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Wishon v. Cossman11/5/1999
SYLLABUS BY THE COURT
1. The intent of K.S.A. 44-504(b) is twofold: to preserve injured workers claims against third-party tortfeasors and to prevent double recoveries by injured workers.
2. K.S.A. 44-504(b) grants employers subrogation liens on tort recoveries by injured workers only to the extent that the worker's recovery duplicates compensation and medical expenses paid by the employer under the Workers Compensation Act.
3. An employer with subrogation interests under K.S.A. 44-504(b) may intervene to protect subrogation rights in an action by an injured worker against a third-party tortfeasor.
4. The purpose of the K.S.A. 1998 Supp. 44-501(h) offset provision is to prevent wage-loss duplication.
5. Where an injured worker is receiving a workers compensation award and also social security disability payments which are converted to social security retirement benefits because the recipient reaches age 65, the workers compensation award is subject to the K.S.A. 44-501(h) offset provision.
Appeal from Finney district court in case No. 80,743; MICHAEL L. QUINT, Judge. Affirmed. Appeal from the Workers Compensation Board in case No. 81,341. Affirmed. Opinion filed November 5, 1999.
The opinion of the court was delivered by
This is a workers compensation statutory construction case. We review two consolidated cases with separate but related issues. The first case, an appeal from the district court, involves the extent of an employers subrogation lien under K.S.A. 44-504(b). The second concerns a K.S.A. 1998 Supp. 44-501(h) social security offset imposed by the Workers Compensation Board (Board).
Helena Chemical Company is the employer. Reliance Insurance Company is the workers compensation carrier (collectively "Helena"). Helena is the appellant on the K.S.A. 44-504(b) subrogation issue and appellee on the K.S.A. 1998 Supp. 44-501(h) offset issue. The district court held that Helena was subrogated only to $16,890.98 of a $150,000 judgment obtained by Raymond J. Wishon, the injured worker, against the third-party tortfeasor in a negligence action. With respect to the K.S.A. 1998 Supp. 44-501(h) offset case, the Board reduced Wishon's workers compensation award by the amount of social security benefits he is receiving. Wishon appeals.
Our jurisdiction is under K.S.A. 20-3018(c) (a transfer on our motion).
The two consolidated issues are: (1) whether the district court erred in determining that only the amount of the judgment which was duplicative of workers compensation payments was subject to Helena's K.S.A. 44-504(b) subrogation lien; and (2) whether the Board erred in reducing Wishon's award by the amount of social security benefits he is receiving.
Finding no error, we affirm.
FACTS
Wishon was injured in a motor vehicle accident on May 18, 1994, in the course of his employment. Although Wishon worked part-time until March 2, 1995, he continued to receive his full salary of $986.42 per week, for a total of $40,729.28. Helena also paid Wishon's salary from March 3, 1995 to September 1, 1995, a total of $25,646.92, even though Wishon was on disability leave. Helena also paid $16,890.98 in medical benefits.
Wishon sued Gary Cossman, the driver of the tractor-trailer that hit his pick-up truck, and Cossman's employer and its insurance carrier for injuries arising from the accident. Helena filed a K.S.A. 44-504(b) notice of lien. We find no suggestion in the record that Helena exercised its K.S.A. 44-504 statutory right to intervene in the tort case to protect its lien. Wishon's lost wages claim commenced on Sept
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