WATSON v. JOHNSON CONTROLS, INC

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Docket Number

No. 86,865

Attorney(S)

Denise E. Tomasic, of Mustain, Higgins, Kolich, Lysaught Tomasic, Chartered, of Kansas City, for the appellant. Dennis L. Horner, of Horner and Duckers, Chartered, of Kansas City, for the appellee.

Judges

G. Joseph Pierron

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Smart Summary

Factual and Procedural Background

Collette Watson began working for Johnson Controls, Inc. in 1994 as a materials handler, performing repetitive manual tasks involving her hands and arms. In April 1995, she developed medical problems affecting her right elbow, right wrist, and left side. She sought treatment through company doctors and specialists, receiving restrictions and therapy. Watson was laid off in November 1995, received unemployment benefits, and declined to return to work when recalled in January 1996. She held brief employment at J.C. Penney and other jobs but was unable to sustain long-term work due to her medical condition.

Watson was medically evaluated multiple times, with impairment ratings ranging from 3% to 15% of the body as a whole, and was found to have work restrictions. Vocational experts testified regarding her employability and wage-earning capacity, with conflicting opinions about her job search efforts and task loss.

The administrative law judge (ALJ) initially awarded Watson a 31.75% work disability based on functional impairment, task loss, and wage loss. Upon appeal, the Workers Compensation Board (Board) increased the award to a 50% permanent partial general disability, affirming the impairment rating and wage imputation. Johnson Controls appealed the Board's decision to the Court of Appeals of Kansas.

Legal Issues Presented

Whether Watson's workers compensation award should be limited to benefits for functional impairment due to her voluntary resignation from accommodated work.
Whether the Board erred in computing an imputed average weekly wage and task loss percentage.
Whether Watson met her burden of proof of functional permanent partial impairment.
The proper standards for determining disability awards when a claimant has not made a good faith effort to find employment.

Arguments of the Parties

Appellant's Arguments (Johnson Controls, Inc.)

The award should be limited to functional impairment benefits because Watson voluntarily resigned from the accommodated position offered by Johnson Controls.
The Board erred in imputing an average weekly wage of $290; it should have been $320.
The task loss percentage should have been 42%, not 60% as found by the Board.
Watson did not sustain her burden of proof for functional permanent partial impairment due to weak medical testimony.
Johnson urged the court to give greater weight to their vocational expert’s testimony and to refine standards for disability awards, particularly regarding penalties for failure to make a bona fide job search.

Appellee's Arguments (Collette Watson)

Watson contended she was entitled to a 50% work disability based on substantial competent evidence including medical impairment and vocational testimony.
She argued that her medical restrictions and inability to sustain employment justified the Board’s findings on task loss and wage loss.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Brobst v. Brighton Place North, 24 Kan. App. 2d 766, 955 P.2d 1315 (1997)	Appellate review of Workers Compensation Board findings requires determination if supported by substantial competent evidence.	The court applied this standard to uphold the Board’s findings as supported by substantial competent evidence.
Roberts v. J.C. Penney Co., 263 Kan. 270, 949 P.2d 613 (1997)	The question of whether findings are supported by substantial competent evidence is a question of law for the appellate court.	The court treated this as a legal question and affirmed the Board’s findings accordingly.
Woodward v. Beech Aircraft Corp., 24 Kan. App. 2d 510, 949 P.2d 1149 (1997)	On review, evidence is viewed in the light most favorable to the prevailing party.	The court applied this principle to reject appellant’s invitation to reweigh evidence or credibility.
Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc., 268 Kan. 33, 991 P.2d 406 (1999)	Court cannot reweigh evidence or pass on witness credibility contrary to Board’s findings.	The court declined to overturn the Board’s credibility determinations.
Copeland v. Johnson Group, Inc., 26 Kan. App. 2d 803, 995 P.2d 369 (1999), rev. denied 269 Kan. 931 (2000) ("Copeland II")	Findings supported by substantial evidence must be upheld even if contrary evidence exists.	The court relied on this precedent to affirm the Board’s imputed wage and disability calculations.
Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 944 P.2d 179 (1997) ("Copeland I")	If claimant fails to make a good faith job search, factfinder may determine post-injury wage based on all evidence including expert testimony.	The Board’s decision to impute wages based on expert testimony was consistent with this standard.
Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995)	Standards for determining disability awards in workers compensation cases.	The court found no need to alter the established standards as applied by the Board.

Court's Reasoning and Analysis

The court began by emphasizing the standard of review: it must determine whether the Board's findings are supported by substantial competent evidence, viewing the evidence in the light most favorable to the prevailing party. The court rejected Johnson Controls' request to reweigh evidence or assess witness credibility, reaffirming that such determinations are within the Board's province.

The court noted that Watson was offered accommodated work but had difficulty performing it due to her medical condition. The Board's imputation of a $290 weekly wage was supported by testimony estimating her earning capacity between $240 and $320 per week, and this finding was not arbitrary. The court upheld the Board's averaging of task loss percentages from medical experts despite Johnson's contention that a lower figure was appropriate.

The court found sufficient medical evidence to establish Watson’s permanent partial impairment and rejected arguments that the medical testimony was too weak. The court also declined to refine or impose stricter standards on disability awards related to failure to make a good faith job search, noting that the Board properly considered all evidence, including expert testimony, in determining post-injury wages.

Ultimately, the court concluded that substantial competent evidence supported the Board’s findings and award.

Holding and Implications

The Court of Appeals of Kansas AFFIRMED the Workers Compensation Board’s order awarding Collette Watson a 50% permanent partial general disability.

The decision directly upholds the Board’s findings on impairment, task loss, wage loss, and imputed post-injury wage without modification. No new legal precedent was established; rather, the court reinforced existing standards for appellate review of workers compensation awards and the treatment of evidence regarding disability and employability.

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COLLETTE WATSON Appellee, v. JOHNSON CONTROLS, INC., Appellant.

SYLLABUS BY THE COURT

1. WORKERS COMPENSATION — Findings of Fact by Workers Compensation Board — Appellate Review. In an appeal from a decision of the Workers Compensation Board, the court will review the Board's findings to determine whether they are supported by substantial competent evidence.

2. SAME — Findings of Fact by Workers Compensation Board — Appellate Review. An appellate court, in reviewing a workers compensation case, is required to view the evidence in a light most favorable to the prevailing party.

3. SAME — Findings of Fact by Workers Compensation Board — Appellate Review. On review of the Board's findings by an appellate court, a finding supported by substantial competent evidence will be upheld even though evidence in the record would have supported contrary findings.

4. SAME — Disability Award — Finding That Claimant Has Not Made Good Faith Effort to Find Employment — Expert Testimony Concerning Capacity to Earn Wages. In determining an appropriate disability award, if a finding is made that the claimant has not made a good faith effort to find employment, the factfinder must determine an appropriate post-injury wage based on all the evidence before it. This can include expert testimony concerning the capacity to earn wages.

PIERRON, J.:

Johnson Controls, Inc., (Johnson) appeals the order of the Workers Compensation Board (Board) finding Collette Watson was entitled to a 50% work disability. We affirm.

Watson started working for Johnson in 1994 as a materials handler, using her hands and arms frequently to straighten bottles and lay tear sheets. In April 1995, she developed problems with her right elbow, right wrist, and her left side. Watson reported to her supervisor and saw a company doctor for treatment. She was referred to Dr. Harris, who gave her a sling and released her to one-handed duty in May 1995. When her left arm started to have problems, she went to see Dr. Carabetta, who gave her an injection in both elbows and ordered her to get physical therapy.

Watson went back to work subject to restrictions that Dr. Carabetta gave her. She was laid off in November 1995 and received unemployment benefits. She was called back in January 1996, but declined to return to work.

In September 1996, Dr. Lynn Ketchum examined Watson, diagnosed bilateral epicondylitis, and recommended she wear hinged elbow braces when she returned to work. Dr. Ketchum also recommended that Watson should not do any repetitive gripping activities for 6 months and should be on a stretching program through physical therapy.

In October 1996, Watson obtained a full-time job at J.C. Penney through a temporary service. In December 1996, she quit working at J.C. Penney because she "[j]ust couldn't do it any more."

In January 1997, Watson was called back for a cleanup job at Johnson. The job involved sweeping the floor and pushing the trash cans after they were filled in order to keep the place clean. Watson worked only 1 full day and some hours the next day and eventually resigned from Johnson.

Following her resignation from Johnson, Watson worked for a few days at a grocery store owned by her friend, earning $6.50 per hour. She also worked in a laundromat at minimum wage, cleaning, sweeping, and doing some laundry, but she only stayed on the job for 3 hours. At the time of the hearing, Watson was babysitting at home for up to 4 days a week and earning $50 a week.

In February 1999, Dr. Ketchum examined Watson and concluded she was ready to return to work with the restrictions that she not have overhead work and not stay in the same posture around her shoulder girdle for prolonged periods. Dr. Ketchum rated Watson as having a 3% permanent partial impairment of both upper extremities for an impairment rating of the body as a whole of 4%, based on the diagnoses of mild left lateral humeral epicondylitis and bilateral myofascitis.

Dr. Jennifer Finley examined Watson on one occasion at the request of Watson's counsel and rated Watson as having a 15% impairment of the body as a whole caused by fibromyalgia. Her opinion was that Watson's fibromyalgia was caused by the injury sustained at Johnson.

Michael J. Dreiling, a vocational rehabilitation counselor, evaluated Watson's employability and stated:

"Considering the kind of work she performed in the past, her limited educational background and the significant medical restrictions that have now been given to her, I am not overly optimistic about her ability to return to work in the labor market and earn a comparable salary.

"It is my opinion that Ms. Watson will need very selective job placement assistance to find work that would allow her to stay within her medical restrictions and would be consistent with her educational background, work experience and skills.

"In summary, it appears that Ms. Watson always relied on her good physical capabilites, especially the use of her the use of her upper extremities, to perform work in the labor market, which is now contraindicted by her restrictions. She will experence a significant loss in term of her ability to perfom job tasks as a result of her medical restrictions."

A vocational rehabilitation consultant called by Johnson, Gary Weimholt, testified Watson could be making approximately $240 to $320 a week in the open labor market. He was of the opinion that Watson did not conduct an effective job search after her injury.

The administrative law judge (ALJ) found that Watson had a 9.5% functional impairment to the body as a whole, a 23.5% task loss, and a 40% wage loss, which were averaged together to be a 31.75% work disability. The ALJ imputed an amount of $290 a week as the wages that Watson would be capable of earning.

Watson appealed the order of the ALJ, and the Board modified the ALJ's award by finding Watson was entitled to a 50% permanent partial general disability. The Board affirmed the ALJ's finding that Watson sustained a 9.5% whole body permanent functional impairment as a result of her work-related injuries. The Board found a 60% task loss (averaging Dr. Finley's 78% and Dr. Ketchum's 42%) and a 40% wage loss, reaching a 50% work disability. The Board affirmed the $290 imputed post-injury average weekly wage.

This court must review the Board's findings to determine whether they are supported by substantial competent evidence. Brobst v. Brighton Place North, 24 Kan. App. 2d 766, 775, 955 P.2d 1315 (1997). Substantial competent evidence is evidence that furnishes a substantial basis in fact from which the issues presented can be reasonably resolved. 24 Kan. App. 2d at 775. The determination of whether the Board's findings are supported by substantial competent evidence is a question of law. Roberts v. J.C. Penney Co., 263 Kan. 270, 274, 949 P.2d 613 (1997).

First, Johnson argues that Watson's workers compensation award should have been limited to benefits for a functional impairment because she voluntarily resigned from the accommodated position at Johnson. Next, Johnson claims the Board made mistakes in computing an imputed average weekly wage of $290; it contends that Watson's average weekly wage should have been $320 and that her task loss of 60% should have been 42%. Last, Johnson argues Watson did not sustain her burden of proof of functional permanent partial impairment.

An appellate court, in reviewing a workers compensation case, is required to view the evidence in a light most favorable to the prevailing party. Woodward v. Beech Aircraft Corp., 24 Kan. App. 2d 510, 513, 949 P.2d 1149 (1997). Johnson wants the Court of Appeals to accept certain evidence over other substantial conflicting testimony and pass on the credibility of the witnesses contrary to the findings of the Board. This is exactly what this court cannot do. See Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc., 268 Kan. 33, 34, 991 P.2d 406 (1999).

The evidence indicates Watson was offered another position for cleanup duty by Johnson; however, she had difficulty in performing the duty because of her medical problems. The ALJ and the Board imputed an average weekly wage of $290 for Watson, based on the testimony that she could be making approximately $240 to $320 a week in the open labor market. This is not an arbitrary finding by the Board. Findings supported by substantial evidence will be upheld by an appellate court even though evidence in the record would have supported contrary findings. Copeland v. Johnson Group, Inc., 26 Kan. App. 2d 803, 806, 995 P.2d 369 (1999), rev. denied 269 Kan. 931 (2000) ( Copeland II).

Furthermore, this court cannot disregard the testimony by Dreiling and should not give greater weight to Weimholt's analysis on the issue of task loss, even though Johnson strongly urges us to do so.

Johnson further argues that Watson failed to bear the burden of proof because of the weak medical testimony. However, there is more than sufficient evidence to support the Board's finding that Watson suffered from medical conditions that were caused by the work-related injuries sustained at Johnson, and Watson was entitled to compensation for her permanent partial impairment.

Johnson also asks this court to "refine" the standards for determining a disability award that have been developed through Copeland II, 26 Kan. App. 2d 803; Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 944 P.2d 179 (1997) ( Copeland I); and Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).

Specifically, Johnson appears to be asking for stricter penalties for not making a bona fide search for employment. We see no need for this. Under Copeland I: "If a finding is made that a good faith effort has not been made, the factfinder will have to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the capacity to earn wages." 24 Kan. App. 2d at 320.

This is precisely what the Board did. A failure to make a good faith effort simply allowed the Board to make its decision on facts which may be less favorable to the claimant had a good faith effort to find employment been made.

Substantial competent evidence supports the Board's findings.

Affirmed.