Poff v. IBP, Inc., 92,020.

• Decision Date: 11 March 2005
• Docket Number: No. 92,020.,92,020.
• Citation: 106 P.3d 1152,33 Kan.App.2d 700
• Parties: DICK L. POFF, Appellant/Cross-appellee, v. IBP, INC., Appellee/Cross-appellant.
• Court: Kansas Court of Appeals

33 Kan.App.2d 700

106 P.3d 1152

DICK L. POFF, Appellant/Cross-appellee, v. IBP, INC., Appellee/Cross-appellant.

No. 92,020.

Court of Appeals of Kansas.

Opinion filed March 11, 2005.

Steven M. Tilton, of Tilton & Tilton, Chtd., of Topeka, for the appellant/cross-appellee.

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

Before GREEN, P.J., PIERRON and McANANY, JJ.

PIERRON, J.:

Dick L. Poff appeals the order of the Workers Compensation Board (Board) concerning compensation paid as a result of multiple injuries during his employment at IBP, Inc. Poff argues the Board erred in separating each of his claims and should have considered the cumulative effect of all injuries. He contends the Board erred in finding that he was not permanently and totally disabled and that his claim for work-related hearing loss was untimely. IBP cross-appeals the Board's decision that Poff's varicose vein condition was work related. We affirm.

Poff worked at IBP for 31 years starting in 1970. He began developing carpal tunnel injuries in his hands from trimming cow heads with a knife. While doing this job, he performed work above shoulder level and was on his feet for an 8-hour shift, or longer if he worked overtime. The pain in Poff's fingers, wrists, and shoulders culminated in a carpal tunnel surgery performed by Dr. Bernard Hearon in October and November of 1997. Dr. Hearon released Poff to return to work in February 1998, and he was given an accommodated light duty job of washing, trimming, and cooking intestines which did not require the use of knives. Poff performed light duty jobs for the next 2 to 3 years. Poff testified that he no longer had to use knives, but he had to lift heavy baskets of intestines into the cookers. This job also required him to be on his feet for the entire shift.

Poff first sought medical attention for his varicose veins in April 1999. He testified that the pain in his legs from standing all day and from lifting the baskets of intestines was at an excruciating level. On his own, due to alleged inattention by the IBP nursing staff, Poff sought treatment from Dr. Joseph Bosiljevac, a vascular surgeon. Dr. Bosiljevac diagnosed Poff with varicose veins and recommended he undergo stripping of the worst veins in both legs. Dr. Bosiljevac performed the stripping procedure and took Poff off work from August 10, 1999, until September 13, 1999. Dr. Bosiljevac prescribed Jobst stockings for support, and on October 20, 1999, Poff was given full release with a limitation of standing no more that 4 to 6 hours per day or alternating sitting and standing for an 8-hour day.

IBP had previously attempted to accommodate Poff's varicose vein condition before his visit to Dr. Bosiljevac by assigning him to a light, sit down job of "washing tails." We are informed that the job is precisely what it says. Poff performed this job until he quit IBP in 2000. The job of washing tails was a sitting job that required Poff to twist to his right, pick up the tail, wash it under high pressure, and then put it in a tub on his left. Poff testified the stool he sat on to wash tails was too tall and his feet would dangle because they could not reach the floor. He said IBP gave him an appropriate stool once in a while but someone would take it because IBP was always short on stools.

Poff testified that he first experienced low back pain when he was lifting the baskets of intestines and the pain did not subside when he began washing tails. Poff had therapy and chiropractic work performed on his back.

Poff quit his job at IBP effective June 29, 2000. He testified the pain in his legs, arms, shoulders, and hands was too much. The day before he quit, Poff requested a hearing examination be performed by the medical staff at IBP. Poff testified he wanted a record of his hearing when he left IBP.

Poff filed four separate workers compensation claims. The Administrative Law Judge (ALJ) awarded compensation to Poff on three of the claims, but denied compensation on Poff's claim for hearing loss damage. In claim No. 233,909, the ALJ found a 6% functional impairment for Poff's bilateral carpal tunnel syndrome and awarded benefits. In claim No. 247,591, the ALJ found Poff's varicose vein condition was compensable and determined that he had a 4% functional impairment. In claim No. 250,093, the ALJ found a 5% functional impairment for Poff's injuries to his lower back. In claim No. 270,756, the ALJ determined that Poff failed to give timely notice of his workplace accident concerning his hearing loss and therefore was not entitled to benefits for hearing loss. The Board affirmed the ALJ's decision and rationale in all four cases, except it modified the functional impairment for Poff's varicose vein condition to 8% permanent partial whole person functional impairment and modified the functional impairment for Poff's carpal tunnel syndrome to 12% permanent partial whole person functional impairment.

Poff appeals, claiming he is totally disabled when considering all his injuries together and that his claim for hearing loss was timely filed. IBP cross-appeals the Board's decision to grant benefits for Poff's varicose vein condition. Poff first argues the Board erred in affirming the ALJ's entry of four separate awards for his injuries. He contends the ALJ should have considered the cumulative effect of all injuries and vocational factors and rendered one award.

Poff filed applications for hearing in four separate cases (carpal tunnel on May 26, 1998; varicose veins on September 2, 1999; back injury on November 12, 1999; hearing loss on October 11, 2001). A prehearing settlement conference was held on all four docketed claims at the same time. The regular hearing on all four cases occurred at the same time as well. Before taking any testimony at the regular hearing, the ALJ separately stated the stipulations and issues for resolution in each of the four docket cases. The ALJ then informed the parties:

"Okay. Now, as a matter of procedure, we're going to go down docket by docket and we'll need to address each issue and each docket as we go through. When you are through with the evidence in one docket, we'll close that record and then we will proceed to the next docket. These are all apparently separate or alleged separate injuries, so we'll need to address each issue individually as we go through each docket individually as we go through. Is that clear?"

Poff did not object to the procedure laid out by the ALJ, nor did he ask for any clarification concerning the rendering of one award. IBP points out that Poff even filed a submission letter after the regular hearing which addressed each of the four claims separately and which contained no request for consolidating claims and no request to consider permanent total disability based on all claims cumulatively. Poff raised the argument of a single award to the Board. The Board rejected Poff's claim based on his actions before the ALJ and his failure to object: "No objection was made to this procedure nor was there any request to consolidate the claims for entry of a single award. The Board finds that each claim must be determined on its own merits separate from the other filed claims."

Poff claims the ALJ's failure to find a single award of permanent total disability was unreasonable and not an impartial application of the workers compensation laws as required by K.S.A. 2004 Supp. 44-523(a) (ALJ shall act reasonably without partiality). Poff also argues that due to the ALJ's conduct at the preliminary hearing and the ordering of one independent medical exam for all claims, "it would have been unusual and extraordinary for Claimant to object to the ALJ's procedure at the regular hearing."

In the workers compensation system, the ALJ is not bound by the technical rules of procedure, but is required to ensure that all parties are essentially provided due process. K.S.A. 2004 Supp. 44-523(a). IBP states that here the ALJ fully complied with his obligations to both parties in receiving evidence, setting terminal dates, setting out procedures for trial, and in rendering separate awards on separate claims for compensation. We agree. Consolidation of cases in general civil practice is at the discretion of the trial judge. See K.S.A. 60-242(a); Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 131, 671 P.2d 511 (1983). "Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. [Citations omitted.]" Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002). We find no abuse of discretion in the ALJ's decision to issue four separate awards.

Poff next argues substantial evidence proves that his work-related injuries render him incapable of performing even a sedentary sit/stand option job for 8 hours a day. He contends that he is permanently and totally disabled as a result of his varicose vein condition.

Since the 1993 amendments to the Workers Compensation Act, the Board has authority to review the decision by the ALJ on questions of law and fact. The Board's decision is then appealable to the Court of Appeals, where review is limited to questions of law in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Whether the Board's findings of fact are supported by substantial competent evidence is a question of law. Webber v. Automotive Controls Corp., 272 Kan. 700, 703-04, 35 P.3d 788 (2001). Substantial evidence in workers compensation cases 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 raised can be reasonably resolved. The appellate court reviews the evidence in the...