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Niesz v. Bill's Dollar Stores12/23/1999
Appeal from Worker's Compensation Board.
Affirmed.
Before MARQUARDT, P.J., ELLIOTT, J., and STEPHEN R. TATUM, District Judge, assigned.
Bill's Dollar Stores (Bill's) and Lumberman's Underwriting Alliance (Lumberman's) appeal a decision of the Workers Compensation Board (Board) awarding Niesz a 60 percent work disability.
Niesz, a manager at Bill's, was injured on February 12, 1996, when she pulled a box off a shelf. Niesz notified her supervisor and sought treatment for the injury. Niesz reinjured her back at work on April 11, 1996.
Lumberman's sent Niesz to Dr. Miskew for treatment. On May 29, 1996, Dr. Miskew released Niesz to light duty work with no lifting over 10 pounds. Dr. Miskew determined that Niesz suffered from a 1 percent permanent impairment of the body as a whole with a 10.5 percent task loss. Niesz also saw Dr. Steven Hendler who determined that Niesz had a 5 percent functional impairment.
Bill's allowed Niesz to perform light duty work. Niesz went to the store at night to do paperwork and performed other activities within her work restrictions.
In June 1996, a customer wrote a letter to Bill's home office stating that Niesz "does not possess any sort of desirable people skills. She is rude, unfriendly and makes people feel very uncomfortable to shop in the store." The customer also stated that Niesz had humiliated her 15-year-old daughter in front of other customers and left the store in tears. Two boys wrote the local newspaper and said that Niesz said: "You kids can not shop in the store without your parents." A woman also wrote the local newspaper saying that Niesz "got quite testy with me and refused to take my check because my driver's license was from out of the state." Niesz' employment with Bill's was terminated on July 1, 1996. After her termination, Niesz attempted to find other employment at approximately 40 places. Niesz has been unable to find work. She testified that some of the business owners were concerned about the condition of her back.
Niesz filed an application for hearing with the Division of Workers Compensation on August 9, 1996. The administrative law judge (ALJ) determined that Niesz suffered compensable injuries and gave her a permanent partial impairment of 5 percent. The ALJ ruled, however, that because Niesz continued to work after her second injury, she was precluded from a work disability rating. The ALJ cited K.S.A. 1998 Supp. 4-510e(a) and awarded Niesz the full amount of unauthorized medical expenses, prescription, and mileage costs.
Niesz filed an application for review, claiming she should receive a work disability award. The Board determined that Niesz should be given a 60 percent work disability beginning July 1, 1996, which was the date of her termination, pursuant to K.S.A. 1998 Supp. 44-510e(a). Bill's appeals the Board's decision.
Bill's contends the Board ignored Niesz' ability to earn wages. Bill's argues that when accommodated work is made available at comparable wages, and the work is no longer available due to the fault of the claimant, a work disability rating should be denied.
Appellate review of agency actions is limited to questions of law. Gleason v. Samaritan Home, 260 Kan. 970, 976, 926 P.2d 1349 (1996). The court's interpretation of a statute is a question of law over which appellate review is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
An employee is not entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or
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