Denton v. Sunflower Elec. Co-op.
| Decision Date | 16 July 1987 |
| Docket Number | No. 59925,59925 |
| Citation | 740 P.2d 98,12 Kan.App.2d 262 |
| Parties | Ronald E. DENTON, Claimant, v. SUNFLOWER ELECTRIC COOPERATIVE, Respondent/Appellee, and Home Indemnity Company, Insurance Carrier/Appellee, and Kansas Workers' Compensation Fund, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
For an employer to be relieved of liability for payment of compensation as authorized by K.S.A. 44-567, it is not necessary that the employer prove it had mental reservation when deciding to hire or retain the employee.
Brock R. McPherson, of McPherson, Bauer, Pike & Pike, Chtd., Great Bend, for appellant.
Harry Bleeker, of Turner and Boisseau, Chartered, Great Bend, for appellees Sunflower Elec. Co-op. and Home Indem. Co.
Before ABBOTT, C.J., and REES and BRISCOE, JJ.
This is a workers' compensation case in which the Workers' Compensation Fund (Fund) challenges that part of a district court judgment that, pursuant to K.S.A. 44-567(a)(A), relieved Sunflower Electric Cooperative (Sunflower) of liability for compensation awarded to claimant Ronald E. Denton and ordered that the Fund pay the entire award. Although a notice of appeal was served and filed by Denton, his appeal has been abandoned by his failure to docket it and to file a brief.
Underlying this litigation is an on-the-job accident experienced by Denton on May 21, 1983, at an electric power generating plant at Garden City, Kansas. Denton, an operating department shift foreman employed by Sunflower, the plant operator, suffered a herniated lumbar disc as a result of the accident. Post-accident medical examination and review of 1978 and 1980 x-rays resulted in physicians' objective findings of preexisting lumbosacral degenerative disc disease that had afflicted Denton since at least as early as 1978.
In support of its first issue (see Supreme Court Rule 6.02[c], 235 Kan. lxviii), and without identification of focal points, the Fund broadly argues that Sunflower did not prove that when Denton sustained personal injury by accident arising out of and in the course of his employment on May 21, 1983, he was a handicapped employee Sunflower had retained in its employ after it had acquired knowledge that he was afflicted with a physical impairment. We do not see that the Fund argues that Denton did not sustain compensable injury or that he had no preexisting impairment. Rather, the Fund appears to argue that it was not proved that prior to the May 21, 1983, accident Denton was retained in Sunflower's employ after Sunflower acquired knowledge that Denton was afflicted with an impairment of requisite character to support a finding that he was a handicapped employee. With no more than a scintilla of reasoned supporting argument, the Fund also argues there was insufficient proof to support a shift to the Fund of liability for Denton's compensation for the reason that there was no evidence that Denton was retained by Sunflower with "mental reservation."
As to the Fund's first issue, we are to decide (1) whether there was evidence upon which the district court could conclude that, prior to May 21, 1983, Sunflower had retained Denton in its employ after acquiring knowledge of preexisting impairment of such character that he was a handicapped employee; (2) whether it was essential to Sunflower's claim for relief from liability for Denton's compensation that Sunflower prove that it retained Denton in its employ with "mental reservation"; and (3) if retention with "mental reservation" was required whether it was proved. If our answer to the second question is "no," we need not address and answer the third and last question.
To be relieved of liability for payment of all compensation awarded to Denton, it was necessary that Sunflower come within the operation of the following language of K.S.A. 44-567:
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When K.S.A. 44-567(b) speaks of "the employer's burden of proof," reference is made to the employer's burden "to persuade the trier of facts by a preponderance of the credible evidence that [the employer's] position ... is more probably true than not true." K.S.A. 44-508(g). Thus, it was Sunflower's burden to prove its claim for relief from liability (Scott v. Day and Zimmerman, Inc., 215 Kan. 782, 787, 529 P.2d 679 [1974] by a preponderance of the evidence; it was not necessary that Sunflower prove its claim by clear and convincing evidence or beyond reasonable doubt.
Who is a "handicapped employee" as that term is used in K.S.A. 44-567? The definition is in K.S.A. 44-566(b), which states:
" 'Handicapped employee' means [an employee] afflicted with or subject to any physical or mental impairment, ... whether congenital or due to an injury or disease of such character the impairment constitutes a handicap in obtaining employment or would constitute a handicap in obtaining reemployment if the employee should become unemployed...."
Otherwise put, a "handicapped employee" is an employee who is at disadvantage in obtaining employment or reemployment because of physical or mental impairment with which he or she is afflicted or to which he or she is subject. An employee is not a handicapped employee if he or she is not afflicted with or subject to an impairment. An employee afflicted with or subject to an impairment is not a handicapped employee if he or she is not at disadvantage in obtaining employment or reemployment because of the impairment.
What is the meaning of the word "impairment" as it is used in K.S.A. 44-566(b) and K.S.A. 44-567? From the wording "physical or mental impairment ... whether congenital or due to an injury" in K.S.A. 44-566(b), it is clear that "impairment" and "injury" are not synonymous. What is the distinction? Seeing that K.S.A. 44-508(e) directs that "injury" means a lesion or change in the physical structure of the body causing damage or harm thereto, we conclude that the word "impairment" in the phrase "physical or mental impairment" connotes limitation of function. See, for example, Rork v. Szabo Foods, 439 N.E.2d 1338, 1342 (Ind.1982); Talas v. Correct Piping Co., Inc., 435 N.E.2d 22, 26 (Ind.1982).
We pause to observe that reported Kansas appellate opinions in workers' compensation cases display instances of imprecision in the use of certain words, among which are "injury," "impairment," and "handicap" or "handicapped."
In summary, K.S.A. 44-567(a) dictates that shifting compensation liability to the Fund is authorized only if the compensation recipient was an employee hired or retained by the employer with knowledge that the employee was a handicapped employee. K.S.A. 44-567(b) emphasizes that liability shifting under the authority granted by K.S.A. 44-567(a) requires that it be proved that hiring or retention of the employee occurred after the employer acquired knowledge of (knew of) an impairment causing the employee to be a handicapped employee, that is, hiring or retention with knowledge of the employee's functional limitation putting him or her at disadvantage in obtaining employment or reemployment.
Within the evidence before the district court in this case, there was particular testimony of one Don Erwin and Denton that we find to have controlling effect when considered together with, and in light of, the physicians' objective findings. We will report the testimony as it appears in the record on appeal.
Erwin, Sunflower's operations supervisor at the Garden City plant, testified as follows:
"A. [Denton] came to work in 1960 ... I have known him ever since....
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"A. ... He started out as a second operator ... then went to first operator, and then I believe it was in 1973 ... that he was promoted to shift foreman, and he stayed in that position until he was laid off August 31, 1984.
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...that has a second injury fund law. See, e.g., Second Injury Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990); Denton v. Sunflower Elec. Coop., 12 Kan.App.2d 262, 740 P.2d 98 (Kan.App. 1987); Estep v. State Workmen's Compensation Comm'n, 171 W.Va. 168, 298 S.E.2d 142 (W.Va.1982). We are unaware o......
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