Fernandez v. McDonald

• Decision Date: 25 January 2013
• Docket Number: No. 104,951.,104,951.
• Citation: 292 P.3d 311
• Parties: Martha FERNANDEZ, Claimant/Appellee, v. McDONALD'S, Respondent/Appellant, and Kansas Restaurant & Hospitality Association Self-Insurance Fund, Insurance Carrier/Appellant.
• Court: Kansas Supreme Court

292 P.3d 311

Martha FERNANDEZ, Claimant/Appellee,

v. McDONALD'S, Respondent/Appellant,andKansas Restaurant & Hospitality Association Self-Insurance Fund, Insurance Carrier/Appellant.

No. 104,951.

Supreme Court of Kansas.

Jan. 25, 2013.

Syllabus by the Court

1. The calculation of permanent partial general disability payments under K.S.A. 44–510e of the Workers Compensation Act depends upon the extent to which the work-related injury has reduced the worker's ability to perform his or her preinjury work tasks (task loss) and the extent of the reduction in average wages that the worker has experienced after the injury (wage loss). The percentage of task loss is averaged with the percentage of wage loss to arrive at a percentage of work disability compensation.

2. When this case was decided by the Kansas Workers Compensation Board, the plain language of K.S.A. 44–510e provided only two exceptions to including a claimant's postinjury wage reduction percentage in the calculation of the permanent partial general disability award: (1) where the postinjury wage reduction was 10 percent or less, i.e., the injured worker was continuing to earn at least 90 percent of his or her preinjury wage; or (2) where the functional impairment percentage was greater than the result of averaging the task loss percentage with the wage loss percentage. An additional exception based upon the claimant's immigration status cannot reasonably be gleaned from the language employed in K.S.A. 44–510e.

3. K.S.A. 44–510g establishes a vocational rehabilitation program within the workers compensation system because a primary purpose of the Workers Compensation Act is to restore injured employees to work at a comparable wage. The stated purpose contained in K.S.A. 44–510g was not intended to govern the interpretation of every provision within the Workers Compensation Act, and that stated purpose is not in conflict with the plain language of the work disability provisions of K.S.A. 44–510e.

4. The various provisions of the Workers Compensation Act are not in conflict or out of harmony with the plain language of K.S.A. 44–510e so as to compel a court-made rule excluding unauthorized aliens from receiving work disability compensation. For instance, the definition of “employee” provided in K.S.A.2007 Supp. 44–508(b) does not require that the eligible employment, contract of service, or apprenticeship be a legal relationship or that the persons involved therein must possess the requisite documentation to legally work within the United States. To the contrary, the definition of “employee” in K.S.A.2007 Supp. 44–508(b) specifically includes illegally employed minors. Moreover, the Workers Compensation Act restricts or excludes coverage for certain types of employment relationships, but the Act does not restrict or exclude coverage for unauthorized aliens.

5. Prior to its 2011 amendments, the plain language of K.S.A. 44–510e did not exclude an otherwise eligible employee from receiving an award of work disability based solely upon that employee's status as an unauthorized alien.

Wade A. Dorothy, of The Dorothy Law Firm LLC, of Overland Park, argued the cause and was on the briefs for appellants.

Conn Felix Sanchez, of Kansas City, argued the cause and was on the brief for appellee.

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

McDonald's and its workers compensation carrier, Kansas Restaurant & Hospitality Association Self-insurance Fund (hereafter collectively referred to as McDonald's), appeal the portion of the order of the Kansas Workers Compensation Board (Board) that awarded Martha Fernandez a 59 percent work disability. McDonald's claims it was error for the Board to assign a work disability rating to a person who would be designated an unauthorized alien under 8 U.S.C. § 1324a(a)(2) (2012), because such a person cannot legally return to work in the United States. Applying the Workers Compensation Act (Act) as it is written, we affirm the Board's award of work disability.

FACTS & PROCEDURAL BACKGROUND

On August 4, 2007, Fernandez was working at a McDonald's restaurant in Topeka, Kansas, when she injured her lower back while lifting a box of meat. She received medical treatment the same day. Fernandez was restricted to light duty and subsequently returned to work for 3 hours a day in an accommodated position.

After McDonald's submitted an accident report form to the Division of Workers Compensation, the agency informed McDonald's that Fernandez' Social Security number was invalid. Fernandez did not comply with her employer's request to present a copy of her Social Security card, and eventually Fernandez stopped coming to work. During the course of the workers compensation proceedings, Fernandez' unauthorized alien status was confirmed; she had no legal authority or documentation to work in the United States.

The administrative law judge (ALJ) determined and awarded Fernandez a functional impairment of 7 percent permanent partial disability. But the ALJ denied the claim for permanent partial general work disability under K.S.A. 44–510e based upon public policy grounds. The ALJ opined that the purpose of the Act was to assist injured workers to return to work; that an unauthorized alien cannot legally return to work in the United States; and that, therefore, awarding an unauthorized alien a work disability would be inconsistent with legislative intent.

Fernandez filed an application for review by the Board, and a majority concluded that the Act's plain language did not prohibit an unauthorized alien from receiving an award for work disability. Accordingly, the Board majority found that Fernandez was entitled to the full measure of work disability described in K.S.A. 44–510e and calculated that she should be awarded a 59 percent work disability.

The one dissenting board member pointed to the statement in K.S.A. 44–510g(a): “A primary purpose of the workers compensation act shall be to restore the injured employee to work at a comparable wage.” The dissenter noted that because Fernandez' immigration status prohibits her from returning to work in this country, the legislative purpose of the Act is a legal impossibility. The apparent suggestion of the dissent was that declining to award work disability to an unauthorized alien conformed to the statutory language of K.S.A. 44–510g(a).

McDonald's appealed the Board's decision to the Court of Appeals. We granted McDonald's motion to transfer the case. To clarify, McDonald's does not contest either the award of or the amount of benefits payable to Fernandez for her functional disability. The only issue in this appeal is whether an employee's immigration status can preclude that person from ever being awarded benefits for work disability under K.S.A. 44–510e. On that issue, we agree with the Board majority's plain language construction of the Act and affirm the Board's award of work disability compensation.

WORK DISABILITY FOR UNAUTHORIZED IMMIGRANTS

McDonald's presents this appeal as an issue of statutory construction. It contends that the Board interpreted K.S.A. 44–510e in isolation instead of construing the entire Act as a whole, including its stated purpose. We agree that the answer to McDonald's work disability challenge lies within the Act.

Standard of Review

Final orders of the Board are subject to review under the Kansas Judicial Review Act, K.S.A. 77–601 et seq.K.S.A.2011 Supp. 44–556(a). The standard of review will vary depending on the issue raised. See K.S.A.2011 Supp. 77–621. This court may grant relief if we determine that the agency erroneously interpreted or applied the law. K.S.A.2011 Supp. 77–621(c)(4). That issue is reviewed de novo. Tyler v. Goodyear Tire & Rubber Co., 43 Kan.App.2d 386, 388, 224 P.3d 1197 (2010). Moreover, we need not give deference to an agency's interpretation of a statute; rather, we exercise unlimited review. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).

Analysis

As a preliminary matter, we will quickly dispose of Fernandez' claim that McDonald's failed to exhaust its administrative remedies. The supporting argument appears to be that McDonald's argued new legal issues for the first time on appeal, i.e., that the issues were not preserved for appeal. Fernandez' argument is misplaced and unavailing. McDonald's March 22, 2010, submission letter and brief to the Board contained the allegation that Fernandez' “status as an illegal alien precluded an award on any basis other than functional impairment.” Moreover, the Board's order recited that the employer “disputes claimant's entitlement to any award beyond her whole person functional impairment as claimant is not in this country legally. Therefore, no work disability can be awarded.” McDonald's clearly raised before the Board the very issue it is asking us to decide. We have neither a preservation nor an exhaustion of remedies problem here.

Turning to the merits, we first note that the work disability to which the parties refer in this appeal is perhaps more accurately described as the permanent partial general disability computation described in K.S.A. 44–510e(a). When the claimant was injured in 2007, the relevant portion of K.S.A. 44–510e(a) stated as follows:

“Permanent partial general disability exists when the employee is disabled in a manner which is partial in character and permanent in quality and which is not covered by the schedule in K.S.A. 44–510d and amendments thereto. 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...