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Roskilly v. Boeing Co.7/29/2005
Affirmed.
Before RULON, C.J., GREENE, J., and KNUDSON, S.J.
The Boeing Company and the Insurance Company of the State of Pennsylvania appeal the decision of the Workers Compensation Board (Board) awarding Patrick J. Roskilly work disability benefits. Boeing argues Roskilly is not entitled to work disability benefits under our previous decision in Watkins v. Food Barn Stores, Inc., 23 Kan. App. 2d 837, 936 P.2d 294 (1997). The following issues are presented: (1) Did the Board correctly interpret K.S.A. 44-510e(a); and (2) is Roskilly entitled to work disability benefits?
We affirm. Under the Board's findings, Roskilly demonstrated substantial task loss and his return to the same work position without accommodation does not preclude an award for work disability benefits.
The underlying facts are not in material dispute. Roskilly was employed at Boeing as an assembler for many years. Beginning in April 1996, Roskilly worked under lifting restrictions because of an unstable back. He was limited to a maximum lift with both arms of 50 pounds and frequent lifts of 35 pounds. On October 25, 2001, Roskilly injured his lower back while lifting a part weighing 50 to 75 pounds. While undergoing medical evaluation and treatment, Roskilly apparently continued to work as an assembler without any additional restrictions that exceeded those previously set in 1996. On December 14, 2001, while still receiving medical care for his injury, Roskilly was laid off due to a general reduction of Boeing's labor force. Significantly, a determination of Roskilly's work disability was not made until much later. Ultimately, the Board found Roskilly was entitled to a work disability award based on 59.5 percent permanent partial disability to the body as a whole.
There is no dispute by the parties that the Board's findings of task loss and wage loss are based on substantial competent evidence in the record. The Board correctly imputed a post-injury wage in determining work disability benefits. Boeing has filed a timely appeal contending that as a matter of law Roskilly is not entitled to benefits based on work disability following his layoff from an unaccommodated position. Boeing argues under K.S.A. 44-510e(a) and our decision in Watkins that permanent partial disability benefits should be based on Roskilly's functional disability only.
K.S.A. 2004 Supp. 44-556(a) specifically subjects workers compensation appeals to the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. This court has jurisdiction to review the Board's interpretation of law and findings of fact. K.S.A. 77-621(c)(4) and (7). While we give deference to the Board's interpretation of the law, if the Board's interpretation is erroneous, we may take corrective action. Neal v. Hy-Vee, Inc., 277 Kan. 1, 11, 81 P.3d 425 (2003). Conversely, we are more restricted in our review of findings of fact. The Board's findings will be upheld if supported by substantial evidence even though evidence in the record would have supported contrary findings. Webber v. Automotive Controls Corp., 272 Kan. 700, 705, 35 P.3d 788 (2001).
Watkins was decided under K.S.A. 1992 Supp. 44-510e(a), which provided the following formula for determining work disability:
"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 disability shall not be le
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