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Neal v. Hy-Vee12/24/2003
no right to force the employer to make special arrangements to accommodate incarceration. The Board concluded:
"The Board concludes that under the circumstances of this case, claimant did not refuse to submit to an examination. In addition, in this case a reasonable time and place would have been the correctional facility in Cameron, Missouri. The terms 'refusal' and 'unnecessarily obstructs' carry with them an element of willfulness or intent. Claimant did not decide not to go to the examination, he could not go. The Board is unwilling to treat incarceration for the prior criminal act as a substitute for the act of refusing to attend the examination.
"Under the circumstances, the prison facility in Cameron, Missouri, would have been the reasonable place for the examination. The record indicates respondent initially asked one physician to go to the facility. When he refused, respondent made no further effort to arrange for an examination. Upon remand of the matter, the respondent contacted two physicians and one refused to go to the facility and the other was not able to schedule such an all day appointment for two months. The fee for such examination would be $3,000.
"The Board concludes the respondent has not established it is unreasonable to arrange for an examination of claimant at the prison facility. The respondent did not attempt to locate qualified physicians closer to the prison facility in Missouri to conduct an examination of the claimant. Such local physicians would certainly not require the entire day that the two physicians respondent contacted required. In addition, competent medical testimony can be established by a physician without examining the claimant. A physician can review the claimant's medical records and under the Fourth Edition of the AMA Guides offer an opinion on claimant's functional impairment, if any."
Regarding the wage issue, the Board found that K.S.A. 2002 Supp. 44-551(b)(1) grants the Board the authority to remand any matter to the ALJ for further proceedings and remand in this case was contemplated by statute. The Board concluded that the employee's allegations regarding his average weekly wage were unclear because $11.30 per hour plus overtime did not add up to $440 and the statements by counsel regarding TTD benefits which had been paid were not stipulations as to the average weekly wage. Remand was required in the interests of justice and because of the employer's failure to comply with K.A.R. 51-3-8(c) by failing to provide a wage statement and payroll information or state its position on an average weekly wage.
Two Board members dissented from the majority opinion. The dissent found that under K.S.A. 44-518, the employer's statutory right to obtain and present rebuttal medical evidence from a physician of the employer's choice on the extent of the employee's impairment was unnecessarily obstructed. It found that the K.S.A. 44-515 requirement that the employee submit to a medical examination at a reasonable time and place does not include making special arrangements and paying increased fees to facilitate an examination if an employee is incarcerated and cannot submit to an examination at the doctor's facility.
The dissent found the employee's failure to attend the scheduled examination was without reasonable cause or excuse, that he was unable to comply with the examination because he was incarcerated, that the employee exercised his will to commit a crime and subject himself to a potential loss of his personal freedom, and that these were not circumstances beyond the employee's control. It concluded that the burden was on the employee to request a transfer to the location of the examination and unti
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