Bergstrom v. Spears Mfg. Co.

• Decision Date: 04 September 2009
• Docket Number: No. 99,369.,99,369.
• Citation: 214 P.3d 676
• Parties: Carolyn BERGSTROM, Appellant, v. SPEARS MANUFACTURING COMPANY and Zurich U.S. Insurance Company, Appellees.
• Court: Kansas Supreme Court

214 P.3d 676

Carolyn BERGSTROM, Appellant, v. SPEARS MANUFACTURING COMPANY and Zurich U.S. Insurance Company, Appellees.

No. 99,369.

Supreme Court of Kansas.

September 4, 2009.

William L. Phalen, of Pittsburg, argued the cause, and Crystal D. Marietta, of Pittsburg, was with him on the brief for appellant.

Larry Shoaf, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, argued the cause and was on the brief for appellees.

The opinion of the court was delivered by ROSEN, J.:

This workers compensation appeal comes before the court on transfer from the Court of Appeals. The appellant, Carolyn Bergstrom, seeks review of an order by the Workers Compensation Board decision limiting her compensation under the "good-faith effort" doctrine articulated by the Court of Appeals in previous cases. We find that the good-faith effort doctrine is not grounded in statute and was therefore improperly applied by the Board.

The factual background can be summarized as follows. Beginning in December 2000, Bergstrom was employed by Spears Manufacturing, Inc., a manufacturer of plastic plumbing parts. As of June 2002, she worked as a production janitor for Spears. On September 23, 2002, she lifted a garbage can containing plastic residue purged from the production machine. When she put the can down, she began to experience pain in her back and was unable to continue the job. She informed her supervisor, who made out an accident report and assigned her to sorting parts for the rest of the day.

The following day, Bergstrom experienced extreme pain and was sent to a nurse practitioner, who prescribed pain medication. She returned to work a couple of days later and was assigned to sorting parts, a task that she could not carry out because she was unable to sit and bend over for an extended time. She was then reassigned to putting parts on a conveyor line (the "bar code" job), but she was unable to continue with that assignment because standing in one place caused her too much discomfort.

Bergstrom was referred to Dr. James Zeiders, an orthopedic surgeon, who directed her to stop working and to file for Social Security disability benefits. She then saw a succession of medical and psychological professionals, who conducted a number of tests on her. These included Dr. Anthony Pollock, an orthopedic surgeon; Dr. T.A. Moeller, a psychologist; and Dr. Chris Fevurly, a physician.

Bergstrom filed an application for a hearing before the Division of Workers Compensation. The administrative law judge (ALJ) awarded Bergstrom 34 weeks of temporary total disability compensation followed by permanent total disability compensation at the rate of $246.07 per week, not to exceed $125,000, for a permanent total general body disability. The Board set aside the ALJ's award and remanded the matter for redetermination, to include consideration of the deposition of Dr. Moeller.

The ALJ suggested that Bergstrom attempt to return to work; when she did, Spears assigned her to the same conveyor line job that she was doing when Dr. Zeiders directed her to stop working. She stated that she was unable to perform the job for more than 3 hours because of pain in her back and leg and went home. Spears then terminated her employment.

On May 22, 2007, the ALJ entered a revised award that took into account Dr. Moeller's deposition. The ALJ did not change the earlier disability determination or award amount. On a second petition for review, the Board entered an order extensively modifying the ALJ's award, finding only a 10 percent permanent partial disability to her body as a whole. The Board awarded Bergstrom 34 weeks of temporary total disability compensation, followed by 39.6 weeks of permanent partial disability.

Bergstrom filed a timely notice of appeal with the Kansas Court of Appeals, and this court assumed jurisdiction over the appeal on its own motion.

In reducing the amount of her award, the Board found that Bergstrom did not exercise good faith when she failed to perform alternate job duties that Spears offered her after her injury. She contends the Board erred when it applied a good-faith effort requirement that is not contained in K.S.A. 44-510e.

The interpretation of statutory provisions in the Workers Compensation Act is a question of law over which this court has unlimited review. Hall v. Dillon Companies, Inc., 286 Kan. 777, 783, 189 P.3d 508 (2008); Casco v. Armour Swift-Eckrich, 283 Kan. 508, 521, 154 P.3d 494 (2007).

The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). The legislature is presumed to have expressed its intent through the language of the statutory scheme, and when a statute is plain and unambiguous, the court must give effect to the legislative intention as expressed in the statutory language. Hall, 286 Kan. at 785, 189 P.3d 508.

When a workers compensation statute is plain and unambiguous, this court must give effect to its express language rather than determine what the law should or should not be. The court will not speculate on legislative intent and will not read the statute to add something not readily found in it. If the statutory language is clear, no need exists to resort to statutory construction. Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007).

K.S.A. 44-510e(a) reads in relevant part:

"The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury.... An employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury."

In Foulk v. Colonial Terrace, 20 Kan. App.2d 277, 284, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), our Court of Appeals examined the legislative intent underlying K.S.A.1988 Supp. 44-510e(a) and concluded that the statute implicitly contains a requirement that injured workers exercise good faith in attempting to mitigate their wages lost to work impairments:

"Construing K.S.A.1988 Supp. 44-510e(a) to allow a worker to avoid the presumption of no work disability by virtue of the worker's refusal to engage in work at a comparable wage would be unreasonable where the proffered job is within the worker's ability and the worker has refused to even attempt the job. The legislature clearly intended for a worker not to receive compensation where the worker was still capable of earning nearly the same wage."

In Copeland v. Johnson Group, Inc., 24 Kan.App.2d 306, 320, 944 P.2d 179 (1997), the Court of Appeals expanded on its ruling in Foulk:

"In attempting to harmonize the language of K.S.A. 44-510e(a) [Furse 1993] with the principles of Foulk, we find the factfinder must first make a finding of whether a claimant has made a good faith effort to find appropriate employment. If such a finding is made, the difference in pre- and post-injury wages based on the actual wages can be made. This may lead to a finding of lesser wages, perhaps even zero wages, notwithstanding expert opinion to the contrary.

"If a finding is made that a good faith effort has not been made, the factfinder will have to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the capacity to earn wages."

Our Court of Appeals has applied this good-faith effort requirement in a series of subsequent cases. See, e.g., Gasswint v. Superior Industries Int'l-Kansas, Inc., 39 Kan. App.2d 553, 185 P.3d 284 (2008); Robinson v. Southwestern Bell Telephone, 39 Kan.App.2d 342, 180 P.3d 597, rev. denied 286 Kan. 1179 (2008); Deguillen v. Schwan's Food Manufacturing, Inc., 38 Kan.App.2d 747, 172 P.3d 71(2007), rev. denied 286 Kan. 1177 (2008); Mahan v. Clarkson Constr. Co., 36 Kan. App.2d 317, 138 P.3d 790, rev. denied 282 Kan. 790 (2006); Parsons v. Seaboard Farms, Inc., 27 Kan.App.2d 843, 9 P.3d 591 (2000); Lowmaster v. Modine Mfg. Co., 25 Kan.App.2d 215, 219, 962 P.2d 1100, rev. denied 265 Kan. 885 (1998).

Most recently, however, in Gutierrez v. Dold Foods, Inc., 40 Kan.App.2d 1135, 1142-43, 199 P.3d 798 (2009), a panel of the Court of Appeals cast doubts on the viability of the good-faith effort doctrine in light of the principle that courts should limit their interpretation of statutes to the plain language that the legislature enacted.

This court has not previously addressed the judicial addition of a good-faith effort requirement to the statutory language, but it has recently examined workers compensation statutes in light of their plain and unambiguous language. We have consistently elected to refrain from reading language into the statutes that the legislature did not include. See, e.g., Hall, 286 Kan. at 785-88, 189 P.3d 508; Graham, 284 Kan. at 554, 161 P.3d 695; Casco, 283 Kan. at 521, 154 P.3d 494.

In reducing Bergstrom's award, the Board found that Foulk and Copeland "require a good faith effort be exerted when considering post-injury job searches. The Board does not find that claimant put forth a good faith effort with regard to the bar code job."

We can find nothing in the language of K.S.A. 44-510e(a) that requires an injured worker to make a good-faith effort to seek out and accept alternate employment. The legislature expressly directed a physician to look to the tasks...