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McIntosh v. Sedgwick County6/11/2004
t he is no longer subject to wage loss. It is only his disability benefits that are affected. After retirement the wage loss experienced by a worker is not caused by injury, but by retirement. A worker could retain workmen's compensation benefits by staying in the labor market and not retiring." 3 Kan. App. 2d at 654.
K.S.A. 1976 Supp. 44-510f(c) and K.S.A. 1976 Supp. 44-510b(j) were repealed in 1977. In 1993 K.S.A. 1976 Supp. 44-510f(c) was replaced by the current 44-501(h), which is quoted above. The impetus for this legislation was the same concern that prompted the prior legislation, 44-510f(c) and 44-510b(j): the reduction of workers compensation insurance premiums by, among other things, preventing duplication of wage-loss benefits. Whereas the old law created a total bar to workers compensation benefits for one receiving social security retirement benefits, the new law provided for a dollar-for-dollar reduction in benefits.
In 1997, this court decided Bohanan v. U.S.D. No. 260, 24 Kan. App. 2d 362, 947 P.2d 440 (1997), which upheld the constitutionality of K.S.A. 1996 Supp. 44-501(h). One month after Bohanan, the Supreme Court similarly addressed the constitutionality issue in Injured Workers of Kansas v. Franklin, 262 Kan. 840, 942 P.2d 591 (1997). In upholding the constitutionality of K.S.A. 44-501(h), the court affirmed the decisions in Baker and Brown under the earlier legislation and stated:
"Subsection (h) allows an offset against workers compensation benefits to which an injured worker would otherwise be entitled for each dollar of social security retirement benefits received by the injured worker, as long as the workers compensation benefits do not dip below the workers compensation benefits payable for the employee's percentage of functional impairment." 262 Kan. at 865.
The following year, this court decided Gadberry v. R.L. Polk & Co., 25 Kan. App. 2d 800, 975 P.2d 807 (1998). Gadberry suffered a job-related back injury in 1994 and was discharged later that year. She applied for and obtained retirement and social security disability benefits. Her employer was permitted to offset her retirement income in calculating workers compensation benefits. 25 Kan. App. 2d at 807.
One year later, the Supreme Court decided Dickens. Dickens presents facts similar to those in the earlier Boyd case decided by this court. Dickens retired at age 64 and supplemented his social security retirement benefit with part-time work for Pizza Hut. Eight years into his Pizza Hut job, he suffered a work-related injury for which he sought workers compensation benefits. Pursuant to K.S.A. 44-501(h), the Board reduced the amount of his workers compensation benefits by the amount of his social security retirement benefits. On appeal, the court relied upon the reasoning applied in Boyd. In reversing the Board's reduction of benefits, the court observed:
"The Boyd court was concerned, as we are here, with disparate treatment of individuals such as Dickens, seeking to supplement social security income, compared to other social security beneficiaries.
"The Boyd court recognized that issues of wage-loss duplication are not at issue in the retired income earner situation. Boyd said: ' orkers such as the plaintiff here, who are already retired and receiving social security old age benefits before starting work on a part-time job to supplement those benefits, suffer a second wage loss when they are injured in the course of their employment.' 2 Kan. App. 2d at 428. The Boyd analysis is sound." 266 Kan. at 1071.
Several months following Dickens, this court decided Green v. City of Wichita, 26 Kan. App. 2d 53, 977 P.2d 283 (1999). Gree
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