Jones v. U.S.D. NO. 259

• Decision Date: 04 May 2018
• Docket Number: No. 117,915,117,915
• Citation: 55 Kan.App.2d 567,419 P.3d 62
• Parties: Loren E. JONES, Appellant, v. U.S.D. NO. 259, Appellee.
• Court: Kansas Court of Appeals

55 Kan.App.2d 567

419 P.3d 62

Loren E. JONES, Appellant,

v.U.S.D. NO. 259, Appellee.

No. 117,915

Court of Appeals of Kansas.

Opinion filed May 4, 2018.

Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for appellant.

Travis L. Cook, Vincent A. Burnett, and Dallas L. Rakestraw, of McDonald Tinker PA, of Wichita, for appellee.

Before Standridge, P.J., Hill and Buser, JJ.

HILL, J.:

This is an appeal by an injured worker from the task loss reduction imposed on his workers compensation award by the Workers Compensation Board. While he was working as a middle school janitor for U.S.D. No. 259, Loren E. Jones hurt his cervical spine and upper back while lifting and carrying boxes of copy paper in 2011 and then hurt his lower back while shoveling snow at the school in 2014. He claimed workers compensation benefits for both injuries. The self-insured District contested both of Jones' claims. Since the parties agreed to seek separate awards for both injuries, the Workers Compensation Division docketed the claims separately but then adjudged them in a common proceeding.

The administrative law judge granted Jones his benefits, and the District appealed to the Workers Compensation Board. The Board, again in a combined proceeding, affirmed the ALJ's award for Jones' 2011 upper back injury after finding that his cervical spine injury

arose from a workplace accident. The Board, however, reversed part of the award for his 2014 injury after finding that the ALJ's task loss determination failed to account for any task loss attributable to the 2011 injury.

In separate cases, both parties appeal to this court. In this case, Jones, as the appellant, argues that the Board erred in its task loss analysis for the 2014 injury. In the other case—No. 117,970—the District is the appellant and argues that the Board erred in deciding the cause of Jones' 2011 cervical spine injury

.

In this opinion, we will focus mainly on the task loss issue raised by Jones concerning the Board's holding on his 2014 injury. We will, however, refer to some of the circumstances of the 2011 injury and its treatment as it relates to the 2014 injury and the computation of task losses. In turn, we will discuss in greater detail the facts of the 2011 injury in our opinion in Case No. 117,970.

Jones is hurt and seeks medical treatment.

Jones' first accident occurred on February 14, 2011. On that date, Jones' tasks included moving boxes of copy paper to locations throughout the school, setting up bleachers in the auditorium, and lifting a metal meal cart that had fallen over. The school is a two-story building that does not have an elevator, so Jones was required to carry the copy paper up a flight of stairs. After performing this work, he began to feel pain in his shoulders, arms, hands, and wrists. Jones also claimed to have had numbness and tingling at this time. Jones reported his injury to the District, and the District referred him to Dr. John Babb.

Jones went to see Dr. Babb about ten days later. Jones provided his medical history and described the symptoms he was experiencing. On a pain diagram chart, Jones stated that he was experiencing symptoms in both shoulders, both arms, and his right hand. At this time, Jones was most concerned with his shoulder pain, but stated that his arms, hands, and also wrists had been bothering him.

Dr. Babb treated Jones conservatively. He administered a corticosteroid injection into Jones' shoulders and ordered physical therapy. On June 11, 2011, Dr. Babb released Jones to return to work without restrictions . Throughout the treatment, Jones denied feeling numbness or tingling in his arms. Although he was released to return to work, Jones was still experiencing some pain in his shoulders and down both arms. Jones also claimed to have been experiencing pain in his neck and shoulders, which extended down both arms into his hands.

For over a year, after he was released to go back to work, Jones returned to his job as a custodian and performed all of the tasks required of him, even though he was experiencing some pain, tingling, and numbness in his hands, arms, and neck. He worked until August 27, 2012, when he went to his primary care physician, Dr. Steven Penner. To Dr. Penner, Jones complained of pain in his neck and problems with his shoulders, arms, and fingers. Jones also complained of having a tingling feeling when he was examined by Dr. Penner. Dr. Penner ordered an MRI exam, which showed spinal canal stenosis and a herniated disc

in Jones' cervical spine. Dr. Penner referred Jones to Dr. Raymond Grundmeyer.

Jones told Dr. Grundmeyer that he was experiencing symptoms in his hands, shoulders, back, and neck. Based upon his physical examination and the MRI, Dr. Grundmeyer recommended immediate surgery on Jones' cervical spine. Dr. Grundmeyer performed the surgery on September 12, 2012. Jones had postoperative visits with Dr. Grundmeyer. After Jones had shown sufficient improvement, Dr. Grundmeyer determined it was medically appropriate to allow Jones to return to work without any permanent restrictions . Jones returned to work at the school making the same wage he was making before his 2011 injury. Jones continued to work in the same manner as he had prior to this injury.

Then, in May 2013, the District had Jones visit with Dr. Chris Fevurly. Dr. Fevurly did not believe that Jones' neck pain was caused by his 2011 injury. In contrast, Dr. Fevurly believed the cervical spine involvement began sometime after the 2011 injury. However, regardless of the causation of Jones' symptoms, Dr. Fevurly opined that Jones should have had permanent work restrictions due to his shoulder injuries. Dr. Fevurly stated that Jones should avoid repetitive or prolonged forceful overhead work.

After that, while shoveling snow on the sidewalks outside of the school in February 2014, Jones was injured at work a second time. He felt pain in his back and legs. He finished shoveling the snow and left for the day. When Jones woke up the following day, he was in severe pain. He informed the District that he was going to a doctor. He went to Dr. Penner, and eventually the District referred Jones to Dr. Larry Wilkinson. Dr. Wilkinson performed a lumbar MRI and referred Jones to Dr. Matthew Henry, a neurosurgeon, for treatment.

To Dr. Henry, Jones complained of pain throughout his back which radiated down his left leg. Dr. Henry diagnosed Jones with lumbar radiculopathy

, lower back pain, a herniated lumbar disc at L3-4, bulging discs at L4-5 and L5-S1 causing severe neural foraminal narrowing, and lumbar disc degeneration. Initially, Dr. Henry removed Jones from work and prescribed pain medication and physical therapy. When this treatment did not produce the desired results, Jones underwent lower-back surgery. Following the surgery, Jones was given some work restrictions that were gradually eliminated—ultimately resulting in his release to work without any restrictions.

But, because Jones had been out of work for more than 180 days, the position that he had at the school was no longer available to him. Jones was invited to apply for any open positions. Jones applied for some positions, but he was not hired. Jones did not seek other employment due to his injuries.

Jones claims workers compensation benefits.

When Jones filed workers compensation claims for both of his injuries, the parties stipulated to the facts regarding Jones' employment. Further, they stipulated that both of the accidents occurred in the course of Jones' employment. Several doctors provided expert testimony to the ALJ. We offer a brief summary.

Dr. Fevurly was the District's expert. Dr. Fevurly did not believe that Jones had cervical spine involvement when he was being treated by Dr. Babb. Regarding the lower back injury, Dr. Fevurly diagnosed Jones with lumbar degenerative disc disease

, with eventual development of bilateral lumbar radiculopathy. In Dr. Fevurly's opinion, the work accident was the prevailing factor in the development of the radiculopathy but not the disc disease. Dr. Fevurly determined Jones had a 10 percent whole body functional impairment. Further, Dr. Fevurly noted that Jones did not have work restrictions following his lower back surgery, and he thought that Jones would be able to accomplish all of his work tasks. But with the limitations due to his shoulder injury, Jones should be limited to medium work.

For his part, Jones presented testimony from Dr. Pedro Murati. Dr. Murati examined Jones' lower back in December 2014. Dr. Murati determined that Jones' symptoms and physical evaluation were consistent with lumbar radiculopathy

and Jones' work activities were the prevailing factor in causing the injury. Dr. Murati believed Jones had a 15 percent whole body functional impairment. Dr. Murati set various restrictions upon Jones' activity due to his back injury. According to Dr. Murati, Jones was realistically unemployable due to his lower back injury.

Four months later, Dr. Murati reevaluated Jones. This examination concerned Jones' shoulder and neck pain. Dr. Murati thought that Jones had bilateral carpal tunnel syndrome

due to double crush syndrome and either rotator cuff tears or shoulder sprains. He also noted the extent of Jones' neck surgery. Dr. Murati believed that at the very least, Jones' neck and shoulder injuries were an aggravation, acceleration, or intensification of a preexisting condition that was caused by Jones' work activities. Due to this, Dr. Murati determined Jones had a 45 percent whole body functional impairment. With all of this in mind, Dr. Murati would have assigned various permanent restrictions following the 2011 injury. In Dr. Murati's opinion, Jones' suggested work restrictions, a result of his 2011 injury, would have still been applicable at the time Jones was examined for the lower-back injury.

In response to this medical evidence, the ALJ ordered Jones to have an independent medical evaluation performed by Dr. Terrence Pratt. This evaluation...