L. were James appellant.

with him the brief for George Allen, Lawrence, argued V. and was on cause the brief for appellees. of the court was delivered *2 is before case and compensation This is workmen’s Fatzer, J.: claimant, the of

this court the time a result of the second as of the district Glenn H. and judgment from Piper, findings the 3, entered on 1968. July 200 Kan. Authority, Turnpike first v. Kansas Piper appeal, court’s the district

438, 396, the of question 436 P. 2d involved lens in corrective to use right claimant the refusal the permit reversing eye. claimant’s left of to the determining the loss vision facts and circumstances the and under the judgment, district court’s workman sustains injured an this court held where presented, vision, but normal an blind with naked eye industrially the loss of loss, correction, for the pur- of industrial visual the valuation due, shall be the of determining amount pose aid made with the based on visual which are efficiency findings lenses; cor- the difference the corrective the between being after and the corrected vision injury rected vision before injury. the court’s stated: foregoing holding,

Rased requires of this cause. Since the district court . This reversal “. disabling injury is from the record whether the claimant’s not determined impairment partial nature, so, permanent is total or and if whether such character, necessary this case to the district court to make it is to remand compensation, findings determine the amount of the evidence and any, if due the claimant. guided by reviewing record, court should “In what was Homes, 336, 446, Ready held in Made 232 P. 2d said and Polston 539, 564, whether, and v. Continental Can and Justice 13, injury eye as a result of the accidental to the claimant’s left on December 1963, together previous disability right eye, with the of the claimant’s he be- (1. came disabled.” c. 3, July before the district court on was reargued The cause 336, Homes, 171 Made Kan. Ready that Polston v. it concluded Can v. Continental 232 P. Justice disability, 257 P. total determined applied he was found limited claimant did not suffer without to the that had regard eye to an to the one been district court findings accident. The prior eviscerated in toto: quoted 13, 1963, claimant, sustained an accidental on December That “1. injuries rose out of and in the course a hernia and such left to his respondent. employment with the of his subsequent the claimant sustained “2. retinal detachments That the two original were connected with the accident. average weekly wage $131.77. “3. That claimants 25, 1963, performed May operation “4. That as a result 13, 1963, right eye prior which to December claimant’s eviscerated destroyed evisceration all therein. 13, 1963, immediately prior “5. vision claimant’s left That December Jaeger-1 eye was vision and for near correctible to Snellen for distant 20/20 vision. necessary by subsequent operations “6. That made the additional claimant, retinal detachments his vision left sustained Jaeger-7 Applying corrected for near vision. to Snellen for distance and 20/70 Rules, Director’s feet measured as claimant’s Jaeger-7 giving is a loss 45% loss of twice while is a 37.625% 20/70 75.35%, weight figure to the short in a measurement results figure, distance, maldng added This divided loss for a total 120.35%. 45% by 3, gives figure a final of 40.11%as claimant’s eye. of the left *3 totally “7. That claimant he is denies disabled as a result of the accident 13, 1963, subsequent of detachments, December retinal and the and claimant’s Therefore, totally doctor this. it confirms is found that he is not disabled. report “8. That claimant’s doctor’s indicates that claimant can do some types work, 6, 1964, of and this condition has existed since and hence June employable. he is temporary disability “9. claimant total That suffered from December 6, 1964, amounting compens- to 25 of weeks which weeks is June per able at of $42.00 the rate week. coincidentally industrially “10. That claimant did not and perma- sustain a partial eye, efficiency nent loss to each and visual therefore Director’s Rule applicable. 51-8-7 is not although right eye prior “11. That industrial blindness existed in the complete eye, has not loss of of claimant sustained vision the left and applicable. therefore Director’s Rule 51-8-9 by by the “12. That and suffered the claimant is covered (3) (c) (17) (21), provisions K. S. and A. 44-510 hence fhe of 44- K. A.S. (3) (c) (24) applicable. are not totally disabled, claimant “13. That inasmuch as admits he is not and permanently totally disabled, this Court finds that the claimant is not there- (c) (26) applicable. fore the of K. S. A. 44-510 permanent disability “14. claimant sustained no That as a result of the question. in the accident in hernia received respondent paid compensation “15. and insurance carrier That have for period per week, $42.00 the of 64 weeks at the rate of of which 24 weeks was temporary for the total of the claimant. permanent partial “16. That has suffered of vision fhe eye 40.11%, left of which he is due 48.13 at the weeks per week, $2,021.46, respondent rate total of of $42.00 of in the amount which paid week, per and carrier have $42.00 insurance weeks $1,680.00, and $341.46. amount of there remains due sum of responsible respondent for medical “17. insurance carrier are That and provided attention Order of the 20th incurred claimant as in Director’s day June, 1966, part fully of set herein.” and a hereof as if forth made that testimony The own claimant’s evidence consisted of his un- Hill, of Dr. It is E. highly qualified ophthalmologist. James since necessary to summarize the evidence before that was is referred done first reader appeal, However, proper into opinion. bring presented the question focus, a claimant’s brief of the condition of both of resumé and the eyes loss follows: acuity, opera- a series On the claimant underwent September operation The eyes. tions for the removal of cataracts from both successful, painful, became right eye on the was not eye 25, 1963, all vision. eviscerated which removed May successful, aid and with on the claimant’s left operation eye for distant lens left of corrective was corrected 20/20 vision, Snellen for near Jaeger-1 equivalent 14/14. his 13, 1963, in the course of Thereafter, December and on of a series retinal sustained the first the claimant employment, a series of corrected were detachments to left eye could be aid of lens the left With the corrective operations. or a permanent Snellen Jaeger-7, corrected to 20/70 can now 40.11 The claimant percent. the left of vision to feet and can read with only at twelve identify person was that claim- of a medical magnifying glass. aid could not be expected ant’s and its condition quiescent, improve. 3, 1968, and on the district court July on remand hearing

At the denied he was disabled as result found *4 detachments; that and the retinal injury subsequent accidental the by testimony; doctor confirmed that condition his the claimant’s to his partial disability left permanent claimant sustained the lens; of corrective that based the the use percent by 40.11 of the claimant could do report indicating types some doctor’s medical work, and that the the of employable, provisions of were in (3) (c) (17) (21) applicable S. A. 44-510 determin- K. due the claimant. In compensation the amount of with ing harmony judgment district court entered the Kansas findings, against its the its insurance carrier the Authority in amount of Turnpike for 40.11 percent permanent partial due loss of $341.40 left and medical the expenses paid by claimant. vision In making its findings rendering judgment, distinguished cases, the instant from Polston and case the Justice on the ground the by claimants in those were found the dis- cases trict disabled, court to here the be whereas permanently totally claimant was to disabled. conclusion partially found the claimant was not totally disabled was based the finding he was and his he was employable denial disabled. indicated,

As the the disability district court found that suffered by claimant was injury and covered K. S. A. 44-510 scheduled (3) (c) (17) (21). It is the unnecessary foregoing sub- quote sections of the Workmens Act since it Compensation is clear the legislature intended the for schedule therein compensation provided of, of, for the loss loss of sight eye. one Where one workman has lost the of previously sustains an industrial in injury remaining eye resulting of the loss of, use, acuity, he does not sustain loss of loss or loss vision but, rather, Thus, in one eye, sustains the of vision itself. where vision as the injury produces loss of such record discloses the claimant lost reason of evisceration of his right eye and in percent the loss 40.11 vision his left he sustains the loss of binocular not in provided the schedule pre- in scribed 44-510 (3) (c) (17) (21).

This court is committed to the rule liberal construction Workmen’s Act in order Compensation to award compensation it is reasonably possible workmen where to do so and to make the intent not effective and it. legislative nullify (Bright Bragg, Since the claimant’s not injury is com- as a pensable pursuant scheduled to 44-510 (3) (c) (17) and we look to other (21), the Act to determine manner and amount of his compensation binocular vision. stated, For reasons hereafter we that under the case, record erred com- awarding 44-510 where pursuant (c) (26) the effect of the pensation together with the previous industrial resulted in disability to the claimant. That total section reads: previous disability “If a workman has suffered a and received a later together previous disability the effects of which shall result total permanent disability, then and in that event said due work- provided shall difference man be the between amount in the schedule prior injury and the of this section for his sum total which would be due said computed provided employee for such as section 44-511 of *5 776 thereto, any Supplement amendments but the of 1961 and General Statutes forty-two ($7) per nor than no case more in less than seven dollars week ($42) per

dollars week.” a workman statute, As of disability used in the total permanent is of results to the where the loss of visual to the such a that ability impaired his been degree retain, the market, of same labor and to open perform injured. was able to before he and character he was type 196, Co., 410 All P. v. Minter (Puckett Drilling claimants, such as here presented, our cases to involving injuries Co., Mining the of Moore v. Western Coal with exception 724, in Stevens 214, overruled Kan. 257 Pac. which was expressly 37 P. Kelly-Carter Coal effect. of Act the the which is

The Stevens case construed There, the claimant an accidental suffered (c) (26). now 44-510 (3) right eye and had been almost blind eye, to his left injury to what is pursuant was awarded since childhood. Compensation was affirmed (26). award (3) (c) now 44-510 modifi- employer sought was no Later the appeal. court and there sought, In the relief it was said that denying award. cation examiner, court, district nor supreme nor the neither the the record that the workman had say could from said: opinion In diminished. causing injury really injure did . accident “. . Here both eye.

eyes. only injured one is not It on account of the injury together injury on account of the It is alone. the condition (1. 444.) due all.” c. other which & Masoner v. Wilson claimant’s right eye tantamount industrial blind existed from the date of ness which his birth. He sustained an course of his employment his left and with very be able strong might percent lens have vision for close 76.5 for distance. The award percent work and 44-510 Supp. (3) (c) (24) R. S. 1933 now K. S. A. 44-510 was of It was stated the (3) (c) (26). claimant would compelled be wear would glasses be they could not enable him to handicap engage

of such a further stated: industry. It was Respondent no evidence to the “. offered effect that claimant would glasses. inquired respondent’s industrially representa- had useful with He *6 job. he would job no not told that tive and told he had He was about his was provide respondent given glasses, to him did offer if he had nor glasses. accident which claimant found that The trial court therefore permanent disability. is substantial evidence received resulted in a total There finding. to sustain this though award as . “. . There should have been allowance industry, right eye previously injured by in an and had been accident permanent the 415 weeks 110 weeks should have been deducted from disability. (1. 884.) . . .” c. Homes,

The cases of Polston v. Made Ready supra, Justice effect, Continental Can com- awarding are to the same supra, pensation pursuant to what is now 44-510 (3) (c) a finding of workman. permanent of the foregoing of the of total in each finding of one cases was based workman s previous eye resulting and of a industrial to the subsequent the workman’s the loss of that acuity degree to such market, labor had to in the ability impaired open been retain, to character he was work of the same perform able injured. before he was perform us to the is there substantial evidence brings question,

This that finding the record to the district court’s support this the court has ex- determining question, was employable. record the first of this case as well as the appeal amined the In the first the claimant’s nar- in the instant appeal. appeal, record evidence, expressed to which the appellees rative statement all fully perform was was able objection, no fall to the and the detachment the retina which his work prior fall, to the after his fall he un- traceable became directly of the loss of vision in his left eye. because Based on employable evidence, court said: this eye- the claimant had corrected “Prior to his normal vision in his left perform satisfactory in a usual his work and he was able manner . . . ensuing operations, Following and the he sustained a loss- correcting and all means of the left of vision in to normal vision. perform completely doing prior unable to the work he injury,. He is to figures required feet ten twelve distant and is see and can to read with glass (1. magnifying (Emphasis c. supplied.) aid of .” in the instant The record prepared accordance- No. 6 court. The claimant (c) with Rule filed with his a narrative statement of the he testimony designation designated in the narrative form to the effect that included claimant was-- to be fully able to all his work to the fall and after the prior fall he became unemployable because of the loss of in his eye. left The appellees agreed to the claimant’s statement of the case, facts in this except they objected to his narrative that after the fall and injury in question, claimant became unemployable because of his loss of vision in his left eye. Pursuant to Rule No. 6 (c) appellees designated following as the narrative of Dr. Hill’s testimony statement with respect the claimant: employability of adequate many things; however, “Claimant’s visual adequately magnifying glass.”

able move about and to read awith And, *7 present quiescent, Piper’s “At the time Mr. no evidence of retinal adequate detachment at this many time. Patient’s visual for things. However, adequately he is able to move about and to read with

magnifying glass .” While the record in this contains question and answer testimony claimant, no answer question and testimony of Dr. abstracted, Hill was of his exception statement that the condition of the claimant’s not be eye could expected improve, the is all foregoing of the medical testimony dealing with the claimant’s employability. It should also be noted that Dr. re- Hill’s report ferred to by the district court in its finding No. 8 to the effect such report indicates the claimant can do some of work types likewise was not included in the record and affords this court no opportunity to review the evidence in of that support finding.

The claimant was maintenance foreman on one of the turnpike crews and his main holes, duties were to fill ditches, clean out remove dead animals and obstructions from the He highway. all maintenance and care supervised of utility problems at the areas. had an service He office in Wellington where he performed the duties of making reports, time of keeping the men and of materials used in procedures. maintenance After his injury and lens, with the aid of he corrective could only identify persons at twelve feet distance and was required read with the aid of a magnifying glass.

This court is of the opinion the record presented by both parties does not district court’s support finding that the claimant was On the contrary, employable. clearly discloses that the claimant able to all fully perform was his work prior to the injury and of the loss because left eye, his ability has been market, and to perform labor open in the impaired he was able retain, character work of the same Drilling supra.) he v. Minter before was injured. (Puckett at any able to perform answer to question, you “[a]re answered, “[n]o, sir.” The time,” the present was not was that he stated his brief uncontradicted work, and had to his previous that he not return working, could accident. not worked since the date of the he Neither do read the record the claimant contended we was not disabled. The claimant contended in the left eye court that vision in the because of the right of 40.11 blind in his was being totally percent percent general disability pursuant entitled to 55.08 bodily statutory not to limit Regulation Director’s No. 51-8-9 of exceed $131.77; weeks; that 55.08 of 415 that his average weekly wage $44.14; of which percent percent $72.58 is $42 the Act per that the maximum allowed under compensation compensation week and that the claimant should be awarded 415 weeks less the rate of already paid per $42 weeks week. The contention was the result of the of the facts of misapplication case Director of Compensation pertinent to rules of the Act, the Workmen’s and in effect was Compensation to avoid deduction of 120 weeks of compensation attempt injury. in the schedule his prior (Poehlman Ley dig, provided A claimant in a workmen’s compen under pertinent should be awarded sation case *8 him to even though of the Act as facts entitle he legal their effect. misconceived the claimant

The record discloses was unemployable; that the left eye improve his could not and that he condition of was unable of the same character he was to to able record, to the On the injury. district court prior should in pursuant favor to 44-510 judgment have entered weeks, and based award 415 weeks less 120 (c) (26) week, at the rate of per compensation already $42 less or weeks is reversed. judgment The paid. I with concurring: agree court’s J., disposition

Fontron, say like to that in expressly case and should my judgment seven, no support paragraphs eight evidence record contains in trial court’s Nowhere his I findings. thirteen of the do find any disabled, denial claimant that totally as the court seven, found in admission finding any on his he is not part disabled, as set forth in finding thirteen. The claimant’s testimony was this: that he could some- identify and, body ten or twelve feet in away response to the “Are question you time,” able to perform any work at the present he responded “No sir.” This testimony certainly does not rise to the eminence of a denial of total or of an admission disability, of less than total disability. record, I find

Neither am able to anything is scanty least, justify findings seven as say eight they relate to testified, Dr. Hill testimony. the doctor’s according the respon- narration, that own “claimant’s dents’ is not adequate however, he is many things; able to move about adequately and to with a magnifying glass.” my read judgment this is no indication on the of Dr. Hill that claimant part can do some type work, as court said or that Dr. finding eight, Hill confirmed claimant, denial of total any supposed disability by the as finding seven suggests. fairness,

In all I think it must be said that man any who can identify people feet, distances of but ten or twelve and who read, would requires magnifying glass be wholly unable to obtain and to retain work of a character that claimant was per- forming before unless there was specific evidence to the contrary. There is no such evidence in this record. I dissenting: cannot reconcile our J., previous holding in

Fromme, Turnpike Authority, v. Kansas Piper P. 2d of this court and I present decision respectfully dissent. had lost one from a incident, The claimant non-industrial which is prior cataract the basis operation, for the compensation. present award arose present from a in his remaining eye retinal detachment caused aby fall while at injury resulting work. The was an injury to one eye. When the was held before examiner hearing claimant introduced to show a percentage evidence his one good eye. he could identify testified another person twelve feet read aid away and could with the of magnifying glass. When he before the examiner he said he appeared was not able to perform work at time. any present He did not explain this statement *9 a maintenance a foreman supervising had worked as further. He he participated It whether appear does not highway. crew on He the crew. supervised or merely in the actual work physical the men a time schedule kept made on the work reports he was able doctor testified treating him. The who worked under to do some of work. types claimant could not return indicating was introduced

No evidence was unable There was no evidence job. to his previous that he nature. The of the same or similar read a mag- at feet and could twelve identify persons could medical terms translating was for the nifying glass purpose into terms. It “Jaeger-7,” intelligible “Snellen did not 20/70” job. indicate to function at general disability particular cases the issues are resolved before hearing In compensation their The record of The evidence. parties present the examiner. On for review. the district court complete evidence is then of evidence taken transcript issues on before the decides after the workmen s director. examiner review a trial de (Place district court cannot novo. v. Falcon Sea- grant 788; 523, 186 Kan. Phillips board v. Helms Drilling Inc., The district 119.) 439 P. court on review made the record before weighs upon evidence the examiner. Smith, v. 368 P. 2d 302.) Kan. (Landes was before this of evidence court on the first transcript same We held properly this case. that this court was appearance disputed questions determine of fact. The extent not authorized a question remained of fact to be deter- degree fact. (Knight v. Hudiburg-Smith the trier Chevro- mined 3; Olds., Inc., Casebeer, 435 P. 2d Casebeer let, v. Kan. 399.) 806, 443 P. Kansas Turnpike Authority, supra: Piper We stated not determined from the record whether court has the district Since “. nature, so, disabling injury and if whether such the claimant’s character, necessary it is to remand this case impairment is total findings the evidence and determine to make (p. 445.) any, compensation, due the claimant.” if the amount the function of court. of fact was determination This which an findings make award does not appellate An v. Rhoades Construction (Fisher is based. of compensation 2d 375 P. *10 and findings trial made the this court it requested The court not as true. It testimony was the claimant’s required accept of that arriving could or its accept reject portions that totally The trial court found not disabled. findings. this a majority The court reviewed the evidence second time and establishes total says permanent now evidence dis- as a of law. If this is true now was when the ability matter true case first the case should not have appeared been remanded to the trial make the This is the same findings. court to transcript examined. previously the same evidence was present proceeds upon

The false majority opinion premise that unless there is evidence to show the claimant substantial could same and retain work of the and character as he perform was totally before he is able to permanently disabled. claimant in workmen’s case

The has the burden v. Salina (Bender Roofing to establish claim. 179 Kan. 662; Store, 2d 295 P. v. Friedeman Service Ratzlaff 513; v. Meyers Printing 407 P. Consolidated & Stationery 443 P. The extent and degree of disability is a element of his claim. necessary his case

The before examiner presented on the basis loss of his eye. of a use of percentage claimant later argued district court and on to this he was entitled to body 55.08 based percent general upon rules of the S. A. (3) director K. 44-510 (c) (24) (26). Director’s Rule 51-8-7 reads: pertinent part and, co-incidentally industrially workman permanent, “If a had sustained a partial efficiency eye, provided each loss to not, visual that he had at the same time, partial any permanent, disability, prescribed sustained other industrial procedure computation percentage method of for the value of that work- permanent, partial efficiency exemplified industrial man’s loss is as follows: (Emphasis supplied) . . .” Rule 51-8-9 pertinent part Director’s reads: complete eye, there is loss of vision of industrially “Where one due to an injury, eye, incurred and industrial blindness exists in the fellow even if industrially industrial blindness of the fellow due to an sustained complete potent that more recent loss of the workman’s single shall be rated the basis of the visual eye, loss to a but shall permanent disability.” rated on the a total (Emphasis supplied) basis of examiner, director and the all under the found evidence claimant’s loss and limited to one eye, Allowance and not disabled. employable member. scheduled for permanent made a partial Authority, Turnpike Kansas (Piper In our previous said: this court supra,) not. uncompensated think go of vision? We for his loss ‘Ts the claimant compensation to (c) (17) (21) provides payment S.A. K. 44-510 wage average weekly injured percentage of his an measured workman partial, eye, or attributable an loss of (p.443) injury. .”

to a sub- findings The trial court made the requested *11 the proper arrive at stantial the statute to applied evidence and (21). S. 44-510 (c) (17) due K. A. (3) under him allow court to The claimant is tó this attempting persuade in general provided any part permanent partial disability this disability such in Act or rules of the Director. To allow be to would case evidence of general bodily without a an arm in non- leg lost or permit any person previously who a percentage perma- industrial occurrence and who sustains small under nent to his member recover partial disability K. S.A. 44-510 (3) (c) (26). sought by

This result which to avoid legislature is the words, permanent disability” use of the “total said qualifying sought statute and which the Director to avoid the use of “coincidentally word Rule 51-8-9 words “complete” in 51-8-7. industrially” cited of liberal construction majority opinion ap- rule It does not to construction of the statutes. authorize

plies liberal attitude toward proof disability, regardless adopt may a claimant be. deserving how this court must the evidence most

On view favorable appeal below. This rule whether prevailing party applies compensa allowed denied and whether the claim tion has been Co., 723, ant or v. Construction Ralph respondent. (Elliot 726, 408 P. 2d Homes, four Polston v.

The claimant relies on cases: Made Ready 446; 336, Co., 232 Continental P. Can 174 Justice 564; Kelly-Carter Stevens v. Coal 140 Kan. Kan. Wilson and Masoner v. & P. P. all of cases of total 2d 265. In these there evidence the Rial found total existed and the disability, appli- S. A. 44-510 (24) (26) cation of K. (c) proper. However, this is not true of Based present case. lack evidence or the trial court did found claimant not suffer permanent disability. We not justified in our substituting judgment for that of the trial court. I addition cannot agree that claimant’s resulted in a loss

of binocular vision. Binocular vision relates from both eyes. Claimant did not binocular have vision at time of his injury. Assuming, but not conceding, that a loss vision may be more to a disabling who has I person but one cannot equate percentage vision to percentage of disability without additional on job evidence limitation. The demands of the work determine the requisite work. The extent of disability suffered because of of vision is a fact question.

The result reached in the majority opinion is inconsistent with Piper v. Kansas Turnpike Authority, supra, and is accomplished by the function disregarding of an appellate court.

I would affirm the lower court’s judgment and award. C. Price, J., and Schroeder, J., join foregoing dissent.