 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Neal v. Hy-Vee12/24/2003
atute states that the Board has the authority to remand "any" matter to the ALJ for further proceedings. The legislature's decision to add this catch-all phrase to the predecessor statute demonstrates an intent to grant the Board power beyond what had been previously granted to the district court in its review.
Finally, the employer argues that the Board shifted the burden of proof on the average weekly wage from the employee to the employer in applying K.A.R. 51-3-8. This regulation, however, does not shift the burden of proof to the employer; rather, it attempts to limit the amount of litigation by identifying what issues will be in dispute. To achieve this purpose, the employer must have the payroll information available to answer any questions about the employee's wage. Contrary to the employer's assertion, this is different from having the burden to prove the average weekly wage. Once it is determined that wage is a disputed issue, the employee still has the burden to prove the average weekly wage.
In conclusion, the ALJ's initial award was supported by sufficient evidence in the circumstances of this case. However, once appealed, the Board had authority to remand this case to the ALJ for the purpose of determining the accurate average weekly wage of the employee. On further appeal, the Board had authority to consider and affirm the ALJ's modified award based upon additional findings concerning the employee's average weekly wage.
Affirmed.
|