Mitchell v. Petsmart, Inc.

• Decision Date: 20 March 2009
• Docket Number: No. 99,528.,99,528.
• Citation: 203 P.3d 76
• Parties: Todd L. MITCHELL, Appellee/Cross-appellant, v. PETSMART, INC., Respondent/Cross-appellee, Royal & Sun Alliance Insurance Company, Appellee/Cross-appellee, and Travelers Property and Casualty Company of America, Appellant/Cross-appellee.
• Court: Kansas Court of Appeals

203 P.3d 76

Todd L. MITCHELL, Appellee/Cross-appellant, v. PETSMART, INC., Respondent/Cross-appellee Royal & Sun Alliance Insurance Company, Appellee/Cross-appellee, and Travelers Property and Casualty Company of America, Appellant/Cross-appellee.

No. 99,528.

Court of Appeals of Kansas.

March 20, 2009.

Brian R. Collignon and Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for respondent/cross-appellee, Petsmart, Inc., and appellant/cross-appellee Travelers Property and Casualty Company of America.

Michael L. Snider, of Snider & Stewart, L.L.C. of Wichita, for appellee/cross-appellant Todd L. Mitchell.

Terry J. Torline and Timothy A. Emerson, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for respondent/cross-appellee Petsmart, Inc., and appellee/cross-appellee Royal & Sun Alliance Insurance Company.

Before HILL, P.J., MALONE and CAPLINGER, JJ.

CAPLINGER, J.

Petsmart, Inc., and Travelers Property Casualty Company of America appeal the decision of the Workers Compensation Board (Board) claiming the Board erred in determining the date of accident for Mitchell's repetitive trauma injuries and assessing joint and several liability between Travelers and Royal & Sun Alliance Insurance Company for those injuries. Claimant Todd Mitchell cross-appeals, alleging the Board erred in combining the functional impairment ratings for his right and left arm injuries into one functional impairment rating and one scheduled injury for each arm. Mitchell also claims the Board erred in deducting his temporary total disability (TTD) benefits from the permanent partial disability (PPD) award for his right arm injury.

We conclude substantial competent evidence supports the Board's determination that Mitchell's subsequent repetitive trauma injuries resulted from a combination of overcompensation for his initial thumb injury and repetitive use of his upper extremities. Therefore, the Board did not err in determining the dates of accident for each of Mitchell's repetitive trauma injuries were separate and distinct from the date of accident for his initial thumb injury.

Further, on Mitchell's cross-appeal, we conclude the Board did not err in interpreting K.S.A. 44-510d to permit compensation at the highest level of injury when multiple injuries within a single extremity occur. And finally, we affirm the Board's deduction of the number of weeks of Mitchell's TTD from the maximum number of scheduled weeks of PPD in arriving at the total number of weeks of compensation under K.S.A. 44-510d.

Factual history

Mitchell worked for Petsmart from July 2002 until July 19, 2005. His duties included building store displays, assisting customers, and stocking merchandise, including 20-50 pound bags of dog food.

On December 31, 2003, Mitchell fell at work and broke his left thumb. He had surgery on January 7, 2004, and immediately returned to work with a cast on his left arm and restrictions against using his left thumb. Mitchell wore the cast for about 13 weeks but continued his regular duties at Petsmart, lifting primarily with his right arm.

Mitchell was released from all medical restrictions on April 5, 2004. Nevertheless, according to Mitchell, he continued to lift primarily with his right arm because of continued swelling and stiffness in his left arm. At Mitchell's attorney's request, Mitchell was examined by Dr. Pedro Murati in May 2004. Dr. Murati determined Mitchell sustained a 32% permanent impairment to his left hand.

By July 18, 2004, Mitchell began experiencing numbness in both hands and sharp pain in his right shoulder. At Petsmart's direction, Mitchell was seen by Dr. Mark Dobyns, who treated him with ibuprofen and cortisone shots, referred him for physical therapy, and restricted Mitchell's use of his right arm. Mitchell continued his regular duties at Petsmart, lifting primarily with his left arm.

Dr. Murati again examined Mitchell on October 18, 2004, and diagnosed probable right carpal tunnel syndrome, with pain into the right shoulder, and a right shoulder rotator cuff sprain or tear.

On October 20, 2004, Mitchell notified Petsmart of pain in his left arm and shoulder. In November 2004, Petsmart transferred Mitchell's treatment to Dr. Bernard Hearon, who diagnosed a superior labrum anterior to posterior (SLAP) lesion to Mitchell's right shoulder. Mitchell had surgery on his right shoulder on January 3, 2005, and remained off work for a few weeks thereafter. When Mitchell returned to work with restricted use of his right arm, he continued his regular duties primarily using his left arm and continued to experience pain in his left arm and shoulder.

In February 2005, Dr. Hearon diagnosed a SLAP lesion in Mitchell's left shoulder. In July 2005, Dr. Hearon diagnosed bilateral carpal tunnel syndrome, possible bilateral cubital tunnel syndrome, and probable right cubital tunnel syndrome.

Petsmart terminated Mitchell's employment for poor attendance on July 19, 2005. The last day Mitchell performed work at Petsmart was July 15, 2005.

Mitchell underwent right carpal tunnel release surgery on August 15, 2005, and was given a full medical release by Dr. Hearon on September 27, 2005.

Dr. Murati again examined Mitchell on December 21, 2005, and assigned the following permanent impairment ratings: Right upper extremity—36%; Left upper extremity—15%; and whole person—29%. According to Dr. Murati, Mitchell also had an 86% job task loss.

Procedural history

At the time of Mitchell's left thumb injury on December 31, 2003, Petsmart was insured by Royal & Sun Alliance Company (Royal). However, Travelers began insuring Petsmart on February 1, 2004. Mitchell filed a timely workers compensation claim against Petsmart and Royal in March 2004, listing December 31, 2003, as the date of accident and seeking recovery for injuries to his "hand, thumb, arm and all parts affected thereby." On October 25, 2004, Mitchell amended his original claim against Royal to indicate that the date of accident was December 31, 2003, "and aggravated thereafter," seeking recovery for injuries to his "thumb, bilateral hands, bilateral shoulders, arms and all body parts affected."

Mitchell also filed a separate claim against Royal on October 25, 2004, seeking recovery for injuries from "overuse at work" to his "bilateral hands, shoulders and all parts affected." Mitchell indicated these injuries occurred on July 18, 2004, and each day worked thereafter. Travelers was later named as the insurance carrier on this second claim, and the two claims were consolidated for litigation.

Dr. Pat Do, who was appointed by the administrative law judge (ALJ) to perform an independent medical examination, testified that Mitchell's repetitive trauma injuries "arose out of his left thumb injury," and assigned the following permanent impairment ratings: Left thumb—9%; Left hand— 4%; Left upper extremity—5%; Right upper extremity—13%; and whole person—10%.

Based on his May 2004 examination of Mitchell, Dr. Murati testified that Mitchell's left thumb and hand pain resulted from the thumb injury Mitchell sustained on December 31, 2003. However, based upon his October 2004 and December 2005 examinations, Dr. Murati testified Mitchell's repetitive trauma injuries resulted from a work-related injury occurring in July 2004.

The ALJ concluded: (1) Mitchell sustained a single, work-related injury on December 31, 2003, when he broke his left thumb; (2) Mitchell's subsequent repetitive trauma injuries were the natural and probable consequences of the thumb injury; (3) Travelers and Royal were jointly and severally liable for all of Mitchell's injuries; (4) Mitchell made a good faith effort to find other employment after Petsmart terminated his employment; and (5) Mitchell experienced a 20% whole body impairment, a 25% wage loss, and an 86% job task loss, resulting in a 55% work disability. The ALJ awarded Mitchell 228.25 weeks of PPD compensation at the rate of $373.95 per week for a total award of $85,354.09.

On review, the Board concluded Royal was solely responsible for costs and compensation for Mitchell's 44.5% impairment to his left thumb and that compensation was to be paid for his thumb as a scheduled injury under K.S.A. 44-510d. Regarding Mitchell's repetitive trauma injuries, however, the Board concluded that "the combination of claimant's work activities and his initial thumb injury resulted in claimant developing bilateral carpal tunnel syndrome, right elbow symptoms, and bilateral shoulder injuries." Therefore, the Board found Royal and Travelers jointly and severally liable for the medical treatment and the disability compensation relative to those injuries. Finally, the Board designated Mitchell's last day of work, July 15, 2005, as the date of accident for the repetitive trauma injuries.

A majority of the Board determined the repetitive injuries should be compensated as scheduled injuries under K.S.A. 44-510d and that Mitchell suffered a 24.5% impairment to the right upper extremity at the shoulder level and an 8% impairment to the left upper extremity at the shoulder level. Two board members dissented, concluding that "[b]ecause the fingers, hand, forearm, arm and shoulder are each contained within the schedule of K.S.A. 44-510d(a), claimant's disabilities must each be compensated according to the schedule at the level that corresponds to that injury, regardless of whether the injuries occurred separately, simultaneously or as a result of a natural progression."

Travelers appeals the Board's determination, arguing the Board erred in calculating the date of the accident for the repetitive trauma injuries to be July 15, 2005, and imposing joint and several liability for those injuries between Travelers and Royal based upon that error.

Mitchell cross-appeals, arguing the Board erred in combining the functional impairment ratings for his right and left arm injuries into one functional impairment rating and one...