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Lowmaster v. Modine Manufacturing Co.6/12/1998
Appeal from Workers Compensation Board
Reversed and remanded
Modine Manufacturing Company (Modine) appeals the order of the Workers Compensation Board (Board) awarding Jennifer Lowmaster an 80% permanent partial general disability and awarding her damages in the amount of $100,000.
We reverse and remand.
Lowmaster was employed as a press operator by Modine from May 1990 to May 1994. She began to experience pain in her shoulders some time in early 1991. She sought treatment for a brief period in 1991 and again in 1992. She sought no additional treatment from January 1992 until May 1994.
Lowmaster eventually developed pain in both of her wrists. On May 9, 1994, she sought treatment from a company-referred physician, who provided her with wrist splints. She worked with the wrist splints for 2 days and then quit her job.
Lowmaster filed a workers compensation claim on May 25, 1994. By order of the court, she was evaluated by Dr. Tyrone Artz. Dr. Artz found that Lowmaster had sustained a 6% permanent partial functional impairment to her body. Lowmaster was later evaluated by Dr. Ernest Schlachter at the request of her attorney. Dr. Schlachter found that she had a 9% permanent partial functional impairment to her body. He also found that she had a 75% job task loss. Lowmaster was also evaluated by Karen Crist Terrill, a vocational rehabilitation counselor, who found that she had sustained a 33% job task loss.
Special administrative law Judge Douglas F. Martin awarded Lowmaster compensation based on an 8% functional impairment to the body as a whole, but awarded nothing for work or task loss disability. Lowmaster appealed to the Board.
The Board found that Lowmaster was eligible for work disability because she was not employed at 90% of her pre-loss wage at the time her claim was filed. The Board stated that it could not say that Lowmaster would have refused accommodated employment and found that she had an 80% permanent partial general disability. The Board awarded Lowmaster monetary damages in excess of $100,000.
Modine first argues that the Board erred in finding that Lowmaster was entitled to an 80% permanent general disability rating. Interpretation of a statute is a question of law. This court's review of questions of law is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). When interpreting a statute, this court should give effect to the intent of the legislature to the extent that intent can be ascertained. State v. Le, 260 Kan. 845, Syl. 4, 926 P.2d 638 (1996). "The legislature is presumed to intend that a statute be given a reasonable construction, so as to avoid unreasonable or absurd results." 260 Kan. 845, Syl. 4.
K.S.A. 44-510e(a) governs the award of permanent partial general disability benefits. The pertinent section of the statute provides that 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% of the employee's pre-injury average weekly wage.
This court has previously interpreted K.S.A. 44-510e(a). In Foulk v. Colonial Terrace, an employee refused an employer's offer of accommodated employment and then claimed that she was entitled to work disability. 20 Kan. App. 2d at 280. The employee argued that the presumption of no work disability does not apply if a worker has the ability to engage in such work but chooses not to do so. 20 Kan. App. 2d at 283.
This court found that to construe K.S.A. 44-510e(a) in this
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