Dirshe v. Cargill Meat Solutions Corp.
382 P.3d 484
| Kan. Ct. App. | 2016Background
- Dirshe, a meat cutter with no English and limited skills, injured both shoulders from repetitive trauma at Cargill and sought workers'-compensation benefits.
- Treating and evaluating physicians imposed significant permanent work restrictions (no overhead reach, limited lifting).
- Cargill accommodated his restrictions by assigning him to cut cow tails and paid him at least 90% of his prior wage.
- Cargill fired Dirshe after about three months, citing repeated failure to cut tails; Dirshe said equipment (scissors) jammed and he reported it.
- The ALJ and Workers Compensation Board found Dirshe was terminated for cause, disqualifying him from a work-disability (wage-loss) award under K.S.A. 2015 Supp. 44-510e.
- The Board awarded an 18% whole-body functional-impairment rating (averaging two physicians). Dirshe appealed the cause finding and impairment rating.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dirshe was terminated "for cause" so as to bar a work-disability (wage-loss) award | Termination was improper; failure to cut tails was due to faulty scissors, not misconduct | Dirshe repeatedly failed to perform assigned accommodated work; prior write-ups supported cause | Board's factual findings supported by substantial evidence; termination for cause affirmed; no wage-loss award |
| Whether employer's termination was a subterfuge to avoid paying work-disability benefits | Termination was pretextual and aimed at avoiding benefits | Employer provided accommodated work and would have retained him if he had performed | No evidence of subterfuge; employer acted in good faith; affirmed |
| Whether the Board properly applied the standard for "cause" | Morales-Chavarin test should not apply | Morales-Chavarin test is appropriate and examines reasonableness and good-faith efforts | Court agrees with Board's use of Morales-Chavarin-type inquiry and affirms application |
| Whether the impairment rating should be Dr. Brown's 19% rather than the Board's 18% average | Adopt Dr. Brown's 19% rating | Board reasonably averaged two equally credible opinions (17% and 19%) to 18% | Averaging two equally credible physician opinions is permissible; 18% affirmed |
Key Cases Cited
- Stephen v. Phillips County, 38 Kan. App. 2d 988 (Kan. Ct. App.) (describing work-disability award framework)
- Weir v. Anaconda Co., 773 F.2d 1073 (10th Cir. 1985) (defining "cause" as performance shortcomings detrimental to employer)
- Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585 (Kan. 2011) (court reviews statutory-interpretation issues de novo)
- Moore v. Venture Corporation, 51 Kan. App. 2d 132 (Kan. Ct. App.) (claimant bears burden to prove right to compensation; Board is factfinder)