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 § 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 supplied.)
The underscored language was materially amended by the 1967
legislature (K.S.A. 1970 Supp. 74-4916 [3] [a]) but it has no
application here as the injury occurred in September of 1965.
The provision for review is to be found in K.S.A. 74-4909 (10).
It reads:
"All decisions of the board as to questions of fact
shall be final and conclusive on all persons except
for the right of review as provided by law and except
for fraud or such gross mistake of fact as to have an
effect equivalent to fraud."
The controlling issue before the Board of Trustees of the
Kansas Public Employees Retirement System was, did the
appellant's injury arise "out of and in the course of the
member's [appellant's] actual performance of his duties?"
The appellant first contends that
"The conclusion made by the Kansas Public Employees
Retirement Board that plaintiff Strader suffered an
independent, non-precipated or non-aggravated
cerebral artery aneurysm is contrary to the Board's
findings of the operative facts; the Board ignored
the basic operative facts in arriving at its ultimate
conclusion."
Perhaps we should first, as did the trial court, consider the
scope of judicial review on appeal from a finding of an
administrative agency.
[206 Kan. 397]
The statute covering this question (K.S.A. 74-4909 [10]) makes
conclusive the Board of Trustees' finding of fact except for the
right of review (1) as provided by law; (2) fraud, or (3) gross
mistake of fact as to have an effect equivalent to fraud.
We do not see that the scope of review as provided by the
statute materially changes the rule long established by this
court for review of findings made by administrative agencies. We
have limited such review to arbitrary, capricious, unreasonable
or unfair conduct. It may be said that any such conduct is a
species of fraud at least constructive fraud.
The rule for determining the scope of judicial review in cases
such as we now have before us was announced in Pickman v.
Weltmer, 191 Kan. 543, 382 P.2d 298, at page 547, where we
stated:
"The foregoing is a finding of fact and under G.S.
1961 Supp., 44-709 (h), where a claimant seeks
judicial review, findings of fact of the Board of
Review are conclusive and may not be set aside by the
district court in the absence of fraud where they are
supported by evidence, and the jurisdiction of the
court is confined to questions of law. (Shumaker v.
Kansas State Labor Dept., 154 Kan. 418, 118 P.2d 550;
Craig v. Kansas State Labor Commissioner,
154 Kan. 691, 121 P.2d 203; Read v. Warkentin,
Commissioner, 185 Kan. 286, 341 P.2d 980; Clark v.
Board of Review Employment Security Division,
187 Kan. 695, 359 P.2d 856.) Those cases embrace the rule
that judicial review must be made in the light most
favorable to the findings and holding of the
administrative tribunal. (81 C.J.S., Social Security
and Public Welfare, § 232, pp. 341-349.)
"A reading of the record of this appeal reveals
there was ample evidence to support the findings of
fact made by the administrative board. There is no
suggestion of fraud. Hence, the findings of the Board
of Review were conclusive on appeal to the district
court and in this court. . . ."
The above statement was followed in Chadwick v. Employment
Security Board of Review, 192 Kan. 769, 390 P.2d 1017 and
Boeing Co. v. Kansas Employment Security Board of Review,
193 Kan. 287, 392 P.2d 904.
It may also be noted that whether there is any evidence to
support the Board of Trustees' finding, or whether the findings
are contrary to the evidence, presents a question of law which is
always open to review by the courts>. A finding without evidence,
or contrary to the evidence, would also be such a gross mistake
of fact as to have an effect equivalent to fraud as that phrase
is used in the statute now under consideration.
We, therefore, examine the record for the purpose of
determining whether there is substantial competent evidence to
support
[206 Kan. 398]
the finding of the Board of Trustees that appellant's disability
did not arise out of and in the course of his employment.
The appellant contends that because he sustained his disability
just after attempting to lift a 30 gallon container the injury
arose out of and in the course of his employment as a matter of
law under this court's decisions in workmen's compensation and
accident insurance cases.
Without deciding whether or not the rule announced in workmen's
compensation cases, as to what constitutes injuries arising out
of and in the course of employment, applies to claims arising
under the Kansas Public Employees Retirement System but only so
assuming for the purpose of our consideration here, we must
conclude that the facts here presented would not compel a finding
that the disability arose out of and in the course of employment,
as a matter of law, under the rules announced in such cases.
The appellant relies chiefly on Pinkston v. Rice Motor Co.,
180 Kan. 295, 303 P.2d 197; McIver v. State Highway Commission,
198 Kan. 678, 426 P.2d 118, and Williams v. Benefit Trust Life
Ins. Co., 200 Kan. 51, 434 P.2d 765.
The Pinkston case had the question of an injury arising out
of employment under the Workmen's Compensation Act where the
employee had a fatal heart seizure while performing his duties.
We stated:
"The phrase `arising out of' employment points to
the cause or origin of the accident and requires
some causal connection between the injury and the
employment. An injury arises out of employment if it
arises out of the nature, conditions, obligations or
incidents of employment. . . ." Emphasis supplied.)
(p. 302.)
In the Pinkston case the medical testimony was that the
additional physical exertion aggravated and participated his
fatal seizure. The trial court's finding of injury arising out of
and in the course of employment was sustained.
In the McIver case we also had the question of whether a
heart condition arose out of and in the course of employment
under the Workmen's Compensation Act. We held in paragraph 2 of
the syllabus:
The aggravation or acceleration of a pre-existing
heart condition under the stress of ordinary labor
resulting in disability constitutes a `personal
injury by accident arising out of and in the course
of employment' as that term is used in K.S.A.
44-501."
[206 Kan. 399]
In the McIver case the medical testimony was that the labor
being performed was an aggravation of a pre-existing condition.
The judgment in favor of the employee was affirmed.
The Williams case involved the question of what constituted
an accidental injury under the terms of a policy insuring against
accident. It was held in the first paragraph of the syllabus:
"Where an accidental injury activates or aggravates
a dormant disease or physical infirmity, the accident
may be said to have been the proximate cause of the
resulting disability within the usual provisions and
ordinary meaning of a policy insuring against
accident."
Axiomatic in all of the cases is the requirement that before
there can be an accident or injury arising out of and in the
course of employment, there must be a causal connection between
the injury and the employment or the employment must aggravate or
accelerate a pre-existing condition.
We must look to the medical testimony for the nature of
appellant's injury and the effect of his labors upon his cerebral
vascular disorder.
The force and sincerity of the argument made by able counsel
for appellant leads us to set out the medical testimony at some
length.
Appellant was examined by Dr. Foster May 17, 1966. He made his
report from information obtained directly from appellant, from
his wife who accompanied him and from a photostatic copy of his
hospitalization. His written report reads in part:
"I felt that the current manifestations and acute
illness of September 1965 in Mr. Strader were the
results of a cerebral thrombosis, in the distribution
of the right middle cerebral artery, located in the
right internal capsule. The hospital record and
course to date do not document a diagnosis of
ruptured cerebral artery aneurysm. The almost certain
cause is cerebral arteriosclerosis, with a left
capsular hemiplegia. The information available to me
does not document any specific contributing factor
relating to his occupation which might be a
significant provocative agent in contributing to its
development. The patient reports that the
environmental temperature was `high' on September 9,
1965, which would not be a factor specifically
related to his occupation. Depending upon the exact
environmental temperature, the continuity of his
physical activity, the frequency with which he
ingested liquid beverages, and the degree of activity
or inactivity immediately preceding the onset of his
episode of left hemiplegia, one might speculate that
dehydration may have been a factor in the genesis of
the episode. It is most unusual for capsular
hemiplegias of this type to be directly related to
heavy manual exertion; much more commonly they come
on during sleep or during periods of relative
physical inactivity. . . ." (Emphasis supplied.)
[206 Kan. 400]
Dr. McCarter reported as follows:
"With regard to the file of Harold J. Strader I
have reviewed the following: (1) a letter written by
J.T. Grimes, M.D., dated June 9, 1966, (2) form
KPERS-38 completed by J.T. Grimes, M.D. on December
17, 1965, (3) the letter by D. Bernard Foster, M.D.
"It is apparent after reviewing the above
information that Mr. Strader did suffer a cerebral
vascular disorder while working at his usual
occupation on September 9, 1965. It is my medical
opinion however that the nature of the illness and
the time of its onset was unrelated to either his
physical activities or the climatic environment
immediately preceding its onset.
"In my opinion Mr. Strader's illness should not be
considered a result of an accident arising out of the
course of his employment."
Dr. Grimes, appellant's physician, made a second report at
appellant's request. He stated:
"As we discussed on October 3, 1967 at my office,
there is a possibility of aggravation of a
pre-existing but unknown weakness of one of Mr.
Strader's cerebral arteries. The weather was hot (103°
F.) and other city employees stated that some of
the garbage containers were full and relatively
heavy. This is not to say that the stroke could not
have occurred at any time of the day or night
regardless of temperature or work load. I do not know
the answer to that question."
It is clear from the medical testimony in this case, and the
medical testimony in the cases cited, that while physical
exertion may increase the burden placed on the heart, it has
little, if any, effect on the blood vessels of the brain.
We are forced to conclude that there was ample evidence to
support the finding of the Board of Trustees that the disability
did not arise out of and in the course of appellant's actual
performance of his duties.
The appellant complains that he did not have a complete hearing
because the procedure afforded a claimant coming before the
Kansas Public Employees Retirement Board does not provide for the
opportunity of cross-examination nor for the subpoenaing of
witnesses.
The record does not bear out the contention that appellant did
not have a complete and satisfactory hearing.
On August 23, 1967, he wrote to the Board of Trustees stating:
"I sincerely hope that a hearing on this matter
might be put off at least until some time in October.
I'll try and make myself available whenever the Board
would want to hear it. I certainly hope that you can
accommodate me by a later date for a hearing than
September 7th.
"Any documentary evidence which I will want to
submit I will do in advance of any hearing date. So
far I have not been able to talk to Dr. Grimes nor to
secure any other testimony."
[206 Kan. 401]
The hearing was held on October 26, 1967, at which time
appellant took the witness stand and was examined by his
attorney. Appellant's attorney made his argument. The chairman of
the Board of Trustees then asked if there was any other evidence
to be offered in appellant's behalf. Appellant's attorney asked
the Board of Trustees to consider the latest report of October 6,
1967, from Dr. Grimes of Lyons, Kansas, and requested that this
be considered in addition to the oral testimony in the case. Dr.
Grimes' report of October 6, 1967, is quoted herein. The reports
of the other doctors mentioned and other records had been
previously filed with the Board of Trustees.
There is no indication that the appellant intended to present
evidence in any form other than oral testimony on his own behalf,
written medical reports from his physician and oral argument by
his counsel. The record indicates that at the time of the hearing
there was no objection to the hearing procedure and that at the
close of the hearing counsel for the appellant conceded that
everything which he felt should be presented was before the Board
of Trustees.
In the two points which the appellant has raised regarding the
fairness of the hearing lack of power to subpoena witnesses and
the fact that no cross-examination took place appellant would
appear to be contending that without a trial de novo in the
district court he is denied due process of law.
The appellant got everything before the Board of Trustees that
he requested. He did not suggest cross-examination of the doctors
who filed the reports. Two of them were in the city of Topeka
where the hearing was being held and subject to call. The other,
Dr. Grimes, was appellant's own doctor. He was not hurt by the
absence of statutory procedure for subpoenaing witnesses.
It will be time enough for this court to pass upon the due
process of law question when it is raised by someone who is hurt.
Constitutionality of legislation or due process before an
administrative body will be considered by the courts> only where
necessarily involved and such constitutionality may not be
questioned by one not affected by its operation. (Stone v. City
of Wichita, 145 Kan. 377, 380, 65 P.2d 595; Marks v. Frantz,
179 Kan. 638, 643, 298 P.2d 316; State v. Consumers Warehouse
Market, 183 Kan. 502, 511, 329 P.2d 638.)
[206 Kan. 402]
We have not overlooked the statement in appellant's petition
"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."
We would suggest that a party appearing before an
administrative body cannot produce his evidence piecemeal. He
cannot produce part of his evidence before an administrative
agency and then produce the balance on judicial review. He must
produce all of his evidence on the merits before the
administrative body or show a good faith effort to do so.
The judgment is affirmed.
APPROVED BY THE COURT.
[206 Kan. 403]
19710123
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