dissenting: I cannot reconcile our previous holding in Piper v. Kansas Turnpike Authority, 200 Kan. 438, 436 P. 2d 396, with the present decision of this court and I respectfully dissent.
The claimant had lost one eye from a non-industrial incident, a cataract operation, prior to the injury which is the basis for the present award of compensation. The present injury arose from a retinal detachment in his remaining eye caused by a fall while at work. The injury resulting in disability was an injury to one eye. When the hearing was held before the examiner claimant introduced evidence to show a percentage loss of vision in his one good eye. The claimant testified he could identify another person twelve feet away and could read with the aid of a magnifying glass. When he appeared before the examiner he said he was not able to perform any work at the present time. He did not explain this statement *781further. He had worked as a foreman supervising a maintenance crew on the highway. It does not appear whether he participated in the actual physical work or merely supervised the crew. He made reports on the work and kept a time schedule on the men who worked under him. The treating doctor testified he was able to do some types of work.
No evidence was introduced indicating claimant could not return to his previous job. There was no evidence that he was unable to procure work of the same or similar nature. The testimony that he could identify persons at twelve feet and could read with a magnifying glass was for the purpose of translating the medical terms “Snellen 20/70” and “Jaeger-7,” into intelligible terms. It did not indicate general disability to function at a particular job.
In compensation cases the issues are resolved at the hearing before the examiner. The parties present their evidence. The record of evidence is then complete for review. On appeal to the district court it decides the issues on the transcript of evidence taken before the examiner after review by the workmen s compensation director. The district court cannot grant a trial de novo. (Place v. Falcon Seaboard Drilling Co., 186 Kan. 523, 350 P. 2d 788; Phillips v. Helms Inc., 201 Kan. 69, 439 P. 2d 119.) The district court on review weighs the evidence upon the record made before the examiner. (Landes v. Smith, 189 Kan. 229, 368 P. 2d 302.)
The same transcript of evidence was before this court on the first appearance of this case. We properly held that this court was not authorized to determine disputed questions of fact. The extent and degree of disability remained a question of fact to be determined by the trier of the fact. (Knight v. Hudiburg-Smith Chevrolet, Olds., Inc., 200 Kan. 205, 435 P. 2d 3; Casebeer v. Casebeer, 199 Kan. 806, 443 P. 2d 399.)
We stated in Piper v. Kansas Turnpike Authority, supra:
“. . . Since the district court has not determined from the record whether the claimant’s disabling injury is permanent in nature, and if so, whether such impairment is total or partial in character, it is necessary to remand this case to the district court to make findings based upon the evidence and determine the amount of compensation, if any, due the claimant.” (p. 445.)
This determination of fact was the function of the district court. An appellate court does not make findings upon which an award of compensation is based. (Fisher v. Rhoades Construction Co., 190 Kan. 448, 375 P. 2d 771.)
*782The trial court made the findings requested by this court and it was not required to accept the claimant’s testimony as true. It could accept or reject portions of that testimony in arriving at its findings. The trial court found that claimant is not totally disabled.
The majority of this court has reviewed the evidence a second time and now says this evidence establishes total permanent disability as a matter of law. If this is true now it was true when the case first appeared and the case should not have been remanded to the trial court to make the findings. This is the same transcript and the same evidence which was previously examined.
The present majority opinion proceeds upon the false premise that unless there is substantial evidence to show the claimant could perform and retain work of the same type and character as he was able to perform before the injury he is totally and permanently disabled.
The claimant in a workmen’s compensation case has the burden to establish his claim. (Bender v. Salina Roofing Co., 179 Kan. 415, 295 P. 2d 662; Ratzlaff v. Friedeman Service Store, 195 Kan. 548, 407 P. 2d 513; Meyers v. Consolidated Printing & Stationery Co., 201 Kan. 806, 443 P. 2d 319.) The extent and degree of disability is a necessary element of his claim.
The claimant presented his case before the examiner on the basis of a percentage of loss of use of his eye. The claimant later argued in the district court and on appeal to this court he was entitled to 55.08 percent of general body disability based upon rules of the director and upon K. S. A. 44-510 (3) (c) (24) and (26).
Director’s Rule 51-8-7 in pertinent part reads:
“If a workman had co-incidentally and, industrially sustained a permanent, partial visual efficiency loss to each eye, provided that he had not, at the same time, sustained any other permanent, partial industrial disability, the prescribed method of procedure for the computation of the percentage value of that workman’s permanent, partial industrial efficiency loss is exemplified as follows: . . .” (Emphasis supplied)
Director’s Rule 51-8-9 in pertinent part reads:
“Where there is complete loss of vision of one eye, due to an industrially incurred injury, and industrial blindness exists in the fellow eye, even if industrial blindness of the fellow eye is not due to an industrially sustained injury, that more recent and complete loss of the workman’s only visual potent eye shall not be rated on the basis of the visual loss to a single eye, but shall be rated on the basis of a total permanent disability.” (Emphasis supplied)
The examiner, director and the district court all found under the evidence that claimant’s loss was partial and limited to one eye, *783that he was employable and not totally disabled. Allowance was made for a partial permanent disability of a scheduled member.
In our previous opinion (Piper v. Kansas Turnpike Authority, supra,) this court said:
‘Ts the claimant to go uncompensated for his loss of vision? We think not. K. S.A. 44-510 (3) (c) (17) (21) provides for payment of compensation to an injured workman measured by a percentage of his average weekly wage for the loss of an eye, or the loss of sight of an eye, total or partial, attributable to a permanent injury. . . .” (p.443)
The trial court made the findings requested based upon substantial evidence and applied the statute to arrive at the proper compensation due under K. S. A. 44-510 (3) (c) (17) and (21).
The claimant is attempting tó persuade this court to allow him permanent partial general disability not provided in any part of the Act or the rules of the Director. To allow such disability in this case without evidence of general bodily disability would be to permit any person who has previously lost an arm or leg in a nonindustrial occurrence and who sustains a small percentage permanent partial disability to his remaining member to recover under K. S.A. 44-510 (3) (c) (26).
This is the result which the legislature sought to avoid by the use of the qualifying words, “total permanent disability” in said statute and which the Director sought to avoid by the use of the word “complete” in Rule 51-8-9 and the words “coincidentally and industrially” in 51-8-7.
The rule of liberal construction cited in the majority opinion applies to construction of the statutes. It does not authorize this court to adopt a liberal attitude toward proof of disability, regardless of how deserving a claimant may be.
On appeal this court must view the evidence most favorable to the prevailing party below. This rule applies whether compensation has been allowed or denied and whether the appeal is by claimant or respondent. (Elliot v. Ralph Construction Co., 195 Kan. 723, 726, 408 P. 2d 584.)
The claimant relies on four cases: Polston v. Ready Made Homes, 171 Kan. 336, 232 P. 2d 446; Justice v. Continental Can Co., 174 Kan. 539, 257 P. 2d 564; Stevens v. Kelly-Carter Coal Co., 140 Kan. 441, 37 P. 2d 48, and Masoner v. Wilson & Co., 141 Kan. 882, 44 P. 2d 265. In all of these cases there was evidence of total permanent disability, the Rial court found total disability existed and the application of K. S. A. 44-510 (3) (c) (24) and (26) was proper.
*784However, this is not true of the present case. Based upon the evidence or lack of it the trial court found claimant did not suffer total permanent disability. We are not justified in substituting our judgment for that of the trial court.
In addition I cannot agree that claimant’s injury resulted in a loss of binocular vision. Binocular vision relates to vision from both eyes. Claimant did not have binocular vision at the time of his injury. Assuming, but not conceding, that a loss of vision may be more disabling to a person who has but one eye I cannot equate a percentage loss of vision to a percentage of disability without additional evidence on job limitation. The demands of the work determine the requisite visual acuity to perform that work. The extent of disability suffered because of partial loss 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 disregarding the function of an appellate court.
I would affirm the lower court’s judgment and award.
Price, C. J., and Schroeder, J., join in the foregoing dissent.