Gutierrez v. Dold Foods, Inc.

• Decision Date: 16 January 2009
• Docket Number: No. 99,535.,99,535.
• Citation: 199 P.3d 798,40 Kan. App. 2d 1135
• Parties: Lazaro GUTIERREZ, Appellee, v. DOLD FOODS, INC., Appellant.
• Court: Kansas Court of Appeals

199 P.3d 798

40 Kan. App. 2d 1135

Lazaro GUTIERREZ, Appellee, v. DOLD FOODS, INC., Appellant.

No. 99,535.

Court of Appeals of Kansas.

January 16, 2009.

Douglas D. Johnson, of Johnson, Kennedy, Dahl & Willis, of Wichita, for appellant.

Dale V. Slape, of Slape & Howard, Chtd., of Wichita, for appellee.

Before CAPLINGER, P.J., LEBEN, J., and BUKATY, S.J.

LEBEN, J.

Lazaro Gutierrez injured his back while working for Dold Foods, Inc. The Kansas Workers Compensation Board gave him a permanent partial disability award of 62% based on the average of his wage loss (61%) and his loss of ability to perform work-related tasks (62%). The average of wage and task loss is referred to as a work-disability award, and a worker is entitled to that amount for an unscheduled permanent partial disability award under K.S.A. 44-510e(a) unless the person is earning 90% or more of his or her pre-injury wage. In that case, the worker gets a lesser award.

Dold Foods argues that Gutierrez should receive a lower award because Dold Foods fired him for cause based on an inaccurate statement Gutierrez made on a form he had filled out for a temporary-employment firm, which placed him at Dold Foods. But nothing in the Kansas workers compensation statute suggests lowering an award for such a reason. In addition, we agree with the Workers Compensation Board that the case upon which Dold Foods relies, Ramirez v. Excel Corp., 26 Kan.App.2d 139, 979 P.2d 1261, rev. denied 267 Kan. 889 (1999), is distinguishable—and it may no longer be valid anyway given the Kansas Supreme Court's recent admonitions to follow the statute as it is written.

The availability of workers compensation benefits to injured employees arises under statutes, not under the court-made common law. The Kansas Legislature, like those of other states, has enacted a system under which employees lose the right to sue their employers for most on-the-job injuries but gain guaranteed compensation under workers compensation laws. We must begin our analysis, as we do in any case governed by a statute, with the specific words chosen by the legislature.

The Kansas Workers Compensation Act Provides a Detailed Method for Calculating a Permanent Partial Disability Award.

The Kansas Workers Compensation Act provides specified recoveries for some injuries that are listed on a schedule, ranging from 225 weeks of benefit payments for the loss of use of a shoulder to 15 weeks for the loss of use of the little finger. See K.S.A. 44-510d; Casco v. Armour Swift-Eckrich, 283 Kan. 508, Syl. ¶ 7, 154 P.3d 494 (2007); Stephen v. Phillips County, 38 Kan.App.2d 988, 990, 174 P.3d 452, rev. denied 286 Kan. ___ (2008). When a worker has a lasting injury not listed on the schedule that causes partial disability, K.S.A. 44-510e(a) provides a benefit for the permanent partial general disability. All of the provisions we review in the rest of this opinion are from that statute, K.S.A. 44-510e(a).

The statute begins with a two-part definition of how to calculate a percentage used to determine that award; the worker's percentage loss of ability to perform work-related tasks is averaged with the percentage loss of earnings:

"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."

The average of the task-loss and wage-loss percentages is "the percentage of permanent partial general disability." To determine the final award, that percentage is multiplied by a payment rate, which is based on the worker's average wages up to a statutory maximum, and a certain number of weeks, which is based in part on how long temporary disability payments were made.

So far, the determination of the percentage of permanent partial general disability seems simple enough: average the task-loss and wage-loss percentages. But the statute provides two other wrinkles by including both a ceiling and a floor on potential awards.

While factoring the post-injury wage loss into the award provides partial compensation for wage loss, the statute provides a cap and a bottom to potential awards. The statute limits the award when a worker is earning at least 90% of the wage earned before 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."

This portion of the statute sets a ceiling on the award when the worker is earning at least 90% of pre-injury wages. In that event, the percentage of permanent partial general disability may not exceed the percentage of functional impairment, which is the extent that a person has lost some of his or her body's capability. The statute also provides how functional impairment is to be determined—by medical testimony based on a standard guide on the evaluation of impairments. The statute separately sets a floor on the award: "In any event, the extent of permanent partial general disability shall not be less than the percentage of functional impairment."

In sum, let's review how the statute says to calculate the percentage of permanent partial general disability. Our Supreme Court has summarized the general rule: "Stated mathematically, the percentage of permanent partial general disability is equal to the percentage of task loss plus the percentage of wage loss divided by two." Graham v. Dokter Trucking Group, 284 Kan. 547, Syl. ¶ 4, 161 P.3d 695 (2007). Because this award provides some compensation based on post-injury wage loss, we often refer to it as a work-disability award. See Graham, 284 Kan. at 556, 161 P.3d 695. If the employee is earning more than 90% of pre-injury wages, however, the percentage of permanent partial general disability may not exceed the percentage of functional impairment. Because this award is based solely on functional impairment, we sometimes refer to it as a functional-impairment award. But neither of those terms is found in the statute—they merely describe two different methods set out in the statute for calculating the percentage of permanent partial general disability.

The Workers Compensation Board Followed the Statutory Formula.

The Workers Compensation Board found that Gutierrez had lost the ability to perform 62% of the work-related tasks he had done in the past. The Board found that his post-injury wages were 61% lower than they had been; he averaged $662.89 per week before the accident but only $260 per week at the time of his hearing. The Board averaged those percentages (62% and 61%)—apparently using only whole numbers—and determined that Gutierrez' percentage of permanent partial general disability was 62%. Since Gutierrez was earning far less than 90% of his pre-injury wages, the statutory ceiling on a partial general disability award was not applicable. The Board's calculations thus followed the statutory formula.

Dold Foods' Argument Is Based on Concepts Not Found in the Statutory Language, and the Board Rejected Its Argument.

Dold Foods does not challenge the accuracy of any of the numbers used by the Board. Dold Foods does not claim the Board's factual finding of a 62% task loss is unsupported by the evidence. Nor does Dold Foods claim that the Board's factual finding was inaccurate that Gutierrez' wages were down 61% from his pre-injury wages. Instead, Dold Foods argues that Gutierrez is entitled only to a functional-impairment award, not a work-disability award, based on concepts not found in the statute.

While Dold Foods doesn't rely on the statute, it does rely on some prior cases of the Court of Appeals, which it contends suggest that Gutierrez should be limited to a functional-impairment award. Gutierrez' functional-impairment rating was 12.5%, far less than the 62% work-disability percentage he received.

Our court first ruled in 1994 that an employee must make a good-faith effort to retain or find employment after an injury as a condition of eligibility for a work-disability award. Foulk v. Colonial Terrace, 20 Kan. App.2d 277, 284, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). Later cases determined that a wage higher than actually earned could be imputed to a worker who did not make a good-faith effort to find appropriate employment after an injury. E.g., Castro v. IBP, Inc., 29 Kan.App.2d 475, Syl. ¶ 4, 30 P.3d 1033 (2001); Copeland v. Johnson Group, Inc., 24 Kan.App.2d 306, Syl. ¶¶ 7-8, 944 P.2d 179 (1997). In a more recent ruling, a panel of our court held that "any showing of the potential for accommodation at the same or similar wage rate precludes an award for work disability." Mahan v. Clarkson Constr. Co., 36 Kan.App.2d 317, Syl. ¶ 2, 138 P.3d 790, rev. denied 282 Kan. 790 (2006). In these cases, our court did not cite any statutory language that directly supported the ruling but generally concluded that it would be unreasonable to interpret the statutory language so as to allow workers "to merely sit at home, refuse to work, and take advantage of the workers compensation system." Mahan, 36 Kan.App.2d 317, Syl. ¶ 3, 138 P.3d 790; Copeland, 24 Kan.App.2d 306, Syl. ¶ 6, 944 P.2d 179; Foulk, 20 Kan. App.2d at 284, 887 P.2d 140.

This good-faith requirement has been extended to a situation in which a worker was fired for cause after having returned to work from an injury. Ramirez v. Excel Corp., 26 Kan.App.2d 139, 979 P.2d 1261 (worker fired for false statements in employment application denied...