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Neal v. Hy-Vee12/24/2003
l he could comply with K.S.A. 44-518 his case should be suspended.
The dissent also found that the employee's failure to subpoena or obtain an order for payroll records from the employer and to testify about his average weekly wage should have resulted in a denial of compensation for failure to meet the burden of proof on an essential element of the case. It opined that the majority erred by remanding the case for additional evidence on the disputed average weekly wage because remand should not be used to allow a party a second chance to present evidence on a disputed issue because it eliminates any semblance of an adversarial proceeding and removes the Board from making an impartial determination based on the facts before the ALJ.
The employer appeals the Board's July 29, 2002, order.
The employer advances on appeal the same two issues raised before the Board. First, the employer argues that the consequences of the employee's criminal convictions which precluded his compliance with K.S.A. 44-515(a) constitute a refusal to submit to a medical examination under K.S.A. 44-518, with the result that the employee's right to payment of compensation is suspended. Alternatively, the employer contends that the employee's intentional and willful acts have created his incarceration which, in turn, "unnecessarily obstructs" and "prevents" the examination. The employer argues the Board improperly expanded its jurisdiction by finding the term "unnecessarily obstructs" carries with it an element of willfulness of intent. Second, the employer argues that the Board erred by granting the employee another opportunity to establish through remand an essential element of his claim--his average weekly wage.
(1) The Effect of the Employee's Failure to Appear For the Employer's Scheduled Medical Examination by Reason of the Employee's Incarceration on Unrelated Felony Conviction Under K.S.A. 44-515 and K.S.A. 44-518
The employer argues that the Board improperly expanded its jurisdiction by finding the terms "refusal" and "unnecessarily obstructs or prevents" carries with it an element of willfulness or intent on the part of the employee. The employer contends that the Board erred in its conclusion that the employee's failure to appear at the appointment scheduled with Dr. Poppa did not operate to suspend the employee's right to benefits.
The employee counters that the employer's argument ignores the reasonableness requirements of the examination under K.S.A. 44-515 and K.S.A. 44-518. He argues that the employer has failed to demonstrate that it made a reasonable attempt to get the employee examined, that it was unreasonable to expect the employee to be examined in Kansas City while he was incarcerated in Cameron, and that the Board properly interpreted the terms refusal and unnecessarily obstructs to carry with them an element of willfulness or intent.
K.S.A. 44-515(a) provides in relevant part:
"After an employee sustains an injury, the employee shall, upon request of the employer, submit to an examination at any reasonable time and place by any one or more reputable health care providers, selected by the employer, and shall so submit to an examination thereafter at intervals during the pendency of such employee's claim for compensation , upon the request of the employer, but the employee shall not be required to submit to an examination oftener than twice in any one month, unless required to do so in accordance with such orders as may be made by the director."
K.S.A. 44-518 provides:
"If the employee refuses to submit to an examination upon request of the employer as provided for in K.S.A. 44-515 and amendm
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