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.
from Workers Compensation Board.
Fisher, of McCullough, Wareheim & LaBunker, of Topeka,
M. Oakes, of McAnany, Van Cleave & Phillips, P.A., of
Kansas City, for appellees.
Green, P.J., Buser and Leben, JJ.
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.
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.
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.
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.
and Procedural Background
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.
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
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.