Gilkey v. Frederick Waterproofing

• Decision Date: 20 April 2018
• Docket Number: No. 117,259,117,259
• Citation: 55 Kan.App.2d 487,419 P.3d 49
• Parties: Virgil GILKEY, Appellant, v. FREDERICK WATERPROOFING and Technology Insurance Company, Appellees.
• Court: Kansas Court of Appeals

55 Kan.App.2d 487

419 P.3d 49

Virgil GILKEY, Appellant,

v.FREDERICK WATERPROOFING and Technology Insurance Company, Appellees.

No. 117,259

Court of Appeals of Kansas.

Opinion filed April 20, 2018.

Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for appellant.

Kendra M. Oakes, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellees.

Before Green, P.J., Buser and Leben, JJ.

Buser, J.:

Virgil Gilkey appeals the Kansas Workers Compensation Board's (Board) interpretation and application of K.S.A. 2014 Supp. 44-510e(a)(2)(D), which resulted in the Board's finding that he had a net task loss of zero percent which adversely reduced his disability award.

Upon our review, we conclude that K.S.A. 2014 Supp. 44-510e(a)(2)(D) requires the exclusion of theoretical work tasks for purposes of calculating the task loss directly attributable to the current injury, provided the employee has preexisting permanent restrictions that are continuing or enduring without fundamental or marked change and not subject to fluctuation or alteration.

Applying this statute to the uncontroverted facts of this case, although Gilkey was assigned work restrictions in 2001 after a work injury, we hold that he did not have preexisting permanent restrictions during the 12 years prior to his August 11, 2014 work injury because during those years he performed all of his work tasks involving heavy manual labor full time, without difficulty, and without any restrictions.

Accordingly, we reverse the Board's holding and remand with directions to reconsider the nature and extent of Gilkey's disability award without consideration of any preexisting work restrictions or theoretical task loss attributed to his 2000 work injury.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are not in dispute. At the time of the Board's ruling in 2017, Gilkey was 57 years old. In 1976, after high school, he earned a general education degree. In 1980, Gilkey received a construction certificate from a vocational school. He worked as a manual laborer in construction from 1976 until August 11, 2014.

In September 2000, while working for Holloways, Inc., Gilkey was injured in a work-related motor vehicle accident. As a consequence of the accident, Dr. George G. Fluter, M.D., Gilkey's treating physician, diagnosed probable right trochanteric bursitis, lumbar diskopathy without evidence of myelopathy or radiculopathy, and pain of the right hip, leg, and buttocks. In 2001, Dr. Fluter assigned an 8% permanent partial impairment rating to the body as a whole, and he recommended permanent restrictions which limited Gilkey's work to a light level of physical activity. Based primarily on Dr. Fluter's evaluation, about 5 months after his 2000 accident, Gilkey settled his workers compensation claim in February 2002 for a lump sum payment of $45,000. This settlement was a compromise based on a 38% disability to the body as a whole. The settlement did not include future medical treatment.

As the Board later found:

"Claimant testified he was unaware permanent restrictions had been imposed by Dr. Fluter in 2001. Claimant stated he performed construction work, including cement work, pipe laying, city housing, remodeling, and driveway work, between March 2000 and August 2014. He did not work with any restrictions during that time . Claimant testified he was able to perform his work tasks, all of whichinvolved manual labor in the construction field, without difficulty. Claimant indicated he did not feel he was in need of any permanent work restrictions at that time." (Emphasis added.)

For 12 years—from 2002 until August 2014—Gilkey worked primarily as a caulker for Frederick Waterproofing and Roofing. His job tasks included loading and unloading supplies, setting up and tearing down scaffolding, demolition and hauling of debris such as bricks and roofing materials, mixing mud, installation of bricks and mortar, caulking, power washing, and installation and sealing of new roofs. These tasks required lifting up to 80 pounds, including repetitive bending, climbing, crouching, reaching, and carrying, which Gilkey performed without limitation or difficulty. During the 12 years that Gilkey performed heavy manual labor he did not follow any permanent restrictions.

While working for Frederick Waterproofing on August 11, 2014, Gilkey was standing about 35 feet up on a ladder when it slid out from under him and he fell to the pavement. Gilkey landed on his right side and sustained injuries to his right hip, back, wrists, and legs. As a result, Gilkey underwent surgery to repair a hernia in October 2014, and surgery for a herniated disc in his lumbar spine the next month.

Gilkey filed a workers compensation claim for his 2014 injury. In April 2015, he returned to Dr. Fluter, the physician who treated him after his 2000 accident, for an independent medical examination. Based on his clinical evaluation and review of Gilkey's medical history, Dr. Fluter opined that the 2014 accident had resulted in an injury to Gilkey's lumbar spine with radiculopathy and right iliotibial band syndrome. Dr. Fluter opined that the prevailing factor for Gilkey's injuries, the need for medical treatment, and the resulting impairment was the August 2014 work-related injury. As a result, Dr. Fluter assigned Gilkey a total whole body impairment of 12% related to the 2014 work accident. Of note, Dr. Fluter explained that his 2015 impairment ratings were for different body parts than those he assigned in 2001. Dr. Fluter recommended future conservative treatment and recommended permanent restrictions of a light/medium physical demand level.

Two vocational rehabilitation experts, Paul Hardin and Steve Benjamin, compiled lists of work tasks Gilkey performed in the five years preceding his August 2014 injury. Hardin's list had 33 nonduplicative tasks, of which Dr. Fluter found 26 tasks that were eliminated by his suggested 2015 permanent restrictions, resulting in a 78.79% task loss. Benjamin's list contained 23 nonduplicative tasks, of which Dr. Fluter's 2015 restrictions eliminated 16 tasks, for a 69.6% task loss. Dr. Fluter testified that, with only one exception, all of these same tasks would have also been eliminated based on his 2001 restrictions, had a task loss assessment been performed at that time.

Both Hardin and Benjamin opined that Gilkey faced significant and multiple barriers to returning to the open labor market due to his age, education, and physical restrictions. Frederick Waterproofing was unable to offer employment to Gilkey within the restrictions recommended by Dr. Fluter. Gilkey was unsuccessful in finding other work and, as of the date of the Board's ruling, he remained unemployed.

Upon review of the evidence in the workers compensation proceedings, the administrative law judge (ALJ) made the following findings:

"[Frederick Waterproofing's] basic defense of this claim arises from the idea that [Gilkey's] restrictions from a previous injury eliminate the same tasks that his restrictions from the instant injury do. Respondent urges the court to decide that the claimant has suffered no new work disability. The court disagrees. The injuries suffered in this case are to different body parts, and therefore are new. Secondly, [Gilkey] testified ... that he never worked under [his previous, unknown restrictions] from 2000 through 2015, instead continuing his construction career."

Based on these findings, the ALJ did not reduce Gilkey's task loss incurred because of the 2014 injury by the task loss that would have been incurred based on his 2001 restrictions, assuming a task loss assessment had been conducted at that time. The ALJ ruled that Gilkey had sustained a 31.25% wage loss and 74% task loss. Combining those two figures resulted in an award of a 53% work disability.

Frederick Waterproofing appealed the ALJ's award to the Board. In relevant part, the employer argued that Gilkey had "a zero percent task loss directly attributable to his current injury due to his preexisting permanent restrictions."

Upon the Board's review and as discussed more fully in the next section, the Board applied K.S.A. 2014 Supp. 44-510e(a)(2)(D) to the facts of this case and excluded the task losses theoretically incurred from the 2000 injury from those assessed after the 2014 injury. As a result, the Board concluded: "Having excluded the tasks contained on the lists provided by the vocational experts, the Board finds [Gilkey] has no task loss as the result of the injury giving rise to this appeal."

In a dissenting opinion, one Board member concluded:

"The language of K.S.A. 2014 Supp. 44-510e(a)(2)(D) is not as plain and unambiguous as the majority finds. The inclusion of the words ‘had a task loss analysis been completed prior to the injury at issue’ can be interpreted to constitute a qualifying event or condition precedent that must occur before the tasks may be excluded. There is no evidence in the record that a task loss analysis had been completed prior to August 11, 2014. Without such evidence of a prior task loss opinion, claimant's task loss should be based solely on his current restrictions, without a deduction based upon preexisting restrictions."

Gilkey appeals.

CALCULATION OF TASK LOSS UNDER K.S.A. 2017 SUPP. 44-510e(a)(2)(D)

Gilkey claims the Board erred in its interpretation and application of K.S.A. 2014 Supp. 44-510e(a)(2)(D). In particular, Gilkey contends the Board erred by reducing his actual task loss for his 2014 ladder injury due to the theoretical task loss for his 2000 motor vehicle injury. Gilkey argues that under 44-510e(a)(2)(D), he did not have any preexisting permanent restrictions that resulted in task loss because after his medical treatment for the 2000 injury he was employed as a construction laborer without any work restrictions for the 12 years immediately prior to his 2014 injury.

According to Gilkey, this erroneous interpretation and application of the statute adversely affected his work...