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MINER v. M. BRUENGER & CO.6/26/1992
This is a workers compensation appeal. The trial court ruled that Leo J. Miner had a 30% permanent partial general bodily disability. The court also computed the amount of credit the Workers Compensation Fund (Fund) was entitled to receive pursuant to K.S.A. 44-510a, which provides for a reduction in compensation for prior compensable permanent injuries when a second injury which is compensable occurs. Miner appeals both rulings. We affirm.
FACTS
Miner was employed as a truck driver by M. Bruenger & Co., Inc. (MBC). On the day of this injury, October 5, 1987, Miner "put truck in the ditch" at one of his stops. He got the truck out and continued on his route. Miner noticed pain in his lower back when the road was rough. He advised MBC that his injury was so painful that he could not continue to drive. MBC directed Miner to pick up a load near Detroit and haul it to Oklahoma City. Miner picked up the load and took it to Wichita, although the back pain forced him to stop frequently. After Miner returned to Wichita, he was fired for having driven his truck into the ditch.
PRIOR INJURY
Miner had previously injured his lower back while employed
by Earp Meat Company in November of 1986. Dr. Pollock, an orthopedic surgeon, treated Miner and eventually operated on him. This surgery produced less than ideal results. In June of 1987, despite Miner's complaints of pain, Dr. Pollock released him to return to work.
Miner had a 20% permanent partial impairment as a result of the 1986 injury. Miner received temporary total disability benefits of $5,398.68 and a lump sum payment of $61,500.
Miner's testimony and Dr. Pollock's testimony are not in harmony as to whether any restrictions were placed on Miner as a result of the 1986 injury. Miner testified Pollock placed no restrictions upon discharge. Pollock testified he recommended "no lifting at all and no unloading."
SECOND INJURY
Dr. Pollock testified that the second injury resulted in an increase of Miner's functional impairment from 20% to 25-30% of the body as a whole.
An administrative law judge found that Miner had sustained a 60% permanent partial general bodily disability and assessed the entire liability to the Fund. The administrative law judge found the second injury to be a new and compensable injury, stemming from either an aggravation of a preexisting condition or a new injury as a result of a preexisting condition. The administrative law judge's ruling was affirmed by the director.
The Fund petitioned for judicial review, arguing that the award was not supported by the evidence. The district court found Miner was entitled to a 30% permanent partial general bodily disability, after finding that Miner's vocational expert, Jerry Hardin, "failed to consider the limitations and restrictions on the claimant's physical abilities which were attributable to the claimant's prior injury and were present before the claimant was ever hired by respondent."
DISTRICT COURT'S FINDINGS
The court agreed with the administrative law judge "that the extent to which the prior disability contributed to the present disability was 100 percent." The court then concluded that, pursuant to K.S.A. 44-510a, the Fund was entitled to a credit of $156.43 per week. To arrive at the amount of the credit, the
court divided the $61,500 amount paid in the first claim by 393.14, the number of weeks Miner was eligible to receive permanent partial disability benefits in the prior claim. Miner appeals.
FUNCTIONAL IMPAIRMENT RULING
The standard of review in workers compen
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