dissenting.
The appellate role of this court requires us to accept the lower court’s findings if there is any evidence in the record to support the same. As I read the brief of appellant he does not contend there is no evidence to support the findings. They should be held conclusive. The only question remaining for this court to determine on review is whether the trial court properly applied the law to its findings of fact. I believe it did.
There is neither a factual basis nor legal precedent to support claimant’s contention that the district court should be ordered to enter an award for temporary total disability of not to exceed 415 weeks. The director stated that he entered such an award so claimant would have a leverage under K. S. A. 44-512a to assure prompt payments of compensation. No law appears which would support this type of ruling and the district court properly overturned such an award. The director made no finding that claimant was temporarily totally disabled. At the time of the original hearing before the examiner he found “. . . At the present time the case is not in a posture where the question of general body disability versus scheduled injury can be determined, . . .” The examiner entered an interim award of six months. Authority for such an interim award was established in Bushey v. Plastic Fabricating Co., 213 Kan. 121, 515 P. 2d 735. In effect this court considers the case on the examiner’s record but allows 415 weeks maximum award of total temporary disability without addressing itself to the facts in the examiner’s record.
It appears that at the time of the original hearing the present case was in the same posture as that of Bushey wherein no final determination could be made. Dr. Lungstrum’s undisputed testimony was that claimant could have returned to work within 30 days after November 8, 1973. Accordingly there is no basis in this record for allowing an award for 415 weeks total temporary disability in the absence of a review and modification hearing as provided in K. S. A. 44-510.
The district court found that claimant’s back condition was not a direct result of the accident but was the result of claimant’s loss of *691his foot. All of the cases relied on to support the majority opinion contain a factual basis to establish that the additional disability, other than the scheduled injury, must arise as a result of additional injury which occurs as a result of the accident. In other words it had been established in each of those cases that the accident caused the scheduled injury and also additional injury to the body as a whole which was separate, distinct and compensable as a direct and natural result of the primary accident or injury. See Riggan v. Coleman Co., 166 Kan. 234, 200 P. 2d 271; Jackson v. Stevens Well Service, 208 Kan. 637, 493 P. 2d 264; and Berger v. Hahner, Foreman & Cale, Inc., 211 Kan. 541, 506 P. 2d 1175.
In Berger this court examined the factual situation in Jackson and said:
“It is true that in the Jackson case, as well as in other cases where compensation in addition to that provided for a scheduled injury has been awarded, there was some, even though slight, physical injury in addition to the scheduled injury. For example in the Jackson case, claimant suffered injury to his right shoulder in addition to the scheduled injuries to his right hand and left index finger. Among other cases in which we approved compensation for disability, in addition to that awarded for a scheduled injury, are [citations omitted]” (p.545.)
The question in the instant case is oloser to the factual situation presented in Berger where it is said:
“. . . The question in the instant case, however, concerns the application of the statutory limitation to a further disability directly traceable to and resulting from the original injury.
“In the case at bar, the uncontroverted medical evidence shows that claimant suffered a general bodily disability by reason of traumatic neurosis; he was described by the examiner as a very sick man and according to the trial court no longer able to perform his work. In such circumstances, it does not follow that merely because a scheduled injury was the precipitating factor in his complete disability, claimant’s recovery should be limited to the amount allowed by the statute for the scheduled injury.” (pp. 545, 546.)
However, the idifference in the present case is that the evidence does support the trial court’s finding that the back problem stemmed from the loss of claimant’s foot and not from an additional injury. Accordingly the district court’s order limiting compensation should be affirmed.
One additional matter concerns me and that is this court’s allowance for the healing period for loss of the foot under K. S. A. 44-510d (23). It is true that the healing period allowed by the court has expired and will make no difference because of allowance of the *692415 weeks of total temporary disability, however this fact alone cannot justify the allowance. The statute provides:
“(23) Whenever the workman is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the benefits provided in K. S. A. 1969 Supp. 44-510 as amended, and no additional compensation shall be allowable or payable for either temporary or permanent disability: Provided, however, That the director, arbitrator, or committee may, in proper cases, allow additional compensation during the actual healing period, such period not to be more than ten percent (10%) of the total period allowed for the scheduled injury in question nor in any event for longer than fifteen (15) weeks: Provided further, That the return of the workman to his usual occupation shall terminate the healing period.”
This statute and the rule promulgated by the director, 2 Kansas Administrative Regulations 51-7-12, are both permissive in nature and not mandatory. Accordingly an allowance for a healing period should rest on some factual situation presented to the examiner and should rest within the trial court’s sound discretion. The present disallowance by the trial court should not be disturbed absent some finding of abuse of 'discretion. No facts are presented in the record from which 'this court can find an abuse of discretion by the trial court.
The case should be affirmed on appeal.
Fontron, J., joins in the foregoing dissenting opinion.