REDD v. KANSAS TRUCK CENTER

eating physicians while he was still employed by the company. This argument is without merit because it involves a credibility determination made by the Board. This court will not reassess credibility on appeal. Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709-10, 216 P.3d 170 (2009).

Redd testified he told his supervisor, an insurance company adjuster, and his doctor, while still employed, that he was experiencing pain in his right hand. The ALJ found this testimony credible and relied upon it when determining Redd properly notified his employer regarding the injuries to both his left and right extremities. The Board's findings are consistent with this credibility determination. The Board held Redd notified his employer, the insurance carrier, and Redd's doctor that he was having problems with his right upper extremity. The ALJ personally observed Redd's demeanor and found his testimony credible. We will not disturb this determination.

Second, Kansas Truck Center argues Dr. Melhorn, the doctor the Board relied upon, did not specifically state there was causation or that it was within a reasonable degree of medical certainty. Kansas Truck Center also challenges Dr. Melhorn's causation finding as not credible, claiming the doctor testified Redd's complaints were unverifiable and noted Redd did not exhibit optimal effort during the grip tests.

But this misstates Dr. Melhorn's testimony and involves another credibility determination. Dr. Melhorn concluded Redd's work activities contributed to his right upper extremity injuries. Dr. Melhorn conducted surgery on Redd's upper right extremity while acting as the treating physician and assigned an impairment rating for the right arm. As to the veracity of Redd's complaints, Dr. Melhorn acknowledged he was unable to verify them through objective testing, but he further testified he believed the impairment rating was appropriate considering Redd's medical history, the physical exam, and a nerve conduction study. Dr. Melhorn also testified he did not have a reason to disbelieve Redd's complaints. Accordingly, the record supports the Board's reliance on Dr. Melhorn's testimony.

Third, Kansas Truck Center argues the Board's causation finding contradicts the weight of the medical testimony. Conceivably, this argument might have greater strength under the revised statutory standard of review under the KJRA discussed above, which requires examining the evidence both supporting and detracting from the agency's findings. K.S.A. 2009 Supp. 77-621(d). But the argument certainly fails under the standard of review applicable under K.S.A. 77-621(c)(7) for this appeal because it was reasonable for the Board to principally rely upon Redd's treating physician, whose testimony supported the Board's finding.

Both Drs. Melhorn and Murati found causation. Their conclusions were buttressed by Redd's testimony that symptoms in his right hand began 3 to 4 weeks after he began working while favoring it. Ultimately, this was another credibility determination. It was reasonable for the Board to accept the treating physician's testimony, which was supported by Dr. Murati. We will not disturb this finding. We hold the Board's causation decision was supported by substantial competent evidence in light of the record as whole.

ISSUE TWO: PERMANENT PARTIAL DISABILITY AWARD CALCULATION

Next, Kansas Truck Center challenges the Board's method for calculating the permanent partial disability award. Various positions are advanced as the correct outcome. The Board's majority held Redd was entitled to permanent partial disability compensation for five scheduled injuries. It issued separate awards for each of the five impairments, resulting in the following awards: (1) left hand totaled $9,650.88 for a 16 percent loss of use; (2) left forearm totaled $8,190.72 for a 10 percent loss of use; (3) left arm totaled $8,622.72 for a 10 percent loss of use; (4) right forearm totaled $8,190.72 for a 10 percent loss of use; and (5) right arm totaled $12,934.08 for a 15 percent loss of use. This resulted in a total permanent partial disability award of $47,589.12.

Kansas Truck Center counters that the Board should have combined these five impairments into one whole body impairment rating, resulting in one award. It argues this calculation method is required by K.S.A. 44-510d(a)(23), which adopts the Guides. In its brief, Kansas Truck Center argues "[t]he Guides' method was appropriately used by the physician experts in this case, converting [Redd's] regional impairments to a whole body impairment using the Combined Values Chart."

This is similar to the position taken in the Board's dissenting opinion, which argued the Board should "determine the upper extremity impairments for each separate part as done by the majority, but, then, combine the upper extremity impairments as instructed by the [Guides]." The dissenting board member did not clarify whether he believed the Guides required calculating these injuries as a whole body impairment, as Kansas Truck Center argued, or combined as separate upper extremity impairments, as done by the Mitchell panel.

Standard of Review

Under the KJRA, this court may grant relief if the Board has erroneously interpreted or applied the law. K.S.A. 77-621(c)(4). Statutory interpretation is subject to unlimited appellate review. Higgins v. Abilene Machine, Inc., 288 Kan. 359, 361, 204 P.3d 1156 (2009). Redd argues this court should be deferential to the Board's interpretation of the Workers Compensation Act when there is a rationale basis for its interpretation, citing Casco, 283 Kan. at 521.

But this argument ignores this court's more recent decisions, which have recognized little utility for such deference given the long-standing admonition that appellate courts are always free to substitute their judgment for that of the administrative agency when reviewing a question of law. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010) ("In this matter, an appellate court exercises unlimited review on the determinative question of statutory interpretation without deference to [the agency's] view as to its own authority."); Higgins, 288 Kan. at 361 ("No significant deference is due [an administrative law judge's] or the [Workers Compensation] Board's interpretation or construction of a statute."). Indeed, when an agency applies the same statute in conflicting ways, as the Board has on this question, any judicial deference is stymied. Cf Burlington N.S.F.R. Co. v. White, 548 U.S. 53, 65-66, 165 L. Ed. 2d 345, 126 S. Ct. 2405 (2006) (Agency views that are shifting or insufficiently developed have little or no persuasive value.).

Furthermore, when appellate courts embark upon statutory interpretation and construction, "the most fundamental rule . . . is that the legislature's intent governs if [it] can be ascertained." Higgins, 288 Kan. at 361. The first step is to ascertain legislative intent through the language employed, giving ordinary words their ordinary meaning. 288 Kan. at 361-62. When a statute is plain and unambiguous, this court must give effect to the statute's express language, instead of determining what the law should or should not be. Appellate courts will not speculate about legislative intent or read a statute in a manner that adds something not readily contained within it. 288 Kan. at 362 (quoting Graham, 284 Kan. at 554.)

The statutes require separate awards

As noted above, the Board has employed, and the Court of Appeals has affirmed, different methods for calculating permanent partial disability awards. The Board uses one hereassigning separate awards for each injury to a scheduled member. A Court of Appeals panel recently affirmed this method in Conrow v. Globe Engineering Co., No. 99,718, unpublished opinion filed March 13, 2009. Another method the Board utilized combined multiple injuries to the same extremity to the highest level of injury on that extremity. A different Court of Appeals panel approved this approach in Mitchell v. Petsmart, Inc., 41 Kan. App. 2d 523, 203 P.3d 76 (2009), rev. granted 289 Kan. 1279 (2009). We announce a decision in that case this same day and reverse the Mitchell panel's decision on this point. Mitchell, 291 Kan ___, 239 P.3d 51 (2010). In Redd's case, the Mitchell court's approach would result in two permanent partial disability awardsone for Redd's left upper extremity and one for Redd's right upper extremity.

But neither of these two conflicting methodologies used by the Board involves a whole body impairment calculation, which is a third approach and the one advocated by Kansas Truck Center in this appeal. Accordingly, we must determine which method is correct under K.S.A. 44-510d in this case. A review of the governing statutes, the case law interpreting those statutes, the Guides, and the legislative history for K.S.A. 44-510d(a)(23) is required. We will follow those reviews with an analysis to resolve the question.

A. The Statutes

An overview of the Workers Compensation Act places the issue in context. In Casco v. Armour-Swift Eckrich, 283 Kan. 508, 522, 154 P.3d 494 (2007), this court explained:

"The Workers Compensation Act calculates compensation differently depending on the nature of the disability. K.S.A. 44-510c provides compensation for temporary and permanent total disabilities. K.S.A. 44-510d and 44-510e provide compensation for permanent partial disabilities. K.S.A. 44-510d calculates the award based on a schedule of disabilities. If an injury is on the schedule, the amount of compensation in the schedule includes compensation for the complete loss of the member or the partial loss of the member. K.S.A. 44-510d(a)(21). The compensation for a scheduled disability is based on the schedule alone without regard to the claimant's loss in earning power. [Citation omitted.] K.S.A. 44-510e, on the other hand, calculates the award for any injury not included on the schedule."

Kansas Truck Center's challenge solely pertains to the permanent partial disability calculation. Both K.S.A. 44-510d and K.S.A. 44-510e are relevant. The Board's scheduled injury calculation was made under K.S.A. 44-510d, but Kansas Truck Center's approach would require compensation as if Redd suffered a general disability under K.S.A. 44-510e because whole body impairments are not scheduled injuries.

K.S.A. 44-510d(a) provides in part that permanent partial disability compensation "is to be paid for not to exceed the number of weeks allowed" in the following schedule:

"(11) For the loss of a hand, 150 weeks.

"(12) For the loss of a forearm, 200 weeks.

"(13) For the loss of an arm, excluding the shoulder joint, shoulder girdle, shoulder girdle, shoulder musculature or any other shoulder structures, 225 weeks.

. . . .

"(21) . . . For the permanent partial loss of use of a . . . hand . . . arm . . . shall be paid as provided for in K.S.A. 44-510c . . . per week during that proportion of the number of weeks in the foregoing schedule provided for the loss of such . . . hand, [arm, or shoulder], which partial loss thereof bears to the total loss of a . . . hand, [arm, or shoulder] . . .; but in no event shall the compensation payable hereunder for such partial loss exceed the compensation payable under the schedule for the total loss of such . . . hand, arm, [or shoulder] . . ., exclusive of the healing period.

. . . .

"(23) Loss of a scheduled member shall be based upon the permanent impairment of function to the scheduled member as determined using the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, if the impairment is contained therein."

K.S.A. 44-510e defines permanent partial general disability as a disability, partial in character and permanent in quality, which the K.S.A. 44-510d schedule does not cover. It then establishes a unique method for calculating general disabilities that considers wage loss. That particular methodology is not relevant to this appeal, but it should be noted that general disabilities tend to result in higher awards. Pruter v. Larned State Hospital, 271 Kan. 865, 869, 26 P.3d 666 (2001). Kansas Truck Center predicates much of its advocacy for a whole body impairment on the language in K.S.A. 44-510(d)(a)(23), which requires loss of a scheduled member be based upon the permanent impairment of function to the scheduled member "as determined" using the Guides. Accordingly, it is appropriate to next consider those Guides in the applicable context for this case. B. The Guides

This court has not examined the Guides or the meaning of their adoption in K.S.A. 44-510d(a)(23). According to the foreword, the Guides' stated purpose is "`to bring greater objectivity to estimating the degree of long-standing or "permanent" impairments.'" Guides, p. v. This is accomplished by performing medical evaluations "in accordance with the directions in the Guides." Guides § 1.2, p. 3.

The first step under the Guides is assessment or evaluation. This requires a documented medical evaluation and review of a patient's case history. The Guides contain chapters on each organ system, and each chapter contains descriptions on ways to evaluate the body part, function, or system. Guides § 1.2, p. 3. The Guides' methods for evaluating impairments to the upper extremities are outlined in Chapter 3, relating to the musculoskeletal system. The hand and upper extremity sections cover the thumb, finger, wrist, elbow, and shoulder regions. Guides §§ 3.1a-3.1o, pp. 15-74.

The second step requires combining impairments. The Guides instruct physicians to combine impairments to the same member and then convert that impairment to the next larger unit. For example, multiple injuries to the same thumb are combined. Then, the total thumb impairment is converted to a hand or "regional" impairment. All regional impairments, i.e., hand, wrist, and shoulder, are combined to generate a total impairment to the upper extremity. Ultimately, this upper extremity calculation is converted into a whole body impairment. Guides §§ 3.1e, 3.1n, pp. 24, 65. These calculations are performed whether it is a single injury, i.e., impairment to one hand, or multiple injuries, i.e., impairment to the hand and shoulder. Guides § 3.1o, pp. 66-74.

Guides § 3.1e, p. 24, entitled "Combining Impairment Values", demonstrates how to combine impairments for the same member, i.e., one finger with two impairments, and how to combine multiple regional impairments, i.e., the hand, wrist, and shoulder. It states:

"When there is more than one impairment of a member, such as abnormal motion, sensory loss, and amputation of a finger, the impairments must be combined before the conversion to the next larger unit, in this case the hand, is made.

"The method for combining impairments is based on the idea that a second or a succeeding impairment should apply not to the whole, but only to the part that remains after the first and other impairments have been applied. . . .

"The Combined Values Chart on p. 322 may be used to determine the combined value of two impairment percents or, in succession, any number of impairment percents.

. . . .

"Multiple regional impairments, as with those of the hand, wrist, elbow, and shoulder, are expressed in terms of impairment of the upper extremity and are combined using the Combined Values Chart. The Chart is used also to combine impairments of two or more organ systems and express these as a whole-person impairment."

Guides § 3.1n, p. 65, entitled "Combining Regional Impairments to Obtain Impairment of the Whole Person", instructs a physician to combine regional impairments, i.e., hand, wrist, or shoulder, into a whole body impairment. The first step is to covert these impairments into a value for the upper extremity. Then, the Guides § 3. In, p. 65, converts the upper extremity impairment into a whole body impairment, stating:

"1. Determine the impairments of each region (hand, wrist, elbow, and shoulder joints) as described in preceding sections.

"2. Use the Combined Values Chart (p. 322) to combine impairments to the upper extremity contributed by each region.

"3. Use Table 3 (p. 20) to convert impairment of the upper extremity to impairment of the whole person."

Guides § 3.1o, pp. 66-74, entitled "Summary of Steps for Evaluating Impairments of the Upper Extremity", provides instructions for calculating upper extremity awards and combining them into whole body impairments. This summary instructs physicians to convert a singular injury into a regional impairment and then a whole body impairment, even if there are no other injuries. This is demonstrated by the Guides § 3.1o (I. Hand Region), p. 66, pertaining to calculating a hand impairment, which states:

"G. Total hand impairment: add the hand impairment values related to the involved digits.

"H. Convert hand impairment to upper extremity impairment. (Table 2, p. 19)

. . . .

"K. If no other upper extremity impairment exists, convert the upper extremity impairment related to the hand region to a whole-person impairment (Table 3, p. 20)."

These instructions also are included at the bottom of Figure 1, which is titled "Upper Extremity Impairment Evaluation Record." Guides § 3.1a, p. 16.

As is easily seen from the above description, Kansas Truck Center is correct that the Guides contemplate converting a worker's injury into a whole body impairment. But that does not resolve the inquiry. We next consider Kansas Truck Center's claim in light of the consideration given to the Guides by the legislature when it included reference to them in the statutes.

C. Applicable Legislative History

In evaluating Kansas Truck Center's argument, it is necessary to look more closely at K.S.A. 44-510d(a)(23), which references the Guides. This provision was added to the statute in 1993 and modified in 1996. L. 1993, ch. 286, sec. 33; L. 1996, ch. 79, sec. 23. But the only meaningful change in 1996 was adopting the fourth edition of the Guides instead of the third edition. L. 1996, ch. 79, sec. 23.

The 1993 amendment was part of a massive workers compensation revision effort. This court described the endeavor when it reviewed the changes:

"At the start of the 1993 legislative session, legislators had before them the reports of the Governor's Task Force on Workers Compensation, the Insurance Commissioner's Workers Compensation Task Force, and the Legislative Post Audit Committee, all of which suggested areas of the workers compensation system that the various committees determined needed reform. Over the course of the session, the House Committee on Labor and Industry and the Senate Committee on Commerce conducted hearings and heard from witnesses representing employees, employers, trial lawyers, labor organizations, and business associations. S.B. 307, which dealt with safety issues, was used as the vehicle for workers compensation reform. The legislation passed unanimously in both the House and Senate, and Governor Finney signed the bill into law." Injured Workers of Kansas v. Franklin, 262 Kan. 840, 842, 942 P.2d 591 (1997).

Dr. Phillip L. Baker's testimony before a legislative committee provides some insight for our present purposes into issues the legislature considered regarding the Guides. Dr. Baker was asked to give his opinion on "whether physicians could rate and schedule shoulder or girdle problems at that area, as provided in Sec. 23 of SB 215, rather than body of the whole." (Emphasis added.) Minutes, Sen. Comm. on Commerce, February 10, 1993. Dr. Baker gave this response:

"`[T]he answer is yes, because that is the way we do it anyway. The only reason they are converted to whole body is because the system asks us to do that, and it has been that way as long as I can remember. In fact, it was hard to learn to do that. . . .' There is now a table in the AMA guidelines for impairment that [converts to a whole body impairment]. You just look up the percent that you have given to the upper extremity for the shoulder and go down the table until you find that number and there is a schedule that does that. . . . But it's not a medical issue, it's a book logistic issue that has little relationship to the body and how it functions and what this person may be doing." Minutes, Sen. Comm. on Commerce, February 10, 1993.

The committee's question at least impliedly suggests it did not mean for this provision to adopt the Guides' requirements to convert all injuries into whole body impairments. The doctor's answer also shows there is not a medical reason for combining the impairments, which means that refusing to adopt Kansas Truck Center's argument does not affect the impairment ratings' accuracy.

D. Analysis

As noted above, even though Kansas Truck Center is correct that the Guides require combining impairments into whole body injuries, it still fails to address whether adopting this approach is consistent with the other provisions in the Workers Compensation Act. As Kansas Truck Center conceded at oral argument, if the Guides are followed literally, all impairments would be calculated as whole body injuries and compensated under K.S.A. 44-510e. This interpretation would render the scheduled injury provisions in K.S.A. 44-510d(a)(1)-(22) meaningless because a claimant would never be awarded benefits based on a scheduled injury.

This court previously addressed whether certain scheduled injuries can be converted into a whole body impairment given the scheduled injury provisions set out in the law. In Casco, the injured worker suffered a repetitive use injury to his left shoulder and subsequently injured his right shoulder as a natural consequence of the first injury. The issue on appeal was whether injuries to parallel limbs should be calculated separately as scheduled injuries or combined and calculated as a general body disability under K.S.A. 44-510e.

The Casco court emphasized scheduled injuries were the general rule and general disabilities the exception, holding the awards at issue must be calculated as scheduled injuries in accordance with K.S.A. 44-510d. 283 Kan. at 528. In doing so, this court overruled Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 (1931), which had allowed multiple scheduled injuries to be combined into whole body impairments. 283 Kan. at 527 (citing and discussing Pruter, 271 Kan. at 873-76). Admittedly, Casco did not address the K.S.A. 44-510d(a)(23) reference to the Guides, but Kansas Truck Center's argument that Redd's award should be converted into a whole body impairment would require us to overrule Casco.

To avoid this problem, Kansas Truck Center attempts to distinguish Casco by arguing its holding only applies to bilateral injuries, not separate injuries to the same extremity as Redd suffered. But this ignores the Casco decision's core, which definitively held that scheduled injuries are the general rule and that the statutory structure comprising the Workers Compensation Act does not permit combining scheduled injuries into a whole body impairment. 283 Kan. at 528-29.

In addition, if the plain reading of a statute yields an ambiguity or a lack of clarity, the rules of statutory construction are used to resolve the ambiguity. This requires moving outside the text of the provision and examining evidence of legislative intent, legislative history, or employing the additional canons of statutory construction to determine the legislature's meaning. Higgins, 288 Kan. at 362. The legislative history, as discussed above, is consistent with Casco's aversion to whole body impairment when there is a specific statutory schedule.

Appellate courts also must consider various provisions of an act in pari materia to reconcile and bring the provisions into workable harmony if possible. State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 115 (2008). If they cannot be resolved, a fundamental rule of statutory construction is "[w]hen there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless it appears that the legislature intended to make the general act controlling." Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 251, 21 P.3d 985 (2001).

Applying the rules of statutory interpretation, the provision referencing the Guides in K.S.A. 44-510d(a)(23) must be read in a way that does not render the statutory schedule in K.S.A. 44-510d extraneous, if possible. See State v. Trautloff, 289 Kan. 793, 797, 217 P.3d 15 (2009) ("As a general rule, courts should read statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation."). But if the entire instructions contained in the Guides are to be applied to create a whole body impairment for every injury to a worker, as Kansas Truck Center argues they should be, the statute's scheduled injury sections in K.S.A. 44-510d(a)(1)-(22) become meaningless. Statutory construction rules do not favor this result.

As discussed above, the Guides were designed to increase objectivity and uniformity when estimating impairments. Dr. Baker's comments suggest the Guides' conversions into regional and whole body impairments were added simply to help physicians comply with their particular state's workers compensation requirements when applicable. But since the Kansas Legislature created its own mechanism to calculate permanent partial disability awards in K.S.A. 44-510d and K.S.A. 44-510e, the more reasonable interpretation for K.S.A. 44-510d(a)(23) is that the legislature meant to adopt the evaluation requirements but not the instructions to combine and convert the injuries into whole body impairments. This view maintains the Guides' purpose of bringing greater objectivity to the physician's task of estimating the magnitude of permanent impairments, while allowing for the scheduled injury calculations specified in the statute.

This interpretation also is consistent with another statutory interpretation rule that the more specific statute should govern if the statutes cannot be reconciled. In re Roth, 269 Kan. 399, 403, 7 P.3d 241 (2000) ("[W]here a conflict between general and specific statutes exists, the specific statute will prevail unless it appears that the legislature meant to make the general statute controlling."). The scheduled injury provisions in K.S.A. 44-510d(a)(1)-(22) deal specifically with how a permanent partial disability award should be calculated, while the Guides are a general instruction manual developed to help physicians across the nation calculate impairments for claimants without specific reference to a particular state's statutory scheme for providing benefits to injured workers. K.S.A. 44-510d(a)(23) is the more general provision in the statute. We conclude the Guides should not control over the more specific statutory schedule. We hold this statutory analysis and our rationale in Casco demonstrate Redd's impairments should not be combined into whole body impairments.

But this conclusion does not end our inquiry. As discussed above, the Board used a different method of calculation in Mitchell. This variation in Mitchell stopped short of combining multiple injuries to single extremities into a whole body impairment. We must determine whether that alternative method is proper before ruling how Redd's award should be calculated.

The employee in Mitchell also suffered multiple injuries like Redd. The Board determined Mitchell suffered repetitive trauma, developing bilateral carpal tunnel syndrome, right elbow symptoms, and bilateral shoulder injuries. The Board then combined these impairment ratings at the level of each shoulder, resulting in a 24.5 percent impairment to the right upper extremity and a 8 percent impairment to the left upper extremity. Two board members dissented, arguing Mitchell's injuries needed to be compensated on the schedule at the level corresponding to that injury. The dissenters argued for separate calculations, which was the approach the Board majority used for Redd.

The Mitchell panel interpreted K.S.A. 44-510d to allow compensation at the highest level of the injury when multiple injuries occur within a single extremity. First, it distinguished its calculations from those found improper in Casco by noting the Board did not convert Mitchell's injuries into a whole body impairment thereby requiring compensation under the general disability statute, K.S.A. 44-510e. Then, it noted the statutory structure of the scheduled injuries was progressive, meaning an injured worker is entitled to more weeks if the injury occurs at a higher level, i.e., 200 weeks for a forearm, but 210 weeks for the loss of an arm. The panel quoted Casco, 283 Kan. at 522, stating that "`[i]f an injury is on the schedule, the amount of compensation in the schedule includes compensation for the complete loss of the member or the partial loss of the member.'" But the panel then stated that where only a partial loss occurs, the number of weeks is reduced by the percentage of the loss and, thus, "the principle of compensating an extremity at the highest level affected applies regardless of whether the loss is total or partial." Mitchell, 41 Kan. App. 2d at 537.

Admittedly, this approach does not render the statutory schedule meaningless, but it does read something into the provisions of K.S.A. 44-510d(a)(1)-(22) that does not exist. The schedule does not contain any language requiring the combination of scheduled injuries, and the Mitchell panel did not explain where it found the authority to justify the way in which the Board combined Mitchell's injuries.

Using the statutory construction analysis recited above, we hold the best way to reconcile K.S.A. 44-510d(a)(23) with the statutory schedule is to use the Guides as a mechanism to evaluate impairment at the level of the injury and not to apply its provisions that call for combining injuries first into regional, and then whole body, impairments. As such, separate awards should be provided at each injury level. The Board majority correctly calculated Redd's award.

ISSUE THREE: THE $50,000 CAP IN K.S.A. 44-510f(a)(4)

Finally, Kansas Truck Center argues the $50,000 benefit cap in K.S.A. 44-510f(a)(4) applies because Redd's permanent partial disability award was for "functional impairment only." Redd received $47,589.12 for permanent partial disability and $22,464 for temporary total disability. This resulted in a total award of $70,053.12. For the $50,000 cap to apply under these facts, Kansas Truck Center argues the statute limits Redd's total disability award. Redd, of course, argues the $50,000 cap does not apply in cases where temporary total disability benefits are awarded, citing Roberts v. Midwest Mineral Inc., 41 Kan. App. 2d 603, 204 P.3d 1177 (2009), pet. for rev. filed April 20, 2009 (pending). Applying the cap as Kansas Truck Center advocates would decrease Redd's award by $20,053.12.

Kansas Truck Center's argument also presents a question of statutory interpretation subject to unlimited appellate review as did the last issue. And, as noted above, we cannot give deference to the Board's interpretation on this question because the Board has applied the statute in contradictory ways. See Smothers v. Transervice Logistics, Inc., 2009 WL 1588632, at *4 (Work. Comp. Bd., No. 1,039,301, filed May 29, 2009) (declining to follow Roberts after the Roberts' petition for review was filed); Martinez v. Cargill Meat Solutions, 2010 WL 2671463, at *6 (Work. Comp. Bd., No. 1,027,952, filed June 25, 2010) (adopting the Roberts approach).

The meaning of K.S.A. 44-510f(a)(4) is an issue of first impression for this court, but two Court of Appeals panels have addressed it. Roberts, 41 Kan. App. 2d at 603, and Rinke v. Bank of America, No. 93,868, unpublished opinion filed March 30, 2007. The panels interpreted the statutory language differently, although both decisions resulted in findings that did not apply the $50,000 statutory cap.

First, we review the statute in controversy.

K.S.A. 44-510f(a) sets an employee's maximum compensation benefits. It states:

"(a) Notwithstanding any provision of the workers compensation act to the contrary, the maximum compensation benefits payable by an employer shall not exceed the following:

"(1) For permanent total disability, including temporary total, temporary partial, permanent partial and temporary partial disability payments paid or due, $125,000 for an injury or any aggravation thereof;

"(2) for temporary total disability, including any prior permanent total, permanent partial or temporary partial disability payments paid or due, $100,000 for an injury or any aggravation thereof;

"(3) subject to the provisions of subsection (a)(4), for permanent or temporary partial disability, including any prior temporary total, permanent total, temporary partial, or permanent partial disability payments paid or due, $100,000 for an injury or any aggravation thereof; and

"(4) for permanent partial disability, where functional impairment only is awarded, $50,000 for an injury or aggravation thereof." (Emphasis added.)

Functional impairment is considered only in instances in which an injured worker suffers from a partial loss of use of a member, in which case there must be a determination of the percentage of loss of use of the scheduled member. The permanent partial general disability statute defines functional impairment as

"the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence and based on the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, if the impairment is contained therein." K.S.A. 44-510e(a).

In 1993, K.S.A. 44-510f was amended to add subsection (a)(4) as part of workers compensation reform L. 1993, ch. 286, sec. 35. Additional language was also added to K.S.A. 44-510f(a)(3) that year. Specifically, that the $100,000 cap was "subject to the provisions of subsection (a)(4)". L. 1993, ch. 286, sec. 35.

A representative from the Revisor of Statutes testified the workers compensation bill "`[p]rovides a cap on "white collar" recoveries where there has been no wage loss at one-half the current limit for permanent partial disability.'" Minutes, Sen. Comm. on Commerce, February 8, 1993. These minutes do not specifically identify K.S.A. 44-510f(a)(4). But it is reasonable to assume they refer to this provision because it was the only statutory cap included in the 1993 amendments, and it allows one-half of the maximum compensation benefits allotted in K.S.A. 44-510f(a)(2)-(3). See L. 1993, ch. 286, sec. 35.

In Rinke, the claimant was awarded $32,364.71 in temporary total disability and $22,411.89 in permanent partial disability. The total for both awards was $54,776.60. The appellants argued K.S.A. 44-510f(a)(4) limited recovery in cases with "functional impairment only" to $50,000 and that this cap applied to the permanent partial and the temporary total disability awards. The Board held the language in K.S.A. 44-510f(a)(4) was clear and unambiguous and the $50,000 limit only applied to permanent partial disability awards. It also held the temporary total disability compensation was not included in this $50,000 cap. The Rinke panel affirmed, holding:

"As the Board noted, the $50,000 limit in K.S.A. 44-510f(a)(4) does not specify that it includes `prior TTD, PTD, TPD, or PPD as do other subsections of the statute. The statute requires only that the $50,000 cap be applied in permanent partial disability cases where functional impairment only is awarded. Here, Rinke was awarded permanent partial and temporary total disability. Considering the unambiguous language of K.S.A. 44-510f(a)(4), the Board's interpretation was not erroneous." Slip op. at 8.

In Roberts, the claimant also was awarded temporary total disability and permanent partial disability. The specific awards were not included in the opinion, but it is clear the total awards exceeded $50,000. The ALJ and Board limited claimant's total award to $50,000 under K.S.A. 44-510f(a)(4). The panel reversed, finding the $100,000 cap in K.S.A. 44-510f(a)(3) applied. 41 Kan. App. 2d at 611. In doing so, the panel must have found the statutes providing for caps were ambiguous.

The Roberts panel began by recognizing that appellate courts are required to consider provisions of an act in pari materia with the intent to reconcile and harmonize the provisions. It then determined K.S.A. 44-510f(a)(4) applies to both scheduled and non-scheduled permanent partial disabilities. 41 Kan. App. 2d at 611. Stated another way, it recognized there are two categories of permanent partial disability awards, scheduled and general disability, and both categories are based upon functional impairment. Therefore, the clause "for functional impairment only" was not meant to distinguish types of permanent partial disability awards.

The Roberts panel next attempted to reconcile K.S.A. 44-510f(a)(4) with K.S.A. 44-510f(a)(3), which places a $100,000 cap on `permanent or temporary partial disability, including any prior temporary total, permanent total, temporary partial, or permanent partial disability payments paid or due." The court asked: "If the $50,000 compensation cap in K.S.A. 44-510f(a)(4) applies to both scheduled and nonscheduled injuries, then what type of claims are subject to the $100,000 cap in K.S.A. 44-510f(a)(3)?" 41 Kan. App. 2d at 610-11.

The Roberts panel concluded the distinction between these statutes' application was whether the claimant received any other award. It stated:

"[T]he only reasonable interpretation of the statute is that K.S.A. 44-510f(a)(4) is limited to those few cases in which a claimant does not suffer an injury that causes the claimant to lose at least a week's time from work, but rather causes a `functional impairment only.' If there is an injury which prevents the claimant from working for at least a week, then the claimant is also entitled to TTD payments under K.S.A. 44-510c(b)(1), in which case the $100,000 compensation cap in K.S.A. 44-510f(a)(3) applies." (Emphasis added.) 41 Kan. App. 2d at 611.

In other words, the Roberts panel determined the term "functional impairment only" means K.S.A. 44-510f(a)(4) is effective when the only award is for permanent partial disability. If the employee also receives a temporary total disability award, the panel concluded, the $50,000 limitation does not apply. 41 Kan. App. 2d at 611.

We find this interpretation consistent with the rules of statutory construction and the limited evidence of legislative history. It also makes clear where the Rinke court over simplified its analysis. When viewing K.S.A. 44-510f(a)(4) in isolation, it is not unreasonable to interpret the phrase "functional impairment only" as meaning that the legislature intended to impose a separate cap on permanent partial disability awards. But this interpretation cannot be reconciled with the other sections of K.S.A. 44-510f, which also apply to permanent partial disability awards. The best interpretation is to construe "functional impairment only" to mean the injured worker received only a permanent partial disability and nothing else. Since Redd was awarded permanent partial disability and temporary total disability, Redd's award is subject to the $100,000 cap in K.S.A. 44-510f(a)(3), not the $50,000 limitation in K.S.A. 44-510f(a)(4).

CONCLUSION

We hold substantial competent evidence supported the Board's factual determinations that Redd's right upper extremities injuries resulted from the left hand crush injury.

We further hold the Board majority's separate injury calculation for each extremity was correct. Kansas Truck Center's argument that the scheduled injuries should have been combined into a whole body impairment is rejected as being inconsistent with the Workers Compensation Act. We also reject the calculation methodology approved by the Court of Appeals panel in Mitchell, as discussed above and in our decision released this same date in that case.

Finally, we reject Kansas Truck Center's argument that Redd's award was subject to the $50,000 liability cap set out in K.S.A. 44-510f(a)(4); rather, it was subject to the $100,000 cap in K.S.A. 44-510f(a)(3).

Affirmed.