Opinion
No. 111201.
02-20-2015
Larry J. WYRICK, Appellant, v. Bingham Transportation, Inc. and Berkshire Hathaway Homestate Insurance Co., Appellees.
William L. Phalen and Crystal D. Marietta, of Pittsburg, for appellant. Michael P. Bandre, of Hoffmeister, Doherty & Webb, LLC, of Overland Park, for appellees.
William L. Phalen and Crystal D. Marietta, of Pittsburg, for appellant.
Michael P. Bandre, of Hoffmeister, Doherty & Webb, LLC, of Overland Park, for appellees.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Larry J. Wyrick appeals the Workers Compensation Board's (Board) reduction of the award for his 2009 injury, arguing (1) the Board should not have reduced the award due to Wyrick's preexisting impairment and (2) substantial competent evidence did not support the Board's finding that Wyrick had a 31% preexisting impairment. Because we find the Board erred in reducing Wyrick's award, we vacate the Board's order and remand for further proceedings.
Factual and Procedural History
The parties stipulated that on December 8, 2009, Wyrick, a truck driver for Bingham Sand and Gravel (Bingham) located in Cherokee County, Kansas, sustained injuries to his back during an accident arising out of and in the course of his employment with Bingham and filed a timely workers compensation claim. His average weekly wage was $1,029.25, and he received temporary total disability compensation for 21 weeks at the rate of $546 per week for a total of $11,466. The parties also stipulated that Wyrick's injuries resulted in him being permanently and totally disabled from performing substantial gainful employment.
Prior to his 2009 injuries, Wyrick had experienced two work-related injuries to his back. His first work-related injury occurred in 2001, and Wyrick underwent spinal surgery performed by Dr. Allan S. Fielding, M.D. After the surgery, Dr. Fielding assigned Wyrick a 17% whole body impairment under the Fourth Edition of the American Medical Association's Guide to the Evaluation of Permanent Impairment (AMA Guides). Wyrick returned to his job at Bingham and was able to perform all his job functions without pain. This injury resulted in an undocketed workers compensation claim which the parties settled on February 20, 2003. The settlement included compensation previously paid totaling $14,595; paid medical and hospital expenses totaling $56,262.85; payment of all medical expenses incurred up to the date of the settlement; and a lump sum payment of $30,000. The settlement worksheet reflected Wyrick's average weekly wage was $886; therefore, the compensation paid was $417 per week for 35 weeks (35 x $417 = $14,595).
Wyrick's second work-related injury occurred on June 28, 2004. Dr. Fielding diagnosed Wyrick with a herniated disk, and Wyrick underwent another spinal surgery. Wyrick recovered, returned to his job at Bingham, and was again able to perform all required job functions without pain. Under the Fourth Edition of the AMA Guides, Dr. Fielding assigned Wyrick a 14% permanent partial disability rating on top of the 17% rating from Wyrick's first injury. On September 21, 2005, the parties settled another undocketed workers compensation claim for $17,474.28 in previously paid compensation; $50,709.28 in paid medical and hospital expenses; payment of all medical expenses incurred up to the date of the settlement; and a lump sum payment of $18,500. The settlement worksheet reflected Wyrick's average weekly wage was $812.15; therefore, the compensation paid was $440 per week for 39.71 weeks (39.71 x $440 = 17,474.28).
After Wyrick's 2009 injury, he was referred to Dr. James Smith who recommended Wyrick undergo surgery for anterior lumbar interbody fusion at L5–S1 and posterior arthrodesis at L3–L4. In June 2010, Dr. Edward J. Prostic, an orthopedic surgeon, evaluated Wyrick, diagnosed him with lumbar spinal stenosis at L3–L4, and recommended Wyrick undergo epidural steroid injections or surgery if the injections were unsuccessful. In June 2011, Dr. Mark Bernhart performed an independent medical evaluation on Wyrick. Dr. Bernhart diagnosed Wyrick with psuedarthrosis of his L5–S1 fusion and found the tenuous fusion at L5–S1 had broken down due to Wyrick's 2009 accident. Dr. Bernhart opined that Wyrick was not a good candidate for surgery and recommended a pain management program. Pain management was provided by Dr. Steven Hendler.
Dr. Prostic re-evaluated Wyrick in October 2012. Dr. Prostic's report stated Wyrick injured his low back which “aggravate[ed] a pre-existing disease.” He found Wyrick sustained a 15% permanent partial impairment from his 2009 accident and testified this impairment was over and above any preexisting impairment. Overall, Dr. Prostic gave Wyrick a 35–40% overall impairment for his low back. Dr. Prostic used the Range of Motion Model and the Fourth Edition of the AMA Guides to determine Wyrick's impairment ratings.
On August 26, 2013, the ALJ awarded Wyrick previously paid temporary total disability compensation for 21 weeks at the rate of $546 per week, totaling $11,466, followed by permanent total disability compensation at the rate of $546 per week, not to exceed $125,000, minus the entitled reduction of 27 percent total general body disability under K.S.A. 44–501(c). The ALJ calculated Wyrick was entitled to 207.94 weeks of permanent total disability compensation minus the 27 percent reduction of 110.43 weeks for an award of 97.51 weeks, at the rate of $546 per week, totaling $53,240 .46.
Wyrick appealed to the Workers Compensation Board, arguing Bingham was not entitled to a credit for Wyrick's previous workers compensation injuries and impairments. The Board agreed with the ALJ and held that K.S.A.2009 Supp. 44–501(c) required the award be reduced by the amount of functional impairment determined to be preexisting, and it found that Wyrick's two previous workers compensation settlements constituted preexisting impairments. Because K.S.A.2009 Supp. 44–501(c) did not instruct the Board on how to combine multiple preexisting impairments, the Board found it appropriate to add the actual impairments from the prior injuries—17% plus 14%—which equaled a total preexisting impairment of 31%. The Board then followed the four-step method approved by Payne v. Boeing Co., 39 Kan.App.2d 353, 180 P.3d 590 (2008), to calculate the amount of Wyrick's benefit as follows:
1. The number of weeks the $125,000 PTD award would take to pay out utilizing the applicable compensation rate of $546 is 228.93 weeks.
2. It would take 126.79 (430–21 = 409 x .31) weeks to pay PPD at the preexisting 31 percent whole body functional impairment.
3. Subtracting the 126.79 weeks from the 228.93 available PTD weeks, equals 102.64 weeks.
4. 102.64 weeks multiplied by the compensation rate of $564.00 per week, results in a benefit of $55,786.44.
Two Board members dissented, disagreeing with the majority's decision to add together the two prior impairment ratings to arrive at Wyrick's preexisting rating. The dissent argued Dr. Prostic's opinion should have been considered along with Dr. Fielding's prior ratings. It explained the AMA Guide used the word adding differently than the word combining. It found that while adding the prior impairment values resulted in 31%, combining, as defined by a chart in the AMA Guide, resulted in 27% preexisting rating. The dissent found Wyrick had a preexisting 26% impairment to the body as a whole based on splitting the difference between Dr. Prostic's 25% preexisting rating and Dr. Fielding's combined 27% preexisting rating.
Wyrick timely appeals.
Did the Board Correctly Reduce Wyrick's Award Based on K.S.A.2009 Supp. 44–501(c) ?
There was no evidence presented to dispute Dr. Protic's report that Wyrick's 2009 injury aggravated preexisting injuries sustained in 2001 and 2004. The Board found Bingham was entitled to a reduction of Wyrick's award under K.S.A.2009 Supp. 44–501(c), which states: “The employee shall not be 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.” The issue before us is whether the Board should have applied K.S.A. 44–510a in addition to K.S.A.2009 Supp. 44–501(c) when deciding whether Bingham was entitled to a reduction in the award due to Wyrick's preexisting functional impairment. Wyrick argues K.S.A. 44–510a limits when the reduction indicated in K.S.A.2009 Supp. 44–501(c) can be utilized, while Bingham claims K.S.A. 44–510a does not apply and it is entitled to a reduction under K.S.A.2009 Supp. 44–501(c).
In 2011 the legislature repealed K.S.A. 44–510a, moved K.S.A. 44–501(c) to K.S.A. 44–501(e), and added more details about when a reduction should occur and how to calculate it. L.2011, ch. 55, sec. 3 and 29. However, 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 Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 588, 257 P.3d 255(2011).
“K.S.A.2013 Supp. 44–556(a) directs that final orders of the Workers Compensation Board are subject to review under the [Kansas Judicial Review Act (KJRA) ]. The standard of review varies depending upon the issue raised. See K.S.A.2013 Supp. 77–621 (defining and limiting scope of review of administrative decisions under KJRA). This court's appellate review of the hospital's argument involves statutory interpretation. Previously, Kansas courts generally gave substantial deference to an administrative agency's interpretation of a statute that the agency administers, especially when the agency was one of special competence and experience. But our Supreme Court no longer extends deference to an agency's statutory interpretation. Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013) (‘In dealing with a statute in a workers compensation appeal, no deference is due the interpretation or construction given the statute by the ALJ or the Board.’); In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1044, 271 P.3d 732 (2012) ; Hill v. Kansas Dept. of Labor, 292 Kan. 17, 21, 248 P.3d 1287 (2011) (noting that the doctrine of operative construction has lost favor). Thus, cases relying on the doctrine of operative construction should no longer be cited for issues involving statutory interpretation in administrative cases since appellate court review is now unlimited.”Ward v. Allen County Hospital, 50 Kan.App.2d 280, 287–88, 324 P.3d 1122 (2014).
K.S.A. 44–510a states:
“(a) If an employee has received compensation or if compensation is collectible under the laws of this state or any other state or under any federal law which provides compensation for personal injury by accident arising out of and in the course of employment as provided in the workers compensation act, and suffers a later injury, compensation payable for any permanent total or partial disability for such later injury shall be reduced, as provided in subsection (b) of this section, by the percentage of contribution that the prior disability contributes to the overall disability following the later injury. The reduction shall be made only if the resulting permanent total or partial disability was contributed to by a prior disability and if compensation was actually paid or is collectible for such prior disability. Any reduction shall be limited to those weeks for which compensation was paid or is collectible for such prior disability and which are subsequent to the date of the later injury. The reduction shall terminate on the date the compensation for the prior disability terminates or, if such compensation was settled by lump-sum award, would have terminated if paid weekly under such award and compensation for any week due after this date shall be paid at the unreduced rate. Such reduction shall not apply to temporary total disability, nor shall it apply to compensation for medical treatment.
“(b) The percentage of contribution that the prior disability contributes to the later disability shall be applied to the money rate actually collected or collectible for the prior injury and the amount so determined shall be deducted from the money rate awarded for the later injury. This reduced amount of compensation shall be the total amount payable during the period of time provided in subsection (a), unless the disability award is increased under the provisions of K.S.A. 44–528 and amendments thereto.”
K.S.A.2009 Supp. 44–501(c) generally states Wyrick's award should be reduced due to his preexisting functional impairment because his 2009 injury aggravated his prior injuries. K.S.A. 44–510a specifically addresses situations when an employee's injury results in permanent total or partial disability and such permanent disability was contributed to by a prior disability for which the employer had paid, or could pay, the employee. Wyrick's 2009 injury resulted in permanent total disability which was contributed to by his two prior work-related injuries for which his employer had paid him based on the settlement agreements. However, Bingham argues K.S .A. 44–510a does not apply to Wyrick's situation because it does not apply to the aggravation of preexisting conditions. Bingham claims K.S.A. 44–510a applies only to overlapping or subsequent awards for compensation that are not aggravations of preexisting conditions.
Our duty is first to attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Cady v. Schroll, 298 Kan. 731, 738, 317 P.3d 90 (2014). Where there is no ambiguity, we need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous do we use canons of construction or legislative history to construe the legislature's intent. 298 Kan. at 739.
We must reject Bingham's argument based on the plain language of K.S.A. 44–510a(a) : “The reduction shall be made only if the resulting permanent total or partial disability was contributed to by a prior disability and if compensation was actually paid or is collectible for such prior disability.” (Emphasis added.). This means an aggravation of a prior compensable injury which results in permanent total disability, as in this case, qualifies as a prior disability contributing to the current disability.
K.S.A. 44–510a(a) further mandates an award for a later injury be reduced “by the percentage of contribution that the prior disability contributes to the overall disability following the later injury.” However, the reduction is limited “to those weeks for which compensation was paid ... for such prior disability and which are subsequent to the date of the later injury. ” (Emphasis added.) K.S.A. 44–510a(a). The reduction is to terminate “on the date the compensation for the prior disability terminates or, if such compensation was settled by lump-sum award, would have terminated if paid weekly under such award and compensation for any week due after this date shall be paid at the unreduced rate.” K.S .A. 44–510a(a).
Wyrick claims the Board failed to account for the time lapse between the two prior awards and the 2009 injury award. The first injury in 2001 resulted in a settlement award of $30,000. If this lump sum payment had been paid weekly in the amount of $417 per week based on Wyrick's average weekly wage at the time, the weekly payments would have continued for 71.94 weeks ($30,000/$417 = 71.94) and ended before his 2009 injury. The second injury in 2004 resulted in a settlement award of $18,500. Again, if this lump sum payment had been paid weekly in the amount of $440 per week based on Wyrick's average weekly wage at the time, the weekly payments would have continued for 42.05 weeks ($18,500/ $440 = 42.05) and also would have ended before his 2009 injury. Both of Wyrick's two prior awards would have been paid before his December 9, 2009, injury. Therefore, under the language of K.S.A. 44–510a, Bingham was not entitled to a reduction of the 2009 injury award due to Wyrick's prior awards.
Wyrick argues Lyons v. IBP, Inc., 33 Kan.App.2d 369, 102 P.3d 1169 (2004), is directly on point for this issue. Lyons sustained a work-related injury to his spine in 1990 and to his back and neck in 1999. The Board refused to reduce Lyons' award for the 1999 injury under K.S.A. 44–501(c) because it found that IBP had failed to show Lyons' 1999 injury had aggravated his 1990 injury. On appeal, the Lyons court found sufficient evidence supported the Board's finding; therefore, the Board correctly did not apply K.S.A. 44–501(c). 33 Kan.App.2d at 379–81. The Lyons court also found the compensation for the 1990 injury did not overlap with the 1999 injury; therefore, the Board correctly refused to reduce the 1999 award under K.S.A. 44–510a. 33 Kan.App.2d at 381.
This case is similar to Lyons in that Bingham is not entitled to a reduction under 44–510a because there was no overlap of awards. However, this case is distinguishable from Lyons because it was undisputed that Wyrick's 2009 injury aggravated his two prior injuries. The Lyons court did not address the issue now before this court regarding how K.S.A. 44–501(c) and K.S.A. 44–510a interact or affect each other. It merely found neither statute was applicable to the case.
K.S.A.2009 Supp. 44–501(c) states the general policy that “[a]ny award of compensation shall be reduced by the amount of functional impairment determined to be preexisting”; however, a “specific statute[ ] control[s] over a general statute.”Sierra Club v. Moser, 298 Kan. 22, 54, 310 P.3d 360 (2013) (citing Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs., 290 Kan. 446, 463, 228 P.3d 403 [2010] ). K.S.A. 44–510a is more specific than K.S.A.2009 Supp. 44–501(c) and limits the reduction for when the prior disability award extends past the date of the later injury, which did not occur in this case. Therefore, although K.S.A.2009 Supp. 44–501(c) and K.S.A. 44–510a state Bingham could be entitled to a reduction because Wyrick's 2009 injury aggravated his two prior injuries and those two prior injuries resulted in workers compensation awards, any reduction is limited to only situations where the prior awards overlap with the new award. Because of this limitation, Bingham was not entitled to a reduction in Wyrick's award.
Because Bingham was not entitled to a reduction in the award, the other issues raised in Wyrick's appeal are moot. The final order of the Workers Compensation Board is vacated, and the case is remanded for further proceedings consistent with this opinion.