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Edwards v. Klein Tools1/29/1999
Appeal from the Workers Compensation Board. Opinion filed January 29, 1999. Reversed and remanded with directions.
David Joe Edwards appeals from an order of the Kansas Workers Compensation Board (Board). On appeal, Edwards contends that the Board erroneously calculated his average wage. We agree and reverse and remand for recalculation of Edwards' average wage.
Edwards worked for Klein Tools, Inc., for approximately 16 years and was earning $12.87 per hour. While attempting to move a die block in May 1994, Edwards twisted his back. He felt a sharp pain around his belt line. He reported his injury to his supervisors. When Edwards was released to return to work, he was limited to light-duty work.
Edwards again injured his back in June 1994, developing a debilitating pain in the back of his leg. In September 1994, he stopped work because of the leg pain. In October 1994, a physician determined that the leg pain was caused by a herniated disc. Another physician linked the disc problem to the on-the-job back injuries.
In January and February 1995, Edwards filed applications for workers compensation hearings, which were consolidated. Although he received a physician's release for light-duty work in May 1995, Klein Tools refused to allow him to return to work without a no-limitation release. Edwards then began working at a service station, performing light-duty work and earning $6 per hour. More than a year later, in July 1996, Klein Tools offered him a position as a grinder at $9.05 per hour, which Edwards declined.
The parties stipulated to injury on the job, notice, compensability, and a 10 percent permanent partial general body impairment; they also stipulated to an average pre-injury weekly wage of $718.06 and fringe benefits of $184.40. In February 1997, the administrative law Judge calculated Edwards' average weekly wage based on the grinder position which he had refused. The Board affirmed the wage calculation.
The Act for Judicial Review and Civil Enforcement of Agency Actions, specifically K.S.A. 77-621(c), provides the grounds upon which relief may be granted in appeals of workers compensation awards entered on or after October 1, 1993. See K.S.A. 1997 Supp. 44-556(a). K.S.A. 77-621 provides:
"(c) The court shall grant relief only if it determines any one or more of the following:
" (7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act." (Emphasis added.)"
"Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a Conclusion." In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, Syl. 2, 891 P.2d 422 (1995).
K.S.A. 1997 Supp. 44-510e(a)computes compensation based on loss of job performance ability "averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury." (Emphasis added.)
Relying on Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), the Board rejected Edwards' claim that he did not voluntarily take himself out of the labor market or that he did not try to manipulate the workers compensation system. The Board's reliance on Foulk is misplaced.
In Foulk, this court interpreted an earlier version of the statute to include a good-fait
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