Razo v. Erman Corp.

608 P.2d 1025, 4 Kan. App. 2d 473, 1980 Kan. App. LEXIS 204
CourtCourt of Appeals of Kansas
DecidedMarch 21, 1980
DocketNo. 50,883
StatusPublished
Cited by2 cases

This text of 608 P.2d 1025 (Razo v. Erman Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Razo v. Erman Corp., 608 P.2d 1025, 4 Kan. App. 2d 473, 1980 Kan. App. LEXIS 204 (kanctapp 1980).

Opinion

Rees, J.:

This is a worker’s compensation proceeding in which there has been an award for nonscheduled injury. The claimant had a preexisting physical impairment as the result of a prior industrial injury in 1970. The present award is the result of a second accident arising out of and in the course of claimant’s employment in 1975. The district court ordered the Workmen’s Compensation Fund to pay 25% of the cost of the award and the employer to pay 75% of that cost. The determination that claimant’s work disability following the second injury is 100% permanent partial general bodily disability is not challenged. The appeal concerns the district court apportionment of responsibility for payment of the award. K.S.A. 1975 Supp. 44-567(o)(2) requires that the apportionment be equitable and reasonable and based upon medical evidence.

The parties’ contentions attacking and supporting the apportionment are wholly founded upon the opinions of three doctors. Whether the apportionment determination was based upon medical evidence is not in issue. The question for decision is whether under the medical evidence in this case the district court apportionment is equitable and reasonable.

Dr. Alexander Lichtor examined the claimant on two occasions after the second accident. He “felt that [claimant] had some [474]*474disability” attributable to the first injury. Although the doctor’s testimony may be read to include statements that claimant’s second injury disability is overwhelmingly or primarily attributable to the second accident, the doctor directly testified he could not express with medical certainty an opinion as to the extent of the second injury disability attributable to the first injury.

Dr. Edward Prostic examined the claimant on two occasions after the second accident and after Dr. Lichtor’s examinations. Dr. Prostic’s rating of claimant’s second injury disability was 60% permanent partial general bodily disability. He described this 60% rating as a “combined” rating having as its two constituent elements a 40% permanent partial disability of the left knee attributable to the first injury and a 25% permanent partial general bodily disability. With respect to the 25% permanent partial general bodily disability element, it was his opinion that no more than 20% of it was attributable to the first accident and at least 80% was attributable to the second accident. The doctor’s testimony also included his statement that “I would say that the preponderant damage was done through the [second] accident, on at least a functional basis.”

The third physician, Dr. Harry Overesch, examined claimant after the first accident and again after the second accident. He concluded claimant’s second injury disability was a 5% to 10% permanent partial general bodily disability and as a part of this there was a 2-Vz% permanent partial general bodily disability attributable to the second accident. It is made clear in Dr. Overesch’s testimony that his references to 2-Vz% disability and 5% to 10% disability were work disability evaluations.

With the exception of the above noted comment of Dr. Prostic and three clarifying questions and responses in Dr. Overesch’s testimony, no references were made by the doctors or the three participating counsel to functional disability. Under the Act, general bodily disability is nonscheduled injury and is work disability, while disability of the knee is scheduled injury and is functional disability. Gross v. Herb Lungren Chevrolet, Inc., 220 Kan. 585, 552 P.2d 1360 (1976); K.S.A. 1975 Supp. 44-510d (15), (16), (18), (21); K.S.A. 1975 Supp. 44-510e(a). To say that any of the physicians or counsel spoke other than in the context of our Workers’ Compensation Act definitions of disability would be unrealistic; it is obvious they were all experienced practitioners in this field.

[475]*475We recently dealt with apportionment under K.S.A. 1975 Supp. 44-567(a)(2) in Desbien v. Key Milling Co., 3 Kan. App. 2d 43, 588 P.2d 482 (1979). We need not repeat what is said there.

In the teeth of Dr. Lichtor’s acknowledgment of his inability to express an apportionment opinion with medical certainty, his nonspecific references to overwhelming or primary attribution of claimant’s second injury disability to the second accident cannot be medical evidence of the quality required by K.S.A. 1975 Supp. 44-567(cz)(2). Cf. Rowe v. Maule Drug Co., 196 Kan. 489, 413 P.2d 104 (1966) (doctor’s “honest expression of professional opinion” of causal connection between accident and physical complaints as well as consistent lay testimony held sufficient evidence of causation in auto accident case).

Dr. Overesch’s testimony afforded ground for apportionment to the second accident of 25% to 50% of the cost of the award (2-Vfe% is 25% of 10%; 2-Yz% is 50% of 5%). Conversely, Dr. Overesch’s testimony afforded ground for apportionment to the first accident of 50% to 75% of the cost of the award.

Dr. Prostic concededly testified “preponderant damage” was attributable to the second accident, but we find this conclusion too tenuous for material reliance in view of his specific apportionment testimony. This latter testimony requires analytical consideration in somewhat reverse order. He found claimant’s second injury disability to be 60% permanent partial general bodily disability, work disability. As noted above, he concluded this 60% work disability included two elements, (1) a work disability element of 25% and (2) the first injury element, 40% permanent partial disability of the knee. Inasmuch as permanent partial disability of the knee is functional disability, it is not illogical to find the sum of the 25% work disability rating and 40% functional disability rating to be a work disability rating of 60% rather than 65%. Under Desbien, the two component ratings, one functional disability and the other work disability, could not be compared if it were not for the “combined” or resultant 60% work disability rating. Dr. Prostic’s testimony reflects no two stated or ascertainable functional disability factors, only work disability factors.

What is discerned when there is added to Dr. Prostic’s testimony that no more than 20% of the 25% work disability element was attributable to the first accident and not less than 80% of the [476]*47625% work disability element was attributable to the second accident? First, the 20% and 80% are abstract percentages; neither both nor either relates to functional disability or work disability; they relate to an apportionment of the 25% work disability element.

Second, since Dr.

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Related

Fogle v. Sedgwick County
673 P.2d 465 (Court of Appeals of Kansas, 1983)
Razo v. Erman Corp.
618 P.2d 1161 (Supreme Court of Kansas, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
608 P.2d 1025, 4 Kan. App. 2d 473, 1980 Kan. App. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/razo-v-erman-corp-kanctapp-1980.