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Neal v. Hy-Vee12/24/2003
lity in the situation. The employer had ample time to pursue a medical examination while the employee was incarcerated in Kansas City but chose to wait until the employee was transferred to Cameron. After its physician of choice refused to go to Cameron and another physician could only go several months later at an exorbitant cost, the employer made no effort to obtain a physician in the Cameron locality. We have no difficulty affirming the Board's conclusion that under the circumstances of this case, "a reasonable time and place [for examination of claimant] would have been the correctional facility in Cameron, Missouri." The findings of fact set forth in this opinion and in the Board's decision are supported in the record. Moreover, the Board's findings of fact are supported by substantial competent evidence. We, therefore, affirm the decision of the Board.
(2) Authority of the Board to Remand on the Question of the Employee's Average Weekly Wage
The employer questions the authority of the Board to remand this case to the ALJ on the question of the employee's average weekly wage. The employer argues that the employee must, in the first instance, establish as an essential element of his claim--his average weekly wage. Absent such evidence, his workers compensation claim fails. Thus, the employer argues that remanding to allow the employee another opportunity to establish his average weekly wage is beyond the authority of the Board, notwithstanding the following provisions of K.S.A. 2002 Supp. 44-551(b)(1):
"On any such review, the board shall have authority to grant or refuse compensation , or to increase or diminish any award of compensation or to remand any matter to the administrative law judge for further proceedings."
(Emphasis added).
The employer also questions the authority of the Board to remand to the ALJ for the purpose of opening the record for presentation of additional evidence. The employer contends that any review is limited to the evidence in the record.
For the reasons set forth below, we conclude that there was sufficient evidence to support the initial award of the ALJ; that on appeal to the Board of this award, the Board had the authority to remand to the ALJ for presentation of new evidence and an accurate determination of the employee's average weekly wage; and that the Board on appeal correctly affirmed the modified award based upon additional findings of the ALJ reflecting the accurate average weekly wage of the employee.
Jurisdiction
The employee challenges our jurisdiction to consider the issue of the Board's authority to remand because there were no exceptional circumstances to warrant an appeal of the Board's remand for a factual finding of the average weekly wage under Williams v. General Electric Co., 27 Kan. App. 2d 792, 9 P.3d 1267 (2000).
In Williams, an employee obtained an award from the ALJ and the Board determined that she had not made a good faith effort to find suitable work and remanded her case for a determination of her imputed post-injury wage. The Court of Appeals dismissed the employee's appeal of this remand, finding the Board's remand was not a final order but rather an intermediate step towards resolution of all actual issues. The court reasoned that under the KJRA, the court's jurisdiction was limited to final agency actions, and remand orders are not appealable in the absence of exceptional circumstances. 27 Kan. App. 2d at 793.
This case is distinguishable from Williams because the employer is not appealing directly from the Board's order remanding the case. The employer reserved the issue for appeal on remand to the ALJ and exhaust
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