Opinion
No. 110,648.
2014-12-12
Kmberly STARKS, Appellant, U.S.D.308 and Hartford Fire Insurance Co., Appellees.
Appeal from Workers Compensation Board.Scott J. Mann, of Mann Law Offices, L.L.C., of Hutchinson, for appellant.P. Kelly Donley and Dallas L. Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellees.
Appeal from Workers Compensation Board.
Scott J. Mann, of Mann Law Offices, L.L.C., of Hutchinson, for appellant. P. Kelly Donley and Dallas L. Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellees.
Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
On appeal, Kimberly Starks contends the Workers Compensation Appeals Board (Board) erred, as a matter of law, when it determined she was not entitled to aggregate the wages she earned from each of her part-time employers, U.S.D. 308 and the Boys and Girls Club of Hutchinson, Kansas (Boys and Girls Club), for the purpose of computing her benefits.
The Board determined a claimant is only entitled to take advantage of the aggregation provision provided in K.S.A.2010 Supp. 44–511(b)(7) if the injury arose out of and in the course of all of the claimant's multiple employments. Consequently, the Board concluded that Starks could not aggregate her wages because her injury only arose out of and in the course of her employment with U.S.D. 308. Based upon our conclusion that Kinder v. Murray & Sons Constr. Co., 264 Kan. 484, 957 P.2d 488 (1998), remains good law, we reverse the Board's decision and remand with directions.
Factual and Procedural Background
Sometime in 2008, Starks began working for U.S.D. 308 as a part-time, substitute teacher. After about 3 months, U.S.D. 308 assigned Starks to a part-time teacher's assistant/bus aide position for the Head Start Program at South Hutchinson Elementary School, which involved working with children between the ages of 3 and 5. Starks earned $226.68 per week for her services.
In conjunction with her employment for U.S.D. 308, Starks also worked part-time at the Boys and Girls Club, as both site director/head vision leader for the Lincoln Elementary after school program and coordinator/director for the Keystone Club, a community service/leadership development club for teenagers in middle and high school. Starks earned one wage at the Boys and Girls Club for both of these positions; her average weekly wage was $346.15.
On April 28, 2010, Starks sustained an injury to her back arising out of and in the course of her employment with U.S.D. 308 when she fell down a flight of stairs.
Dr. Sandra Barrett diagnosed Starks with chronic myofascial low back pain, and based upon the Fourth Edition of the American Medical Association Guides (Guides), Dr. Barrett assessed Starks with a whole person impairment of 5%. Dr. Barrett further opined that Starks had a task loss of 56.5%, based on her review of a list of the job tasks Starks performed in the 15 years preceding her accident. Starks and Steve Benjamin, a vocational rehabilitation counselor, compiled the list of job tasks. But when Dr. Barrett reviewed a task list compiled by Starks and Robert Barnett, Ph.D., a clinical psychologist, she determined that Starks had a task loss of 77%.
Dr. Paul Stein also evaluated Starks, at the request of her attorney. Dr. Stein diagnosed Starks with a soft tissue injury to the left flank with persistent pain from the left midthoracic region down to the lumbar spine. Utilizing the Guides, Dr. Stein assessed Starks with a 5% impairment to the body as a whole. Based upon his review of the task list prepared by Starks and Barnett, Dr. Stein opined that Starks had a 73% task loss.
Although U.S.D. 308 terminated Starks in August 2011, she has continued working for the Boys and Girls Club. While Starks no longer acts as site director for the Lincoln Elementary after school program because due to her work restrictions she can no longer perform the requirements of this position, her salary has remained unchanged.
The Division of Workers Compensation held a regular hearing on September 11, 2012. Based on the parties' stipulations, the main issues before the administrative law judge (ALJ) involved the nature and extent of Starks' disability and the determination of her average weekly wage, i.e., whether Starks was entitled to take advantage of K.S.A.2010 Supp. 44–511(b)(7). On April 15, 2013, the ALJ found that because Starks performed the same or similar work for both her part-time employers, she was eligible for wage aggregation under K.S.A.2010 Supp. 44–511(b)(7). Accordingly, the ALJ determined that Starks' average weekly wage was $572.83 ($226.68 + $346.15). The ALJ further found that Starks suffered a 5% functional impairment to the body as a whole, a 66.75% task loss, and a 39.5% wage loss (derived from the loss of income associated with Stark's employment by U.S.D. 308 divided by her total income). The ALJ awarded Starks benefits based on a 53% work disability, i.e., “5.29 weeks of temporary total disability compensation at the rate of $381.91 per week in the sum of $2,020.30 plus 149.42 weeks of permanent partial disability compensation at the rate of $381.91 per week in the sum of $57,064.99 for a total due and owing of $59,085.29.”
U.S.D. 308 filed a timely application for review by the Board. In particular, the school district argued the ALJ erred in his determination of Starks' average weekly wage. U.S.D. 308 contended that Starks was not entitled to aggregate her wages under K.S.A.2010 Supp. 44–511(b)(7). In particular, the school district noted that Starks did not perform the same or very similar type of work for each of her part-time employers. According to U.S.D. 308, Starks' multiple employment was not the same or substantially similar because her employment as a teacher's assistant/bus aide was a subservient position and her positions at the Boys and Girls Club were managerial in nature. Consequently, the U.S.D. 308 claimed that Starks was not entitled to compensation in excess of her percentage of functional impairment because she was earning at least 90% of her pre-injury wage due to her continued employment with the Boys and Girls Club. See K.S.A. 44–510e(a).
On September 23, 2013, the Board issued its order. A majority of three members reversed the ALJ's finding that Starks' average weekly wage should include the wages she earned from both of her part-time employers pursuant to K.S.A.2010 Supp. 44–511(b)(7). The majority acknowledged that under Kinder, Kansas courts have historically “found that single traumatic injuries suffered by an individual engaged in multiple part-time employment of the same or very similar nature require the combination of wages earned from both employers.” The majority determined, however, that this interpretation of K.S.A.2010 Supp. 44–511(b)(7) not only conflicted with the plain language of the statute, it relied on the now disfavored judicially created concept that the Workers Compensation Act (Act) must be interpreted liberally in favor of the claimant.
According to the majority, in Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009), and Casco v. Armour Swift–Eckrich, 283 Kan. 508, 154 P.3d 494 (2007), our Supreme Court shifted its construction of the Act from “liberal to literal,” and utilizing a literal interpretation, K.S.A.2010 Supp. 44–511(b)(7) carries the following meaning:
“In order to receive the benefit of the combined wages of multiple employers, K.S.A. [2010] Supp. 44–511(b)(7) requires a worker to sustain an injury by accident arising out of and in the course of multiple employment. It is impossible for a single traumatic injury to arise out of multiple employment. Based upon the plain language of the statute, only an injury by repetitive trauma can arise out of multiple employment.” (Emphasis added.)
The majority concluded that Starks' average weekly wage was limited to her employment with U.S.D. 308, and, therefore, she was not entitled to a work disability award under K.S.A. 44–510e(a) because she did not suffer a wage loss greater than 10%. The Board determined Starks was entitled to “5.29 weeks of temporary total disability compensation at the rate of $151.13 per week or $799.48 followed by 20.75 weeks of permanent partial disability compensation at the rate of $151.13 per week or $3,135.95 for a 5 percent work disability, making a total award of $3,935.43.”
The remaining Board member wrote a dissenting opinion disagreeing with the majority's interpretation of K.S.A.2010 Supp. 44–511(b)(7). In the dissent's opinion, the majority's ruling would have “a chilling effect by limiting dramatically the average weekly wage and thus the permanent partial disability benefits of virtually all injured workers with multiple employments.”
Starks filed a timely petition for judicial review.
Discussion
On appeal, Starks contends the Board erred, as a matter of law, when it deviated from our Supreme Court's interpretation of K.S.A.2010 Supp. 44–511(b)(7) provided in Kinder. Although U.S.D. 308 acknowledges that we are duty bound to follow Supreme Court precedent absent some indication the court is departing from its previous position, the school district urges us to uphold the Board's interpretation because it asserts Kinder is no longer good law, and it is not applicable to this case. See Anderson Office Supply v. Advanced Medical Assocs., 47 Kan.App.2d 140, 161, 273 P.3d 786 (2012).
In order to resolve this issue, we must interpret K.S.A.2010 Supp. 44–511(b)(7). We exercise unlimited review over questions involving the interpretation or construction of a statute, owing “ ‘[n]o significant deference’ “ to the Board'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); see also Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013) (“the doctrine of operative construction ... has been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books where it will never again affect the outcome of an appeal”).
The most fundamental rule of statutory construction is the legislature's intent governs if that intent can be ascertained. Bergstrom, 289 Kan. at 607. When interpreting a statute, we must first attempt to “ascertain the legislature's intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). Where there is no ambiguity in the statutory language, we need not resort to statutory construction; appellate courts do not speculate as to legislative intent and will not read into a statute something not readily found therein. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271–72, 202 P.3d 7 (2009).
A claimant is entitled to workers compensation benefits if he or she suffered “personal injury by accident arising out of and in the course of [his or her] employment.” (Emphasis added.) K.S.A.2010 Supp. 44–501(a). The phrases “ ‘arising ‘out of” and “ “in the course of” have “ ‘separate and distinct meanings,’ “ and each of these conditions must exist in order for a claim to be compensable. Rinke v. Bank of America, 282 Kan. 746, 752, 148 P.3d 553 (2006).
An accidental injury arises out of employment when there is a “ ‘causal connection[,] ... apparent to the rational mind, upon consideration of all the circumstances, ... between the conditions under which the work is required to be performed and the resulting injury.’ “ 282 Kan. at 752. In other words, the injury “ ‘arises out of the nature, conditions, obligations, and incidents of the employment.’ “ 282 Kan. at 752. The phrase in the course of employment, on the other hand, “ ‘relates to the time, place, and circumstances under which the accident occurred and means the injury happened while the worker was at work in the employer's service.’ [Citations omitted.]” 282 Kan. at 752.
K.S.A.2010 Supp. 44–511(b) governs the calculation of an employee's average weekly wage, and with respect to multiple employment situations, the statute provides, in pertinent part:
“(7) The average gross weekly wage of an employee who sustains an injury by accident arising out of and in the course of multiple employment, in which such employee performs the same or a very similar type of work on a part-time basis for each of two or more employers, shall be the total average gross weekly wage of such employee paid by all the employers in such multiple employment.” (Emphasis added.)
As explained earlier, a majority of the Board determined that a claimant is only entitled to take advantage of K.S.A.2010 Supp. 44–511(b)(7) if the injury arose out of and in the course of all of the claimant's multiple employments. In reaching this conclusion, the majority explicitly disapproved of our Supreme Court's holding to the contrary in Kinder. See Kinder, 264 Kan. at 489–95.
In Kinder, James Kinder filed a workers compensation claim against Murray & Sons Construction Company, Inc. (Murray & Sons) after he injured his knee in the course of a concrete finishing job. Kinder was a cement mason, and in the 26 weeks preceding his injury, he had worked as a concrete finisher on several different jobs sites for numerous employers, as “ ‘[d]ifferent construction companies would contact him and tell him they had a job, and, upon accepting a job[,] ... he would just work until the job was finished.’ “ 264 Kan. at 485. Kinder's jobs typically lasted 1 or 2 days, he customarily worked for only one company per day, and he received hourly remuneration, although the rates varied from $13.10 to $14.25, depending on the employer. Although Kinder worked for at least 10 employers in the 26 weeks preceding his injury, Murray & Sons was his only employer on the date of the injury.
The ALJ found that because Kinder was not concurrently employed with any other company, he was not engaged in multiple employment within the meaning of K.S.A. 44–511(b)(7), which contained language identical to the version at issue in this case. See 264 Kan. at 485–89; K.S.A.2010 Supp. 44–511(b)(7). As a result, the ALJ computed Kinder's average weekly wage by determining how much he earned from Murray & Sons during the 26 weeks preceding his accident and dividing this sum by the number of weeks Kinder worked for Murray & Sons during this period.
Upon review, the Board affirmed the ALJ's reasoning:
“ ‘Although the evidence in this case established that the claimant had worked for various employers prior to the date of accident, the Appeals Board finds that on the date of accident he was only employed by one employer, the respondent. Accordingly, since the claimant's accidental injury did not arise out of and in the course of multiple employment, his average weekly wage should be based only on his employment with the respondent.’ “ 264 Kan. at 488–89.
Kinder appealed to our court asserting that he was entitled to aggregate all of the wages he earned from his various employers in the 26 weeks preceding his injury because he was a part-time hourly employee engaged in multiple employment under K.S.A. 44–511(b)(7). Our court agreed with the Board's reasoning: “ ‘K.S.A. 44–511(b)(7) states that the injury occurs “in the course of multiple employment .” ... [T]his means that when the worker was injured he or she was “in an employer-employee relationship” with more than one employer,’ “ i.e., the employee's part-time employment relationships must all be in force at the time of the accident. 264 Kan. at 489–90.
On appeal before our Supreme Court, the Appellees' argument went even further:
“Where the Court of Appeals would aggregate wages of a worker under contract with more than one employer but performing services for only one employer at the time of the injury, appellees would aggregate wages only if the injury occurred while a worker was performing work for more than one employer.” 264 Kan. at 493.
Our Supreme Court began its analysis by quoting the Court of Appeals' discussion of the legislative history of the “multiple employment provision”:
“ ‘The first Kansas Workers Compensation Act, enacted in 1911, was modeled after the British Act and included the following language:
“ ‘ “( b ) Where the workman had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his ‘earnings' and his ‘average earnings' shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident.’ “ [ Wade v. Union Nat'l Bank, 10 Kan.App.2d 645, 647, 707 P.2d 1087, rev. denied 238 Kan. 879 (1985) ] (quoting Walters v. Greenland Drilling Co., 184 Kan. 157, 159, 334 P.2d 394 [1959] ).
“ ‘This section was eventually numbered section 44–511 in the Revised Statutes of 1923 and has retained that designation to the present time. [Citations omitted.]
“ ‘In 1933, the legislature amended section 44–511 by removing the wage aggregation provisions taken from the British Act and by providing that average weekly wage would be based only on those wages earned from the employer in whose service the employee was acting at the time of his injury. [Citation omitted.]
“ ‘However, during a general overhaul of the Kansas workers compensation system in 1974, K.S.A. 44–511 was amended to include, among other things, the current language of K.S.A. 44–511(b)(7), which allows for wage aggregation in certain cases. [Citation omitted.]
“ ‘After noting the above history, the court in Wade determined that K.S.A. 44–511(b)(7) did not apply to full-time workers who also hold one or more part-time jobs, stating:
“ ‘Initially, we note that when the legislature, in 1911, intended aggregation of all wages in all multiple employment cases, it clearly knew how to and did say so. After later deleting this provision entirely [in 1933], the 1974 legislative body reinstated the aggregation clause, but only for those workers employed by two or more employers ‘ on a part time basis.’
“ ‘Additionally, our independent research of the legislative history of K.S.A. 44–511(b)(7) reveals the following notation in the October 17, 1973, minutes of the committee which recommended its passage:
“ “[The subsection provides that] a worker who is employed by more than one employer but in similar type work be compensated to reflect his average work week and not the number of hours of just one employer. ( Specific exception was made for anyone considered moonlighting.)” Emphasis added.' [Citation omitted.]
“ ‘The Wade court then held that the multiple employment wage aggregation authorized under K.S.A. 44–511(b)(7) applies only to workers employed exclusively in part-time employments of a similar nature. [Citation omitted.]’ “ 264 Kan. at 489–90.
Our Supreme Court then explained that this court's interpretation of K.S.A. 44–511(b)(7) “fail[ed] to provide an accurate match between Kinder's compensation and his employment circumstances.” 264 Kan. at 491. Specifically, under the Court of Appeals' “unduly narrow construction,” the inherently full-time nature of Kinder's work “count[ed] for nothing,” a circumstance which eradicated “[t]he goal of restoring to him some semblance of the earning power he lost as a result of his injury.” 264 Kan. at 491.
After articulating the rules of statutory construction which governed its interpretation of K.S.A. 44–511(b)(7), the Supreme Court concluded that an employee is engaged in “multiple employment” under K.S.A. 44–511(b)(7) if he or she performs “the same or similar work on a part-time basis” for one or more employers. 264 Kan. at 494. The Supreme Court explained that the Court of Appeals' extra qualification that the employee be under contract with more than one employer at the time of the injury did not comport with the plain language of the statute; by deleting the word “ ‘concurrent,’ “ our legislature evidenced its intent to change the law as it existed prior to the amendment. 264 Kan. at 494–95. Accordingly, our Supreme Court held that Kinder was engaged in multiple employment under K.S.A. 44–511(b)(7) and, thus, the ALJ erred in determining his gross weekly wage for the purpose of computing his compensation award. 264 Kan. at 495.
At the outset, U.S.D. 308 asserts that Kinder is not binding precedent because the Kinder court did not explicitly interpret the portion of K.S.A.2010 Supp. 44–511(b)(7) at issue in this case, i.e., the phrase “an employee who sustains an injury by accident arising out of and in the course of multiple employment.” U.S.D. 308 argues that the Kinder court “focused on whether a claimant had to be in two or more employee-employer relationships at the same time.”
We are persuaded that U.S.D.'s argument is based on a distinction without a difference. Kinder obviously would not have been eligible for wage aggregation under the Board's interpretation of K.S.A.2010 Supp. 44–511(b)(7) because he was only employed by a single employer at the time of his accident. In other words, it would have been impossible for Kinder's injury to have arisen out of and in the course of all of his part-time employments because he only had an employer-employee relationship with Murray & Sons on the date he sustained his injury. See Kinder v. Murray & Sons Constr. Co., 264 Kan. 484, 485, 488, 957 P.2d 488 (1998).
Moreover, the following passage demonstrates that our Supreme Court's interpretation of K.S.A. 44–511(b)(7) did encompass the portion of the statute at issue in the case now on appeal:
“With respect to who is eligible for wage aggregation, the statute identifies a part-time employee who performs the same or similar work for more than one employer. Kinder fits that category. With respect to eligibility for benefits, the statute provides that the employee's injury be the result of accident arising out of and in the course of multiple employment. The statute reasonably can be read to define multiple employment as employment for one or more employers in which the employee performs the same or similar work on a part-time basis for each. The Court of Appeals required the extra burden of qualification—that the employee be under contract with more than one employer at the time of the injury. That interpretation requires the reader to derive a definition of multiple employment from the words that precede the phrase rather than from the dependent clause that follows it. In other words, it would define ‘multiple employment’ as some form of employment out of which the injury arose and it would condition eligibility for wage aggregation on the multiple employment requiring the same or similar work.” (Emphasis added.) 264 Kan. at 494–95.
Alternatively, U.S.D. 308 claims that Kinder is no longer good law because the Kinder court utilized an impermissible standard of review which has been rejected by subsequent appellate decisions. Similarly, the Board majority found that it was not required to follow Kinder because our Supreme Court relied on the now disfavored precedent that the Act must be interpreted liberally in favor of the claimant. The majority explained that in 1987, our legislature expressed its intention to stop construing the Act in such a manner when it enacted K.S.A.2010 Supp. 44–501(g), which states:
“ ‘It is the intent of the legislature that the workers compensation act shall be liberally construed for the purpose of bringing employers and employees within the provisions of the act to provide the protections of the workers compensation act to both. The provisions of the workers compensation act shall be applied impartially to both employers and employees in cases arising thereunder.’ “
According to the majority, our Supreme Court—in Bergstrom and Casco—subsequently shifted its construction of the Act from “liberal to literal,” and in doing so, the court departed from its holding in Kinder.
Before interpreting K.S.A. 44–511(b)(7), the Kinder court outlined the applicable standards of review:
“ ‘The goal of workers' compensation is to restore earning power lost as a result of injury. [Citations omitted.]’ In furtherance of that goal, this court has long adhered to a rule of liberally construing the workers compensation act in favor of the worker. A 1939 opinion contains this statement: ‘[T]his court has frequently said that the workmen's compensation act should be liberally construed to effectuate its purposes. [Citations omitted.]’ More recently, in Nordstrom v. City of Topeka, 228 Kan. 336, 613 P.2d 1371 (1980), this court stated:
“The court is firmly committed to the rule of liberal construction of the workmen's compensation act in order to award compensation to the workman when it is reasonably possible to do so.' [Citation omitted.]
“ ‘When a workmen's compensation statute is subject to more than one interpretation, it must be construed in favor of the workman if such construction is compatible with legislative intent.’ [Citation omitted.] “In interpreting a statute, the fundamental rule is the intent of the legislature, where it can be ascertained, governs. When a statute is plain and unambiguous, we will not speculate as to the legislative intent behind it or read such statute so as to add something not readily found in the statute. [Citation omitted.] ‘When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.’ [Citation omitted.]
“Bearing in mind these construction rules and the principle that the award ought to approximate the injured worker's earning power, which was impaired because of the injury, we turn to the pertinent portion of the statute.” (Emphasis added.) Kinder, 264 Kan. at 493–94.
Prior to 1987, “case law ... required courts to tilt somewhat in favor of the employee: to ‘liberally construe the workers compensation statutes to award compensation to the worker where it was reasonably possible to do so.’ [Citations omitted.]” Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 195, 62 P.3d 236 (2003). As the Board majority points out, however, our legislature altered the liberal construction rule in 1987 when it added subsection (g) to K.S.A.2010 Supp. 44–501. See Nguyen v. IBP, Inc., 266 Kan. 580, 582, 972 P.2d 747 (1999). Nevertheless, while, at first glance, it may appear the Kinder court applied the liberal construction rule, upon closer inspection, this is not the case.
While the Kinder court may have considered liberally construing K.S.A. 44–511(b)(7) in a manner favorable to Kinder, its actual interpretation of the statute suggests otherwise. First, although the Kinder court recited all of the standard rules of statutory construction, it premised its interpretation of K.S.A. 44–511(b)(7) solely upon the plain language of the statute. 264 Kan. at 494. Indeed, immediately after reciting the standards of review, the court stated: “We find no reason to go beyond a plain reading of [K.S.A. 44–511(b)(7) ] to determine its meaning.” 264 Kan. at 494. Only recently, our Supreme Court noted that where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction. Cady v. Schroll, 298 Kan. 731, 739, 317 P.3d 90 (2014). Our Supreme Court's plain reading of K .S.A. 44–511(b)(7) in Kinder necessarily obviated any reason to employ a liberal construction to the statute.
Second, assuming our Supreme Court's analysis did venture beyond the plain language of the statute, the court's interpretation relied on “the principle that the award ought to approximate the injured worker's earning power.” Kinder, 264 Kan. at 494. In fact, our Supreme Court strove to read K.S.A. 44–511(b)(7) in a manner that would best effectuate this principle:
“The key to the Court of Appeals' rationale lies in its view that ‘K.S.A. 44–511(b)(7) states that the injury occurs ‘in the course of multiple employment.’ To the Court of Appeals, this means that when the worker was injured he or she was ‘in an employer-employee relationship’ with more than one employer. In other words, the worker must have an existing employment contract with each employer to qualify for benefits under 44–511(b)(7).
“Under this reasoning, a gardener who contracted with five different corporations to provide lawn care on a regular 1–day–a–week basis would be ‘in an employer-employee relationship’ with more than one employer. Thus, if injured while working at Corporation A on Monday, the gardener would be eligible for wage aggregation under the multiple employment provision. Even though he was not performing work for Corporations B through E at the time when the injury occurred, the wages they have paid the gardener in the 26 weeks preceding the injury would be included in computing his average gross weekly wage (and, hence, compensation benefits), and Corporations B through E each would be liable to pay a proportionate amount of the compensation under K.S.A. 44–503a. This method of computing the worker's compensation and of apportioning the liability among the worker's employers accurately reflects the inherently full-time nature of the worker's work and the worker's status as a part-time worker with each of several employers.
“The Court of Appeals' rationale and conclusion fail to provide an accurate match between Kinder's compensation and his employment circumstances. Because he worked on an as-needed basis for multiple employers rather than on a contractual basis, on any given day he was ‘in an employer-employee relationship’ with no more than one employer. Thus, under the Court of Appeals' interpretation of the statute, the inherently full-time nature of his work counts for nothing when he is injured. The goal of restoring to him some semblance of the earning power he lost as a result of injury is lost in this unduly narrow construction.” (Emphasis added.) 264 Kan. at 490–91.
This principle, important to our Supreme Court's holding in Kinder remains good law, as a panel of this court in Gustin v. Payless Shoesource, Inc., 46 Kan.App.2d 87, Syl. ¶ 5, 257 P.3d 1277 (2011), stated: “The purpose of our workers compensation law is not to compensate the worker for an injury but to compensate the worker in a way for any resulting loss of earning power.” See also Decker & Mattison Co. v. Wilson, 273 Kan. 402, 409, 44 P.3d 341 (2002) (Citing Kinder, 264 Kan. at 493, our Supreme Court stated: “The purpose of our own workers compensation law is to restore earning power lost as a result of injury.”).
In conclusion, we are duty bound to follow precedent from our Supreme Court absent some indication the court is departing from its previous position. Anderson Office Supply v. Advanced Medical Assocs., 47 Kan.App.2d 140, 161, 273 P.3d 786 (2012). U.S.D. 308 has presented no persuasive evidence of a departure, and we are aware of none. Accordingly, we reverse the Board's order rejecting Kinder's precedent and the Board's mistaken finding that K.S.A.2010 Supp. 44–511(b)(7) cannot apply to the facts of this case.
Our holding does not fully resolve this matter, however. The Board limited its order to its interpretation of the statute. The Board did not address U.S.D. 308's other contention that Starks was not engaged in “multiple employment” because she did not perform “the same or similar work” for each of her employers. See Kinder, 264 Kan. at 494. The particular issue of whether or not Starks was performing “the same or similar work” for each of her employers remains unresolved. Accordingly, we remand that specific issue to the Board for further proceedings.
Reversed and remanded with directions.