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Deguillen v. Schwan's Food Manufacturing

December 7, 2007; as amended January 8, 2008

RAFAELA ZEPEDA DEGUILLEN, APPELLEE,
v.
SCHWAN'S FOOD MANUFACTURING, INC., AND HARTFORD ACCIDENT & INDEMNITY CO., APPELLANTS.



Appeal from Workers Compensation Board.

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. K.S.A. 77-621(c)(7) 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 the 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 the credibility of witnesses.

2. In Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied The opinion of the court was delivered by: Greene, J.

Affirmed in part and reversed in part.

Before RULON, C.J., GREENE, J., and BRAZIL, S.J.

Schwan's Food Manufacturing, Inc., and its insurer, Hartford Accident & Indemnity, Co., (collectively Schwan's) appeal the decision of the Kansas Workers Compensation Board (Board) in its work disability award to employee Rafaela Zepeda Deguillen, arguing (i) the employee's failure to make a good faith effort to retain her employment should bar a work disability award; (ii) the award was calculated in a manner contrary to the applicable statute; and (iii) the order to pay unauthorized medical expenses was contrary to the applicable statute. We affirm Deguillen's eligibility for and the Board's calculation of a work disability award, but we reverse the Board's award of unauthorized medical expenses.

Factual and Procedural Background

Deguillen was injured in October 2003, complaining of pain reaching into her upper arm, shoulder, and neck. She was put on light duty until she was placed in an accommodated position in May 2005. Schwan's argues that she was uncooperative following her injury and throughout attempts to accommodate her employment. On June 6, 2005, Deguillen was terminated by a letter from her supervisor stating:

"It is with deep regret that I must inform you that Schwan's has decided to terminate your employment. Our decision is based on the fact that we are unable to reasonably accommodate your work restrictions. Your termination will be effective June 6, 2005. All pay, benefits and other entitlement from your employment will be computed on that basis."

In November 2005, an independent medical examination ordered by the administrative law judge (ALJ) resulted in an opinion of 15% permanent partial impairment of function of the body as a whole and in the following work restrictions:

"It will be necessary for her to permanently avoid work that involves movement of the left hand above shoulder level or for frequent reach away from the body more than 15 inches. No lifting should be done at areas more than 15 inches away from the body. Lifting with the left hand between waist and chest level should be limited to 10 pounds occasionally, 5 pounds frequently. She should avoid frequent grasp activity such as is necessary with operation of pliers, scissors and similar hand tools. She should avoid vibrating hand tools. She should avoid frequent flexion and extension of the left wrist greater than 30 degrees."

The ALJ concluded "that no amount of accommodation would have returned Claimant to work." The ALJ denied permanent partial work disability benefits because Deguillen "failed to exercise a good faith effort to return to work or to find alternative replacement employment." The ALJ noted the company used a "form letter" to terminate Deguillen but Schwan's "indeed could have, and would have, accommodated Claimant had she continued to work." The ALJ also denied reimbursement of claimant's expenses for Dr. Murati's unauthorized medical expenses. The ALJ concluded Deguillen had a 14% whole body functional impairment, and awarded her 58.10 weeks of permanent partial disability for a total of $17,155.19 for a 14% functional disability, but denied her a work disability award.

Deguillen timely applied for review by the Board. The Board affirmed in part, reversed in part, and modified the ALJ's award in the following manner:

"58.10 weeks of permanent partial disability compensation at a rate of $295.27 per week or $17,155.19 for a 14 percent functional disability followed by 253.15 weeks of permanent partial disability compensation at the rate of $297.53 per week or $75,319.72 for a 75 percent work disability, making a total award of $92,474.91.

"As of February 6, 2007 there would be due and owing to the claimant 58.10 weeks of permanent partial disability compensation at the rate of $295.27 per week in the sum of $17,155.19 plus 87.28 weeks of permanent partial disability compensation at the rate of $297.53 per week in the sum of $25,968.42 for a total due and owing of $43,123.61, which is ordered paid in one lump sum less amounts previously paid. Thereafter, the remaining balance in the amount ...


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