Wimp v. Am. Highway Tech. Travelers Prop. Cas. of Am.

• Decision Date: 23 October 2015
• Docket Number: No. 112,521.,112,521.
• Citation: 51 Kan.App.2d 1073,360 P.3d 1100
• Parties: Donald J. WIMP, Appellee, v. AMERICAN HIGHWAY TECHNOLOGY Travelers Property Casualty of America, Appellants.
• Court: Kansas Court of Appeals

51 Kan.App.2d 1073

360 P.3d 1100

Donald J. WIMP, Appellee,

v. AMERICAN HIGHWAY TECHNOLOGYTravelers Property Casualty of America, Appellants.

No. 112,521.

Court of Appeals of Kansas.

Oct. 23, 2015.

Vincent A. Burnettand Travis L. Cook, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellants.

William L. Phalenand Crystal D. Marietta, of Pittsburg, for appellee.

Opinion

LEBEN, J.

This appeal is brought by an employer and its insurance carrier from an order awarding permanent-total-disability compensation to its employee. An employee qualifies for that compensation when an on-the-job injury has left “the employee ... completely and permanently incapable of engaging in any type of substantial and gainful employment.” K.S.A. 44–510c(a)(2).

The employer argues that in this case, its employee's inability to find other work was largely due to his limited intellectual ability and, thus, the employer should not be responsible for his inability to find work. But K.S.A. 44–510c(a)(2)considers the ability of “the employee” who was injured to obtain gainful employment, not the ability of Stephen Hawking or even the ability of the theoretical average person. Substantial evidence supports the Workers Compensation Board's conclusion that the employee in our case, Donald Wimp, was left incapable of engaging in gainful employment due to his on-the-job injuries, and we affirm the award of compensation to him.

Factual and Procedural Background

Wimp worked for 18 years doing manual labor for American Highway Technology, a company that manufactures concrete bridges and overpasses. Wimp's job was to run wire through a machine that transformed it into smaller widths for use throughout American Highway Technology's plant. In doing this work, Wimp used his hands to bend the wire, to guide it through the machine, to hook clamps onto it, and to counteract significant pressure exerted by the roll of wire as it was being fed into the machine.

After he experienced pain, numbness, and a tingling sensation in his hands, neck, and shoulder, Wimp had right and left carpal-tunnel-release

surgery in 2008. After returning to work, he again experienced pain in his neck, back, and hands. In 2009, a doctor repeated the right carpal-tunnel-releasesurgery.

When he returned to work, he again had pain in his neck, shoulder, and hands. In November 2009, Wimp accepted a voluntary layoff (while work at the company was low), but he had further testing in early 2010 for the work-related injuries. A nerve-conduction test showed severe carpal-tunnel syndrome

, and a doctor advised that further surgery wouldn't help. Wimp didn't return to work at the conclusion of the voluntary layoff period, and American Highway Technology let him go.

Wimp had a workers-compensation claim pending, and the parties presented extensive medical evidence in that proceeding. We will not go into great detail about that evidence because it's not contested that Wimp suffered an injury to both of his arms. The administrative law judge appointed Dr. Peter Bieri, a fellow of the American Academy of Disability Evaluating Physicians, to independently determine Wimp's disability for workers-compensation purposes. Under Kansas law, that determination is made under guidelines found in the American Medical Association's AMA Guides to the Evaluation of Permanent Impairment(4th ed.1995). See K.S.A. 2014 Supp. 44–508(u).

Using those guidelines, Dr. Bieri concluded that Wimp had a 20 percent impairment of his right arm based on “residuals of entrapment neuropathy

at the level of the right wrist.” He concluded that Wimp had a 10 percent impairment of his left arm based on “residuals of entrapment neuropathyof the left wrist.”

The Workers Compensation Board adopted Dr. Bieri's disability findings, and they are not in dispute in this appeal. What isin dispute is whether these injuries have left Wimp unable to find employment. The Workers Compensation Board found that Wimp was entitled to a presumption to that effect because he had an injury to both arms.K.S.A. 44–510c(a)(2)provides a rebuttable presumption that when an employee suffers a loss in both eyes, hands, arms, feet, or legs, the employee has been permanently and totally disabled. See Casco v. Armour Swift–Eckrich,283 Kan. 508, Syl. ¶ 8, 154 P.3d 494 (2007). The employer may rebut the presumption by presenting evidence that the employee is able to engage in substantial and gainful employment. Hall v. Dillon Companies, Inc.,286 Kan. 777, Syl. ¶ 6, 189 P.3d 508 (2008).

The Board concluded that American Highway Technology had not rebutted the presumption; thus the Board awarded Wimp permanent-total-disability compensation. On appeal, American Highway Technology contends that it successfully rebutted the statutory presumption by showing that Wimp's inability to find work was not just a result of his on-the-job injuries.

Standards of Review on Appeal

The Kansas Judicial Review Act governs our review of cases arising under the Workers Compensation Act. K.S.A. 2014 Supp. 44–556(a). The Kansas Judicial Review Act provides that an agency action (here, the Workers Compensation Board acts as an agency) may be set aside only for one of eight reasons set out in the statute. American Highway Technology argues two of them on appeal: that the agency misinterpreted the law, K.S.A. 2014 Supp. 77–621(c)(4), and that the agency's factual findings were not supported by substantial evidence. K.S.A. 2014 Supp. 77–621(c)(7).

We determine legal issues independently, without any required deference to the Workers Compensation Board. Hall,286 Kan. at 783, 189 P.3d 508; Ballard v. Dondlinger & Sons Constr. Co.,

51 Kan.App.2d 855, 355 P.3d 707, 711 (2015). Whether an employee is able to engage in substantial and gainful employment is a question of fact, and we review a challenge to the Board's factual findings in light of the record as a whole to determine whether the findings are supported by substantial evidence. See K.S.A. 2014 Supp. 77–621(c)and (d); Moore v. Venture Corporation,51 Kan.App.2d 132, 137–38, 343 P.3d 114 (2015). Substantial evidence is evidence that a reasonable person might accept as sufficient to support a conclusion. See Blue Cross & Blue Shield of Kansas, Inc. v. Praeger,276 Kan. 232, 263, 75 P.3d 226 (2003); Herrera–Gallegos v. H & H Delivery Service, Inc.,42 Kan.App.2d 360, 363, 212 P.3d 239 (2009).

The Board, not our court, makes the factual findings, so we do not weigh conflicting evidence except to determine whether the evidence supporting the Board's decision has been so undermined by cross-examination or other evidence that a reasonable person would not accept it as support of the Board's factual findings. Moore,51 Kan.App.2d at 137–38, 343 P.3d 114; Messner v. Continental Plastic Containers,48 Kan.App.2d 731, 750–51, 298 P.3d 371, rev. denied297 Kan. 1246 (2013); In re Protests of Oakhill Land Co.,46 Kan.App.2d 1105, 1114, 269 P.3d 876 (2012); Herrera–Gallegos,42 Kan.App.2d at 363, 212 P.3d 239; Mendez v. Cargill Meat Solutions Corp.,No. 110,052, ––– Kan.App.2d ––––, 2014 WL 2871368, at *1 (Kan.App.2014)(unpublished opinion).

We recognize that the Board's specific finding in this case—that American Highway Technology did not rebut the presumption of total and permanent disability—is a negative finding. In court-tried cases, appellate courts do not reverse a trial judge's negative finding unless the judge arbitrarily disregarded undisputed evidence or showed bias, passion, or prejudice. Under the amended Kansas Judicial Review Act, however, the negative-findings standard does not apply, and we instead look to the whole record and determine whether substantial evidence supports the Board's decision. See Olds–Carter v. Lakeshore Farms, Inc.,45 Kan.App.2d 390, 395, 250 P.3d 825 (2011); Mendez,2014 WL 2871368, at *2.

Analysis

This case mostly depends on a question of statutory interpretation, so we will start by looking at the applicable statute. The statute that applies is the one in place when the employee is injured. Bryant v. Midwest Staff Solutions, Inc.,292 Kan. 585, 588, 257 P.3d 255 (2011). Here, although Wimp sustained his injuries over a period of time, the parties agreed that his date of injury for the purposes of this case was May 6, 2008. Thus, unless otherwise indicated, we cite in this opinion to the statutes in place as of May 2008.

For our purposes, the key provision of the Kansas Workers Compensation Act is K.S.A. 44–510c(a)(2), which tells us when an employee has a permanent and total disability. The statute has four sentences: the first sentence provides the general rule; the other three sentences discuss how we apply the rule under certain situations:

“Permanent total disability exists when the employee, on account of the injury, has been rendered completely and permanently incapable of engaging in any type of substantial and gainful employment. Loss of both eyes, both hands, both arms, both feet, or both legs, or any combination thereof, in the absence of proof to the contrary, shall constitute a permanent total disability. Substantially total paralysis, or incurable imbecility or insanity, resulting from injury independent of all other causes, shall constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts.” K.S.A. 44–510c(a)(2).

Before discussing American Highway Technology's argument on appeal, let's first look at each sentence of the statute and how they would seem to apply to Wimp's case:

1. The first sentence provides the overall rule that an employee is permanently and totally disabled if a work-related injury has left him or her unable to gain employment. Our court has long interpreted this to mean that an employee is permanently and totally disabled when the employee is “essentially and realistically unemployable.” Conrow v. Globe Engineering Co.,43 Kan.App.2d 827, 829–31, 231 P.3d 1080 (2010); Poff v. IBP, Inc.,33 Kan.App.2d 700, 705, 106 P.3d

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