Casco v. Armour Swift-Eckrich

• Citation: 128 P.3d 401
• Decision Date: 02 December 2005
• Docket Number: No. 93,984.,93,984.
• Parties: Alejandro CASCO, Appellant, v. ARMOUR SWIFT-ECKRICH, Appellee.
• Court: Court of Appeals of Kansas

128 P.3d 401

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

No. 93,984.

Court of Appeals of Kansas.

December 2, 2005.

As Modified December 19, 2005.

Syllabus by the Court

1. The conclusion that a claimant's injury is a result of a separate accident is a legal question over which this court's review is unlimited.

2. When a primary injury under the Workers Compensation Act is shown to have arisen out of and in the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.

3. The rule above does not apply to a new and separate accidental injury.

4. Under the facts of this case the right shoulder repetitive use injury suffered by the claimant due to overuse while compensating for his injured left shoulder is a continuation of his left shoulder injury and he is entitled to receive an award for permanent partial general disability.

Jeff K. Cooper, of Topeka, for appellant.

Mark E. Kolich, of Lenexa, for appellee.

Before RULON, C.J., PIERRON and HILL, JJ.

HILL, J.

We are asked to decide in this case if Alejandro Casco should receive either workers compensation for a permanent partial general disability or compensation for two separate scheduled injuries. Casco, from repetitive work, first hurt his left shoulder and then, because he was compensating for that injury, his right shoulder hurt from overuse. We reverse and remand to the Workers Compensation Board (Board) with directions to resolve the issue of work disability.

Work and Injury History

Casco's employment with the defendant required him to perform repetitive work with both of his upper extremities. His duties included looping and tying sausages, hanging sausages above shoulder level on a chain, filling boxes with meat, carrying 30- to 40-pound boxes, and placing the boxes on pallets.

Casco felt pain in his left shoulder while performing his job and went to the nurse on June 8, 2000. The defendant provided treatment for Casco and had him evaluated by Occupational Health Clinic, Scott Ketcher, D.O., and Geary Community Hospital. Casco's treatment consisted of radiographic studies, cortisone injections, physical therapy, medications, and work modifications. Casco showed little improvement during this treatment.

Eventually, Casco was examined by Larry F. Frevert, M.D. After an arthrogram, Casco was diagnosed as having a rotator cuff tear. Consequently, Casco was placed on work restrictions, which included no use of his left arm. Casco received a left rotator cuff exploration and repair and then continued with physical therapy. Casco testified that after the surgery, he returned to work and performed his work primarily with his right arm due to discomfort in the left arm as well as the work restrictions he was placed on after the surgery. Frevert ordered Casco to not use his left arm for activities.

Due to continuing discomfort in the left shoulder, a second arthrogram was performed in September 2001. Results of this arthrogram showed a recurrent rotator cuff tear. In February 2002, Casco underwent a left open rotator cuff repair with lysis of adhesions. Casco also continued rehabilitation of the shoulder. During a February 20, 2002, check-up, Frevert ordered Casco to remain off work for 5 weeks. This time off was extended for another 4 weeks at Casco's next evaluation. On May 8, 2002, Frevert allowed Casco to return to work but with the restrictions that he could not use his left arm for over the shoulder work and that he could only perform sit-down duties. Once again Casco testified that he returned to work after the surgery and performed his duties using only his right arm.

Casco testified that after he returned to work from his second shoulder surgery, he began experiencing pain in his right shoulder. Casco testified that he first began experiencing pain in his right shoulder in August 2002. During the time Casco began experiencing right shoulder pain, he continued to experience pain in his left shoulder. Casco first complained of his right shoulder pain to Frevert in September 2002. Frevert suggested a right shoulder MRI, but this was not authorized by the defendant.

Then in February 2003, Casco filed an application for a preliminary hearing with the Kansas Division of Workers Compensation. After the hearing, the Administrative Law Judge (ALJ) ordered the defendant to pay for treatment to both of Casco's upper extremities, with treatment to be provided by Frevert. At that time an MRI was performed on Casco's right shoulder. The MRI showed "some impingement syndrome with some swelling of the rotator cuff musculature and no evidence of rotator cuff tear." On May 30, 2003, Frevert performed decompression surgery on Casco's right shoulder. After the surgery, Frevert had Casco undergo physical therapy and directed Casco to stay off work from April 12, 2003, through October 16, 2003.

On October 16, 2003, Frevert released Casco to work with restrictions. These restrictions included no overhead activity, no lifting greater than 5-10 pounds, and no exposure to temperatures below 40 degrees. On October 17, 2003, Casco presented the defendant with his restrictions. At that point, the defendant told Casco that no employment was available. The defendant told Casco that his return to work would be coordinated with Casco's attorney.

Then Casco moved to Maryland to live with his son. In a letter dated November 5, 2003, the defendant's attorney notified Casco's attorney that the defendant had work available within Casco's restrictions and requested Casco to report to work immediately. The letter stated that if Casco did not report to work by November 10, 2003, the defendant would consider Casco to have voluntarily terminated his employment. In a letter dated November 6, 2003, Casco's attorney forwarded the defendant's letter to Casco's Junction City address. Casco testified that he received his attorney's letter in Maryland on November 12, 2003, which was 2 days after the reporting date set by the defendant. Casco testified that he could not financially afford to return immediately, that he told his attorney that he could not return, and that he eventually returned to work on November 24, 2003. However, Casco testified that when he showed up for work, he was informed that they did not have any work for him.

Sergio Delgado, M.D., evaluated Casco on three different occasions. He found that most of Casco's shoulder symptoms were "aggravated by activities using both arms, particularly from waist to overhead level." Dr. Delgado also testified that he agreed that Casco's right shoulder problems were "mainly due to overuse and compensation for the left shoulder problems." However, Delgado went on to say that it would be fair to assume that if Casco did not perform work activities, there would be nothing to cause injury to his right shoulder.

After an evaluation in November 2003, Dr. Delgado opined that Casco suffered from a "27% left upper extremity impairment rating which would translate to a 16% whole person impairment." Delgado further found that Casco suffered from a 6% right shoulder or right upper extremity impairment, which would translate to a 4% whole person impairment. He combined the values and found a 19% whole person impairment. The doctor also restricted Casco's future work activities by stating:

"Restrictions for future work activities continue to be avoiding activities requiring pushing and pulling not to exceed 50 pounds repetitively and 70 pounds occasionally. Avoid lifting from the floor not to exceed 40 pounds occasionally and from the waist to overhead levels to be minimal in nature not to exceed 5-10 pounds occasionally and [n]o repetitive lifting."

Dr. Delgado also reviewed a list of tasks Casco had performed in jobs during the 15 years preceding June 8, 2000, which was the stipulated date of the accident. The work task list was compiled by Monty Longacre, a vocational rehabilitation counselor and job placement specialist, after conducting a telephone interview with Casco. After reviewing the task list, Delgado concluded that Casco could not perform 10 of the 20 tasks due to his shoulder injuries. Another vocational rehabilitation counselor, Terry Cordray, interviewed Casco and compiled a 15-year work task list. Delgado reviewed this task list and determined that Casco could not perform 5 of the 15 tasks set out by Cordray. Dr. Delgado testified, in part:

"Q. [Mr. Kolich] Okay. Now, Doctor, with regard to the right shoulder I think you've indicated that you feel that that shoulder became injured because he was over compensating [sic] for the other shoulder. Is that true?

"A. [Dr. Delgado] That is very frequently seen where when there's limitation of motion, weakness or pain, the other shoulder is overloaded if he continues to do the same activities as before or similar to them.

"Q. And when you say same activities, you are specifically referring to his work activities, is that true?

"A. Yes.

"Q. Because would it be fair to assume if he wasn't doing the work activities, there would be nothing to cause an injury to that right shoulder, would there?

"A. That would be correct.

"Q. When he testified back in February of 2003, he was asked about that, and his—well, I'll read you the question and the answer. The question is on Page 23, `And did I understand your testimony earlier the reason your right shoulder became a problem was you weren't even using your left arm because of your left shoulder problem. You were doing everything with your right arm,' and his answer was `Yes.' Would that be consistent with what he told you?

"A. Yes.

"Q. And of course, Doctor, if he wasn't using his left arm at all, there was no—that wouldn't cause any aggravation or the continued aggravation of the left shoulder, would it?

"A. It should not."

History of Administrative Procedures

An ALJ held a hearing...