Opinion
No. 105,985.
2012-06-29
Edgar DOMINQUEZ, Appellee/Cross–Appellant, v. GOTTSCHALK BROTHERS ROOFING, and Kansas Building Industry Workers Compensation Fund, Appellants/Cross–Appellees.
Appeal from Workers Compensation Board. Roy T. Artman, general counsel, Kansas Building Industry Workers Compensation Fund, for appellants/cross-appellees. Randy S. Stalcup, of Law Office of Randy S. Stalcup, of Andover, for appellee/cross-appellant.
Appeal from Workers Compensation Board.
Roy T. Artman, general counsel, Kansas Building Industry Workers Compensation Fund, for appellants/cross-appellees. Randy S. Stalcup, of Law Office of Randy S. Stalcup, of Andover, for appellee/cross-appellant.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
The respondent, Gottschalk Brothers Roofing, and its insurance carrier, Kansas Building Industry Workers Compensation Fund (hereinafter referred to jointly as the respondent) appeal from the order of the Workers Compensation Board (Board) granting the claimant, Edgar Dominquez, an undocumented worker, permanent partial disability benefits based on averaging task loss and wage loss as provided in K.S.A. 44–510e(a). The respondent contends that the Board erred because as a matter of law an undocumented worker is not entitled to permanent partial disability benefits in excess of functional impairment. The respondent explains in its written brief: The issue squarely before the Court is the effect of claimant's inability to work legally in the United States upon the permanent partial general disability formula set forth in K.S.A. 44–510e. Dominquez has also appealed, contending that the Board erred in determining the extent of his task loss.
We affirm the decision of the Board. We conclude there is no statutory provision within the Kansas Workers Compensation Act, K.S.A. 44–501 et seq. , that supports the respondent's claim of error. We also conclude the Board did not err in its determination of Dominquez' task loss resulting from the accident.
The underlying circumstances
Dominquez began his employment with Gottschalk Brothers Roofing in October 2008. He presented a false social security card and a false Texas driver's license. Gottschalk Brothers Roofing would not have hired Dominquez if it had known he was an undocumented worker.
On January 11, 2009, Dominquez received significant injuries after he fell from the roof of a building. Before the administrative law judge (ALJ), the parties stipulated that Dominquez' accident arose out of and in the course of his employment, and coverage was afforded under the Workers Compensation Act. Two issues were presented for the ALJ to decide: (1) the extent of Dominquez' functional impairment and (2) whether Dominquez' immigration status precludes an award based on work disability under K.S.A. 44–510e(a). The ALJ determined Dominquez' award of permanent partial disability benefits based on a 9% functional impairment, concluding an undocumented worker was not entitled to benefits based on work disability. Dominquez appealed to the Board.
The Board in a 3–2 decision disagreed with the ALJ's interpretation of K.S.A. 44–510e(a) and granted compensation benefits based on work disability. The Board found that Dominquez had sustained a task loss of 26% and a wage loss of 50%, averaged together for a work disability of 38%. The Board then concluded: Based upon an average weekly wage of $414.48, Mr. Dominquez is entitled to receive 35.43 weeks of temporary total disability benefits at $276.33 per week, or $9,790.37, plus 149.94 weeks of permanent partial disability benefits at $276.33 per week, or $41,432.92, for a 38 percent work disability, making a total award of $51,223.29.
Jurisdiction and standard of review
We are afforded jurisdiction of both issues presented on appeal pursuant to K.S.A.2008 Supp. 44–556 and K.S.A.2010 Supp. 77–621(c)(4) and (c)(7). We have unlimited review as to the interpretation or construction of K.S.A. 44–510e(a), owing no significant deference to the Board's interpretation. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010). We review the Board's factual finding regarding Dominquez' task loss to determine if the evidence in support is substantial when considered in light of all the evidence. See K.S.A.2010 Supp. 77–621(d); Redd v.Kansas Truck Center, 291 Kan. 176, 183–84, 239 P.3d 66 (2010).
Discussion of the Issues
Is Dominquez entitled to an award based on work disability?
K.S.A. 44–510e(a) states in material part:
The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury. In any event, the extent of permanent partial general disability shall not be less than the percentage of functional impairment. Functional impairment means the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body.... An employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is 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.
In Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, Syl. ¶ 3, 214 P.3d 676 (2009), the Kansas Supreme Court held that K.S.A. 44–510e(a) contained no requirement that an injured worker make a good-faith effort to seek postinjury employment to mitigate the employer's liability under the Workers Compensation Act. The court explained:
The legislature expressly directed a physician to look to the tasks that the employee performed during the 15–year period preceding the accident and reach an opinion of the percentage that can still be performed. That percentage is averaged together with the difference between the wages the worker was earning at the time of the injury and the wages the worker was earning after the injury. The legislature then placed a limitation on permanent partial general disability compensation when the employee ‘ is 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.’ (Emphasis added.) K.S.A. 44–510e(a). The legislature did not state that the employee is required to attempt to work or that the employee is capable of engaging in work for wages equal to 90% or more of the preinjury average gross weekly wage. Bergstrom, 289 Kan. at 609–10.
The Board in its order adopted the reasoning in Bergstrom, stating:
In Bergstrom, the Kansas Supreme Court made clear that the language of K.S.A. 44–510e is clear and unambiguous and its express language should be applied without attempting to determine what the law should or should not be.
The two dissenters to the Board's decision reasoned:
[Dominquez] acknowledged that he does not have a valid social security number. The permanent partial general disability portion of the award is determined, in part, on [Dominquez'] wage earnings as compared to his average weekly wage from the date of accident. K.S.A. 44–510g(a) states: ‘A primary purpose of the workers compensation act shall be to restore the injured employee to work at a comparable wage.’ [Dominquez'] alien status makes it a legal impossibility to satisfy this purpose. Bergstrom requires that the language of the statutes be followed and applied by the fact finder. The implied ‘public policy’ determination by the ALJ should be based on the specific language of K.S.A. 44–510g(a). So long as it is [Dominquez'] status which bars him from even seeking employment in this country, the purpose of the statute remains an impossibility. [Dominquez'] award should be limited to his functional impairment.
We must note that the dissenters' argument of impossibility is perhaps undercut as it is clear from the record that Dominquez did secure substantial, gainful employment after he was released from treatment, and the Board did take into consideration his postinjury wages in determining wage loss.
On appeal, the respondent argues that K.S.A. 44–510e(a) is not clear and unambiguous. This argument fails as we are duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. Tyler v. Goodyear Tire & Rubber Co., 43 Kan. 386, 391, 224 P.3d 1197 (2010). Bergstrom was decided in 2009 and disapproved of a body of cases that had imposed a good-faith effort requirement on injured workers. We have no reason to believe the Supreme Court would decide the statute is subject to canons of construction.
We do acknowledge, however, that Bergstrom is not definitive as it presupposes a postinjury labor market that is potentially accessible to an injured worker. However, in our opinion the Bergstrom court's determination that K.S.A. 44–510e(a) does not require an injured worker to make a good-faith effort to seek or obtain postinjury employment supports a conclusion foreclosing the respondent's argument. As a panel of this court stated in Tyler, [a]bsent a specific statutory provision requiring a nexus between the wage loss and the injury, this court is not to read into the statute such a requirement. 43 Kan.App.2d at 391.
The respondent suggests interpreting K.S.A. 44–510e(a) as allowing an undocumented worker to receive work disability benefits is in direct conflict with 8 U.S.C. § 1324a(a) (2006) of the Immigration Reform and Control Act (IRCA), which prohibits any person from employing a known illegal immigrant. However, the respondent provides no authority or reasoning in support of this suggestion. Failure to support a point with pertinent authority is a failure to properly brief the issue. State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). Moreover, there is persuasive authority to the contrary that the respondent ignores. Cf. Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, Syl. ¶ 1, 154 P.3d 1080 (2007) (holding that the IRCA does not preempt the Kansas Wage Payment Act, K.S.A. 44–312 et seq. , on the issue of earned, but unpaid, wages of an undocumented worker). In Larson's treatise on workers compensation law, the author notes that [w]hile it is certainly true that IRCA preempts inconsistent state law courts have not understood the preemption as barring any sort of payment on behalf of injured alien workers. 3 Larson's Workers' Compensation Law § 66.03[3][a], p. 66–15 (2011).
The respondent also argues K.S.A. 44–510e is in conflict with K.S .A. 44–510g(a) which states in material part that a primary purpose of the workers compensation act shall be to restore the injured employee to work at a comparable wage. We disagree because K.S.A. 44–510g(a) concerns vocational rehabilitation and is not inconsistent with the unambiguous language of K.S.A. 44–510e(a) regarding the right of an injured worker to receive benefits based on work disability. Moreover, K.S.A. 44–510g does not require a claimant to request vocational rehabilitation as a prerequisite to obtaining workers compensation benefits pursuant to K.S.A. 44–510e for loss of ability to perform work in the open market and earn a comparable wage. Williams v. Beech Aircraft Corp., 15 Kan.App.2d 685, 688, 815 P.2d 1113,rev. denied 248 Kan. 999 (1991).
K.S.A.2008 Supp. 44–508(b) broadly defines the term employee without exempting undocumented workers. Moreover, we have found no reference to immigration status within the entire Workers Compensation Act. Under the legislative scheme that is presented, [we] must give effect to its express language rather than determine what the law should or should not be. The court will not speculate on legislative intent and will not read the statute to add something not readily found in it. Bergstrom, 289 Kan. at 607–08. Accordingly, we hold that the Board did not err in its determination that Dominquez is entitled to permanent partial benefits based on work disability.
The Board's determination of task loss is supported by substantial evidence.
In his cross-appeal, Dominquez argues there was not substantial evidence to support the ALJ's and Board's finding that in determining task loss equal weight should be given to the deposition testimony of Drs. Pat Do and Pedro Murati. The Board specifically found that the doctors' opinions should be given equal weight as neither opinion is more persuasive than the other.
An appellate court reviews a challenge to the Board's factual findings in light of the record as a whole to determine whether the findings are supported to the appropriate standard of proof by substantial evidence. See K.S.A.2010 Supp. 77–621(c)(7). Although not statutorily defined, substantial evidence refers to evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis of fact from which the issue raised could be reasonably resolved. Redd, 291 Kan. at 183–84.
‘[I]n light of the record as a whole’ is statutorily defined as meaning
that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77–620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency's explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review. K.S.A.2010 Supp. 77–621(d).
Additionally, in a workers compensation case, an appellate court does not reevaluate the credibility of witnesses. K.S.A.2010 Supp. 77–621(d); McCready v. Payless Shoesource, 41 Kan.App.2d 79, Syl. ¶ 2, 200 P.3d 479 (2009).
Dominquez presents three arguments to support his contention that the Board erred in its determination to give equal weight to the medical opinions. First, Dominquez argues that Dr. Do incorrectly dated one of his work-restriction slips as September 10, 2009, even though the doctor did not see Dominquez on that date. Dominquez fails to explain the significance of this argument. Moreover, his argument appears to challenge the credibility of Dr. Do's testimony despite the fact that this court does not reevaluate credibility of witnesses. Even still, the error appears to be an explainable glitch in recordkeeping rather than one of any significance to this case.
Second, Dominquez argues Dr. Do merely speculated that Dominquez received physical therapy at another facility between his final two visits with Dr. Do on August 11 and September 17, 2009. But again, Dominquez does not explain the significance of this argument and arguably asks this court to reassess Dr. Do's credibility as a witness. Moreover, according to Dr. Do, Dominquez told him he was doing well and could do therapy on his own now at home and not formally with the therapist. And finally, even if Dominquez did not seek physical therapy between his final two visits with Dr. Do, he still could have demonstrated maximum medical improvement without needing to be placed on any work restrictions.
Dominquez' final argument is that Dr. Do was not the physician that conducted an examination of the bulges in vertebrae T–9 and T–10 and the compression fracture in vertebra T–11 of Dominquez' back. Dr. Do, however, knew that his colleague Dr. David Hufford had treated Dominquez for his back injuries and accounted for this treatment when he determined the extent of Dominquez' whole-person impairment. Nonetheless, Dr. Do acknowledged he could not find any record regarding the bulges in T–9 and T–10 of Dominquez' thoracic spine when questioned about those injuries in his deposition.
Importantly, the record does not demonstrate that Dr. Murati believed the T–9 and T–10 thoracic spinal injuries to be of any significance either. In calculating the extent of Dominquez' whole—person impairment, Dr. Murati considered only three injuries-the right arm, T–11 compression fracture, and knee injury that lingered after Dominquez' arthroscopic knee surgery. Therefore, it is not clear from the record that the T–9 and T–10 injuries were significant factors in Dr. Murati's assessment that Dominquez should be assigned a 52% task loss. In addition, Dominquez is asking this court to make a credibility determination and find the testimony of Dr. Murati to wholly trump the testimony of Dr. Do because Dr. Murati, in Dominquez' opinion, is a more credible witness. Such a determination is outside the province of this court. See K.S.A.2010 Supp. 77–621(d).
For the foregoing reasons and in light of the record as a whole, we conclude the Board's finding of task loss is supported by substantial evidence and should be upheld.
Affirmed.