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Hernandez v. Monfort3/1/2002
Appeal from Workers Compensation Board.
Affirmed in part, reversed in part, and remanded with directions.
Jose Hernandez appeals the decision of the Workers Compensation Board (Board) that he did not qualify for a work disability.
At the time of the regular hearing in this case, Hernandez had been employed by Monfort, Inc. (Monfort) for 5 1/2 years. In October 1996, as part of his job, Hernandez was on the kill floor pulling barrels weighing over 200 pounds and filled with hocks. He developed pain in his back that was unbearable. Hernandez went to his own physician, Dr. Oppliger, who diagnosed a lumbar strain. Restrictions were put on Hernandez' work until November 1996.
In July 1997, Hernandez began having more pain during his job. This time, the pain was isolated in his buttocks and legs. He was referred to Dr. Gilbert who ran an MRI, which indicated a herniated disc at the L-4-L-5 area of his back. Dr. Gilbert referred Hernandez to Dr. Abay who recommended surgery as a course of treatment. August was also the month Hernandez filed his application for a hearing with the Division of Workers Compensation.
Hernandez underwent surgery in February 1998 and was released to return to work in April 1998. Hernandez testified that when he returned to work, his work hours and, therefore, his pay had been reduced.
The Board found Hernandez had not proven a connection between his injury and the fact he now earns less than 90% of his pre-injury gross average weekly wage. The Board attributed this decrease in wage to be a result of Hernandez working less overtime hours. As a result, the Board held Hernandez was not entitled to a work disability.
The finding a claimant is not entitled to a work disability is a negative finding. Such findings are not to be disturbed "absent an arbitrary disregard of uncontroverted evidence or an extrinsic consideration such as bias, passion, or prejudice." Parsons v. Seaboard Farms, Inc., 27 Kan. App. 2d 843, 848, 9 P.3d 591 (2000).
The crux of Hernandez' contention is that the Board erred in ruling he was not entitled to a work disability even though it found he was now making less. Monfort asserts there is no entitlement to a work disability simply because an employee earns less than 90% of his or her pre-injury wage when the reason for the decrease is not related to an injury. Here, Monfort maintained the reason Hernandez was making less was a decrease in work hours available due to the overall economic situation.
The Board stated:
"Intrinsic to the [Workers Compensation] Act is a requirement that there be some type of causal connection or nexus between the injury and the disability for which the benefits are being awarded. The injury must arise out of the employment. [Citation omitted.] In the case of work disability this requires, in our view, a nexus between the injury and both the task loss and the wage loss. K.S.A. 44- 510e. . . . On its face, the language of the statute suggests the reason for the change in pay is irrelevant.
Nevertheless, the Board believes the fundamental function and purpose of the Act requires that there be a nexus between the injury and the wage loss before that loss can be a factor used to calculate the amount of benefits."
Kansas case law offers several examples of workers compensation claimants who earned less than 90% of their pre-injury wage but did not receive work disability. For instance, in Perez v. IBP, Inc., 16 Kan. App. 2d 277, 279, 826 P.2d 520 (1991), Perez was not awarded work disability because he returned to the same work for the same wage after his injury. And in Foulk v. Colonial Te
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