Berry v. Boeing Military Airplanes

• Decision Date: 09 December 1994
• Docket Number: No. 71007,71007
• Citation: 885 P.2d 1261,20 Kan.App.2d 220
• Parties: Bobby G. BERRY, Claimant/Appellant, v. BOEING MILITARY AIRPLANES, Respondent/Appellee, Aetna Casualty & Surety, Insurance Carrier/Appellee, and Kansas Workers Compensation Fund, Appellee.
• Court: Kansas Court of Appeals

Page 1261

885 P.2d 1261

20 Kan.App.2d 220

Bobby G. BERRY, Claimant/Appellant, v. BOEING MILITARY AIRPLANES, Respondent/Appellee Aetna Casualty & Surety, Insurance Carrier/Appellee and Kansas Workers Compensation Fund, Appellee.

No. 71007.

Court of Appeals of Kansas.

Dec. 9, 1994.

Syllabus by the Court

1. Carpal tunnel syndrome is a gradual condition caused primarily by repetitive trauma.

2. Carpal tunnel syndrome is a condition which cannot be easily defined either as a "personal injury caused by accident" or an "occupational disease." Carpal tunnel syndrome has features of both a personal injury caused by accident and an occupational disease and best lends itself to a "last day of work" analysis when attempting to ascertain the date of injury or date of occurrence.

3. The date of accident or date of occurrence in a workers compensation action involving carpal tunnel syndrome is the last day on which a claimant performs services for his or her employer and is required to William L. Fry, Wichita, for appellant.

stop working as a direct result of the claimant's pain and disability resulting from carpal tunnel syndrome.

Vaughn Burkholder and Stephen M. Kerwick, of Foulston & Siefkin, Wichita, for appellees Boeing Military Airplanes and Aetna Cas. & Sur.

Before LEWIS, P.J., RULON, J., and TERRY L. BULLOCK, District Judge, Assigned.

PER CURIAM:

This is a workers compensation action in which claimant, Bobby G. Berry, appeals from the factual findings of the Workers Compensation Board of Review (Board) as to his date of injury and extent of disability. Respondent Boeing Military Airplanes, insurance carrier Aetna Casualty & Surety Company, and the Workers Compensation Fund previously stipulated to the apportionment of liability among them. Consequently, there are no related issues except for claimant's appeal. We affirm in part, reverse in part, and remand for further proceedings.

The essential facts are as follows:

According to the findings of the Administrative Law Judge (ALJ), adopted by the Board, on May 12, 1987, claimant injured his left ring finger while working for respondent. Claimant was a sheet metal worker, and the injury occurred while he was using a rivet gun. As the pain in his finger did not subside, claimant visited respondent's medical center on May 15, 1987. On May 19, 1987, claimant filed a disability benefit claim form, claiming work-related problems with his left fingers and hand.

On June 2, 1987, claimant saw Dr. Lucas, a board certified orthopedic surgeon. Dr. Lucas diagnosed claimant as having carpal tunnel syndrome in his left wrist. As this prevented claimant from painlessly performing sheet metal work, claimant was transferred to the panel shop. This job, however, exceeded claimant's weight restrictions and aggravated his condition. Claimant was then asked to transfer to a department where he would work with small parts--a position more accommodating to his injury. However, this new position paid 10% less than claimant's previous job. Claimant agreed to take the new job, in spite of the reduced pay, until he learned that he would also be required to work a great deal of overtime. Unwilling to work the increased hours, claimant was fired.

On September 30, 1987, Dr. Lucas performed surgery on claimant's left wrist. Although surgery alleviated the pain in his left hand, claimant soon began developing symptoms in his right hand. The same operation was performed on November 20, 1987, on claimant's right wrist. On July 11, 1988, claimant filed a claim with the Division of Workers Compensation. On May 26, 1990, claimant saw Dr. Artz and reported that the surgery performed by Dr. Lucas only minimally improved his condition. Claimant was given cortisone injections, which temporarily alleviated his pain; however, he eventually had to have surgery on both hands in February and March of 1992.

On July 30, 1993, claimant submitted his case to the ALJ. The ALJ determined the date of claimant's bilateral carpal tunnel syndrome to be August 27, 1987, as that was the last day claimant worked for respondent. Accordingly, the ALJ applied the law in effect on that date. The ALJ found that claimant had introduced no evidence concerning his inability to perform work in the open labor market, nor did he introduce evidence regarding his inability to earn comparable wages. The ALJ concluded claimant was not entitled to work disability and limited claimant's disability rating to a functional impairment of 5% in each arm, for a general impairment of 10%.

Claimant applied for review by the Board. The Board found that the date of claimant's work accident was the last day claimant Claimant appeals to this court, alleging his "date of accident" occurred prior to July 1987. As such, claimant argues the post-July 1987 law which requires evidence as to loss of access to the open labor market and loss of the ability to earn comparable wages is inapplicable. Additionally, claimant argues that even under the amended statute, he provided the factfinder with sufficient evidence to show that his loss of access to the open labor market and loss of the ability to earn comparable wages has been affected by his injury and that he is entitled to an award greater than 10%.

worked. The Board, however, disagreed with the ALJ that claimant had a 10% functional impairment, as this impairment rating was based upon the testimony of Dr. Artz, who did not see claimant until long after he was terminated by respondent. Nonetheless, the Board affirmed the award. The Board found there was sufficient evidence offered to show that claimant's ability to earn a comparable wage had been reduced by 10%. This conclusion was based upon the fact that claimant could have taken another job with respondent which paid 10% less than his previous salary.

STANDARD OF REVIEW

K.S.A. 44-556 specifically subjects workers compensation appeals to the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. That Act limits the relief granted on appeal. K.S.A. 77-621(c). K.S.A. 77-621(c)(4) and (7) are relevant for purposes of this appeal:

"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 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."

The 1993 workers compensation amendments limited review of all orders issued after October 1, 1993, to questions of law. K.S.A. 44-556(a). However, whether the Board's findings of fact are supported by substantial competent evidence (K.S.A. 77-621[c] is a question of law. Tovar v. IBP, Inc., 15 Kan.App.2d 782, 784, 817 P.2d 212, rev. denied 249 Kan. 778 (1991).

DATE OF INJURY

One method of determining whether the Board accurately found the date of accident might be to determine whether carpal tunnel syndrome is a personal injury caused by accident or an occupational disease. The distinction has not been addressed by the appellate courts of this state. If it is an occupational disease, the injury is deemed to have "occurred" on the last day worked. K.S.A. 44-5a06. However, if it is a condition caused by an accident, the injury is deemed to have "occurred" on the date of the injury. K.S.A. 44-510e(a).

According to K.S.A. 44-508(d):

" 'Accident' means an undesigned, sudden and unexpected event or events, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. The elements of an accident, as stated herein, are not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the workers compensation act that the employer bear the expense of accidental injury to a worker caused by the employment."

Similarly, K.S.A. 44-5a01(b) states in part:

" 'Occupational disease' shall mean only a disease arising out of and in the course of the employment resulting from the nature Carpal tunnel syndrome could be construed to fall within the boundaries of either of the above definitions.

of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged. 'Nature of the employment' shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee [20 Kan.App.2d 224] was engaged, there is attached a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general. The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk."

"[Historically,] the two crucial points of distinction between accident and occupational disease were the element of unexpectedness and the matter of time-definiteness. What set occupational disease apart from accidental injuries was both the fact that they could not honestly be said to be unexpected, since they were recognized as inherent hazard[s] of continued exposure to conditions of the particular employment, and the fact that they were gradual rather than sudden in onset." 1B Larson, The Law of Workman's Compensation § 41.31 (1992).

The decisions in other states regarding this issue are inconsistent. At least five states, Illinois, Indiana, Minnesota, Nebraska, Tennessee, have found Carpal Tunnel Syndrome to fall within their statutory definition of accident. See Peoria County Belwood v. Ind. Com., 115 Ill.2d 524, 106 Ill.Dec. 235, 505 N.E.2d 1026 (1987); Duvall v. ICI Americas,...