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Neal v. Hy-Vee12/24/2003
asoned this interpretation was in harmony with its policy of construing workers compensation statutes liberally for the protection of the employee. 109 Nev. at 1000.
The Delaware Superior Court in Foraker v. NVF Company, 358 A.2d 730, 731-32 (Del. Super. 1976), reversing a determination that benefits be suspended, held that an employee's incarceration pending disposition of criminal charges did not constitute a refusal or obstruction of the examination. Delaware law provides that an employee's refusal to submit to the employer's examination or obstruction of such examination deprives him of the right to compensation . The court reasoned that suspension of benefits based upon an employee's incarceration prior to a determination of guilt ignores the presumption that an accused person is innocent until proven guilty. 358 A.2d at 733.
As the parties point out, all of these cases are distinguishable from this case in some fashion. Raymond involved the additional circumstance that the incarcerated employee failed to respond to the IME notice which provided the possibility for an alternative date. Campbell's interpretation of "obstruct" to include an intent element was based on Nevada's policy of construing workers compensation statutes liberally for the protection of the employee, while the Kansas policy is to apply the statutes impartially to both employers and employees. K.S.A. 44-501(g). Foraker involved a suspension of benefits prior to the employee's adjudication of guilt and the effect it would have on the presumption of innocence. In this case, the employee's convictions were final at the time of the scheduled examination.
Distinguishing factors aside, this court still must determine whether the provisions of K.S.A. 44-518 require suspension of the employee's benefits as a matter of law. The employer argues that this court's discussion of public policy in In re Marriage of Thurmond, 265 Kan. 715, 962 P.2d 1064 (1998), is consistent with the Raymond court's approach to suspending benefits. In Thurmond, this court concluded that incarceration, standing alone, was not legal justification for the suspension or modification of that parent's child support obligation. Looking at case law from other jurisdictions, the court identified three available methods to make this determination: (1) No justification, (2) complete justification, or (3) one factor to consider. 265 Kan. at 720. In discussing the no justification rule, this court stated:
"The specific language utilized in some of the cases supporting this rule to the effect that incarceration is similar to quitting a job to avoid paying child support and that in both situations, the inability to pay is 'voluntary' stretches reality a bit. Most inmates would have difficulty accepting the concept that their incarceration is to be considered 'voluntary.' It is more accurate to say that a reduction of income from a cause beyond the obligor's control (such as illness, injury, lay-off, etc.) should be considered differently from those which arise from causes within his or her control. Criminal activity foreseeably can lead to incarceration and such activity is obviously within an individual's control. Public policy considerations heavily favor the no-justification rule." 265 Kan. 729.
Justice Allegrucci was joined by Justice Six in dissenting from the majority opinion, finding that he would adopt the "complete justification rule" because it would allow the district court to modify the support obligation based upon the reality of the parent's financial situation. 265 Kan. at 730.
The employer argues the Board erroneously applied a complete justification rule in this case by finding that the employee's in
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