Stephen v. Phillips County, No. 97,254.

• Decision Date: 18 January 2008
• Docket Number: No. 97,254.
• Citation: 174 P.3d 452
• Parties: Leroy M. STEPHEN, Appellee, v. PHILLIPS COUNTY, and Kansas Workers Risk Cooperatives for Counties, Appellants.
• Court: Kansas Court of Appeals

174 P.3d 452

Leroy M. STEPHEN, Appellee, v. PHILLIPS COUNTY, and Kansas Workers Risk Cooperatives for Counties, Appellants.

No. 97,254.

Court of Appeals of Kansas.

January 18, 2008.

Mickey W. Mosier, of Clark, Mize & Linville, Chartered, of Salina, for appellants.

Jeffrey E. King, of Hampton & Royce, of Salina, for appellee.

Before CAPLINGER, P.J., ELLIOTT and LEBEN, JJ.

LEBEN, J.

Less than 6 months before the 2004 election, Phillips County Sheriff Leroy Stephen was injured while trying to handcuff an unruly prisoner. After the injury, he was off work for nearly 2 months. When he returned to work, his doctors directed that he lift no more than 10 pounds and avoid stooping, bending, or twisting. While operating under those restrictions, he lost the primary election in August. In October 2004, the work restriction was expanded to allow him to lift up to 30 pounds. While operating under the revised work restrictions, he lost a write-in campaign in the November general election.

No one can say whether Stephen lost his job because of the injury—voters are not required to explain their votes. But Sheriff Stephen was an employee covered by the Kansas Workers Compensation Act, and he sought and obtained a permanent partial disability award that included an amount partially compensating him for his wage loss after he lost his job. Phillips County argues that because there is no proof that Stephen lost his job as a result of his injury, he should not be allowed to recover any amount compensating for wage loss after his term as sheriff ended. In prior cases, most recently Roskilly v. Boeing Co., 34 Kan.App.2d 196, 116 P.3d 38 (2005), we have affirmed the award of such benefits to an employee whose layoff was for economic reasons unrelated to the employee's injury. We find no reason to apply a different rule to an employee who lost his job due to an election defeat, and we affirm the Workers Compensation Board's award of benefits to Stephen.

A: Putting Our Issue in the Context of Workers Compensation Law.

As we have noted and will discuss in more detail soon, prior cases share some similarities to this one. The main task before us in this case is to determine whether these prior cases control the result here.

First-year law students learn that the law develops in large part by analogy. A court decides that a case involving facts A and B comes out a certain way. When the next case involves facts A, B, and C, the court must decide whether the same result still applies or whether fact C has fundamentally altered the landscape so that a different result is called for. Although this form of caselaw development arose under the common law—where there is no benefit of statutory guidance—it also applies in statutory interpretation, albeit with an emphasis on the statutory language as the preeminent guide-post. So if a statute has been applied a certain way when facts A and B are present, the court ordinarily will apply it that same way when facts A, B, and C are present unless fact C calls for a different application under the statutory language.

To determine whether the Roskilly rule applies here, we must first review some of the basics of workers compensation benefits. Some injuries are listed on a schedule that determines the benefit paid—ranging from the loss of the use of a shoulder, which calls for 225 weeks of benefit payments, to the loss of use of the little finger, which calls for 15 weeks of benefit payments. When a Kansas worker has a lasting injury not listed on the schedule that causes partial disability, the Workers Compensation Act provides an award for "permanent partial general disability." That award may be calculated in two ways: (1) based on a statutorily defined work disability or (2) based on overall functional impairment calculated according to the American Medical Association Guides to the Evaluation of Permanent Impairment. The employee receives the greater of these two awards unless he or she is working and earns at least 90% of the pre-injury wage; in that case, the employee receives only the functional-impairment award for "as long as" he or she is earning at least 90% of the pre-injury wage. K.S.A. 44-510e(a).

The work-disability calculation is itself based on two factors: (1) medical evidence of the employee's percentage loss of ability to perform work-related tasks and (2) the employee's actual wage loss (calculated as the percentage of pre-loss wages that the employee is now unable to earn). The calculated percentages for diminished ability to perform tasks and wage loss are averaged. They are then used to calculate the permanent partial general disability award in this method:

[(employee's average gross weekly wage × 66.67%) OR (statutory maximum wage amount)] × (work-disability percentage) × (no. weeks of benefit left to be paid) = permanent partial general disability award.

See K.S.A. 44-510e(a); Graham v. Dokter Trucking Group, 284 Kan. 547, 556, 161 P.3d 695 (2007).

A review of that formula reveals that a substantial part of the award is designed partially to compensate for future wage loss. The number of remaining weeks of benefits to be paid in the formula is 415 weeks minus the number of weeks over 15 that temporary benefits were paid. Thus, if a worker received temporary benefits for 30 weeks, 400 weeks would be inserted into the formula. The worker receives the benefit calculated under the work-disability formula only if it exceeds the benefit calculated under the functional-impairment formula, which has already factored in the compensation deemed appropriate under this statute for the injury itself. So the work-disability formula provides partial compensation for future wage loss. Given that context, Phillips County argues here that Stephen should not be able to recover this work-disability award, which compensates him for wage losses after he lost reelection, because there is no proof that he lost the election because of his injury.

One additional wrinkle in Kansas workers compensation law must be discussed, though because of a stipulation it makes only a cameo appearance in our case. This court has held that it is implicit in the Workers Compensation Act that an employee who loses the job at which the injury took place must make a good-faith effort to find work. Absent good faith, then an appropriate post-injury wage based on what the claimant should have been able to earn is imputed to determine the wage loss. See Castro v. IBP, Inc., 29 Kan.App.2d 475, 478, 30 P.3d 1033 (2001); Copeland v. Johnson Group, Inc., 24 Kan.App.2d 306, 320, 944 P.2d 179 (1997). The parties in our case stipulated to the wage that would be imputed if the fact-finder determined Stephen did not seek new employment in good faith. Neither party has argued here that the cases imposing this good-faith requirement—which is not found in the statutory language—should be overruled.

B: The Employee Who Loses His Job in a Layoff Still Receives Workers Compensation Benefits Attributable to Future Wage Losses.

This court has previously considered two cases involving employees laid off at the Boeing Company in Wichita. In both cases, we affirmed the award of work-disability benefits after the employee was laid off for economic reasons unrelated to the employee's injury. Roskilly, 34 Kan.App.2d 196, 116 P.3d 38; Lee v. Boeing Company-Wichita, 21 Kan.App.2d 365, 899 P.2d 516 (1995).

In Roskilly, after considering the statutory language and the view of the Workers Compensation Board, this court agreed with the Board's determination that a work-disability award is not precluded under the statute even though the "claimant's loss of employment . . . [was] due to reasons other than his or her injury." 34 Kan.App.2d at 200, 116 P.3d 38. The claimant in Roskilly was laid off due to a general reduction in workforce while he was still receiving treatment but before he had received his final disability rating. The claimant in Lee was laid off for economic reasons after he had returned to work in a less strenuous job than the one at which he was injured. The facts in Lee arose before K.S.A. 40-510e(a) was amended in 1993, but Roskilly arose under the current statute.

There are also some cases in which this court has upheld the denial of work-disability benefits when a claimant had been fired for cause. E.g., Newman v. Kansas Enterprises, 31 Kan.App.2d 929, 77 P.3d 492 (2002). But Phillips County does not argue here for the application of those cases, presumably because it would have the burden to show that Stephen was terminated for cause—and, as we have already noted, voters are not required to give reasons for choosing one candidate over another, even an incumbent with 25 years of service.

C: The Employee Who Loses His Job by Losing an Election Is Entitled to the Same Workers Compensation Benefits as One Who Is Laid Off.

The claimant in our case was an elected sheriff, not a factory worker. And he lost his job not because of an economic downturn but because the voters refused to give him another term in office. We must determine whether these differences have so fundamentally altered the landscape that they call for a different result when applying the statute on these facts.

One might argue that an elected sheriff has no right to continue in that position at the end of the term of office. Though that's true, it does not distinguish the situation from that of an at-will employee, who does not even have a right to continued employment. Thus, when applying Roskilly's rule that a work-disability award is not precluded when the loss of job is caused by something other than injury, we see no basis to distinguish the loss of a job due to an election defeat from the loss of a job due to an economic downturn. In either case, the employee has lost the job. And from the employee's vantage point, the key concern at that point is whether—with any disability resulting from the injury—he or she can find new employment...