Graham v. Dokter Trucking Group

141 P.3d 1192, 36 Kan. App. 2d 521, 2006 Kan. App. LEXIS 868
CourtCourt of Appeals of Kansas
DecidedSeptember 1, 2006
DocketNo. 95,650
StatusPublished
Cited by3 cases

This text of 141 P.3d 1192 (Graham v. Dokter Trucking Group) 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
Graham v. Dokter Trucking Group, 141 P.3d 1192, 36 Kan. App. 2d 521, 2006 Kan. App. LEXIS 868 (kanctapp 2006).

Opinion

Greene, J.:

John Graham’s employer, Dokter Trucking Group and Soldier Creek Transportation, together with its insurers, Union [522]*522Insurance Company and Continental Western Insurance Company, appeal the award of work disability benefits to Graham by the Workers Compensation Board (Board), arguing that Graham failed to prove a wage loss because his purported inability to work a 40-hour week was not substantiated by a physician’s restriction, but rather was the result of a self-imposed “restriction” due to reported pain. Concluding that the material statute requires a physician’s opinion in support of such an award and that Graham failed to establish that his post-injury wages were not consistently less that 90% of his preinjury wages, we reverse.

Factual and Procedural Background

Graham was an over-the-road truck driver, who fell from a truck trailer and sustained injuries to his neck, right arm, and right leg. After being released by his chiropractor, Graham attempted to return to work but after 6 months determined that, due to pain, he could no longer perform his prior job, which included chmbing to the top of the trailer, pulling a large heavy hose with him, and cleaning the trailers.

As a result of Graham’s situation, his employer fully accommodated him by reassigning him to drive for a different contract carrier who required no climbing or lifting. Moreover, the new carrier utilized “air ride” trucks and there was less “jostling around.” Nevertheless, Graham again left work due to pain.

After 6 months, Graham returned to work at the second carrier, but restricted his work week to less than full time (“2 or 3 days”) due to pain he reported experiencing after checking both side mirrors eveiy 5 to 8 seconds. His work at the second carrier paid 40% more per mile, thus allowing him to exceed his preinjury wages if he worked a full week.

The parties agree that the record contains no physician’s opinion expressly restricting Graham’s work due to his injuiy. It is also beyond dispute, however, that both physicians who testified confirmed that Graham’s pain is consistent with his injury. Both parties rely on the testimony of Dr. Chris Fevurly who examined Graham and determined he had a 15% functional impairment to his cervical [523]*523spine. Regarding restriction of work, Fevurly testified any work restriction was “self-imposed.”

The administrative law judge (ALJ) found that although Graham was performing his tasks as a truck driver, he could no longer do so full-time. The ALJ determined Graham had a 43% task loss and a 24% wage loss. As a result, Graham suffered a 33.5% work disability. The employer and its insurers sought review with the Board.

After its review of the record, the Board affirmed the ALJ’s award, concluding in material part:

“It is acknowledged in this record that while claimant is performing the same tasks he was performing at the time of the injuiy, he has limited himself to, because of pain from this injuiy, 20 hours a week and is, therefore, not performing the tasks as repetitiously or to the same degree as before. Both Dr. Zimmerman and Dr. Fevurly agreed claimant’s pain is consistent with his injuries. Moreover, Dr. Fevurly noted if claimant was expected to work 40 hours per week, he would need time off in the middle of the week to recuperate. Lastly, there was no testimony claimant was faking his pain or lack of ability to work full-time. The Board finds the opinion of Dr. Zimmerman to be more credible and affirms the ALJ’s determination that claimant has suffered a task loss of 43 percent.”

Two Board members dissented, and one of the dissenters stated:

“This Board Member acknowledges that Dr. Fevurly did testify that if claimant is able to work 20 hours a week, but not the second 20 hours, then he would say that claimant in incapable of coping with the pain and unable to perform the job tasks for that second 20 hours. However, Dr. Fevurly went on to testify that he thinks claimant is qualified to work as many hours and chive as many miles as he did prior to his injury and the restriction at 20 hours per week is not a medical restriction, but a self-imposed restriction utilized by claimant.”

The employer and its insurers appeal.

Did the Board Err in Awarding Graham Work Disability Based in Part on His Self-Imposed Restriction Due to Pain?

The employer and its insurers claim the Board erred in affirming the ALJ’s award of work disability because Graham did not suffer a wage loss. They argue that a self-imposed restriction on hours worked should not justify a wage loss where the employer has fully accommodated the employee and no physician has imposed a work restriction.

[524]*524We review decisions of the Board in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions. Garrison v. Beech Aircraft Corp., 23 Kan. App. 2d 221, Syl. ¶ 3, 929 P.2d 788 (1996). We review de novo the Board’s interpretation of a controlling statute. See Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).

Insofar as the parties and this court can determine, this appeal presents a question of first impression: Is a worker entitled to a work disability award where he or she has been fully accommodated by his employer but self-imposes a work restriction that is not supported by tire opinion of a physician? Clearly, we do not and cannot quarrel with the Board’s findings that Graham experienced actual pain that prohibited him from working a 40-hour week without taking some time off between work periods. We reverse the award of work disability, however, for two reasons: (i) We conclude that the controlling statute contemplates that a wage loss must be supported by an opinion of a physician; and (ii) the record does not support the Board’s finding of a wage loss because Graham was engaging in work for wages equal to his preinjury wages.

Self-imposed work restrictions by an accommodated employer do not support a claim of wage loss.

The controlling statute is K.S.A. 44-510e(a), which states in material part:

“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injuiy.”

Here, there is no question that the employer accommodated Graham by the reassignment to a second carrier where the tasks were more easily performed by Graham given his task losses. In fact, we understand the employer’s argument to be that the accom[525]*525modation allowed Graham to continue working despite the task losses that were supported by physician testimony.

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Related

Gutierrez v. Dold Foods, Inc.
199 P.3d 798 (Court of Appeals of Kansas, 2009)
Stephen v. Phillips County
174 P.3d 452 (Court of Appeals of Kansas, 2008)
Graham v. Dokter Trucking Group
161 P.3d 695 (Supreme Court of Kansas, 2007)

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Bluebook (online)
141 P.3d 1192, 36 Kan. App. 2d 521, 2006 Kan. App. LEXIS 868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-dokter-trucking-group-kanctapp-2006.