Wade v. Union National Bank

707 P.2d 1087, 10 Kan. App. 2d 645, 1985 Kan. App. LEXIS 965
CourtCourt of Appeals of Kansas
DecidedOctober 24, 1985
DocketNo. 57,975
StatusPublished
Cited by3 cases

This text of 707 P.2d 1087 (Wade v. Union National Bank) 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
Wade v. Union National Bank, 707 P.2d 1087, 10 Kan. App. 2d 645, 1985 Kan. App. LEXIS 965 (kanctapp 1985).

Opinion

Bullock, J.:

Lawrence Wade works full time as a Wichita policeman. He also “moonlights” as a security guard at both St. Joseph Medical Center and Union National Bank. While working at his bank job, Wade fell on some ice and fractured his right leg. Thereafter, Wade filed a workers’ compensation claim seeking recovery for this job-related injury. At the hearing on the claim before the administrative law judge only two issues were seriously disputed:

1. Whether Wade’s average weekly wage (for purposes of the temporary total disability computation) was what he earned at the Bank alone or was, instead, the aggregate of his wages from all three jobs, and

2. whether Wade had suffered compensable traumatic neurosis in addition to his leg injury.

Compensating Wade only for his leg injury on the basis of his Bank wages alone, the administrative law judge decided both issues adverse to Wade. Wade timely appealed, albeit unsuc[646]*646eessfuly, first to the director of workers’ compensation and then to the district court.

On review of these decisions we are presented with only two issues:

1. Should full-time and part-time “moonlighting” wages be aggregated as the weekly wage in computing temporary total disability payments for a worker injured while working on the part-time job, and

2. Is the trial court decision denying recovery for traumatic neurosis supported by substantial competent evidence?

The scope of this court’s appellate review in workers’ compensation cases is well settled. Specifically, under K.S.A. 1984 Supp. 44-556(c), our review is limited to questions of law. Questions of statutory construction are questions of law and, although deference is often given to the interpretation of statutes made by the administrative agency charged with enforcement of those statutes, courts are authorized to substitute their judgment for that of the agency on questions of law. See Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 808-09, 667 P.2d 306 (1983), and cases cited therein.

In reviewing factual findings of the trial court, this court is limited to a determination of whether the trial court’s judgment is supported by substantial evidence when viewed in the light most favorable to the party prevailing below. Dieter v. Lawrence Paper Co., 237 Kan. 139, 145, 697 P.2d 1300 (1985); Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 442, 625 P.2d 453 (1981).

Substantial competent evidence has been defined as that which is relevant and which carries enough weight to allow one to conclude that the judgment is proper. Hardman v. City of Iola, 219 Kan. 840, 549 P.2d 1013 (1976); Harris v. Cessna Aircraft Co., 9 Kan. App. 2d 334, 678 P.2d 178 (1984). If the evidence supporting a judgment is substantial and competent, the trial court ruling is upheld even if there is evidence in the record which supports contrary findings. Phillips v. Helm’s Inc., 201 Kan. 69, 439 P.2d 119 (1968). Negative findings of a trial court are seldom set aside if the evidence is limited in quantity and its weight and credibility questionable, or if the evidence may be disregarded for any reason. Harris v. Cessna Aircraft Co., 9 Kan. App. 2d at 335. See also Davis v. Rock Island Oil Co., 211 Kan. 201, 505 P.2d 694 (1973); Harrell v. J. S. Frank Construction Co., 210 Kan. 548, 502 P.2d 762 (1972).

[647]*647With these principles in mind, we turn to Wade’s first issue on appeal. The resolution of this issue, in our view, depends entirely upon the interpretation of K.S.A. 44-511(b)(7), which provides:

“(7) The average gross weekly wage of an employee who sustains an injury by accident arising out of and in the course of multiple employment, in which such employee performs the same or a very similar type of work on a part-time basis for each of two (2) or more employers, shall be the total average gross weekly wage of such employee paid by all the employers in such multiple employment. The total average gross weekly wage of such employee shall be the total amount of the individual average gross weekly wage determinations under this section for each individual employment of such multiple employment.”

No Kansas cases have interpreted this provision of the statute in its present form. However, two cases and the legislative history of the section do provide some guidance in determining the legislative intent and purpose of the provision.

The history of section 44-511 of the Workmen’s Compensation Act was reviewed by our Supreme Court in Walters v. Greenland Drilling Co., 184 Kan. 157, 334 P.2d 394 (1959). A brief review of that history is necessary to fully understand the purpose of the present language of K.S.A. 44-511(b)(7). In Walters, the high court noted that the first workers’ compensation act in Kansas was modeled on the British Act which clearly provided for an award of compensation based on all concurrent contracts of employment at the time of the injury. The court further observed:

“The first Kansas workmen’s compensation act was enacted as L. 1911, ch. 218, and in section 12 of that act we find the following language:
‘(b) Where the workman had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his “earnings” and his “average earnings” shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident.’
“The above language remained a part of the section of our workmen’s compensation act for some time. The particular section came to be numbered section 44-511 in the Revised Statutes of 1923, and has retained that designation to the present time. The only case in Kansas in which the particular clause seems to have been attempted to be applied was Walton v. Electric Service Co., (1926) 121 Kan. 480, 247 Pac. 846. In the Walton case the workman was employed by the electric company and also by the city of Bucklin. The claimant contended the award should be based upon earnings received from both jobs. This court refused to follow claimant’s contention since the city was not operating under the workmen’s compensation act. . . .

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Bluebook (online)
707 P.2d 1087, 10 Kan. App. 2d 645, 1985 Kan. App. LEXIS 965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wade-v-union-national-bank-kanctapp-1985.