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Graham v. Dokter Trucking Group

July 13, 2007

JOHN ELLIOTT GRAHAM, APPELLEE,
v.
DOKTER TRUCKING GROUP, SOLDIER CREEK TRANSPORTATION, UNION INSURANCE COMPANY, AND CONTINENTAL WESTERN INSURANCE COMPANY, APPELLANTS.



Appeal from Workers Compensation Board. Judgment of the Court of Appeals affirming in part, reversing in part, and remanding with directions to the Workers Compensation Board is reversed. Judgment of the Workers Compensation Board is affirmed.

SYLLABUS BY THE COURT

1. An appellate court's scope of review on a question of fact arising from an administrative proceeding is defined by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions. The Act provides that the court shall grant relief only if an agency action is based on a determination of fact, made or implied, that is not supported by evidence that is substantial when viewed in light of the record as a whole. Substantial evidence in the workers compensation context is evidence possessing something of substance and relevant consequence to induce conviction that an award is proper; it furnishes a basis of fact from which an issue can be resolved reasonably. The court reviews the evidence in the light most favorable to the prevailing party and does not reweigh competing evidence or assess credibility of witnesses. The Workers Compensation Board's findings will be upheld if supported by substantial evidence even though other evidence in the record would have supported contrary findings. Appellate determination of whether the Board's findings of fact are supported by substantial competent evidence raises a question of law.

2. The determination of an administrative body on a question of law is not conclusive. While persuasive, it is not binding on an appellate court.

3. When a statute is plain and unambiguous, a court must give effect to its express language, rather than determine what the law should or should not be. The court will not speculate on legislative intent and will not read the statute to add something not readily found in it. If the statute's language is clear, there is no need to resort to statutory construction.

4. K.S.A. 44-510e(a) sets out the method for computing the extent of a permanent partial general disability, defines functional impairment, and limits disability awards in certain situations. A permanent partial general disability exists when an employee is disabled in a manner partial in character and permanent in quality that is not covered by the K.S.A. 44-510d schedule. Stated mathematically, the percentage of permanent partial general disability is equal to the percentage of task loss plus the percentage of wage loss divided by two.

5. Task loss percentage is defined by the plain language of K.S.A. 44-510e(a) as the percentage to which the employee, in the opinion of a physician, has lost the ability to perform the preinjury work tasks.

6. Wage loss percentage is defined by the plain language of K.S.A. 44-510e(a) as the difference between the preinjury average weekly wage and the postinjury weekly wage. Evidence of a physician's opinion is not necessary to support the existence of wage loss. Rather, it is simply calculated by the factfinder.

7. On the facts of this case, the Workers Compensation Board's finding that claimant had a wage loss to be averaged with task loss to arrive at a percentage for permanent partial general disability was supported by substantial competent evidence on the record as a whole, when that record is considered under correct legal standards.

Review of the judgment of the Court of Appeals in 36 Kan. App. 2d 521, 141 P.3d 1192 (2006).

The opinion of the court was delivered by: Beier, J.

This appeal calls upon us to decide the necessity of a physician's opinion to support the existence of a compensable wage loss under K.S.A. 44-510e(a) and to evaluate the sufficiency of evidence to support the Workers Compensation Board's assessment of wage loss and thus permanent partial general disability award in this particular case.

Factual and Procedural Background

Claimant John Elliott Graham is a trucker who fell from a trailer in February 2002, injuring his right arm, right leg, and neck. Graham notified his employers, respondents Soldier Creek Transportation and Dokter Trucking, of his injury and his workers compensation claim. Claimant received temporary total disability benefits until released to return to work without restrictions the next month.

Claimant attempted to perform his job duties but was prevented from doing so adequately by headaches and persistent neck pain. After 6 months with no improvement in his condition, claimant saw Dr. Bernard Poole, who took claimant off work. Again, claimant received temporary total disability benefits until he returned to work without restrictions the following month.

After 2 days of work--including loading, handling hoses to fill and clean trailers, and other tasks on the ground--claimant and his boss, the sole owner of Soldier Creek, decided "it just wasn't going to work," and claimant was sent home.

Claimant returned to work with full accommodations in early January 2003. The accommodations consisted of reassignment to drive for a different carrier, Federal Express (FedEx), for whom claimant was not required to do any lifting or climbing. In addition, FedEx used "air ride trucks," meaning less "jostling around" while claimant was driving. Despite these accommodations, pain again forced claimant to leave work 2 weeks later.

The following June, claimant returned to work at his FedEx assignment. However, he restricted his work week to 2 or 3 days because of pain. Soldier Creek accommodated this schedule, allowing claimant to work for as long as he could tolerate the discomfort it caused.

At claimant's December 2004 hearing on his eligibility for a permanent partial general disability award, the parties introduced expert testimony by way of the depositions of vocational consultant Michael J. Dreiling and of Dr. Daniel Zimmerman. In addition, Dr. Chris Fevurly was deposed after the hearing, and his testimony was added to the hearing record.

Dreiling had reviewed claimant's medical records and interviewed him before preparing an "Essential Task Performing Analysis." Based on what Dreiling had learned about claimant's work history and the duties claimant had been responsible for during the previous 15 years, the report set out seven essential tasks. However, it also reflected that the FedEx job required claimant to perform only two of the seven: truck driving and logbook ...


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