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KANSAS WKRS. COMPENSATION FUND v. W.F. ANDERSON

September 28, 1990.

KANSAS WORKERS COMPENSATION FUND, Appellant,
v.
W.F. ANDERSON CO. AND BITUMINOUS INSURANCE CO., Appellee.



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 liability.

[14 Kan. App. 2d 757]

      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 decision.

  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 Our conclusions and instructions to the trial court in that case, No. 63,175, unpublished opinion filed August 25, 1989, were as follows: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 awards."
  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

[14 Kan. App. 2d 758]

      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 = $2,490.

  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 to respondent.

  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, ...


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