Fletcher v. U.S.D. No. 229

165 P.3d 1071, 38 Kan. App. 2d 388, 2007 Kan. App. LEXIS 917
CourtCourt of Appeals of Kansas
DecidedAugust 31, 2007
DocketNo. 97,519
StatusPublished

This text of 165 P.3d 1071 (Fletcher v. U.S.D. No. 229) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fletcher v. U.S.D. No. 229, 165 P.3d 1071, 38 Kan. App. 2d 388, 2007 Kan. App. LEXIS 917 (kanctapp 2007).

Opinion

McAnany, J.:

This appeal centers on the issue of who will pay for Mary Ann Fletcher’s work-related injuries: her employer who became self-insured on July 1,2004, or her employer’s insurer who provided workers compensation coverage prior to that date.

Fletcher worked as a custodian for the Blue Valley School District where her job duties included waxing, buffing, mopping and stripping floors; removing tables and desks; cleaning; and other building maintenance. She regularly used vibrating equipment, such as scrubbing and buffing machines, to accomplish these tasks. [389]*389She began experiencing tingling in her hands in 1998 or 1999, reported it to her supervisor, and sought medical treatment on her own.

In May 2000, Blue Valley referred Fletcher to Dr. John B. Moore, who ultimately performed cubital tunnel release surgery on her elbows. He repaired her right elbow in December 2002 and performed the same surgery on her left elbow the following month. He released her to return to work without restrictions in April 2003. A few months later, Fletcher again experienced tingling, numbness, and related complaints in her hands. She was again examined by Moore, who diagnosed her with carpal tunnel syndrome.

In June 2003, Dr. Edward J. Prostic examined Fletcher and opined that Fletcher’s injuries were caused by her custodial work. He rated her as having a 15% functional impairment to the body as a whole.

On November 3, 2003, Moore performed bilateral carpal tunnel releases on both of Fletcher’s wrists. He released her to return to work with restrictions on April 2, 2004. Moore rated Fletcher as having a 9% whole person functional impairment, noting that Fletcher’s rating would have been 17% but was reduced because her grip strength tests indicated symptom magnification in half the tests.

Her restrictions were lifted and she returned to her regular work duties, causing her again to experience pain in her wrists, for which she received injections by a hand specialist, Dr. Michael Hall. She was again examined by Prostic who opined that she suffered additional injury and increased impairment, resulting in an increased rating of 20% whole person functional impairment.

On July 1, 2004, Blue Valley became self-insured with respect to workers compensation claims. Prior to this time Blue Valley had coverage through the Kansas Association of School Boards Workers Compensation Fund.

Fletcher continued to work with ongoing symptoms until February 8, 2005, her last day of employment. The following day she injured her lower back in an automobile accident which prevented her from returning to work.

[390]*390At the regular hearing in December 2005, the ALJ found that Fletcher’s date of accident was the last day of employment, February 8, 2005, and that her permanent functional impairment was 14.5% to the body as a whole. Blue Valley’s insurer paid Fletcher’s authorized medical expenses to June 30, 2004, the end date for insurance coverage, along with temporary total disability benefits due up to that date. Self-insured Blue Valley was ordered to pay all authorized medical expenses thereafter, together with permanent partial disability benefits based upon 14.5% impairment to the body as a whole.

Upon review, the Workers Compensation Board found that Moore improperly reduced his rating of Fletchers’s impairment from 17% to 9% based on alleged symptom magnification. Thus, based on Moore’s unadjusted rating of 17% and Prostic’s rating of 20%, the Board found that Fletcher suffered an 18.5% whole person functional impairment. The Board confirmed that the last-day-worked rule applied.

Blue Valley appeals.

Last-Day-Worked Rule

Blue Valley claims the Board erred in applying the bright-line last-day-worked rule in Treaster v. Dillon Companies, Inc., 267 Kan. 610, 987 P.2d 325 (1999), to determine Fletcher’s date of injury. It argues that since Fletcher ended her employment due to an unrelated auto accident and not due to pain and disability resulting from her carpal tunnel syndrome, her date of accident was prior to July 1, 2004, when Blue Valley had insurance coverage.

Our review of decisions by the Workers Compensation Board under the provisions of the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., see K.S.A. 2006 Supp. 44-556(a), is limited to determining whether the Board erroneously interpreted or applied the, law, and whether the Board’s decision is supported by substantial competent evidence in light of the whole record or is unreasonable, arbitrary, or capricious.

The bright-line last-day-worked rule, which Blue Valley claims does not apply, is used to establish the date of injury for a repetí[391]*391tíve, microtraumatic injury such as carpal tunnel syndrome. Under the rule, the date of injury is the last day worked. See Kimbrough v. University of Kansas Med. Center, 276 Kan. 853, 855, 79 P.3d 1289 (2003). The rule was established in Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 229-30, 855 P.2d 1261 (1994), and approved of by our Supreme Court in Treaster, 267 Kan. at 623-24. In Treaster, our Supreme Court stated:

“We do not limit Berry to only situations where the claimant could no longer continue his or her employment because of medical conditions. The expected result of Berry was for workers to be allowed the latest possible date for their claim period to begin, not for claimants and respondents to try to pick a date of accident or occurrence that best serves their financial purposes.” 267 Kan. at 623.

Blue Valley argues that Condon v. Boeing Co., 21 Kan. App. 2d 580, 903 P.2d 775 (1995), applies, not Treaster. In Condon, the court recognized an exception to the bright-line rule in Berry when the claimant, who suffered from injuries caused by microtraumas, was laid off in a general layoff. Our court held that because the cessation of employment was not due to a medical condition, the date of injury was not always the last day worked. However, in Treaster, our Supreme Court analyzed Condon as follows:

“This retreat from Berry’s bright line rule appears to be largely fact driven, as the opinion holds there was substantial competent evidence to uphold the Board’s decision that restrictions placed on Condon had occurred by June 15,1993, and work subsequent to July 1 would not have significantly contributed to her condition when she was laid off for reasons not related to her medical condition on July 6, 1993.
“. . . With the Board’s decision being upheld only because it was supported by substantial competent evidence, Condon should be limited to its facts and not used to erode Berry’s authority.
“To the extent we have stated herein, the logic and results of Condon . . . are disapproved.”

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Related

Durham v. Cessna Aircraft Co.
945 P.2d 8 (Court of Appeals of Kansas, 1997)
Treaster v. Dillon Companies, Inc.
987 P.2d 325 (Supreme Court of Kansas, 1999)
Kimbrough v. University of Kansas Medical Center
79 P.3d 1289 (Supreme Court of Kansas, 2003)
Condon v. Boeing Co.
903 P.2d 775 (Court of Appeals of Kansas, 1995)
Berry v. Boeing Military Airplanes
885 P.2d 1261 (Court of Appeals of Kansas, 1994)
Neal v. Hy-Vee, Inc.
81 P.3d 425 (Supreme Court of Kansas, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
165 P.3d 1071, 38 Kan. App. 2d 388, 2007 Kan. App. LEXIS 917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fletcher-v-usd-no-229-kanctapp-2007.