8.22. Lack of Good Faith by Claimant in Securing Post-injury Work.

• Court: Kansas

Kansas Workers Compensation Settlement Reporter 8.22. Lack of Good Faith by Claimant in Securing Post-injury Work SummariesChapter 88.22 Lack of Good Faith by Claimant in Securing Post-injury WorkSee Also, Wurtz v. Hood Heating and Air Conditioning, Docket No. 1,010,775 (December 2006). See Also,Miller v. Fibercare, Inc., Docket No. 1,011,875. (August 2006) See Also, Mosser v. Amarr Garage Door Group, Docket Nos. 1,009,353 and 1,011,043. (March 2006) See Also, Alvarez v. Bossler Brown and Assoc., Docket No. 1,012,734. (January 2006). See Also,Backman v. Armour Swift Eckrich, Docket No. 1,003,798. (January 2006). November 2005. (Award) It is the respondent's obligation and right to appoint the designated treating physician. Where the employer designates the treating physician, the insurance company is bound by that authorization. Graham v. Dokter Trucking Group, Docket No. 1,006,954. October 2005. (Award) A cold call offer of employment which claimant responded to by requesting a four day delay before she returned to work due to a prior commitment, whereupon respondent terminated the offer was not a good faith offer by respondent. Claimant's right to a work disability will not be extinguished based on such a bad faith offer. Hudson v. Integrated Health Services, Docket No. 1,005,332. October 2005. (Award) The Board found claimant failed to prove he made a good faith effort to find appropriate employment. Claimant failed to prove how he contacted potential employers, the total number of contacts he made, how he selected his contacts, how he contacted the potential employers, what type of work he was seeking, whether the job contact had any job openings, whether he made any follow-up inquiries, or other relevant factors. Whether a worker has expanded a good faith effort is a question of fact that is decided on a case-by-case basis. Johnson v. Brooks Plumbing, Docket No. 8,000,139. October 2005. (Award) The Board found claimant failed to make a good faith effort to retain his employment and, therefore, the Board imputed a post-injury wage. The facts revealed claimant was fired because he had made threatening conversations to a co-worker. Allen v. Footlocker, Docket No. 1,015,119. See Also,De La Torre v. Via Christi Regional Medical Ctr., Docket No. 1,004,126. (March 2005) March 2005. (Award) A claimant who starts her own Mary Kay business, which at the same time continues to seek comparable employment in her area of expertise is putting forth a good faith effort to obtain post-injury employment. Kunis v. Heinz Pet Products, Docket No. 1,003,940. January 2005 (R/M) Work disability denied even though claimant's post-accident earnings fell below 90% of her pre-injury average weekly wage because there was more work available within her restrictions which she elected not to do. Thereafter, claimant was terminated for cause. Work disability was denied after termination by respondent because she failed to make a good faith effort to retain employment. Burkhart v. Conagra Foods, Inc., Docket Nos. 259,007 and 270,007. See Also, Good faith job search. What is a reasonable commute? Hagues v. Boeing Co., Docket No. 1,010,041. (September 2004). March 2004. (Award) Claimant voluntarily quit a job that was within his restrictions which was not good faith therefore that wage should be imputed to him, but because it paid less than 90 percent of his average weekly wage claimant is still entitled to a work disability. Written claim was extended to one year because respondent had notice but did not file an accident report. Respondent argues claimant not disabled so an accident report was not required but Board held subsequent surgery was natural consequence of work injury so claimant was disabled for more than a day. Story v. Aramark Uniform Services, Docket No. 1,007,154 and 1,009,807. March 2004. (Award) Claimant was terminated for cause from an accommodated job that paid at least 90 percent of his pre-injury average weekly wage results in his award being limited to his functional impairment percentage. Chavez v. IBP, Inc., Docket No. 233,298. See Also, Banuelos v. Chrome Plus International, Inc., Docket No. 267,096. (February 2004). February 2004. (Award) Claimant was working for respondent post-injury in a light-duty job. He violated a company rule and policy by cutting a piece of meat from a carcass, cooked it in a knife sterilizer and ate it. Claimant acknowledged this was equivalent to stealing and would be grounds for termination (although he denied doing it). The Board found claimant did violate a company policy and was terminated for cause from a job he had the ability to perform within his restrictions. Because claimant's conduct constituted a willful violation of company rules and a failure to make a good faith effort to retain appropriate employment, his wage that he was earning at the time of his termination was imputed to him. As this was more than 90 percent of the average weekly wage he was earning at the time of his work-related accident, work disability was denied and his award is limited to his functional impairment percentage. Casasola v. Excel Corp., Docket No. 247,435 and 259,702. November 2002. (Award) The logic of Watkins does not apply to post-July 1, 1993 injuries. The current version of K.S.A. 44-510e defines permanent partial general disability entirely differently that the version of the statute addressed in Watkins. The statute addressed in Watkins predicated permanent partial disability upon two considerations - the worker's loss of ability to perform work in the open labor market and the worker's loss of ability to earn a comparable wage. The present version of the statute measures permanent partial general disability based upon two different prongs - a worker's actual wage loss and a worker's loss of ability to perform former work tasks. Unlike the former version of the statute, under the present version of the statute, the theoretical loss of ability to earn wages is only considered when, pursuant to Copeland, a worker has failed to make a good faith effort to find appropriate employment. As noted in Helmstetter, Watkins does not apply to determining permanent partial general disability under the present version of K.S.A. 44-510e. Tallman v. Case Corporation, Docket No. 265,276 (November 2002). June 2002. (Award) Claimant failed to provide medical restrictions to respondent even though respondent always accommodated restrictions in the past. Claimant's failure to provide those restrictions and to provide respondent with an opportunity to accommodate those restriction was not done in good faith and violated the policies set forth in Foulk, Lowmaster, and Oliver. Therefore, the Board imputed the wage claimant was earning with respondent before he voluntarily terminated his employment. Gray v. USCO Distribution Services, Docket No. 251,827. January 2002. (Award) The claimant made a good faith effort in finding a job, but subsequently quit the post-injury job due to what claimant alleged was sexual harassment and a hostile environment. The question before the Board was whether the wages claimant was earning at the time claimant voluntarily quit should be imputed in calculating her wage loss under the two pronged test for work disability. The Board held that under the circumstances claimant's quitting her job was reasonable; therefore, her disability should be based upon the actual post-injury earnings. Cavender vs. PIP Printing, Inc., Docket No. 251,176. December 2001. (Order) Claimant's failure or refusal to provide a urine sample pursuant to respondent's employment policy, after claimant previously tested positive for alcohol, was not in good faith. Therefore, the wages claimant was earning while working for respondent were properly imputed to claimant after his termination, thereby, limiting claimant to an award based on functional impairment. Escarcega vs. National Beef Packing Company, Docket No. 244,338. November 2001. (Award) An adulterated test sample from random drug test resulted in claimant's termination. The Board found that adulterating the sample is tantamount to a refusal to work and imputed to claimant the wage earned with respondent. This limited claimant to a functional impairment award. Case vs. Wichita Southeast Kansas Transit, Docket No. 250,279. July 2001. (Award) According to Helmstetter v. Midwest Grain Products, Inc., ___Kan. App.2d ___, 18 P.3d 987 (2001), Watkins v. Food Barn Stores, Inc., 23 Kan. App.2d 837, 936 P.2d 294 (1997) does not apply to accidents occurring on or after July 1, 1993. Further, a balancing test should be used in determining whether claimant has acted in good faith for purposes of evaluating claimant's permanent partial general disability. Crider vs. Eaton Corporation, Docket No. 250,068. Foulk v. Colonial Terrace, 20 Kan. App.2d 277, 887 P.2d 140, rev. denied, 257 Kan. 1091 (1995). Copeland v. Johnson Group, Inc. and Travelers Insurance Company, 24 Kan. App.2d 306, 944 P.2d 179 (1997) [Affirmed by Court of Appeals, Docket No. 81,414, December 30, 1999]. See Also, Sec. 8.14a for Old Act or Pre-93 Work Disability and Claimant's Lack of Good Faith in Securing Post-Injury Work June 2000 (Award) The respondent placed the claimant on a long-term leave of absence. According to the leave of absence clause in the collective bargaining agreement, the claimant was subject to the termination of his employment if he...