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Green v. City of Wichita3/26/1999
Appeal from Workers Compensation Board.
Affirmed.
The City of Wichita (City) appeals from an award in a workers compensation claim.
The City argues that Alan Green's workers compensation benefits should be reduced by the amount of benefits he receives from his retirement pension and that Green voluntarily removed himself from the labor market.
We affirm.
In November 1993, Green, a 40-year-old firefighter, injured his back moving some emergency rescue equipment. In February 1994, he reinjured his back and underwent surgery for a herniated disc. He returned to work in August 1994 for light duty subject to work restrictions. Upon returning to work, he was instructed by his immediate supervisor to fill out his retirement papers. Green had two separate retirement plans, one, an age-based retirement plan, and the other, a service-related disability benefit plan.
Green also filed an application for a workers compensation hearing. The administrative law Judge (ALJ) entered an award finding Green suffered an 89 percent permanent partial general body work disability. The Judge offset the award by the amount of Green's benefits under the City's retirement plan. Both the City and Green timely applied for review of this order. The Workers Compensation Board (Board) affirmed the ALJ's award, but held the City was not entitled to offset Green's benefits under the retirement plan. The City timely appeals to this court.
1. K.S.A. 44-501(h)
The Board determined that the benefits Green receives through the City's retirement system are not in the nature of retirement benefits and are therefore not subject to statutory offset.
K.S.A. 44-501(h) states:
"If the employee is receiving retirement benefits under the federal social security act or retirement benefits from any other retirement system, program or plan which is provided by the employer against which the claim is being made, any compensation benefit payments which the employee is eligible to receive under the workers compensation act for such claim shall be reduced by the weekly equivalent amount of the total amount of all such retirement benefits, less any portion of any such retirement benefit, other than retirement benefits under the federal social security act, that is attributable to payments or contributions made by the employee, but in no event shall the workers compensation benefit be less than the workers compensation benefit payable for the employee's percentage of functional impairment." (Emphasis added.)
Interpretation of workers compensation statutes involves a question of law, over which this court exercises unlimited review. Helms v. Pendergast, 21 Kan. App. 2d 303, 307, 899 P.2d 501 (1995). The intent of the legislature governs the construction of a statute, if that intent can be ascertained. 21 Kan. App. 2d at 307. In ascertaining legislative intent, this court may consider the language of the statute, the historical background of the enactment, the purpose to be accomplished, and the effect the statute may have under various suggested constructions. 21 Kan. App. 2d at 307.
Our Supreme Court discussed the legislative intent underlying K.S.A. 44-501(h) in Injured Workers of Kansas v. Franklin, 262 Kan. 840, 872, 942 P.2d 591 (1997):
"We hold the legislature intended to prevent duplication of wage loss replacement with the offset provision. The legislature concluded that it did not make sense to prevent duplication of replacement wages from social security benefits that were partially employer funded and not prevent such duplication of wages from employer-funded private pensions. . . .
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