Neal v. Hy-Vee, Inc.

• Citation: 277 Kan. 1,81 P.3d 425
• Decision Date: 24 December 2003
• Docket Number: No. 89,360.,89,360.
• Parties: COLUMBUS W. NEAL, Claimant/Appellee, v. HY-VEE, INC., Respondent/Appellant, and HAWKEYE SECURITY INSURANCE COMPANY, Insurance Carrier/Appellant.
• Court: United States State Supreme Court of Kansas

277 Kan. 1

81 P.3d 425

COLUMBUS W. NEAL, Claimant/Appellee, v. HY-VEE, INC., Respondent/Appellant, and HAWKEYE SECURITY INSURANCE COMPANY, Insurance Carrier/Appellant.

No. 89,360.

Supreme Court of Kansas.

Opinion filed December 24, 2003.

Mark E. Kolich, of Mustain, Higgins, Kolich, Lysaught & Tomasic, Chartered, of Kansas City, argued the cause and was on the brief for appellants.

James E. Martin, of Law Offices of James E. Martin, of Overland Park, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.:

The Workers Compensation Board (Board) affirmed the decision of the administrative law judge (ALJ) awarding workers compensation benefits to employee Columbus Neal. Employer Hy-Vee, Inc., and its insurer Hawkeye Security Insurance Company appealed from that part of the decision not suspending the employee's right to payment of compensation under K.S.A. 44-518. The employee was serving time on felony convictions and was unable to attend the employer's scheduled medical exam in the office of the employer's chosen physician. The employer also claims that the Board did not have the authority to remand the case to the ALJ for a determination of the employee's average weekly wage. We affirm.

FACTS:

On November 2, 1996, the employee sustained a compensable back injury while working for the employer in Johnson County. During the course of his medical treatment for this injury, the employee was arrested on a murder charge and another felony charge and held in the Jackson County, Missouri, jail in June 1997. At the request of the employee's counsel, Dr. David Zimmerman examined the employee in the jail on June 12, 1998. Dr. Zimmerman opined that the employee had an 8% impairment to the whole person as a result of his compensable injury.

The employee was convicted of murder and armed criminal action and sentenced to serve two life sentences. He continued to receive medical treatment through the Jackson County jail and Truman Medical Center until he was transferred to the Crossroads Correctional Center in Cameron, Missouri, in September 1998. Cameron is 52 miles from the metropolitan Kansas City area. The employee's incarceration prevented him from attending the scheduled medical examination in the office of the employer's physician, Dr. Michael Poppa, in Kansas City, Missouri, on December 29, 1998.

On December 30, 1998, the employer moved to suspend the proceedings under K.S.A. 44-518 until the employee was able to make himself available for an examination under K.S.A. 44-515. The ALJ suggested that the employer arrange for the examination to take place at the Crossroads facility, either by Dr. Poppa or a local physician serving the facility. The employer informed the ALJ that Dr. Poppa's schedule did not permit him to perform an examination of the employee in the prison and that it was unfamiliar with the qualifications or reputations of the local physicians.

At the regular hearing, the ALJ indicated that no agreement had been reached regarding the employee's average weekly wage, although it was alleged that his wages were $11.30 per hour plus overtime, or $440. Additionally, evidence was introduced indicating that the employee had received 3 months' temporary total disability (TTD) in the amount of $983.12. In the October 27, 1999, award, the ALJ found that the employee suffered a compensable injury which resulted in a permanent partial functional impairment of 8% and was entitled to future medical treatment. The ALJ also found the employer's admission that the employee was paid 3 weeks of TTD totaling $983.12, suggesting an average weekly benefit paid of $327.71, slightly exceeding the $326 maximum at the time, and indicating an average weekly wage of $451.57, matched the employee's assertion at the prehearing settlement conference. See K.S.A. 44-510c(b)(1). The employee was awarded 3 weeks of TTD at the rate of $326 per week totaling $978 followed by 33.20 weeks at $326 for an 8% permanent partial general body disability, making a total award of $11,801.20 due and owing to the employee on December 29, 1998. The award was payable until December 29, 1998, after which it was suspended until an examination scheduled by the employer at a Missouri location was attended by the employee.

The employer appealed, raising two issues before the Board. First, the employer argued that the employee's benefits should have been suspended because he was incarcerated at a prison facility in Cameron and failed to attend a medical appointment scheduled by the employer. Second, the employer argues that the employee's benefits should have been denied because the employee did not present any evidence regarding his average weekly wage, an essential element of his claim.

In the April 19, 2000, order, the Board found the employee's failure to appear at the scheduled appointment for examination by the employer's doctor did not operate to suspend his right to benefits under K.S.A. 44-515 and K.S.A. 44-518. The Board concluded that under the circumstances, the employee did not refuse to submit to an examination as that term is used in K.S.A. 44-518. The Board reasoned that the term "refusal" carries with it an element of willfulness or intent, that the employee could not go to the examination, and that it was unwilling to have the prior criminal act substitute as the act of refusing to attend the examination. The Board also concluded that a reasonable time and place for such an examination would have been the correctional facility in Cameron.

The Board also found that the employee offered no evidence of his average weekly wage but the employer did not comply with K.A.R. 51-3-8(c) by providing payroll records. "[I]n the interest of justice," the Board remanded the case to allow the employee to introduce evidence of his average weekly wage. The employer attempted an appeal to the Kansas Court of Appeals. However, the employer's appeal was dismissed because the Board's April 19, 2000, order was interlocutory.

Consistent with the Board's order, the case was remanded to the ALJ. While continuing to contend that the Board had no authority to allow the employee a new opportunity to establish his average weekly wage after he had failed to establish the same in the first regular hearing before the ALJ, the employer stipulated that the employee's average weekly wage was $462.18.

In his May 15, 2001, award, the ALJ took into account the deposition of Kip Kubin, who discussed the difficulty in obtaining a qualified medical examination of the employee while he was imprisoned in Cameron and the estimates that the costs of well-known evaluators would be $3,000 to $5,000 for an examination. However, the ALJ pointed out that the employee was examined by Dr. Zimmerman while in the Jackson County jail and the employer had several years to likewise arrange an examination in Kansas City. The ALJ awarded the employee 3 weeks of TTD at the rate of $308.14 per week, followed by 33.20 weeks at $308.14 per week, for an 8% permanent partial general body disability. The ALJ reasoned that the benefits should be suspended as of December 29, 1998, the date the employee failed to appear for the examination.

The employer appealed to the Board, arguing that the employee's benefits should have been suspended because his incarceration prevented an examination by its chosen physician and the Board did not have the authority to remand the case for more specific evidence of the average weekly wage.

The Board affirmed the ALJ in its July 29, 2002, order. Regarding the suspension issue, the Board noted testimony that the usual and customary fee for an independent medical examination is between $350 and $800. The Board recognized that Delaware and Nevada courts have held the failure of an incarcerated employee to appear for medical examination should not be treated as a refusal but a Pennsylvania court had held that an employee had no right to force the employer to make special arrangements to accommodate incarceration. The Board concluded:

"The Board concludes that under the circumstances of this case, claimant did not refuse to submit to an examination. In addition, in this case a reasonable time and place would have been the correctional facility in Cameron, Missouri. The terms `refusal' and `unnecessarily obstructs' carry with them an element of willfulness or intent. Claimant did not decide not to go to the examination, he could not go. The Board is unwilling to treat incarceration for the prior criminal act as a substitute for the act of refusing to attend the examination.

"Under the circumstances, the prison facility in Cameron, Missouri, would have been the reasonable place for the examination. The record indicates respondent initially asked one physician to go to the facility. When he refused, respondent made no further effort to arrange for an examination. Upon remand of the matter, the respondent contacted two physicians and one refused to go to the facility and the other was not able to schedule such an all day appointment for two months. The fee for such examination would be $3,000.

"The Board concludes the respondent has not established it is unreasonable to arrange for an examination of claimant at the prison facility. The respondent did not attempt to locate qualified physicians closer to the prison facility in Missouri to conduct an examination of the claimant. Such local physicians would certainly not require the entire day that the two physicians respondent contacted required. In addition, competent medical testimony can be established by a physician without examining the claimant. A physician can review the claimant's medical records and under the Fourth Edition of the AMA Guides offer an opinion on claimant's functional impairment, if any."

Regarding the wage issue, the Board found that K.S.A. 2002 Supp. 44-551(b)(1) grants the Board the authority to remand any matter to the ALJ for further...