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McIntosh v. Sedgwick County6/11/2004
ll surviving families would be assured of a continuing income of the same general magnitude, rather than being subject to wide swings in family income resulting from the in-and-out characteristics of Social Security benefits.' [Citation omitted.]" 222 Kan. at 131-32.
The court in Baker concluded that " hen the system of wage-loss protection is viewed as a whole, avoiding duplication or overlapping of benefits appears to be a reasonable legislative objective." 222 Kan. at 132.
One year after Baker, this court considered the companion legislation relating to social security retirement benefits, K.S.A. 1976 Supp. 44-510f(c), in Boyd v. Barton Transfer & Storage, 2 Kan. App. 2d 425, 580 P.2d 1366, rev. denied 225 Kan. 843 (1978). Boyd was 62 years old and receiving $240 per month in social security retirement benefits at the time of his post-retirement, work-related injury. His average weekly wage was only $95 because he limited his work to an amount that would supplement but not reduce his social security retirement benefit. He was denied workers compensation benefits under K.S.A. 1976 Supp. 44-510f(c). The court observed:
" schedule has been established which limits the number of weeks that wage replacement (expressed in terms of 66 2/3 percent of the average gross weekly wage) may be received for particular permanent partial disabilities. K.S.A. 1976 Supp. (now 1977 Supp.) 44-510d. Should an injured worker have only a part of the specified number of weeks of employment left before retirement, workmen's compensation would provide the wage-loss benefit up to the time social security comes into effect. As long as workmen's compensation is not viewed as a substitute for tort recovery but as wage-loss protection only, the cutoff of workmen's compensation at the time of retirement and initial receipt of old age social security benefits would be reasonable. The worker would suffer only one wage loss, but continued workmen's compensation after retirement would duplicate the wage-loss replacement of the old age social security benefits which begin at that time." 2 Kan. App. 2d at 428.
Here, Boyd was already retired and was supplementing his retirement benefits through part-time work. Finding that the statute did not apply to Boyd and those similarly situated, the court concluded:
"Should K.S.A. 1976 Supp. 44-510f(c) be applicable to such workers, it would totally preclude any replacement of the wages which they are entitled to earn over and above old age social security benefits. As such, it would not prevent 'duplication' but would operate to preclude the wage replacement which it was the intent of the legislature to provide through the Workmen's Compensation Act." 2 Kan. App. 2d at 428.
The following year, this court decided Brown v. Goodyear Tire & Rubber Co., 3 Kan. App. 2d 648, 599 P.2d 1031 (1979), aff'd 227 Kan. 645, 608 P.2d 1356 (1980). K.S.A. 1974 Supp. 44-510f(c) was again at issue in Brown. Brown received a workers compensation award 16 months before he began receiving social security retirement benefits at age 65. The Workers Compensation Fund sought to terminate Brown's workers compensation benefits under K.S.A. 1974 Supp. 44-501f(c). The Court of Appeals affirmed the termination of benefits, noting:
"When viewed as part of a wage-loss compensation program, the termination of benefits under 44-510f(c), like 44-510b(j), does not really penalize the injured worker. By preventing a duplication of benefits under the Workmen's Compensation Act and the Social Security Act, the provision places the worker in the same position as fellow workers who have retired and are drawing old age social security benefits. At that poin
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