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NOT DESIGNATED FOR PUBLICATION

No. 126,486

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DONALD CREGGER,

Appellee,

v.

CLW FARMS, INC.

and

KANSAS WORKERS COMPENSATION FUND,

Appellants.

MEMORANDUM OPINION

Appeal from Workers Compensation Board. Submitted without oral argument. Opinion filed May

10, 2024. Affirmed.

Kevin M. Fowler, of Frieden & Forbes, LLP, of Topeka, for appellants.

Jeff K. Cooper, of Cooper Law Office, of Topeka, for appellee.

Before ARNOLD-BURGER, C.J., MALONE and WARNER, JJ.

PER CURIAM: The Kansas Workers Compensation Fund (the Fund) seeks review 

under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., of an award issued 

by the Kansas Workers Compensation Appeals Board (the Board). The Board held that 

Donald Cregger, the claimant, was entitled to receive an award for work injuries and that 

the award was not subject to offset for preexisting functional impairment under K.S.A. 

44-501(e)(1). The Fund claims that the Board misapplied the law or based its decision on 

a determination of fact unsupported by substantial evidence when viewed in light of the 

record as a whole. Cregger disagrees and argues that no sufficient competent medical
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evidence supported an offset for preexisting functional impairment. For the reasons 

explained below, we reject the Fund's claim and affirm the Board's award to Cregger.

FACTUAL AND PROCEDURAL BACKGROUND

In 2020, Cregger worked for CWL Farms, Inc. (CWL) as a semi-truck driver. On 

March 11, 2020, Cregger climbed onto his trailer, slipped, and fell onto a concrete floor. 

The fall resulted in a broken tibial plateau near the left knee. Cregger was taken by 

ambulance to a hospital for treatment. On July 14, 2020, Cregger's injured knee was 

replaced. When Cregger was released to return to work in September 2020, he was 

informed that CLW sold the truck and trailer he had been operating and CLW no longer 

had a job for him. Cregger has not returned to work for any employer since March 2020.

Cregger also complained of back and right knee pain after the accident. Based on 

these injuries and complaints, he applied for workers compensation benefits. The Fund

was impleaded as a party because CLW did not have workers compensation insurance.

Both in deposition and at the hearing, Cregger testified that in 1996 he had suffered 

bilateral fractures to both tibias in a work-related accident for which he received workers 

compensation. That injury was settled with a 28% whole body impairment rating.

The administrative law judge (ALJ) considered reports and deposition testimony 

of three doctors, Pat Do, Pedro Murati, and Lowery Jones. Cregger told Jones that his 

right knee and back were what limited him rather than his surgically repaired left knee. 

Jones assessed Cregger's whole body functional impairment at 19%. In his report, Jones 

listed Cregger's medical history as including bilateral tibia fractures. Murati also testified 

that he knew of the 1996 injuries but determined that those injuries "were neither here nor 

there" and involved different body parts than Cregger's 2020 knee and back injuries.
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After hearing the evidence, the ALJ adopted Jones' assessment of a 19% whole 

body functional impairment and found the Fund liable. The ALJ also found that the 

award was subject to offset under K.S.A. 44-501(e)(1) because of Cregger's 1996 injury 

and the resulting 28% whole body impairment, calculated to be $53,977.22. Cregger 

timely applied for the Board's review of the ALJ's decision, where he argued that the 

award was not subject to offset because the 28% impairment from the 1996 injury was 

not preexisting based on substantial competent evidence.

The Board upheld the ALJ's initial award, but reversed its determination that it 

should be offset by the 1996 impairment rating. In doing so, the Board found that no 

evidence showed the 1996 injuries were to the same body parts as the new injuries. More 

specifically, the Board found:

"The ALJ stated 'In calculating Cregger's Award for permanent total disability, 

the previous Award of a 28% whole body functional impairment must be considered.' 

The Board agrees with this premise, but the Fund is still responsible with providing 

evidence it is more probably true than not they are entitled to the credit and the specifics 

regarding how much of a credit should be applied to the award.

"K.S.A. 44-501(e)(1) states the percentage basis of a prior Kansas settlement or 

award shall conclusively establish the amount of functional impairment determined to be 

preexisting. Worksheets for settlements with attached medical records are available and 

obtained from the Kansas Division of Workers Compensation. No worksheet for 

settlement for the 1996 work accident was entered into the record. None of the medical 

evidence opined Claimant's 1996 injuries were connected to his March 11, 2020 work 

injuries.

"The only evidence of a preexisting condition in this case comes from Claimant's 

testimony, and he said he had 28% whole body functional impairment from injuries 

sustained to his lower legs in 1996. Claimant testified the right leg was injured worse 

than the left. No specific information was provided as to what body parts were rated, how 

they were rated individually and converted to a 28% whole body rating. It appears 
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Claimant's current injuries are to different body parts than what he received 

compensation for in the 1996 claim, but the current record is insufficient to this 

information. This lack of information renders it impossible to apply the preexisting credit 

to this case. Claimant's recollection of an injury, occurring more than twenty-five years 

ago, without any supporting evidence, does not meet the standard of competent evidence.

Accordingly, the Board finds the Fund failed to meet their burden of proof establishing 

their right to a preexisting credit."

The Fund timely sought judicial review of the Board's decision. The only issue on 

appeal is whether the Board erred in vacating the ALJ's offset to Cregger's award based 

on the 28% whole body impairment rating from the 1996 injury.

ANALYSIS

The Fund claims the Board erroneously interpreted the law or acted based on a 

determination of fact that was unsupported by substantial evidence by concluding that 

Cregger's uncontroverted sworn testimony about his settlement of the prior workers 

compensation claim was not competent evidence to support the ALJ's decision to adjust 

Cregger's award of permanent total disability. The Fund claims the Board's decision

should be reversed under K.S.A. 77-621(c)(4) and (7), which provides:

"(c) The court shall grant relief only if it determines any one or more of the 

following:

. . . .

(4) the agency has erroneously interpreted or applied the law;

. . . .

(7) the agency action is based on a determination of fact, made or implied by the 

agency, that is not supported to the appropriate standard of proof by evidence that is 

substantial when viewed in light of the record as a whole, which includes the agency 

record for judicial review, supplemented by any additional evidence received by the court 

under this act."
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The KJRA governs this court's review of cases arising under the Workers 

Compensation Act. K.S.A. 44-556(a). Appellate courts review a challenge to the Board's 

factual findings in light of the record as a whole to determine whether the findings are 

supported to the appropriate standard of proof by substantial evidence. See K.S.A. 77-

621(c)(7). "Substantial evidence" refers to "'"evidence possessing something of substance 

and relevant consequence to induce the conclusion that the award was proper, furnishing 

a basis [of fact] from which the issue raised could be easily resolved." [Citation 

omitted.]'" Rogers v. ALT-A&M JV LLC, 52 Kan. App. 2d 213, 216, 364 P.3d 1206 

(2015). The Fund's claim also involves statutory interpretation, which this court reviews 

de novo. Bruce v. Kelly, 316 Kan. 218, 224, 514 P.3d 1007 (2022).

The Fund claims that the Board erred by finding that insufficient evidence 

supported the ALJ's determination that Cregger's award was subject to offset by 28% 

because of the preexisting injuries and award obtained in 1996. At the hearing, Cregger 

testified that his 1996 work injuries resulted in a 28% impairment for which he was 

awarded compensation. Cregger also testified in his deposition about the injuries and that 

he was compensated for them, but he did not recall his impairment rating at that time.

The Fund mainly argues that Cregger's testimony is substantial competent evidence to 

show that his 1996 impairment rating should offset the new award.

The Fund relies on the statutory language of K.S.A. 44-501(e)(1), which states:

"(e) An award of compensation for permanent partial impairment, work 

disability, or permanent total disability shall be reduced by the amount of functional 

impairment determined to be preexisting. Any such reduction shall not apply to 

temporary total disability, nor shall it apply to compensation for medical treatment.

(1) Where workers compensation benefits have previously been awarded through 

settlement or judicial or administrative determination in Kansas, the percentage basis of 

the prior settlement or award shall conclusively establish the amount of functional 

impairment determined to be preexisting. Where workers compensation benefits have not 
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previously been awarded through settlement or judicial or administrative determination in 

Kansas, the amount of preexisting functional impairment shall be established by 

competent evidence."

Under K.S.A. 44-501(e)(1), an award of compensation must be reduced by the 

amount of functional impairment found to be preexisting. The respondent in a workers 

compensation case has the burden of proving the amount of preexisting impairment to be 

deducted. Ward v. Allen County Hospital, 50 Kan. App. 2d 280, 288, 324 P.3d 1122

(2014). "Burden of proof" generally means the burden of a party to persuade the trier of 

facts by a preponderance of the credible evidence that the party's position on an issue is 

more probably true than not based on the whole record. K.S.A. 44-508(h).

The Fund argues that the statute requires an offset in Cregger's case because a new 

award "shall be" reduced by the amount of functional impairment determined to be 

preexisting and because the prior impairment rating shall conclusively establish the 

amount of offset. Stated another way, Cregger testified about the 1996 impairment rating, 

and the Fund claims that the Board was required to use that evidence to uphold the offset.

In rejecting that argument, the Board noted that no worksheet for the 1996 work 

accident was entered into the record. In the absence of these records and because none of 

the medical evidence presented by the parties showed that Cregger's 1996 injuries were

connected to his current injuries, the Board determined it was "impossible to apply the 

preexisting credit to this case." The Board expressly rejected the Fund's claim that 

Cregger's testimony alone, without any supporting evidence, was competent evidence to 

uphold the ALJ's offset for preexisting functional impairment.

Cregger agrees with the Board and cites Weaver v. Unified Government of 

Wyandotte County, 63 Kan. App. 2d 773, 790-98, 539 P.3d 617 (2023), to support his 

position. Weaver, like Cregger, suffered a prior work injury and received compensation.
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After sustaining a new work injury, Weaver filed another claim. The Board did not offset 

Weaver's new award under K.S.A. 44-501(e) based on the percentage of impairment 

resulting from his prior injury. Instead, the Board upheld the ALJ's decision that although 

there were prior injuries, no doctor found that they affected the new injury or new 

impairment ratings. Thus, the Board found that the prior injuries were not preexisting to 

the new injury and K.S.A. 44-501(e) did not apply. 

On appeal, Wyandotte County argued, like the Fund argues here, that evidence of 

the prior injury itself was enough to trigger K.S.A. 44-501(e) and require an offset based 

on the prior impairment rating. The Weaver court found that Wyandotte County's 

interpretation of the statute was too broad and "would require a reduction of benefits for a 

new impairment even though it is unrelated to a preexisting impairment, just because the 

impairments are in the same bodily extremity." 63 Kan. App. 2d at 794. Instead, the court

found that "[t]he determination whether a claimant's functional impairment, or any part of 

it, is preexisting, is a medical determination." 63 Kan. App. 2d at 795. None of Weaver's 

doctors testified that the separate injuries caused any overlapping impairment. The court 

concluded: "The record lacks any evidence that Weaver's prior impairments had any 

relation to the impairments caused by his current accident. Thus, Wyandotte County has 

not shown that any impairments from Weaver's August 2018 injury were preexisting as 

that term is used in K.S.A. 44-501(e)." 63 Kan. App. 2d at 797.

Under Weaver, a claimant's testimony alone that they received a functional 

impairment rating in a prior workers compensation case is insufficient evidence to 

establish an offset under K.S.A. 44-501(e). Instead, the determination whether a 

claimant's functional impairment is preexisting is a medical determination. The burden is 

on the respondent to provide medical evidence to support a finding that the claimant's 

current impairment is, in fact, related to the prior injury. Assuming substantial evidence is 

provided, the statute provides the percentage basis of any prior settlement or award shall 

conclusively establish the amount of functional impairment determined to be preexisting.
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Turning to Weaver's application here, Cregger bilaterally fractured his tibias in 

1996. Several doctors noted these injuries in their reports, and Cregger disclosed them in 

his testimony. But no doctor found that the 1996 injury or the resulting impairment 

affected Cregger's new impairment. Murati went further by testifying, "Yeah, that I knew, 

that he had suffered bilateral tib-fib fractures. But that's neither here nor there. We're not 

dealing with the legs in this condition. We're dealing with his knees and back." Applying 

the analysis in Weaver, there is no evidence in the record suggesting that Cregger's 1996 

injury was determined to be "preexisting as that term is used in K.S.A. 44-501(e)." See 

63 Kan. App. 2d at 797. Had substantial evidence been provided, then Cregger's 28% 

whole body impairment rating from the 1996 injury would have conclusively established 

the amount of functional impairment determined to be preexisting. But without medical 

evidence showing the injuries are related, there is no basis for any offset.

In its reply brief, the Fund argues that Weaver is distinguishable because that case 

did not involve whole body impairment like in Cregger's case. But this attempt to 

distinguish the cases is not persuasive. K.S.A. 44-501(e) does not distinguish between 

types of impairment. Rather, it uniformly states that the "percentage basis of the prior 

settlement or award shall conclusively establish the amount of functional impairment 

determined to be preexisting." K.S.A. 44-501(e)(1). So no matter what type of 

impairment is involved, its percentage in a prior case establishes only the amount of the 

offset in the current case, but not that the impairment is, in fact, preexisting.

Also in its reply brief, the Fund argues that Cregger failed to provide enough 

evidence to meet his own burden to show his award is not subject to offset, citing the 

claimant's overall burden of proof under K.S.A. 44-501b(c). The Fund argues that 

because there is no medical determination that the new impairment is "'over and above'" 

the old impairment, Cregger failed to provide sufficient evidence. But as the Board 

correctly found, the respondent in a workers compensation case has the burden of proving 

the amount of preexisting impairment to be deducted. See Ward, 50 Kan. App. 2d at 288. 
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And even if we would shift that burden to Cregger, Murati explicitly testified that there 

was no connection between the impairment in the two cases because the injuries were to 

different parts of the body. Thus, the only direct evidence in the case established that 

Cregger's new impairment was unrelated to his prior injury and was therefore not 

preexisting.

Finally, in its reply brief, the Fund points out that no evidence shows that the 

doctors were aware of the prior 28% impairment rating and instead only knew about the 

injuries themselves. But the Fund does not explain how this point is relevant. The record 

shows that Cregger disclosed his 1996 injuries and that the doctors, in their evaluations, 

determined those injuries to be of no significance to his new injuries and impairment. The 

Fund does not point to any law requiring disclosure of prior impairment ratings and does 

not refute that the doctors' findings were made with the prior injuries in mind.

In sum, the Fund does not dispute that it failed to enter into the record the 

settlement worksheet for Cregger's 1996 work accident supporting the impairment rating 

in that case. Without some medical determination that Cregger's current impairment was 

preexisting, the Board correctly found that Cregger's award was not subject to an offset 

under K.S.A. 44-501(e). The Board did not erroneously interpret or apply the law and did 

not base its decision on a fact unsupported by substantial evidence when viewed in light 

of the record as a whole. The Fund has not shown error in the Board's decision.

Affirmed.