Opinion
No. 106,899.
2012-10-5
John S. BLASKOWSKI, Appellant, v. CHENEY DOOR COMPANY and Kansas Building Industry Workers Compensation Fund, Appellees.
Appeal from Workers Compensation Board. Matthew L. Bretz, of Bretz Law Offices, LLC, of Hutchinson, for appellant. Roy T. Artman, general counsel, of Kansas Building Industry Workers Compensation Fund, of Topeka, for appellees.
Appeal from Workers Compensation Board.
Matthew L. Bretz, of Bretz Law Offices, LLC, of Hutchinson, for appellant. Roy T. Artman, general counsel, of Kansas Building Industry Workers Compensation Fund, of Topeka, for appellees.
Before BUSER, P.J., MALONE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
John S. Blaskowski was injured in a work-place accident while he was employed at Cheney Door Company, Inc. (Cheney). It is undisputed that his injuries were not permanent and did not result in any work task loss. Although the administrative law judge (ALJ) awarded him a 50% work disability (0% task loss averaged with 100% wage loss), the Kansas Workers Compensation Board (Board) reversed the ALJ award and found he was not entitled to an award because he failed to prove that he suffered a permanent impairment or permanent disability as the result of the accident. Despite these findings, Blaskowski contends that his 100% wage loss entitled him to 50% work disability as the ALJ initially awarded. On appeal, he does not challenge the Board's factual findings, but he instead focuses on the interpretation K.S.A. 44–510e(a). Because we find that K.S.A. 44–510e(a) clearly precludes a finding of permanent partial disability in the absence of any work task loss or functional impairment, we affirm the Board's decision.
Factual and Procedural History
The facts in this appeal from an order of the Board are not in dispute.
Blaskowski was working for Cheney installing commercial and residential garage doors when, while lifting a garage door overhead off a truck, Blaskowski experienced pain in his lower back. This was clearly a work-related injury and Blaskowski received timely medical treatment.
Blaskowski's job was eventually transferred by Cheney from Salina to Wichita and after a few months he quit because he could no longer afford to commute between the two cities. Blaskowski does not dispute, for purposes of this appeal, that there was adequate support in the record for the decision by both the ALJ and the Board that Blaskowski had 0% permanent functional impairment and 0% task loss. This was supported by testimony of an orthopedic surgeon and corroborated by a surveillance video of Blaskowski using a riding lawn mower on hilly terrain for 90 minutes.
The ALJ found that although Blaskowski had a 0% permanent impairment and 0% task loss, he had a 100% wage loss. The ALJ applied the formula in K.S.A. 44–510e(a) and averaged a 0% task loss with the 100% wage loss to award a permanent partial general disability of 50%.
Cheney timely applied for review before the Board. The Board affirmed the ALJ's finding that Blaskowski had no permanent functional impairment and 0% task loss. As a result, the Board concluded that Blaskowski failed to prove a prerequisite to recovery of a permanent partial general disability award—that his work-related injury resulted in any permanent impairment. Thus, Blaskowski was entitled to the temporary total disability and medical treatment previously paid, but he was not entitled to a permanent partial disability award. The ALJ's award of 50% work disability was reversed. Blaskowski appeals.
Analysis
On appeal, Blaskowski contends the Board misconstrued K.S.A. 44–510e(a) because under his interpretation of the statute proof of a functional disability is not a prerequisite to recover a work-disability award. Because our review in this case involves the interpretation or construction of a statute, it is unlimited. We owe “ ‘[n]o significant deference” ’ to the agency's interpretation or construction. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010).
K.S.A. 44–510e(a), in effect at the time of Blaskowski's injury, states in part:
“ 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 after the injury. In any event, the extent of permanent partial general disability shall not be less than the percentage of functional impairment. Functional impairment means the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence and based on the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, if the impairment is contained therein.” (Emphasis added.)
According to Blaskowski, the plain language of K.S.A. 44–510e supports his position because permanent partial disability can be based on either a work disability or a functional impairment, depending on which is higher. Blaskowski further cites McLaughlin v. Excel Corp., 14 Kan.App.2d 44, 783 P.2d 348,rev. denied 245 Kan. 784 (1989), in support of his interpretation of K.S.A. 44–510e(a). We find Blaskowski's interpretation of the statute and reliance on McLaughlin is misplaced for several reasons. First, we will examine this court's decision in McLaughlin.
At the time McLaughlin was injured, K.S.A.1987 Supp. 44–510e(a) provided that a work disability could be established when “the ability of the employee to perform work in the open labor market and to earn comparable wages” had been reduced. Testimony was presented that McLaughlin could no longer perform his work in the packing plant, primarily due to his small stature, rather than any functional disability. The court specifically found that there was ample evidence to support a work disability. 14 Kan.App.2d at 47. In 1993, the statute was amended, introducing the language in effect when Blaskowski was injured, which requires a physician's opinion about task loss as a prerequisite for a work-disability award. The undisputed testimony presented in Blaskowski's case was that Blaskowski had 0% work task loss as a result of his work injury. See Abdi v. Tyson Fresh Meats, No. 104, 132, 2011 WL 3444330, at *5 (Kan.App.2011) (unpublished opinion). Accordingly, McLaughlin provides no guidance in the present case and we move on to his interpretation of the statute.
Blaskowski submits that the statute does not require a functional impairment in order to obtain a work-disability award based on 100% wage loss. Taking this interpretation to the extreme, if an employee trips and suffers a sprained ankle at work then eventually quits without obtaining subsequent employment, the employee is entitled to permanent partial disability merely because the employee had a work-related accident and 100% wage loss. This is an illogical interpretation and does not stand up to the language of the statute.
“When a workers compensation statute is plain and unambiguous, this court must give effect to its express language rather than determine what the law should or should not be.” Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607–08, 214 P.3d 676 (2009). We find that under the clear language of K.S.A. 44–510e(a) any use of the formula found in K.S.A. 44–510e(a) presupposes that the “employee is disabled in a manner which is partial in character and permanent in quality.” This requires a threshold finding of a permanent impairment or disability before applying the formula for work disability. See Abdi, 2011 WL 3444330, at *4;Hart v. Bott Family Farms, No. 99,895, 2009 WL 1140274, at *5, (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1093(2010).
As previously noted, Blaskowski does not challenge the Board's factual findings. The Board found that Blaskowski failed to prove he suffered a permanent injury from the work accident and, thus, regardless of Blaskowski's 100% wage loss, he is not entitled to a work-disability award.
Affirmed.