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Roskilly v. Boeing Co.7/29/2005
that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury. In any event, the extent of permanent partial general disability shall not be less than the percentage of functional impairment. . . . An employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury." (Emphasis added.) K.S.A. 44-510e(a).
In interpreting K.S.A. 44-510e(a) and contrasting it with the prior law and Watkins, the Board stated:
"It is no longer an ability test, at least not in the sense of being applicable to the prospective job market, that is from the date of accident forward. Putting aside for the moment the question of good faith, to the extent ability is still a factor under the current statute, it is retrospective, instead of prospective. That is because the extent to which the injured worker's ability to work has been impacted is measured by the loss of actual job tasks the worker performed in any substantial gainful employment during the fifteen-year period preceding the accident. The loss is no longer measured by the total open labor market that exists after the accident. The rationale for this change was to get away from hypothetical jobs which the worker may or may not have had the education, training or experience to perform, and to, instead, utilize jobs the worker actually performed. The effect of this change is to render meaningless the distinction between accommodated and unaccommodated jobs, except to the extent that the concepts impact the task loss analysis. Accordingly, it is only in the situation where the injured worker had worked exclusively in the same job for the entire fifteen years preceding the accident that the successful return to that same unaccommodated job would establish a prima facie case for no work disability.
"In short, Watkins involved a different definition of work disability. The former version of K.S.A. 44-510e involved an ability test both as to jobs and wages, and Watkins is premised on that ability test. This distinction has been recognized by the Court of Appeals.
"Currently, ability or capacity to earn wages only becomes a factor when a finding is made that a good faith effort to find appropriate employment has not been made. Copeland v. Johnson Group, Inc., 26 Kan. App. 2d 803, 804, 995 P.2d 369 (1999), rev. denied 269 Kan. 931 (2000). Once a finding has been made that the claimant has established a good faith effort, the difference in pre- and post-injury wages can be based on the actual wages made. Copeland, 26 Kan. App. 2d at 804."
The Board concluded K.S.A. 44-510e(a) does not preclude an award of work disability after a claimant's loss of employment, even though due to reasons other than his or her injury.
We agree with the Board's interpretation of K.S.A. 44-510e(a). "The new two-part test for finding and measuring work disability includes both a measurement of the loss of ability to perform work tasks and actual loss of wages resulting from the worker's disability." Gadberry v. R.L. Polk & Co., 25 Kan. App. 2d 800, 802-03, 975 P.2d 807 (1998). In Gadberry, the court held: "An employee who returns to work at the employee's pre-injury wage and then within a few weeks of the date of return receives a termination notice due to
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