Guebara v. Green-Glo Turf Maintenance, Inc.

819 P.2d 135, 16 Kan. App. 2d 159, 1991 Kan. App. LEXIS 602
CourtCourt of Appeals of Kansas
DecidedAugust 16, 1991
DocketNo. 66,153
StatusPublished
Cited by1 cases

This text of 819 P.2d 135 (Guebara v. Green-Glo Turf Maintenance, Inc.) 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
Guebara v. Green-Glo Turf Maintenance, Inc., 819 P.2d 135, 16 Kan. App. 2d 159, 1991 Kan. App. LEXIS 602 (kanctapp 1991).

Opinion

Per Curiam:

This is a workers compensation case. Respondent employer, Green-Glo Turf Maintenance, Inc., and its insurer, Farmers Alliance Mutual Insurance Company, appeal from the district court’s award of benefits to claimant Andrew Guebara.

The benefits awarded were computed on the premise that Guebara was a full-time hourly employee (K.S.A. 1990 Supp. 44-511[a][5]). Appellants complain that the district court’s implicit determination that Guebara was a full-time hourly employee was erroneous. Their position is that, on the facts and circumstances shown of record, none of which we need directly repeat, Guebara was a part-time hourly employee, not a full-time hourly employee.

As counsel confirmed to us at oral argument, the appellants do not raise sufficiency of the evidence as an issue on appeal. Rather, the single argument asserted is that the district court failed to correctly apply the statutory definitions of “part-time hourly employee” and “full-time hourly employee” in arriving at its determination that Guebara was a full-time hourly employee.

The controlling statutes are K.S.A. 1990 Supp. 44-511(a)(4) and K.S.A. 1990 Supp. 44-511(a)(5). The statutes set forth the defi[160]*160nitions of “part-time hourly employee” and “full-time hourly employee,” respectively.

In accord with McMechan v. Everly Roofing, Heating & Air Conditioning, Inc., 8 Kan. App. 2d 349, 351, 656 P.2d 797, rev. denied 233 Kan. 1092 (1983), K.S.A. 1990 Supp. 44-511(a)(4) reads:

“The term ‘part-time hourly employee’ shall mean and include any employee paid on an hourly basis: (A) Who by custom and practice or under the verbal or written employment contract in force at the time of the accident is employed to work, agrees to work, or is expected to work on a regular basis less than 40 hours per week; [or] (B) who at the time of the accident is working in any type of trade or employment where there is no customary number of hours constituting an ordinary day in the character of the work involved or performed by the employee.” (Emphasis added.)

K.S.A. 1990 Supp. 44-511(a)(5) reads:

“The term ‘full-time hourly employee’ shall mean and include only [A] those employees paid on an hourly basis who are not part-time hourly employees, as defined in this section, and who are employed in any trade or employment where the customary number of hours constituting an ordinary working week is 40 or more hours per week, or [B] those employees who are employed in any trade or employment where such employees are considered to be full-time employees by the industrial customs of such trade or employment, regardless of the number of hours worked per day or per week.” (Emphasis added.)

Examination of the statutory text reveals that K.S.A. 1990 Supp. 44-511(a)(4) provides two alternative definitions of a part-time hourly employee. 8 Kan. App. 2d at 351. When speaking of those alternatives and the alternatives under K.S.A. 1990 Supp. 44-511(a)(5), we will roughly paraphrase the statutory language.

K.S.A. 1990 Supp. 44-511(a)(4) first defines a part-time hourly employee as an employee who by custom and practice or under his employment contract is expected to work on a regular basis less than 40 hours per week. This definition excludes an employee expected to regularly work 40 or more hours per week. See 8 Kan. App. 2d at 352.

K.S.A. 1990 Supp. 44-511(a)(4) alternatively defines a part-time hourly employee as an employee who is working in any type of trade or employment where there is no customary number of hours constituting an ordinary day in the character of the work involved or performed by the employee.

[161]*161K.S.A. 1990 Supp. 44-511(a)(5) prescribes two alternative definitions of a full-time hourly employee. The first definition has two elements. It first defines a full-time hourly employee as an employee (1) who is not a part-time hourly employee, as defined by K.S.A. 1990 Supp. 44-511(a)(4), that is, the claimant does not come within either of the alternative K.S.A. 1990 Supp. 44-511(a)(4) definitions of a part-time hourly employee, and (2) who is employed in a trade or employment where the customary number of hours constituting an ordinary working week is 40 or more hours per week.

K.S.A. 1990 Supp. 44-511(a)(5) alternatively defines a full-time hourly employee as an employee who is employed in a trade or employment where employees such as the claimant are considered by industry custom to be full-time employees regardless of the number of hours worked per day or per week.

The alternative definitions of a part-time hourly employee, on one hand, and the alternative definitions of a full-time hourly employee, on the other, are mutually exclusive. 8 Kan. App. 2d at 350.

The sole exposition in the record before us of the district court’s reasoning for its implicit determination that Guebara was a full-time hourly employee is to be found in this partial text of the district court’s journal entry of judgment:

“[Guebara] was employed at $4.25 per hour to work 40 hours per week if weather permitted and sufficient work was available. It was not established that he was employed to regularly work less than 40 hours per week. That he worked less than 40 hours per week was due to the construction industry, a function of the weather and the availability of work on a particular job rather than as a provision of contract.”

With the statutes as background, we read the district court’s words to say this in essence:

1. Under Guebara’s employment contract, it was expected he would regularly work 40 or more hours per week.

2. Under Guebara’s employment contract, it was not expected he would regularly work less than 40 hours per week.

3. The fact that he actually worked less than 40 hours per week was not by reason of his employment contract.

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Bluebook (online)
819 P.2d 135, 16 Kan. App. 2d 159, 1991 Kan. App. LEXIS 602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guebara-v-green-glo-turf-maintenance-inc-kanctapp-1991.