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Gasswint v. Superior Industries International-Kansas

February 8, 2008

SUSAN T. GASSWINT, CLAIMANT/APPELLANT,
v.
SUPERIOR INDUSTRIES INTERNATIONAL-KANSAS, INC., RESPONDENT/APPELLEE, AND SELF-INSURED, INSURANCE CARRIER/APPELLEE.



Appeal from Workers Compensation Board.

SYLLABUS BY THE COURT

1. A finding by the Workers Compensation Board (Board) that a worker had been terminated for cause constitutes a positive factual finding of the Board, and the correct standard of review is whether the Board's finding was supported by substantial competent evidence. An appellate court has unlimited review of conclusions of law.

2. 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. An appellate 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 Board's findings will be upheld if supported by substantial evidence even though other evidence in the record would have supported contrary findings.

3. Under the facts and circumstances of this workers compensation case, the Board did not err in concluding that a worker could not recover for work disability when the employer had attempted to place the worker in an accommodated position and the worker's loss of employment resulted solely from the worker's own misconduct.

4. The test to be applied when a claim is made that evidence was erroneously admitted in a workers compensation proceeding is whether the decision was based upon substantial and satisfactory evidence, relevant, reasonable, and persuasive, though not technically admissible under the rules of evidence. The rules of evidence are not applicable in workers compensation proceedings. The admissibility of evidence is more liberal in workers compensation cases, not more restrictive.

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

Affirmed.

Before CAPLINGER, P.J., MALONE, J., and LARSON, S.J.

Susan T. Gasswint appeals the decision of the Workers Compensation Board (Board) which denied her claim for a work disability in excess of functional impairment. Gasswint claims the Board erred in finding that she had been terminated from her accommodated position for cause. She also claims that the Board erred in considering an exhibit that was never admitted into evidence. Finding no reversible error, we affirm.

Gasswint worked at Superior Industries International-Kansas, Inc. (Superior), an aluminum wheel manufacturing plant in Pittsburg, Kansas, for 8 1/2 years. In 2000, Gasswint experienced two separate shoulder injuries which she reported to her supervisors. After these injuries, Gasswint continued to work at Superior. Gasswint requested and was granted a transfer to the machine shop. In the machine shop, Gasswint lifted aluminum wheels, weighing approximately 30 pounds each, from bins located at shoulder height and placed the wheels onto the line. After she began lifting the wheels, Gasswint experienced increasing pain in her shoulders.

On November 16, 2003, Gasswint notified Superior about her increasing shoulder pain. Superior sent Gasswint to Occupational Health Services at Mt. Carmel Medical Center for physical therapy. After 2 weeks, she was referred to Dr. Paul Toma, an orthopedic surgeon, who performed surgery on Gasswint's right shoulder. Superior placed Gasswint on light duty in the paint room, at her regular wage, while she was receiving additional physical therapy for the shoulder injuries.

On March 19, 2004, Gasswint submitted a mileage reimbursement request form to Tim Rakestraw, Superior's safety supervisor, for her physical therapy travel costs. The form contained mileage reimbursement requests for three physical therapy appointments that Gasswint did not attend. Rakestraw discussed the discrepancies with Gasswint, and she told Rakestraw that her husband had completed the form. Rakestraw notified Gasswint that it was her responsibility to complete and submit accurate forms and that "she needed to take this serious, because this was a serious matter of turning in falsified information." Rakestraw also testified that he warned Gasswint that submitting false information a second time could be grounds for termination. Gasswint denied that Rakestraw informed her that she could be terminated if she submitted inaccurate reimbursement forms.

On April 29, 2004, Gasswint submitted another mileage reimbursement request form to Rakestraw. This form contained mileage reimbursement requests for six physical therapy appointments that Gasswint did not attend. After the second incident, Superior placed Gasswint on suspension and subsequently fired her for falsifying documents in violation of company policy.

Gasswint filed a workers compensation claim on August 9, 2004. The administrative law judge (ALJ) accepted the parties' stipulations that the date of the injury was November 16, 2003, that the injury arose out of and in the course of Gasswint's employment at Superior, and that Gasswint's average weekly wage was $958.51 on the date of the accident. The ALJ noted that Gasswint suffered a single repetitive injury to both shoulders, a type of injury governed by K.S.A. 44-510e. The ALJ found that Gasswint had returned to work in an accommodated position and had earned an amount comparable to her preinjury average wage until she was terminated for cause from her ...


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