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Neal v. Hy-Vee12/24/2003
souri location was attended by the employee.
The employer appealed, raising two issues before the Board. First, the employer argued that the employee's benefits should have been suspended because he was incarcerated at a prison facility in Cameron and failed to attend a medical appointment scheduled by the employer. Second, the employer argues that the employee's benefits should have been denied because the employee did not present any evidence regarding his average weekly wage, an essential element of his claim.
In the April 19, 2000, order, the Board found the employee's failure to appear at the scheduled appointment for examination by the employer's doctor did not operate to suspend his right to benefits under K.S.A. 44-515 and K.S.A. 44-518. The Board concluded that under the circumstances, the employee did not refuse to submit to an examination as that term is used in K.S.A. 44-518. The Board reasoned that the term "refusal" carries with it an element of willfulness or intent, that the employee could not go to the examination, and that it was unwilling to have the prior criminal act substitute as the act of refusing to attend the examination. The Board also concluded that a reasonable time and place for such an examination would have been the correctional facility in Cameron.
The Board also found that the employee offered no evidence of his average weekly wage but the employer did not comply with K.A.R. 51-3-8(c) by providing payroll records. " n the interest of justice," the Board remanded the case to allow the employee to introduce evidence of his average weekly wage. The employer attempted an appeal to the Kansas Court of Appeals. However, the employer's appeal was dismissed because the Board's April 19, 2000, order was interlocutory.
Consistent with the Board's order, the case was remanded to the ALJ. While continuing to contend that the Board had no authority to allow the employee a new opportunity to establish his average weekly wage after he had failed to establish the same in the first regular hearing before the ALJ, the employer stipulated that the employee's average weekly wage was $462.18.
In his May 15, 2001, award, the ALJ took into account the deposition of Kip Kubin, who discussed the difficulty in obtaining a qualified medical examination of the employee while he was imprisoned in Cameron and the estimates that the costs of well-known evaluators would be $3,000 to $5,000 for an examination. However, the ALJ pointed out that the employee was examined by Dr. Zimmerman while in the Jackson County jail and the employer had several years to likewise arrange an examination in Kansas City. The ALJ awarded the employee 3 weeks of TTD at the rate of $308.14 per week, followed by 33.20 weeks at $308.14 per week, for an 8% permanent partial general body disability. The ALJ reasoned that the benefits should be suspended as of December 29, 1998, the date the employee failed to appear for the examination.
The employer appealed to the Board, arguing that the employee's benefits should have been suspended because his incarceration prevented an examination by its chosen physician and the Board did not have the authority to remand the case for more specific evidence of the average weekly wage.
The Board affirmed the ALJ in its July 29, 2002, order. Regarding the suspension issue, the Board noted testimony that the usual and customary fee for an independent medical examination is between $350 and $800. The Board recognized that Delaware and Nevada courts have held the failure of an incarcerated employee to appear for medical examination should not be treated as a refusal but a Pennsylvania court had held that an employee had
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