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McIntosh v. Sedgwick County12/9/2005
Reversed and remanded with directions.
Before McANANY, P.J., GREEN and MARQUARDT, JJ.
This case concerns the calculation of workers compensation benefits for a permanent total disability when there has been an offset for retirement benefits under K.S.A. 44-501(h). Willie McIntosh appeals the decision of the Workers Compensation Board (Board) which not only reduced his weekly workers compensation amount by his applicable weekly retirement benefits but also reduced the $125,000 statutory cap on an employer's liability for permanent total disability benefits under K.S.A. 44-510f(a)(1). This award effectively limited the number of weeks that McIntosh could receive workers compensation.
On appeal, McIntosh argues that K.S.A. 44-501(h) reduces the weekly compensation rate by the amount of the offset for retirement benefits but does not limit the number of weeks payable for permanent total disability compensation. We agree. In construing K.S.A. 44-510c(a)(1) and K.S.A. 44-510f(a)(1), we determine that the legislature intended for permanent total disability payments to continue until the employee no longer suffers from such disability or until the $125,000 statutory cap on an employer's liability is reached, whichever event occurs first. There is no indication that the legislature intended for the workers compensation offset under K.S.A. 44-501(h) to reduce the $125,000 cap on an employer's liability for permanent total disability payments, thereby limiting the number of weeks that permanent total disability benefits are payable. Because the Board's decision terminated McIntosh's workers compensation benefits after 341 weeks and before the $125,000 statutory cap on the employer's liability would have been met, we hold that the award was improper. Accordingly, we reverse and remand with directions that the payments ordered by the Board shall continue until McIntosh's permanent total disability has ended or until the $125,000 maximum allowable payment for permanent total disability has been exhausted, whichever event occurs first.
On June 25, 1999, McIntosh sustained injuries while working as a security officer for Sedgwick County (County). McIntosh filed a workers compensation claim, and in January 2003 the administrative law judge (ALJ) found McIntosh to be permanently and totally disabled. Regarding the weekly workers compensation benefits payable to McIntosh, the parties agreed that the County was entitled to an offset of $39.26 per week under K.S.A. 44-501(h) for McIntosh's retirement benefits from the Kansas Public Employees' Retirement System (KPERS). The parties, however, could not agree on whether the County was entitled to an offset under K.S.A. 44-501(h) for McIntosh's social security retirement benefits. The ALJ determined that the County was not entitled to an offset for McIntosh's social security retirement benefits.
The Board affirmed the ALJ's award and determined that the County was not entitled to a social security retirement credit or offset under K.S.A. 44-501(h). On appeal, this court reversed the Board's decision and remanded the case, determining that K.S.A. 44-501(h) applied to McIntosh's case and that the County was entitled to an offset for the social security retirement benefits in McIntosh v. Sedgwick County, 32 Kan. App. 2d 889, 91 P.3d 545, rev. denied 278 Kan. 846 (2004).
On remand, the Board calculated the offset under K.S.A. 44-501(h) for McIntosh's retirement benefits and also set forth the total amount of workers compensation benefits payable to McIntosh. In doing so, the Board indicated that a permanent total disability pays a maximum benefit of $125,000 at a weekly compensation rate based on the calculation unde
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