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Neal v. Hy-Vee12/24/2003
tion is one of fact dependent upon the circumstances of the case being considered.
K.S.A. 44-518--Question of Law
Does the employee's incarceration for felony convictions unrelated to the workers compensation proceedings constitute a refusal or unnecessary obstruction or prevention of such examination under K.S.A. 44-518 as a matter of law? The question posed is one of first impression in Kansas. The Board answered no to this question by concluding that the terms "refusal" and "unnecessarily obstructs" in K.S.A. 44-518 carry with them an element of willfulness or intent. According to the Board, the employee did not decide not to go to the examination; rather, he could not go. The Board was unwilling to treat incarceration for his felony convictions as a substitute for the act of refusing to attend the examination.
Our standard of review is statutorily defined by the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Under K.S.A. 77-621(c), this court may grant relief if it finds the agency has erroneously interpreted or applied the law. The interpretation of K.S.A. 44-515 and K.S.A. 44-518 is a question of law subject to unlimited review. Although deference must be given to the Board's interpretation of the law, this court may take corrective action if such interpretation is erroneous. Burton v. Rockwell International, 266 Kan. 1, 5, 967 P.2d 290 (1998).
The Board examined cases from Delaware, Nevada, and Pennsylvania regarding the issue we now consider. The Pennsylvania Commonwealth Court in Raymond v. W.C.A.B. (Donolo Masonry Const.), 659 A.2d 657 (Pa. Commw. 1995), dealt with an incarcerated employee's appeal from the Board's suspension of his benefits when he failed to attend a scheduled independent medical examination (IME) scheduled by the employer at the doctor's office. Pennsylvania law requires an employee to submit himself for examination at some reasonable time and place and to a physician selected by the employer who must pay the fees and travel expenses incurred by the employee. As in this case, the employee argued that he was willing to attend the examination but was unable due to his incarceration.
In affirming the suspension of benefits of that employee, the Pennsylvania Commonwealth Court found the responsibilities of an employer do not include making special arrangements to facilitate an IME if an employee is incarcerated and cannot submit himself to an examination. It found that a reasonable time and place would be at a physician's office or a medical facility, not a prison, especially when an employee is unable to submit himself or herself due to his or her own intentional actions. Additionally, the court pointed out that the employee did not timely respond to the notice of the IME although the notice indicated a willingness to consider an alternative date. 659 A.2d at 660.
The Nevada Supreme Court addressed the same issue in SIIS v. Campbell, 108 Nev. 1100, 844 P.2d 795 (1992). That court subsequently granted a rehearing in the case and ordered the above opinion to be withdrawn in 109 Nev. 405, 848 P.2d 1068 (1993). On rehearing, the court considered whether TTD benefits may be suspended during the time in which a claimant is incarcerated. 109 Nev. 997, 862 P.2d 1184 (1993).
Under Nevada law, TTD benefits may be suspended where an employee voluntarily refuses to receive or obstructs the completion of a required examination. In affirming the appeal officer's finding that the incarcerated employee neither obstructed nor refused to submit to an examination, the court interpreted "obstruct" as meaning a volitional act with intent to hinder a required examination. It re
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