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STRADER v. KANSAS PUBLIC EMPLOYEES RETIREMENT SYSTEM

January 23, 1971.

HAROLD STRADER, Appellant,
v.
KANSAS PUBLIC EMPLOYEES RETIREMENT SYSTEM, Appellee.



The opinion of the court was delivered by

This appeal stems from a judgment of the district court to which an appeal had been taken from an order of the Board of Trustees of the Kansas Employees Retirement System denying appellant's claim for permanent total disability benefits.

The basic facts are not in dispute.

The city of Lyons, Kansas, was a participating employer in the Kansas Public Employees Retirement System on September 9, 1965. On that date Harold J. Strader, appellant, was employed by the city of Lyons, Kansas, as a garbage collector at a salary of $350 per month. He was a member of the Kansas Public Employees Retirement System. He had no record or history of physical disability prior to September 9, 1965. His usual duties included driving a truck, collecting the refuse and emptying the refuse into the truck. He had performed these same tasks since his employment by the city on August 11, 1961.

  On September 9, 1965, appellant reported for work as usual, worked through the morning, went home for lunch and returned to work. Shortly thereafter, and while the temperature was about 103 degrees, he drove a city truck to a home located about a mile from where he had commenced operations for the afternoon. Upon arriving at the home he set out to empty a 30-gallon container with the intent of emptying some of the trash from the container into two five gallon buckets in order to throw the trash onto the city truck. When he attempted to lift the container it began to slip and he tried to catch it by gripping it with his leg. He immediately began to feel dizzy but managed to get the container emptied.

  Appellant drove about half a block at which time he felt so dizzy he stopped the truck. He opened the window of his truck in order to get some air. He remembers a beginning weakness in the left leg which rapidly progressed to weakness of the left arm and to the left half of his face and pain in the right eye. He became semi-conscious. Later he was discovered by some of the employees of the city of Lyons and taken to Rice County Hospital in Lyons, Kansas. He was hospitalized until October 23, 1965.

  Appellant is totally disabled. There is no controversy regarding the timeliness of the application for accidental total and permanent disability retirement, or the member's report of total disability.

[206 Kan. 394]

     

  On July 21, 1967, the Board of Trustees of the Kansas Public Employees Retirement System denied the claim of appellant, and on July 25, notified him in writing of its findings, and also notified him of his right, if he felt aggrieved, to make application for a "hearing" before the Board in compliance with K.S.A. 74-4904 (2). On October 26, 1967, the hearing in question was held before the Board of Trustees and at that time the appellant appeared in person and by his counsel. Testimony was given by appellant in connection with his claim. After listening to the oral testimony of appellant, and his counsel's argument, the Board of Trustees considered the three medical reports and reaffirmed the findings that it made at its meeting of July 21, 1967.

  The specific finding of the Board of Trustees stated:
"Based on the medical testimony it is found that Mr. Strader's disability did not arise out of and in the course of his employment with the city of Lyons."
  Appellant filed notice of appeal to the district court of Shawnee County, Kansas, and also filed in the district court an instrument designated a petition. It read in part:
 
"8. The plaintiff's application for benefits, even though he's shown eligibility entitlement, has been denied, and the defendant System continues to refuse to pay this indebtedness owed to the plaintiff by the defendant System. The System continues to hold the contributions to the fund made by Harold J. Strader.
"9. In addition, the plaintiff states that justice requires that plaintiff be afforded an independent and judicial review which would include an opportunity to put on additional evidence to show more clearly his entitlement to the total disability benefit."
  The appellee answered admitting the formal allegations of the petition, and stated:
 
"Admits that it has denied plaintiff's application for benefits and that it continues to hold his contributions to the fund, but denies that plaintiff has shown eligibility for benefits or that defendant is indebted to plaintiff as alleged in paragraph 8.
"Denies paragraph 9, and alleges that plaintiff was afforded a full and complete hearing before the Board of Trustees at which he was given the opportunity to present any evidence he desired; that all evidence offered by him was received; that the Board gave fair and impartial consideration to such evidence and found in good faith that as a matter of fact plaintiff had not suffered an accident such as would entitle him to any benefits."
  Appellant then filed a reply which for the first time raises the question of the constitutionality of the act:

[206 Kan. 395]

     

 
". . . Plaintiff specifically asserts and re-asserts that the act is defective from a Constitutional standpoint, and he asserts further that the variety of consideration given him in this case illustrates the need for (1) either hearing additional testimony, or (2) for additional directives to the System, either judicially or legislatively. If the System has the power to make these changes through administrative enactment, then, in that event, the System has failed to afford this participating employee a hearing which meets the due process requirements of the United States Constitution."
  Appellant later filed a motion for summary judgment, which reads:
 
"Comes now the Plaintiff, Harold Strader, and in accordance with K.S.A. 60-256, and moves the Court to enter summary judgment for the Plaintiff and refers the Court to the testimony under oath given previously by the Plaintiff, Harold Strader, which is irrefutable by this Defendant or any expert testimony."
  The appellee also filed a motion for summary judgment, which reads:
 
"The defendant, Kansas Public Employees Retirement System, hereby moves this Court to enter summary judgment for the defendant in accordance with the provisions of K.S.A. 60-256 (b) and (c), on the ground that the pleadings filed show that the defendant is entitled to judgment as a matter of law."
  The district court considered jointly the motions for summary judgment and filed a comprehensive memorandum opinion which we quote in part:
 
"In connection with this matter of scope of review, the Court refers to the case of Pickman v. Weltmer, 191 Kan. 547, which was a case involving the Employment Security Board of Review of the State of Kansas. In the Pickman case the Court refers to the provisions of K.S.A. 44-709, which provides `. . . In any judicial proceeding under this section the finding of the Board as to facts if supported by evidence in the absence of fraud shall be conclusive, and the jurisdiction of said Court shall be conclusive, and the jurisdiction of the Court shall be confined to questions of law. . . .' In that case, while the statute referred to providing for judicial review goes into more detail than the one herein involved, it seems that the same criteria was set up by the Legislature and that the findings and holdings of an administrative tribunal, as far as judicial review under such statute, would be limited to an examination of the record and whether there was ample evidence to support the findings of fact made by the administrative board. Further, that the judicial review must be made in the light most favorable to the findings and holdings of the administrative tribunal where there is no suggestion of fraud.
  "In the case before the Court, it would seem that the matter of judicial review herein would be limited as above indicated, and there is no reference made to fraud of any type. Therefore, in connection with these joint motions

[206 Kan. 396]

      for summary judgment, this Court has carefully reviewed the record herein and under the guide lines as set forth in the case of Pickman v. Weltmer above referred to, this Court is of the opinion that there was ample evidence to support the findings of fact made by the Kansas Public Employees Retirement Board of Trustees, and these findings are herewith, by this reference, adopted and incorporated in this decision. It is the further order of this Court that the motion for summary judgment filed herein by the defendant should be and hereby is sustained, and the motion for summary judgment filed herein by the plaintiff is hereby overruled."

  The statute (K.S.A. 1965 Supp. 74-4916; L. 1965 Ch. 446 ยง 4) governing the right to permanent total disability at the time of the injury reads:
"(3) (a) Upon the application of a member, or his appointing authority acting for him, a member who is in the employ of a participating employer and becomes totally and permanently disabled for duty in the employ of a participating employer, by reason of an accident may be retired by the board if, (A) the board finds the total and permanent disability to be the natural and proximate result of an accident causing personal injury or disease and arising out of and in the course of the member's actual performance of his duties as an employee of a participating employer; . . ." (Emphasis ...

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