Opinion
110,810.
10-03-2014
Felicia RYDER, Appellee, v. WHEATLANDS HEALTH CARE CENTER and Kansas Association of Homes for the Aging Insurance Group, Inc., Appellants.
Michael L. Entz, of Entz & Entz, P.A., of Topeka, for appellants. Jonathan E. Voegeli, of Law Offices of Slape & Howard, Chtd., of Wichita, for appellee.
Michael L. Entz, of Entz & Entz, P.A., of Topeka, for appellants.
Jonathan E. Voegeli, of Law Offices of Slape & Howard, Chtd., of Wichita, for appellee.
Before ARNOLD–BURGER, P.J., STANDRIDGE and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
On September 9, 2008, Felicia Ryder injured her shoulder and neck while in the scope of her duties at Wheatlands Health Care Center in Kingman. Her claim was settled on March 26, 2010, based on a 14% impairment to the body as a whole. The parties also agreed to leave all future rights open subject to proper application to the Division of Workers Compensation.
Ryder returned to work for Wheatlands which made accommodations for her by giving her a different job with different work responsibilities. In August 2010, Ryder filed an application for review and modification, claiming she had quit her job at Wheatlands and wanted her prior award modified. Ryder claimed she quit because she “couldn't do the job that [her] administrator wanted [her] to do.”
The administrative law judge (ALJ) determined her claim was governed by K.S.A. 44–528, and because she was capable of earning the same or higher wages than she did at the time of her accident her request for modification was denied. See K.S.A. 44–528(b). Ryder appealed the ALJ's determination to the Workers Compensation Board (the Board).
The Board's review of the ALJ decision is de novo. See K.S.A. 44–555c. The Board reversed the ALJ finding under K.S.A. 44–528(a) and ruled that Ryder's work disability had increased because once Ryder quit her job with Wheatlands and no longer had an income, she had a work disability as defined by K.S.A. 44–510e. The Board recognized the Kansas Supreme Court's decision in Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 609–10, 214 P.3d 676 (2009), stating that nothing in K.S.A. 44–510e requires an injured worker to make “a good-faith effort to seek out and accept alternate employment.” Furthermore, the Board found the ALJ denied Ryder's claim under K.S.A. 44–528(a) “because claimant was capable of earning the same or higher wages than she did at the time of the accident.” The Board correctly stated that this is not the correct application of K.S.A. 44–528(a).
Accordingly, the Board remanded the issue back to the ALJ to determine Ryder's work disability pursuant to K.S.A. 44–510e. Wheatlands timely appealed. The Board's decision is consistent with the statute and caselaw. “[I]f a claimant can meet the burden of proving a work disability, the claimant is not limited from doing so because the employee was first able to return to work at a comparable wage. ‘The presumption of no work disability set out in [K.S.A. 44–510e(a) ] may be applied as to one period of time and overcome as to a later period; for example, after an accommodated worker is laid off.’ “ See Messner v. Continental Plastic Containers, 48 Kan.App.2d 731, 747, 298 P.3d 371 (2013) (quoting Lee v. Boeing Co., 21 Kan.App.2d 365, Syl. ¶ 4, 899 P.2d 516 [1995] ).
We find that for the reasons stated by the Board, the Board correctly remanded this matter back to the ALJ to determine Ryder's work disability pursuant to K.S.A. 44–510e, and we affirm the Board's decision pursuant to Supreme Court Rule 7.042(b)(3) and (5) (2013 Kan. Ct. R. Annot. 64).