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Parsons v. Seaboard Farms7/28/2000
Appeal from Workers Compensation Board.
Affirmed.
Seaboard Farms, Inc. (Seaboard) appeals an order of the Kansas Workers Compensation Board (Board) awarding compensation for permanent partial general disability in excess of functional disability to Cheryl L. Parsons.
Seaboard argues that Parsons is not entitled to work disability because she rejected their offer of accommodated employment for reasons unrelated to her work-related injuries.
We affirm.
The facts are largely uncontroverted. Parsons developed bilateral carpal tunnel syndrome while working as a secretary and payroll clerk at Seaboard's plant near Hugoton, Kansas. Seaboard modified Parsons' tasks in an effort to accommodate her injury, but ultimately Parsons was unable to perform clerical work. Parsons' last day of work was in March 1998, and her final wage was $8.47 per hour.
After Parsons' physician released her with permanent restrictions, Seaboard attempted to provide Parsons with accommodated work near her home in Hugoton. Because Seaboard had no local openings which matched Parsons' physical limitations, Seaboard offered her work as a night security guard at its plant in Guymon, Oklahoma. Seaboard offered Parsons a wage of $7.62 per hour, which was 90 percent of Parsons' previous wage. According to the record on appeal, Guymon is 40 to 45 miles from Hugoton.
Even though her physician approved the work, Parsons rejected Seaboard's offer. As Parsons explained at the hearing:
"I'm not a really big person, and working at nights, and as a security guard, I was scared. I just didn't think I could do it. I didn't want to be out on the road at night coming and going. My car is an older car, putting 90 miles a day on it, I just didn't think it would hold up, and then a cut in pay, with all that, I just didn't want to do it."
Parsons also told Seaboard she would accept a position only if it were comparable in pay, travel distance, working hours, and description to her previous job. Seaboard made no further offers. Although Parsons looked elsewhere for work, she was unemployed at the time of the hearing. Parsons admitted she had limited her search to Hugoton and to work which paid at least $8 per hour. A vocational expert testified Parsons could earn $6.75 per hour in the Stevens County area.
Both the administrative law judge and the Board awarded Parsons compensation for permanent partial general disability in excess of her functional disability. The Board found Parsons acted in good faith in rejecting the security guard position because it was "drastically different than the type of work she had done and the concerns she expressed about the job appear to be reasonable ones." The Board, however, found Parsons had not acted in good faith in limiting her search to jobs in Hugoton which paid at least $8 per hour. Given this finding, the Board imputed to Parsons the wage set by the vocational expert, resulting in a final wage loss of 36 percent.
Permanent partial general disability in excess of functional disability is commonly known as "work disability." See Cooper v. Mid-America Dairymen, 25 Kan. App. 2d 78, 78-79, 957 P.2d 1120, rev. denied 265 Kan. 884 (1998). On appeal, Seaboard argues Parsons was not eligible for any work disability compensation because she turned down accommodated work which paid 90 percent of her wage at the time of the injury. Seaboard maintains Parsons' failure to even attempt the night security guard position created a statutory presumption against work disability compensation.
Before 1993, K.S.A. 44-510e(a) stated: "There shall be a presumption that the employee has no
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