 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
LEE v. BOEING CO.7/28/1995
The Boeing Company — Wichita (Boeing) and Aetna Casualty & Surety Company appeal the Workers Compensation Board's (Board) determination that Anthony K. Lee had suffered a 37 percent work disability. Boeing argues that once the presumption of no work disability applies, it cannot be rebutted by evidence of a subsequent layoff. Lee cross-appeals, arguing that the evidence warrants a higher work disability rating. We affirm.
Lee worked for Boeing in the 747 wheel well department. His duties required him to work with 30-pound hand and pneumatic tools. In June 1991, he injured his back when he twisted while using a large hand tool called a squeeze.
Dr. Paul Lesko released Lee to return to work on October 14, 1991; however, Dr. Kenneth Zimmerman, at Boeing, continued to keep Lee off work until January 26, 1992, when he returned to work at the frame shop. Lee worked there for two weeks but could not complete the job because of excessive bending requirements. Lee was finally moved to a light duty job working with small hand tools and frames and remained there until he was laid off in June 1993 for economic reasons.
Before he was laid off, Lee's wages were comparable to his wages prior to his injury. After the layoff, Lee found employment as a karaoke host earning approximately $150 per week.
Two witnesses testified as to Lee's work disability. After considering the restrictions proposed to be placed on Lee by the Boeing doctor, Lee's evaluating physician, and Lee's treating physician, Jerry Hardin, a personnel consultant, testified that Lee had suffered a 53 percent wage loss.
Karen Terrill, a vocational rehabilitation counselor, considered the restrictions proposed by the Boeing doctor and Lee's evaluating physician. However, she concluded that since Lee returned to work for a year and a half at a comparable wage, he had suffered no wage earning loss.
The administrative law judge (ALJ) concluded that Lee had suffered a functional impairment of 7 to 8 percent and a 14 percent
work disability. The ALJ reached the work disability figure based on the average of a 28 percent labor market loss and no wage loss. Although it is not entirely clear in the opinion, the ALJ appears to have held that Lee rebutted the presumption of no work disability but provided no evidence of wage loss.
The Board rejected the ALJ's finding that Lee had presented no evidence of wage loss. The Board applied the presumption of no work disability. The Board held that the presumption was not overcome as to the period of time between the injury and the layoff. The Board held that the presumption was overcome as of the date of the layoff. The Board held that Lee had suffered a 37 percent work disability as of the date of the layoff. Boeing appeals. Lee cross-appeals.
Boeing's first two arguments amount to a contention that the Board erred in awarding a 37 percent work disability as of the date of the layoff. Boeing argues that once the presumption of no work disability applies, it may not be rebutted by evidence that Lee later lost his job due to an economic layoff. Boeing contends that the issue presented is one of statutory interpretation. Boeing points to K.S.A. 1992 Supp. 44-510e(a), which states in part:
"The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the ability of the employee to perform work in the open labor market and to earn comparable wages has been reduced, taking into consideration the employee's education, training, experience and capacity for rehabilitation, except that in any event the extent of permanent partial general disability shall
Page 1 2 3 4 5 6 Kansas Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|