Goodell v. Meats

Decision Date31 December 2009
Docket Number476.,No. 101,101
Citation43 Kan.App.2d 717,235 P.3d 484
PartiesNicole GOODELL, Appellee,v.TYSON FRESH MEATS, Appellant.
CourtKansas Court of Appeals

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. Like a collegial court, the five-member Workers Compensation Board, in order to reach a majority decision, must have agreement of three members on all determinative issues of fact and law.

2. In the instant case, where four members of the Workers Compensation Board agreed the worker had suffered a compensable injury to the lower back, while one member dissented from that finding, there was a majority decision that the injury was compensable.

3. In the instant case, where two of the four members of the majority found the scheduled lower leg injury and the nonscheduled lower back injury should be combined for purposes of determining the whole person permanent impairment and work disability, and the other two members of the majority disagreed, but the fifth member agreed on this issue with the first two members, there was a three to two majority on the issue and the injury was compensable.

5. An appellate court's review of the Workers Compensation Board's decision in a workers compensation appeal is limited to questions of law. The nature and extent of a workers compensation claimant's disability is a question of fact. An appellate court's review of questions of fact in a workers compensation case is limited to whether the Board's findings of fact are supported by substantial competent evidence, which is a question of law. Substantial evidence in a workers compensation case 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 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.

6. The secondary injury rule provides that 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.

7. K.S.A. 44-510e(a), which provides for compensation for temporary or permanent partial general disabilities, is analyzed and applied.

8. The lack of an impairment rating listed in the American Medical Association Guides to the Evaluation of Permanent Impairment does not require a finding of zero impairment.

Douglas Greenwald and Gregory D. Worth, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for the appellant.

Jeff K. Cooper and Gary M. Peterson, of Topeka, for the appellee.

Before STANDRIDGE, P.J., PIERRON and BUSER, JJ.

PIERRON, J.

Tyson Fresh Meats, Inc. (Tyson), appeals the decision of the Workers Compensation (Board) awarding workers compensation benefits to Nicole Goodell after she sustained a work-related injury at Tyson. Tyson argues that because of the Board's split decision, a majority of the Board did not agree upon the nature and extent of Goodell's work disability. Tyson also argues that substantial competent evidence does not support the Board's finding of a work-related injury to Goodell's lower back or the computation of wage loss and task loss, the expert physician's opinion was not based on proper authority, and she did not demonstrate a good-faith effort to find postinjury employment.

In 2005, Goodell worked in processing and cleaning rib bones at Tyson. The parties stipulated that she suffered a work-related accident on October 5, 2005, when a large rolling container of meat tipped over onto her left foot. Tyson authorized treatment for Goodell with Dr. Dale Garrett. Goodell received conservative treatment including medications, physical therapy, injections, and limited work restrictions. Dr. Garrett referred Goodell to Dr. Stan Bowling, an orthopedic surgeon, for a consultation due to Goodell's continued pain in her left foot. Goodell filed her application for a workers compensation hearing on March 28, 2006, wherein she complained of injuries to her bilateral extremities, calves, low back, and all related systems.

Dr. Bowling ultimately performed tarsal tunnel release surgery on Goodell on October 31, 2006. Dr. Bowling testified that he never provided any treatment to Goodell for lower back pain and that he was only authorized to treat injuries to her left foot and “that's what I focused my care on.” In an impairment rating report issued on July 2, 2007, Dr. Bowling opined that Goodell suffered from a permanent partial impairment rating of 10% at the level of her left foot and that she had reached maximum medical improvement on April 20, 2007.

Goodell obtained a medical evaluation from Dr. Sergio Delgado after examinations on June 15, 2006, and September 6, 2007. Dr. Delgado testified that Goodell complained of pain in her left foot and when she transferred weight to her right foot, she developed pain in her right foot, both calves, knees, and then later in her lower back. Dr. Delgado assigned three impairments as a result of Goodell's workplace injury. First, he assigned a 10% impairment to the left lower extremity for the tarsal tunnel condition. Second, he added a 2% impairment based on Goodell's complaints of pain in her right foot. Last, he added another 3% impairment for sacroiliac joint derangement as a result of Goodell's altered gait. Dr. Delgado opined that the 10% left leg impairment converted to a 4% whole impairment and the 2% right leg impairment converted to a 1% whole person impairment; he combined those percentages with the 3% low back impairment for a total of 8% whole person impairment. Dr. Delgado testified that the entire 8% impairment was causally attributable to the workplace injury. He entered permanent restrictions of “avoidance of prolonged standing, sitting, climbing, running or squatting. With not doing these activities on a consecutive basis for more than two hours at a time with periods of rest of up to one hour in between.”

After the parties could not agree on a functional impairment rating, the Administrative Law Judge (ALJ) ordered an independent medical examination by Dr. Peter Bieri. Dr. Bieri evaluated Goodell on November 26, 2007, and agreed that Goodell suffered a 10% left foot impairment attributable to the injury at Tyson. However, Dr. Bieri concluded, “While the claimant has subjective complaints involving the low back, hips, and right foot, at the time of this evaluation she fails to meet the criteria for additional permanent impairment directly attributable to the injury in question.” Dr. Bieri gave Goodell the following restrictions:

[C]laimant is precluded from squatting, kneeling, crouching, and crawling.... Sustained ambulation and weight-bearing should be limited to no more than 300 feet at a time on level surfaces, with avoidance of climbing or descending ladders of more than three steps. Sustained weight-bearing activities should be limited to no more than two hours at a time, with 30 minutes for postural adjustment.”

The ALJ found that Goodell had never been treated for injuries to her back, and the independent medical examiner, Dr. Bieri, found there was insufficient basis for finding a permanent impairment in her back and right foot as the result of her subjective complaints. The ALJ held that the definition of “permanent impairment” excludes body parts which have not been evaluated for the need for medical treatment and implies assessment and treatment have been provided to the body parts affected. The ALJ awarded a 10 % left lower extremity impairment as a result of her injuries for a total award of $12,033.42.

Goodell appealed her award to the Board. In a severely fractured opinion, the Board modified the ALJ's award and granted work disability benefits to Goodell based on compensable injuries to both her left foot and her lower back. Two members writing for the majority found the injury to Goodell's back was a direct and natural consequence of her original left foot injury. The Board stated it was not persuaded by the ALJ's explanation that “any award for permanency requires treatment.” Combining the 10% impairment for the left foot and the 3% impairment for the lower back, the Board arrived at a 7% impairment to the body as a whole.

The Board also held that because it concluded Goodell had sustained an unscheduled injury to her lower back and sustained permanent impairment to her back, she was entitled to benefits based upon an unscheduled impairment under K.S.A. 44-510e(a). The Board found there was no evidence Goodell had not made a good-faith effort to find appropriate postinjury employment and even with her move out of town, there was no evidence that she was attempting to manipulate the workers compensation system. Consequently, Goodell's actual wage loss was used, leaving her with a 78.5% permanent partial general disability and resulting award of $52,528.35 due and owing, followed by permanent partial disability compensation in the amount of $47,471.65 paid at the rate of $346.57 per week until fully paid or until further order from the Director.

Two Board members filed a concurring and dissenting opinion. The two members agreed with the majority's factual findings and its determination that Goodell was entitled to work disability. However, they disagreed with the majority's conclusion that Goodell's functional impairment for the scheduled injury in her left foot should be combined with the functional impairment for her general body injury to her back. The two members agreed that both the left foot injury and the lower back injury occurred as a direct result of the work-related accident. However, the foot injury was a scheduled injury and should be compensated separately. The lower back injury was compensable...

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3 cases
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  • Goudy v. Exide Techs., 106,385.
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    ...and a nonscheduled portion of the body, compensation should be calculated according to K.S.A. 44–510e. See Goodell v. Tyson Fresh Meats, 43 Kan.App.2d 717, 731, 235 P.3d 484 (2009). Thus, in order for an injured worker suffering from a scheduled disability to obtain benefits under K.S.A. 44......

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