Messner v. Continental Plastic Containers

298 P.3d 371, 48 Kan. App. 2d 731, 2013 WL 1278480, 2013 Kan. App. LEXIS 21
CourtCourt of Appeals of Kansas
DecidedMarch 29, 2013
DocketNo. 107,035
StatusPublished
Cited by9 cases

This text of 298 P.3d 371 (Messner v. Continental Plastic Containers) 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
Messner v. Continental Plastic Containers, 298 P.3d 371, 48 Kan. App. 2d 731, 2013 WL 1278480, 2013 Kan. App. LEXIS 21 (kanctapp 2013).

Opinion

McAnany, J.:

Continental Plastic Containers and its insurance carrier, American Home Assurance Company, appeal the decision of the Workers Compensation Board awarding claims to Carol Messner in two separate workers compensation cases.

In Messner’s first claim, Docket No. 253,153, Messner sought compensation for injuries she sustained as a result of a fall which occurred on July 18, 1999. Messner claimed that her disability increased from a functional impairment to a work disability when she left her employment with Continental. Thus, she sought an award of functional disability followed by an award of general disability, or work disability.

In her second claim, Docket No. 261,143, Messner alleged that she received additional injuries to her right shoulder from repetitive job duties she performed for Continental after returning to work following her fall.

On October 21, 2011, the Board determined that both of Mes-sner s alleged injuries were work related and awarded compensation for both claims.

[733]*733Continental raises three issues. First, Continental challenges the award of work disability in Docket No. 253,153, asserting that K.S.A. 44-510e(a) prohibits an award of work disability because Messner’s award for functional disability would have been paid in full before she became eligible for work disability upon leaving her employment. Continental relies on the language in K.S.A. 44-510e(a) that states: “The resulting award shall be paid for the number of disability weeks at the full payment rate until fully paid or modified.” We disagree with Continental’s analysis. The Board found that Messner showed an increase in disability during the 415-week benefit period provided for in K.S.A. 44-510e(a). Thus, the Board had the authority to enter a lump-sum award that provided benefits for Messner’s functional disability as well as her later work disability, both of which occurred as a result of her work related injury.

The remaining two issues relate to the Board’s award in Docket No. 261,143. First, Continental appeals the Board’s finding that Messner’s shoulder injury arose out of and in the course of her employment. Our examination of the record discloses substantial evidence to support this finding by the Board. Next, Continental claims the Board erred in awarding Messner temporary total disability (TTD) compensation from April 26, 2001, to December 13, 2002, because Messner’s list of work restrictions was not from an authorized treating physician. We agree with this contention. Mes-sner’s work restrictions that led to her leaving her employment were imposed by her personal chiropractor, not by an authorized treating physician. No authorized treating physician found that Messner experienced temporary total disability during the relevant time period as required by K.S.A. 44-510c(b)(2).

Factual and Procedural Background

The protracted factual and procedural history of this case extends from July 1999 to November 2011. We will provide a full narrative of the relevant events.

On July 18, 1999, Messner was working for Continental, a manufacturer of plastic bottles, as a factory line inspector when she tripped and fell. She landed on her left leg and hip, and her left [734]*734arm jammed into her ribs. She felt her neck snap and was in immediate pain. She attempted to finish her shift, but she left work before her shift was over.

Messner notified Continental of her injury, and she was sent to tire Shawnee Mission Urgent Care facility where she was diagnosed as having sustained contusions to her left arm, elbow, wrist, knee, and anide. Messner s pain persisted, and she was provided additional medical treatment and physical therapy. In addition to her work-related injuries, an MRI revealed that Messner had a preexisting degenerative disc disease.

On January 27, 2000, Continental sent Messner to Dr. Ira Fish-man, who examined Messner and found “mild residuals of cervical, thoracic, and lumbar strains, as well as contusions to her left upper and lower extremities.” Dr. Fishman referred Messner for a functional capacity evaluation (FCE) to determine whether she could meet the physical demands of her employment. After receiving tire results of the evaluation, Dr. Fishman gave a recommendation for Messner

“to return to work in die light physical demand category, with a maximum lifting of 15 pounds on an occasional basis, as well as performance of positional activities on an occasional basis, and standing and walking on a frequent basis. However, it was noted in the summary of this FCE that ‘based on self-limiting behaviors, demonstrated performance should be considered the minimum she is capable of functioning [at] the present time.’... Messner did self-limit on positional activities due to reported complaints of mid, upper, and lower back pain and therefore because of this self-limiting behavior, the actual functional assessment was not a true reflection of her full capabilities.”

Dr. Fishman opined that Messner had reached maximum medical improvement (MMI) and was not in need of further physical therapy treatments or medical intervention. Dr. Fishman believed that Messner’s soft tissue injuries would resolve with time and that she had not sustained any permanent partial impairments as a result of her fall. Dr. Fishman concluded:

“In terms of Ms. Messner’s return to work status, even with her identified self-limiting behavior on the [FCE], she is functioning quite close to her regular job duty physical demands. Since it has been identified on the FCE report that the results of this test may not be a true reflection of Ms. Messner’s actual physical capabilities due to her self-limiting behavior, it is my opinion at this time that Ms. [735]*735Messner can return to her regular job duties without restrictions. It is my impression that Ms. Messner is capable of tolerating light duty work and I am, therefore, releasing her to her regular job duties without restrictions, effective on Monday (February 14, 2000).”

On February 16, 2000, Messner returned to work without restrictions to her previous position of line inspector. Messner had been off work from July 18, 1999, until February 16, 2000. The parties have stipulated that Messner was paid TTD benefits for the weeks she was off work for these injuries.

Messner continued to experience pain and various other symptoms from her injury. She testified that she did not feel that she was physically ready to go back to work because “I just was still hurting too much and I just couldn’t do it.” She claimed she was unable to do her job because of pain “from my shoulders and my neck and down through my right shoulder and my upper back, then right on down into my hip area, and then I still had the problems with the left thigh and down into the left knee.” She claimed she was unable to do “the pulling or the pushing and the squatting and bending” required of a line inspector.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jennings v. T Rowe Pipe
Court of Appeals of Kansas, 2020
Rickson v. Kerns Construction
Court of Appeals of Kansas, 2020
Munoz v. Southwest Medical Center
Court of Appeals of Kansas, 2020
Johnson v. Stormont Vail Healthcare
Court of Appeals of Kansas, 2019
In re Estate of Mouchague
442 P.3d 125 (Court of Appeals of Kansas, 2019)
Anderson v. Par Elec. Contractors, Inc.
430 P.3d 493 (Court of Appeals of Kansas, 2018)
Anderson v. PAR Electrical Contractors, Inc.
Court of Appeals of Kansas, 2018
Jones v. U.S.D. No. 259
Court of Appeals of Kansas, 2018
Eder v. Hendrick Toyota
Court of Appeals of Kansas, 2016
Bustamante v. National Beef Packing Co.
Court of Appeals of Kansas, 2016
Karr v. Mid Central Contractors
Court of Appeals of Kansas, 2015
Wimp v. American Highway Technology
360 P.3d 1100 (Court of Appeals of Kansas, 2015)
Moore v. Venture Corp. & Travelers Indemnity Co.
343 P.3d 114 (Court of Appeals of Kansas, 2015)
Messner v. Continental Plastic Containers
297 Kan. 1246 (Supreme Court of Kansas, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
298 P.3d 371, 48 Kan. App. 2d 731, 2013 WL 1278480, 2013 Kan. App. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/messner-v-continental-plastic-containers-kanctapp-2013.