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Nistler v. Footlocker Retail

November 21, 2008


Appeal from the Workers Compensation Board.


1. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained.

2. When a statute is plain and unambiguous, an appellate court must give effect to the legislature's intention as expressed, rather than determine what the law should or should not be. A statute should not be read to add that which is not contained in the language of the statute or to read out what, as a matter of ordinary language, is included in the statute.

3. K.S.A. 2005 Supp. 44-511(a)(4), (a)(5), and (b)(4) are not applicable to determine post-injury average weekly wages of a worker paid by the hour.

4. When construing statutes to determine legislative intent, an appellate court must consider various provisions of an act in pari materia with a view of reconciling and bring the provisions into workable harmony if possible.

5. The phrase within K.S.A. 44-510e, "engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury," is an unambiguous statement of legislative policy that a worker's post-injury wage is to be based on actual hours worked and not determined by imputation of a hypothetical 40-hour work week.

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

Reversed and remanded with directions.

Before HILL, P.J., KNUDSON, S.J., and LARSON, S.J.

Mark Nistler appeals the Workers Compensation Board's (Board) determination that he is not entitled to permanent partial disability benefits in excess of functional impairment. The issue presented on appeal is whether the Board erred in its determination that Nistler's post-injury wages are equal to or more than 90% of his average gross weekly wage earned at the time of the accident. We reverse the Board's decision and remand for a redetermination of Nistler's wage loss and permanent partial general disability benefits.

The Underlying Circumstances

The basic facts supporting the award are not in material dispute, including the fact Nistler is making substantially less than he did before his injury. The parties stipulated Nistler's injury, which occurred on November 9, 2004, arose out of and in the course of his employment with Footlocker Retail, Inc. (Footlocker), and coverage was afforded under the Workers Compensation Act (Act), K.S.A. 44-501 et seq.

Prior to the injury, Nistler was employed by Footlocker as a Material Handler II and received an hourly wage of $13.19 based on a 40-hour workweek. He was paid overtime at one and one-half times his hourly rate for work in excess of 40 hours a week. The parties stipulated Nistler's preinjury average weekly wage was $652.47. This stipulation means Nistler would have averaged more than 6 hours a week in overtime wages. Nistler testified that after his injury his fellow Material Handler II's continued to work generally 50 hours a week with an increase in base wages to $14.49 per hour. Unfortunately for Nistler, based on physical limitations imposed by his physician, he could not continue as a Material Handler II and was eventually given an accommodated position as a Material Handler I.

Footlocker's records reveal Nistler's actual wages were dramatically reduced after he was able to return to work. For the first 32 weeks, relegated to light duty, he averaged 32.55 hours per week and $444.17 in weekly wages. In late spring of 2005, Nistler was reclassified from Material Handler II to Material Handler I to accommodate his permanent physical limitations that resulted from the injury. His reclassification resulted in less physical wear and tear but also moved him into a job with significantly fewer hours of work than would have been available as a Material Handler II. Parenthetically, there was no evidence Nistler's loss of hours and wages due to the reassignment from Material Handler II to Material Handler I was due to any business downturn or other intervening economic circumstances. In other words, Nistler's actual wage loss appears directly related to the accident and the resulting physical restrictions imposed by his doctor. We note the Board in its final order acknowledged the expert testimony that Nistler could no longer perform 17 of the 23 work tasks for a Material Handler II and that he retained the ability to earn at least $7 per hour.

From June 28, 2005, to June 17, 2006, Nistler's average weekly wages were $468 and he averaged 32.48 hours per week. From June 18, 2006, until February 10, 2007 (1 month after the regular hearing), he averaged 33.20 hours and $481.85 per week.

In summary, the wage records reveal that from the date of the injury until shortly after the regular hearing before the administrative law judge (ALJ), Nistler worked 116.4 weeks, with weekly averages of 32.71 work hours and $465.41 in wages. Again, this compares to his stipulated average weekly wage immediately before the injury of $652.47.

Jamie Hill, employee relations manager for Footlocker, testified that prior to the injury Nistler was occasionally required to work more than 40 hours per week. She also testified that after his injury, Nistler has, on occasion, been required to work more than 40 hours per week. However, on cross-examination, she admitted that for the 16 weeks ending April 8, 2006, all of Nistler's workweeks consisted of less than 40 hours of work; only in a 2-week pay period ending December 17, 2005, did Nistler's workweek average 40 hours a week. According to Hill, Footlocker considers an employee to be full time if the employee averages ...

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