Navarrete v. Tyson Fresh Meats, LLC

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Gricelda Navarrete, Appellee, v. Tyson Fresh Meats, LLC, Appellant.

No. 126,007

Court of Appeals of Kansas

February 9, 2024

NOT DESIGNATED FOR PUBLICATION

Submitted without oral argument.

Appeal from Workers Compensation Board.

Scott J. Mann, of Mann Wyatt Tanksley, L.L.C., of Hutchinson, for appellant.

Thomas G. Munsell, of Morrow Willnauer Church, LLC, of Kansas City Missouri, for appellee.

Before BRUNS, P.J., COBLE and PICKERING, JJ.

MEMORANDUM OPINION

PER CURIAM.

In this workers compensation case, Gricelda Navarrete appeals the Workers Compensation Board's (Board) calculation of her average weekly wage. Specifically, she contends the Board misinterpreted the Kansas Workers Compensation Act (KWCA) K.S.A. 44-501 et seq., by excluding her vacation and holiday pay from the calculation of her average weekly wage in determining the benefits to which she is entitled. Based on the plain and unambiguous language of K.S.A. 44-511-as well as prior decisions of this court-we conclude the Board did not err. Thus, we affirm.

FACTS

In October 2017, Navarrete sustained injuries in an accident while working for Tyson Fresh Meats, Inc. and applied for workers compensation benefits. As part of her claim Navarrete sought to have her vacation and holiday pay included in determining her average weekly wage. However, the administrative law judge appointed to hear Navarrete's workers compensation case found that vacation and holiday pay should not be included in the calculation of an employee's average weekly wage under the KWCA.

The administrative law judge reasoned that the resolution of the issue was controlled by this court's holding in Bohanan v. U.S.D. No. 260, 24 Kan.App.2d 362, 947 P.2d 440 (1997). In Bohanan, a panel of this court held that "[t]he value of vacation and sick leave are not 'wages' as defined in K.S.A. 44-511(a)(3)." 24 Kan.App.2d 362, Syl. ¶ 6. Subsequently, the administrative law judge's award was upheld by the Appeals Board.

In its order, the Board explained:

"The Board is duty-bound to follow precedent of our appellate courts and does not have the discretion to choose not to comply with a mandate of the Court of Appeals. The Court in Bohanan found vacation pay is not included in the definition of 'money.' This is the rule of law until Bohanan is reversed or modified to reflect the statutory changes made to K.S.A. 44-511 in 2011.

"Even if Bohanan didn't apply, the plain language of K.S.A. 44-511(a)(3) says wages only include money and other compensation for services rendered. Because vacation pay is not paid for services rendered, it is excluded under K.S.A. 44-511(b)(4).

"Claimant was not 'employed' when she received her vacation pay. 'Employed' has been interpreted, at least under an older version of K.S.A. 44-511, to mean 'the time the worker is employed and on the job.' [Osmundson v. Sedan Floral, Inc., 10 Kan.App.2d 261 265, 697 P.2d 85 (1985).]

While Osmundson does not address vacation pay, the Court of Appeals addressed the inclusion or exclusion of sick and vacation pay in Fuller v. Farmers Ins. Co.[, 32 Kan.App.2d 333, 82 P.3d 526 (2004).] In Fuller, the injured worker was restricted to working 20 hours a week and used her sick leave and vacation to compensate for the missing 20 hours she would normally work. The Board in Fuller ruled, '[W]hatever sick leave pay and vacation leave pay claimant currently receives is included in computing claimant's post-injury wages . . .[and] [a]s long as claimant is receiving pay from her employer, it should not matter whether that pay is from work performed or from a benefit the employer provides.' The Court of Appeals reversed the Board's decision.

"Fuller, citing a prior version of K.S.A. 44-511, noted 'wage' includes the total of money and additional compensation which the employee receives for services rendered for the employer while employed and on the job, following Osmundson. Fuller stated, '[T]he money received by Fuller for the vacation and sick leave benefits covered the 20 hours per week Fuller did not work and, thus, did not render any service for Farmers.' The case held:

"Here, Fuller was not 'on the job' during the 20 hours per week she collected sick leave and vacation benefits due to her permanent restrictions. Fuller simply had no work to perform during those 20 hours per week she was not rendering any services for Farmers.

"Reversed and remanded with directions to exclude the payment of vacation and sick leave benefits from the computation of Fuller's average weekly wage.

"The same is true for this case. The claimant was not working or rendering services, or on the job, for her employer when she received her vacation pay. Both the version of K.S.A. 44-511 decided under Fuller and the version applicable to this case consider a worker's average weekly wage to include money and additional compensation for services 'rendered.'

"Based upon the forgoing, the Board finds the SALJ correctly found Claimant's [average weekly wage] ....[Citations omitted.]"

ANALYSIS

On appeal, the sole issue presented is whether the Board erroneously interpreted K.S.A. 44-511 in determining Navarrete's average weekly wage. We review the Board's order in accordance with the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. See K.S.A 44-556(a); see also EagleMed, LLC v. Travelers Insurance, 315 Kan. 411, 419, 509 P.3d 471 (2022). As the party challenging the validity of the Appeals Board's order, Navarrete bears the burden of proving that invalidity. See K.S.A. 77-621(a)(1); see also EagleMed, LLC, 315 Kan. at 419.

The KJRA permits judicial relief only for certain statutorily enumerated reasons:

"(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;

"(2) the agency has acted beyond the jurisdiction conferred by any provision of law; "(3) the agency has not decided an issue requiring resolution; "(4) the agency has erroneously interpreted or applied the law;

"(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;

"(6) the persons taking the agency action were improperly constituted as a decisionmaking body or subject to disqualification;

"(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or

"(8) the agency action is otherwise unreasonable, arbitrary or capricious." K.S.A. 77-621(c).

Here, Navarrete fails to identify the statutorily enumerated reason for which she seeks relief. This is problematic because "specificity in pleading under the KJRA is necessary to give focus to the asserted agency error and to give the reviewing court a proper understanding of the type of relief sought." Pittsburg State University v. Kansas Bd. of Regents, 30 Kan.App.2d 37, 45, 36 P.3d 853 (2001). "Such specification is important because a court reviewing an administrative agency's action may grant relief only if it determines one or more of those provisions is violated." Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 697, 216 P.3d 170 (2009).

Nevertheless, because Navarrete exclusively argues that the Board's order is invalid because it "erred in its interpretation of K.S.A. 44-511," we will construe her argument to come under K.S.A. 77-621(c)(4). See EagleMed, LLC, 315 Kan. at 419 (inferring which statutorily enumerated basis for judicial relief applied in workers compensation case when appellant failed to specify). Statutory interpretation involves a question of law over which this court exercises unlimited review. 315 Kan. at 420. "In interpreting a statute, appellate courts are not to give deference to the Board's legal analysis or determination." Turner v. Pleasant Acres, 62 Kan.App.2d 122, Syl. ¶ 2, 506 P.3d 963 (2022).

In Schmidt v. Trademark, Inc., 315 Kan. 196, 200, 506 P.3d 267 (2022), the Kansas Supreme Court held:

"'The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme, and when a statute is plain and unambiguous, the court must give effect to the legislative intention as expressed in the statutory language.

"'When a workers compensation statute is plain and unambiguous, this court 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. If the statutory language is clear, no need exists to resort to statutory construction. [Citations omitted.]'"

In reviewing the provisions of the KWCA, it is important to recognize that K.S.A. 44-501b(a) provides "that the workers compensation act shall be liberally construed only for the purpose of bringing employers and employees within the provisions of the act. The provisions of the workers compensation act shall be applied impartially to both employers and employees in cases arising thereunder." Moreover, "[i]n a workers compensation case, the substantive rights between the parties are determined by the law in effect on the date of injury. However, amendments . that are merely procedural or remedial in nature and that do not prejudicially affect substantive rights of the parties apply to pending cases." Knoll v. Olathe School District No. 233, 309 Kan. 578, Syl. ¶ 1, 439 P.3d 313 (2019). In the...