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Poff v. IBP3/11/2005
ystem, the ALJ is not bound by the technical rules of procedure, but is required to ensure that all parties are essentially provided due process. K.S.A. 2004 Supp. 44-523(a). IBP states that here the ALJ fully complied with his obligations to both parties in receiving evidence, setting terminal dates, setting out procedures for trial, and in rendering separate awards on separate claims for compensation. We agree. Consolidation of cases in general civil practice is at the discretion of the trial judge. See K.S.A. 60-242(a); Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 131, 671 P.2d 511 (1983). "Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. [Citations omitted.]" Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002). We find no abuse of discretion in the ALJ's decision to issue four separate awards.
Poff next argues substantial evidence proves that his work-related injuries render him incapable of performing even a sedentary sit/stand option job for 8 hours a day. He contends that he is permanently and totally disabled as a result of his varicose vein condition.
Since the 1993 amendments to the Workers Compensation Act, the Board has authority to review the decision by the ALJ on questions of law and fact. The Board's decision is then appealable to the Court of Appeals, where review is limited to questions of law in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Whether the Board's findings of fact are supported by substantial competent evidence is a question of law. Webber v. Automotive Controls Corp., 272 Kan. 700, 703-04, 35 P.3d 788 (2001). Substantial evidence in workers compensation cases is evidence that possesses something of substance and relevant consequence and carries with it fitness to induce the conclusion that the award is proper, or furnishes a substantial basis of fact from which the issue raised can be reasonably resolved. The appellate court reviews the evidence in the light most favorable to the prevailing party and does not reweigh the evidence or assess the credibility of witnesses. Neal v. Hy-Vee, Inc., 277 Kan. 1, 16-17, 81 P.3d 425 (2003).
The issue of whether the Board's findings of fact are supported by substantial competent evidence is a question of law. Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck Inc., 268 Kan. 33, 34, 991 P.2d 406 (1999). The issue of whether Poff is permanently totally disabled must be determined in accordance with the facts of the case. See K.S.A. 44-510c(a)(2). Under K.S.A. 44-510c(a)(2), a "permanent total disability renders the employee completely and permanently incapable of engaging in any type of substantial and gainful employment." Pruter v. Larned State Hospital, 271 Kan. 865, Syl. 1, 26 P.3d 666 (2001). An employee is permanently and totally disabled when rendered "'essentially and realistically unemployable .'" Wardlow v. ANR Freight Systems,19 Kan. App. 2d 110, 113, 872 P.2d 299 (1993).
The medical evidence in this case consisted of the deposition testimony of the treating physician, the independent medical examiner, and two physicians hired by Poff to support his claims of injury. Poff argues that the evidence supports a finding that he should have medical restrictions allowing him to lay down and elevate his legs on an as-needed basis. He argues this would make him "completely and permanently incapable of engaging in any type of substantial and gainful employment." See K.S.A. 44-510c(a)(2).
The Board weighed all the medical evidence and found Dr. Bosiljevac's testimony to be the most credible. Dr. Bosil
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