Lozano v. Excel Corp.

81 P.3d 447, 32 Kan. App. 2d 191, 2003 Kan. App. LEXIS 1057
CourtCourt of Appeals of Kansas
DecidedDecember 19, 2003
DocketNo. 90,293
StatusPublished
Cited by1 cases

This text of 81 P.3d 447 (Lozano v. Excel Corp.) 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
Lozano v. Excel Corp., 81 P.3d 447, 32 Kan. App. 2d 191, 2003 Kan. App. LEXIS 1057 (kanctapp 2003).

Opinion

Rulon, C.J.:

Respondent Excel Corporation appeals the decision of the Workers Compensation Board (Board) granting permanent partial disability to claimant Jesus Lozano. The respondent contends that the Board erroneously applied K.S.A. 44-510e(a) to grant a permanent partial disability when K.S.A. 44-510d(a)(22) provides the exclusive compensation for the petitioner s injury. We affirm.

The facts in this case are not greatly disputed. On February 17, 1999, while using an air knife to pull a piece of meat at his employment with the respondent, the claimant experienced a pull in his “left inguinal” area and pain in the region of his left medial thigh, as the result of a hernia.

Upon the recommendation of Dr. Villanueva, to whom the claimant had been referred by the respondent, the claimant underwent an inguinal hernia repair. Following the surgery, the claimant continued to experience pain, so a second surgeiy was performed for the purpose of “exploration of [the] left inguinal area, neurolysis of ilioinguinal and genitofemoral nerve[s] and repair of [the] hernia in layers.”

[192]*192Eventually, claimant visited with an attorney who recommended that claimant visit with Dr. Pedro Murati. After examining the claimant’s medical history and performing a physical examination, Dr. Murati opined the petitioner suffered from neurolysis of the ilioinguinal and genitofermoral nerves causing a permanent, whole person impairment of 10 percent.

After the claimant filed a workers compensation claim for a permanent partial disability and the respondent denied the claim, the matter was argued before an administrative law judge. The administrative law judge found the claimant’s injury was controlled by K.S.A. 44-510d(a)(22), which permits only temporary total disability.

Upon appeal to the Board, the Board reviewed the record and recognized that the only medical testimony presented concerning the extent of the claimant’s disability was offered by the claimant through Dr. Murati. Finding Dr. Murati’s testimony to be credible, the Board reversed the administrative law judge’s decision and found the claimant had a 10 percent permanent partial disability.

•The Board has exclusive jurisdiction to review the decisions, findings, orders, and awards of the administrative law judge who initially considered the workers compensation claims. See K.S.A. 44-555c(a). Judicial review of a case is dependent upon review by the Board. “On any such review, the board shall have authority to grant or refuse compensation, or to increase or diminish any award of compensation or to remand any matter to the administrative law judge for further proceedings.” K.S.A. 44-551(b)(l).

Although the Board’s review of the administrative law judge’s determination is unlimited, judicial review of the Board’s ruling is limited to questions of law in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. See K.S.A. 44-556(a); Nance v. Harvey County, 263 Kan. 542, 551, 952 P.2d 411 (1997).

Here, the respondent attempts to frame the issue on appeal as a question of law, arguing the Board misinterpreted the applicable statutes. In reviewing the interpretation rendered by the Board, this court gives deference to the Board’s determination. However, the final construction of a statute is a question of law over which [193]*193an appellate court may exercise unlimited review. See Pruter v. Larned State Hospital, 271 Kan. 865, 868, 26 P.3d 666 (2001).

K.S.A. 44-510d provides the basis for compensation for certain scheduled permanent partial disabilities. Subsection (a)(22) of the statute provides:

“(22) For traumatic hernia, compensation shall be limited to the compensation under K.S.A. 44-510h and 44-510Í and amendments thereto, compensation for temporary total disability during such period of time as such employee is actually unable to work on account of such hernia, and, in the event such hernia is inoperable, weekly compensation during 12 weeks, except that, in the event that such hernia is operable, the unreasonable refusal of the employee to submit to an operation for surgical repair of such hernia shall deprive such employee of any benefits under the workers compensation act.”

By the plain language of this provision, an employee who suffers a hernia injury cannot collect more than temporary total disability under the method of calculating such disability under K.S.A. 44-510h and K.S.A. 44-51QL

However, the injury at issue here is no longer a hernia injury. Although the claimant originally suffered from a hernia for which he sought medical treatment, the undisputed evidence is that following the surgeries to repair the hernia the claimant suffered from nerve damage to his ilioinguinal and genitofemoral nerves. The Board specifically found the nerve injuries were a natural consequence of the hernia injury, and such finding is adequately supported by the record. Therefore, this court must adopt the Board’s finding. See Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 191, 62 P.3d 236 (2003).

The nerve injuries arose out of and are related to the hernia injury and, therefore, are compensable under the Workers Compensation Act. See Frazier v. Mid-West Painting, Inc., 268 Kan. 353, 356, 995 P.2d 855 (2000) (citing Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 199, 547 P.2d 751 [1976]). Yet, the nerve injuries are not the same injury as the hernia injury and are not governed by K.S.A. 44-510d(a)(22).

A close review of K.S.A. 44-510d reveals nothing to indicate that injuries to nerve tissue are scheduled permanent partial disabilities. Consequently, the Board properly turned to K.S.A. 44-510e

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Cite This Page — Counsel Stack

Bluebook (online)
81 P.3d 447, 32 Kan. App. 2d 191, 2003 Kan. App. LEXIS 1057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lozano-v-excel-corp-kanctapp-2003.