Worker's termination doesn't prevent modification in benefits

In Kansas, a worker can be entitled to a modification of permanent partial disability benefits due to a wage loss without application of an abilities test.

Case name: Serratos v. Cessna Aircraft Co., No. 104,106 (Kan. Ct. App. 07/01/11, unpublished).

Ruling: In an unpublished decision, the Kansas Court of Appeals held that a worker was entitled to a modification of his permanent partial disability benefits based on a 100 percent wage loss.

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What it means: In Kansas, a worker can be entitled to a modification of permanent partial disability benefits due to a wage loss without application of an abilities test.

Summary: A worker for an aircraft company sustained three work-related injuries to his low back. The company allowed him to work in an accommodated position that met his restrictions from lifting, pushing, or pulling over 20 pounds. He received benefits based on a 22 percent task loss. Later, the company terminated him for violating its attendance policy. One month later, the worker sought a modification of his permanent partial disability award based on his job loss and the resulting wage loss. The Kansas Court of Appeals held that the worker was entitled to a modification.

The company asserted that state law required consideration of an abilities test to determine whether the worker was capable of earning wages equal to or greater than his preinjury average weekly wage. The worker argued that a worker's receipt of equal or higher wages for accommodated work does not mean a worker is capable of earning equal wages. The worker maintained that the vocational experts showed his loss of ability to earn a comparable wage. The worker also argued that the reason for his termination had no bearing in his right to an award of permanent partial disability benefits.

The court said that an abilities test is not applicable in determining work disability. Also, the worker's postinjury wage loss was 100 percent, and the reasons for his wage loss were irrelevant. His work disability increased because of a total wage loss.

Read more at the WorkersComp Forum homepage.

August 22, 2011

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