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Wheeler v. Boeing Company11/13/1998
Appeal from Workers Compensation Board. Opinion filed November 13, 1998.
Affirmed.
This is an appeal by Danford R. Wheeler, Jr., of a ruling by the Workers Compensation Board (Board) interpreting K.S.A. 1997 Supp. 44-510e.
We are asked to interpret how K.S.A. 1997 Supp. 44-510e applies in a situation where an employee's permanent partial disability (PPD) benefits change from work disability to functional impairment benefits (or vice versa). This court has jurisdiction to grant relief when the Board "has erroneously interpreted or applied the law." K.S.A. 77-621(c)(4); K.S.A. 1997 Supp. 44-556(a). We have unlimited review of issues of statutory interpretation. Lee v. Boeing Co., 21 Kan. App. 2d 365, 368, 899 P.2d 516 (1995).
The statute in effect at the time of Wheeler's injury sets forth the following formula for calculating weekly benefits for permanent partial disability:
"The amount of weekly compensation for permanent partial general disability shall be determined as follows: "(1) Find the payment rate which shall be the lesser of (A) the amount determined by multiplying the average gross weekly wage of the worker prior to such injury by 66 2/3% or (B) the maximum provided in K.S.A. 44-510c and amendments thereto; "(2) find the number of disability weeks payable by subtracting from 415 weeks the total number of weeks of temporary total disability compensation was paid, excluding the first 15 weeks of temporary total disability compensation that was paid, and multiplying the remainder by the percentage of permanent partial general disability as determined under this subsection (a); and "(3) multiply the number of disability weeks determined in paragraph (2) of this subsection (a) by the payment rate determined in paragraph (1) of this subsection (a)."
"The resulting award shall be paid for the number of disability weeks at the full payment rate until fully paid or modified. . . . In any case of permanent partial disability under this section, the employee shall be paid compensation for not to exceed 415 weeks following the date of such injury, subject to review and modification as provided in K.S.A. 44-528 and amendments thereto." K.S.A. 1997 Supp. 44-510e(a).
Under this formula, an employee entitled to receive PPD benefits gets a full two-thirds of his regular gross weekly wage, up to the statutory maximum, even if he or she continues to work. The length of time the employee receives those weekly benefits, however, is determined by the amount of temporary total disability (TTD) benefits the employee received and the disability rating attributable to the injury. The higher the disability rating, the longer period the employee receives PPD benefits.
The current benefit formula of K.S.A. 1997 Supp. 44-510e was the result of substantial amendments made to the Workers Compensation Act by the 1993 legislature. L. 1993, ch. 286, ยง 34. Prior to the 1993 amendments, PPD benefits were calculated differently. All injured employees were entitled to up to 415 weeks of PPD benefits, but the weekly benefit was two-thirds of his or her regular gross weekly wage multiplied by his or her disability rating. Thus, an injured employee received less every week, but for a longer period of time. See K.S.A. 1992 Supp. 44-510e(a).
Wheeler was injured on February 27, 1994, while working for The Boeing Company (Boeing). He was treated medically and was off work, receiving TTD benefits, for 24.5 weeks.
Wheeler was eventually released to return to work, but, by that time, Boeing had eliminated his position. Wheeler pursued a claim against Boeing and eventually received 115.14 weeks of PPD benefits.
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