*1 (30 1033) 85,298 No. Castro, IBP, Inc.,

Martha v. Appellee, Appellant. filed 2001.

Opinion May Worth, M. Greenwald and D. Van Cleave & Douglas Gregory McAnany, P.A., of Kansas for Phillips, City, appellant. Herdoiza, C. Albert of Kansas City, appellee. Rulon, Knudson, Wahl,

Before C.J., J., S.J. Wahl, Inc., IBP, the decision of the Workers Com- appeals J.: (Board) admissible and pensation finding expert’s opinion dis- a sum for Martha Castro partial general permanent

awarding ability. *2 the

The interpreted improperly appellant of a statute is a 44-510(c)(2). 1999 K.S.A. Interpretation Supp. novo. Hamilton v. this court can review de of law which question Co., 875, 879, 953 P.2d 1027 263 Kan. State Farm Fire & Cas. of a an administrative (1998). The statute by agency interpretation that statute entitled the is with of enforcing responsibility charged Comm’n,27 Kan. Auten v. Kansas to deference. Corp. App. judicial (2000). 252, 254, 86, 269 Kan. 931 When 3 rev. denied 2d inter and its the is one of experience, special competence agency If be entitled to of a statute controlling significance. may pretation be should there is a rational basis for agency’sinterpretation, Kan. In on review. re of Zivanovic, Application upheld judicial however, 191, 193, (1996). the court 929 P.2d 1377 Ultimately, de review. must exercise novo is Castro violated K.S.A.

The whether primary dispute 44-510(c)(2) she a func- when obtained follow-up, self-paid, Supp. IBP from the same tional opinion physician previously impairment If Castro violated to examine and her condition. $500 diagnose paid statute, then Dr. Prostic would be rendered by any opinion in The statute inadmissible the claim proceedings. provides: “(2) consult care or an a health Without employee may application approval, examination, choice for the of of purpose diagnosis provider employee’s treatment, and such shall be liable for the fees of but charges employer only such $500. health to a total amount of The amount allowed for care provider up examination, a im- or treatment not be used to obtain functional shall diagnosis in violation of this shall not be Any pairment rating. opinion prohibition (Em- act.” in claim under the workers admissible compensation proceedings added.) K.S.A. 1999 phasis an Dr. Prostic for Novem- Castro scheduled with appointment The ber 1996. doctor examined Castro and provided treat- on and need for additional medical relevant restrictions to Dr. Prostic ment. The letter from Castro’s attorney engagement him not functional instructed impairment specifically provide rating. cost of services was of which was $535 $500 total provided to the allowance. The bill itemized statutory

paid pursuant exam and two Dr. Prostic issued a $375 his x-rays. report and testified his sole with Castro was purpose meeting an “examination and evaluation and recommendations for treat- ment.” 7, 1997,

On March Castro’s contacted Dr. Prostic and attorney a functional Without requested impairment opinion. reexamining Castro, Dr. Prostic issued a written functional separate impairment The entire cost of was $25 Castro’s opinion. paid by attorney not out of the medical allowance. At $500 Dr. Prostic’s statutory Castro did not Dr. Prostic to his deposition, request express opin ion on functional1 and that is not of the impairment, part record. Evidence functional provided by Harris, administrative who was law appointed by judge pro *3 vide such a rating.

IBP contends Castro violated the statute because the functional obtained at a later date was based on services impairment rating for IBP and this was an abuse Castro. IBP previously paid by by the last two sentences of that statute that once a require functional is obtained from impairment rating examining phy- sician, the and statutory prohibition applies from this is inadmissible.- physician

The Board concluded that Castro did obtain a functional im- Prostic, from but the was not for pairment rating rating paid the $500 medical allowance IBP. The functional by provided by for Castro almost months impairment rating report paid later and almost months after the administrative law judge ap- Dr. Harris to a The Board also concluded pointed provide rating. claimant, desires, if he or she so obtain a functional “[a] may impairment rating from an such The claimant examining physician pay rating separately. can then choose whether or not to enter the functional into impairment rating 44-510(c)(2).” the record and this would not violate the of K.S.A. provisions The Board’s statute is rational. If the statute interpretation was meant to be as would applied suggests, require

statute to contain additional that would the “re- language preclude sults” of the exam from used to obtain an im- being subsequently IBP conceded the statute was com- pairment rating. “technically” with, but However, Castro violated the of the statute. plied spirit it is a anot function to rewrite the statute. legislative, judicial,

We conclude that the more obvious and conclusion is simple that Dr. Prostic did not as to the functional testify Castro, Dr. Harris did. Dr. Harris was die adminis- appointed by trative law and Dr. Prostic’s work-task loss was not judge violation of K.S.A. 1999 given

IBP contends the benefit based on permanent partial disability should be remanded for further as to the disability effect of Castro’s refusal of assistance, vocational and educational her failure to obtain her GED in including determining post- The Board found Castro did not look for work in injury wage. good faith and that she could work 40 hours week instead of 22- per 29 hours she was The Board used Castro’s then current working. rate of hour and a 40-hour work week to per impute 45% loss.

To Castro IBP’s offer argue categorically absolutely rejected of vocational and educational assistance misconstrues the simply record. Castro refused assistance while she was still treated being for her and before she was released at maximum medical injuries She did indicate she would be to assis- improvement. agreeable tance when the determined she had reached treating physician maximum medical IBP’s vocational improvement. expert simply closed his file in almost 1 to Castro’srelease August year prior care, from medical and IBP made no further offers of assistance. rate, to Castro’s actual hourly wage though equivalent *4 rate at the time of her was also rate. If a deposition, imputed claimant fails to make a faith effort to find good employment, will be to the claimant based on what the claimant wage imputed should be able Inc., to earn. v. 24 Kan. Copeland Group, Johnson 306, 320, 944 (1997). 2d P.2d 179 Whether the App. imputed wage rate of $5.60 hour is is an issue of whether per appropriate really there was substantial evidence to the 45% competent support wage-loss computation. evidence to that there was no substantial

IBP competent loss. In of 69% work-task loss or 45% support findings orders, court is the Board’s required reviewing appellate in most favorable to the view the evidence party prevailing light are and determine whether the Board’s below supported v. Beech evidence. Woodward substantial by competent Aircraft 510, 513, (1997). 24 Kan. 2d 949 P.2d 1149 Substantial Corp., App. that evidence of substance and evidence is “possessing something with it fitness to induce convic relevant consequence carrying substantial basis of fact tion that the award is or furnishing proper, resolved.” Shields from which the issue tendered can be reasonably Co., v. Dunn Constr. 382, 385, 946 24 Kan. 2d App. J.E.

(1997). 69%, to the work-task loss of that

As finding again argues on this Dr. Prostic’s was admitted issue. We opinion improperly have concluded that Dr. Prostic’s work-task loss already opinion admissible, there is substantial evidence to so competent sup- a 69% This determination was the Board’s task loss. port finding based on Dr. Prostic’s which the Board concluded was more and credible than the 0% task loss persuasive Hearon. loss, the 45% the essence of IBP’s

Concerning argument is that there is no substantial evidence to support using competent The did not rate. Board found Castro hourly wage in faith and that there is to restrict her look good nothing rate, from 40 hours week. As for the the Board working per which used the rate derived vocational assessment is expert testified that has uncontroverted the record. Castro expert done . . . level work” and “basically always entry type “get[ting] her her GED was not to access improve ability going significantly in the the labor market.” The rate is uncontroverted $5.60 wage and, thus, record is conclusive. IBP’s about Castro’s complaints of services and her failure to her GED do not render refusal pursue See Ov unreasonable, evidence improbable, untrustworthy. Co., Inc., erstreet v. Mid-West Conveyor 586, 589, 26 Kan. 2d App. (1999). 994 P.2d 639 *5 week, rate and a 40-hour work

Utilizing wage $224 which to imputed post-injury wage compared $411 at a arrive 45% loss. It stipulated preinjury wage then K.S.A. 44-510e and applied Supp. correctly averaged the 45% loss with the 69% work-task loss to arrive at a 57% Since both the loss and the work-task loss disability. are evidence, substantial figures supported competent Board’s decision is affirmed.

Affirmed. I we should affirm the Board’s

Knudson, J., concurring: agree However, order. I do not with the Board’s conclusion Castro agree or her Dr. Prostic for his functional rat- attorney paid The $25 is a veiled undertaken to ing. gratuity thinly subterfuge avoid the of K.S.A. 1999 proscription Supp.

I am still able to of the as I believe support majority as used the last sentence of K.S.A. 1999 “[a]ny opinion” 44-510(c)(2) can be admission only interpreted prohibit of an as to the claimant’s functional not impairment, under the of heaven. other I opinions canopy Any interpretation, believe, makes hash of die maxim that a statute should be legal construed to avoid unreasonable results.