Chowning v. Cannon Valley Woodwork, Inc.
| Decision Date | 27 February 2004 |
| Docket Number | No. 90,572.,90,572. |
| Citation | 32 Kan.App.2d 982,93 P.3d 1210 |
| Parties | TERRI L. CHOWNING, Claimant/Appellee, v. CANNON VALLEY WOODWORK, INC., Respondent/Appellant, and VIRGINIA SURETY COMPANY c/o CAMBRIDGE INTEGRATED SERVICES GROUP, INC., Insurance Carrier/Appellant. |
| Court | Kansas Court of Appeals |
Jeff S. Bloskey, of McCormick, Adam & Long, P.A., of Overland Park, for appellants.
David H. Farris, of Hammond, Zongker & Ferris, L.L.C., of Wichita, for appellee.
Before GREEN, P.J., MARQUARDT and MALONE, JJ.
Cannon Valley Woodwork, Inc. (Cannon Valley) and its insurer, Virginia Surety Company c/o Cambridge Integrated Services Group, Inc., appeal from an award by the Kansas Workers Compensation Board (Board) granting permanent partial general disability benefits to Terri L. Chowning. We affirm.
Chowning worked at Cannon Valley. Her job required repetitive work assembling 4,000 parts per day. On April 6, 2000, Chowning told her supervisor that her wrists and arms hurt. Chowning noticed similar pain in January 2000, or earlier, but now it was worse. She was sent to Dr. Phillip Olsen.
Chowning also suffered an injury at Cannon Valley in 1999, when a cabinet struck her on the left side of her back. Dr. Pedro Murati evaluated those injuries on April 5, 2000. At that time, Chowning complained of pain in her left hand. He examined both hands, diagnosed bilateral carpal tunnel syndrome, assessed a 10% functional impairment rating for each hand, and imposed permanent work restrictions for both hands.
On April 10, 2000, Dr. Olsen noted that Chowning complained of pain in her left wrist. He put it in a splint and told her to return to work using the splint, which she did. He later changed her restriction to no use of her left hand and referred her to Dr. Mark Melhorn, an orthopedic surgeon.
On May 11, 2000, Dr. Melhorn examined Chowning. He released her to work with the restriction of task rotation. Cannon Valley provided an accommodated job at the mill. That work, however, was more demanding on Chowning's hands and arms and increased the pain in her wrists. Cannon Valley ceased business on May 19, 2000. At that time, Chowning was in Kansas City due to a family medical emergency. At his deposition in 2001, Dr. Melhorn testified his diagnosis was not carpal tunnel syndrome, and Chowning did not complain of pain in her right hand and arm until September 2000. However, his office notes and diagnosis for May 11, 2000, show otherwise. His letter to Chowning in June 2000 recommended a conservative approach for bilateral treatment. In May and June 2000, Dr. Melhorn also wrote letters to Cannon Valley's insurance carrier stating Chowning's work activities caused her injuries.
Dr. Melhorn explained his prior opinions on causation were made before he reviewed Chowning's prior medical records and knew she was pregnant. He now claimed Chowning's pregnancy contributed to her symptoms. He explained upper extremity complaints are common during pregnancy and can continue afterwards. He testified a neck injury can also cause upper extremity complaints. Dr. Melhorn opined Chowning's work activity in April and May 2000 was a temporary aggravation of the preexisting condition that was previously identified by Dr. Murati, and she had no task loss based upon his restriction of task rotation.
On August 17, 2001, Dr. C. Reiff Brown, an orthopedic surgeon, saw Chowning and diagnosed her condition as bilateral carpal tunnel syndrome. He opined her condition was caused by her repetitive upper extremity work activities at Cannon Valley and imposed a restriction of no repetitive flexion or extension in excess of 30 degrees. Based on Dr. Brown's assessments, Chowning had a task loss of 25%.
On January 24, 2001, Dr. Murati reevaluated Chowning. His diagnosis was mild to moderate carpal tunnel syndrome on the right and mild carpal tunnel syndrome on the left. Dr. Murati opined her carpal tunnel syndrome was due to the repetitive nature of her work at Cannon Valley in the April 2000 accident, not the July 1999 accident.
Dr. Murati knew of Chowning's pregnancy and agreed pregnancy can be a factor in carpal tunnel syndrome, but claimed pregnancy rarely caused that syndrome. Rather, cumulative repetitive trauma caused carpal tunnel syndrome in 99% of the cases, and carpal tunnel syndrome tended to progress even after ceasing repetitive work. Dr. Murati imposed permanent restrictions that were "slightly more stringent" for the right arm than those he imposed previously, but were the same as already imposed for the left arm. Dr. Murati assessed a 15% functional impairment rating for Chowning's right upper extremity and 10% for her left upper extremity, which combined for a 14% whole body impairment rating. Based on Dr. Murati's 2001 restrictions, Chowning had a 27% task loss.
Chowning had limited education and work experience. She documented her job search from May 22, 2000, to August 6, 2001. She made 126 contacts. She applied mostly for positions as secretary and receptionist, as well as cashier, teacher's assistant, turnpike toll worker, and manufacturing worker. To find jobs, she referred to the newspapers in El Dorado and Wichita and the unemployment office; did a computer search; and went to businesses that had not advertised a job. She did not go to an employment agency. At the regular hearing, Chowning was still unemployed.
The administrative law judge (ALJ) found Chowning had sustained an on-the-job injury to her bilateral upper extremities on May 18, 2000, but denied work disability because he determined Chowning's unemployment was the result of Cannon Valley ceasing business and the job market. Chowning filed an application for review with the Board.
The Board found Chowning had suffered upper extremity injuries to both of her hands and arms due to a series of mini-traumas from her repetitive work at Cannon Valley through her last day of work on May 18, 2000, and those injuries were compensable as a permanent partial general disability under K.S.A. 44-510e. It held Chowning had sustained a 26% task loss by averaging the opinions of Drs. Brown and Murati, and a 100% wage loss, resulting in a 63% permanent partial general disability. It also held Chowning was unemployed due to her injuries and had made a good faith effort to find work. Cannon Valley and its insurance carrier, Virginia Surety Company c/o Cambridge Integrated Services Group, Inc., (collectively referred to as Cannon Valley) appeal.
Since 1993, the Board has had authority to review the ALJ's decision for both questions of law and fact. The Board's determination can be appealed to the Court of Appeals, where review is limited to questions of law in accordance with the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc., 268 Kan. 33, 34-35, 991 P.2d 406 (1999). Whether the Board's findings of fact are supported by substantial competent evidence is a question of law. 268 Kan. at 34.
Substantial evidence in workers compensation cases is evidence that possesses something of substance and relevant consequence and carries with it fitness to induce the conclusion that the award is proper, or furnishes a substantial basis of fact from which the issue raised can be reasonably resolved. The appellate court reviews the evidence in the light most favorable to the prevailing party and does not reweigh the evidence or assess the credibility of the witnesses. Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 191-92, 62 P.3d 236 (2003).
Cannon Valley takes issue with the Board's finding that all three physicians concluded Chowning's work activities either caused or contributed to her bilateral upper extremity injuries. First, it argues the Board placed greater weight on Dr. Melhorn's two letters in May and June 2000 than on his diagnosis in 2001. Cannon Valley claims the Board disregarded Dr. Melhorn's testimony that clarified his opinion in those letters.
Dr. Melhorn's statements in 2000 were inconsistent with his testimony in 2001. The Board has the authority to weigh these inconsistencies. This court cannot reweigh evidence or reassess the credibility of testimony. Further, Dr. Melhorn did not eliminate Chowning's work activities at Cannon Valley as a contributing factor. Dr. Melhorn testified he still agreed with his letter dated November 20, 2000. It stated Chowning's condition had "a multifactorial etiology" that included "her pregnancy, her previous musculoskeletal symptom complaints and a contribution from her work activities at Cannon Valley, at the time of onset of ...
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