Foulk v. Colonial Terrace

• Decision Date: 16 December 1994
• Docket Number: No. 71139,71139
• Citation: 20 Kan.App.2d 277,887 P.2d 140
• Parties: Tammy G. FOULK, Appellant, v. COLONIAL TERRACE and National Union Fire Insurance Company, Appellees.
• Court: Kansas Court of Appeals

Page 140

887 P.2d 140

20 Kan.App.2d 277

Tammy G. FOULK, Appellant, v. COLONIAL TERRACE and National Union Fire Insurance Company, Appellees.

No. 71139.

Court of Appeals of Kansas.

Dec. 16, 1994.

Review Denied March 21, 1995.

Syllabus by the Court

1. Interpretation of a statute is a question of law. An appellate court's review of a question of law is unlimited.

2. When interpreting what any statute means, this court should give effect to the intent of the legislature to the extent that intent can be ascertained. If the language of the statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. In doing so, we should give words in common usage their ordinary and natural meanings. However, if interpreting one section of an act according to its literal import would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.

3. If a term or phrase within the statute is ambiguous, the court can determine its meaning by reference to its context and associated words. Legislative intent should be determined from a general consideration of the entire act. In addition, this court must presume the legislature intends for the courts to give an act a reasonable interpretation to avoid unreasonable or absurd results.

4. Construing K.S.A.1988 Supp. 44-510e(a) to allow a worker to avoid the presumption of no work disability by virtue of the worker's refusal to engage in work at a comparable wage would be unreasonable where the proffered job is within the worker's ability and the worker had refused to even attempt the job. The legislature clearly intended for a worker not to receive compensation where the worker was still capable of earning nearly the same wage. Further, it would be unreasonable for this court to conclude that the legislature intended to encourage workers to merely sit at home, refuse to work, and take advantage of the workers compensation system.

Lawrence M. Gurney, of Wilson, Lee & Gurney, Wichita, for appellant.

M. Doug Bell, of Hall, Levy, Lively, DeVore & Bell, Coffeyville, for appellees.

Before RULON, P.J., and BRAZIL and GREEN, JJ.

RULON, Presiding Judge:

Tammy G. Foulk, claimant, appeals from the decision of the Appeals Board for the Kansas Division of Workers Compensation (Board).

Essentially, we must decide if the Board erred in its award of permanent partial general disability. We affirm.

On August 22, 1991, claimant suffered a lower back injury while working at Colonial Terrace (Colonial), a nursing home. Claimant worked at Colonial as a Certified Nurses Aide (CNA). Claimant advised her supervisor of this injury. The day after her injury, she was unable to return to work.

Claimant visited the company physician, Dr. Charles L. Empson, who put her on Flexeril and Darvocet and told her not to return to work for two or three weeks. At the end of this time, claimant attempted to return to work but was only able to work approximately two days before the pain began increasing. She visited Dr. Empson's partner, Dr. Thomas M. Auxter, who took her off work for another two or three weeks. She later returned to work on modified duty for about eight weeks. Claimant testified she was taken off work at that time by the regional district manager for the owners of Colonial. The administrator for Colonial testified, however, that claimant came into her office and said she was quitting because she could not handle the job.

After being seen by Dr. Empson, claimant was seen by Dr. David L. Black, an orthopedic surgeon, who became her treating physician. During Dr. Black's physical examination of claimant, he found she was tender over the sacroiliac joint of her back, but the rest of her exam was normal. Dr. Black diagnosed claimant with sacroiliitis, or inflammation of the sacroiliac joint. He treated claimant with trigger point injections, which did not alleviate her pain. After a follow-up visit, he restricted claimant's activities, but she returned to work.

After claimant's return to work aggravated her condition, Dr. Black specifically laid out a number of restrictions on her activities. He advised claimant she could lift 10 to 20 pounds 30 times an hour, 30 pounds 4 times an hour, and 40 to 50 pounds 2 times an hour. He instructed her never to lift 60 pounds or more. In his deposition, Dr. Black testified claimant could bend, stoop, twist, squat, kneel, or crawl on a frequent basis. In his notes, however, he stated, "[S]he should be permanently restricted in the amount of bending and twisting that she should do and she should not be bending or stooping more than 2 times an hour." Claimant testified that she could not work as a CNA under the restrictions Black imposed.

Dr. Black recommended a work hardening program of therapy for claimant, but she refused to participate in this. Claimant advised Dr. Black that she had been through a lot of therapy and did not think work hardening would be helpful. Further, she stated she had difficulty arranging transportation.

Dr. Black stated claimant suffered a three percent whole body impairment as a result of her injury.

Claimant was also seen by Dr. P. Brent Koprivica. At the initial examination, Dr. Koprivica recommended a rehabilitative program for conditioning and work hardening, which claimant elected not to follow. At a subsequent visit, Dr. Koprivica took x-rays of claimant's back which showed degenerative changes. Dr. Koprivica diagnosed claimant with chronic nonradicular low back pain with chronic left sacroiliac dysfunction. He tested for symptom magnification but did not find any evidence that claimant was magnifying her symptoms.

Dr. Koprivica also indicated claimant had a congenital problem of pelvic obliquity; a leg length discrepancy. Dr. Koprivica believed the injury claimant suffered at work aggravated her congenital condition.

Dr. Koprivica also placed restrictions on claimant's activities. He restricted claimant to one-time lifts of 50 pounds and repetitive lifts of only 25 pounds. He stated claimant was capable of working in a light-medium to medium physical demand level job as defined in the Department of Labor's Dictionary of Occupational Titles. He advised that claimant should avoid repetitive bending, pushing, pulling, twisting, or lifting activities.

Dr. Koprivica opined claimant suffered a five percent impairment to her body as a whole.

Dr. Ely Bartal also examined claimant. He took one x-ray of her back, which showed nothing. He stated claimant had an excellent range of motion and good reflexes. He did note, however, that claimant had a leg length discrepancy. In his opinion, this was a congenital condition with no relationship to her accident. He recommended she begin physical therapy and return to work as soon as possible. Further, he did not find any disability related to her accident and did not think she needed any treatment after he saw her. He stated he recommended therapy as "more a fitness thing rather than a treatment." In a letter to Dr. Empson, however, Dr. Bartal stated claimant had a remote lumbosacral sprain.

Colonial offered claimant a different job, as a dietary aide, in an attempt to keep her employed without pain. The job was offered at the same rate of pay as a nursing aide. Claimant did not accept this position. Claimant stated she turned this position down because she felt she could not perform certain aspects of the job in light of the medical restrictions she was under. Dr. Black stated a job as a dietary aide would not be a problem for claimant unless it reached a point where claimant would be bending down in the carts. A repetitive bending motion would be a problem for her. Dr. Koprivica stated he believed claimant could perform the job duties of a dietary aide within the restrictions he had placed upon her.

In preparation for her workers compensation case, claimant was interviewed by Jerry D. Hardin, a personnel/human resources consultant. Hardin performed an analysis of claimant's access to the job market after her injury, taking into account her education, background, experience, and capacity for rehabilitation. Using the restrictions and limitations Dr. Black had placed on claimant, Hardin found she had a 73 percent loss of access to the open labor market in Kansas and a 69 percent loss of access to the open labor market in Montgomery County, where she lived. Using Dr. Koprivica's restrictions and limitations, claimant suffered a 59 percent loss of access to the open labor market in Kansas and a 54 percent loss of access to the open labor market in Montgomery County. Hardin stated if he used Dr. Bartal's records in calculating claimant's loss of access to the open labor market, there was no loss and no work disability.

Karen Crist Terrill, a vocational rehabilitation counselor, at the request of the employer and insurance company, also met with claimant and evaluated her. Terrill concluded, based on medical records and the history provided by claimant, that claimant had suffered an 18 percent loss of access to the open labor market in Montgomery County. However, based only on Dr. Black's restrictions, claimant did suffer a 41 percent loss of access to the open labor market. It was based on Dr. Koprivica's restrictions that Terrill found the 18 percent loss. Terrill opined that claimant's ability to earn a comparable wage remained the same: "[S]he still retains the capabilities of earning a comparable wage, as a result, she has suffered a zero percent loss of wage earning capacity." Terrill further stated that if Dr. Bartal's records for claimant were used, claimant had a zero percent loss of access to the open labor market.

In preparation for litigation, respondent's insurer in this case hired a private investigator, Robert D. Keal, to watch ...