Casco v. Armour Swift-Eckrich

• Decision Date: 23 March 2007
• Docket Number: No. 93,984.,93,984.
• Citation: 154 P.3d 494
• Parties: Alejandro CASCO, Appellant, v. ARMOUR SWIFT-ECKRICH, Appellee.
• Court: Kansas Supreme Court

154 P.3d 494

Alejandro CASCO, Appellant, v. ARMOUR SWIFT-ECKRICH, Appellee.

No. 93,984.

Supreme Court of Kansas.

March 23, 2007.

Jeff K. Cooper, of Topeka, argued the cause and was on the brief for appellant.

Mark E. Kolich, of Lenexa, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by ROSEN, J.:

This is a workers compensation case in which the employer, Armour Swift-Eckrich (Armour), has petitioned us to review the decision by the Court of Appeals, which held that the injury to claimant Alejandro Casco's right shoulder was the natural and probable consequence of the work-related injury to his left shoulder. Armour raises two issues: whether the injury to Casco's right shoulder was the natural and probable consequence of the injury to his left shoulder and whether Casco should receive compensation for parallel injuries.

FACTS

Alejandro Casco, a 56-year-old immigrant from Honduras, began working in sausage production for Armour in 1998. Casco, who is right-handed, suffered a repetitive use injury to his left shoulder on June 8, 2000, due to his employment with Armour. As a result of that injury, Casco underwent two surgeries on his left shoulder to repair a torn rotator cuff. The first surgery occurred in February 2001, and the second surgery occurred 1 year later, in February 2002. Because of the injury to his left shoulder and the restrictions associated with his treatment, Casco began using only his right arm to perform all of his job duties, which included repetitive work tying sausages, placing them in a box, and carrying the 20- to 25-pound box to another location.

Casco began experiencing pain in his right shoulder in August 2002. In January 2003, Dr. Sergio Delgado, a board-certified orthopedic surgeon, diagnosed Casco with impingement syndrome or a possible rotator cuff tear in his right shoulder. In February 2003, Casco appeared before an administrative law judge (ALJ) because Armour denied treatment for his right shoulder. The ALJ ordered Armour to provide treatment for Casco's right shoulder injury. Casco underwent surgery on his right shoulder in April 2003.

Following the surgery on his right shoulder, Casco was off work until October 16, 2003, when his treating physician released him to work with permanent restrictions. Casco returned to Armour on October 17, 2003, and presented his permanent restrictions to Armour's employment representative, who informed Casco that there were no jobs available within his restrictions. Because Casco had no other means of support, he moved to Maryland to live with his son on October 23, 2003.

Casco received a letter from Armour on November 12, 2003, advising him that it had a position within his restrictions. The letter stated that Casco must report for the position by November 10, 2003, or Armour would consider his absence as a voluntary termination of his employment. Although the date to report had passed by the time Casco received the letter, Casco saved the money necessary to purchase a bus ticket and returned to Kansas. He reported for work at Armour on November 24, 2003, but was denied employment. Armour's employment agent advised Casco that he was too late for the opportunity that was available on November 10 and no other positions were available. Thereafter, Casco returned to Maryland and attempted to find employment within his permanent restrictions. Although he applied for 84 positions, Casco was unable to find any employment.

Dr. Delgado evaluated Casco in November 2003 to establish a permanent impairment rating after Casco achieved maximum medical improvement. Dr. Delgado rated Casco's impairment as 27% for the left upper extremity, 6% for the right upper extremity, and 19% to the whole body. Dr. Delgado issued permanent restrictions requiring Casco to avoid activities that involved pushing or pulling 50 pounds repetitively or 70 pounds occasionally, lifting from the floor over 40 pounds occasionally, lifting from waist to overhead between 5 and 10 pounds occasionally and "zero" pounds repetitively. Dr. Delgado also reviewed a list of tasks performed by Casco in the preceding 15 years and concluded that Casco could no longer perform 10 of the 20 tasks.

Armour retained Terry Cordray, a vocational expert, to assess Casco's ability to access the labor market. Cordray identified 15 tasks that Casco had performed in the previous 15 years and concluded that Casco could no longer perform 43.5% of those tasks because of his restrictions. According to Cordray, Casco could expect entry-level employment as a security guard, cashier, counter or retail clerk, retail salesman, or housekeeper, resulting in a wage of approximately $7.50 per hour and a wage loss of 37.5%. Cordray's evaluation focused on Casco's physical limitations and did not account for the limitations due to Casco's inability to speak English.

Casco sought compensation for the permanent disability in both of his shoulders. An ALJ heard the matter based on the stipulation that Casco's injuries occurred on June 8, 2000, arose out of his employment with Armour, and were covered by the Workers Compensation Act. Casco testified that, after the surgeries on his left shoulder, he worked solely with his right arm, performing the same work that other employees were performing with two arms. Dr. Delgado testified that the injury to Casco's right shoulder was due to overcompensating for the injury to his left shoulder. No other medical professionals testified.

The ALJ found that Casco "suffers a persistent left shoulder rotator cuff tear and an impingement syndrome to the right shoulder" and that the "right impingement syndrome is attributable to the overuse of that extremity due to compensation for the injury to the left shoulder." Relying on Dr. Delgado's undisputed testimony, the ALJ found that Casco's "right upper extremity injury is the natural and probable consequence of the left upper extremity injury" and Casco has a whole person impairment. The ALJ further relied on Dr. Delgado's testimony to find that Casco suffered a 19% whole person functional impairment. The ALJ averaged the percentage of task loss as determined by Dr. Delgado and Terry Cordray and found that Casco has a 39% task loss. Considering Casco's wage loss to be 100%, the ALJ determined that Casco had a 69.5% work disability. The ALJ awarded Casco the following: The Claimant is entitled to 46.14 weeks' temporary total disability compensation at the rate of $321.31 per week or $14,825.24 and 72.93 weeks at the rate of $321.31 per week or $23,433.14, for a 19% permanent partial general bodily disability and as of October 17, 2003, 193.85 weeks at the rate of $354.72 or $68,762.47 for a 69.5% work disability, making a total award as limited by K.S.A. 44-510f of $100,000.

Armour appealed the ALJ's award to the Workers Compensation Board (Board). The Board rejected the ALJ's conclusion that Casco's right shoulder injury was the natural and probable consequence of his left shoulder injury. Concluding that Casco suffered a new and separate accident to his right shoulder due to repetitive use, the Board calculated Casco's compensation based on the schedule in K.S.A. 44-510d. Although the Board found that Casco suffered two separate accidental injuries on two separate dates, it relied on the parties' stipulation regarding the date of injury and calculated Casco's award for both injuries based on the same date of injury. The Board awarded Casco 46.14 weeks of temporary total disability at the rate of $321.31 per week, or $14,825.24, and 48.29 weeks of permanent partial disability at the rate of $321.31 per week, or $15,516.06, for a total award of $30,341.30 for the 27% permanent partial disability to his left upper extremity. The Board further awarded Casco 13.5 weeks of permanent partial disability at a rate of $321.31 per week, or $4,337.69, for the 6% permanent partial disability to his right upper extremity.

Casco appealed the Board's decision to the Court of Appeals, which reversed the Board's decision. Casco v. Armour Swift-Eckrich, 34 Kan.App.2d 670, 128 P.3d 401 (2005). The Court of Appeals concluded that the Board ignored Dr. Delgado's undisputed medical testimony regarding the causation of Casco's right shoulder injury and held that the award should be based on injuries to parallel limbs. 34 Kan.App.2d at 682-83, 128 P.3d 401. Armour then petitioned us to review the Court of Appeals' decision, and we granted Armour's petition.

ANALYSIS

The first question we address is whether the injury to Casco's right shoulder is a necessary and probable consequence of the injury to his left shoulder. Armour claims that the injury to Casco's right shoulder is a new injury, so Casco's compensation should be calculated as a scheduled injury pursuant to K.S.A. 44-510d. Casco asserts that the Court of Appeals is correct in concluding that his right shoulder injury was caused by his left shoulder injury.

Standard of Review

Before analyzing the parties' arguments, we must begin by setting forth the standard of review. K.S.A.2005 Supp. 44-556(a) gives us jurisdiction to review decisions by the Board in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Appellate courts may only review the Board's decisions upon questions of law. K.S.A.2005 Supp. 44-556(a).

The KJRA limits the scope of appellate review to the following:

The court shall grant relief only if it determines any one or more of the following:

"(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;

"(2) the agency has acted beyond the jurisdiction conferred by any provision of law;

"(3) the agency has not decided an issue requiring resolution;

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

"(5) the agency has engaged in an unlawful procedure or has failed to...