No Work Disability Presumption In Kansas
In Tharp v. Eaton Corp., 23 Kan. App. 2d 895, 940 P.2d 66 (1997), this court reviewed the Workers Compensation Board`s affirmance of the ALJ's award of a work disability where the employer had offered to the worker what it considered to be an accommodated position.
This court affirmed the Board's order by determining that there was substantial evidence to support the Board's findings. 23 Kan. App. 2d at 896-98. the Board's order in this case will be reviewed accordingly.
K.S.A. 44-510e(a) governs the award of permanent partial general disability benefits. K.S.A. 44-510e(a) provides, in part:
"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."
Prior to 1993, this statute set forth a presumption against disability benefits if an employee engaged in work for wages comparable to the gross weekly wage earned by the employee at the time of the injury. Although the language in the statute has changed, the law surrounding the presumption has not. Swickard v. Meadowbrook Manor, 26 Kan. App. 2d 144, 148, 979 P.2d 1256 (1999).
In Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), this court considered whether the presumption of no work disability applied to cases where the worker has the ability to engage in work at a comparable wage but does not do so.
This court found that in such cases the presumption of no work disability applies, and the employee is precluded from receiving work disability compensation.
The court stated: "It would be unreasonable. . . to conclude that the legislature intended to encourage workers to merely sit at home, refuse to work, and take advantage of the workers compensation system." 20 Kan. App. 2d at 284.
In Tharp, this court reviewed the Board's finding that Tharp's employer, Eaton Corporation, had made an insufficient attempt at accommodation where Eaton had accommodated Tharp by creating a job for her where she was required to sit in a room by herself and wait for someone to give her something to do.
Tharp quit the job after only a month because she claimed it was humiliating for her to constantly have to ask for work and because she did not believe she was doing the company any service. 23 Kan. App. 2d at 896.
We affirmed the Board's order, finding substantial competent evidence in the record to support the Board's finding that the attempt by Tharp's employer to place Tharp in an accommodated job was not sufficient to invoke the statutory presumption of no work disability.
In Swickard, 26 Kan. App. 2d 144, 979 P.2d 1256, court considered whether the employer's offer of an accommodated position established the presumption of no work disability where the accommodated position was on a different shift than the worker formerly worked and the worker had no transportation to go to work on that shift.
The ALJ had concluded that the worker failed to meet her burden to prove the employer's offer of an accommodated position was unreasonable or not made in good faith.
This court affirmed, stating that the worker's reason for not taking the proffered accommodated position was her transportation problem, which had nothing to do with her physical ability to perform the work. 26 Kan. App. 2d at 150.