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Hernandez v. Hamm Cos.

Court of Appeals of Kansas.
Sep 27, 2013
309 P.3d 974 (Kan. Ct. App. 2013)

Opinion

No. 108,708.

2013-09-27

Monica HERNANDEZ, Appellant, v. The HAMM COMPANIES and New Hampshire Insurance Company, Appellees.

Appeal from Workers Compensation Board. Roger D. Fincher and Richard Billings, of Bryan, Lykins, Hejtmanek & Fincher, P.A., of Topeka, for appellant. Wade A. Dorothy, of The Dorothy Law Firm LLC, of Overland Park, for appellees.


Appeal from Workers Compensation Board.
Roger D. Fincher and Richard Billings, of Bryan, Lykins, Hejtmanek & Fincher, P.A., of Topeka, for appellant. Wade A. Dorothy, of The Dorothy Law Firm LLC, of Overland Park, for appellees.
Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.

MEMORANDUM OPINION


ATCHESON, L.

Monica Hernandez injured her left leg in an on-the-job accident while she was working for the Hamm Companies. She, therefore, was entitled to benefits under the Workers Compensation Act, K.S.A. 44–501 et seq. Hernandez contends the Workers Compensation Board erred in treating her claim as a scheduled injury rather than a whole body impairment, a determination that substantially limited the benefits due her. The Board correctly characterized the injury, especially in light of Redd v. Kansas Truck Center, 291 Kan. 176, 196–97, 239 P.3d 66 (2010). We, therefore, affirm.

Hernandez broke her left leg on April 24, 2008, at a Hamm Companies jobsite. She had two surgeries on her leg. One of the surgeries required that skin taken from her left thigh be grafted to her left foot. As a result of the grafting, Hernandez has a circular scar on her thigh, and the site remained painful. Despite the surgeries, Hernandez has had difficulty walking. At various times, she resorted to using a cane, a leg brace, and a motorized scooter to get around. The parties and the Board refer to Hernandez' inability to walk without substantial assistance as a “gait derangement.”

The Board found that Hernandez suffered a scheduled injury under K.S.A. 44–510d(a)(15), overruling the administrative law judge's order treating her claim as a whole body impairment under K.S.A. 44–510e. Hernandez appeals the Board's determination.

This court reviews workers compensation cases under the Kansas Judicial Review Act, K.S.A. 77–601 et seq. The material facts here are not in dispute. The issue is one of statutory interpretation and presents a question of law this court considers without deference to the Board's decision. Redd, 291 Kan. at 187–88;Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).

In K.S.A. 44–510d(a), the legislature set out a series of “scheduled” workers compensation injuries and the award to be made for each of those injuries. Pertinent here, K.S.A. 44–510d(a)(15) provides that a worker suffering “the loss of a lower leg” is to receive “190 weeks” of benefits based on the employee's wages. If the worker has a partial loss of use of a leg or other covered body part, the worker receives a prorated benefit for the scheduled injury. The parties stipulated at the Board level that Hernandez had a 60 percent permanent functional impairment to her left lower leg.

In Redd, 291 Kan. at 195, the court reiterated that “scheduled injuries were the general rule” under the Kansas workers compensation scheme and cited its holding in Casco v. Armour–Swift Eckrich, 283 Kan. 508, 528, 154 P.3d 494 (2007), to that effect. The Board also noted and relied on Casco. Because Hernandez' injuries were limited to her left leg, the Board concluded Hernandez had suffered a scheduled injury and her benefits should be determined accordingly.

Hernandez argued to the Board and repeats here on appeal that K.S .A. 44–510d(a)(23) specifically requires use of the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (1995) to measure impairment of function for purposes of establishing benefits. The AMA Guides, in turn, treat gait impairment and skin conditions, which Hernandez equates to the scarring from the graft, as injuries to the whole body. Based on that characterization, Hernandez contends her injury should be treated as one to the whole body for purposes of computing her benefits.

But Cased's treatment of scheduled injuries as the rule under the Act weighs against that argument. And the detailed discussion of that rule and the AMA Guides in Redd undermines it.

The AMA Guides have been developed as “general instruction manual” for physicians across the country to provide a degree of objectivity to evaluating workers compensation injuries. Redd, 291 Kan. at 197. They are not, however, tailored to the statutory scheme of any particular state, and the legislature did not intend them to supplant the Act's use of scheduled benefits for many on-the-job injuries. See 291 Kan. at 196–97. The AMA Guides contain criteria for converting both injuries to particular body parts and particular types of injuries to whole body impairments, so physicians can do so where that approach conforms to a given state's workers compensation program. But the Act explicitly rejects that sort of blanket treatment of injuries as whole body impairments, as the extensive list of scheduled injuries demonstrates. Accordingly, the legislature looked to the AMA Guides for “evaluation requirements ... but not [for] the instructions to combine and convert injuries into whole body impairments.” 291 Kan. at 196.

The limited use of the AMA Guidelines outlined in Redd effectively negates the position Hernandez advances and, instead, embraces the Board's use of the applicable scheduled injury in K.S.A. 44–510d(a) to arrive at her benefits in this case.

Hernandez alternatively argues that the Board erred by denying her permanent total disability benefits even if she had a scheduled injury. Hernandez cites language in K.S.A. 44–510c(a)(2) that a worker found to be “completely and permanently incapable of engaging in any type of substantial and gainful employment” should be treated as having a “[p]ermanent total disability.” But that argument has been foreclosed by K.S.A. 44–510d(b), limiting a worker with a scheduled injury to those statutory benefits. The pertinent language provides: “Whenever the employee is entitled to compensation for a specific injury under the ... schedule, the same shall be exclusive of all other compensation[,] ... and no additional compensation shall be ... payable for any temporary or permanent, partial or total disability.” K.S.A. 44–510d(b). There are statutory exceptions inapplicable here related only to providing medical care rather than wage benefits and to providing compensation during a healing period following an amputation. In short, Hernandez' alternative argument runs counter to the applicable statutory provisions.

Affirmed.


Summaries of

Hernandez v. Hamm Cos.

Court of Appeals of Kansas.
Sep 27, 2013
309 P.3d 974 (Kan. Ct. App. 2013)
Case details for

Hernandez v. Hamm Cos.

Case Details

Full title:Monica HERNANDEZ, Appellant, v. The HAMM COMPANIES and New Hampshire…

Court:Court of Appeals of Kansas.

Date published: Sep 27, 2013

Citations

309 P.3d 974 (Kan. Ct. App. 2013)