Copeland v. Johnson Group, Inc., 76829

• Decision Date: 29 August 1997
• Docket Number: No. 76829,76829
• Citation: 944 P.2d 179,24 Kan.App.2d 306
• Parties: Fannie L. COPELAND, Appellee, v. JOHNSON GROUP, INC., and Travelers Insurance Company, Appellants, and Kansas Workers Compensation Fund.
• Court: Kansas Court of Appeals

Page 179

944 P.2d 179

24 Kan.App.2d 306

Fannie L. COPELAND, Appellee, v. JOHNSON GROUP, INC., and Travelers Insurance Company,

Appellants, and Kansas Workers Compensation Fund.

No. 76829.

Court of Appeals of Kansas.

Aug. 29, 1997.

Syllabus by the Court

1. In a workers compensation case, the factfinder's determinations should be affirmed if they are supported by substantial competent evidence.

2. K.S.A. 44-510e(a) sets out the statutory definition of permanent partial general disability and an injured employee's entitlement to the same.

3. K.S.A. 44-510e(a) expresses a clear intent by the legislature to have a physician render the opinion as to loss of ability to perform work tasks.

4. To establish permanent partial disability, K.S.A. 44-510e(a) requires taking the loss of the employee's ability to perform the tasks he or she has performed in the previous 15 years of employment, averaged with

the difference between pre- and post-injury average weekly wage.

5. The specific language of K.S.A. 44-510e(a) appears to speak only in terms of the actual difference between pre- and post-injury average weekly wage. The capacity to earn wages is not a stated factor.

6. It would be unreasonable for the courts to conclude the legislature intended to encourage workers to merely sit at home, refuse to work, and take advantage of the workers compensation system.

7. In attempting to harmonize the language of K.S.A. 44-510e(a) with the principles of Foulk v. Colonial Terrace, 20 Kan.App.2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), the factfinder must first make a finding of whether a claimant has made a good faith effort to find appropriate employment. If such a finding is made, the difference in pre- and post-injury wages can be made based on the actual wages.

8. Pursuant to K.S.A. 44-510e(a), if a finding is made that a good faith effort has not been made to find appropriate employment, the factfinder will have to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the capacity to earn wages.

Frederick J. Greenbaum and Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., Kansas City, for the appellant.

Robert W. Harris, Kansas City, for the appellee.

Before GREEN, P.J., PIERRON, J., and PHILIP C. VIEUX, District Judge, Assigned.

PIERRON, Judge.

In this workers compensation case, Johnson Group, Inc., (Johnson) and Travelers Insurance Company (Travelers), appeal the decision of the Workers Compensation Board (Board) awarding Fannie L. Copeland permanent partial disability benefits based on a finding of 80% work disability. Johnson argues the Board erred in awarding permanent partial disability because Johnson proffered accommodated work to Copeland within her physical restrictions. Alternatively, Johnson argues there is no evidence to support the Board's finding that Copeland had a 100% wage loss. We reverse and remand for further proceedings.

For nearly 6 years, Copeland worked as a press operator at Duggins Cleaners, a dry cleaning facility owned by Johnson. She testified she began having pain in her right arm and hand in January 1993. The pain gradually moved to her left arm and hand. Through Johnson, she sought and received medical treatment from Dr. John O'Mailey, who first prescribed splints and then sent her to Dr. Brad Storm for evaluation.

Copeland's last day of work was September 22, 1993. On September 27, 1993, Dr. Storm diagnosed bilateral carpel tunnel syndrome. On October 22, 1993, Dr. Storm performed a bilateral endoscopic carpal tunnel release. Two weeks after the surgery, Dr. Storm released her to return to work. She testified she continued to have pain in her hands and Dr. O'Mailey prescribed physical therapy through December 1993.

In December 1993, both Dr. Storm and Dr. O'Mailey released Copeland to return to work for Johnson. Dr. Storm gave her a work restriction of no lifting over 20 pounds. He stated she was not back to full strength and the only way to regain full strength and endurance was for her to gradually use her hands again. Dr. O'Mailey gave Copeland restrictions of no lifting over 20 pounds and no sweeping floors.

Steven Stevener was the production or plant manager and Copeland's supervisor in December 1993. He testified he was advised by his supervisor, Jerry Miller, that Copeland had been released to return to work on December 17, 1993. Stevener said he had a light duty position waiting for Copeland in December 1993 that would have accommodated the lifting restrictions. Stevener testified in his deposition that Copeland did not return to work on December 17, 1993, because she was having problems with transportation. Miller told him Copeland would be returning to work on January 1, 1994. Stevener stated Copeland neither called nor reported for work from January 1 to January 5 and was terminated on January 6, 1994.

Stevener testified in his deposition that he had no conversations with Copeland about coming back to work. He was also unclear whether he saw the release restrictions from Dr. Storm or Dr. O'Mailey and was not a party to any conversation where light duty was discussed with Copeland.

Copeland testified at the hearing that she was in too much pain in December 1993 and January 1994 to return to work. She claims to have had a telephone conversation with Stevener in January 1994, where she expressed to him that she was having pain and was told to take her time returning. After Copeland's termination, she began receiving unemployment compensation in February 1994.

On March 18, 1994, Copeland was examined by Dr. Nathan Shechter, who also concluded she suffered from bilateral carpal tunnel syndrome. Shechter concluded Copeland had disability "of 10% of the body as a whole, permanent partial. The patient may need physical therapy from time to time, and medications such as anti-inflammatories." Dr. Shechter issued an additional report dated April 6, 1994:

"The following is a reply to your April 4, 1994 letter, regarding the above mentioned patient.

"It is the opinion of this examiner that Mrs. Copeland cannot return to the same type of work as she did before, which requires repetitive use of both hands and wrists and full strength and endurance of the upper extremities. She should be restricted to lifting 20 pounds of weight maximum. She cannot do the sweeping of floors or any type of job that requires repetitive use of the upper extremities."

Dr. Storm testified he examined Copeland again on January 12, 1994. He concluded she had reached the maximal medical improvement and her motion, sensation, grip, and pinch strength were all objectively measured pursuant to the AMA Guides to the Evaluation of Permanent Impairment (4th ed.1995). Dr. Storm's report stated:

"Strictly following the AMA Guidelines she would receive a zero percent impairment for limitations of range of motion, strength and sensation. Customarily zero to five percent is awarded at the level of the wrist for limitations related to any symptoms from permanent scarring. This would translate into a zero to six percent whole body impairment."

In June 1994, Dr. Storm restricted Copeland from gripping tools that vibrate more than 5 minutes each hour. Dr. Storm opined that Copeland's job as a press operator was not one that would place her at high risk for recurrence of carpal tunnel syndrome.

Based on medical records and reports from Dr. Shechter and Dr. O'Mailey, Dick Santner, Copeland's vocational rehabilitation expert, concluded that she suffered an 88% loss of access to the open labor market and a 26% loss of wage earning capacity. Santer indicated that if Copeland went back to work, she would earn at most $5 per hour.

Johnson presented vocational rehabilitation evidence from Gary Gammon. Based on the reports of Dr. Shechter and Dr. O'Mailey, Gammon concluded Copeland would have a 54.38% loss of access to the open labor market and, based on the report of Dr. Storm, she had between 1% and 3% loss of access to the open labor market. Gammon stated that with Dr. Shechter's and Dr. O'Mailey's restrictions, Copeland would have 12.5% loss of earning capacity. Using Dr. Storm's restrictions, Gammon opined that Copeland would have no loss of comparable wage earning capacity. As to Copeland's task-performing abilities relating to her prior 15 years of employment, Gammon opined loss of 23.5% under Dr. Shechter and 1.5% under Dr. Storm.

Prior to the hearing before the administrative law judge (ALJ), the parties stipulated to Copeland's functional impairment of 10% to the body as a whole. Following a presentation of all the evidence, the ALJ only granted benefits to Copeland in the amount of the stipulated 10% functional impairment. The crux of the ALJ's decision is as follows:

"The evidence clearly reflects that an accommodated position had been offered the claimant by the respondent, and that such was within her ability to perform such work. The evidence reflects that the claimant had refused to even attempt to return to work for the respondent. Therefore, the claimant has not met her required burden of proof to establish that she has sustained a work-related disability in excess of the functional impairment agreed to by the parties. Under the facts presented, a presumption of no work disability is warranted. Foulk v. Colonial Terrace, 20 Kan.App.2d 277(1994). It is therefore found that she is entitled to be compensated by the respondent-insurance carrier and Kansas Workers' Compensation Fund in the agreed upon apportionment, for 10% permanent partial disability to the body as a whole, such being a functional impairment."

The ALJ granted a total award of $9,644.81.

Copeland appealed to the Board. The Board disagreed with the ALJ's decision, finding the rationale of Foulk did not apply. The Board made several findings essential for its decision: (1) In December 1993, Copeland contacted Stevener and advised him ...