• August 1997. (Award) The Appeals Board followed the Court of Appeals holdings in Justyna v. Logan Constr. Co., 10 Kan. App.2d 249, 696 P.2d 977, rev.denied 237 Kan. 887 (1985) and Thompson v. Harold Thompson Trucking, 12 Kan. App.2d 449, 748 P.2d 430 (1987), rev. denied 243 Kan. 782 (1988), and used the amount claimant, a self-employed owner of a construction business, withdrew for himself to determine his average weekly wage. The Administrative Law Judge, on the other hand, relied on the total amount of gross income shown on claimant's individual income tax return in determining the average weekly wage. Although the Appeals Board finds no indication that the appellate courts have rejected the method used by the Administrative Law Judge, use of owner withdraws to determine average weekly wage is a method directly approved by the appellate court decisions. Alexander v. Leland M. Alexander & Company and Granite State Insurance Company, Docket No. 206,282.

9.05 Part-time Employment

• April 2000. (Award) Claimant worked as a paraprofessional for respondent school district. Claimant's injury occurred during the summer session for which they were paying her a wage as a part-time employee. Because claimant elected to receive her school year contract wages over a twelve-month period, they were still paying her under that contract when she suffered her injury. The Board concluded that since claimant was not providing services for the school year contracted wages she could not include that income in calculating her gross average wage. Since claimant was a part-time employee at the time of her injury, the Board determined they would calculate claimant's average weekly wage according to K.S.A. 44-511(b)(4)(A) and (b)(5) using only claimant's summer wages. The Board rejected claimant's argument that a multiple employment relationship existed. Karen Buckridge vs. U.S.D. 253 and Hartford Ins. Co. Of the Midwest, Docket No. 244,508 (April 2000).

• February 1999. (Award) Although claimant argued she was employed part-time by two separate employers and wanted her average weekly wage to reflect her wages from both employments, the ALJ found claimant's status as an on-call employee for one of the employers to be too irregular and sporadic to constitute part-time employment under K.S.A. 44-511(a)(4). The Board further found that the situation was not a multiple employment situation as contemplated by K.S.A. 44-503a. Therefore, the denial of claimant's request to combine the wages from both employers to formulate her average weekly wage is affirmed. Leighty v. Aging Projects, Inc and Wausau Underwriters Insurance Company, Docket No. 216,983.



• July 1998. (Award) Claimant was found to be a temporary, part time worker who was not expected to work more than two eight-hour shifts for respondent, earning $18.46 per hour. In determining, claimant's average weekly wage, the Board looks to K.S.A. 44-511(a)(4) which defines part-time hourly employees. The Board must also look to K.S.A. 44-511(b)(5) which governs the hourly weekly wage of part-time employees who work less than one week for the employer. As such, the Board found claimant's average weekly wage should be determined by multiplying his hourly wage rate by the total hours he was expected to work for the respondent that week, or $18.46 multiplied by 16 hours which yields an average weekly wage of $295.36. Perryman v. ABF Freight Systems and Reliance National Indemnity Co., Docket No. 214,180.



• December 1997. (Award) Where claimant was hired to work on a regular basis less than 40 hours per week and where claimant did in fact work less than 40 hours per week, the Appeals Board finds claimant was a part-time employee whose average weekly wage is controlled by K.S.A. 44-511(b)(5). Shelton v. Cowley County Community College and Kansas Association of School Boards, Docket No. 217,757.

9.06 Full-time Employment

• April 1998. (Award) Despite the fact claimant missed several days of work and only worked one full 40-hour week for respondent in this temporary position, the Appeals Board finds claimant to be a full-time employee because claimant was hired full time, although temporarily, and was "expected to work" 40 hours per week on a regular basis. See Tovar v. IBP, Inc., 15 Kan. App.2d 782, 817 P.2d 212, rev. denied 249 Kan. 778 (1991). Pride v. Able Design Plastics and Travelers Insurance Company, Docket No. 202,819.



• September 1997 (Award) Where claimant, who was employed with a temporary employment service, was expected to work no less than 40 hours per week during his employment assignment, the Appeals Board affirms the Administrative Law Judge's finding that claimant is a full-time employee per K.S.A. 1994 Supp. 44-511, and his average weekly wage should be computed as such. Brakhage v. Blazer Services and Insurance Company of North America, Docket No. 206,166.

• April 1997. (Award) Claimant, a volunteer firefighter, voluntarily carried a beeper alerting him to emergency situations in which he was encouraged to attend but not legally obligated to attend. Claimant only attended 30 of 72 such emergencies over a two year time period and was employed full-time at a local co-op. Therefore, under the facts presented in this case, the Appeals Board finds claimant was not a full-time employee of the fire department and will be compensated for his work-related injury as a part-time volunteer per K.S.A. 44-511(b)(6)(A). Whelan v. City of St. Paul and Cigna Workers Compensation, Docket No. 202,839.

9.07 Multiple Employment

9.08 Other Types of Employment

9.08a Employment Where Money Rate is Fixed by Employee's Output

• September 1997. (Award) Claimant contends he is a full-time employee per K.S.A. 44-511(a)(5) and cites, as support of this proposition, to testimony which stated claimant was considered a full-time employee. Respondent, on the other hand, contends claimant's average weekly wage should be computed in accordance with K.S.A. 44-511(b)(5). This subsection provides a method for computing the average weekly wage of employees paid on any basis other than by the week, month, year or hour. In the Appeals Board's view, neither subsection fits the present circumstances precisely. Claimant is paid both by the hour and otherwise based upon miles driven. Additionally, claimant sometimes works forty hours or more per week but sometimes less than forty hours per week. The Appeals Board concludes that the provisions of subsection (b)(5) should be applied. Application of this subsection more accurately reflects the amount claimant actually earned. See K.S.A. 44-511(b)(5). Logan v. Fry-Wagner Moving & Storage and Vanliner Insurance Company, Docket No. 206,790.

9.08b Community Service Work

• April 1997. (Award) Where the record fails to support a finding that claimant's average weekly wage would exceed $37.50, the Appeals Board finds the appropriate wage to be utilized is the minimum wage set forth in K.S.A. 44-511(b)(6)(B) for people performing community service work. Whelan v. City of St. Paul and Cigna Workers Compensation, Docket No. 202,839.

9.08c Temporary Partial Disability, Computation of Weekly Rate

• June 1998. (Award) Discussion of the method to compute the weekly rate of temporary partial disability benefits where claimant works part-time for two different employers. K.S.A. 1996 Supp. 44-510e(a) controls the computation of the weekly compensation rate for temporary partial general disability. K.S.A. 44-511(b)(7) also provides that if claimant is employed at the same or a very similar type of work on a part-time basis for each of two or more employers, and is injured, his/her total average gross weekly wage will be the total of the part-time employments. By the language of this statute, the Appeals Board finds a policy decision was made by the legislature to not include the total of all part-time employers in an injured employee's pre-injury average gross weekly wage if the employee was not performing the same or similar work for both employers. Since claimant was not performing the same or similar work, claimant's pre-injury average gross weekly wage is based on the weekly wage claimant was earning while employed by respondent and not the total of the weekly wages earned from both respondent and the other part-time employer. Redgate v. Untied Parcel Service and Liberty Mutual Insurance Company, Docket No. 217,691.

• ----- Claimant's temporary partial weekly compensation rate is determined to be $28.43. Claimant's average gross weekly wage while employed by the respondent was $221.79. After his injury, claimant was actually earning $179.14 per week while employed by the other part-time employer. The difference between those two average gross weekly wages is $42.65 and 66% of $42.65 is $28.43. See K.S.A. 1996 Supp. 44-510e(a). Id.



• ----- But See, Dissent, the dissenting Board Member does not believe the legislature contemplated a factual situation like this. He would only consider claimant's pre- and post-injury wages earned directly from respondent when calculating temporary partial disability benefits; or in the alternative, include both respondent and the other employer's wages when calculating the pre- and post-injury wages. Id.



• ----- But See, Second Dissent, the dissenting Board Member would affirm the decision of the ALJ awarding temporary partial disability benefits. He does not believe the legislature intended the general language of the temporary partial disability statute to be imposed when an employee is working two jobs at the time of the injury. [ The ALJ used the total average gross weekly wage of both part-time employments, pre-injury, when figuring the temporary partial disability rate]. Id.

9.09 Additional Compensation

9.10 Generally

• May 2000. (Award) The Benefit Confirmation Statement offered by the claimant included the employer's cost of certain fringe benefits (sick, vacation, and holiday pay) which are not items of additional compensation. The Board concluded since it could not factor these fringe benefit costs out of the employer's cost, the claimant failed to prove the amount of additional compensation that the respondent discontinued. Gail O. Holly vs. J.C. Penney Company, Inc., Docket Nos. 196,119 & 201,443.

• August 1997. (Award) K.S.A. 44-511 allows for the inclusion of additional compensation into the amount of claimant's average weekly wage when such remuneration is discontinued. There is no indication in the statute that the discontinuation shall be for any particular purpose. The mere fact that claimant is no longer receiving said remuneration is sufficient to require it be included in the average weekly wage. Collins v. Providence Medical Center and Aetna Casualty and Surety Insurance Company, Docket No. 198,933.

9.11 Types of,

9.11a Fringe Benefits

• October 1999. (Award) Where employer provided employee with a home and paid utilities, the reasonable weekly value of the house and utilities should be included when calculating average weekly wage. Bridges v. Thousand Adventures, Inc., Docket No. 216,067.



• August 1999. (Award) It is reasonable to calculate the cost of use of respondent's vehicle to and from work (at the State rate of 28 cents per mile) and to include that cost for mileage ($112 in the case at hand) when figuring claimant's average weekly wage. Dowsey v. Industrial Electric Company and Employers Mutual Casualty Company, Docket No. 225,210.



• August 1997. (Award). Where the accommodated work offered to and refused by claimant included a fringe benefit package identical to that which claimant was earning at the time of regular employment, the Appeals Board finds it appropriate to include the fringe benefit package in the imputed post-injury average weekly wage used to compute claimant's entitlement to benefits. Additionally, in determining the wage loss prong of the work disability test set forth in K.S.A. 44-510e, both the pre- and post-injury fringe benefit packages are included in the average weekly wage computation. Diest v. Dillon Companies, Inc., Docket No. 213,485.

• April 1997. (Award) In examining the general intent of K.S.A. 1989 Supp. 44-511, as it relates to additional compensation, the Appeals Board finds the value of fringe benefits should be added to the average weekly wage only if they are not being paid by respondent. Once they are reinstated they are no longer discontinued. Whisler v. The Boeing Company and Aetna Casualty and Surety and the Kansas Workers Compensation Fund, Docket No. 152,107.



• April 1997. (R/M) The Administrative Law Judge reduced claimant's average weekly wage by subtracting the value of fringe benefits. Claimant argues that K.S.A. 1991 Supp. 44-511 allows the value of the fringe benefits to be added to the average weekly wage once they are terminated but makes no reference to subtracting them once they are reinstated. The Appeals Board, however, finds the fringe benefits should be subtracted from claimant's average weekly wage once they are reinstated. The intent of K.S.A. 1991 Supp. 44-511 is to include the value of those benefits only if and when they are not being provided by the employer. The first sentence of K.S.A. 1991 Supp. 44-511 ends with the statement that the benefits are not to be included "unless such remuneration is discontinued." The Appeals Board feels remuneration is no longer discontinued once the benefits are reinstated. Lundry v. The Boeing Company and Aetna Casualty & Surety and Kansas Workers Compensation Fund, Docket No. 166,389.

• March 1997. (Award) The value of fringe benefits such as those for life and health insurance which an employee receives while working for respondent should not be added to the average weekly wage unless those benefits are discontinued. Nelsen v. Mid-States Armature Works, Inc. and Insurance Company of North America, Docket No. 211,136.



• ----- The value of the fringe benefits claimant received should be included in his average weekly wage following his termination from employment, which in turn caused the benefits to be discontinued. Id.



• April 1994. (Award) Fringe benefits not included in average weekly wage during period claimant continued to work for same employer and employer paid benefits but computation adjusted by adding value of those benefits once claimant was laid off. Lee v. Boeing Military Airplanes, Docket No. 157,744.



• December 1993. (Award) The value of fringe benefits is to be included in the average weekly wage if those benefits cease after the accident even though they cease for reasons unrelated to the accident, such as, in the case at hand, the sale of respondent's business to a new owner. Espinosa v. National Co-Op Refinery Association and Kansas Workers Compensation Fund, Docket Nos. 158,815 & 159,107.

9.11b Meal Allowance

• August 1997. (Remand) K.S.A. 44-511 does allow for additional compensation including board and lodging when furnished by the employer to be computed as part of the employee's average weekly wage. The term "board" ascertained in K.S.A. 44-511 is interpreted to include weekly allowance money paid to the claimant as part of his/her employment with respondent. See Also Leslie v. Reynolds, 179 Kan. 422, 295 P.2d 1076 (1956), in which the Supreme Court stated that since the money rate of such items as board and lodging is ascertainable, then it should be considered in determining the wage rate of the employee. In the case at hand, the Appeals Board found the $260.04 paid to claimant during the 26 weeks preceding claimant's accidental injury are to be considered "food stuffs" which constitute board under the meaning of K.S.A. 44-511. Therefore, such food stuffs ie. meal allowances should be considered "additional compensation" and included in claimant's average weekly wage. McIntyre v. A.L. Abercrombie, Inc. and Fireman's Fund Insurance Company, Docket No. 183,293; On Remand, from Court of Appeals opinion in McIntyre v. A.L. Abercrombie Inc., 23 Kan. App.2d 204, 929 P.2d 1386 (1996).



• June 1995. (Award) The value of claimant's meals reimbursement while he was staying out of town was properly included in claimant's average weekly wage. The value of the direct payment by respondent to the motel where claimant was staying should not be added into claimant's average weekly wage. Newton v. Cromwell Construction, Inc and Cigna Insurance Company and Kansas Workers Compensation Fund, Docket No. 145,831.

• January 1994. (Award) Payments made to claimant to reimburse for out of pocket business expenses are not included as part of wage but reimbursement for meals and other payments which constitute an economic gain are included as part of the wage. Sedlak v. All Freight, Docket No. 175,444.

9.11c Health Insurance and Union Dues for Health Insurance

• July 1998. (Award) Money respondent paid the Union as dues for the purchase of health insurance should be considered "additional compensation" and be added to the base wage of claimant when respondent ceased payment of that benefit. Milner v. American Drug Stores, Inc d/b/a Osco Drug and Kemper Insurance Company, Docket No. 198,875. [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,675, December 23, 1999.]

• November 1998. (Award) Claimant's health insurance provided by respondent should be included in claimant's average weekly wage. Banuelos v. Prairieland Processors and ITT Hartford and Kansas Workers Compensation Fund, Docket No. 155,501 [Affirmed by unpublished Court of Appeals opinion, Docket Nos. 77,792 & 78,663].