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Roskilly v. Boeing Co.7/29/2005
ss than percentage of functional impairment. . . . There shall be a presumption that the employee has no work disability if the employee engages in any work for wages comparable to the average gross weekly wage that the employee was earning at the time of the injury."
In Watkins, the claimant returned to work post-injury and performed the same work for the same wage. In reversing the Board's award based upon work disability, the court held that " here a previously injured employee returns to work in an unaccommodated job and earns wages comparable to those earned before his or her injury, the presumption of no work disability applies and will not be rebutted absent evidence of a change in the employee's physical condition." (Emphasis added.) 23 Kan. App. 2d 837, Syl.
The court further explained its rationale, stating:
" t is uncontroverted that Watkins' physical condition has not changed since his injury. It follows that physically, Watkins' ability to perform work in the open labor market and earn comparable wages has not changed. The only change comes in the form of Watkins' decreased earnings since his layoff from Food Barn. However, work disability focuses on the reduction in a claimant's ability to earn wages, not on the actual wages lost. [Citation omitted.] Here, Watkins' abilities have remained constant." 23 Kan. App. 2d at 840.
The Watkins decision is clearly not controlling under the undisputed facts of this appeal. Although Roskilly returned to his regular employment without accommodation by Boeing, the Board's findings are conclusive that a presumption of no work disability was successfully rebutted. The Board accepted Dr. Murati's opinion that his physical restrictions precluded Roskilly from performing all of his regular duties. The Board summarized Dr. Murati's restrictions as follows:
"He restricted claimant to bending rarely and prohibited crawling. He limited the claimant to occasional sitting, climbing stairs, climbing ladders, squatting and driving, with frequent standing and walking allowed. He limited claimant's occasional lifting to a maximum of 35 pounds and frequent lifting up to 20 pounds."
The Board also accepted Dr. Murati's and Dr. Brown's separate opinions that Roskilly had a 10 percent impairment to the body as a whole and Murati's opinion that Roskilly suffered a 62 percent loss of tasks.
The Board correctly observed:
"It is the function of the trier of fact to decide which testimony is more accurate and/or credible and to adjust the medical testimony along with the testimony of the claimant and any other testimony which may be relevant to the question of disability. The trier of fact is not bound by medical evidence presented in the case and has the responsibility of making its own determination."
It is apparent the Board recognized the unique circumstances of this case. Roskilly returned to regular employment for a very limited period of time before the layoff; his medical treatment continued with definitive evaluations only after termination; those medical evaluations assessed changes in Roskilly's physical condition as a direct result of the injury sustained on October 25, 2001; and the evaluations found most credible by the Board support its determination of work disability.
We turn next to discussion of the Board's interpretation of existing K.S.A. 44-510e(a), amended by the legislature in 1993. The statute states, in material part:
"The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks
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