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Gilkey v. Frederick Waterproofing & Technology Insurance Co.

Court of Appeals of Kansas

April 20, 2018

Virgil Gilkey, Appellant,
v.
Frederick Waterproofing and Technology Insurance Company, Appellees.

         SYLLABUS

         When calculating a work disability award, K.S.A. 2017 Supp. 44-510e(a)(2)(D) provides that if the employee has preexisting permanent restrictions, any work tasks that the employee would have been deemed to have lost the ability to perform had a task loss analysis been completed prior to the injury at issue shall be excluded when calculating the task loss directly attributable to the current injury. A permanent restriction is one that is continuing or enduring without fundamental or marked change and not subject to fluctuation or improvement. Accordingly, whether the employee has preexisting permanent restrictions is based on the employee's status immediately prior to the new injury. In this case, in which the employee worked for 12 years before the new injury without restriction, task losses that might theoretically have been in place based upon an earlier injury are not considered when applying K.S.A. 2017 Supp. 44-510e(a)(2)(D).

          Appeal from Workers Compensation Board.

          Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for appellant.

          Kendra M. Oakes, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellees.

          Before Green, P.J., Buser and Leben, JJ.

          Buser, J.

         Virgil Gilkey appeals the Kansas Workers Compensation Board's (Board) interpretation and application of K.S.A. 2014 Supp. 44-510e(a)(2)(D), which resulted in the Board's finding that he had a net task loss of zero percent which adversely reduced his disability award.

         Upon our review, we conclude that K.S.A. 2014 Supp. 44-510e(a)(2)(D) requires the exclusion of theoretical work tasks for purposes of calculating the task loss directly attributable to the current injury, provided the employee has preexisting permanent restrictions that are continuing or enduring without fundamental or marked change and not subject to fluctuation or alteration.

         Applying this statute to the uncontroverted facts of this case, although Gilkey was assigned work restrictions in 2001 after a work injury, we hold that he did not have preexisting permanent restrictions during the 12 years prior to his August 11, 2014 work injury because during those years he performed all of his work tasks involving heavy manual labor full time, without difficulty, and without any restrictions.

         Accordingly, we reverse the Board's holding and remand with directions to reconsider the nature and extent of Gilkey's disability award without consideration of any preexisting work restrictions or theoretical task loss attributed to his 2000 work injury.

         Factual and Procedural Background

         The facts of this case are not in dispute. At the time of the Board's ruling in 2017, Gilkey was 57 years old. In 1976, after high school, he earned a general education degree. In 1980, Gilkey received a construction certificate from a vocational school. He worked as a manual laborer in construction from 1976 until August 11, 2014.

          In September 2000, while working for Holloways, Inc., Gilkey was injured in a work-related motor vehicle accident. As a consequence of the accident, Dr. George G. Fluter, M.D., Gilkey's treating physician, diagnosed probable right trochanteric bursitis, lumbar diskopathy without evidence of myelopathy or radiculopathy, and pain of the right hip, leg, and buttocks. In 2001, Dr. Fluter assigned an 8% permanent partial impairment rating to the body as a whole, and he recommended permanent restrictions which limited Gilkey's work to a light level of physical activity. Based primarily on Dr. Fluter's evaluation, about 5 months after his 2000 accident, Gilkey settled his workers compensation claim in February 2002 for a lump sum payment of $45, 000. This settlement was a compromise based on a 38% disability to the body as a whole. The settlement did not include future medical treatment.

As the Board later found:
"Claimant testified he was unaware permanent restrictions had been imposed by Dr. Fluter in 2001. Claimant stated he performed construction work, including cement work, pipe laying, city housing, remodeling, and driveway work, between March 2000 and August 2014. He did not work with any restrictions during that time. Claimant testified he was able to perform his work tasks, all of which involved manual labor in the construction field, without difficulty. Claimant ...

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