Wishon v. Cossman
| Decision Date | 05 November 1999 |
| Docket Number | No. 80, No. 743, No. 341., No. 81 |
| Citation | 991 P.2d 415,268 Kan. 99 |
| Parties | RAYMOND J. WISHON, Appellee, v. GARY L. COSSMAN, et al., and HELENA CHEMICAL COMPANY, Appellants. RAYMOND J. WISHON, Appellant, v. HELENA CHEMICAL COMPANY AND RELIANCE INSURANCE COMPANY, Appellees. |
| Court | Kansas Supreme Court |
Jerry M. Ward, of Ward Law Office of Great Bend, argued the cause, and was on the briefs for appellants Helena Chemical Company and Reliance Insurance Company.
Mark E. McFarland, of Doering, Grisell & McFarland, P.A., of Garden City, argued the cause and was on the brief for appellee Raymond J. Wishon. The opinion of the court was delivered by
This is a workers compensation statutory construction case. We review two consolidated cases with separate but related issues. The first case, an appeal from the district court, involves the extent of an employers subrogation lien under K.S.A. 44-504(b). The second concerns a K.S.A. 1998 Supp. 44-501(h) social security offset imposed by the Workers Compensation Board (Board).
Helena Chemical Company is the employer. Reliance Insurance Company is the workers compensation carrier (collectively "Helena"). Helena is the appellant on the K.S.A. 44-504(b) subrogation issue and appellee on the K.S.A. 1998 Supp. 44-501(h) offset issue. The district court held that Helena was subrogated only to $16,890.98 of a $150,000 judgment obtained by Raymond J. Wishon, the injured worker, against the third-party tortfeasor in a negligence action. With respect to the K.S.A. 1998 Supp. 44-501(h) offset case, the Board reduced Wishon's workers compensation award by the amount of social security benefits he is receiving. Wishon appeals.
Our jurisdiction is under K.S.A. 20-3018(c) ().
The two consolidated issues are: (1) whether the district court erred in determining that only the amount of the judgment which was duplicative of workers compensation payments was subject to Helena's K.S.A. 44-504(b) subrogation lien; and (2) whether the Board erred in reducing Wishon's award by the amount of social security benefits he is receiving.
Finding no error, we affirm.
Wishon was injured in a motor vehicle accident on May 18, 1994, in the course of his employment. Although Wishon worked parttime until March 2, 1995, he continued to receive his full salary of $986.42 per week, for a total of $40,729.28. Helena also paid Wishon's salary from March 3, 1995 to September 1, 1995, a total of $25,646.92, even though Wishon was on disability leave. Helena also paid $16,890.98 in medical benefits. Wishon sued Gary Cossman, the driver of the tractor-trailer that hit his pick-up truck, and Cossman's employer and its insurance carrier for injuries arising from the accident. Helena filed a K.S.A. 44-504(b) notice of lien. We find no suggestion in the record that Helena exercised its K.S.A. 44-504 statutory right to intervene in the tort case to protect its lien. Wishon's lost wages claim commenced on September 1, 1995. He did not present evidence of any lost wages for the period before September 1, 1995.
Helena argued that, although Wishon's workers compensation claim had not gone to an award, it was entitled to collect $55,461.67 as a K.S.A. 44-504(b) lien. ($16,890.98 in medical benefits and $38,570.59 in salary paid to Wishon.) Wishon contested the amount claimed by Helena. He argued that Helena's claim was essentially for wages paid to him from May 18, 1994, to September 1, 1995, rather than workers compensation benefits. He also asserted that he did not attempt to recover lost wages from the accident until September 1, 1995; thus, subrogation against his judgment was limited to $16,890.98 in medical expenses paid.
The district court agreed with Wishon, saying:
DISCUSSION
The disagreement between the parties is not the existence but the extent of Helena's subrogation lien. Wishon has never disputed that Helena has provided $16.890.98 medical aid and that a subrogation lien exists to that amount. The specific issue is the extent of Helena's subrogation lien for the remaining $38,570.69 paid to Wishon. Resolution of the subrogation issue involves our interpretation of K.S.A. 44-504(b). The interpretation of a statute is a question of law. Our review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). In interpreting a statute, the fundamental rule is that the intent of the legislature governs, where it can be ascertained. Legislative Coordinating Council v. Stanley, 264 Kan. 690, 702, 957 P.2d 379 (1998). The legislature intends the Workers Compensation Act to be liberally construed "for the purpose of bringing employers and employees within the provisions of the act to provide the protections of the ... act to both." K.S.A. 44-501(g). Where a statute is plain and unambiguous, we must give effect to the intention of the legislature as expressed, rather than determine what the law should be. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998). However, where the face of the statute leaves its construction uncertain, we are not limited to a mere consideration of the language used. We may consider historical background, the circumstances attending passage, the purpose, and the effect under the various considerations suggested. See Adams v. St. Francis Regional Med. Center, 264 Kan. 144, 156, 955 P.2d 1169 (1998).
The problem here is that Wishon did not attempt to recover against the tortfeasor for lost wages from the date of the accident until September 1, 1995. In fact Wishon contests Helena's claim, asserting the payments were "essentially wages."
We are unable to learn from the record the exact nature of Helena's pre-September 1, 1995, payments to Wishon. The district court found that Helena paid Wishon $38,570.69 "for compensation" from May 18, 1994, to September 1, 1995. The nature of Helena's pre-September 1, 1995 payments is clouded by the Board's finding, in the second case, that the wages paid from June 3, 1994 to March 1, 1995 were earned and, thus, not compensation under K.S.A. 44-504(b). Wishon contends his tort recovery did not include any compensation paid by Helena. The question is whether K.S.A. 44-504(b) grants a lien (a) on the recovery or (b) only to the extent the recovery duplicates the compensation and medical aid paid by the employer. The district court adopted the latter view. We agree.
The district court's decision was based on its interpretation of McGranahan v. McGough, 249 Kan. 328, 820 P.2d 403 (1991). McGranahan received $12,616.29 in compensation benefits for injuries sustained in an on-the-job vehicle accident. He resolved his negligence action against the tortfeasor by a settlement reduced to judgment. Under the settlement, McGranahan received $10,000. Of that amount, $6,000 was for pain and suffering, $3,000 for his wife's loss of consortium, and $1,000 for future medical expenses. McGranahan did not attempt to collect his lost wages or medical expenses in the settlement. 249 Kan. at 330-32. The McGranahan employer and its insurance carrier intervened in the negligence action under K.S.A. 44-504(b). The intervenors objected to approval of the stipulation and confession of judgment. They pointed out that although McGranahan had received over $9,000 in lost wages, the stipulation provided no recovery for lost wages. 249 Kan. at 332.
The question in McGranahan was whether the stipulated judgment was subject to the employer's lien. We looked at the purpose behind K.S.A. 1990 Supp. 44-504(b), which then read, in part:
"In the event of recovery from such other person by the injured worker or the dependents or personal representatives of the deceased worker by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien." (Emphasis added.)
We said that the purpose of the subrogation right under K.S.A. 1990 Supp. 44-504(b) is to prevent double recovery by the employee. We decided that McGranahan's judgment for pain and suffering was subject to subrogation because pain and suffering is an integral part of the calculation of disability. However, we found that the loss of consortium award was not duplicative of payments made by the employer and, thus, not subject to subrogation.
Our focus in McGranahan was on the...
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