Opinion
No. 108,884.
2013-05-24
Lucy J. STERPENIG, Appellee, v. STATE of Kansas and State–Self Insurance Fund, Appellants.
Appeal from Workers Compensation Board. Bryce D. Benedict, legal counsel, Kansas Department of Health and Environment, for appellants. Cynthia J. Patton, of Patton and Patton, Chartered, of Topeka, for appellee.
Appeal from Workers Compensation Board.
Bryce D. Benedict, legal counsel, Kansas Department of Health and Environment, for appellants. Cynthia J. Patton, of Patton and Patton, Chartered, of Topeka, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
LEBEN, J.
Lucy Sterpenig suffered on-the-job injuries to both her knees, and an administrative law judge awarded her about $78,000 for the left-knee injury and about $71,000 for the right-knee injury. But the Workers Compensation Appeal Board applied a limit set out in a Kansas statute to the right-knee award, concluding that Sterpenig could only receive $50,000 for that injury. The Board did so based on this court's decision to apply this statutory limit in a similar case, Roberts v. Midwest Mineral, Inc., 41 Kan.App.2d 603, 611, 204 P.3d 1177 (2009), rev. denied 290 Kan. 1095 (2010).
Sterpenig's employer, the State of Kansas, has appealed, contending that the $50,000 limit should also apply to the left-knee award. But that limit applies only when the employee's recovery didn't include temporary-disability benefits, and Sterpenig received both temporary- and permanent-disability benefits for the left-knee injury. The State nonetheless argues for a different result, contending that the Roberts case was wrongly decided. But the Kansas Supreme Court approved the reasoning of Roberts in Redd v. Kansas Truck Center, 291 Kan. 176, 202, 239 P.3d 66 (2010), so we must adhere to Roberts. Accordingly, the higher $100,000 statutory limit applies to the left-knee award, and Sterpenig's left-knee award was less than the statutory limit.
Sterpenig has cross-appealed, contending that the lower limit shouldn't have been applied to the right-knee award because she also received temporary-disability benefits for that injury. But the record does not support her claim, and we cannot presume that she received temporary-disability benefits without any support in the record for that contention. We therefore affirm the Board's decision to limit the award for the right-knee injury, and we affirm the original award for the left-knee injury.
Factual and Procedural Background
Only a brief review of the facts is needed to allow us to address the legal issues in this appeal. Sterpenig slipped and fell on cement steps in August 2007, injuring both her knees. She had previous work-related injuries to her left ankle and right knee, but those are not directly involved in this appeal. In October 2007, Sterpenig had unicompartmental arthroplasty on her right knee. She had the same surgery on her left knee in May 2008.
The administrative law judge concluded that Sterpenig had a 75% permanent impairment to her left knee and a 70% permanent impairment to her right knee as a result of the 2007 accidental injury. For the left knee, the administrative law judge awarded $78,121.80, based on 12.71 weeks of temporary-total-disability compensation and 140.47 weeks of permanent-partial-disability compensation. For the right knee, the judge awarded $71,400, based on 140 weeks of permanent-partial-disability compensation and no temporary-total-disability payments. The judge made no mention of a possible $50,000 limit on compensation under K.S.A. 44–510f(a)(4).
Later, the Board reduced Sterpenig's right-knee award to $50,000 based on the statutory limit in K.S.A. 44–510f(a)(4) and our court's decision in Roberts. The Board approved the higher award for the left-knee injury.
The State appealed, contending that the $50,000 limit should also have been applied to the left-knee-injury award. Sterpenig cross-appealed, contending that the limit should not have been applied to the right-knee-injury award.
Analysis
The $50,000 statutory limit at issue here is found in K.S.A. 44–510f(a)(4), which was in effect at the time of Sterpenig's injury. That statute provides that “the maximum compensation benefits payable by an employer shall not exceed” $50,000 “for permanent partial disability, where functional impairment only is awarded.” A $100,000 limit generally applies “for permanent or temporary partial disability, including any prior temporary total, permanent total, temporary partial, or permanent partial disability payments.” K.S.A. 44–510f(a)(3). Different limits apply for “scheduled injuries” (like the loss of a limb), for which the statute provides a schedule making a specific award for each scheduled injury.
In Roberts, our court carefully reviewed the situations in which the $50,000 cap applies. When a worker's injury isn't a scheduled one and isn't totally disabling, the worker has a permanent-partial-general disability. 41 Kan.App.2d at 605. The awards in such cases are based on a “functional impairment,” defined in K.S.A. 44–510e as the percentage loss of the body's capabilities under the American Medical Association Guides to the Evaluation of Permanent Impairment. See Roberts, 41 Kan.App.2d at 605–06. Accordingly, our court held in Roberts that when a worker receives a permanent-partial-disability award (which is for functional impairment), the $50,000 limit applies when that is the only award being made for the injury. If the worker also receives a temporary-disability award, then the $50,000 limit—which applies “where functional impairment only is awarded” [K.S.A. 44–510f(a)(4) ]—doesn't apply. Roberts, 41 Kan.App.2d at 611. In such cases, the greater $100,000 limit of K.S.A. 44–510f(a)(3) applies. 41 Kan.App.2d at 611.
The Board has correctly applied Roberts, something the State concedes on appeal in its argument “that Roberts was wrongly decided.” But we are not free to second-guess our decision in Roberts because its analysis has since been approved by the Kansas Supreme Court in Redd:
“[T]he Roberts panel determined the term ‘functional impairment only’ means K.S.A. 44–510f(a)(4) is effective when the only award is for permanent partial disability. If the employee also receives a temporary total disability award, the panel concluded, the $50,000 limitation does not apply. [Citation omitted.]
“We find this interpretation consistent with the rules of statutory construction and the limited evidence of legislative history.... The best interpretation is to construe ‘functional impairment only’ to mean the injured worker received only a permanent partial disability and nothing else. Since Redd was awarded permanent partial disability and temporary total disability, Redd's award is subject to the $100,000 cap in K.S.A. 44–510f(a)(3), not the $50,000 limitation in K.S.A. 44–510f(a)(4).” Redd, 291 Kan. at 202.
For Sterpenig's left-knee injury, as was true in Redd (for a different unscheduled injury), Sterpenig received both a temporary-total-disability award and a permanent-partial-disability award. Under Roberts and Redd, the $100,000 cap in K.S.A. 44–510f(a)(3) applies to this award, and Sterpenig's award didn't exceed the cap. The Board did not err in awarding $78,121.80 for the left-knee injury.
Sterpenig separately appeals application of the $50,000 limit to her right-knee award. She contends that it's obvious that she couldn't have returned to work immediately after her right-knee surgery, so she says that temporary-total-disability benefits either must have been paid or, having not been paid, were properly due but unpaid. But she admits that she made no request in the administrative law proceedings for temporary-disability benefits for her right-knee injury. She also concedes that the record shows no payments having been made for temporary-disability benefits related to the right-knee injury.
The claimant in a workers'-compensation case has the burden to establish his or her right to a compensation award and to prove the various conditions upon which that right depends. Messner v. Continental Plastic Containers, 46 Kan.App.2d 731, 298 P.3d 371, 383 (2013). The Board properly noted this failure of proof on Sterpenig's part and the resulting application of the $50,000 cap: “[T]he record fails to show that claimant was paid temporary total disability compensation for the right leg injury, even though she had surgery on the right knee in October 2007. As such, her permanent partial disability compensation is limited to $50,000 under K.S.A. 44–510f(a)(4).” The Board did not err in applying the $50,000 cap to Sterpenig's right-knee-injury award.
The decision of the Workers Compensation Board is affirmed.