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Neal v. Hy-Vee12/24/2003
Affirmed.
The Workers Compensation Board (Board) affirmed the decision of the administrative law judge (ALJ) awarding workers compensation benefits to employee Columbus Neal. Employer Hy-Vee, Inc., and its insurer Hawkeye Security Insurance Company appealed from that part of the decision not suspending the employee's right to payment of compensation under K.S.A. 44-518. The employee was serving time on felony convictions and was unable to attend the employer's scheduled medical exam in the office of the employer's chosen physician. The employer also claims that the Board did not have the authority to remand the case to the ALJ for a determination of the employee's average weekly wage. We affirm.
FACTS
On November 2, 1996, the employee sustained a compensable back injury while working for the employer in Johnson County. During the course of his medical treatment for this injury, the employee was arrested on a murder charge and another felony charge and held in the Jackson County, Missouri, jail in June 1997. At the request of the employee's counsel, Dr. David Zimmerman examined the employee in the jail on June 12, 1998. Dr. Zimmerman opined that the employee had an 8% impairment to the whole person as a result of his compensable injury.
The employee was convicted of murder and armed criminal action and sentenced to serve two life sentences. He continued to receive medical treatment through the Jackson County jail and Truman Medical Center until he was transferred to the Crossroads Correctional Center in Cameron, Missouri, in September 1998. Cameron is 52 miles from the metropolitan Kansas City area. The employee's incarceration prevented him from attending the scheduled medical examination in the office of the employer's physician, Dr. Michael Poppa, in Kansas City, Missouri, on December 29, 1998.
On December 30, 1998, the employer moved to suspend the proceedings under K.S.A. 44-518 until the employee was able to make himself available for an examination under K.S.A. 44-515. The ALJ suggested that the employer arrange for the examination to take place at the Crossroads facility, either by Dr. Poppa or a local physician serving the facility. The employer informed the ALJ that Dr. Poppa's schedule did not permit him to perform an examination of the employee in the prison and that it was unfamiliar with the qualifications or reputations of the local physicians.
At the regular hearing, the ALJ indicated that no agreement had been reached regarding the employee's average weekly wage, although it was alleged that his wages were $11.30 per hour plus overtime, or $440. Additionally, evidence was introduced indicating that the employee had received 3 months' temporary total disability (TTD) in the amount of $983.12. In the October 27, 1999, award, the ALJ found that the employee suffered a compensable injury which resulted in a permanent partial functional impairment of 8% and was entitled to future medical treatment. The ALJ also found the employer's admission that the employee was paid 3 weeks of TTD totaling $983.12, suggesting an average weekly benefit paid of $327.71, slightly exceeding the $326 maximum at the time, and indicating an average weekly wage of $451.57, matched the employee's assertion at the prehearing settlement conference. See K.S.A. 44-510c(b)(1). The employee was awarded 3 weeks of TTD at the rate of $326 per week totaling $978 followed by 33.20 weeks at $326 for an 8% permanent partial general body disability, making a total award of $11,801.20 due and owing to the employee on December 29, 1998. The award was payable until December 29, 1998, after which it was suspended until an examination scheduled by the employer at a Mis
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