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Tallman v. Case Corp.10/10/2003
effort to ascertain a fair measurement of a worker's disability, prior to 1993, the formulas were primarily based on the concept of compensation for the loss of abilities--the ability to earn wages and/or the ability to perform work. For various reasons, measuring disability compensation by the loss of abilities resulted in concerns about increased litigation and higher insurance premiums. Therefore, in 1993, the Kansas Legislature introduced a new factor into the equation--actual wage loss. The new two-part test for finding and measuring work disability includes both a measurement of the loss of ability to perform work tasks and actual loss of wages resulting from the worker's disability." Gadberry, 25 Kan. App. 2d at 802-03.
A recent case of this court to address work disability is Newman v. Kansas Enterprises, No. 86,489, unpublished opinion filed March 15, 2002 (ordered published July 11, 2003). In Newman, the claimant was a manager and supervisor for the employer . The claimant injured himself in a couple of work-related accidents. However, the claimant did not dispute that he returned to his usual duties and tasks and required no job accommodation. The claimant was terminated a year after his accident. The employer testified the termination was for lack of sales, speeding tickets, complaints, inappropriate sexual comments, and for driving under the influence in a company vehicle. The claimant maintained the termination was in retaliation for his injury time off work and to decrease the payroll to make the business look more attractive to potential buyers. The ALJ and the Board found the claimant had no work disability and was limited to his functional impairment rating.
The Newman court discussed Lee and Gadberry and found both distinguishable. The Newman court relied on Watkins in holding the claimant was not entitled to work disability beyond his functional impairment. The court stated that like the claimant in Watkins, Newman returned to work after his injuries and performed the same tasks for the same pay and there was substantial competent evidence in the record to support that Newman was terminated for his poor work performance and not his injuries.
It is clear that in certain situations, Watkins is still good law notwithstanding the 1993 changes. However, unusual factual situations may make Watkins inapplicable, even when there has been no apparent wage loss.
Affirmed.
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