McCready v. Payless Shoesource

• Decision Date: 30 January 2009
• Docket Number: No. 100,191.,100,191.
• Citation: 200 P.3d 479
• Parties: Sharon McCREADY, Appellee, v. PAYLESS SHOESOURCE, and Fidelity & Guaranty Ins., Appellants.
• Court: Kansas Court of Appeals

200 P.3d 479

Sharon McCREADY, Appellee, v. PAYLESS SHOESOURCE, and Fidelity & Guaranty Ins., Appellants.

No. 100,191.

Court of Appeals of Kansas.

January 30, 2009.

James C. Wright, of Topeka, for appellants.

Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for appellee.

Before GREENE, P.J., HILL, J., and BRAZIL, S.J.

HILL, J.

This is a workers compensation appeal arising from Sharon McCready's work at Payless Shoesource, Inc. McCready made a claim for benefits after she hurt her right ankle when she stepped on a roll of tape that was left on the floor at her workplace. Then, several months later, as she was returning to work after visiting a company doctor, McCready fell, with no explanation why, on the sidewalk going to her employer's warehouse and hurt her right knee, right wrist, and her back. McCready made a claim for those injuries as well. An administrative law judge and then the Workers Compensation Board awarded McCready workers compensation benefits for both claims. Here, Payless Shoesource, Inc., appeals the awards made by the Board.

In this appeal, Payless raises allegations about both of McCready's injuries. Payless contends her ankle impairment is a result of McCready's preexisting diabetic condition. The employer argues its expert's testimony about this is more persuasive than the other two doctors who testified. Because the law directs us not to weigh the evidence at this point and we review the appellate record in a light favorable to the prevailing party, we hold the Board's findings about this ankle injury are supported by substantial evidence and affirm.

Turning then to the second injury (caused by the unexplained fall), Payless argues McCready simply fell while walking to her job site, a normal day-to-day activity and her injury is therefore not compensable. We do not think the resolution of this issue is so simple. Workers compensation is our method of providing cash-wage benefits and medical care to the victims of work injuries in Kansas. In such cases, either the employers or the employees bear the risks of injury, depending on the nature of the risk. These risks are grouped into three general categories by our Supreme Court: those risks particular to the job; those personally associated with the worker; and neutral risks, not associated with either employer or employee. The employer bears the costs of neutral risks. Unexplained falls at work are neutral risks. In the light of Supreme Court precedent, we must agree with the Board's risk analysis. Because McCready's fall was unexplained and substantial competent evidence supports the Board's impairment findings, we affirm.

The case history reveals three injuries received at different times with one claim now undisputed.

Sharon McCready's work history reveals challenges because over the years she suffered three injuries at work. She worked as a general warehouse employee for Payless from February 1998 to October 2006. She packed shoes into individual boxes at a rate of 600 boxes per hour. This job required her to lift up to 45 pounds and often to be on her feet for 10 hours a day, except for during her lunch and two other breaks. Her last actual working day at Payless was September 30, 2005.

McCready's first two accidents at work came about 3 years apart. Her first work injury came on February 2, 2002. She injured her right knee and right wrist when she fell down some stairs. McCready reported the accident to Payless and received medical treatment for her injuries from Dr. Donald T. Mead. After looking at her X-rays, Dr. Mead assessed McCready's injuries as sprains and treated her with support bandages. Then, on March 17, 2005, while at work, McCready injured her right ankle when she stepped on a roll of tape. She reported the accident to her supervisor but did not seek medical treatment until July 2005. In July, Payless sent McCready again to Dr. Mead who made an X-ray examination and then referred her to Dr. Peter Lepse. After a magnetic resonance image study was made of her right ankle, McCready was placed on work restrictions and put on light duty at work.

Then, McCready received her third injury on September 9, 2005. McCready left work to visit Dr. Mead so she could receive an impairment rating for her right knee and right wrist injured in her fall in 2002. When she left for her doctor's visit, she clocked out of work. After Dr. Mead finished his evaluation of McCready's wrist, a friend picked her up and drove her back to the warehouse. He dropped McCready off at the handicapped walkway leading up to the front door of the warehouse. When McCready got out of the car, she was wearing a brace on her right ankle. She turned to her right to step toward the warehouse door and fell forward, landing on her right knee. McCready could not explain why she had fallen but stated that "[she] saw the door and then [she] saw the cement."

McCready's injuries lead to claims for workers compensation benefits.

McCready claimed workers compensation benefits for her various injuries. An administrative law judge heard her initial claims. The judge found McCready suffered a 2% impairment to her right wrist from the February 2, 2002, fall; that she suffered a 10% right ankle impairment from the March 17, 2005, accident of stepping on the roll of tape, and that she suffered a 5% right knee impairment as a result of her fall on September 9, 2005. While the parties did not dispute the judge's ruling about McCready's right wrist, both McCready and Payless appealed the other awards to the Workers Compensation Board.

Both parties made contentions of error to the Board. Payless contended McCready's September 2005 fall did not arise out of and in the course of her employment. But, if the fall is compensable, Payless stresses McCready only sustained a knee impairment. The employer also argued to the Board that McCready's 10% right ankle impairment rating (a rating stipulated to by both sides) is not attributable to the accident on March 17, 2005, but it is related to her diabetic condition. On the other side, in her appeal to the Board, McCready argued contrary to the administrative law judge's conclusion, that she did suffer permanent impairment in her low back and right hip from the September 2005 fall.

We summarize the doctors' evidence found in the record.

Dr. Sankoorikal assigned McCready a permanent partial impairment of 5% for the whole body. But he based this rating on the premise that McCready lacked a history of back pain. McCready had never mentioned to Dr. Sankoorikal that she had seen Dr. Tennant (a chiropractor) prior to the fall. Had he known that information, Dr. Sankoorikal stated he might have apportioned some of that rating to her preexisting back condition: "If-if I had known that it was the same-same treatment as given her for probably the same complaints, probably I would have apportioned that. . . . I would say maybe 60/40, 60 percent for aggravation of her existing problem maybe."

Dr. Mead assigned permanent impairment ratings of 2% for McCready's upper extremity (right wrist) and 0% for her right knee. Although Dr. Mead was not hired to assign McCready a rating for the injuries she sustained in the September 2005 fall, he provided such an opinion in his deposition. Because McCready had never informed him of her previous back complaints and treatments with Drs. Tague (weight loss) and Tennant (chiropractic), Dr. Mead stated that with this information, he would have changed his original diagnosis to chronic preexisting back pain and would have ordered her to follow up with her personal doctor. Also, in reviewing Dr. Tennant's records, Dr. Mead opined he would have assigned her a 5% impairment rating for her low back preceding the September 2005 fall because the fall did not cause any change to her back impairment.

McCready hired Dr. Koprivica, who established impairment ratings for all of her injuries. Although Dr. Koprivica did not personally evaluate McCready, he based his assessment on her subjective complaints and her medical records. In his reports, Dr. Koprivica provided the following ratings:

a. For the injuries she alleged to have occurred on February 2, 2002, Dr. Koprivica assigned a 0% impairment rating to her right knee and a 10% mild impairment rating to her right wrist.

b. For the injuries she alleged to have occurred on December 17, 2003, Dr. Koprivica assigned a 0% impairment rating to her left knee.

c. For the injuries she alleged to have occurred on March 17, 2005, Dr. Koprivica assigned a 10% mild impairment rating to her right ankle. Dr. Koprivica believed that McCready had sustained a right ankle sprain and, currently, was at maximal medical improvement.

d. For the injuries she alleged to have occurred on September 9, 2005, Dr. Koprivica assigned a 35% impairment rating to her right knee and a 5% impairment rating to her low back that included the right hip. We note that McCready did not mention her treatments with Dr. Tennant to Dr. Koprivica. However, even after considering Dr. Tennant's treatment, Dr. Koprivica stated he would not apportion any of the 5% to preexisting problems because a change in his assessment would have to be based on whether she was symptomatic on an ongoing basis during that time frame.

The Board affirms but changes one part of the award.

The Board unanimously affirmed part of McCready's initial award of benefits, and a majority modified her award to include a permanent partial impairment to the body as a whole. Based on the evidence, the Board affirmed the administrative law judge's findings on McCready's right ankle injuries. Going on then to her back injury, a majority of the Board affirmed the administrative law judge's ruling of granting benefits for this injury but disagreed with his rationale. The majority determined that McCready's injuries from the September 2005 fall constituted an unexplained fall, which it found compensable. Because the...