8.09 Permanent Partial General Disability

8.10 Work Disability

8.11 Generally

• March 1998. (Award) An injured worker who returns to work at an accommodated job following a work-related injury and is subsequently laid off, either because of an economic layoff or because the employer can no longer accommodate her restrictions, is entitled to a work disability. See Lee v. Boeing Co., 21 Kan. App.2d 365, 899 P.2d 516 (1995). Waggoner v. Fiberglass Engineering, Inc and Cigna Insurance Company, Docket No. 199,827.



• ----- Proof of permanent functional impairment based upon the AMA Guides is not essential for a claimant to receive compensation based on a work disability. See, McLaughlin v. Excel Corporation, 14 Kan. App. 2d 44, 783 P.2d 348, rev. denied 245 Kan. 784 (1989). Id.



• April 1997. (Award) Where the record indicates claimant's performance over the past thirteen years with respondent was "satisfactory" until her upper extremity problems began to develop, the Appeals Board finds this sudden emergence of the poor work evaluations after claimant began developing the upper extremity problems indicates a direct connection with her work-related injury. In this instance, the evidence does not support a finding that claimant was fired for poor work performance unrelated to her injury. Claimant is, therefore, entitled to work disability. Jonas v. Towanda Publishing Company and Thomas McGee & Sons, Docket No. 192,426.



• January 1997. (Award) Claimant suffered an injury in 1983 causing him to terminate his employment with his first employer. Thereafter claimant attended truck driving school and began driving trucks. Even though claimant was under specific work restrictions including limitations to his ability to lift and repetitively bend and stoop, claimant voluntarily performed his work duties outside of those restrictions for several years. Claimant was subsequently injured in 1992. Respondent contests claimant's award of work disability in the present matter arguing that claimant's pre-existing limitations from the 1983 injury should be taken into consideration in assessing claimant's inability to obtain work in the open labor market and earn a comparable wage. However, the Board finds that to penalize claimant in this instance by denying him a work disability and apply the prior restrictions, which claimant exceeded for a period of several years, would have the undesired effect of discouraging injured workers from returning to work by further penalizing them if they were re-injured after doing so. The fact claimant could voluntarily exceed the 1983 work restrictions simply indicates that they were excessive. Therefore, the Appeals Board finds that the award of the Administrative Law Judge granting claimant a work disability is accurate and appropriate. Byers v. Morton Buildings, Inc. and Insurance Company of North America and Kansas Workers Compensation Fund, Docket No.173,408. [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,537].



• See Also, Flores v. Cameron Drywall, Docket No. 152,948 (January 1994).

8.12 Work Disability Test ( Pre 1993 Amendments )

• November 1999. (Award) Held claimant entitled to work disability award where post traumatic stress disorder worsened to the point that claimant could no longer continue to work for respondent. Board distinguished Watkins v. Food Barn Stores Inc., 23 Kan. App. 2d 837, 936 P.2d 294 (1997) and Lowmaster v. Modine Manufacturing Co., 25 Kan. App. 2d 215, 962 P.2d 1100, rev. denied ___ Kan. ___ (1998). Watkins distinguished on grounds that in this case claimant left work because condition worsened. Lowmaster distinguished because evidence indicated claimant could not work at respondent. Helmstetter v. Midwest Grain Products, Inc., Docket No. 222,191 [Affirmed by unpublished Court of Appeals opinion, Docket No. 84,437, February 16, 2001].

• May 1999. (Award) The challenge faced by the Board was how to handle the argument that claimant's recommended restrictions were for a condition or conditions other than the work-related injury. The Board understood that in the testimony of one physician, part of his rating and part of his restrictions related to a preexisting disc disease and part to the additional injury caused by the work-related accident. The Board noted, however, that at the time of claimant's injury, in cases involving an aggravation of a preexisting condition, a claimant was entitled to the benefits based on the full resulting disability, including the preexisting disability. See Baxter v. L.T. Walls Constr.. Co., 241 Kan. 588, 738 P.2d 445 (1987). Therefore, based upon the record, the Board concluded that claimant's full resulting disability, including the preexisting condition, was to be compensable. Holmes v. State of Kansas and State Self Insurance Fund and Kansas Workers Compensation Fund, Docket No. 172,052.



• February 1999. (Award) The Board concluded the record as a whole established that claimant did not have the ability to earn a post-injury wage comparable to the wage earned while employed by respondent. Therefore, claimant attending college in good faith effort to attain the ability to find employment would not disqualify claimant from receiving a work disability award. Amy L. Burroughs vs. IBP, Inc., Docket No. 170,497 (February 1999). [Affirmed by unpublished Court of Appeals opinion, Docket Number 82,838, November 19, 1999.]



• May 1998. (Award) The Board finds claimant is entitled to a work disability as a result of the work-related shoulder injury. Although claimant was terminated for cause, for not calling in and not showing up for work, claimant was not terminated as a result of any manipulation of the workers compensation system. Further, the Board found the shoulder injury would have prevented claimant from returning to work driving a truck. Nothing in the record indicated either that claimant did earn or was able to earn a comparable wage. K.S.A. 1990 Supp. 44-510e. The Board therefore granted a work disability of 21 percent. Rome v. Western Livestock Express and National American Insurance Company, Docket No. 170,650.



• March 1998. (R/M) The definition of work disability has undergone several legislative revisions since the Workers Compensation Act was first enacted. Before the July 1, 1987, amendments to K.S.A. 44-510e(a), the definition of work disability was tied to the job the claimant was performing at the time of the injury. In 1987, however, the Kansas Legislature amended the definition of work disability to not tie it to the type of job the claimant was performing at the time of his injury, but instead to the entire open labor market. Nevertheless, the Kansas Court of Appeals in Watkins v. Food Barn Stores, Inc., 23 Kan. App.2d 837, 936 P.2d 294 (1997), considered this amended version of the statute and held that if an injured worker has the ability to return to his former job without any accommodations then, absent a change in his physical condition, he is precluded from receiving a work disability. McChristian v. Total Petroleum, Inc and Itt Hartford, Docket No. 193,082.

• ----- The Assistant Director denied claimant's request for an increase in work disability pursuant to the holding in Watkins because claimant was returned to an unaccommodated job and was subsequently laid off. The Appeals Board, however, found the job claimant returned to with respondent following his injury was an accommodated job. Although claimant returned to the same job he had performed prior to his injury, respondent made arrangements to accommodate claimant's restrictions. Claimant was instructed to always seek assistance in any job tasks which exceeded his restrictions. Furthermore, he was instructed to work at his own pace to avoid additional injury. Claimant was specifically assigned to two-man crews so that there would always be someone available to assist him. His co-workers also did what they could to take care of him. The Appeals Board finds that because claimant returned to an accommodated job, he is entitled to consideration for a work disability following Lee v. Boeing Co., 21 Kan. App.2d 365, 899 P.2d 516 (1995). Therefore, Watkins does not apply. Id.



• March 1998. (Award) Work disability awarded until claimant restored to comparable wage. Post injury wage earning ability or actual earnings will be compared to the average weekly wage. Sherman v. Ninnescah Manor, Inc and Kansas Health Care Assn., Docket No. 186,998.

• ----- The Appeals Board is not required to weigh equally loss of access to the open labor market and loss of ability to earn a comparable wage, but without a compelling reason to give either factor a greater weight, it normally will weigh each factor equally. See Schad v. Hearthstone Nursing Center, 16 Kan. App.2d 50, 816 P.2d 409, rev. denied 250 Kan. 806 (1991). Id.

• February 1998. (Award) Although not obligated to , the Appeals Board generally balances claimant's ability to earn a comparable wage with claimant's ability to perform work in the open labor market to compute the work disability under K.S.A. 1990 Supp. 44-510e. See Hughes v. Inland Container Corp, 247 Kan. 407, 799 P.2d 1011 (1990). Magallanes v. Patrick Well Service and U.S.F. & G., Docket No. 159,193.



• See Also, Cook v. Ashland Feeders and Travelers Insurance Company, Docket No. 165,691 (March 1998); Siebert v. F.W. Woolworth, Inc. and Travelers Insurance Company, Docket No. 184,351 (December 1997); Larrison v. J.E. Dunn Construction Company, Inc and Builders' Assn Self-Insurers' Fund, Docket No. 150,543 (January 1997).

• January 1998. (Award) Claimant slipped on a piece of fat at work and injured her right knee and aggravated a preexisting condition of degenerative cervical disc and osteophytic disease in her neck. Despite her contention that she is permanently and totally disabled from engaging in any substantial and gainful employment, the appeals Board finds claimant retains the ability to perform sedentary work. Considering claimant's 85 to 90 percent loss of ability to perform work in the open labor market and her 71 percent loss of ability to earn a comparable wage, the Appeals Board finds claimant has a 79.25 percent permanent partial general disability as a result of the accident. Quandt v. IBP, Inc. and Workers Compensation Fund, Docket No. 184,591.

• ----- But See Dissent, Based upon the reasoning in Wardlow v. ANR Freight Systems, 19 Kan. App.2d 110, 872 P.2d 299 (1993), and claimant's uncontroverted testimony that she is unable to find any full time work, the dissenting Board member finds claimant is essentially unemployable and has established a permanent, total disability. Id.

• ----- Second Dissent, which found claimant had the ability to work full time if she could find full time employment and would determine claimant's wage-earning ability based upon a standard 40 hour work week rather than the 20 hour work week as used by the majority. Id.

• October 1997. (Award) Claimant sustained injuries to his back on three separate occasions in 1985, 1988 and 1990. As a result, claimant contends he is entitled to a substantial work disability under K.S.A. 1984 Supp., 44-510e and based upon the principles set forth in Ploutz v. Ell-Kan Co., 234 Kan. 953, 676 P.2d 753 (1984). In Ploutz, the Supreme Court was asked to review the Court of Appeals' interpretation of the 1974 statutory provision dealing with workers compensation work disability. The Court found that work disability is "that portion of the job requirements that a worker is unable to perform by reason of an injury." Id. at 955. The pivotal question found by the Court is what portion of the claimant's job requirements is he/she unable to perform because of the injury. Here claimant returned to work at his regular employment subsequent to the injury. While it is true claimant bid to a lighter job alleging ongoing pain symptomatology, the Appeals Board finds that claimant was under no medical restrictions at the time he returned to work in 1985 and suffered no loss in his ability to engage in work of the same type and character. Based upon the requirements of K.S.A. 1984 Supp. 44-510e and the holding of Ploutz, claimant is not entitled to a work disability as a result of the injury suffered in 1985. Ball v. Georgia Pacific Corporation and Kansas Workers Compensation Fund, Docket No. 155,811.



• See also, Hayslett v. Rockwell International, Docket Nos. 163,234; 163,235 & 165,474 (March 1994), where the Board applied the Ploutz standard to find a 33.33% disability.



• July 1997. (Award) Termination of employment for violation of company policies does not necessarily preclude claimant from work disability award where: (1)claimant produces evidence to rebut the presumption of no work disability; and (2), such evidence does not establish that claimant's actions were tantamount to refusing to work or that claimant has withdrawn from the open market without good cause. Molinar v. IBP, Docket No. 155,675.

• July 1997. (Award) Two components of the work disability test discussed: (1) loss of ability to perform work in the open labor market, and (2) loss of ability to earn a comparable wage. Jones v. U.S.D. 315 and Allied Mutual Insurance Co., Docket No. 195,651.



• June 1997. (Award) When dealing with an injury occurring prior to July 1, 1993, the definition of work disability is controlled by the language in K.S.A. 1992 Supp. 44-510e(a). Williams v. Central Mechanical Const. Co., Inc. and CNA Insurance Companies and Workers Compensation Fund, Docket No. 183,553.

• June 1997. (Award) The Appeals Board finds no legitimate reason for placing greater emphasis upon one prong of the work disability equation over the others. Jackson v. The Boeing Company and Aetna Casualty & Surety Company and Kansas Workers Compensation Fund, Docket No. 176,169.

• April 1997. (Award) The Kansas Supreme Court in Hughes v. Inland Container Corp, 247 Kan 407, 799 P.2d 1011 (1990), in considering the formula set forth in K.S.A. 44-510e, found that an average of claimant's loss of ability to perform work in the open labor market and loss of ability to earn comparable wages, while not mandatory, is an appropriate method of computing claimant's work disability. The Supreme Court did mandate that both the ability to perform work in the open labor market and the ability to earn comparable wages must be considered in determining the extent of work disability. Hatfield v. Metro Courier Service and Aetna Casualty & Surety, Docket No. 162,872.



• See Also, Rios v. Excel Corporation and Kansas Workers Compensation Fund, Docket No. 176,751 (January 1998); Lang v. Okmar Oil Company and St. Paul Fire & Marine Insurance Company and Kansas Workers Compensation Fund, Docket No. 155,777 (January 1997).

• April 1997. (Award) When determining an award of work disability medical opinions are to be equally weighed. See Hughes v. Inland Container Corporation, 247 Kan. 407, 799 P.2d 1011 (1990). Zimmer v. M-C Industries, Inc and Maryland Casualty Insurance, Docket No. 187,540. [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,044].

• March 1997. (Award) Work disability not given where it is found that claimant's back injury neither reduced claimant's ability to perform work in the open labor market nor his ability to earn a comparable wage. Claimant's preexisting mental condition of schizophrenia was the cause of claimant's not being able to hold a job. Webb v. Andys of Topeka and Tri-State Insurance Company and Workers Compensation Fund, Docket No. 137,625. [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,802].

• March 1994. (Award) Where there was no reason to give greater weight to either factor, loss of ability to access the open labor market and loss of ability to earn a comparable wage, both are given equal weight when determining work disability. Honeywell v. J.C. Penney Company, Docket No. 165,127.

• See also, Hoffer v. Rubbermaid Inc., Docket No. 158,156 (April 1994).

• March 1994. (Award) The test for determining permanent partial general disability is the extent, expressed as a percentage, to which the claimant's ability to perform work in the open labor market is reduced and the ability to earn a comparable wage has further been reduced, taking into consideration the employee's education, training, experience and capacity for rehabilitation. See Hughes v. Inland Container Corp., 247 Kan. 407, 422, 799 P.2d 1011 (1990). In the case at hand, the Appeals Board adopts the formula set forth in Hughes and averages the 57% loss of labor market access with the 0% loss of ability to earn a comparable wage and finds the claimant has suffered a 28.5% work disability. Rice v. Golden Acres Nursing Home and National Union Fire Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 163,517 & 165,668.

8.13 Loss of Access to Labor Market

• July 1997. (Award) Where a vocational rehabilitation expert testifies claimant has lost between 55 to 70 percent of his ability to perform work in the open labor market because of his work-related injuries to his upper extremities, the Appeals Board finds claimant has a 65 percent permanent partial general disability for which permanent partial disability benefits are awarded. King v. The Boeing Company and Aetna Casualty & Surety Company & Workers Compensation Fund, Docket No. 189,943.

• December 1996. (Award) Before a wage can be imputed to the wage component of the work disability test a job has to also be available in claimant's labor market. See Scharfe v. Kansas State Univ, 18 Kan. App. 2d 103, 848 P.2d 994, rev. denied 252 Kan. 1093 (1992). Jarrell v. Waste Management of Wichita and CNA Insurance Company and Kansas Workers Compensation Fund, Docket No. 175,426.

• December 1995. (Award) Claimant's vocational rehabilitation counselor's opinion admitted into evidence essentially stated that claimant's unemployability related to her overall condition at the time that he had evaluated claimant from a vocational standpoint. That included the medical problems claimant developed or which were diagnosed after her last day of working for the respondent and which were conditions unrelated to her work-related injuries. Nowhere did the vocational rehabilitation counselor give an opinion of the labor market loss utilizing the restrictions of Dr. Shaw or any other restrictions resulting from the work-related injuries alone. Therefore, the Appeals Board found that claimant had failed to meet her burden of proof with regard to the loss of labor market access. The labor market loss, therefore, was considered to be 0%. Brobst v. Brighton Place North and Church Mutual Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 152,447; 152,448 & 152,449 [ Affirmed by Kansas Court of Appeals, 24 Kan. App.2d 766, 955 P.2d 1315 (1997)].

• December 1993. (Award) Greater weight is given to loss of access to the labor market to arrive at a 58% work disability. Newberry v. Stormont Vail Regional Medical Center and Kansas Workers Compensation Fund, Docket No. 158,390.

• December 1993. (Award) Award is based on loss of access to labor market as stated by the vocational expert relying upon the restrictions recommended by the treating expert where claimant has been unable to find employment in spite of good faith effort. Branstetter v. Villa Del Mar Apartments, Docket No. 160,652.

8.14 Loss of Ability to Earn Work at a Comparable Wage (Wage Loss)

• January 1999. (Award) K.S.A. 1992 Supp. 44-510e defines the extent of permanent partial general disability to be the extent, expressed as a percentage, to which the ability of the employee to perform work in the open labor market and to earn comparable wages has been reduced. The language of that statute does not consider whether claimant is actively searching for employment; instead, it focuses upon what ability claimant may or may not have to earn wages. As such, claimant is awarded 46 percent permanent partial work disability . De La Paz v. Erman Corporation and National Union Fire insurance Company and Insurance Company of North American and Home Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 133,539; 154,373; and 172,398.

• October 1998. (Award) A claimant who earns a comparable wage after the injury is limited to disability based functional impairment. K.S.A. 1992 Supp. 44-510e. Thidsorn v. Excel Corporation, Docket No. 177,005.



• September 1998. (Award) Claimant failed his burden of proving loss of access to the ope labor market where claimant presented no competent and credible medical evidence attesting to the loss of access to the open labor market. Therefore, claimant is entitled to no loss of access to the open labor market as a result of this injury. Tackett v. Koch Chemical Company and Insurance Company of North America and Kansas Workers Compensation Fund, Docket No. 163,962 [Reversed and remanded by unpublished Court of Appeals opinion, Docket No. 77,468].



• July 1997. (Award) Where a vocational rehabilitation expert testifies that claimant has lost 70 percent of his ability to earn a comparable wage, the Appeals Board finds claimant has a 65 percent permanent partial general disability for which permanent partial disability benefits are awarded. King v. The Boeing Company and Aetna Casualty & Surety Company & Workers Compensation Fund, Docket No. 189,943.

• June 1997 (Award) When discussing claimant's ability to earn a comparable wage, the Administrative Law Judge utilized the opinion of one witness but not another. The Appeals Board held there was no justifiable reason for not considering both witness' opinions equally. Jackson v. The Boeing Company and Aetna Casualty & Surety Company and Kansas Workers Compensation Fund, Docket No. 176,169.



• May 1997. (Award) Where claimant left her employment because of her dissatisfaction with the general working conditions and not because of her work-related injury, and where claimant continued to earn a comparable post-injury wage elsewhere, the Appeals Board finds claimant is not entitled to work disability benefits. Fahringer v. IBP, Inc., Docket Nos. 159,418 & 159,419.

• January 1997. (Award) The Appeals Board finds claimant has a 37 percent loss of ability to earn a comparable wage by comparing the average weekly wage claimant was earning the day of the accident to claimant's present average weekly wage. The Board finds that comparison more indicative of claimant's loss of ability to earn a comparable wage and rejects respondent's argument that the Board should compare claimant's present average weekly wage with the average weekly wage based upon claimant's annual salary for the year preceding the accident. Becker v. Gilbert Central Corporation and Aetna Casualty and Surety Company, Docket No. 172,229. [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,320].



• September 1996. (Award) In the case at hand, the Board finds the proper method of determining a claimant's wage loss after his return to work would be to compare the average weekly wage claimant was earning with respondent to the anticipated average weekly wage claimant testified he had the ability and expected to earn with his new employer. The claimant's actual earnings post-accident and post-rehabilitation would be the best measure of his earning ability. Therefore, by comparing claimant's $575.50 gross average weekly wage to his anticipated post-accident average weekly earnings of $490 results in a loss of 15 percent. This combined with the 50 percent labor market loss results in a work disability of 32.5 percent. Abrams v. Joe Conroy Contractor, Inc. and Aetna Casualty & Surety Company, Docket No. 150,733



• February 1994. (Award) Claimant's actual post-injury wage used to compute loss of ability to earn a comparable wage where her actual post-injury wage was higher than the wage projected by claimant's expert. Patton v. Winfield State Hospital, Docket No. 166,606.



• December 1993. (Award) Greater weight given to loss of ability to earn a comparable wage and stipulated average weekly wage used to arrive at a 28% general disability. Murphree v. Steve Runn Drywall Const., Docket No. 166,809.

• December 1993. (Award) Award is based upon loss of ability to earn a comparable wage where evidence established that there would be a loss of access to the labor market but did not establish what the loss would be. Berry v. Boeing Military Airplanes and Kansas Workers Compensation Fund, Docket No. 129,500. [Affirmed in part, reversed in part and remanded from Court of Appeals at 20 Kan. App. 2d 220 (1994)].

8.14a Lack of Good Faith By Claimant to Return to Work at a Comparable Wage

• Foulk v. Colonial Terrace, 20 Kan. App.2d 277, 887 P.2d 140 (1994), rev. denied, 257 Kan. 1091 (1995)
• See Also, Sec. 8.22 For New Act or Post-93 Work Disability and Claimant's Lack of Good Faith to Return to Work at a Comparable Wage

• September 1999. (Award) Claimant entitled to a work disability because he was placed in an accommodated job earning a comparable wage and the respondent terminated the claimant from that accommodated job for reasons not proven by the record. Once claimant loses an accommodated job, the no work disability presumption may be rebutted. Otherwise, an employer could accommodate an injured worker, therefore invoking the presumption, and then discharge the worker and use the presumption in an effort to avoid a work disability. See Watkins v. Food Barn Stores, Inc., 23 Kan. App.2d 837 (1997). White v. Payless Shoe Source and Kansas Workers Compensation Fund, Docket No. 180,691.

• October 1998. (Award) A claimant who refused to attempt an appropriate comparable wage job offered is treated as though he/she earned a comparable wage. See Foulk. But if a claimant attempts to perform a job offered but is not able to do so because of his/her injury, the claimant may be entitled to a work disability. See Guerrero v. Dold Foods, Inc, 22 Kan. App.2d 53, 913 P.2d 612 (1995). In the case at hand, claimant attempted an accommodated job for respondent but experienced much pain while performing his job duties. Respondent terminated claimant after learning of his pain. The Board finds claimant did not refuse accommodated work by not being able to perform the accommodated job without pain. Thidsorn v. Excel Corporation, Docket No. 177,005.



• March 1998 (Award) Foulk does not apply to limit claimant to an award based upon functional impairment where of the three jobs offered claimant by respondent, two were not within claimant's restrictions and the third would not allow claimant to work at a comparable wage. Cook v. Ashland Feeders and Travelers Insurance Company, Docket No. 165,691.

• ----- Under Copeland v. Johnson Group, Inc., 24 Kan. App.2d 306, 944 P.2d 179 (1997), [Affirmed by Court of Appeals, Docket No. 81,414, December 30, 1999] if a finding is made that a good faith effort has not been made to find appropriate employment, then the fact finder must determine an appropriate post injury wage based upon all of the evidence before it, including any expert testimony concerning claimant's capacity to earn wages. For injuries which occur pre-July 1, 1993, the Appeals Board finds Copeland obligates the finder of facts to decide claimant's ability to earn wages. The language of K.S.A. 44-510e before July 1, 1993, also obligates the finder of facts to determine the claimant's ability to earn comparable wages. Therefore, to apply Copeland to a pre-July 1, 1993, injury would simply be case law supporting an already existing statutory obligation. Id.



• March 1998. (Award) Asking claimant to change from 2nd to 1st shift to better accommodate claimant is not unreasonable. Claimant's refusal to do so invokes the policies of Foulk. Swickard v. Meadowbrook Manor and Zurich-American Insurance Company, Docket No. 201,767 [Affirmed by Court of Appeals opinion, Docket No. 81,018].

• ----- But See Dissent, the Dissenting Board Member does not believe the Foulk decision applies because claimant was justified in declining the first shift job because of transportation problems. The evidence does not establish that claimant was attempting to wrongfully manipulate her workers compensation award. Id.



• February 1998. (Award) Where claimant's failure to complete a vocational rehabilitation plan was due to an illness rather than a willful or deliberate attempt to manipulate the workers compensation system via a refusal to take full advantage of the vocational rehabilitation benefits that may have enabled her to return to work, the Appeals Board finds the public policy considerations set forth in Foulk do not apply to this case. Crane v. State of Kansas and State Self Insurance Fund, Docket No. 204,615.



• February 1998 (Award) The Appeals Board finds respondent's offer to provide "some type of work" for claimant leaves a multitude of question unanswered regarding the specific job, the specific physical requirements of the job, whether this job would be within claimant's restrictions, whether the job would be full or part-time, etc. Therefore, the Board finds that even if claimant were aware of the offer, he would not violate the principles of Foulk in refusing to accept this ambiguous job offer of respondent. Magallanes v. Patrick Well Service and U.S.F. & G., Docket No. 159,193.



• October 1997. (Award) After a work-related accident, claimant returned to work as an electrician for respondent; however, claimant quit his employment when he could no longer perform his regular job within his restrictions. Although respondent argues the rationale in Foulk applies, the Appals Board finds claimant did make a good-faith effort to return to employment as a journeyman electrician. Additionally, claimant was neither offered nor refused accommodated work and respondent did not offer claimant vocational rehabilitation benefits or other vocational assistance. Therefore, claimant was entitled to work disability benefits as defined by K.S.A. 1992 Supp. 44-510e. Fowlkes v. Capital Electric Construction Company and Builders' Association Self-Insurers Fund and Workers Compensation Fund, Docket No. 187,309 [Affirmed by unpublished Court of Appeals opinion, Docket No. 80,161].

• August 1997. (Ph) Claimant suffered accidental injury to her hands, arms and shoulders on Feb. 1, 1993. Thereafter, she was treated, reached maximum medical improvement and returned to work to chose a job working for respondent within her restrictions. Claimant was offered the job she picked bagging flap meat but later refused to attempt the job alleging she was physically incapable. The Appeals Board affirmed the Administrative Law Judge's application of Foulk to claimant's case in finding claimant's refusal to attempt the work, even after two physicians opined it would be within her work restrictions, was unreasonable. Claimant was allowed functional impairment only. Serrano v. Excel Corporation, Docket No. 176,759



• June 1997. (Award) Following claimant's release to return to work, claimant performed an accommodated light duty job of marking ribs. Claimant performed this job for less than two days, however, because she felt it violated her work restrictions. Claimant was subsequently terminated because of her refusal or inability to perform the job. Taking the record as a whole, the Appeals Board finds claimant has established sufficient doubt as to her ability to perform the job so as to persuade the Appeals Board that the public policy considerations outlined in Foulk and the presumption of no work disability are not applicable to her case. Additionally, the Appeals Board finds claimant has put forth a good faith effort to perform her light duty job. See Guerrero v. Dold Foods, Inc., 22 Kan. App.2d 53, 913 P.2d 612 (1995). Almarez v. Excel Corporation and Kansas Workers Compensation Fund, Docket Nos. 179,646 & 179,647.

• May 1997. (Award) Claimant injured his left shoulder in a work-related accident and was provided an accommodated job. Claimant attempted to perform the new job but experienced increased symptomatology and was terminated. The Appeals Board finds claimant put forth a reasonable effort to perform the job and thus the principles in Foulk do not apply. Narvaez v. Excel Corporation and Workers Compensation Fund, Docket No. 181,197.

• April 1997. (Award) An offer by respondent to "find something for claimant to do" following a work-related injury is not an offer of a job at a comparable wage within claimant's restrictions. Therefore, claimant's refusal to accept respondent's offer does not invoke the public policy considerations outlined in Foulk. It is necessary that an offer to accommodate within claimant's restrictions be communicated to the claimant. Hatfield v. Metro Courier Service and Aetna Casualty & Surety, Docket No. 162,872.

• April 1997. (Award) Where claimant, who developed bilateral carpal tunned syndrome, was not offered a job she could perform within her restrictions at a comparable wage, the Appeals Board finds the argument of respondent and conclusion of the Administrative Law Judge that the facts are analogous to Foulk are misplaced. The Appeals Board finds claimant is entitled to permanent partial disability based on an award of work disability. Zimmers v. M-C Industries, Inc and Maryland Casualty Insurance, Docket No. 187,540.

• April 1997. (Award) Respondent's arguments that the public policy outlined in Foulk applies to claimant's case denied when Appeals Board finds claimant was neither qualified for nor permitted by respondent to perform an accommodated job because claimant had not satisfied the continuing education requirements for a licensed nurse. Wrigley v. Medicalodges, Inc. and Workers Compensation Fund, Docket No. 162,882.

• April 1997. (Award) Where claimant refused accommodated employment within her physical restrictions, the Appeals Board finds, based upon the logic contained in Foulk, that claimant is limited to functional impairment as a result of the injury suffered with respondent. Patee v. The Boeing Company and Aetna Casualty & Surety and Kansas Workers Compensation Fund, Docket No. 160,948.

• See Also, Montoya v. Monfort, Inc. and City Insurance Company, Docket Nos. 168,342 & 169,906 (January 1997) [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,508].

• March 1997. (Award) Held: the bid process under which respondent's plant operates-whereby a worker may "bid" on regular duty jobs at such time as they may become available and then, when they do bid, the worker may or may not win the bid for that job depending upon the respective seniority of the bidders - does not constitute an offer of employment. Further, although claimant could have tried harder to find a comparable full-time job, the Appeals Board does not find the facts of this case analogous to the facts in Foulk. Alger-Combes v. IBP, Inc., Docket No. 159,586.



• March 1997. (Award) Where claimant terminated her employment with respondent due to her inability to perform her job without pain and where respondent was not able to return claimant to an accommodated position following bilateral carpal tunnel surgery for her work-related injury, the Appeals Board finds the application of Foulk to this case inappropriate. Martin v. IBP, Inc. and Workers Compensation Fund, Docket No. 165,267. [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,847].



• ----- Claimant's leaving an interview with a telemarketing company due to her inability to read the requested script did not constitute a wrongful termination of her interview and therefore the application of Foulk to this case is not appropriate. Id.



• December 1996. (Award) Where claimant was only 12 hours away from graduating with a college degree at the time of his regular hearing, the Appeals Board finds claimant's decision to complete his education rather than accept a temporary job with respondent or seek other employment does not, under the facts of this case, constitute a voluntary removal from the labor market so as to invoke the public policy considerations announced in Foulk. Converse v. Adia Personnel Services and Pacific Employers Insurance Company and Kansas Workers Compensation Fund, Docket No. 184,630.



• December 1994. (Award) Foulk does not apply where claimant's injury prevents him/her from continuing to perform the work he/she attempted to perform for the respondent post-injury. James v. Valassis Color Graphics, Inc., Docket No. 165,727.



• November 1995. (Award) Where claimant refused to take a job transfer to a different region of the country in order to accept the accommodated employment offered by respondent, the Appeals Board finds the public policy considerations outlined in Foulk do not apply and claimant is not precluded from receiving work disability. The Board finds claimant was justified in declining to accept employment outside the area that would normally be considered his labor market and having to uproot his family from that area. See also Scharfe v. Kansas State Univ., 18 Kan. App.2d 103, 848 P.2d 994, rev. denied 252 Kan. 1093 (1992), holding that the open labor market must be reasonably accessible and individuals are not required to move their residences or travel unreasonable distances to obtain employment. Latta v. Continental Airlines Corp and National Union Fire Ins. Co. and Workers Compensation Fund, Docket No. 189,201.

• But See, May 1995. (Award) Employees terminated for poor job performance or misconduct unrelated to the work-related injury may reasonably be considered to have the "ability" to perform the job where the job loss resulted from matters within the employee's control. K.S.A. 1998 Supp. 44-510e. Acklin v. Woodson County, Docket No. 147,322.

• January 1994. (Award) Claimant not entitled to work disability where work restrictions were based upon claimant's subjective complaints and evidence showed reason to doubt claimant's credibility as to those complaints and contained persuasive evidence claimant could have performed the duties in a job paying a comparable wage. Foulk v. Colonial Terrace, Docket No. 168,294. [Affirmed by Court of Appeals in Foulk v. Colonial Terrace, 20 Kan. App.2d 277, 887 P.2d 140 (1994), rev. denied , 257 Kan. 1091 (1995)].

8.15 Presumption upon Return to Work at Comparable Wage / Presumption of No Work Disability

• March 1998 (Award) Presumption of no work disability applies on review and modification as of date claimant was able to earn a comparable wage. Valley v. Peerless Products, Inc and Aetna Casualty & Surety Company, Docket No. 165,115.

• January 1998. (Award) Where claimant (1) returned to work to her regular job duties without accommodations, (2) earned a wage comparable to what she was earning at the time of her accidental injuries, and (3) did not prove a worsening of her work-related injuries, claimant's request for review and modification of her award must be denied and the presumption of no work disability contained in K.S.A. 1991 Supp. 44-510e remains intact. Mayhew v. Southwestern Bell Telephone Co., Docket No. 176,868. [Affirmed by unpublished Court of Appeals opinion, Docket No. 80,731].

• ----- The loss of employment cannot by itself create a work disability where the injured workers returns to work in an unaccommodated job at a comparable wage. Id.

• November 1997. (Award) Claimant suffered a work-related injury but was able to return to work for respondent performing her former duties without accommodation. Claimant continued to work for respondent until she was laid off when the facility at which she was working closed down. Claimant now seeks review and modification of her running award because of the change in her employment status. Based upon the reasoning outlined in Watkins v. Food Barn Stores, Inc., 23 Kan. App.2d 837, 936 P.2d 294 (1997), the Appeals Board concludes that claimant's application for Review and Modification must be denied as the record contains no evidence that claimant's physical condition worsened after her return to work. Wagner v. Total Petroleum and Hartford Accident & Indemnity, Docket No. 189,269.



• ----- "Where an employee returns to work in an unaccommodated job and earns wages comparable to those earned before his or her injury, the presumption of no work disability applies and will not be rebutted absent evidence of a change in the employee's physical condition. See Watkins v. Food Barn Stores, Inc., 23 Kan. App.2d 837, 936 P.2d 294 (1997). Id.

• October 1998. (Award) Claimant suffered a work-related injury in which she slipped on ice and fell backwards on her buttocks with her arms down causing injury to her back. After examining the testimony of a physician and vocational rehabilitation experts, the Board finds claimant suffered a 50.5% loss of access to the open labor market and a 17 % loss of ability to earn comparable wages, resulting in a 33.75% permanent partial disability to the body as whole. Huff v. Sellman Kennels/Wichita Greyhound and National Union Fire Insurance Company and Kansas Workers Compensation Fund, Docket No. 175,588.



• ----- But See Dissent, the Dissenting Board Member finds that two board-certified orthopedic surgeons opined that claimant had no functional impairment and no need for any work restrictions. This supports no loss in claimant's ability to perform work in the open labor market and no loss in claimant's ability to earn a comparable wage. Only when considering the biased opinion of another doctor can a functional impairment and work disability be assessed. Therefore, the Dissenting Board Member would find the greater weight of the evidence as required by K.S.A. 44-501 to be with the latter physician's opinion. Therefore, claimant has failed to prove any permanency associated with the injury and the Board would award claimant temporary total disability compensation and medical expenses associated with the authorized and unauthorized treatment but would deny claimant any permanent functional impairment or any permanent work disability from the injury. Id.



• September 1998. (Award) In determining the extent of permanent partial disability, both the reduction in claimant's ability to perform work in the open labor market and claimant's ability to earn comparable wages must be considered. The statute is silent as to how any type of percentage is to be arrived at. Hughes v. Inland Container Corp., 247 Kan. 407, 799 P.2d 1011 (1990). However, a mathematical equation or formula must necessarily be utilized in order to arrive at a percentage. Schad v. Hearthstone Nursing Center, 16 Kan. App. 2d 50, 52-53, 816 P.2d 409, rev. denied 250 Kan. 806 (1991). Hughes, while indicating a balancing of the two factors is required, does not state specifically how this balance occurs or what emphasis is to be placed on each of the tests. The Appeals Board, in considering both claimant's failure to prove a loss of access to the open labor market and a wage loss of 61 percent, finds claimant entitled to a 30.5 percent permanent partial work disability as a result of the injuries suffered with respondent to both his foot and his low back. Tackett v. Koch Chemical Company and Insurance Company of North America and Kansas Workers Compensation Fund, Docket No. 163,962 [Reversed and remanded by unpublished Court of Appeals opinion, Docket No. 77,468].



• April 1997. (Award) See discussion where Appeals Board averages 64% loss of ability to perform work in the open labor market with 45% loss of ability to earn a comparable wage to award claimant with a 55% work disability. Wrigley v. Medicalodges, Inc. and Workers Compensation Fund, Docket No. 162,882.

• April 1997. (Award) Under the pre-July 1, 1993, Act, the benefits for general body disability are to be paid for a full 415 weeks. A change in the percentage of disability reduces the amount of the payment made over those weeks, not the number of weeks benefits are paid. In the case at hand, the reduction to a 6 percent disability reduces the amount of the weekly payment for what remains of the 415 weeks. Lundry v. The Boeing Company and Aetna Casualty & Surety and Kansas Workers Compensation Fund, Docket No. 166,389.

• April 1997. (Award) Application of Romeo v. Smith Temporary Service, Docket No. 184,711 (December 1995) discussed. Whisler v. The Boeing Company and Aetna Casualty and Surety and the Kansas Workers Compensation Fund, Docket No. 152,107.



• ----- Under Romeo, review and modification may, in some instances, result in the termination of benefits because the full number of weeks awarded on review and modification have already been paid. Id.

• ----- Under the old Act calculations, (pre July 1, 1993) applicable to this case, benefits for a general body disability run for a full 415 weeks. Review and modification adjusts the amount of weekly payments not the number of weeks. Id.

• November 1995. (Award) The Work Disability statute does not address how to calculate benefits payable for an injury when the disability rate changes for one injury. Such a change may occur from review and modification or as a part of the initial award when, for example, the claimant ceases to work or returns to work after being off for a period. The award may change from functional impairment to work disability or vice versa. Under the pre-1993 calculation, a change in the disability rate meant a change in the weekly rate for the remaining weeks. Bohanan v. USD 260 and KS Assoc of School Boards and Workers Compensation Fund, Docket No. 190,281 [Affirmed by Court of Appeals, 24 Kan. App.2d 362].

• December 1995. (Award) When there is a change in the disability rate the award must be recalculated using the new or latest disability rate as though no permanent partial benefits had been paid. Any weeks of disability benefits previously paid are credited against the latest disability award. Romeo v. Smith Temporary Services, Docket No. 184,711 (December 1995)



• See Also, Deviney v. Oakwood Villa Care Center, Docket No. 179,026 (October 1996); Ruddick v. The Boeing Company and Aetna Casualty & Surety Company and Kansas Workers Compensation Fund, Docket Nos. 187,724 & 187,764 (December 1996) [Reversed and remanded by Supreme Court opinion, 263 Kan. 494].

8.17 Work Disability Test ( Post 1993 Amendments )

• July 2000. (Award) Claimant's heavy lifting work activities permanently aggravated claimant's preexisting low back condition. As the result, claimant is entitled to be compensated for the permanent disability. But, claimant is not entitled to work disability because he is not able to return to work because his overall physical condition had deteriorated as a result of a personal health condition, i.e. a heart attack, not associated with claimant's employment. Claimant's is entitled to a permanent partial disability award based on only his permanent functional impairment. Delvin Hupfer vs. Kansas Brick & Tile Company, Inc. and Travelers Insurance Company, Docket No. 222,019.

• July 2000. (Award) Claimant's non-related health problems rendered claimant incapable of engaging in substantial, gainful employment. Therefore, claimant is not entitled to a work disability based upon a loss of ability to earn wages. Claimant's award is limited to functional impairment. Michael L. Jordan vs. Mercy Hospital, Docket No. 220,307.

• March 2000. (Award) When respondent would not accommodate claimant's light duty restrictions imposed after claimant's work-related injury, claimant was forced to quit. Claimant should not be denied a work disability because respondent, one year and a half after claimant left respondent's employment, made a non-specific offer of an accommodated job. Claimant's reluctance to return to respondent's employment in response to respondent's subsequent offer is reasonable because claimant secured permanent steady employment offering potential advancement within claimant's permanent work restrictions. Farley v. Central Mechanical Construction, Inc., Docket No. 234, 635.

• March 1999. (Award) Intrinsic in the Workers Compensation Act is the requirement that there be some type of causal connection or nexus between the injury and the disability for which the benefits are being awarded. The injury must arise out of the employment. In the case of a work disability, the Board finds this requires a nexus between the injury and both the task loss and wage loss. The task loss factor is based on loss of ability resulting from the injury. In the case of wage loss, the causation requirement is less explicit. The Board believes the fundamental function and purpose of the Act expects that there be a nexus between the injury and the wage loss before that loss can be a factor used to calculate the amount of benefits. Lawless v. Emerson Electric Company, Docket No. 214,874.

• March 1999. (Award) In January 1996, while working as a heavy equipment operator for respondent Saginaw Quarries, claimant injured his neck, back, shoulder, arm and leg. Claimant was off work for three weeks before returning to work with respondent with work restrictions against lifting. Claimant was then transferred to work for Neosho where he again worked as a heavy equipment operator. (Neosho owns Saginaw). In May 1996, claimant re-injured the same parts of his body by lifting a 100 pound ramp. This lifting violated claimant's existing work restrictions. Claimant testified that he was the only one there who could lift the ramp. Neosho refused to reemploy claimant after this injury stating he had to be 100 percent in order to come back to work. Claimant has not worked since the injury but has put in employment applications with other employers. The issue on appeal is whether to assess the work disability benefits against Neosho, the second employer. The Board found that the work disability benefits should be assessed against Saginaw, the first employer, since the work restrictions, which in turn produced the work disability, occurred from the injury at Saginaw. Claimant suffered no new work restrictions in the injury from the second employer. For the injury at Saginaw, claimant should receive benefits based on functional impairment until after his injury at Neosho -- until that date he was earning the same wage as he did at Saginaw. But after the second injury, the injury at Neosho, claimant ceased to earn 90 percent or more of the wage he earned at Saginaw and the permanent partial disability should be modified to work disability based on task and wage loss. Claimant's work disability benefits, however, only begin after the period of temporary total disability as he should not receive work disability while receiving temporary total. Surls v. Saginaw Quarries, Inc Neosho Construction Company, Inc & Liberty Mutual Insurance Company St. Paul Fire & Marine Insurance Company, Docket Nos. 211,321 & 123,766. [Affirmed by Court of Appeals, Docket No. 83,095, February 18, 2000.]

• ----- But See, Dissent, the dissenting Board Member would affirm the ALJ's decision that claimant receive benefits based on functional impairment for the injury received at the first employer, Saginaw; and a work disability for the injury he received at the second employer. The dissenting Board Member finds the event which makes claimant's disability a work disability is the second injury which resulted in a wage of less than the 90 percent threshold. Id.

• ----- But See, Second Dissent, this dissenting Board Member would also affirm the ALJ's award. The dissent further believes that claimant's preexisting work restrictions should not be taken into consideration when claimant's work tasks loss is determined since the second employer worked claimant outside those restrictions. See Mayberry v. Rubbermaid Specialty Products, Docket No. 186,053 (October 1997). Id.



• March 1999. (Award) Claimant was injured in a work-related accident and then was released and returned to work for two weeks before suffering a disabling, non work-related heart attack. At the time claimant returned to work, she could not perform her job due to her work-related injuries. As such, the Appeals Board imputed a wage and found claimant was entitled to a work disability award. Wortham v. Wal-Mart and Claims Management, Inc, Docket No. 213,499 [Affirmed by unpublished Court of Appeals opinion, Docket No. 83,086].



• February 1999. (Award) An employer may terminate a worker because it cannot accommodate medical restrictions. But when the employer later offers an accommodated position that pays a comparable wage, the worker's permanent partial general disability benefits are limited to the functional impairment rating from that point forward. See Cabrera v. Casco, Inc, 25 Kan. App.2d 169, 959 P.2d 918 (1998). Acosta v. National Beef Packing Company, LP & Wausau Underwriters Insurance Co, Docket No. 206,691.

• ----- A worker's permanent partial general disability benefits are limited to the functional impairment rating when the worker voluntarily terminates a job that he/she is capable of performing and that pays at least 90 % of the pre-accident wage. See Lowmaster v. Modine Manufacturing Co., 25 Kan. App.2d 215, 962 P.2d 1100, rev. denied Kan. (1998). Id.

• August 1998. (Award) Claimant returned to work at an unaccommodated job; was given benefits for her functional impairment and then was terminated for reasons unrelated to her injury. On review and modification claimant requests work disability. Work disability was denied, however, based upon the holding in Watkins v. Food Barn Stores, Inc., 23 Kan. App.2d 837, 936 P.2d 294 (1997). When an injured employee returns to an unaccommodated job at a comparable wage, unless there is a change in the physical condition, the employee is not entitled to work disability if he/she loses the job for reasons not related to the injury. The Board finds, however, that Watkins should not prevent modification to award work disability, even where a claimant returns to an unaccommodated job, if it is shown that the job was inappropriate and the claimant would have eventually had to leave because of the injury. But in the Board's view, the record here does not convincingly support that conclusion. The Board concludes that the ruling by the Court of Appeals in Watkins prevents modification of the award in this case. Hittle v. Southwestern Bell Telephone Company and Liberty Mutual Insurance Company, Docket No. 196,744.
• ----- But See Dissent. The Dissenting Board Member believes the facts in this case are distinguishable from Watkins where the claimant returned to work and performed his former job duties without any accommodations until being lad off. Unlike Watkins, the dissent finds that claimant did in fact return to an accommodated job at work which involved less data entry and typing. However, the dissent believes that even if claimant returned to an unaccommodated job, Watkins still does not apply as the job claimant returned to was inappropriate and violated reasonable medical restrictions. Id.

• December 1999. (Award) This case came before the Board on remand from the Court of Appeals to determine the proper method of calculating permanent partial disability awards when there is a change in the disability. The Board reviewed the methods and the arguments for the purpose of responding to various misunderstandings about how the Board calculates the award when there is a change. The Board's method calculates the weeks of benefits under the initial disability rate by multiplying the disability rate by 415 weeks, or 415 less any weeks of temporary total disability over 15 weeks. The next disability is calculated the same and amounts paid or payable under the initial disability are deducted. Benefits are not paid beyond 415 weeks. Deist v. Dillon Companies, Inc., Docket No. 213,485.



• See Also, William L. Martin vs. Osage City Golf & Country Club and Utica National Insurance Group, Docket Nos. 242,403 & 242,806 (June 2000).



• December 1999. (Award) This is a review and modification proceeding where Board again reviewed Board's method of computing benefits in cases where there is a change in the disability. Claimant argued the Board should deduct the weeks paid under the first disability from the total of 415 weeks and multiply the result by the new percentage of disability. The Board, on the other hand, has multiplied the new disability percentage times 415 weeks and subtracted the weeks paid or payable under the first disability rate from the result. The Board's decision includes several examples to illustrate the difference and explain why the Board uses this method. Walz v. Casco, Inc., Docket No. 222,827.

• September 1999. (Award) Claimant suffered a work-related injury of a repetitive nature, underwent surgery for that injury, returned from surgery and continued working for respondent, then resigned his position. The Board found the date of accident to be last day before surgery. The case demonstrates how to recompute the permanent partial general disability benefits when the rate of disability changes from 12% to 80% to 39% and back to 12%. Thompson Jr. v. Lady Baltimore Foods, Inc and Self-Insured, Docket No. 210,700 [Affirmed by unpublished Court of Appeals opinion, No. 84,015, August 25, 2000.]

• June 1999. (Award) Computation of award when disability rate changes discussed. Under the Appeals Board's award calculation formula, a change in the disability percentage results in a recalculation of the award using the new percentage. This becomes, in effect, a new ceiling on benefits because a credit is given for all weeks previously paid under the prior permanent partial disability percentage(s). The change in disability does NOT mean that no payments are made for the prior period of disability, or that only the last disability percentage is used to calculate all benefits. See Edwards v. Klein Tools, Inc., 25 Kan. App. 2d 879, 974 P.2d 609 (1999); Wheeler v. Boeing Co., 25 Kan. App. 2d 632, 967 P.2d 1085 (1998), petition for rev. denied (1999); and Bohanan v. U.S.D. No. 260, 24 Kan. App. 2d 362, 947 P.2d 440 (1997). See also Ullum v. Sedan Limestone Co., Inc., Appeals Board Docket No. 195,076 (August 1997) and Ridder v. Topeka Truck Plaza, Inc., Appeals Board Docket No. 177,364 (July 1997). Hill v. C.R.. Anthony Company and Cigna, Docket No. 206,740.



• ----- An example of an award computation where the disability rate changes is as follows: "WHEREFORE, AN AWARD OF COMPENSATION IS HEREBY MADE IN ACCORDANCE WITH THE ABOVE FINDINGS IN FAVOR of the claimant, Liese E. Hill, and against the respondent, C. R. Anthony Company, and its insurance carrier, CIGNA, for an accidental injury which occurred March 11, 1994, and based upon an average weekly wage of $135.23 for 11.43 weeks of temporary total disability compensation at the rate of $90.16 per week or $1,030.53, followed by 60.18 weeks for the period through January 27, 1997, at the rate of $90.16 per week or $5,425.83, for a 14.5% permanent partial functional disability. For the 28.29-week period beginning January 28, 1997 and ending August 13, 1997, claimant is entitled to permanent partial disability compensation at the rate of $90.16 per week, or $2,550.63, for a 72% permanent partial work disability. Thereafter beginning August 14, 1997, claimant's permanent partial disability award is again 14.5%, for a maximum of 60.18 weeks (415 weeks x 14.5% = 60.18). Giving a credit for the weeks of permanent partial disability compensation already paid, there is no additional sum due or owing for this latest period of disability. The award is $9,006.99 which is all past due and ordered paid in one lump sum minus amounts previously paid." Id.



• October 1997. (Award) Computation of work disability under K.S.A. 44-510e discussed. Rojas v. Praireland Processors, Inc. and ITT Hartford, Docket No. 199,314.



• See Also, Foroughi v. Nurses House Call and Kimberly-Olsten and Liberty Mutual Insurance Company and Hartford Insurance Company, Docket Nos. 205,741 & 208,027 (January 1998); Duru v. Rubbermaid Specialty Products, Docket No. 208,113 (February 1998).



• October 1997. (P/A) How to compute the amount of compensation due when the work disability award is reduced to a functional disability and the entire functional amount has already been paid. Collins v. Cessna Aircraft Company, Docket No. 186,974.

• ----- In computing permanent partial disability under K.S.A. 44-510e for a post July 1, 1993, injury, if the disability rate goes down, as when the claimant returns to work after being off for a period of time, and if the new calculation on the new rating results in fewer weeks than respondent has previously paid, respondent owes nothing more. Id.



• September 1997. (Award) When there is a change in work disability under the 1993 amendments, the Appeals Board will recalculate the disability on the basis of the latest work disability and give a credit for prior payments. Logan v. Fry-Wagner Moving & Storage and Vanliner Insurance Company, Docket No. 206,790.



• September 1997. (Award) Modification of Award for post 1993 work disability benefits discussed. Potter v. Consolidated Freightways, Inc., Docket No. 208,736.

• August 1997. (Award) The Appeals Board recognizes K.S.A. 44-510e does not address how to calculate benefits payable for an injury when the disability rate changes for that injury. After considering several methods of calculating the award when there is a change in the disability rate, the Appeals Board concludes the most equitable method is to calculate the award, or recalculate the award if benefits have already been paid based on a different disability rating, using the new or latest disability rate as though no permanent partial benefits have been paid or were payable under the earlier disability rate. See Discussion in, Ullum v. Sedan Limestone Co, Inc. and Aetna Casualty & Surety Company, Docket No. 195,076.




• See also, Ridder v. Topeka Truck Plaza, Inc., Docket No. 177,364 (July 1997).




• November 1996. (Award) When determining a claimant's tasks loss, the Board does not consider it necessary that the physician "do the math and state the percentage" of tasks loss. The physician must, however, apply his or her work restrictions to the list of tasks. Therefore, where the physician's opinion of claimant's ability to perform the tasks he had performed over the past 15 years eliminated five of the eight tasks, the Appeals Board computes claimant's tasks loss to 62.5 percent. Smith v. Valley Pro Source and Crum & Forster Insurance Company, Docket No. 199,793.



• December 1995. (Award) When there is a change in the disability rate, the respondent is entitled to a credit for the permanent partial disability benefits previously paid. The latest disability rate, or amounts already paid, if higher, become the ceiling for the benefits awarded. Romeo v. Smith Temporary Services, Docket No. 184,711.

• See Also, Wheeler v. The Boeing Company and Kemper Insurance Company and Kansas Workers Compensation Fund, Docket No. 187,565 (May 1997). [Affirmed by Court of Appeals opinion, Docket No. 79,159].

• November 1995. (Award) K.S.A. 44-510e requires that once the loss of ability to perform work tasks is analyzed by the physician and the difference in pre-injury and post-injury earnings is computed, that these numbers be averaged together in order to find claimant's appropriate work disability. Claimant's 44% task loss, when averaged with claimant's 64% wage loss, results in a 54% work disability. Bohanan v. USD 260 and KS Assoc of School Boards and Workers Compensation Fund, Docket No. 190,281 [Affirmed by Court of Appeals, 24 Kan. App.2d 362].

• ----- The Work Disability statute does not address how to calculate benefits payable for an injury when the disability rate changes for one injury. Such a change may occur from review and modification or as a part of the initial award when, for example, the claimant ceases to work or returns to work after being off for a period. The award may change from functional impairment to work disability or vice versa. There are several possible methods for calculating the award under the Post-1993 Act when there is a change in the disability rate. The Board, however, finds the most equitable method is to calculate the award, or recalculate the award if benefits have already been paid based on a different disability rating, using the new or latest disability rate as though no permanent partial benefits had been paid or were payable under any earlier disability rate. The award so calculated gives the total number of weeks and amounts payable for the award. If permanent partial benefits have previously been paid, based on a different rate of disability, respondent is entitled to a credit for those payments. If the rating goes down, as when the claimant returns to work after being off for a period of time, and the new calculation on the new rating results in fewer weeks than respondent has previously paid, respondent owes nothing more. If the disability rate goes up, as when the claimant is laid off, the new work disability rating is calculated based on 415 weeks (less deduction for temporary total paid over 15 weeks) and the number of weeks of permanent partial benefits paid based on the lower rating is credited against amounts due. The last disability rating or amounts already paid, if higher, becomes the ceiling on benefits awarded. Id.

8.24 Work Restrictions

8.25 Generally

8.26 Prior Permanent Work Restrictions

• March 1999. (Award) When there are preexisting work restrictions, the permanent partial general disability rate for the new accident is determined based upon the new restrictions ONLY. Nothing is deducted for the preexisting functional impairment. Reed v. Central Sand Company, Inc and Travelers Insurance Company, Docket No. 216,797.



• November 1997. (Award) Where the work restrictions imposed upon claimant for the 1992 accident are essentially the same as those imposed on claimant for the 1987 accident, the Appeals Board finds claimant is not entitled to additional work disability in this case for the 1992 accident. Foreman v. Salvation Army and The Home Insurance Company and Kansas Workers Compensation Fund, Docket No. 169,430 [Reversed and remanded by unpublished Court of Appeals opinion, Docket No. 80,426].

• October 1997. (Award) Respondent appeals from a work disability Award and argues claimant's disability, which the Appeals Board found to be a whole body injury caused by a simultaneous injury to both shoulders, should be limited to permanent functional impairment because of preexisting permanent restrictions that resulted from a previous bilateral carpal tunnel syndrome injury. Although claimant did have preexisting work restrictions, the Appeals Board concludes that claimant performed work for respondent after she suffered her wrist and hand injuries that exceeded those prior restrictions. Therefore, the Appeals Board finds those prior restrictions should not be considered when determining claimant's work disability. Maberry v. Rubbermaid Specialty Products and American Manufacturers Mutual Ins. and Kansas Workers Compensation Fund, Docket No. 186,053.

• July 1997. (Award) Prior work restrictions discussed. The Appeals Board finds the Court of Appeals in Miner v. M. Bruenger & Co., 17 Kan. App.2d 185, 836 P.2d 19 (1992), did not decide the issue of whether prior permanent restrictions must be taken into consideration when determining work disability in every case. Carver v. Missouri Gas Energy, Docket No. 195,270.

• ----- Under circumstances in this case, preexisting work restrictions were not taken into consideration when determining work disability. Id.

• ----- But See, Dissent, stating the Appeals Board has previously held that prior restrictions should be taken into consideration when determining the extent to which a claimant has lost the ability to perform work tasks under K.S.A. 44-510e(a). See Converse v. ADIA Personnel Services, Docket No. 184,630 (December 1996). Id.

8.27 Scheduled Injuries

8.28 Generally

• December 1999. (Award) Board held that where both hands and arms are simultaneously injured, the injury is compensable as an injury to the body rather than a "scheduled" injury despite the fact that the symptoms in each upper extremity began at different times. Gibson v. IBP, Inc., Docket No. 208,554 [Affirmed by unpublished Court of Appeals opinion, Docket No. 84,650, December 8, 2000].

8.29 Permanent Partial Scheduled Disability

8.30 Functional Impairment

• January 2000. (Award) Board approved use of Table 16 in the Fourth Edition to the AMA Guides to evaluate impairment for entrapment neuropathy even after surgery. Kuhn v. Micro-Lite, LLC, Docket Nos. 236,395 & 236,732.

8.31 Amputation

8.31a Generally

• September 1997. (Award) Claimant, a printing press operator, injured his left hand in a work-related accident when the press started unexpectedly and pulled his hand into the punch unit. As a result, claimant's left middle finger and a substantial portion of the left metacarpal were amputated. The issue before the Appeals Board was whether the amputation, which included part of the fifth metacarpal as well as the finger, entitled claimant to the full 150 weeks allotted for loss of the hand or only a portion of that 150 weeks. The Appeals Board held amputation of the little finger and a substantial portion of the metacarpal entitles the claimant to disability benefits at the level of the hand but does not entitle claimant to the full 150 weeks of benefits given for amputation of the hand. Landry v. Graphic Technology, Inc. and ITT Hartford Insurance, Docket No. 216,166 [Affirmed by unpublished Court of Appeals opinion, Docket No. 80,087; Affirmed by Kansas Supreme Court opinion, Docket No. 80,087, January 28, 2000].



• ----- The Appeals Board concludes the language in K.S.A. 44-510d(a)(18) assumes a severance below the wrist which crosses the entire width of the hand. The Appeals Board has construed this statute as such principally for two reasons. First, an amputation such as that suffered by claimant where his left ring finger and portion of his left metacarpal were amputated leaves a substantial portion of the function or use of the hand available to claimant. It is, therefore, logical to treat it differently from the loss of the entire hand. In addition, the statute governing benefits for scheduled injuries, K.S.A. 44-510d, was amended in 1993. Subsection (a)(23) stated that loss of a scheduled member is to be rated using the third edition, revised, of the "American Medical Association Guidelines for the Evaluation of Physical Impairment," which states amputation of all digits of the metacarpophalangeal joint level is required for a 100% impairment to the hand. Id.

8.31b Healing Period

• September 1997. (Award) K.S.A. 44-510d(b) authorizes a healing period in cases of amputation. Claimant may be allowed a healing period of not more than 10 percent of the total period allotted for the scheduled injury in question and, in any event, not longer than 15 weeks. Return by the employee to his "usual occupation" also terminates the healing period. Landry v. Graphic Technology, Inc. and ITT Hartford Insurance, Docket No. 216,166 [Affirmed by unpublished Court of Appeals opinion, Docket No. 80,087; Affirmed by Kansas Supreme Court opinion, Docket No. 80,087, January 28, 2000].



• ----- Claimant's left ring finger and part of his left metacarpal joint were amputated. As a result of the amputation, claimant was off work 5.27 weeks. When he returned, he was placed in a different type of work. The Appeals Board concludes the work to which he returned to for that three to four months was not his "usual occupation." Accordingly, the Board allows a healing period of 15 weeks. Id.



• March 1994. (Award) Claimant is entitled to a healing period of 15 weeks in case involving hand surgery. Samms v. Abilene Nursing Home, Docket No. 168,071.

8.32 Occupational Disease

• February 2000. (Award) The Board reviewed the measure of disability for occupational disease cases and noted that although it had previously applied work disability standards for occupational disease the same as for accidental injury, language in Burton v. Rockwell International, 266 Kan. 1, 967 P.2d 290 (1998) suggests the Supreme Court still applies the single factor of loss of earning capacity as the measure of disability in occupational disease cases and, therefore, measures disability differently for occupational disease than for accidental injury. Boldridge v. Atchison Casting Corporation, Docket No. 233,132.

8.33 Psychological Injury

• March 2000. (Award) In cases involving both physical and psychological impairment, the disability award must be based on consideration of both. This does not mean that, in all cases, the two should be added. It may be proper to add the physical and psychological impairments but this depends on how each impairment affects the other. See also, Adamson v. Davis Moore Datsun, Inc., 19 Kan. App. 2d 301, 868 P.2d 546 (1994). Brown v. Elec-Tron, Inc., Docket No. 223,178.