Hernandez v. Hamm Cos.

309 P.3d 974

Monica HERNANDEZ, Appellant,

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

No. 108,708.

Court of Appeals of Kansas.

Sept. 27, 2013.

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...