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Farley v. Above Par Transp.

Court of Appeals of Kansas

September 5, 2014

SHELBY FARLEY, Appellant,
v.
ABOVE PAR TRANSPORTATION and NATIONAL INTERSTATE INS. CO., Appellant

Appeal from Workers Compensation Board.

SYLLABUS

BY THE COURT

1. If a person who has never retired but who is receiving old-age Social Security benefits suffers compensable injuries, the person's workers compensation award for those injuries is subject to the Social Security offset provisions of K.S.A. 2009 Supp. 44-501(h).

2. If a person receiving old-age Social Security benefits who has retired and then has returned to work to supplement those benefits suffers compensable injuries, the person's workers compensation award for those injuries is not subject to the Social Security offset provisions of K.S.A. 2009 Supp. 44-501(h).

3. Whether a person receiving old-age Social Security benefits had retired and then returned to work is a question of fact.

William L. Phalen, of Pittsburg, for appellant.

D'Ambra M. Howard and Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Overland Park, for appellee.

Before STANDRIDGE, P.J., PIERRON, J., and JOHNSON, S.J.

OPINION

Page 884

Johnson, J.:

Shelby Farley suffered work-related injuries while working for Above Par Transportation. Farley was receiving old-age Social Security benefits at the time he was injured. The Workers Compensation Board (Board) awarded Farley a substantial work disability. However, because the Board found that Farley had not retired before his accident occurred, it reduced Farley's award by the amount of his Social Security benefits pursuant to K.S.A. 2009 Supp. 44-501(h). Farley appeals, contending that the Board " overlooked" his evidence that he had in fact retired and that it erroneously applied the statutory offset. We affirm the Board's decision.

Factual and Procedural Background

In this action for judicial review, Farley contends that the Board overlooked the fact that he had retired and then returned to work before he suffered his work-related injuries. As we give the history of the case in the following, we have specifically set out what evidence we could find in the record that relates to that contention.

Farley was born March 14, 1945. At age 64, he began working for Above Par Transportation (Above Par) as an over-the-road truck driver. His first day on the job was October 20, 2009. On October 29, 2009, he delivered a load of 900-pound bundles of steel pipe to an Amish community in Wisconsin. The customers were responsible for unloading the pipe. They tied a team of horses to the pipe to drag it from the trailer. In the process, the horses became spooked and they took off, causing the bundle they were pulling to swing around and strike Farley. He suffered injuries to his left leg and back. He timely filed his claim for workers compensation benefits. After a lengthy period of treatment, he finally reached the point of maximum medical improvement.

On May 3, 2012, 6 days before the regular hearing, Karen Terrill, a rehabilitation consultant retained by Farley, testified at her deposition. Her written report was admitted

Page 885

into evidence. The report included a 15-year work history Terrill prepared based only on information Farley gave her. The report reflected a gap in Farley's employment from May 2008 to October 2009, when he started working for Above Par. It also indicated that Farley had attempted to obtain Social Security disability benefits, but his application for benefits was denied in 2008. The report listed the job tasks that were essential to the work Farley had performed during that 15-year period. The parties' attorneys examined Terrill with a focus on her breakdown of Farley's job tasks. On his redirect examination of Terrill, Farley's attorney asked her about the Social Security benefits Farley was receiving:

" Q: It's your understanding that he had been receiving social security and had continued to work in the open labor market, correct?

" A: That is correct."

That is the full extent of Terrill's testimony regarding Farley's Social Security benefits. She did not state or report that Farley had ever told her he had retired but then came out of retirement to work for Above Par. Neither party asked Terrill any questions about Farley's employment gap she noted in her report, or why Farley had applied for Social Security disability benefits, or why the claim was rejected in 2008 during the employment gap.

On May 9, 2012, the administrative law judge (ALJ) conducted the regular hearing in the case. At the outset, the ALJ asked the parties to state their stipulations and identify the issues. Above Par indicated that one of the issues involved its potential credit for Social Security retirement benefits against any workers compensation award to Farley. Farley then testified, giving a detailed description of his accident, injuries, treatments, and resulting disabilities. Toward the end of the direct examination, Farley and his attorney had the following exchange regarding his Social Security benefits:

" Q: At the time of the accident you were 64 years old. Were you drawing Social Security retirement benefits?
" A: Yes.
" Q: So you were drawing Social Security retirement benefits ...

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