                                        No. 112,521

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                     DONALD J. WIMP,
                                        Appellee,

                                              v.

                         AMERICAN HIGHWAY TECHNOLOGY
                                       and
                     TRAVELERS PROPERTY CASUALTY OF AMERICA,
                                    Appellants.


                              SYLLABUS BY THE COURT


1.
       K.S.A. 44-510c(a)(2) provides the overall rule that an employee is permanently
and totally disabled if a work-related injury has left him or her "incapable of engaging in
any type of substantial and gainful employment." Restated, when a work injury leaves an
employee essentially and realistically unemployable, that employee is permanently and
totally disabled.


2.
       As it stood before statutory amendments in 2011, K.S.A. 44-510c(a)(2) provided
two presumptions. If the worker suffered parallel injuries (such as both feet or both
hands), there was a rebuttable presumption of permanent total disability. If the worker
suffered substantially total paralysis "or incurable imbecility or insanity" resulting solely
from work-related injury, there was an irrebuttable presumption of permanent total
disability. In that irrebuttable presumption, the term "incurable imbecility," initially
added to our workers-compensation statutes in 1917, referred to a level of intellectual
impairment categorized in more recent times as moderate to severe mental retardation,
and not to merely below-average intellectual capacity.
3.
        On the facts of this case, in which the employee suffered parallel injuries to both
arms, the Workers Compensation Board properly applied a rebuttable presumption of
permanent total disability.


4.
        On the facts of this case, in which the employee had always performed manual
labor, had limited ability to do other work, and had limited or no ability to do manual
labor after his work injury, substantial evidence supported the Workers Compensation
Board's conclusion that his employer did not rebut the statutory presumption of
permanent total disability.


        Appeal from Workers Compensation Board. Opinion filed October 23, 2015. Affirmed.


        Vincent A. Burnett and Travis L. Cook, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A.,
of Wichita, for appellants.


        William L. Phalen and Crystal D. Marietta, of Pittsburg, for appellee.


Before MALONE, C.J., LEBEN, J., and HEBERT, S.J.


        LEBEN, J.: This appeal is brought by an employer and its insurance carrier from an
order awarding permanent-total-disability compensation to its employee. An employee
qualifies for that compensation when an on-the-job injury has left "the employee . . .
completely and permanently incapable of engaging in any type of substantial and gainful
employment." K.S.A. 44-510c(a)(2).


        The employer argues that in this case, its employee's inability to find other work
was largely due to his limited intellectual ability and, thus, the employer should not be


                                                    2
responsible for his inability to find work. But K.S.A. 44-510c(a)(2) considers the ability
of "the employee" who was injured to obtain gainful employment, not the ability of
Stephen Hawking or even the ability of the theoretical average person. Substantial
evidence supports the Workers Compensation Board's conclusion that the employee in
our case, Donald Wimp, was left incapable of engaging in gainful employment due to his
on-the-job injuries, and we affirm the award of compensation to him.


                        FACTUAL AND PROCEDURAL BACKGROUND


       Wimp worked for 18 years doing manual labor for American Highway
Technology, a company that manufactures concrete bridges and overpasses. Wimp's job
was to run wire through a machine that transformed it into smaller widths for use
throughout American Highway Technology's plant. In doing this work, Wimp used his
hands to bend the wire, to guide it through the machine, to hook clamps onto it, and to
counteract significant pressure exerted by the roll of wire as it was being fed into the
machine.


       After he experienced pain, numbness, and a tingling sensation in his hands, neck,
and shoulder, Wimp had right and left carpal-tunnel-release surgery in 2008. After
returning to work, he again experienced pain in his neck, back, and hands. In 2009, a
doctor repeated the right carpal-tunnel-release surgery.


       When he returned to work, he again had pain in his neck, shoulder, and hands. In
November 2009, Wimp accepted a voluntary layoff (while work at the company was
low), but he had further testing in early 2010 for the work-related injuries. A nerve-
conduction test showed severe carpal-tunnel syndrome, and a doctor advised that further
surgery wouldn't help. Wimp didn't return to work at the conclusion of the voluntary
layoff period, and American Highway Technology let him go.



                                              3
       Wimp had a workers-compensation claim pending, and the parties presented
extensive medical evidence in that proceeding. We will not go into great detail about that
evidence because it's not contested that Wimp suffered an injury to both of his arms. The
administrative law judge appointed Dr. Peter Bieri, a fellow of the American Academy of
Disability Evaluating Physicians, to independently determine Wimp's disability for
workers-compensation purposes. Under Kansas law, that determination is made under
guidelines found in the American Medical Association's AMA Guides to the Evaluation
of Permanent Impairment (4th ed. 1995). See K.S.A. 2014 Supp. 44-508(u).


       Using those guidelines, Dr. Bieri concluded that Wimp had a 20 percent
impairment of his right arm based on "residuals of entrapment neuropathy at the level of
the right wrist." He concluded that Wimp had a 10 percent impairment of his left arm
based on "residuals of entrapment neuropathy of the left wrist."


       The Workers Compensation Board adopted Dr. Bieri's disability findings, and they
are not in dispute in this appeal. What is in dispute is whether these injuries have left
Wimp unable to find employment. The Workers Compensation Board found that Wimp
was entitled to a presumption to that effect because he had an injury to both arms. K.S.A.
44-510c(a)(2) provides a rebuttable presumption that when an employee suffers a loss in
both eyes, hands, arms, feet, or legs, the employee has been permanently and totally
disabled. See Casco v. Armour Swift-Eckrich, 283 Kan. 508, Syl. ¶ 8, 154 P.3d 494
(2007). The employer may rebut the presumption by presenting evidence that the
employee is able to engage in substantial and gainful employment. Hall v. Dillon
Companies, Inc., 286 Kan. 777, Syl. ¶ 6, 189 P.3d 508 (2008).


       The Board concluded that American Highway Technology had not rebutted the
presumption; thus the Board awarded Wimp permanent-total-disability compensation. On
appeal, American Highway Technology contends that it successfully rebutted the



                                              4
statutory presumption by showing that Wimp's inability to find work was not just a result
of his on-the-job injuries.


                              STANDARDS OF REVIEW ON APPEAL


       The Kansas Judicial Review Act governs our review of cases arising under the
Workers Compensation Act. K.S.A. 2014 Supp. 44-556(a). The Kansas Judicial Review
Act provides that an agency action (here, the Workers Compensation Board acts as an
agency) may be set aside only for one of eight reasons set out in the statute. American
Highway Technology argues two of them on appeal: that the agency misinterpreted the
law, K.S.A. 2014 Supp. 77-621(c)(4), and that the agency's factual findings were not
supported by substantial evidence. K.S.A. 2014 Supp. 77-621(c)(7).


       We determine legal issues independently, without any required deference to the
Workers Compensation Board. Hall, 286 Kan. at 783; Ballard v. Dondlinger & Sons
Constr. Co., 51 Kan. App. 2d ___, 355 P.3d 707, 711 (2015). Whether an employee is
able to engage in substantial and gainful employment is a question of fact, and we review
a challenge to the Board's factual findings in light of the record as a whole to determine
whether the findings are supported by substantial evidence. See K.S.A. 2014 Supp. 77-
621(c) and (d); Moore v. Venture Corporation, 51 Kan. App. 2d 132, 137-38, 343 P.3d
114 (2015). Substantial evidence is evidence that a reasonable person might accept as
sufficient to support a conclusion. See Blue Cross & Blue Shield of Kansas, Inc. v.
Praeger, 276 Kan. 232, 263, 75 P.3d 226 (2003); Herrera-Gallegos v. H & H Delivery
Service, Inc., 42 Kan. App. 2d 360, 363, 212 P.3d 239 (2009).


       The Board, not our court, makes the factual findings, so we do not weigh
conflicting evidence except to determine whether the evidence supporting the Board's
decision has been so undermined by cross-examination or other evidence that a
reasonable person would not accept it as support of the Board's factual findings. Moore,


                                             5
51 Kan. App. 2d at 137-38; Messner v. Continental Plastic Containers, 48 Kan. App. 2d
731, 750-51, 298 P.3d 371, rev. denied 297 Kan. 1246 (2013); In re Protests of Oakhill
Land Co., 46 Kan. App. 2d 1105, 1114, 269 P.3d 876 (2012); Herrera-Gallegos, 42 Kan.
App. 2d at 363; Mendez v. Cargill Meat Solutions Corp., No. 110,052, 2014 WL
2871368, at *1 (Kan. App. 2014) (unpublished opinion).


       We recognize that the Board's specific finding in this case—that American
Highway Technology did not rebut the presumption of total and permanent disability—is
a negative finding. In court-tried cases, appellate courts do not reverse a trial judge's
negative finding unless the judge arbitrarily disregarded undisputed evidence or showed
bias, passion, or prejudice. Under the amended Kansas Judicial Review Act, however, the
negative-findings standard does not apply, and we instead look to the whole record and
determine whether substantial evidence supports the Board's decision. See Olds-Carter v.
Lakeshore Farms, Inc., 45 Kan. App. 2d 390, 395, 250 P.3d 825 (2011); Mendez, 2014
WL 2871368, at *2.


                                          ANALYSIS


       This case mostly depends on a question of statutory interpretation, so we will start
by looking at the applicable statute. The statute that applies is the one in place when the
employee is injured. Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 588, 257 P.3d
255 (2011). Here, although Wimp sustained his injuries over a period of time, the parties
agreed that his date of injury for the purposes of this case was May 6, 2008. Thus, unless
otherwise indicated, we cite in this opinion to the statutes in place as of May 2008.


       For our purposes, the key provision of the Kansas Workers Compensation Act is
K.S.A. 44-510c(a)(2), which tells us when an employee has a permanent and total
disability. The statute has four sentences: the first sentence provides the general rule; the
other three sentences discuss how we apply the rule under certain situations:


                                              6
              "Permanent total disability exists when the employee, on account of the injury,
      has been rendered completely and permanently incapable of engaging in any type of
      substantial and gainful employment. Loss of both eyes, both hands, both arms, both feet,
      or both legs, or any combination thereof, in the absence of proof to the contrary, shall
      constitute a permanent total disability. Substantially total paralysis, or incurable
      imbecility or insanity, resulting from injury independent of all other causes, shall
      constitute permanent total disability. In all other cases permanent total disability shall be
      determined in accordance with the facts." K.S.A. 44-510c(a)(2).


      Before discussing American Highway Technology's argument on appeal, let's first
look at each sentence of the statute and how they would seem to apply to Wimp's case:
   1. The first sentence provides the overall rule that an employee is permanently and
      totally disabled if a work-related injury has left him or her unable to gain
      employment. Our court has long interpreted this to mean that an employee is
      permanently and totally disabled when the employee is "essentially and
      realistically unemployable." Conrow v. Globe Engineering Co., 43 Kan. App. 2d
      827, 829-31, 231 P.3d 1080 (2010); Poff v. IBP, Inc., 33 Kan. App. 2d 700, 705,
      106 P.3d 1152 (2005); Wardlow v. ANR Freight Systems, 19 Kan. App. 2d 110,
      113, 872 P.2d 299 (1993).
   2. The second sentence provides a rebuttable presumption of permanent total
      disability when a worker suffers parallel injuries (such as both feet or both hands).
      It's a presumption—the statute says that these parallel losses "shall constitute a
      permanent total disability"—but the presumption applies "in the absence of proof
      to the contrary," which tells us that the presumption is rebuttable. See Hall, 286
      Kan. 777, Syl. ¶ 6; Casco, 283 Kan. 508, Syl. ¶ 8.
   3. The third sentence provides an irrebuttable presumption of permanent total
      disability if the worker suffers substantially total paralysis "or incurable imbecility
      or insanity" resulting solely from work-related injury. It's another presumption,
      with the statute saying that these conditions, when solely caused by a work-related


                                                    7
       injury, "shall constitute a permanent total disability," but this time it doesn't allow
       for proof to the contrary, so this presumption can't be rebutted.
   4. The fourth sentence tells us how to determine whether there's a permanent total
       disability if neither of the presumptions applies: "In all other cases permanent total
       disability shall be determined in accordance with the facts."


       To apply the statute to our case, let's first consider whether either of the
presumptions would apply. The rebuttable presumption of the second sentence does
apply—Wimp had injuries to both arms. The irrebuttable presumption of the third
sentence does not apply—Wimp doesn't claim that he has suffered total paralysis or been
rendered, in the statute's terminology, an imbecile or insane by working for American
Highway Technology. Based on this reading of the statute, the Workers Compensation
Board applied the rebuttable presumption, found that American Highway Technology
didn't successfully rebut it, and awarded compensation based on a permanent total
disability.


       So what is American Highway Technology's argument? It interprets the third
sentence to mean that if any preexisting "mental condition," such as a limited IQ or
limited reading or writing abilities, contributes to a person's inability to get substantial
employment after the injury, the employee can't be considered permanently and totally
disabled. For Wimp, this would mean that because his limited IQ contributed to his
inability to get a job, he can't be considered permanently and totally disabled. In our
view, that's not a fair interpretation of K.S.A. 44-510c(a)(2).


       First, as we've already explained, the third sentence is simply a presumption that
applies when one of three things—substantially total paralysis, incurable imbecility, or
insanity—is caused solely by the work-related injury. That's not the case here.




                                               8
       Second, American Highway Technology's argument rests on the assumption that
Wimp's "mental conditions" are some form of "incurable imbecility." (They surely are
neither paralysis nor insanity.) But that's not the case, either.


       The second, third, and fourth sentences of K.S.A. 44-510c(a)(2) first came into
Kansas workers-compensation law in 1917. L. 1917, ch. 226, sec. 3. When this occurred,
nearly a century ago, the words "imbecile" and "imbecility" had a specific meaning, and
they did not refer to things like poor reading or writing abilities or a below-average IQ.


       At that time, the term "imbecile" appeared in at least three sections of the Kansas
statutes. If a person gave an affidavit to the local probate court that someone living in the
county was "an imbecile" (or an "idiot," "a lunatic," or even "an habitual drunkard"), the
court could appoint a guardian for that person if he or she wasn't able to manage his or
her own affairs. G.S. 1915, 6098. Also, Kansas statutes on marriage at that time
prohibited marrying a woman under the age of 45 or a man of any age who was
"epileptic, imbecile, feeble-minded, or afflicted with insanity." G.S. 1915, 6155. Statutes
like this were commonplace throughout the United States. See Spencer, Some Phases of
Marriage Law and Legislation from a Sanitary and Eugenic Standpoint, 25 Yale L.J. 58,
70-72 (1915).


       In addition to these uses of "imbecile" in the Kansas guardianship and matrimonial
statutes, the term had a specific meaning in criminal law. What today we would
commonly call an insanity defense was available in Kansas to one who "was insane, an
idiot or imbecile, or of unsound mind, at the time of the commission of the offense." If
found not guilty on that basis, an "imbecile" would be committed to the "state asylum."
G.S. 1915, 10044.


       In this regard, Kansas was more open to an insanity defense than many states.
Courts around the country drew distinctions between "idiots," "imbeciles," and "morons,"


                                               9
with the level of impairment increasing from morons to imbeciles to idiots. In most
states, only idiots were exempt from criminal responsibility; imbeciles could be
responsible depending upon their individual capacity; and morons were criminally
responsible. See Usman, Capital Punishment, Cultural Competency, and Litigating
Intellectual Disability, 42 U. Mem. L. Rev. 855, 863-64 (2012). Often these
classifications were applied based on IQ testing, with a person whose IQ was from 50 to
69 labeled a moron, from 25 to 50 an imbecile, and below 25 an idiot. Tennesee
Protection & Advocacy, Inc. v. Wells, 371 F.3d 342, 352-53 (6th Cir. 2004) (describing
the use of these categories in the early part of the twentieth century); Smith v. United
States, 270 F.2d 921, 922 n.1 (D.C. Cir. 1959) (noting psychiatry and psychology texts
referencing these categories); Hunter, 17 Ill. Prac., Estate Planning & Admin. § 15:9 (4th
ed. 2007) (continuing to use these IQ-based categories of moron, imbecile, and idiot).


       Today, these terms are rightly considered pejorative, but more neutral terms that
parallel these graded classifications have continued in place. See Faigman et al., 2
Modern Scientific Evidence: The Law and Science of Expert Testimony § 9:24 (2014-
2015 ed.). Recognizing that IQ tests have variability, a more modern guide provided
these somewhat overlapping standards for the evaluation of mental retardation: IQ 50 to
70, mild mental retardation; IQ 35 to 55, moderate retardation; IQ 20 to 40, severe mental
retardation; and IQ below 20 or 25, profound mental retardation. American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders 42 (4th ed. 2000).
More recently, the United States replaced references in federal statutes to mental
retardation with references to intellectual disability, see Rosa's Law, Pub. L. 111-256,
124 Stat. 2643 (2010), and Kansas made the same change in 2012. See K.S.A. 65-6234;
L. 2012, ch. 91. The most recent edition of the Diagnostic and Statistical Manual of
Mental Disorders now uses the "intellectual disability" terminology as well. American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 33 (5th
ed. 2013). That edition also places greater emphasis on a person's adaptive functioning



                                             10
(such as the ability to participate in social activities or to live independently) than on IQ
scores. See Modern Scientific Evidence § 9:24.


       The point for our purposes, though, is a simple one: the term "imbecility," when
placed in our workers-compensation statutes in 1917, had a defined meaning. And it did
not come close to including someone like Donald Wimp, who has an IQ score of 86 and
graduated from high school. An 86 IQ score places a person in the "low average"
category. See Flanagan & Caltabiano, Test Scores: A Guide to Understanding and Using
Test Results (available at http://goo.gl/FETzgS). The third sentence of K.S.A. 44-
510c(a)(2) simply doesn't apply to Wimp at all—he is not substantially paralyzed, insane,
or an imbecile.


       American Highway Technology has cited one appellate case that does support its
position, Nelson v. Capital City Moving & Storage, 32 Kan. App. 2d 566, 85 P.3d 728
(2004), rev. granted May 25, 2004, appeal dismissed by stipulation August 23, 2004. In
that case, a panel of our court held that if an employee's inability to find work was due in
part to the employee's limited intellectual ability, the employee could not be considered
totally and permanently disabled unless that limited intellectual ability (which our panel
called a "mental condition") was caused by work-related injuries. 32 Kan. App. 2d 566,
Syl. ¶¶ 3-4. We do not find the Nelson decision persuasive here.


       First, the decision lacks precedential value. When our Supreme Court grants
review, the decision of our court, by rule, has "no force or effect." Supreme Court Rule
8.03(j) (2014 Kan. Ct. R. Annot. 77). After the Supreme Court granted review in Nelson,
the parties filed supplemental briefs, and two groups, the Kansas Trial Lawyers
Association and the Kansas AFL-CIO (a labor organization), filed friend-of-the-court
briefs arguing that our court's statutory analysis was mistaken. After those briefs were
filed, the parties dismissed the appeal, presumably having settled the case.



                                              11
       We recognize that a losing party cannot simply nullify an appellate court's
reasoned opinion by buying off the other side in settlement. See Singh v. Carnival Corp.,
550 Fed. Appx. 683, 686-87 (11th Cir. 2013), cert. denied 134 S. Ct. 2729 (2014). Here,
though, our Supreme Court granted review before the parties settled the case. Rule 8.03(j)
then made our decision "of no force or effect," and no further action by our court or the
Kansas Supreme Court addressed the merits of the case.


       Second, even if we look to the Nelson decision merely for its reasoning, we do not
choose to follow it. As far as we can tell, no one presented the Nelson court with the
legislative history that showed the entry of the term "imbecility" into our workers-
compensation statutes in 1917 or explained that the term had a specific and known
meaning at that time. That history is quite important: When construing a statute, technical
words or ones that have a "peculiar and appropriate meaning in law[] shall be construed
according to their peculiar and appropriate meanings." K.S.A. 77-201 Second; see Rose v.
Via Christi Health System, Inc., 279 Kan. 523, 527, 113 P.3d 241 (2005). In addition,
"[t]he words of a statute must be taken in the sense in which they were understood at the
time the statute was enacted." United Parcel Service, Inc. v. Armold, 218 Kan. 102, 107,
542 P.2d 694 (1975). Accordingly, we must give "imbecility" the meaning it had
acquired in law at the time of enactment. And since Wimp would not fall into the
category of "imbecile," the third sentence of K.S.A. 44-510c(a)(2) has no application
whatsoever in our case.


       Given that understanding, the Board correctly applied the statute. Under the
second sentence of K.S.A. 44-510c(a)(2), the Board applied a rebuttable presumption that
Wimp was totally and permanently disabled because he was unable to gain employment.
The Board then considered the evidence presented by both sides to determine whether
American Highway Technology had effectively rebutted that presumption and concluded
that it hadn't.



                                            12
       American Highway Technology argues that the Board's conclusion that it didn't
effectively rebut the presumption isn't supported by substantial evidence. But its
argument here is contingent upon its interpretation of K.S.A. 44-510c(a)(2): "If the
appropriate interpretation of [the statute] is applied, as in Nelson, Wimp remains capable
of engaging in substantial and gainful employment; therefore, the Board's Order is not
supported by substantial competent evidence and should be reversed." (Emphasis added.)
Of course, we have already rejected that legal argument. Accordingly, the Board properly
considered and relied on testimony from vocational experts on the effects of Wimp's
injuries on his employability.


       That evidence fully supports the Board's ruling. The Board relied on the testimony
of Karen Terrill, a vocational-rehabilitation consultant. She reviewed Wimp's
employment history, and she testified that she was familiar with the labor market in
southeast Kansas, where Wimp lives. Based solely on the work restrictions provided by
Dr. Bieri, the court-appointed expert, she concluded that Wimp was unable to perform 8
of the 12 work-related tasks he had done in past employment. She noted that he had
always engaged in work that had a heavy or very heavy physical demand; that he had no
knowledge of computers, could not type, and could not read a newspaper; and that his
test scores showed limited ability (at a grade-school level) in reading and math and an
extremely low score for "fluid reasoning," the ability to solve problems using inductive or
deductive reasoning. Based on his abilities, his work history, and Dr. Bieri's limitations
on what he can do physically, she concluded that Wimp was no longer able to engage in
substantial gainful employment.


       To be sure, there was other evidence in the record that supported the employer. It
hired Steve Benjamin, another vocational-rehabilitation consultant, who testified that
Wimp was still employable. But Benjamin relied only on the work restrictions of Dr. Paul
Stein, who examined Wimp at the employer's request. The Board ultimately relied upon
Dr. Bieri's rating, not Dr. Stein's. American Highway Technology has not shown any


                                             13
reason that the Board could not properly rely upon the opinions and testimony of Terrill
and Dr. Bieri. This is not a case in which their testimony was so undermined by cross-
examination or other evidence that a reasonable person could not rely upon it in reaching
a conclusion about the case. The Board's conclusion that American Highway Technology
failed to rebut the presumption that Wimp was permanently and totally disabled was
supported by substantial evidence.


                                       CONCLUSION


       We close with a note about the current version of the statute, K.S.A. 2014 Supp.
44-510c(a)(2). As amended in 2011, the second, third, and fourth sentences we have
discussed at length in this opinion were eliminated. See L. 2011, ch. 55, sec. 7. Thus, the
pejorative term "imbecility" has been removed. After that change, the terms "imbecile"
and "imbecility" no longer appear in the statutes of Kansas. We hope, therefore, that this
will be the case of last impression on the subject. We have published this opinion,
though, because the statute in place on the date of injury controls under the Kansas
Workers Compensation Act, so other cases under the old statute may still be moving
through the adjudicative process.


       In summary, then, the Board correctly interpreted and applied K.S.A. 44-
510c(a)(2), and substantial evidence supports its determination that Wimp was totally and
permanently disabled. We therefore affirm its decision.




                                            14
