Farrell v. U.S.D. 229

995 P.2d 881, 26 Kan. App. 2d 797, 1999 Kan. App. LEXIS 1470
CourtCourt of Appeals of Kansas
DecidedDecember 30, 1999
DocketNo. 81,208
StatusPublished

This text of 995 P.2d 881 (Farrell v. U.S.D. 229) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farrell v. U.S.D. 229, 995 P.2d 881, 26 Kan. App. 2d 797, 1999 Kan. App. LEXIS 1470 (kanctapp 1999).

Opinion

Fairchild, J.:

U.S.D. #229 and its insurer, Kansas Association of School Boards (respondents), appeal from an order of the Workers Compensation Board (Board), awarding claimant Jeri Farrell permanent partial disability benefits.

We agree with the Board and affirm.

Claimant was employed as a teacher at Blue Valley Middle School. On December 2, 1992, while supervising students in the school gym, claimant was struck on the left side of her face with a basketball. Claimant was off work for the next 2 days. For the remainder of the school year, claimant took additional sick leave days or partial days which cumulatively totaled at least 5 days because of the work-related injury.

[798]*798On September 29,1994, claimant was again supervising students in the gym when she was struck on the left side of her face with a volleyball. Though claimant continued to work that day, she subsequently missed nonconsecutive work days totaling over 5 days. Claimant received sick leave benefits for all absences due to the 199z and 1994 injuries.

Respondents argue claimant failed to satisfy the requirements of K.S.A. 1992 Supp. 44-501(c). Specifically, they argue that claimant was not disabled from working for 5 consecutive days and that claimant’s receipt of sick leave compensation equates with earning full wages for any days off work.

At issue is interpretation of K.S.A. 1992 Supp. 44-501(c), which states in relevant part:

“Except for liability for medical compensation, as provided for in K.S.A. 44-510 and amendments thereto, the employer shall not be liable under the workers compensation act in respect of any injury which does not disable the employee for a period of at least one week from earning full wages at the work at which the employee is employed.”

The Board affirmed the administrative law judge’s award of 10% permanent partial disability benefits, 5% of which was attributed to the first injury and 5% to the second injury. The Board concluded that 5 nonconsecutive days of work satisfies the 1-week disability requirement of K.S.A. 1992 Supp. 44-501(c) and, further, that sick-leave pay is not wages earned at the work at which the employee is employed.

The parties also disagreed about whether claimant’s sick days were a result of disability arising from the work-related injuries and whether days off totaled at least 5 days after each injury. The determination of whether the Board’s findings of fact are supported by substantial competent evidence is a question of law subject to review under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq.; Roberts v. J.C. Penney Co., 263 Kan. 270, 274, 949 P.2d 613 (1997). We will affirm the Board’s ruling absent proof of an arbitrary disregard of undisputed evidence or some other extrinsic consideration such as bias, passion, or prejudice. Bradford v. Boeing Military Airplanes, [799]*79922 Kan. App. 2d 868, 870, 924 P.2d 1263, rev. denied 261 Kan. 1084 (1996).

The Board’s ruling that claimant was disabled from work as a result of her injuries for at least 5 days per injury is supported by substantial competent evidence. That leaves for determination the issues of whether the term, “a period of at least one week,” includes a nonconsecutive 5-day period and whether the claimant’s receipt of sick leave pay is the same as “earning full wages at the work at which the employee is émployed.”

Interpretation of a statute is a question of law. Our review of a question of law is unlimited. Osborn v. Electric Corp. of Kansas City, 23 Kan. App. 2d 868, 871, 936 P.2d 297 (1997). Respondents argue that the plain language of K.S.A. 1992 Supp. 44-501(c) requires 5 consecutive disability days off work. They rely on both Osborn and Boucher v. Peerless Products, Inc., 21 Kan. App. 2d 977, 911 P.2d 198 rev. denied, 260 Kan. 991 (1996).

The issue in Boucher was whether a claimant could recover permanent partial disability benefits “where he did not miss any work as a result of his injury.” 21 Kan. App. 2d 979. Respondents suggest that the claimant in Boucher “missed some time from work” because Boucher attended physical therapy sessions two to three times per week for approximately 4 weeks following his injury. We cannot glean from Boucher whether the claimant missed any work by virtue of his physical therapy appointments. More importantly, whether Boucher could accumulate days off to meet the requirements of K.S.A. 1992 Supp. 44-501(c) was not an issue.

Respondents also rely on the legislative history cited in Boucher. The Boucher court noted that the 1975 amendment to K.S.A. 44-501(c) permitted an employee who incurs medical expenses from a work-related injury yet loses no time from work to receive compensation for those expenses. The statute which preceded the 1975 amendment provided that the employer was not liable under the Act for disability benefits or medical expense payments if the claimant was not disabled for a period of at least 2 weeks. 21 Kan. App. 2d at 981-82. The Boucher court points out that the Speaker of the House, in calling for a meeting to discuss amending the statute in 1975, expressed concern that “state employees hurt on the job [800]*800cannot have [medical] expenses paid unless they are off 7 days.” 21 Kan. App. 2d at 982. The Boucher court states: “The legislature intended there be a 7-day waiting period before coverage under the Act.” 21 Kan. App. 2d at 982. This statement in Boucher is dicta. Moreover, there is no authority for the statement in the legislative history recounted by the court. The legislature’s primary concern in making the 1975 amendments seems to have been to provide medical expense payments for persons who had not met the disability waiting period.

We do not interpret the legislative history or plain language of the statute as requiring a waiting period comprised of 7 days. The statute, as it existed during the time period relevant in this case, does not define the period in question using the term “7 days.” Rather, the statutory language speaks of “a period of at least one week [during which the employee is prevented] from earning full wages at the work at which the employee is employed.” [Emphasis added.] K.S.A.

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Related

Roberts v. J.C. Penney Co.
949 P.2d 613 (Supreme Court of Kansas, 1997)
Bohanan v. U.S.D. No. 260
947 P.2d 440 (Court of Appeals of Kansas, 1997)
Bradford v. Boeing Military Airplanes
924 P.2d 1263 (Court of Appeals of Kansas, 1996)
Osborn v. Electric Corp. of Kansas City
936 P.2d 297 (Court of Appeals of Kansas, 1997)
Kinder v. Murray & Sons Construction Co.
957 P.2d 488 (Supreme Court of Kansas, 1998)
Boucher v. Peerless Products, Inc.
911 P.2d 198 (Court of Appeals of Kansas, 1996)
Raffaghelle v. Russell
176 P. 640 (Supreme Court of Kansas, 1918)

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Bluebook (online)
995 P.2d 881, 26 Kan. App. 2d 797, 1999 Kan. App. LEXIS 1470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farrell-v-usd-229-kanctapp-1999.