Farmer v. Southwind Drilling, Inc.

• Docket Number: 125,584
• Decision Date: 01 December 2023
• Parties: Mark Farmer, Appellee, v. Southwind Drilling, Inc., Appellant, and BITCO General Insurance Corp., Appellant.
• Court: Kansas Court of Appeals

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Mark Farmer, Appellee,
v.
Southwind Drilling, Inc., Appellant,

and BITCO General Insurance Corp., Appellant.

No. 125,584

Court of Appeals of Kansas

December 1, 2023

NOT DESIGNATED FOR PUBLICATION

Oral argument held October 17, 2023.

Appeal from Workers Compensation Appeals Board. Affirmed.

Dallas Rakestraw and P. Kelly Donley, of McDonald Tinker PA, of Wichita, for appellants.

Scott J. Mann, of Mann Wyatt Tanksley, of Hutchinson, for appellee.

Before WARNER, P.J., ATCHESON, J., and MARY E. CHRISTOPHER, S.J.

MEMORANDUM OPINION

PER CURIAM.

Southwind Drilling, Inc., appeals the amount awarded to Mark Farmer by the Workers Compensation Appeals Board. Because Farmer was injured in the first week of employment, a specific statute applied requiring his average weekly wage be determined "based upon all of the evidence and circumstances, including the usual wage for similar services paid by the same employer .... The average weekly wage so determined shall not exceed the actual average weekly wage the employee was reasonably expected to earn in the employee's specific employment." K.S.A. 2018 Supp. 44-511(b)(2).

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The administrative law judge (ALJ) and Board disagreed on how to interpret this statute. The ALJ based its award on the earnings Southwind paid employees doing the same job in the 26 weeks preceding Farmer's injury. The Board based its decision on the earnings Southwind paid those employees the week following Farmer's injury, or, in other words, what Farmer could have reasonably expected to earn that week.

FACTUAL AND PROCEDURAL HISTORY

Southwind is an oil contractor that drills oil wells throughout Kansas. On January 4, 2019, to better recruit and retain employees, Southwind gave every employee a $6 per hour pay raise.

On April 4, 2019, Farmer began working for Southwind as an evening tower floor hand on rig 1. The next day, a chain wrapped around his right wrist, jerking his right arm. Farmer sustained a 20% functional impairment to his right upper extremity. Had Farmer not been injured, he could have worked eight hours a day his first week earning $21 per hour.

To determine Farmer's average weekly wage under K.S.A. 2018 Supp. 44-511(b)(2), the ALJ considered the earnings Southwind paid evening tower floor hands on rig 1 in the 26 weeks preceding Farmer's injury. Before the January 4 wage increase, floor hands earned $15 per hour. When Farmer started work, floor hands earned a rate of $21 per hour. Taking both rates into consideration, the ALJ found Farmer earned an average weekly wage of $634.16.

Farmer appealed the ALJ's decision to the Board. The Board disagreed with how the ALJ interpreted K.S.A. 2018 Supp. 44-511(b)(2), which directs how to calculate a worker's average weekly wage when the worker was injured in the first week of employment. The Board ruled the statute did not require the use of pre-injury wages to

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determine the worker's average weekly wage. The Board instead used the wages Farmer could have expected to earn in the week following his injury if he had not been injured. The Board determined the $21 per hour rate was more representative of what Farmer was reasonably expected to earn. The Board found Farmer earned an average weekly wage of $1,092.

Southwind appeals.

ANALYSIS

The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., governs this court's review of cases arising under the Workers Compensation Act (Act), K.S.A. 44501 et seq. K.S.A. 44-556(a). Under the KJRA, this court can grant relief if it determines the Board "erroneously interpreted or applied the law" or the Board's action was based on a determination of fact not supported by substantial evidence. K.S.A. 77-621(c)(4), (c)(7).

I. Did the Board erroneously interpret K.S.A. 2018 Supp. 44-511(b)(2)?

Southwind contends the Board ignored the plain language of the statute requiring Farmer's average weekly wage be calculated based on the usual wages Southwind paid to evening tower floor hands preceding Farmer's injury, and instead relied on Farmer's speculative future wages. According to Southwind, the Board's interpretation will lead to inequitable outcomes because if one of Farmer's coworkers who had worked for Southwind for more than six months had been injured on the same date as Farmer, that worker's average weekly wage would be calculated using, in part, the $15 per hour rate the worker earned prior to January 4. Southwind argues for subsections (1) and (2) of K.S.A. 2018 Supp. 44-511(b) to be brought into workable harmony, they both must be interpreted to require consideration of wages paid in the 26 weeks preceding the date of

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injury. It further insists the 2011 amendments to K.S.A. 44-511(b) shows an intent by the Legislature to depart from the prior method used to calculate average weekly wages based on speculative wages to one based on wages actually paid.

Farmer contends the plain language of K.S.A. 2018 Supp. 44-511(b)(2) grants the finder of fact wide latitude to consider pre- or post-injury wages to determine the worker's average weekly wage. Farmer points out the plain language states the average weekly wage is to be based on all the evidence and circumstances. The only limitation contained in the statute is the average weekly wage cannot exceed what the employee was reasonably expected to earn.

Interpretation of the Act is a question of law subject to de novo review. EagleMed v. Travelers Insurance, 315 Kan. 411, 420, 509 P.3d 471 (2022). The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. Johnson v. U.S. Food Service, 312 Kan. 597, 600, 478 P.3d 776 (2021). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Bruce v. Kelly, 316 Kan. 218, 224, 514 P.3d 1007 (2022). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Schmidt v. Trademark, Inc., 315 Kan. 196, 200, 506 P.3d 267 (2022). Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the Legislature's intent. In re Joint Application of Westar Energy & Kansas Gas and Electric Co., 311 Kan. 320, 328, 460 P.3d 821 (2020).

When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and

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bringing the provisions into workable harmony if possible. Bruce, 316 Kan. at 224. The courts must construe statutes to avoid unreasonable or absurd results and presume the Legislature does not intend to enact meaningless legislation. When the Legislature revises an existing law, the court presumes that the Legislature intended to change the law as it existed before the amendment. Jarvis v. Kansas Dept. of Revenue, 312 Kan. 156, 165-66, 473 P.3d 869 (2020). A specific provision within a statute controls over a more general provision within the statute. In re E.J.D., 301 Kan. 790, 794, 348 P.3d 512 (2015).

K.S.A. 2018 Supp. 44-511(b) directs how to determine an injured worker's average weekly wage for the purpose of computing benefits under the Act. Subsection (b)(1) governs most cases, where the injured worker had worked for the employer more than one calendar week. In such case, the computation is a straight-forward calculation based on the wages the employee actually earned during the weeks immediately preceding the injury:

"Unless otherwise provided, the employee's average weekly wage for the purpose of computing any compensation benefits provided by the workers compensation act shall be the wages the employee earned during the calendar weeks employed by the employer, up to 26 calendar weeks immediately preceding the date of the injury, divided by the number of calendar weeks the employee actually worked, or by 26 as the case may be." K.S.A. 2018 Supp. 44-511(b)(1).

Subsection (b)(2) only applies to cases where the worker was injured in the first week of employment. The ALJ is directed to consider "all of the evidence and circumstances" including "the usual wage for similar services paid by the same employer" not to exceed the wage the employee "was reasonably expected to earn."

"(2) If actually employed by the employer for less than one calendar week immediately preceding the accident or injury, the average weekly wage shall be determined by the administrative law judge based upon all of the evidence and

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circumstances, including the usual wage for similar services paid by the same employer, or if the employer has no employees performing similar services, the usual wage paid for similar services by other employers. The average weekly wage so determined shall not exceed the actual average weekly wage the employee was reasonably expected to earn in the employee's specific employment, including the average weekly value of any additional compensation." (Emphases added.) K.S.A. 2018 Supp. 44-511(b)(2).

In this case, the ALJ based Farmer's average weekly wage on evidence of what other floor hands for Southwind actually earned in the 26 weeks immediately preceding Farmer's injury. During part of that timeframe, floor hands earned $15 per hour, rather than the $21 per hour rate Farmer started at. The ALJ stated its decision was based on "the 'usual wage for similar services' actually paid by Southwind."

"The court has considered the evidence presented as to what floor hands for Southwind were actually earning in the twenty-six weeks preceding April 5, 2019. If one of

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