Mahan v. Clarkson Construction Co.

138 P.3d 790, 36 Kan. App. 2d 317, 2006 Kan. App. LEXIS 701
CourtCourt of Appeals of Kansas
DecidedJuly 21, 2006
DocketNo. 95,811
StatusPublished
Cited by5 cases

This text of 138 P.3d 790 (Mahan v. Clarkson Construction Co.) 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
Mahan v. Clarkson Construction Co., 138 P.3d 790, 36 Kan. App. 2d 317, 2006 Kan. App. LEXIS 701 (kanctapp 2006).

Opinion

Greene, J.:

Clarkson Construction Company and ACIG Insurance Company appeal the Workers Compensation Board’s award of work disability to Ronald E. Mahan, arguing that Mahan’s failure to exercise good faith in retaining his employment should have precluded the award. We agree, reverse the award, and remand with directions.

Factual and Procedural Background

Mahan injured his back during his employment by Clarkson but [318]*318tested positive for cocaine in the postaccident drug test. As a result of the test result, Mahan was terminated but advised that he would be eligible for continued employment by Clarkson upon completion of a drug rehabilitation program. Mahan made no effort to participate in the program and claimed no impediment to his participation.

Malian was diagnosed by his treating physician as having a muscle injury resulting in a functional impairment of 5% of the body as a whole. An evaluation by a second physician concluded that he had a functional impairment of 10% of the body as a whole. Mahan was found to be able to perform 7 of 14 tasks identified on his task list with a minimum of accommodation, including 4 of 7 performed for Clarkson. In the nearly 17-mondi period between his injury and the administrative hearing, Mahan worked for only 6 weeks at a used car dealership and then as a part-time bartender “on and off’ for 2 months.

The administrative law judge (ALJ) concluded that Mahan failed to malee a good faith effort to obtain employment but determined that he suffered a wage loss of 50% and therefore calculated Mahan’s permanent partial general disability at 46.5%. The ALJ awarded Mahan 31 weeks of temporary total disability compensation at $440 per week ($13,640) and 185.54 weeks of permanent partial disability compensation of $440 per week ($81,637.60).

The Board modified the ALJ’s award to increase the permanent partial general disability from 46.55 to 63%, concluding that Mahan failed to make good faith efforts to retain his employment or find other appropriate employment but also concluding that Clarkson did not meet its burden to show that Mahan would have been accommodated, thus imputing a postinjury wage loss of 75%. Clarkson and ACIG appeal.

Standard of Review

An appellate court’s review of questions of fact in a workers compensation case is limited to whether the Board’s findings of fact are supported by substantial competent evidence, which is a question of law. Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 311-12, 944 P.2d 179 (1997). Substantial evidence is evi[319]*319dence that possesses something of substance and relevant consequence and carries with it fitness to induce the conclusion that the award is proper or furnishes a substantial basis of fact from which the issue raised can be reasonably resolved. 24 Kan. App. 2d at 312. This court reviews the evidence in the light most favorable to the prevailing party and does not reweigh the evidence or assess the credibility of the witnesses. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 285-86, 887 P.2d 140, rev. denied 257 Kan. 1091 (1995). Negative factual findings will not be disturbed on appeal absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. General Bldg. Contr., LLC v. Board of Shawnee County Comm'rs, 275 Kan. 525, 541, 66 P.3d 873 (2003).

Did the Board Err in Concluding that Mahan was Entitled to Permanent Partial General Disability Compensation?

Clarkson and ACIG argue that Mahan should be precluded from an award of work disability benefits by reason of K.S.A. 44-510e that provides:

“[A]n employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury.”

The argument is that Mahan could have completed drug rehabilitation and returned to an accommodated position with Clarkson at the same or similar wage, but he voluntarily declined to do so. Based upon this inaction, Clarkson argues that Mahan should be ineligible for work disability benefits, citing Lowmaster v. Modine Mfg. Co., 25 Kan. App. 2d 215, 962 P.2d 1100, rev. denied 265 Kan. 885 (1998).

In its argument, however, Clarkson seems to confuse the findings of lack of good faith in retaining or in finding employment with the Board’s finding as to accommodation by the employer. In fact, the Board found that “the record fails to establish that it is more probably true than not that [Clarkson] could have accommodated claimant’s permanent medical restrictions and what such accommodated employment would have paid.” Before we apply [320]*320appropriate legal authorities, we must determine whether this negative finding disregarded undisputed evidence or was motivated by extrinsic concerns. See General Building Contr, 275 Kan. at 541.

The Board quoted some of the relevant testimony in its order. The loss control director for Clarkson’s subsidiary, Anthony Tilson, testified as follows:

“Q. [Clarkson counsel:] Now, I’ll just represent to you this is a copy of permanent restrictions issued to Mr. Malian by Dr. Fishman. And this piece of paper has previously been admitted as an exhibit in several other depositions in this case and it includes restrictions as of July 13th which state, ‘No twisting. No squatting. No pushing/pulling over 35 pounds on an occasional basis only. No stooping. No lifting greater than 30 pounds knuckle to shoulder, shoulder to overhead, 20 pounds floor to knuckle. No repetitive bending of lower back.’ Then at the bottom, ‘No carrying over 20 pounds on an occasional basis.’ Have you ever seen a Clarkson employee with similar restrictions?
“A. (Mr. Tilson) Yes, I have.
“Q. Are you — do you know if Clarkson is potentially able to accommodate an employee with this type of restriction?
“A. Yes, they are.
“Q. In the past are you aware of Clarkson ever having actually accommodated employees with these type[s] of restrictions?
“A. Yes.
“Q. [Clarkson counsel:] Do you have any knowledge about the — about prior situations where Clarkson has put an employee back to work after going through drug rehab and whether or not they changed that employee’s pay rate?
“A. No, I don’t.
“Q. Okay. Do you have any knowledge of Clarkson ever lowering somebody’s pay rate after going back to work after drug rehab?
“A. No, I do not.” (Emphasis added.)

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Cite This Page — Counsel Stack

Bluebook (online)
138 P.3d 790, 36 Kan. App. 2d 317, 2006 Kan. App. LEXIS 701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mahan-v-clarkson-construction-co-kanctapp-2006.