The Kansas Workers Compensation Fund (Fund) appeals the
decision of the district court apportioning a settled
compensation award between the Fund and the respondent.
This is the second occasion we have confronted an appeal in
this particular workers compensation claim. On the first appeal,
we reversed the district court and, after our review on this
second occasion, we have no choice but to reverse again.
The claimant is not a party to this appeal, nor was he a party
to the first appeal. The question of how much workers
compensation claimant would receive for his injuries was settled
in 1986. Since that time, the litigation has continued between
the Fund and the respondent on the issue of the Fund's liability.
The facts indicate the claimant suffered an injury to his back
while working for respondent on July 20, 1984. On July 25, 1984,
he suffered yet another injury. The parties negotiated a
settlement figure of $27,500, and this amount was stipulated to
be reasonable and appropriate by the Fund. While agreeing to the
total settlement figure, the Fund denied any liability and
reserved the right to litigate the issue of its liability.
Subsequent to the settlement hearing, the Fund and the
respondent proceeded to litigate the issue of the Fund's
It was ultimately determined by the Administrative Law Judge
(ALJ), the director, and the trial court that claimant had
sustained a zero to five percent functional disability after the
first accident and a ten percent functional disability overall
after the second accident. Based on these determinations, the
trial court found that the Fund was responsible for 100 percent
of the $27,500 settlement figure. The Fund appealed that
On appeal, we reversed. We did so on the basis of the decisions
in Brozek v. Lincoln County Highway Dept., 10 Kan. App. 2d 319,
689 P.2d 392 (1985), and Spencer v. Daniel Constr. Co.,
4 Kan. App. 2d 613, 609 P.2d 687, rev. denied 228 Kan. 807 (1980). We
remanded, instructing the trial court to make findings comparing
disability figures before and after the second injury and to make
awards for each injury. Our conclusions and instructions to the
trial court in that case, No. 63,175, unpublished opinion filed
August 25, 1989, were as follows:
"The trial court should have compared disability
figures before and after the second injury to
determine the proportion of the total cost of the
award attributable to the second injury. Derrig
suffered a 0-5 percent functional disability
following the first accident and a 10 percent
functional disability following the second accident.
Also, there is no finding as to the work disability
Derrig suffered following the second accident.
"Because the trial court stated a range of
functional disability suffered by Derrig after the
first accident and because there is no finding
regarding work disability, this case must be remanded
for determination of the difference in functional
disability and for the entry of separate awards.
"Reversed and remanded for the entry of separate
The trial court was not, however, reversed on at least two
issues which we deemed to have been decided on the first appeal:
(1) The claimant's functional disability was ten percent
permanent partial general bodily disability, and (2) the second
injury would not have occurred but for the first injury, making
the Fund liable for 100 percent of the compensation due as a
result of the second injury. Brazek, 10 Kan. App. 2d 319;
Spencer, 4 Kan. App. 2d 613.
On remand, the trial court, pursuant to our direction, found
that, as a result of the first injury, claimant sustained a
permanent partial general bodily disability of 2.5 percent.
Overall, the total disability was ten percent, making the second
injury responsible for a partial general bodily disability of 7.5
percent. Based on
these findings, the trial court apportioned 25 percent of the
medical expenses and other costs to respondent and 75 percent of
those medical expenses and other costs to the Fund. This
apportionment is not questioned by the Fund.
The trial court was instructed to compare disability figures
before and after the second injury to determine the proportion of
the total cost of the award attributable to the second injury.
There is no question but that the trial court properly made
findings to compare disability figures before and after the
second injury. The difficulty is with the trial court's
apportionment of the $27,500 settlement award between the Fund
and the respondent. In making this apportionment, the trial court
ignored the settlement figure in determining the respondent's
liability. The court determined the respondent's liability by
using the mathematical formula contained in K.S.A. 1989 Supp.
44-510e as if the trial court were making an original award of
compensation. The claimant's average weekly wage was agreed to be
$360, and the court computed the amount owed by the respondent
for the first injury as follows: $360 x .667 = $240 x 0.025 x 415
After having computed the above assessment as the
responsibility of the respondent and without making any
calculations as to the second injury, the trial court assessed
the balance of the settlement figure, $25,010, to the Fund. That
assessment is incorrect and requires that we reverse and remand.
We do so even though, interestingly enough, both parties insist
that the trial court made the correct calculations. The
respondent does so because it finds the results to its liking.
The Fund does so because it wants any award against it determined
in the same manner as the trial court determined the award
against respondent. This result would not be nearly as pleasing
The law in apportioning an award of compensation between a
respondent and the Fund has been thoroughly dissected and
explained in Brozek and Spencer. These two cases very clearly
state that the Fund is liable for only the proportion of the cost
of the award attributable to the second injury, and then only to
the extent the second injury was contributed to by the
preexisting impairment. Spencer, ...