Opinion
No. 108,223.
2013-09-13
Tamera K. BARKER, Appellee, v. GRACE, UNRUH & PRATT; Continental Western Insurance; Hawkeye Security Insurance, n/k/a Onebeacon Insurance Company; and Kemper Insurance, n/k/a Broadspire, Appellees, and Law Offices Of Brian G. Grace, and Travelers Casualty Insurance, Appellants.
Appeal from Workers Compensation Board. William L. Townsley, III, and Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C, of Wichita, for appellants Law Offices of Brian G. Grace and Travelers Casualty Insurance. James B. Zongker, of Hammond, Zongker & Farris, L.L.C., of Wichita, and Randall E. Fisher, of Law Office of Randall E. Fisher, of Wichita, for appellee Tamera K. Barker.
Appeal from Workers Compensation Board.
William L. Townsley, III, and Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C, of Wichita, for appellants Law Offices of Brian G. Grace and Travelers Casualty Insurance. James B. Zongker, of Hammond, Zongker & Farris, L.L.C., of Wichita, and Randall E. Fisher, of Law Office of Randall E. Fisher, of Wichita, for appellee Tamera K. Barker.
Kendall R. Cunningham, of Gilliland & Hayes, P.A., of Wichita, for appellees Grace, Unruh & Pratt and Hawkeye Security, n/k/a OneBeacon Insurance Company.
Kirby A. Vernon, of Law Office of Kirby A. Vernon, L.L.C, of Wichita, for appellees Grace, Unruh & Pratt and Continental Western Insurance.
Matthew J. Schaefer and Dallas L. Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellees Grace, Unruh & Pratt and Kemper Insurance, n/k/a Boardspire.
Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The Law Offices of Brian G. Grace (Grace) and Travelers Casualty Insurance (Travelers) appeal the decision of the Workers Compensation Board (the Board), which determined that Tamera K. Barker's repetitive use injuries occurred in two separate accidents and that Grace and Travelers were liable for the second injury. Specifically, Grace and Travelers argue that there was only one accident date which preceded Barker's employment with Grace and the Board erred when it determined that there were two—one accident date before Barker was employed by Grace and one accident date during her employment with Grace. Because we find that the Board's decision that there were two separate accident dates was supported by our review of the entire record and because its legal conclusion regarding the respective dates of the accidents was legally sound, Grace and Travelers' claim fails.
As a counter argument, Grace and Travelers contend that if the Board was correct when it determined that there were two accident dates, it miscalculated the award when it failed to apply a credit for Barker's preexisting impairment, exceeded the statutory maximum for a single injury, and failed to reduce the award based on overlapping weeks of payment. Because we find that the Board failed to appropriately credit Grace for the 34 percent preexisting injury, we reverse the Board's award and remand the case for recalculation.
Factual and Procedural History
Barker was a senior legal assistant employed by Grace, Unruh & Pratt (GUP) when she filed her first application for hearing with the Division of Workers Compensation claiming that her left wrist and right elbow were injured by repetitive computer input and her dates of accident were from July 1, 1999, to July 27, 1999. Barker testified that the pain, primarily in her right arm, was brought on when she performed approximately 8 hours of constant typing. She reported the pain and was seen by several doctors. Her injuries are undisputed.
In 2005, GUP dissolved its law practice and Grace, the GUP lawyer Barker had been working with at GUP, created his own law firm, and Barker went to work for him as his legal assistant. Because she was training the staff at Grace's new law firm, she became a “jack-of-all-trades” and her physical work increased. Her pain continued to increase during her time with Grace. Eventually, Barker was Grace's sole employee and she did all of the work. Grace retired, and July 31, 2008, was Barker's last day to work for him. In late 2008, Barker got a job with Martin Pringle as a paralegal. In April 2009, Barker was terminated from her position at Martin Pringle because she was not performing her job to their satisfaction. There is no allegation that she was terminated related to her inability to do certain tasks because of her preexisting injuries.
Several insurance companies represented GUP and are part of this lawsuit, but their coverage is not specifically at issue in this appeal, even though they have all taken an active role in the litigation. Travelers covered Grace from March 1, 2005, through Barker's last day of work. Therefore, the interests of Travelers and Grace are aligned.
Suffice it to say, and all of the parties agree, that Barker's condition worsened from 1999 to 2008. In addition, she was told to reduce her work to 3 days a week and had several surgeries to attempt to alleviate the pain.
Barker has continued to file requests for hearing, under the same case number, as her condition worsened and with each request she included additional accident dates to bring her claim up to date. In her last filing, on October 24, 2008, Barker added additional accident dates from June 7, 2007, to July 31, 2008. These accident dates were for bodily injury from repetitive work activities that occurred during her employment with GUP and then with Grace.
As to her level of impairment, in May 2003 Dr. Pedro Murati evaluated Barker and assessed her at a 19 percent whole person impairment. In September 2004, Dr. Murati evaluated Barker again and assessed her at a 19 percent whole person impairment. However, the 2003 and the 2004 impairments should have been combined as a 34 percent whole person impairment. (We note that although combining 19 and 19 would appear to result in a 38 percent combined impairment, none of the parties contest that the proper combined rating in 2004 was 34 percent.) In 2006, Dr. Murati again evaluated Barker and assessed her at a 43 percent whole person impairment. In October 2008, Dr. Murati evaluated Barker again and assessed her at a 45 percent whole person impairment. Dr. Murati testified that throughout the time that he evaluated Barker she had become progressively worse and that her condition was caused by the work she was doing.
In 2011, the case was finally submitted for review, and the administrative law judge (ALJ) entered an award for Barker. The ALJ found that Barker's accident date was July 31, 2008, the last day that Barker worked for Grace. In addition, the ALJ found that Barker had a 93.5 percent work disability and assessed an award based on that percentage against Grace and Travelers. Moreover, the ALJ ordered Grace and Travelers to cover all of Barker's future medical costs.
Grace and Travelers filed a timely request for review of the ALJ's award order with the Board.
The Board found that two accident dates applied in Barker's case. The first accident date occurred on February 28, 2005, as the last date that Barker worked for GUP. The second accident date—statutorily created by K.S.A.2005 Supp. 44–508(d)—occurred on June 8, 2007, while Barker was working for Grace, which was the date that she filed her application for hearing with the Division of Workers Compensation including Grace as her employer.
The Board proceeded to award Barker a permanent partial whole person functional impairment of 45 percent for the time she worked for Grace, minus Barker's preexisting whole person functional impairment of 34 percent. However, when calculating Barker's award, the Board stated: “Thereafter claimant is awarded a permanent partial whole person functional impairment of 45 percent for the time she worked for Grace.” There is no indication that the Board subtracted Barker's whole person functional impairment of 34 percent as it said it would earlier in the order.
Grace and Travelers filed a timely appeal of the Board's decision. We note that no party challenges the impairment ratings or medical evidence on appeal. The primary issue on appeal, as stated by Grace and Travelers, is “whether the Board correctly divided a single repetitive use claim into two injuries which it then separately compensated.” They also raise a secondary issue, if unsuccessful on the first, of whether the Board actually calculated the award correctly.
Analysis
Standard of Review
An appellate court reviews a challenge to the Board's factual findings in light of the record as a whole to determine whether the findings are supported to the appropriate standard of proof by substantial evidence. See K.S.A.2012 Supp. 77–621(c)(7). “ ‘[I]n light of the record as a whole’ “ is statutorily defined as meaning
“that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77–620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency's explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review.” K.S.A.2012 Supp. 77–621(d).
Although not statutorily defined, “substantial evidence” refers to “evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis of fact from which the issue raised could be easily resolved.” Redd v. Kansas Truck Center, 291 Kan. 176, 183–84, 239 P.3d 66 (2010).
When an appellant alleges the Board erroneously applied the law to undisputed facts, an appellate court has de novo review of the issue. Tyler v. Goodyear Tire & Rubber Co., 43 Kan.App.2d 386, 388, 224 P.3d 1197 (2010); see generally K.S.A.2012 Supp. 77–621(c)(4) (court has authority to grant relief if agency has erroneously interpreted or applied the law). Likewise, the interpretation of statutory provisions in the Workers Compensation Act is a question of law over which this court has unlimited review. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P .3d 676 (2009).
“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. The court will not speculate on legislative intent and will not read the statute to add something not readily found in it. If the statutory language is clear, no need exists to resort to statutory construction. [Citation omitted.]” 289 Kan. at 607–08.
Under the unique facts of this case, the Board did not err in finding that there were two distinct accident dates.
Grace and Travelers argue that, as a matter of law, the Board erred in creating two accident dates in the case of a repetitive use injury.
“Whether successive injuries are merely the direct natural consequences of a primary injury or whether such injuries constitute independent and distinct injuries contributing to a work disability is a question of fact.” Smith v. Rossville Valley Manor, 37 Kan.App.2d 501, 507, 154 P.3d 1114 (2007); see also Casco v. Armour Swift–Eckrich, 283 Kan. 508, 516, 154 P.3d 494 (2007) (whether an injury results from a new and separate accident depends on the facts in each case). Accordingly, under our standard of review, we review all the evidence in the record to determine if the Board's factual finding that there were two distinct injuries is supported by substantial competent evidence.
In order for the Board to establish two accident dates, it would necessarily have to believe that two distinct accidents had occurred and that Barker's injuries suffered while working for Grace constituted an independent and distinct injury from her primary injury that occurred while working for GUP. It clearly made such a finding.
The Board pointed to Dr. Murati's testimony that although Barker's problems related back to 1999, her condition worsened during her time working for Grace. The Board concluded that Barker's “employment with Grace caused a worsening of her physical injuries above and beyond the injuries suffered while working for [GUP].” In support, it noted that Grace had work restrictions while she worked for GUP and adhered to those restrictions. Although Barker had no additional work restrictions while she worked for Grace, she was not able to adhere to them due to the limited staff in the office. The Board found the testimony of Drs. Murati and Koprivica that Barker's condition worsened while working for Grace to be the most credible and persuasive. We find that these findings are supported in the record.
Barker herself testified that once she was “doing the whole office” for Grace her condition worsened. Dr. Koprivica concluded that Barker's condition was intensified when she worked for Grace due to an increase in responsibilities. Dr. Murati testified that he had seen Barker and rated her impairment as many times if not more times than anyone else in his forensic history. At the time she left employment with GUP, he had rated her as having a 34 percent permanent impairment. After working for a period of time for Grace, Dr. Murati found her impairment rating had increased to 43 percent and later to 45 percent. This was due to the repetitive nature of her job duties with Grace. He testified that during her time with Grace, she had increased pain and increased left radial nerve injury.
Accordingly, we have thoroughly reviewed the record and although there is some evidence that would support a contrary finding, there was nevertheless substantial competent evidence to which the Board gave credence which warrants the Board's finding that, based on the unique circumstances of this case, there were two separate accidents.
The Board did not err in its legal conclusion regarding the dates of the accidents.
Although the determination that there was more than one accident is a factual one, the date of accident for a repetitive use injury is inherently artificial and is a legal question rather than a factual determination, Saylor v. Westar Energy, Inc., 292 Kan. 610, 615, 256 P.3d 828 (2011). In workers compensation cases, the statute in effect at the time of the claimant's injury governs the rights and obligations of the parties. See Matney v. Matney Chiropractic Clinic, 268 Kan. 336, 339, 995 P.2d 871 (2000) (declining to apply an amended workers compensation statute because the injury predated the amendment). Accordingly, we begin by examining the statutory provisions in effect at the time of each injury.
In February 2005, when the Board determined that Barker's first accident date occurred, Kansas had a judicially created bright-line rule to determine the date of accident in repetitive use injury cases.
“Because of the complexities of determining the date of injury in a repetitive use injury, a carpal tunnel syndrome, or a micro-trauma case that is the direct result of a claimant's continued pain and suffering, the process is simplified and made more certain if the date from which compensation flows is the last date that a claimant performs services or work for his or her employer or is unable to continue a particular job and moves to an accommodated position.”
“Where an accommodated position is offered and accepted that is not substantially the same as the previous position the claimant occupied, the date of accident or occurrence in a repetitive use injury, a carpal tunnel syndrome, or a micro-trauma case is the last day the claimant performed the earlier work tasks.” Treaster v. Dillon Companies, Inc., 267 Kan. 610, Syl. ¶¶ 3, 4, 987 P.2d 325 (1999).
At that time there was no statutory provision that clearly covered what to do in the case of a repetitive use injury. See K.S.A.2004 Supp. 44–508. The Treaster court examined the various cases that struggled with the appropriate determination of the date of the accident when repetitive use injuries are involved in creating the rule. 267 Kan. at 616–24. Under the judicially created rule in Treaster that was in effect when Barker worked at GUP, there does not appear to be any error in the Board's determination that Barker's accident date was the date she left employment with GUP in February 2005, even though she did not leave employment due to the injury.
In July 2005, K.S.A.2005 Supp. 44–508(d), which became effective after Barker's first injury date as determined by the Board, but before her second, defines “accident” for repetitive use injuries. The statute was adopted in response to the judicially created rule and in an effort to bring some clarity to the application of the Act in the case of repetitive use injuries. See Saylor, 292 Kan. at 618–21 (discussing history of 2005 amendments to K.S.A. 44–508[d] ). The 2005 statute provides:
“In cases where the accident occurs as a result of a series of events, repetitive use, cumulative traumas or microtraumas, the date of accident shall be the date the authorized physician takes the employee off work due to the condition or restricts the employee from performing the work which is the cause of the condition. In the event the worker is not taken off work or restricted as above described, then the date of injury shall be the earliest of the following dates: (1) The date upon which the employee gives written notice to the employer of the injury; or (2) the date the condition is diagnosed as work related, provided such fact is communicated in writing to the injured worker.” K.S.A.2005 Supp. 44–508(d).
Under this rule, it is clear why the Board selected the date upon which Barker gave written notice to Grace of her injury, June 2007, because she was not under any additional restrictions when she worked for Grace and she had not left any employment due to injuries.
Accordingly, pursuant to our de novo standard of review of legal issues, we find the Board correctly applied the facts to the existing law at the time of each injury and correctly determined the respective accident dates. Again, we specifically limit our holding to the unique circumstances and facts of this case.
It appears the Board miscalculated the amount owed by Grace and Travelers.
Grace contends that in actually calculating Barker's award Grace was not given proper credit and the Board misapplied several other statutory provisions in reaching its final calculation. We will begin by attempting to understand how the Board calculated the award.
The Workers Compensation Act dictates the calculation of a claimant's award. Casco, 283 Kan. at 521. As a result, the calculation of Barker's award requires us to interpret the statutes. The interpretation of a statute is a question of law over which an appellate court has unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). “The Board's interpretation of the law is entitled to judicial deference if there is a rational basis for the Board's interpretation. However, the Board's interpretation is not conclusive and, though persuasive, is not binding on [an appellate] court.” Casco, 283 Kan. at 521.
We begin by examining the Board's calculation of Barker's award.
To fully understand the positions of the parties, we begin by examining to the best of our ability—given the fact that the Board did not outline its methodology in arriving at the award, how the Board reached the conclusions it did concerning the total award.
The Board first indicated that Barker “suffered a second series of accidents while working for [Grace] with a date of accident on June 8, 2007. [Barker] is awarded a permanent partial whole person functional impairment of 45 percent for the time she worked for Grace, minus claimant's pre-existing whole person functional impairment of 34 percent.” This is consistent with K.S.A.2005 Supp. 44–501(c) that an employee is not “entitled to recover for the aggravation of a preexisting condition, except to the extent that the work-related injury causes increased disability. Any award of compensation shall be reduced by the amount of functional impairment determined to be preexisting.”
Recently, our Supreme Court dealt with the issue of calculation of a permanent partial general disability award under K.S.A. 44–510e.
“[T]he calculation of permanent partial general disability payments under workers compensation depends upon the extent to which the work injury has reduced the worker's ability to perform his or her preinjury work tasks (task loss) and the extent of the reduction in average wages that the worker has experienced after the injury (wage loss). If the claimant's postinjury wages are at least 90 percent of the preinjury wages, then permanent partial general disability payments are based solely upon the worker's functional impairment percentage. If the claimant's postinjury wages are less than 90 percent of the preinjury wages, the wage loss percentage is averaged with the task loss percentage to arrive at the percentage of permanent partial general disability, so long as that average equals or exceeds the functional impairment percentage.” Fernandez v. McDonald's, 296 Kan. 472, 476–77, 292 P.3d 311 (2013).
Following this statutory template, the Board found that during the time Barker worked for Grace, when she had no reduction in wages, she had a permanent partial whole person functional impairment of 45 percent. She had an average weekly wage of $1,025.67. A weekly benefit amount is generally calculated by the lesser of the average weekly wage prior to the injury multiplied by 66 2/3 percent or the maximum provided in K.S.A. 44–510c. See K.S.A. 44–510e(a). In this case, Barker's average wage amount would be roughly $685. However, the maximum amount allowable under K.S.A. 44–510c was $529, so she was limited statutorily to the lesser amount. See also K.S.A.2005 Supp. 44–511(d); K.S.A.2005 Supp. 44–704(c); http://www.dol.ks.gov/WorkComp/current.aspx (listing historical state average minimum wage).
We next turn to the number of weeks allowed. The maximum allowable is 415 weeks, but it appears that because Barker had a 45 percent functional impairment, she was awarded 186.75 weeks—45 percent of 415 weeks—for a total payment from Grace for Barker's permanent partial whole person functional impairment of $98,790.75. See K.S.A. 44–510e(a). It was ordered to be paid in one lump sum.
The Board went on to find that beginning August 1, 2008 (the month immediately following Grace's retirement and a period of temporary unemployment for Barker), Barker was entitled to a general disability award of 78 percent, minus the preexisting 34 percent impairment when she was employed by GUP, for a 44 percent permanent partial general disability. It appears that the Board arrived at the 78 percent figure by taking Barker's task loss of 56 percent, plus her wage loss of 100 percent and averaging them pursuant to K.S .A. 44–510e(a) for a total permanent partial general disability of 78 percent. Because her total award could not exceed $100,000, she was limited to 2.29 weeks (or roughly 2 weeks, 2 days) at $529 or $1,209 .25, also to be paid in a lump sum.
We next examine the errors claimed by Grace and Travelers.
Grace first claims that the Board erred in finding that Barker had a 45 percent functional impairment when she worked for him. Because the Board had already specifically indicated in its order that Barker was awarded a permanent partial whole person functional impairment of 45 percent for the time she worked for Grace, minus Barker's preexisting whole person functional impairment, the Board erred in calculating an award for the time Barker worked for Grace at 45 percent. Instead, he asserts that his obligation should only have been calculated at 11 percent. Duplicating the Board's method of arriving at its award would result in a reduction of Grace's liability to 45.65 weeks at $529 per week, or $24,148.85 for the time Barker worked for him.
Barker responds that the first portion of the award was based solely on a functional impairment and therefore is calculated on a different basis. But this argument ignores the fact that the Board specifically found, consistent with K.S.A.2005 Supp. 44–501(c), that the 34 percent preexisting impairment would be subtracted from the 45 percent total functional impairment, effectively resulting in an additional 11 percent impairment while Barker worked for Grace. See also Payne v. Boeing Co., 39 Kan.App.2d 353, 357, 180 P.3d 590 (2008) (even if employee has not received workers compensation benefits for a preexisting injury, benefit must be reduced by amount of preexisting functional impairment).
OneBeacon Insurance Company (one of GUP's insurers) responds that Grace is correct in stating that this “would result in a 9% [ sic ] functional impairment.” But OneBeacon then asserts that the Board's second calculation, based on Barker's unemployment, should be used resulting in a 44 percent permanent partial general disability award. In other words, subtracting 34 percent from the 78 percent results in a 44 percent award, or 182.6 weeks, or $96,595 .40. During oral argument, counsel for Barker agreed that the amount should be $96,595.40. But this ignores the statutory distinction between an award when there is less than a 10 percent wage loss and an award when there is up to a 90 percent wage loss. See K.S.A. 44–5 10e.
We agree with Grace. The Board's ruling is inconsistent to the extent that it states it was going to reduce the functional impairment award by the preexisting injury and then failed to do so. Accordingly, we reverse that portion of the Board's order and remand to the Board for reconsideration of the proper amount of the award.
Next, Grace argues that the Board erred in failing to take K.S.A. 44–510a into consideration. “K.S.A. 44–510a specifically applies to situations in which an employee has received compensation for a prior disability. A reduction in benefits is calculated according to the statute to prevent overlapping benefits, i.e., where benefits from the prior injury would otherwise continue after the later injury.” Payne, 39 Kan.App.2d at 360. Grace argues that Barker was awarded 58.54 weeks of temporary total disability and 85.44 weeks of permanent partial whole body functional disability against GUP. The date of the GUP accident was February 28, 2005, which would extend benefits to approximately November 23, 2007. The date of accident for Grace was determined to be June 8, 2007, resulting in 6 months of “overlap,”
But K.S.A. 44–510a(a) specifically states that the reduction does not apply to periods of temporary total disability payments, so the total weeks are only 85.44, which would end—if paid weekly—on approximately October 16, 2006, well before the June 8, 2007, accident date. Consequently, K.S.A. 44–510a has no application here.
Finally, Grace contends that the statutory cap per injury is set at $100,000 in K.S.A. 44–510f(a)(3), notwithstanding the finding of two accident dates. The statute provides in pertinent part:
“Notwithstanding any provisions of the workers compensation act to the contrary, the maximum compensation benefits payable by an employer shall not exceed the following:
....
(3) subject to the provisions of subsection (a)(4), for permanent or temporary partial disability, including any prior temporary total, permanent total, temporary partial, or permanent partial disability payments paid or due, $100,000 for an injury or any aggravation thereof.” K.S.A. 44–510f(a).
Grace points out that when the award against him is added to the award against GUP, Barker has recovered a total of $158,474.54 in a single docketed claim. The parties do not dispute that the applicable cap is $100,000. See K.S.A. 44–510f(a)(3). They differ on whether the cap applies separately to each accident (for an effective cap of $200,000) or whether the cap applies to a single injury, even if aggravated by a second accident.
In essence, Barker is attempting to equate the words “injury” and “accident.” However, under K.S.A.2005 Supp. 44–508(d) and (e), “accident” and “injury” are separately and distinctly defined. K.S.A.2005 Supp. 44–508(d) defines “accident” as “an undesigned, sudden and unexpected event or events, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force.”
K.S.A.2005 Supp. 44–508(e) defines “injury” as
“any lesion or change in the physical structure of the body, causing damage or harm thereto, so that it gives way under the stress of the worker's usual labor. It is not essential that such lesion or change be of such character as to present external or visible signs of its existence.”
Moreover, our Supreme Court has determined that because the two terms are separately defined they are not synonymous. “Stated simply, the accident is the ‘event’ which causes the injury. The injury is the ‘change in the physical structure of the body’ which occurs as a result of an accident.” Barke v. Archer Daniels Midland Co., 223 Kan. 313,317, 573 P.2d 1025 (1978).
Unfortunately, the Board did not make a necessary factual finding regarding whether these accidents also constituted separate injuries under K.S.A. 44–510f(a)(3). Without having the necessary calculations and findings to be made by the Board on remand, we do not know if, upon reconsideration, Grace's total award from both accidents will exceed $100,000. If it does, the Board will be required to make a factual finding regarding whether the two accidents also constitute two injuries in order to allow for proper review.
In sum, we affirm the Board's factual conclusion that there were two distinct accidents, and we affirm its legal conclusion regarding the dates of those accidents. However, we reverse the Board's calculation of the award, and remand to the Board for entry of an award consistent with this opinion and the applicable law.
Affirmed in part, reversed in part, and remanded with directions.