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Neal v. Hy-Vee12/24/2003
to retard the progress of, make accomplishment of a difficult and slow. . . . To impede." Black's Law Dictionary 1077 (6th ed. 1990).
The ordinary meaning of the words used in K.S.A. 44-518 contemplate a positive intention to disobey and to hinder. We believe K.S.A. 44-518 contemplates circumstances where an employee makes a deliberate decision not to attend the examination or to obstruct or prevent the employer from gathering its own independent evaluation of his medical condition. Thus, the Board's interpretation that there must be an element of willfulness or intent is consistent with the ordinary meaning of the words of K.S.A. 44-518.
The employee's actions in this case were passive. He was willing to submit to the examination in Kansas City, but his circumstances prevented him from doing so. To conclude, as other courts have, that the employee voluntarily committed his or her crime resulting in incarceration and such a past intentional choice thereby prevented him or her from attending a subsequent examination, ignores statutory language indicating an affirmative act is required on the part of the employee. We, like the Board, are unwilling to treat incarceration for the prior criminal acts as a substitute for the act of refusing to attend the examination.
Based upon the cases cited above and the clear import of K.S.A. 44-518 we, like the Board, conclude that the terms "refusal" and "unnecessarily obstructs" carry with them an element of willfulness or intent. The employee exerted no affirmative act to frustrate discovery; he simply could not go to the examination. Thus, we conclude that a prior criminal act and the resulting incarceration do not, as a matter of law, constitute a refusal or unnecessary obstruction or prevention of a scheduled examination under K.S.A. 44-518 warranting a suspension of benefits. This interpretation of 44-518 is also consistent with the underlying policy of the Workers Compensation Act (Act) to bring both parties under the protections of the Act and to act impartially thereunder.
K.S.A. 44-515--Question of Fact
Our scope of review in regard to this question is statutorily defined by the KJRA, K.S.A. 77-601 et seq. The provisions of K.S.A. 77-621(a)(7) provide that this court shall grant relief only if
"(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act."
The determination of whether an employer has requested the employee to submit to an examination at a reasonable time and place is a question of fact. Zimmerman v. O'Neill Tank Co., 188 Kan. 306, 310, 362 P.2d 10 (1961). The determination of whether the Board's findings of fact are supported by substantial competent evidence is a question of law. Mudd v. Neosho Memorial Regional Medical Center, 275 Kan. 187, 191-92, 62 P.3d 236 (2003).
Substantial evidence is evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing a substantiating basis of fact from which the issue tendered can be reasonably resolved. This court views the evidence in the light most favorable to the prevailing party; it does not reweigh the evidence or determine the credibility of the witnesses. 275 Kan. at 191-92.
While the employer seeks to blame the employee entirely for the added difficulty and cost in obtaining the examination, the employer fails to acknowledge its own culpabi
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