CHAPTER IV.
INJURIES FOR WHICH COMPENSATION CAN BE PAID |
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§ 4.01 Generally
- August 1998. (Award) In workers compensation proceedings, the law in effect at the time of the injury governs the
rights and obligation of the parties. See Osborn v. Electric Corp. of Kansas City, 23 Kan. App.2d 868, 936 P.2d
297, rev. denied 262 Kan. (1997). Johnson v. Salem Hospital, Inc and Liberty Mutual Insurance Company and
Kansas Workers Compensation Fund, Docket No. 203,646. [Dismissed by unpublished Court of Appeals opinion,
Docket No. 82,030, December 23, 1999.]
- July 1998. (Ph) Accidental injury arising out of and in the course of employment found where claimant alleged her
working activities of pushing a cart caused her to become symptomatic in her left arm, shoulder, neck and back of
the head and worsened over a 17-18 day period before she left her employment. No evidence was presented to show
claimant's pain originated from any other source. Mulvihill v. Stormont-Vail Regional Medical Center, Docket No.
216,062.
- December 1997. (Award) Whether an accident arises out of and in the course of the employment depends upon the
facts peculiar to that case. See Discussion in, Guhr, Deceased v. Mennonite Bethesda Society, Inc. d/b/a Bethesda
Home and Kansas Association of Homes for the Aging Insurance Group, Inc. and Kansas Workers Compensation
Fund, Docket No. 210,727.
- See Also, Schultz v. Big A Auto Parts, Inc. and Travelers Insurance Company, Docket Nos. 217,859 & 222,319
(June 1997); and McKinney vs. We-Mac Manufacturing Co., Inc.and Firemans Fund Insurance Company, Docket
No. 250,697 (October 2000)..
- September 1997. (Ph) Before a worker is entitled to workers compensation benefits, the worker must prove he/she
suffered a personal injury by accident that arose out of and in the course of the employment. See K.S.A. 44-501(a).
The two phrases "arising out of" and "in the course of" have two separate meanings and each condition must exist
before compensation is allowable. See Siebert v. Hoch, 199 Kan. 299, 428 P.2d 825 (1996). Taylor v. The Boeing
Company and Kemper Insurance, Docket No. 220,374.
- See Also, Lambert. v. Norcraft Companies, Inc. and Travelers Indemnity Company, Docket No. 219,236 (March
1997).
4.01a Definition of Injury
- May 1998. (Award) When defining the word "injury," Larson in 3 Larson's Workers Compensation Law, § 42.11,
7-804 (1997), found the best definition to be that provided in the Massachusetts opinion of Burn's Case, 218 Mass.
8, 105 N.E. 601, 603 (1914). Larson's noted that the Massachusetts opinion defined injury very broadly. However,
even that broad definition did not encompass normal wear and tear injuries. In defining the word "injury", the
Massachusetts court stated: "To be compensable the harm must arise either from a specific incident or series of
incidents at work, or from an identifiable condition that is not common and necessary to all or a great many
occupations. The injury need not be unique to the trade, and need not, of course, result from the fault of the
employer. But it must, in some sense we have described, be identified with the employment. Corbett v. Schwan's
Sales Enterprises and Liberty Mutual Insurance Company, Docket No. 216,787. [Reversed by unpublished Court of
Appeals opinion, Docket No. 81,349, December 10, 1999.]
4.01b Natural Aging Process
- July 1998. (Ph) Despite claimant's substantial pre-existing conditions, the Appeals Board does not find claimant's
arm, shoulder, back and neck injuries were caused by the natural aging process or the normal activities of day-to-day
living as defined in K.S.A. 1996 Supp. 44-508(e), where it is shown that claimant's work aggravated these
conditions. Mulvihill v. Stormont-Vail Regional Medical Center, Docket No. 216,062.
- March 1997. (Award) Claimant sustained a work related injury resulting in a fractured rib while helping lift one of
respondent's patients from a toilet to a wheelchair. Although claimant argued the injury caused permanent
aggravation to claimant's ongoing osteoporosis, the Appeals Board agreed with the findings of the Administrative
Law Judge that claimant had failed to prove her ongoing back complaints were a consequence of the work-related
accident rather than the ongoing osteoporosis disease process combined with the normal effects of aging. Claimant
was therefore limited to an award of permanent partial disability benefits based upon the stipulated 10 percent
functional impairment rating. Gibson v. Trego County Hospital and Farm Bureau Insurance, Docket No. 205,027.
- March 1997. (Ph) For preliminary hearing purposes, the Appeals Board rejects respondent's argument that
claimant's herniated disc and subsequent surgery was caused by the natural aging process which is not a
compensable injury covered by the Act. See K.S.A. 1995 Supp. 44-508(e). Instead, the Board finds claimant's
suffered a back injury while performing daily work activities for respondent. Daniels v. Hubbard Milling Company
and Zurich Insurance Company, Docket No. 214,813.
- November 1996. (Award) Claimant's ongoing knee symptomatology is found to be the result of previous injuries
and the natural aging and disease processes rather than the alleged accidental injury. Allison v. Goodland Tire Inc
and Federated Mutual Insurance and Workers Compensation Fund, Docket No. 170,742.
4.01c Day-to-Day Living Activities
- November 1999. (Ph) Board considered definition of injury in K.S.A. 44-508(e) and found injury at work while
pulling chair to her desk after sitting down was a compensable injury and not one of the "activities of day-to-day
living." Turley v. State of Kansas, Docket No. 247,457.
- See Also, Wonsetler v. King Louie International, Inc., Docket No. 247, 773 (March 2000) (Ph).
- May 1999. (Ph). Claimant, a truck driver, felt and heard a pop in his knee when he exited his truck by jumping
down from his seat onto the ground. After exiting his truck and as he was walking toward the fast food restaurant,
claimant stepped in snow at a median at which time his knee twisted and separated; he experienced an onset of
severe pain. The timing --ie. claimant being on the clock-- and circumstances --going to eat lunch and checking his
load -- were found to be for the benefit of the respondent. Therefore, the injury did arise out of and in the course of
his employment and is compensable. Wheeler v. Bottorff Construction Co. and Federated Mutual Insurance Co.,
Docket No. 241,477.
- ----- Claimant's knee injury caused by jumping out of a truck and walking to a fast food restaurant found not to be
an activity of daily living so as to exclude the injury from the definition of "personal injury" under K.S.A. 44-508(c),
where it was determined that claimant's preexisting knee condition was aggravated by the work-related event of
jumping down out of his truck. Id.
- ----- When the injury is from a combination of the preexisting condition and from a hazard of the employment, the
injury should be treated as compensable. Id.
- October 1998. (Ph) Claimant was injured walking down steps at work. Respondent argued the accident did not
arise out of the employment but was a personal risk to claimant due to claimant's obesity. Respondent also argued
the accident was a result of the normal day-to-day living activities associated with walking and therefore was not a
personal injury by accident as defined by K.S.A. 44-508(e). The Board finds the accident was work related. K.S.A.
44-508(e) does not preclude accidents that are the result of normal activities of day-to-day living, it excludes
"disabilities." Here, there is no showing that claimant's disability was not due to the accident at work. The
evidence established that the disability was directly related to employment. Ricks v. Connect Care and New York
Underwriters Ins. Co, Docket No. 233,090.
- September 1998. (Ph) Claimant's back injury resulted as he was untying his bootlaces. There was no physical
demand placed upon claimant's back other than the simple act of untying the boot. The Appeals Board finds that
the act of untying one's bootlace would be considered an act of day-to-day living, precluding benefits under K.S.A.
1997 Supp. 44-508(e). Slothower v. Exide Corporation and Zurich American Insurance Group, Docket No.
233,775.
- July 1998. (Ph) Despite claimant's substantial pre-existing conditions, the Appeals Board does not find claimant's
arm, shoulder, back and neck injuries were caused by the natural aging process or the normal activities of day-to-day
living as defined in K.S.A. 1996 Supp. 44-508(e), where it is shown that claimant's work aggravated these
conditions. Mulvihill v. Stormont-Vail Regional Medical Center, Docket No. 216,062.
- May 1998. (Award) Claimant was employed as a truck driver for respondent. Claimant was involved in team
driving which meant claimant and another driver took turns driving and sleeping. Although not required or
furnished by respondent, claimant regularly wore cowboy boots when driving the truck. Claimant's injury to his
back occurred when he pulled on his boots after he had finished sleeping in the truck's sleeper cab. The Appeals
Board found the act of pulling on his boots constituted a work-related accident which arose out of and in the course
of claimant's employment, since the acts of removing his boots to sleep and putting his boots on to drive were work-related activities. In this case, the determination of whether claimant's accident and injury arose out of his
employment leads to a consideration of the language in K.S.A. 44-508(e). That statute defines "personal injury" and
"injury" to exclude "disabilities" resulting from the "normal activities of day-to-day living." The Board found
claimant's disability was caused by his work-related accident that occurred during the act of pulling on his boots; the
Board, however, did not find claimant's disability to be caused by the normal activities of day-to-day living. The
Board further found claimant's injury resulted from the single traumatic event associated with pulling on his boots
and not from any preexisting degenerative conditions. Corbett v. Schwan's Sales Enterprises and Liberty Mutual
Insurance Company, Docket No. 216,787. [Reversed by unpublished Court of Appeals opinion, Docket No. 81,349,
December 10, 1999.]
- ----- K.S.A. 44-508(e) does not exclude "accidents" that are the result of normal activities of day-to-day living, but
instead it excludes "disabilities." Id.
- ----- But See, Dissent, the Dissenting Board Member notes that claimant's activities encompassed the mere act of
pulling on his boots which is not a significant physical activity unless coupled with a previously injured back.
Further, the Board Member found the risk associated with pulling on one's cowboy boots to be a personal matter
which does not arise out of and in the course of one's employment. Id.
- December 1997. (Ph) The Appeals Board finds claimant's activity of injuring his low back while exiting a pick up
truck did not constitute a "normal activity of day-to-day living" so as to exclude claimant from benefits under
K.S.A. 44-508(e), as amended. The Board feels the legislature intended to codify and strengthen the holdings in
Boeckmann v. Goodyear Tire & Rubber Co., 210 Kan. 733, 504 P.2d 625 (1972) and Martin v. W.S.D. No. 233, 5
Kan. App.2d 298. 615 P.2d 168 (1980), by enacting K.S.A. 44-508(e), and that claimant's injury in this case is
distinguishable from the preceding cases. McConnell v. Farmland Industries, Inc. and Wausau Underwriters
Insurance Company, Docket No. 227,052.
- December 1997. (Ph) Claimant, a waste truck driver, injured his neck when he quickly turned his head to align the
truck with the dumpster and felt a pop. Respondent cites Martin v. U.S.D. No. 233, 5 Kan. App.2d 298, 615 P.2d
168 (1980), for the proposition that claimant's injury was associated with a risk personal to claimant. The Appeals
Board, however, finds the physical gyrations required by claimant's job make the scenario different than that found
in Martin. The twisting required in this job is found to be more severe and more extreme than that which would be
required in normal daily living. The Administrative Law Judge's Order granting temporary total disability and
medical treatment is affirmed. Martel v. Waste Management of Wichita and Continental Casualty Company, Docket
No. 227,477.
- June 1997. (Ph) While on a thirty-minute lunch break at work, claimant injured her knee when she bent over to
pick up some change which had fallen by the pop machine. For preliminary hearing purposes, the Appeals Board
found claimant's accident arose out of and in the course of her employment with the respondent, as the accident
occurred during her lunch break, which was incidental to claimant's employment and on the employer's premises.
Further, respondent's argument that claimant's injury occurred as a result of normal day-to-day activities is
misplaced. The Appeals Board has previously interpreted K.S.A. 1996 Supp. 44-508(e) to be a codification of
Boeckmann v. Goodyear Tire & Rubber Co., 210 Kan. 733, 504 P.2d 625 (1972), which holds injuries caused by
"everyday bodily motions" which "gradually erode the physical fibers" are not compensable when it is clear any
movement on or off the job would cause the injury regardless of the worker's activities. Claimant's accident,
however, occurred as a sudden traumatic event, and therefore, her injury is distinguishable from that contemplated
and precluded by K.S.A. 1996 Supp. 44-508(e). Longoria v. Wesley Rehabilitation Hospital and Horizon
Healthcare Corporation, Docket No. 220,244.
- March 1997. (Ph) Claimant injured her knee while walking from one building to another at work. Claimant turned
to go between two pallets, felt a little twist in her knee and then felt pain. The Appeals Board finds the facts and
circumstances surrounding claimant's injury do not remove it from "the normal activities of day-to-day living" as set
forth in K.S.A. 1996 Supp. 44-508(e). Therefore, the Appeals Board finds claimant has not met her burden of
proving she sustained a personal injury arising out of and in the course of her employment. Lambert v. Norcraft
Companies, Inc. and Travelers Indemnity Company, Docket No. 219,236.
- August 1994. (Award) Injury to claimant's low back which occurred as she bent over to pick up a piece of trash off
the floor considered to be an injury arising out of an in the course of employment and 1993 amendments which
added language indicating that disability from "natural aging process or the normal activities of day-to-day living."
considered codification of Boeckmann v. Goodyear Tire & Rubber Co.,210 Kan. 733, 504 P.2d 625 (1972). Munoz
v. Frito Lay, Docket No. 183,437.
4.02 Injuries Occurring Within the Course of the Employment (See Also § 15.32, this Index)
4.03 Generally
- April 1999. (Ph) Claimant fell and injured herself after picking up her paycheck at her supervisor's office. At the
time of the accident, claimant was not on duty nor was the plant where she worked open for business. However, due
to the Christmas holiday and the fact that claimant and other employees were not able to pick up their checks on
their last day of employment before the holidays -- since the checks had not yet been cut -- claimant's supervisor
decided to call and notify claimant and the other employees that they could pick up their checks at his office on
December 24. The ALJ found the injury compensable and the Appeals Board affirmed, finding the accident did
arise out of and within the course of claimant's employment, since picking up her paycheck was sufficiently related
to claimant's employment and because the accident occurred on respondent's premises. Palmer v. Lindberg Heat
Treating-Batson and Insurance Co. State of Pennsylvania, Docket No. 242,111.
- November 1998. (Ph) Claimant and a co-worker were in an altercation which resulted in claimant being injured.
Respondent argues the altercation did not occur in the course of claimant's employment, as he had been released
from work by the employer he was serving as a temporary for. However, claimant was still on this temporary
employer's premises when the altercation occurred. Additionally, claimant continued in the employ of respondent,
the temporary service, at the time of the altercation. Therefore, the Appeals Board finds that claimant's injury did
arise "in the course of" his employment with respondent. Adams v. Smith Temporary Services and Legion
Insurance Company, Docket No. 230,849.
- December 1997. (Ph) The phrase "in the course of" employment relates to the time, place and circumstances under
which the accident occurred and means the injury happened while the worker was at work in his/her employer's
service. See Hormann v. New Hampshire Insurance Company, 236 Kan. 190, 689 P.2d 837 (1984). Timmons v.
Western Resources, Docket No. 227,781.
- See Also, Gonzales v. Allied, Inc and Maryland Casualty Company, Docket No. 233,046 (June 1998) and Johnson
vs. Hallmark Cards, Inc., Docket Nos. 258,253 & 258,254 (December 2000)..
4.04 Injuries Suffered During Civic, Social, Recreational & Company-Sponsored Events
- February 1998. (Award) K.S.A. 44-508(f) precludes recovery of workers compensation benefits when the injury
occurs while the employee is "engaged in recreational or social events under circumstances where the employee was
under no duty to attend and where the injury did not result from the performance of tasks related to the employee's
normal job duties or as specifically instructed to be performed by the employer." Where claimant, a firefighter for
the city of Junction City, was injured while playing volleyball during a scheduled time for physical fitness on the
employer's premises, the Appeals Board finds the provisions of K.S.A. 44-508(f) do not bar workers compensation
benefits. The Board finds claimant's injury did not occur during a recreational or social event but during a regularly
scheduled time for physical fitness, of which volleyball was the type of fitness engaged in. Further, even if
volleyball was a recreational activity, the Board nevertheless finds the statute does not bar recovery as claimant's
injury occurred while he was performing tasks related to his normal job duties, ie. maintaining his physical fitness.
Flower v. City of Junction City and Kansas Eastern Region Insurance Trust, Docket No. 189,684 [Affirmed by
unpublished Court of Appeals opinion, Docket No. 80,801].
- December 1997. (Ph) Claimant was injured when she tripped and fell while walking on a public ramp during her
break to purchase Rolaids. Despite claimant's arguments that the walk was a part of a wellness program whereby
her employer encouraged employees to get out on their breaks and walk, the Appeals Board finds claimant failed to
prove accidental injury arising out of and within the course of her employment. The Appeals Board finds claimant's
purpose for the walk was to obtain Rolaids and not to participate in the employer's wellness program. Timmons v.
Western Resources, Docket No. 227,781.
4.05 Injuries Suffered During Coffee and Lunch Breaks
- October 1999. (Ph) Injury which occurred during smoke break in area designated by employer arose out of and in
the course of claimant's employment. Wallace v. Sitel of North America, Docket No. 242,034.
- November 1998. (Ph) Injury suffered when claimant fell down the stairs outside respondent's offices during his
lunch break found noncompensable as the premises exception to the going and coming rule did not apply since
respondent in no way controlled this common area outside the building. Curless v. Southern Education Council and
United States Fidelity & Guaranty Co, Docket No. 233,051.
- February 1998. (Award) Claimant was injured when a chair she was sitting on at an ice cream parlor in the
Wichita Airport Terminal broke. The Appeals Board found claimant was on break when the accident occurred and
was on call during that break as evidenced by the fact claimant carried a beeper and could be disciplined for not
responding to emergency clean-up situations during her break. Claimant was also required to remain at the airport
terminal during her break. As such, the Appeals Board agreed with the Administrative Law Judge that the injury
arose out of and in the course of claimant's employment. It arose in the course of the employment because it was a
paid break. It arose out of the employment in that the break activity and its location were in part for the benefit of
the employer. See Larson's Workers' Compensation Law § 15.54, 4-181 (1997). Vaughn v. City of Wichita and
Kansas Workers Compensation Fund, Docket No. 184,562.
- December 1997. (Ph) Claimant was injured when she tripped and fell while walking on a public ramp during her
break to purchase Rolaids. Despite claimant's arguments that the walk was a part of a wellness program whereby
her employer encouraged employees to get out on their breaks and walk, the Appeals Board finds claimant failed to
prove accidental injury arising out of and within the course of her employment. The Appeals Board finds claimant's
purpose for the walk was to obtain Rolaids and not to participate in the employer's wellness program. Timmons v.
Western Resources, Docket No. 227,781.
- June 1997. (Ph) While on a thirty-minute lunch break at work, claimant injured her knee when she bent over to
pick up some change which had fallen by the pop machine. For preliminary hearing purposes, the Appeals Board
found claimant's accident arose out of and in the course of her employment with the respondent, as the accident
occurred during her lunch break, which was incidental to claimant's employment and on the employer's premises.
Further, respondent's argument that claimant's injury occurred as a result of normal day-to-day activities is
misplaced. The Appeals Board has previously interpreted K.S.A. 1996 Supp. 44-508(e) to be a codification of
Boeckmann v. Goodyear Tire & Rubber Co., 210 Kan. 733, 504 P.2d 625 (1972), which holds injuries caused by
"everyday bodily motions" which "gradually erode the physical fibers" are not compensable when it is clear any
movement on or off the job would cause the injury regardless of the worker's activities. Claimant's accident,
however, occurred as a sudden traumatic event, and therefore, her injury is distinguishable from that contemplated
and precluded by K.S.A. 1996 Supp. 44-508(e). Longoria v. Wesley Rehabilitation Hospital and Horizon
Healthcare Corporation, Docket No. 220,244.
- August 1996. (Ph) Claimant was injured when she was knocked down by a bale of insulation that had blown off a
truck located in the alley immediately south of respondent's building. At the time of claimant's injury she was on
her regularly scheduled lunch break; therefore, the Board finds the going and coming rule applies to claimant's
injury. Compensation can be granted only if claimant's injury falls within an exception to the going and coming
rule. However, the ALJ found the premises exception to the going and coming rule did not apply to this case as the
alley was in no way controlled by respondent. The Board affirmed; compensation was denied. Winchester v.
Southwestern Bell Telephone Company, Docket No. 211,752.
- January 1996. (Award) Claimant died as a result of injuries she suffered when an automobile she was driving was
struck by a van. At that time, claimant was a part-time employee for respondent and was running to TacoBell to get
lunch for herself , and two other co-workers -- one of whom appeared to be decedent's immediate supervisor. The
ALJ found that there was some benefit to the employer conferred by claimant's trip to buy lunch for herself and her
co-workers and that claimant was probably to be paid for the time she was on the trip and that claimant's supervisor
gave her consent to the running of the lunch errand. The ALJ found these findings supplied the "nexus to the
employment" that caused the ALJ to find compensability. The Board however reversed finding that for an off-premises lunchtime accident to be compensable, some exception to the general rule of noncompensability must be
shown by claimant. The Board found that there was no benefit to the employer that would have resulted from the
claimant's off-premises lunch trip to Taco Bell; the benefit was personal to claimant only. In addition, the fact that
the trip was taken with the knowledge of the supervisor does not render the trip work related but simply shows the
freedom from employer control the employees could exercise during lunchtime. Finally, the Board determined that
claimant was paid for the hours she logged in each day and was not paid for the lunch errand, nor was she
reimbursed mileage. In line with the Walker v. Tobin Construction, 193 Kan. 701, 396 P.2d 301 (1964), case the
Board denied compensation. Weiner v. VSR Financial Services, Inc and United States Fidelity & Guaranty
Company, Docket No. 189,203.
- June 1994. (Award) Claimant, a blind switchboard operator, tripped on some boxes in a skywalk while on her
lunch break. The area where claimant tripped was a common area not controlled by respondent. Respondent did not
place the boxes in the walkway nor controlled them in anyway. Compensation denied. Edwards v. Kansas Gas &
Electric Co. and Self-Insured, Docket No. 183,305.
4.06 Injuries Occurring While Going to or Coming From Work
- July 2000 (Award) The Board found the death of a supervisor on the way to work compensable where the
supervisor was driving an employee to work as a part of supervisor's job. Billie R. Riggs, Deceased vs. Crist Feed
Yard, Inc. and Crum & Forster Insurance Company, Docket No. 239,099.
- February 2000. (Award) Claimant was injured when his car struck a concrete barrier protecting a guard shack at
Wolf Creek nuclear power plant where claimant worked as an employee of Fluor Daniel, a contractor at the plant.
Claimant resided with his wife in Missouri and claimant was, at the time of the accident, driving to the Wolf Creek
plant from the motel where he was staying while working at the Wolf Creek plant. The Board held that travel was an
integral part of claimant's work and for that reason the injury arose out of and in the course of claimant's
employment. Butera v. Fluor Daniel Construction Corporation, Docket Nos. 230,588 & 231,584 [Reversed and
remanded by published Court of Appeals opinion, Docket No. 84,972, January 26, 2001].
- March 1999. (Ph) Employee injured while walking to work on parking lot which was neither owned nor
maintained by respondent found not to have suffered an injury in the course of the employment. The employer's
designation of a parking area is not such control over a parking lot so as to render it part of an employer's premises.
Freis v. Travel & Transportation Inc., & Travelers Insurance Company, Docket No. 234,506.
- December 1998. (Ph) Claimant was injured while jaywalking across a city street when she was struck by a car.
Claimant was not yet on respondent's premises at the time of the accident; further, the evidence points that claimant
was jaywalking across the street to go to a Kwik Shop to purchase a newspaper. Since claimant was not on the only
route available to the public for accessing respondent's place of employment; the route involved no special risk or
hazard; and the route was used frequently by the public when dealing with anyone in the city, not just respondent,
the Board finds claimant's accident occurred while going to work and is not compensable. Crith v. State of Kansas
and State Self Insurance Fund, Docket No. 236,856.
- November 1998. (Award) Claimant, a highway patrol officer, returned to his personal residence to retrieve his
uniform jacket. While doing so, he suffered an injury. The Board affirmed the ALJ in finding the injury arose out
of and in the course of his employment, despite respondent's argument that compensation should be denied via the
"going and coming rule." Haskin v. State of Kansas, Docket No. 222,001.
- October 1998. (Award) Claimant, a highway patrol officer, suffered an injury when he fell on icy steps running
parallel to the outside of his house. Although claimant was required to keep his state highway patrol vehicle at his
personal residence and to scrape the ice off the windshield before driving it, claimant had not yet reached his vehicle
and begun his work day at the time of the accident. The Board finds the special hazard exception to the going and
coming rule does not apply since the area where the accident occurred did not pose a special risk to claimant but a
general risk. Additionally, claimant also cites Kinder v. Murray & Sons Construction Co., Inc., Docket No. 76,296
(Kan. 1998), which states that the workers compensation statutes are to be liberally construed to effect the legislative
intent and award compensation to a worker where it is reasonably possible to do so. However, the Board finds the
language of Kinder, which allows for an award of compensation where it is "reasonably possible to do so," does not
modify the legislative mandate to apply impartially the Workers Compensation Act to both employers and
employees. As such, the Board finds that claimant at the time of the accident was on his way to assume the duties of
a highway patrol officer but had not yet begun his employment responsibilities at his highway patrol vehicle.
Claimant's injury is therefore not compensable under the going and coming rule, K.S.A. 44-508(f). Peck v. State of
Kansas and State Self Insurance Fund, Docket No. 225,064 [Affirmed by unpublished Court of Appeals opinion,
Docket No. 82,263, February 18, 2000].
- ----- But See, Dissent, the Dissenting Board Member would affirm the ALJ, finding the ALJ properly concluded
that claimant's job obligated him to keep and maintain his patrol car at home, and that the accident occurred while
claimant was performing that task. Therefore, the accident arose out of and in the course of claimant's employment.
Id.
- September 1998. (Ph) Claim is barred by the provisions of K.S.A. 44-508(f), the "going and coming" rule. After
leaving her employer's front door, claimant walked a couple of steps and fell in the unlighted customer parking lot
located in the front of the building which was not owned by respondent. The going and coming rule applies since
none of the exceptions to that rule are found in this scenario. The location where claimant fell was not on her
employer's premises and it was neither owned nor controlled by her employer. The location of the accident was not
a place where respondent's employees would be while performing their duties for respondent. Claimant had left her
employment and was going home at the time of the accident. Her job did not involve travel and it was not an
integral part of her job. Additionally, the route she was on was used by the public to deal with her employer but the
record discloses no special risk or hazard. Phelps v. Visual Options and Travelers Insurance Company, Docket No.
231,975.
- August 1998. (Award) Claimant's slip and fall accident which occurred on the front steps of claimant's residence
found compensable. Claimant worked out of her home and was leaving to visit a client for work at the time of the
accident. Most importantly, claimant and her immediate supervisor had an understanding that claimant was "on the
clock" and traveling for the benefit of the employer as soon as she walked out her front door to visit a client.
Claimant also marked in her time log that she was working as soon as she walked out the door and was therefore
paid for her time as soon as she walked out her door. Leecy v. State of Kansas and State Self Insurance Fund,
Docket No. 201,870. [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,967, December 30, 1999.]
- ----- Exceptions to going and coming rule listed, ie. premises exception, being on the clock at time of injury, having
on call status at time of injury, etc. Id.
- April 1998. (Award) Claimant, a self-employed engineering consultant, was traveling from his office to a supply
store to purchase a refill for an appointment book, which he used primarily for business purposes. While driving
home from the office supply store, another driver struck claimant, killing the other driver. The Appeals Board found
claimant's job required him to travel on a regular basis to different meetings and project sites and that travel was an
integral and necessary part of his work. Therefore, because travel was inherent in claimant's work and because the
accident occurred when claimant was returning home from performing a work-related activity, the accident arose out
of and in the course of his self-employment. Anderson v. S.E. Anderson and Commercial Union Insurance, Docket
No. 211,265.
- ----- Before one is entitled to compensation under the Workers Compensation Act, the accident must "arise out of
and in the course of employment." That phrase is not construed to include injuries that occur while the worker is on
his way to work or after the worker has left work. K.S.A. 1995 Supp. 44-508(f). An exception, however, applies
when driving is either an integral part of or inherent in the nature of or is necessary to the employment. Messenger
v. Sage Drilling Co., 9 Kan. App. 2d 435, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984). Id.
- ----- Although the insurance carrier requests the Appeals Board to adopt a "special errand rule," as adopted by other
jurisdictions, the Appeals Board finds this rule expands rather than restricts the situations where an accident is found
to arise out of and in the course of employment and that the rule would only be applicable to those workers who
have identifiable time and space limits in their employment. Id.
- September 1997. (Ph) Claimant, a truck driver, was injured in an accident while traveling from his home in
Missouri to respondent's Kansas City, Kansas, terminal to pick up a load. The truck claimant was traveling in was
owned by respondent, but respondent did not pay claimant for his time or transportation expenses going to or from
the terminal and claimant's personal residence. Additionally, the record reflects the company generally expected its
drivers to leave the trucks at the terminal between hauls; however, an exception was made for claimant because his
personal car was being vandalized at the terminal. The Appeals Board found claimant's injuries did not arise out of
and within the course of employment and compensation was barred by the "going and coming" rule found in K.S.A.
1996 Supp. 44-508(f). Claimant's employment was found to start and end at the terminal, not his personal
residence, and his use of the company truck advanced no interest of the employer. Thompson v. Viking Freight
System and Protective Insurance Company, Docket No. 222,540.
- July 1997. (Ph) Claimant was employed by respondent as a home health aide and provided in-home living
assistance to respondent's clients. While driving to see her first client of the workday, claimant became injured in
an automobile accident. Respondent contends the "going and coming" rule set forth in K.S.A. 1996 Supp. 44-508(f)
precludes claimant from receiving benefits because claimant was on her way to see her first client and allegedly had
not yet assumed her duties. Respondent acknowledges the "going and coming" rule would not apply if claimant was
traveling between clients' homes. The Appeals Board finds that when traveling is an integral part, inherent in
nature, or necessary to the employment, the "going and coming" rule does not apply. Since claimant's job required
her to travel, the automobile accident arose out of and in the course of claimant's employment despite the fact
claimant was on her way to see her first client of the day. Heidel v. Advantage Home Care, Inc and ITT Hartford,
Docket No. 222,618.
- June 1997. (Ph) Claimant was employed by respondent as a traveling salesperson. On the day of the injury,
claimant had an appointment to meet a customer in Nickerson, Kansas. Thereafter, claimant planned to go to the
respondent's Hutchinson, Kansas, office for business purposes. As he was entering his personal car, on his
premises, claimant suffered an injury which was later diagnosed as a recurrent disc herniation. The Administrative
Law Judge found claimant's accidental injury did not arise out of and in the course of his employment because by
merely entering his car, claimant had not yet assumed the duties of his employment, and because claimant's injury
resulted from a risk that was personal to the worker, ie. claimant had a history of back problems. On appeal, the
Appeals Board reversed and remanded the decision of the Administrative Law Judge. In so doing, the Appeals
Board found: claimant's use of his vehicle to be an integral and necessary part of the employment; that claimant was
on a mission for his employer at the time of the accident; and claimant had already undertaken his employment
duties at the time of the accident. Therefore, the injury occurred while claimant was acting in the furtherance of his
employer's business and as such, arose out of the nature, conditions, obligations and incidents of claimant's
employment. Schultz v. Big A Auto Parts, Inc. and Travelers Insurance Company, Docket No. 217,859 & 222,319.
- ----- K.S.A. 1996 Supp. 44-508(f)-- the "going and coming" rule-- bars employees injured while going to or
coming from work from workers compensation coverage. "The rationale for the 'going and coming' rule is that
while on the way to or from work the employee is subjected only to the same risks or hazards as those to which the
general public is subjected. Thus, those risks are not causally related to the employment." Thompson v. Law
Offices of Alan Joseph, 256 Kan. 36, 883 P.2d 768 (1984). Id.
- ----- An exception to the "going and coming" rule allows workers compensation coverage where travel on public
roadways in an integral or necessary part of the employment. See Kindel v. Ferco Rental, Inc., 258 Kan. 272, 899
P.2d 1058 (1995). Id.
- See Also, McConnell v. Farmland Industries, Inc. and Wausau Underwriters Insurance Company, Docket No.
227,052 (December 1997).
- December 1996. (Ph) Claimant's injury which occurred while driving home from work in respondent's vehicle
was not found to be compensable. Here claimant left his employment and was traveling home in respondent's truck
rather than his own personal vehicle by his own choice and with no benefit to respondent. Plummer v. Ebert
Construction Inc and Maryland Casualty Company, Docket No. 216,677.
4.06a Premises Exception
- April 1999. (Ph) Claimant fell and injured herself after picking up her paycheck at her supervisor's office. At the
time of the accident, claimant was not on duty nor was the plant where she worked open for business. However, due
to the Christmas holiday and the fact that claimant and other employees were not able to pick up their checks on
their last day of employment before the holidays -- since the checks had not yet been cut -- claimant's supervisor
decided to call and notify claimant and the other employees that they could pick up their checks at his office on
December 24. The ALJ found the injury compensable and the Appeals Board affirmed, finding the accident did
arise out of and within the course of claimant's employment, since picking up her paycheck was sufficiently related
to claimant's employment and because the accident occurred on respondent's premises. Palmer v. Lindberg Heat
Treating-Batson and Insurance Co. State of Pennsylvania, Docket No. 242,111.
- March 1999. (Award) Claimant injured his left hand resulting in the amputation of one of his fingers while
hurrying across respondent's parking lot, after his shift ended, so that he could pick up his children on time.
Apparently, respondent was doing construction in the parking lot which resulted in traffic jams delaying claimant up
to 45 minutes to an hour. Respondent acknowledged that claimant's accident occurred in the course of his
employment as the accident occurred on respondent's premises, but respondent argued the accident did not arise out
of the employment as claimant was hurrying through the parking lot to his car in order to pick up his children on
time, which is a personal risk. The Board notes that neither the premises exception nor the Workers Compensation
Act would preclude compensation to an injured employee who was injured while hurrying across respondent's
parking lot in order to avoid a traffic jam created by respondent's construction of the parking lot. Compensation
granted. Speer v. Cessna Aircraft Company, Docket No. 234,161.
- March 1999. (Ph) Claimant was injured while walking down the stairs in the building housing respondent's office
on his way to the parking lot. The Board determined that claimant was not on respondent's premises at the time of
the injury as there was no evidence in the record that proved respondent had any control over the stairs located in the
building which merely housed respondent's offices -- respondent did not own the building. Soref v. Renzenberger,
Inc and Kemper Insurance Companies, Docket No. 237,113.
- March 1999. (Ph) Employee injured while walking to work on parking lot which was neither owned nor
maintained by respondent found not to have suffered an injury in the course of the employment. The employer's
designation of a parking area is not such control over a parking lot so as to render it part of an employer's premises.
Freis v. Travel & Transportation Inc., & Travelers Insurance Company, Docket No. 234,506.
- See Also, Sandra S. Mercer vs. State of Kansas and State Self-Insurance Fund, Docket No. 250,855 (April 2000)
[Affirmed by unpublished Court of Appeals opinion, Docket No. 85,202, December 22, 2000]. Exception applied to
public streets and public sidewalks.
- January 1998. (Ph) "Premises" exception to going and coming rule explained, K.S.A. 44-508(f). There is an
exception to the going and coming rule for routes not used by the public except for in dealings with the employer.
Reichenberger v. Piping Design Services, Inc. and Liberty Mutual Insurance Company, Docket No. 217,814. [See
Also May 1997 Preliminary Hearing Order by Appeals Board which denied benefits finding the accident was not
on the employer's premises.]
- ----- Control over the area by the employer is the key factor for the premises rule where no special risk or hazard
exists. Id.
- ----- Claimant was injured while walking from his employer's parking lot to its place of business. At the time of the
injury, claimant had left the paved area between the parking lot and place of business and entered a grassy drainage
ditch. The Board applied the premises exception to the going and coming rule and found that while claimant was
injured on a route to the employer's business which was not the safest route, it was, nevertheless, a direct route and
claimant was at a place where an employee could reasonably be. Benefits awarded. Id.
- May 1997. (Ph) Claimant, an employee of respondent, was required to work at the Lear Jet plant facility. While
walking between the parking lot and Lear Jet building where claimant regularly worked, claimant fell. At the time
of the fall, claimant was on his way to clock in and begin his work shift. Claimant and respondent acknowledged
the parking lot was owned by Lear Jet and not respondent. Furthermore, claimant agrees that although this parking
lot is the only available route to or from work and is on a route not generally used by the public except in dealing
with the employer, it did not involve a special risk or hazard. The Appeals Board finds claimant was not on his
employer's premises at the time of the accident and no special risk or hazard existed to overcome the limitations of
K.S.A. 1996 Supp. 44-508(f), the "going and coming" rule. Since claimant was injured while on his way to assume
the duties of his employment, claimant did not suffer a personal injury by accident arising out of and in the course of
his employment. Reichenberger v. Piping Design Services and Liberty Mutual Insurance Company, Docket No.
217,814. See also January 1998 Preliminary Hearing Order by the Appeals Board in this case, supra, which
granted benefits and found the accident did occur while on the respondent's premises.
- ------ Discussion of "premises rule" with respect to employers' parking lots and exceptions to the "going and
coming rule." Id.
- November 1996. (Ph) Claimant suffered an injury to his neck while putting his hard helmet on after exiting his car
parked in a parking lot which was not owned by respondent. Claimant had just driven to work and parked his car
when the injury occurred. Benefits were denied after the Board determined that the accident occurred while
claimant was on his way to assume his duties at work. Further, claimant's injury did not occur in a parking lot
owned by respondent; therefore, the premises exception to the going and coming rule does not apply. Flores v.
Greenway Electric Inc and General Accident Insurance Company of America, Docket No. 214,600.
- August 1996. (Ph) Claimant was injured when she was knocked down by a bale of insulation that had blown off a
truck located in the alley immediately south of respondent's building. At the time of claimant's injury she was on
her regularly scheduled lunch break; therefore, the Board finds the going and coming rule applies to claimant's
injury. Compensation can be granted only if claimant's injury falls within an exception to the going and coming
rule. However, the ALJ found the premises exception to the going and coming rule did not apply to this case as the
alley was in no way controlled by respondent. The Board affirmed; compensation was denied. Winchester v.
Southwestern Bell Telephone Company, Docket No. 211,752.
4.06b Special Risk or Hazard Exception
- July 2000. (Ph) After leaving work, claimant was struck by a vehicle as she crossed a public street in a crosswalk
with the traffic light. The intersection was regularly used by many citizens and persons not doing business with
claimant's employer. In applying Chapman v. Beech Aircraft Corp., 258 Kan. 653, 907 P.2d 828 (1995) to the facts
of this case, the Board concluded claimant did not prove her injuries arose out of and in the course of her
employment. Virginia Leaverton vs. Stormont-Vail Regional Medical Center, Docket No. 251,786.
- November 1998. (Ph) Injury suffered when claimant fell down the stairs outside respondent's offices during his
lunch break found noncompensable as the premises exception to the going and coming rule did not apply since
respondent in no way controlled this common area outside the building. Curless v. Southern Education Council and
United States Fidelity & Guaranty Co, Docket No. 233,051.
- October 1998. (Award) Claimant, a highway patrol officer, argues that since he kept his state highway patrol
vehicle with him at home and since he was required to clean ice off the windshield of the vehicle before driving it,
then his injury suffered while slipping on ice while walking to the vehicle is compensable. Claimant argue his
accidental injury falls under the special hazard exception to the "going and coming" rule. The going and coming
rule in K.S.A. 1996 Supp. 44-508(f) precludes compensation for injuries sustained while going to or coming from
work. There is however, a special hazard exception to the "going and coming" rule which contains three elements:
1) the worker must be on the only available road to or from work; 2) the route must involve a special risk or hazard;
and 3), the route must be one not used by the public except in dealings with the employer. In this instance the
Board finds the ice on the steps of the employee's residence was not a special risk or hazard of employment but was
a general risk for all citizens living in Emporia, Kansas, who walked outside that morning. In addition, the route
being using by claimant was not one used by the public exclusively in dealing with the employer but was instead a
private route used by claimant. Therefore, under the special hazard exception to the "going and coming" rule,
claimant fails to prove the elements required to make this injury compensable. Peck v. State of Kansas and State
Self Insurance Fund, Docket No. 225,064 [Affirmed by unpublished Court of Appeals opinion, Docket No. 82,263,
February 18, 2000].
- January 1998. (Award) Claimant injured her right arm when she slipped and fell in a parking lot. The
Administrative Law Judge denied compensation citing K.S.A. 1992 Supp. 44-508(f) and Thompson v. Law Offices
of Alan Joseph, 256 Kan. 36, 883 P.2d 768 (1994). The Appeals Board agrees. The parking lot where claimant fell
was neither owned, controlled nor maintained by respondent. The employer merely leased spaces for its employees
and paid a portion of their parking expenses. Accordingly, claimant was not on the employer's premises at the time
of the fall. Additionally, the parking lot was opened to the public; the route from the parking lot to her work was not
the only available route and the route did not involve any special risk or hazard. Chaffin v. State of Kansas and
State Self Insurance Fund and Kansas Workers Compensation Fund, Docket No. 177,089.
- December 1997. (Ph) Claimant was injured when she was struck by an automobile as she walked across an
intersection between the parking lot owned by her employer and the employer's office building. Although there was
a traffic signal at the intersection where claimant crossed, claimant did not push the button to change the signal so
that traffic would be stopped before she entered the intersection. Claimant had not yet begun her work day when the
accident occurred. Claimant argues her case is similar to the facts set forth in Chapman v. Beech Aircraft Corp., 258
Kan. 653, 907 P.2d 828 (1995). In Chapman, the Supreme Court defined the special hazard exception to the going
and coming rule set forth in K.S.A. 44-508(f). The Court found that the special hazard exception contains three
elements: 1) the worker must be on the only available route to or from work; (2) the route must involve a special risk
or hazard; (3) the route must be one not used by the public except in dealing with the employer. In this case, the
Administrative Law Judge found claimant failed to show that the crossing involved a special risk or hazard. The
Judge also noted the availability of a traffic signal to make the route safe. Without further evidence on this issue,
the Appeals Board finds claimant has not met her burden of showing the route she took involved a special risk or
hazard. Floro v. Blue Cross & Blue Shield, Inc., Docket No. 222,512.
4.07 Injuries Suffered By Employees While On Personal Trips or Tending to Personal Needs
- October 1999. (Ph) Injury which occurred during smoke break in area designated by employer arose out of and in
the course of claimant's employment. Wallace v. Sitel of North America, Docket No. 242,034.
- December 1996. (Ph) Claimant's injury while driving to the bank found to be a personal errand and not
compensable under the Act. Although claimant argued she was going to the bank to get change to clean a client's
clothing, the Appeals Board found itself hard pressed to believe claimant's trip to the bank was really incidental to
her employment with SRS as a long-term care worker. Speed v. State of Kansas, Docket No. 216,606.
4.08 Injuries Suffered by Employees While Traveling for the Benefit of the Employer
- February 2000. (Ph) Traveling sales person was injured by tornado while driving. Board found injury to be
compensable on grounds that claimant's employment increased the risk by being outside on road traveling. McClure
v. Alan's Excavating, Inc., Docket No. 248,125.
- February 2000. (Award) Claimant was injured when his car struck a concrete barrier protecting a guard shack at
Wolf Creek nuclear power plant where claimant worked as an employee of Fluor Daniel, a contractor at the plant.
Claimant resided with his wife in Missouri and claimant was, at the time of the accident, driving to the Wolf Creek
plant from the motel where he was staying while working at the Wolf Creek plant. The Board held that travel was an
integral part of claimant's work and for that reason the injury arose out of and in the course of claimant's
employment. Butera v. Fluor Daniel Construction Corporation, Docket Nos. 230,588 & 231,584 [Reversed and
remanded by published Court of Appeals opinion, Docket No. 84,972, January 26, 2001].
- March 1997. (Ph) Claimant injured her back while entering respondent's van. Claimant and her coworkers were
on a business trip for respondent and were going out to eat when the accident occurred. The Appeals Board found
claimant's injury was compensable and that the "going and coming rule" in K.S.A. 44-508(f) is not applicable to
employment where travel is a necessary and integral part of the employment. See Messenger v. Sage Drilling Co., 9
Kan. App.2d 435, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984); and Newman v. Bennett, 212 Kan. 562, 512
P.2d 497 (1973). Additionally, the Appeals Board cited Blair v. Shaw, 171 Kan. 524, 233 P.2d 731 (1951), in which
the Court held that when a business trip is an integral part of the employment the "entire undertaking is to be
considered from a unitary standpoint rather than devisable." Pericola v. American Red Cross and National Union
Fire Insurance Company New York, Docket No. 216,638.
- August 1994. (Award) Injuries occurring while traveling to and from employment are generally not compensable.
K.S.A. 44-508(f). An exception applies when the travel is an integral part of or necessary to the employment. Blair
v. Shaw, 171 Kan. 524, 233 P.2d 731 (1951); Messenger v. Sage Drilling Company, 9 Kan. App.2d 435. Travel to a
remote site and travel paid for or provided by the employer generally bring travel within the exception and make
injuries in the course of that travel compensable. In the case at hand, where the travel was to a remote site in
company vehicle driven by the claimant's supervisor, the Board finds the trip, absent the deviation (which is
discussed in sec. 4.13a of the Index), would have been considered a part of claimant's employment. Kindel
(Deceased) v. Ferco Rental, Inc and Wausau Insurance Companies, Docket No. 173,368 [Affirmed by Supreme
Court 258 Kan. 272 (1995)].
4.09 Generally
4.10 Transportation &/or Accommodations Furnished by Employer
4.10a Injuries Suffered While Employee is Attending Work-Related Seminars or Events
- April 1999. (Ph) Claimant was injured while walking to a restroom at a gas station in Lawrence on the return trip
from a mandatory, work-related seminar in Kansas City. On the way back from Kansas City to Topeka, claimant
rode in a car made available by respondent. The fact that the car stopped in Lawrence (where claimant's injury
occurred) so that one of the passengers could visit her brother was not determinative since the visit was less than 5
minutes and was for the benefit of one of the other workers, not the claimant. The Board affirmed the ALJ's
awarding of benefits. Dodds v. Lake Shore Learning Center and Commercial Union Insurance Companies, Docket
No. 239,521.
- April 1999. (Ph) An employee's participation in an education or training seminar may be considered in the course
of the employment for workers compensation purposes where participation is found to be incidental to the
employment. See Brobst v. Brighton Place North, 24 Kan. App. 2d 766, 955 P.2d 1215 (1997); Blair v. Shaw, 171
Kan. 524, 233 P.2d 731 (1951). Injuries incurred while going and coming from places where work-related tasks
occur are compensable where the travel is required to "complete some special work-related errand or special-purpose trip in the scope of the employment." Ashauer v. St. Francis Academy, Inc and Hartfort Accident &
Indemnity, Docket No. 236,220.
- ----- Claimant's traveling to eat at a fast food restaurant, while staying out of town to attend a work-related seminar,
found to not constitute a deviation from his employment. The injuries claimant suffered as a result of the car
accident, while traveling to a fast food restaurant, were found to have arisen out of and within the course of
claimant's employment. See Larson's Worker's Compensation Law, Sec. 25.21a (1998); wherein Larson noted that
traveling employees generally are compensated for injuries received while traveling to and from their meals when
the injury has its origin in a risk created by the necessity of staying away from home. Id.
- December 1995. (Award) Claimant was attending a seminar at Washburn University to gain continuing education
credits for her license as a nurse. Respondent paid for the seminar and keeping her license was necessary for her
employment. Claimant was injured while leaving the seminar. She stepped off the curb while leaving the building
and twisted her ankle. The Board affirmed the ALJ who awarded compensation finding claimant's injuries arose out
of and within the course of her employment. See also, The Law of Workmen's Compensation, Sec. 27.00 (1995),
wherein Larson noted: "An act outside an employee's regular duties which is undertaken in good faith to advance
the employer's interest, whether or not the employee's own assigned work is thereby furthered, is within the course
of employment;" and Blair v. Shaw, 171 Kan. 524, 233 P.2d 731 (1951). Brobst v. Brighton Place North and
Church Mutual Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 152,447; 152,448 &
152,449 [ Affirmed by Kansas Court of Appeals, 24 Kan. App.2d 766, 955 P.2d 1315 (1997)].
4.11 Dual / Mixed Purpose Trips
- October 1998. (Ph) The issue is whether claimant's auto accident during travel arose out of and in the course of
the employment. Claimant was en route to pick up magazines for his employer, the trip also had a personal purpose.
At the time of accident, claimant was on the same route as he would have traveled to be going back to his hotel,
which respondent analogized to going home. Held: the going and coming rule did not apply because claimant was
on a business errand. The dual purpose of the trip included an employer directed or approved errand. Dual purpose
trips are compensable unless the business purpose is so small that the trip would not have been taken if the personal
purpose did not exist. In the case at hand, the business purpose herein was legitimate and sufficient to bring
claimant with the Act. King v. Anderson News Company and Hartford Accident and Indemnity, Docket No.
233,037.
4.12 Injuries Caused by Horseplay among Co-Workers
- January 2001 (Ph) Injury is compensable where there is a concurrence of horseplay and working conditions.
Cowan vs. Griffin Wheel Company and Amsted Industries, Inc., Docket No. 256,498.
- February 2000. (Ph) Injury from horseplay found not compensable even though the claimant was not participating
in horseplay. The Board reviewed relevant appellate court decisions and found this result was required by those
decisions even though it appears quite possible the court might change this rule if asked to address the issue in the
future. Rogers v. Big Lakes Development Center, Inc., Docket No. 247,715.
- April 1999. (Ph) A worker is entitled to benefits if injured as the result of horseplay initiated by another and if they
are not a willing participant. Majors v. Sonic Drive-In and Hartford Accident & Indemnity, Docket No. 239,644.
- March 1994. (Award) Where supervisor participated in horseplay with employees on a regular basis, the injury
suffered by the employee during horseplay (jumping a pit) is considered compensable. Castleberry v. Siroky Well
Service, Inc, Docket No. 160,014.
- See Also, Meeks vs. Kansas Oxide Corporation and Hartford Accident & Indemnity, Docket No. 241,740 (January
2001).
4.13 Injuries Suffered While Employee is Engaged in Prohibited Activities
4.13a Injuries Suffered During Periods of Deviation or Abandonment of the Employment
- March 2000. (Ph) The Appeals Board found that at the time of the accident claimant's deviation from his normal
business route was substantial enough to deny workers compensation benefits. Claimant's departure from his
normally traveled business route to pick up his two children took him thirty (30) miles away from the route and over
a narrower and more dangerous roadway. Ferguson v. Transwood, Inc., Docket No. 248,404.
- December 1998. (Ph) Claimant's job required her to be at the residence of a disabled person. Because she was
cold, claimant went outside to her car to get a sweater when she fell. The Board found this did not constitute a
substantial deviation from her employment and thus claimant was in the course of her employment when she fell.
Hall v. Disability Supports of the Great Plains and Travelers Insurance Company, Docket No. 234,957.
- January 1998. (Ph) Claimant was injured while walking from his employer's parking lot to its place of business.
At the time of the injury, claimant had left the paved area between the parking lot and place of business and entered
a grassy drainage ditch. The Board applied the premises exception to the going and coming rule and found that while
claimant was injured on a route to the employer's business which was not the safest route, it was, nevertheless, a
direct route and claimant was at a place where an employee could reasonably be. Furthermore, claimant's shortcut
across the ditch was not a substantial deviation as to remove him from the "premises" exception to the "going and
coming" rule. Benefits awarded. Reichenberger v. Piping Design Services, Inc. and Liberty Mutual Insurance
Company, Docket No. 217,814.
- November 1997. (Ph) Claimant was injured in a truck accident on I-70 while driving respondent's truck. After the
accident, claimant could not remember what he had been doing for some eight hours prior to the accident. The
respondent argued that a deviation or abandonment of the employment occurred since the record was void of any
evidence showing that claimant was working during this eight hour period preceding the accident. Claimant,
however, asserted the accident occurred on the direct route required for claimant to travel to his home from the
accounts he serviced. The Appeals Board held, for preliminary hearing purposes, that even if claimant had deviated
from his employment for a substantial period of time, he returned to the employment relationship once he was on the
direct route home. See Kindel v. Ferco Rental, Inc., 258 Kan. 272, 899 P.2d 1058 (1995). Therefore, the Appeals
Board affirmed the Administrative Law Judge's Order finding claimant's accident arose out of and within the course
of the employment. Foos v. Terminix International Company and Zurich American Insurance Company, Docket
No. 225,638.
- October 1997. (Ph) Claimant, a passenger in a truck owned by respondent, was injured in an automobile accident.
They were en route to pick up underlayment which was necessary to finish the job he was working on for
respondent. Claimant was also traveling to purchase transmission fluid for his own vehicle that was also used to
haul materials to and from the job site. The Appeals Board finds claimant was operating in furtherance of his
employer's interests. At the time of the accident claimant was on a direct route to the respondent's shop to get the
underlayment. Although claimant had temporarily deviated from his employment to buy lunch, claimant had
returned to the business purpose of the trip at the time of the accident. Accordingly, the accident arose out of and in
the course of claimant's employment with respondent. Zago v. Anderson Interiors and Allied Mutual Insurance
Company, Docket No. 202,528.
- August 1994. (Award) Claimant was killed in a one car accident west of Topeka on I-70. Claimant and his
supervisor had driven that morning from Salina to a construction job site in Sabetha. They performed certain job
duties at that job site and were returning home at the time of the accident. The dispute of the case arises from the
fact that, although claimant and his supervisor were on the route home at the time of the accident, they had spent
approximately four hours at a bar drinking before they returned to that route. The ALJ denied benefits finding
claimant's detour from the employment was so substantial as to amount to an abandonment of the employment. The
Board reversed. The Board acknowledged that while there were out-of-state cases which supported the ALJ's
position, there were just as many cases favoring the opposite view as well. The Board noted that generally, injuries
which occur once the employee has returned to the regular business trip or route are compensable. And the Board
does not consider the nature of the deviation -- drinking at a topless bar-- to be determinative; the Act is generally a
no fault system. Therefore, since the accident occurred after claimant had returned to the business trip, claimant's
death is found compensable. Kindel (Deceased) v. Ferco Rental, Inc and Wausau Insurance Companies, Docket
No. 173,368 [Affirmed by Supreme Court 258 Kan. 272 (1995)].
- ----- Generally, a personal deviation from a business trip takes the employee out of the course of the employment at
least until the employee returns to the route of the business trip. Injuries which occur in the course of that deviation
are not compensable. Woodring v. United Sash & Door Company, 152 Kan. 413, 103 P.2d 837 (1940). On the
other hand, injuries which occur once the employee has returned to the route of the business trip are generally
compensable. See Larson's Workers Compensation Law, Sec. 19.30 & 19.31. Id.
- December 1994. (Award) Claimant, a nursing secretary for respondent, slipped and fell while walking down the
hallway of the respondent's hospital, on her lunch break, to visit a sick friend. There were no personal defects
which would have caused claimant to fall nor were there any defects in the floor which would have caused the fall.
The issue the Board was asked to decide was whether an injury suffered while claimant, remaining on the
employer's premises, visiting a sick friend over her lunch hour, constituted sufficient deviation from her
employment to be considered a risk which is personal to the worker and not compensable. The Board found that
claimant did suffer accidental injury arising out of and in the course of her employment and was entitled to benefits.
In so doing, the Board noted that although visiting sick friends was not an employment responsibility, it was an
activity allowed by the employer and was, to a certain degree, common practice at the hospital. The Board cited
Thomas v. Manufacturing Co, 104 Kan. 432, 179 P.2d 372 (1919) as being an analogous case. Uthoff v. Lawrence
Memorial Hospital and Phico Insurance Company, Docket No. 166,198.
4.14 Injuries Arising Out Of The Employment (See also § 15.31, this Index)
4.15 Generally
- September 1999. (Ph) Claimant's injury found not to have arisen out of the employment due to long length of time
between last exposure to ethylene oxide (EtO) [which occurred in 1989] and the onset of claimant's symptoms
[which occurred in 1995]. Gentry v. Stormant-Vail Regional Medical Center, Docket Nos. 132,470; 132,471 &
135,308.
- September 1999. (Ph) Claimant states she contracted HCV while working for respondent as a custodian. As a
custodian, claimant was exposed to blood and bodily fluids. Medical testimony, however, stated that the likelihood
of contracting HCV as a custodian would be small. The majority of cases of HCV originate from using intravenous
drugs, which claimant admitted to using prior to her employment with respondent. Therefore, the Board found
claimant failed to prove her injury arose out of and within her employment. Hamman-Pitts v. Emporia State
University and State Self-Insurance Fund, Docket No. 241,772.
- September 1999. (Ph) Low-back injury sustained when claimant climbed out of a sports utility vehicle found
compensable as it arose out of the employment. Claimant worked in an automotive upholstery shop; therefore,
entering and exiting vehicles was a necessary and integral part of the employment and a risk directly associated with
the employment. Anderson v. Scarlett Auto Interiors and State Farm Insurance Co., Docket No. 244,408.
- August 1999. (Award) To arise out of the claimant's employment, the injury must have some causal connection
to employment. The Board finds that this is not a strict requirement that the claimant be injured while actually doing
the work. It is enough if the risk leading to the injury is incidental to the work duties. See Martin v. U.S.D. No. 233,
5 Kan. App. 2d 298, 615 P.2d 168 (1980); Brobst v. Brighton Place North, 24 Kan. App. 2d 766, 955 P.2d 1315
(1997); Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P.2d 701 (1945). But not every act during the course of
employment gives rise to a risk associated with or incidental to employment. Squires v. Emporia State University,
23 Kan. App. 2d 325, 929 P.2d 814 (1997). In the case at hand, the act of placing personal reading material on a
hook at work to read later at break was for a purely personal benefit and the risk associated was a purely personal
risk. The Board therefore concluded, as did the ALJ, that claimant's injury did not arise out of claimant's
employment. Chandler v. State of Kansas, Docket No. 205,255.
- May 1999. (Ph) Slip and fall at work while claimant walked to break room to check her work schedule found to
arise out of and within the course of her employment despite the fact claimant did not think she was on duty at the
time of the accident. The Board found the act of checking her work schedule, after being told to do such by her
supervisor, was a normal and common incident of claimant's work and therefore the risk of walking to the break
room and slipping on the floor was a risk associated with her employment. Alam v. Kansas Humane Society of
Wichita and Commercial Union Insurance Company, Docket No. 241,682.
- See Also, Kepford vs. Amazon.Com and Royal Indemnity, Docket No. 253,538 (August 2000).
- February 1998. (Award) Claimant was injured when a chair she was sitting on at an ice cream parlor in the
Wichita Airport Terminal broke. The Appeals Board found claimant was on break when the accident occurred and
was on call during that break as evidenced by the fact claimant carried a beeper and could be disciplined for not
responding to emergency clean-up situations during her break. Claimant was also required to remain at the airport
terminal during her break. As such, the Appeals Board agreed with the Administrative Law Judge that the injury
arose out of and in the course of claimant's employment. It arose in the course of the employment because it was a
paid break. It arose out of the employment in that the break activity and its location were in part for the benefit of
the employer. See Larson's Workers' Compensation Law § 15.54, 4-181 (1997). Vaughn v. City of Wichita and
Kansas Workers Compensation Fund, Docket No. 184,562.
- December 1997. (Award) An injury arises "out of" the employment if it arises out of the nature, conditions,
obligations and incidence of the employment. See Martin v. W.S.D. No. 233, 5 Kan. App.2d 298. 615 P.2d 168
(1980); Hensley v. Carl Graham Glass, 226 Kan. 256, 597 P.2d 641 (1979); and Newman v. Bennett, 212 Kan. 562,
512 P.2d 497 (1973). Guhr, Deceased v. Mennonite Bethesda Society, Inc. d/b/a Bethesda Home and Kansas
Association of Homes for The Aging Insurance Group, Inc. and Kansas Workers Compensation Fund, Docket No.
210,727.
- See Also, McConnell v. Farmland Industries, Inc. and Wausau Underwriters Insurance Company, Docket No.
227,052 (December 1997); Gonzales v. Allied, Inc and Maryland Casualty Company, Docket No. 233,046 (June
1998).
- March 1997. (Ph) For a claim to arise "out of" employment, its cause or origin must develop out of the nature,
conditions, obligation and incidents of employment. Kindel v. Ferco Rental, Inc., 258 Kan. 272, 899 P.2d 1058
(1995); Hormann v. New Hampshire Ins. Co, 236 Kan. 190, 197, 689 P.2d 837 (1994). Lambert v. Norcraft
Companies, Inc. and Travelers Indemnity Company, Docket No. 219,236.
- See Also, Rosemary J. Munoz vs. Stormont Vail Regional Medical Center, Docket 234,757 (July 2000).
- March 1994. (Award) Board finds claimant's temporomandibular joint (TMJ) did arise out of and in the course of
employment where evidence showed that chronic paracervical strain, consistent with claimant's symptoms, leads to
TMJ and that working at a computer station, which claimant did in his job, would aggravate pre-existing TMJ
syndrome. Fowler v. Questar Software, Inc, Docket No. 180,363.
- March 1994. (Award) Evidence examined and conclusion reached that claimant did not suffer accidental injury by
electrocution. Lundquist v. IBP, Docket No. 180,687
- March 1994. (Award) Evidence examined and found to support the claim that claimant's lung condition arose out
of and in the course of her employment. Ellington v. Colgate Palmolive Company, Docket No. 180,426.
- January 1994. (Award) Neck injury not identified until substantial period after claimant's last date of employment
was found to arise out of and in the course of employment, where evidence established that physicians who had
initially diagnosed carpal tunnel also found symptoms suggestive of neck injury and testified that in their opinion the
neck injury had been present when they first say claimant and that it was caused by his activities at work. Gauld v.
Koch Engineering, Docket No. 158,786.
- December 1993. (Award) Claimant's injury found not to arise out of and in the course of his employment where
evidence showed that he did not report an accident to his employer and did not seek medical attention until onset of
symptoms during subsequent activities off the job. Staley v. Sears Roebuck & Co and Kansas Workers
Compensation Fund, Docket Nos. 169,148 & 170,412.
4.16 Causation
- August 1999. (Award) Causal connection between claimant's work and resulting disability found based on the fact
that all of claimant's physicians diagnosed an overuse or cumulative trauma disorder and determined work
restrictions were necessary. Further, although the Board found that claimant could certainly have made a better
record concerning what specific job duties caused or contributed to her symptoms, the record is replete with
instances where claimant sought medical treatment both at work and away from work for symptoms she attributed to
those activities and her testimony concerning such is uncontradicted. Additionally, her resulting restrictions were
directly aimed at her work activities. Therefore, a casual connection is established. Riggs v. The Boeing Company
and American Manufacturers Mutual Insurance Company, Docket No. 223,954 [Reversed by unpublished Court of
Appeals opinion, Docket No. 83,822, July 28, 2000].
- See Also, Robert L. Holtsclaw vs. Haggard & Son and Commercial Union Insurance Company, Docket No.
231,614 (May 2000).
- March 1999. (Award) Intrinsic in the Workers Compensation Act is the requirement that there be some type of
causal connection or nexus between the injury and the disability for which the benefits are being awarded. The
injury must arise out of the employment. In the case of a work disability, the Board finds this requires a nexus
between the injury and both the task loss and wage loss. The task loss factor is based on loss of ability resulting
from the injury. In the case of wage loss, the causation requirement is less explicit. The Board believes the
fundamental function and purpose of the Act expects that there be a nexus between the injury and the wage loss
before that loss can be a factor used to calculate the amount of benefits. Lawless v. Emerson Electric Company,
Docket No. 214,874.
- December 1997. (Ph) Claimant's injury must arise out of and in the course of the employment. The phrase "out of
employment" points to the cause or the origin of the accident and requires some causal connection between the
accidental injury and the employment. An injury arises out of the employment if it is apparent to the rational mind
that a causal connection exists between the condition under which the work is required to be performed and the
resulting injury. Additionally, an injury arises out of the employment if it arises out of the nature, conditions,
obligations and incidence of the employment. See Newman v. Bennet, 212 Kan. 562, 512 P.2d 497 (1973).
Timmons v. Western Resources, Docket No. 227,781.
- September 1997. (Ph) The phrase "out of" the employment requires some causal connection between the
accidental injury and the employment. See Bohanan v. Schlozman Ford, Inc., 188 Kan. 795, 366 P.2d 28 (1961).
Taylor v. The Boeing Company and Kemper Insurance, Docket No. 220,374.
- See Also, Cazares v. State of Kansas, Docket No. 245,972 (March 2000) (Ph).
- April 1997 (Ph) Claimant worked for respondent as an assembler which required she handle equipment with
chemicals on them. Claimant developed a skin rash before she began wearing protective gloves or using lotion, the
Appeals Board finds the evidence establishes a causal connection between her dermatitis and employment. Andre v.
Wilde Tool Co., Inc. and Employers Mutual Casualty Company, Docket No. 217,609.
- June 1994. (Ph) The employer is an insurer only for those accidental injuries caused or produced in some way by
the employment. A showing of some causal connection between the employment and the accident is required. See
also, Murray v. Ludowici-Celadon Co, 181 Kan. 556, 313 P.2d 728 (1957). Edwards v. Kansas Gas & Electric Co.
and Self-Insured, Docket No. 183,305.
4.17 Risks Associated With the Employment
- February 2000. (Ph) Traveling sales person was injured by tornado while driving. Board found injury to be
compensable on grounds that claimant's employment increased the risk by being outside on road traveling. McClure
v. Alan's Excavating, Inc., Docket No. 248,125.
- September 1999. (Ph) Claimant, who was Islamic, fasted for one and a half weeks in observance of Ramadan.
Right after the fast, claimant blacked out at the wheel while driving respondent's truck and suffered injuries.
Respondent argued the injuries were due to a personal risk of claimant or in the alternative, claimant intentionally
caused the accident. The Board found no evidence proving claimant intentionally caused the accident. The Board
further found the injury arose out of the employment and was compensable as a risk associated with the
employment. In so doing, the Board noted that claimant was driving a company vehicle at the time he blacked out
and that element added a work-related risk that made the accident compensable even if the blackout was a personal
risk. Bennett v. Wichita Fence Co., 16 Kan. App.2d 458 (1992). Beruni v. Lies Ready Mix and Paving and
Employers Mutual Casualty Company, Docket No. 244,360.
- May 1999. (Ph). Claimant, a truck driver, felt and heard a pop in his knee when he exited his truck by jumping
down from his seat onto the ground. After exiting his truck and as he was walking toward the fast food restaurant,
claimant stepped in snow at a median at which time his knee twisted and separated; he experienced an onset of
severe pain. The timing --ie. claimant being on the clock-- and circumstances --going to eat lunch and checking his
load -- were found to be for the benefit of the respondent. Therefore, the injury did arise out of and in the course of
his employment and is compensable. Wheeler v. Bottorff Construction Co. and Federated Mutual Insurance Co.,
Docket No. 241,477.
- ----- Claimant's knee injury caused by jumping out of a truck and walking to a fast food restaurant found not to be
an activity of daily living so as to exclude the injury from the definition of "personal injury" under K.S.A. 44-508(c),
where it was determined that claimant's preexisting knee condition was aggravated by the work-related event of
jumping down out of his truck. Id.
- ----- When the injury is from a combination of the preexisting condition and from a hazard of the employment, the
injury should be treated as compensable. Id.
- December 1998. (Ph) Personal Comfort Doctrine. In workers compensation litigation, a non work-related
preexisting condition can be aggravated by a claimant's work activities. In the case at hand, despite the fact that
claimant was in her employer's break room on break, she was, however, involved in her employment. The use of
the break room, supplied by respondent, is an activity which would be considered a portion of the employment
benefit provided to the claimant and other employees, and would generally fall under the Personal Comfort Doctrine
so as to be compensable. See Larson's Workers' Compensation Law sec. 21.20 (1996). As such, claimant's
hyperextension of her knee while in the respondent's break room is a compensable accident. Riley v. Graphics
Systems, Inc and Maryland Casualty Company, Docket No. 237,773.
- But See, Weiner v. VSR Financial Services, Inc and United States Fidelity & Guaranty Company, Docket No.
189,203 (January 1996).
- June 1998. (Ph) Claimant was injured while at home when he was trying to separate his own dog from the German
Shepard, used by claimant in the Sheriff's Department as a "police dog." Apparently the two dogs, who were
normally kept apart, were accidentally let into claimant's house together and began to fight. As a result of
claimant's trying to separate the two dogs, he was bitten by the Sheriff Department's dog. The Board affirmed the
Special ALJ and gave deference to the judge's assessment of claimant's credibility. In so doing, the Board found the
injury occurred as the result of the employment risk directly related to kenneling the Department's dog at claimant's
residence. Peoples v. Hamilton County Sheriff Department and EMC Insurance Co., Docket No. 231,168; See also,
Board reviewed the case again as an appeal from a final award and continued to hold the dog bite injury as
compensable, See the September 1999 Award in this case.
- June 1997. (Award) Where claimant worked road construction and was not afforded regular and timely
opportunities to take restroom breaks, the Appeals Board finds claimant's resulting bladder hypotonicity to arise out
of and within her employment. Lenhart v. Koss Construction Company and United States Fidelity & Guaranty Co.,
Docket No. 159,327. [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,516].
- April 1997. (Award) Where no evidence of claimant's urinary incontinence existed prior to the lifting incident at
work in which claimant violated her work restrictions by assisting a co-worker in lifting patients, the Appeals Board
awards benefits. Wrigley v. Medicalodges, Inc. and Workers Compensation Fund, Docket No. 162,882.
- March 1997. (Ph) Injuries resulting from lifting a patient out of her wheelchair to the toilet found to be incidental
to the employment. Lee v. State of Kansas and State Self Insurance Fund, Docket No. 217,380.
4.18 Risks Personal to the Claimant
- September 1999. (Ph) Claimant, who was Islamic, fasted for one and a half weeks in observance of Ramadan.
Right after the fast, claimant blacked out at the wheel while driving respondent's truck and suffered injuries.
Respondent argued the injuries were due to a personal risk of claimant or in the alternative, claimant intentionally
caused the accident. The Board found no evidence proving claimant intentionally caused the accident. The Board
further found the injury arose out of the employment and was compensable as a risk associated with the
employment. In so doing, the Board noted that claimant was driving a company vehicle at the time he blacked out
and that element added a work-related risk that made the accident compensable even if the blackout was a personal
risk. Bennett v. Wichita Fence Co., 16 Kan. App.2d 458 (1992). Beruni v. Lies Ready Mix and Paving and
Employers Mutual Casualty Company, Docket No. 244,360.
- August 1999. (Award) To arise out of the claimant's employment, the injury must have some causal connection
to employment. The Board finds that this is not a strict requirement that the claimant be injured while actually doing
the work. It is enough if the risk leading to the injury is incidental to the work duties. See Martin v. U.S.D. No. 233,
5 Kan. App. 2d 298, 615 P.2d 168 (1980); Brobst v. Brighton Place North, 24 Kan. App. 2d 766, 955 P.2d 1315
(1997); Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P.2d 701 (1945). But not every act during the course of
employment gives rise to a risk associated with or incidental to employment. Squires v. Emporia State University,
23 Kan. App. 2d 325, 929 P.2d 814 (1997). In the case at hand, the act of placing personal reading material on a
hook at work to read later at break was for a purely personal benefit and the risk associated was a purely personal
risk. The Board therefore concluded, as did the ALJ, that claimant's injury did not arise out of claimant's
employment. Chandler v. State of Kansas, Docket No. 205,255.
- See Also, Rohlman vs. Eagle Global Logistics and Continental Casualty Company, Docket No. 258,274
(November 2000).
- See Also, Urie vs. Conwell Corporation and Continental Casualty Company, Docket No. 253,719 (November
2000).
- May 1999. (Ph). Claimant, a truck driver, felt and heard a pop in his knee when he exited his truck by jumping
down from his seat onto the ground. After exiting his truck and as he was walking toward the fast food restaurant,
claimant stepped in snow at a median at which time his knee twisted and separated; he experienced an onset of
severe pain. The timing --ie. claimant being on the clock-- and circumstances --going to eat lunch and checking his
load -- were found to be for the benefit of the respondent. Therefore, the injury did arise out of and in the course of
his employment and is compensable. Wheeler v. Bottorff Construction Co. and Federated Mutual Insurance Co.,
Docket No. 241,477.
- ----- Claimant's knee injury caused by jumping out of a truck and walking to a fast food restaurant found not to be
an activity of daily living so as to exclude the injury from the definition of "personal injury" under K.S.A. 44-508(c),
where it was determined that claimant's preexisting knee condition was aggravated by the work-related event of
jumping down out of his truck. Id.
- ----- When the injury is from a combination of the preexisting condition and from a hazard of the employment, the
injury should be treated as compensable. Id.
- April 1999. (Ph) Approximately 15 minutes before claimant was to clock-in at work, claimant was walking up the
stairs from his locker when his left knee unexplainably gave out causing him to fall. Claimant had two previous knee
surgeries on the left knee prior to the accident; however, claimant argued he had no problems with his knee and even
played softball. Respondent, on the other hand, argued claimant experienced problems with his left knee before the
work-related injury and therefore claimant's injury resulting from a personal risk. The ALJ found medical evidence
showing the ACL tear was a new injury to be inconclusive and denied benefits citing Martin v. U.S.D. No. 233, 5
Kan. App.2d 298, 615 P.2d 168 (1980). The Board, however, found this case distinguishable from Martin, in that it
was unclear whether almost any everyday activity would have a tendency to aggravate claimant's preexisting knee
condition. Conversely, the Board also found that claimant failed to prove that his injury was not due to the
preexisting condition and hence a personal risk. Benefits denied citing the injury as a personal risk. Ronsee v.
Goodyear Tire & Rubber Company and Constitution State Insurance Company, Docket No. 237,693.
- See Also, Alicia Trimmell vs. Buckley Industries and Commercial Union Insurance Company, Docket No. 250,993
(April 2000).
- October 1998. (Ph) Claimant was injured walking down steps at work. Respondent argued the accident did not
arise out of the employment but was a personal risk to claimant due to claimant's obesity. Respondent also argued
the accident was a result of the normal day-to-day living activities associated with walking and therefore was not a
personal injury by accident as defined by K.S.A. 44-508(e). The Board finds the accident was work related. K.S.A.
44-508(e) does not preclude accidents that are the result of normal activities of day-to-day living, it excludes
"disabilities." Here, there is no showing that claimant's disability was not due to the accident at work. The
evidence established that the disability was directly related to employment. Ricks v. Connect Care and New York
Underwriters Ins. Co, Docket No. 233,090.
- July 1998. (Ph) Claimant aggravated her preexisting right knee injury while climbing stairs at work. The Board
found that claimant had established accidental injury to her right knee arising out of and in the course of her
employment. The injury may be an aggravation of the preexisting condition and it may be temporary; but
nevertheless, the record established that the injury arose out of and in the course of the employment. Johnson v. The
Boeing Company and Insurance Co. State of Pennsylvania, Docket No. 225,129 & 228,751.
- December 1997. (Award) On the date of the accident, decedent, a 76-year old CNA, was walking down a hallway
at respondent's office when she fell to the floor injuring her hip. Claimant had a well documented preexisting right
peroneal nerve apraxia secondary to preexisting lumbar spinal stenosis. This resulted in a condition commonly
known as "footdrop." There was no evidence that the condition of the floor caused or contributed to the fall or that
decedent was doing anything other than simply walking when she fell. The Appeals Board finds that the decedent
did not suffer personal injury by accident arising out of her employment with respondent. The injury was clearly
attributable to a personal condition of the claimant. The evidence does not establish the employment placed claimant
in a position which caused or increased the effects of her fall so as to make compensable the injuries sustained by
decedent in the accident. Guhr, Deceased v. Mennonite Bethesda Society, Inc. d/b/a Bethesda Home and Kansas
Association of Homes for the Aging Insurance Group, Inc and Kansas Workers Compensation Fund, Docket No.
210,727.
- November 1997. (Ph) Claimant's fainting incident while at a work training seminar was found to have resulted
from a risk personal to claimant. Smith v. 7-Eleven and American Protection Insurance Company, Docket No.
223,647.
- November 1997. (Ph) Claimant fell while performing his regular work activities for the respondent. Before
claimant fell at work, claimant had a preexisting congenital condition known as osteogenesis imperfecta, which
causes brittle bones. Respondent states claimant fell as a result of a personal risk; claimant says he fell as a result of
water and grease on the floor. The Board gave deference to the ALJ's opinion that claimant fell as a result of water
and grease on the floor. Compensation was awarded. Swart v. Wendy's Old Fashioned Hamburgers, Docket No.
225,729.
- October 1997. (Ph) Claimant argues he fell at work when he slipped due to the wet and greasy condition of the
floor. Respondent, on the other hand, believes claimant's knee merely gave out at work due to a preexisting knee
and medical condition which was a personal risk to claimant; respondent cites Martin v. U.S.D. No. 233, 5 Kan.
App.2d 298, 615 P.2d 168 (1980), as support for its proposition that claimant's injury did not arise out of the
employment relationship with respondent. Giving deference to the ALJ's conclusions, the Board finds that for
preliminary hearing purposes, claimant's injury arose out of and in the course of his employment with respondent.
Swart v. Wendy's Old Fashioned Hamburgers and Kemper Insurance, Docket No. 225,729.
- October 1997. (Ph) Where claimant had finished working for respondent and clocked out but nevertheless elected
to stay on respondent's premises to play with a group of children, the Appeals Board finds claimant's injury
sustained when he fell off some playground equipment did not arise out of or in the course of his employment with
respondent but was a result of his personal endeavors. Mathieu v. Discovery Zone and Liberty Mutual Insurance
Company, Docket No. 225,559.
- July 1997. (Award) Claimant injured his back when he slipped and fell on the ice in his company's parking lot.
The accident occurred while claimant was inspecting body shop repairs recently done on his daughter's car.
Claimant contends he was looking at the car in an attempt to calm his daughter, who was also an employee of the
company and under his supervision, so she could assume her work duties. The Administrative Law Judge found the
accident did occur within the course of the employment because claimant was at work and the accident occurred
during normal working hours. However, the Appeals Board reversed finding the accident did not arise out of the
nature, conditions, obligations, or incidents of claimant's employment because inspecting his daughter's car did not
benefit the company nor was it part of claimant's job duties. Gallaway v. Southwest Area Telephone Services, Inc.
and United Fire & Casualty Company and Workers Compensation Fund, Docket No. 176,320.
- ----- But See Dissent: The Dissenting Board members would find claimant's injury did arise out of and within the
course of employment. The Dissent believes claimant was counseling an employee under his supervision while at
work. This is a form of directing an employee and is integral to a supervisor's duties. Furthermore, claimant's
actions of counseling an employee were in furtherance of the employer's business. The fact the employee being
counseled was claimant's daughter is a red herring. Id.
- June 1997. (Award) Claimant, who had undergone vascular surgery in her lower extremities in 1989, seeks to
recover benefits for pseudo aneurysms diagnosed in 1993. Claimant does have a history of circulatory problems.
Claimant further alleges the pseudo aneurysms were caused, aggravated, or accelerated by lifting patients in the
course of her employment with respondent. After examining the evidence including the testimony of three
physicians, the Appeals Board finds claimant's vascular condition did not arise out of her employment. Dunn v.
C&L Companions and Insurance Co. of North America and Kansas Workers Compensation Fund, Docket No.
189,018.
- May 1997. (Ph) Claimant alleges a rash developed all over his body after he waded out into flood water to rescue a
woman visiting his employer's place of business and as a result of his being forced to work the rest of the, day in the
wet clothes. Medical records, however, indicated claimant's acute dermatitis had been a recurrent problem for
nearly the past 10 years. Therefore, the Appeals Board affirms the Administrative Law Judge's Order denying
benefits, finding the injury did not arise out of the course of employment. Curry v. Brewster Place and Kansas
Association of Homes for the Aging Insurance Group, Inc., Docket No. 216,127.
- May 1997. (Award) Where claimant's failure to take his insulin and maintain a proper diet was attributed to his
diabetic crash , the Appeals Board finds the accident, although occurring at work, did not arise out of claimant's
employment with respondent. Gumm v. George M. Myers, Inc. and Travelers Insurance Company and Kansas
Workers Compensation Fund, Docket No. 169,535 [Affirmed by Kansas Court of Appeals in unpublished decision,
Docket No. 79,321].
- May 1997. (Award) Where medical testimony states claimant's onset of fibromyalgia did not begin until several
years after leaving her employment, the Appeals Board finds the fibromyalgia was neither caused nor aggravated by
claimant's work and is not compensable. Fahringer v. IBP, Inc., Docket Nos. 159,418 & 159,419.
- March 1997. (Ph) It is not always necessary for an injury to be caused by trauma or some form of physical force
before it can be found compensable. However, when an injury is attributable to a personal condition of the
employee and no other factors contribute to the injury, the injury is not compensable. Bennett v Wichita Fence Co.,
16 Kan. App. 2d 458, 824 P.2d 1001, rev. denied 250 An. 804 (1992); Martin v. U.S.D. No. 233, 5 Kan. App.2d
298, 615 P.2d 168 (1980). Lambert v. Norcraft Companies, Inc. and Travelers Indemnity Company, Docket No.
219,236.
- January 1997. (Ph) Claimant was injured while working for respondent when she fainted and fell, cutting her
scalp on the tile floor. The Appeals Board agreed with the decision of the Administrative Law Judge that claimant's
accident was not compensable. Before injuries from idiopathic events, such as in this case, are compensable, the
employment must create some special hazard or increased risk. See Bennett v. Wichita Fence Co., 16 Kan. App.2d
458, 824 P.2d 1001, rev. denied 250 Kan. 804 (1992). The Appeals Board finds that claimant's employment did not
create a special hazard or increased risk and compensation should be denied. Russell v. Montgomery Ward and
National Union Fire Insurance Company, Docket No. 211,821.
- November 1996. (Award) The Appeals Board finds that the pes cavus condition from which claimant suffers in
both feet was a congenital condition which was not caused by his employment with respondent. The medical
testimony establishes that the worsening of his condition was due to a personal risk and not a hazard of employment.
Almost any type of everyday activity would have a tendency to aggravate claimant's condition. See Martin v.
U.S.D. No. 233, 5 Kan. App. 2d 298, 615 P.2d 168 (1980); Boeckman v. Goodyear Tire & Rubber Co., 210 Kan.
733, 504 P.2d 625 (1972). Figge v. B & W Electrical Contractors, Docket No. 196,134.
- August 1996. (Ph) Injury at work, caused when claimant felt a pop in his back while rising from a chair, found
compensable despite the fact claimant had a preexisting back condition. The Board distinguished this case from that
of Martin v. U.S.D. No. 233, 5 Kan. App. 2d 298, 615 P.2d 168 (1980), by finding that unlike Martin, the claimant
in the case at hand had been at work for several hours and had been experiencing minor work connected
symptomatology prior to the actual onset of pain. Barnett v. Ratheon Aircraft Company, Docket No. 211,839.
- August 1994. (Award) Risks must be solely a personal one to make the injury noncompensable. Injuries arising
form both personal and work related risks are compensable. Bennett v. Wichita Fence Company, 16 Kan. App.2d
458, 824 P.2d 1001 (1992). Kindel (Deceased) v. Ferco Rental, Inc and Wausau Insurance Companies, Docket No.
173,368 [Affirmed by Supreme Court 258 Kan. 272 (1995)].
- March 1994. (Award) Claimant injured when he fell from stool due to seizure. Held: this was not an accidental
injury arising out of and in the course of employment because injury was caused by personal risk and not risk
associated with employment. The evidence did not establish that the employment placed claimant in a position
which increased the effects of his fall. Further, the Board was not persuaded that the mere act of sitting on a stool
constituted a "hazard of employment" so as to make compensable the injuries sustained by claimant. Griffith v.
Boeing, Docket 170,249.
4.19 Risks Having No Personal or Employment Relationship (Neutral Risks)
- January 1999. (Ph) Claimant was loading a truck for respondent when he apparently fell and passed out or blacked
out. The next thing claimant knew he was laying on a gurney. Claimant's injury occurred within the course of his
duties with respondent; however, the question for the Board was whether his injury arose out of his duties with
respondent. In following the Appeals Board's past decisions, the Board found that neutral risks, such as
unexplainable falls, are compensable and the Board finds as such in this case. See Larson's Workers' Compensation
Law, §10.31(a) (1998). Toumi v. Senne & Company, Inc and Builders' Association Self-Insurers' Fund, Docket No.
237,798.
- December 1998. (Ph) Appeals Board follows majority view and finds fall while walking down stairs for no
explainable reason to be compensable as a neutral risk. Hall v. Disability Supports of the Great Plains and
Travelers Insurance Company, Docket No. 234,957.
- September 1997. (Ph) Claimant, a sales clerk, felt a pop in her right foot accompanied by pain, while she was
walking up stairs at work. Respondent agreed the accident occurred in the course of claimant's employment;
however, respondent cited Martin v. U.S.D. No. 233, 5 Kan. App. 2d 298, 615 P.2d 168 (1980), for the proposition
that claimant's injury did not arise out of the employment but was a risk personal to claimant. The Appeals Board,
however, found the claimant did not have any preexisting problems which would constitute a personal risk to her as
determined in Martin. Therefore, the Appeals Board concludes that since claimant's injury was not caused by a
personal risk and the injury occurred while claimant was in the performance of her regular work duties, then the
injury has a causal connection with her employment and is compensable. Davis v. Montgomery Ward and National
Union Fire Insurance Company, Docket No. 220,775.
- July 1997. (Ph) Neutral risks, such as unexplainable falls, have no particular employment or personal character,
but still may be compensable under the Workers Compensation Act. Driscoll v. Cedar Vale Hospital, Inc. and
Phico Insurance Company, Docket No. 214,179.
- June 1997. (Ph) Claimant felt a popping in his left knee while walking back to his machine from the time clock
during his shift. Prior to his knee popping, claimant had been lifting the ends of steel sheets to slide them through a
machine. Also, claimant had never had any prior knee injuries. For preliminary hearing purposes, the Board found
the knee injury compensable. Ewing v. Great Plains Manufacturing, Inc., Docket No. 220,431.
- December 1994. (Award) Claimant, a nursing secretary for respondent, slipped and fell while walking down the
hallway of the respondent's hospital, on her lunch break, to visit a sick friend. There were no personal defects
which would have caused claimant to fall nor were there any defects in the floor which would have caused the fall.
The issue the Board was asked to decide was whether an injury suffered while claimant, remaining on the
employer's premises, visiting a sick friend over her lunch hour, constituted sufficient deviation from her
employment to be considered a risk which is personal to the worker and not compensable. The Board found that
claimant did suffer accidental injury arising out of and in the course of her employment and was entitled to benefits.
In so doing, the Board noted that although visiting sick friends was not an employment responsibility, it was an
activity allowed by the employer and was, to a certain degree, common practice at the hospital. The Board cited
Thomas v. Manufacturing Co, 104 Kan. 432, 179 P.2d 372 (1919) as being an analogous case. Uthoff v. Lawrence
Memorial Hospital and Phico Insurance Company, Docket No. 166,198.
4.20 Generally
4.21 Unexplainable Falls
- April 1999. (Ph) Approximately 15 minutes before claimant was to clock-in at work, claimant was walking up the
stairs from his locker when his left knee unexplainably gave out causing him to fall. Claimant had two previous knee
surgeries on the left knee prior to the accident; however, claimant argued he had no problems with his knee and even
played softball. Respondent, on the other hand, argued claimant experienced problems with his left knee before the
work-related injury and therefore claimant's injury resulting from a personal risk. The ALJ found medical evidence
showing the ACL tear was a new injury to be inconclusive and denied benefits citing Martin v. U.S.D. No. 233, 5
Kan. App.2d 298, 615 P.2d 168 (1980). The Board, however, found this case distinguishable from Martin, in that it
was unclear whether almost any everyday activity would have a tendency to aggravate claimant's preexisting knee
condition. Conversely, the Board also found that claimant failed to prove that his injury was not due to the
preexisting condition and hence a personal risk. Benefits denied citing the injury as a personal risk. Ronsee v.
Goodyear Tire & Rubber Company and Constitution State Insurance Company, Docket No. 237,693.
- January 1999. (Ph) Claimant was loading a truck for respondent when he apparently fell and passed out or
blacked out. The next thing claimant knew he was laying on a gurney. Claimant's injury occurred within the course
of his duties with respondent; however, the question for the Board was whether his injury arose out of his duties
with respondent. In following the Appeals Board's past decisions, the Board found that neutral risks, such as
unexplainable falls, are compensable and the Board finds as such in this case. See Larson's Workers' Compensation
Law, §10.31(a) (1998). Toumi v. Senne & Company, Inc and Builders' Association Self-Insurers' Fund, Docket No.
237,798.
- See Also, Donavan Rogers vs. Wal-Mart and Insurance Company State of Pennsylvania, Docket no. 233,965 (May
2000).
- December 1998. (Ph) Appeals Board follows majority view and finds fall while walking down stairs for no
explainable reason to be compensable as a neutral risk. Hall v. Disability Supports of the Great Plains and
Travelers Insurance Company, Docket No. 234,957.
- July 1997. (Ph) Employee falls while walking down a hospital hallway. There is no evidence of any personal
defect or defect in the floor to have caused the fall. The Appeals Board awards compensation for this unexplainable
fall on the basis the fall is a neutral risk, which would not have otherwise occurred at work if claimant had not been
working. Driscoll v. Cedar Vale Hospital, Inc. and Phico Insurance Company, Docket No. 214,179.
- December 1994. (Award) Claimant, a nursing secretary for respondent, slipped and fell while walking down the
hallway of the respondent's hospital, on her lunch break, to visit a sick friend. There were no personal defects
which would have caused claimant to fall nor were there any defects in the floor which would have caused the fall.
The issue the Board was asked to decide was whether an injury suffered while claimant, remaining on the
employer's premises, visiting a sick friend over her lunch hour, constituted sufficient deviation from her
employment to be considered a risk which is personal to the worker and not compensable. The Board found that
claimant did suffer accidental injury arising out of and in the course of her employment and was entitled to benefits.
In so doing, the Board noted that although visiting sick friends was not an employment responsibility, it was an
activity allowed by the employer and was, to a certain degree, common practice at the hospital. The Board cited
Thomas v. Manufacturing Co, 104 Kan. 432, 179 P.2d 372 (1919) as being an analogous case. Uthoff v. Lawrence
Memorial Hospital and Phico Insurance Company, Docket No. 166,198.
4.22 Injuries Caused by Acts of Nature and Forces From Outside the Employment
4.23 Injuries Caused by Fights and Assaults
- August 2000 (Ph) An assault by a co-worker which grew out of an argument over the performance of work is
compensable. If the dispute is not work related to the employment, the assault is not compensable. Sanchez vs.
American Pre-Sort, Inc. and Hartford Accident & Indemnity, Docket No. 253,569.
- September 1999. (Ph) For an assault stemming from a purely personal matter to be compensable, the worker must
prove that the injuries sustained were exacerbated by an employment hazard. See Baggett v. B & G Construction,
21 Kan. App.2d 347 (1995). Davis v. Evcon Industries, Inc. and Travelers Insurance Company, Docket No.
245,071.
- ----- Claimant was injured when he tried to break up a fight in the company's parking lot. The fight involved
claimant's sister. Another person involved in the fight struck claimant with a car. The Board found that claimant's
injuries did not arise out of and within the course of his employment since the injuries arose from an assault
stemming from a personal matter unrelated to claimant's job or any employment hazard. Id.
- November 1998. (Ph) Altercations between workers resulting in injuries usually do not arise out of employment
and generally will not be compensable. Addington v. Hall, 160 Kan. 268, 160 P.2d 649 (1945); Romerez v. Swift &
Co., 106 Kan. 844, 189 P.2d 923 (1920). However, an injury sustained by an employee during an assault arises out
of the employment when it arises out of the nature, conditions, obligations, and incidents of employment in the same
manner as any other injury. Springston v. IML Freight, Inc., 10 Kan. App. 2d 501, 704 P.2d 394 (1985). Further, it
is generally accepted that if an assault grows out of an argument over the performance of work, the injury is
compensable. 1 Larson's Workers Compensation Law, sec. 11.12(b). And if the injury by assault arises out of and
in the course of employment, it is compensable without regard to whether claimant was the aggressor in the
confrontation. Springston at 505. In the case at hand, since the employment involvement seemed to exacerbate the
co-workers' personal disputes, and ultimately led to the injuries suffered by claimant, the Appeals Board finds
claimant's injuries did arise out of his employment with respondent. Adams v. Smith Temporary Services and
Legion Insurance Company, Docket No. 230,849.
- September 1997. (Ph) Claimant's injuries from an assault by two unknown assailants in respondent's parking lot
held to arise out of and in the course of the employment. The Appeals Board found claimant's risk of being
assaulted at work was a greater risk than the general public was generally exposed to because of the particular
location of the respondent's plant and parking lot. See Also, Hensley v. Carl Graham Glass, 226 Kan.256, 597 P.2d
641 (1979); and, Orr v. Holiday Inns, Inc., 6 Kan. App.2d 335, 627 P.2d 1193 (1981). Taylor v. The Boeing
Company and Kemper Insurance, Docket No. 220,374.
4.24 Among Co-Workers
- January 2000. (Ph) Injury caused by assault in dispute with coworker is compensable if: (1) the dispute involves
the employment; (2) the work conditions increase the risk or cause the injury to be worse; or (3) the employer has
reason to anticipate the assault. Such an injury is not otherwise compensable. Cruz v. Dragon Inn, Inc., Docket No.
248,633.
- May 1999. (Ph) Injury sustained in altercation at work with co-worker found not compensable, where the
altercation was the result of a personal dispute, was not work-related and respondent could not foresee the
altercation. Kuker v. Dodge City Tire Center, Inc and Oak River Insurance Company, Docket No. 241,368.
- November 1998. (Ph) Claimant and his brother engaged in an argument at home over smoking cigarettes.
Claimant and his brother also both worked together at a school cafeteria where claimant supervised his brother/co-worker. Later in the day in which claimant and his brother argued at home about cigarettes, claimant found himself
having to discipline his brother at work, who was still apparently upset about the previous argument at home, and
was banging pots and pans together. Claimant's brother's behavior was also disruptive to his co-workers. Claimant,
as the cafeteria manager, was obligated to take action. This required him to leave his office and confront his brother.
At this point, claimant and his brother began arguing and claimant's brother punched claimant, pushing claimant to
the floor where he hit his head. Based on the evidence, the Board finds the ensuing argument and confrontation at
work grew out of the performance of claimant's brother at work and it was claimant's job responsibilities which
placed claimant in proximity with his assailant at that time and place. The Board finds that even though the initial
reason for the argument and claimant's brother's behavior was not about work, the employment exacerbated the
dispute and resulted in the injury. Additionally, a finding that the altercation was not work related because claimant
and his brother quarreled before coming to work would ignore the claimant's supervisory role and relationship to his
assailant and the principle of liberal construction. The Board therefore finds claimant and his brother's altercation
and resulting injury by battery grew primarily out of a disagreement concerning work. The ALJ's Order of
preliminary hearing benefits should be affirmed. Granger, II and Great Western Dining Service and Royal
Insurance Company of America, Docket No. 231,730.
- November 1998. (Ph) Altercations between workers resulting in injuries usually do not arise out of employment
and generally will not be compensable. Addington v. Hall, 160 Kan. 268, 160 P.2d 649 (1945); Romerez v. Swift &
Co., 106 Kan. 844, 189 P.2d 923 (1920). However, an injury sustained by an employee during an assault arises out
of the employment when it arises out of the nature, conditions, obligations, and incidents of employment in the same
manner as any other injury. Springston v. IML Freight, Inc., 10 Kan. App. 2d 501, 704 P.2d 394 (1985). Further, it
is generally accepted that if an assault grows out of an argument over the performance of work, the injury is
compensable. 1 Larson's Workers Compensation Law, sec. 11.12(b). And if the injury by assault arises out of and
in the course of employment, it is compensable without regard to whether claimant was the aggressor in the
confrontation. Springston at 505. In the case at hand, since the employment involvement seemed to exacerbate the
co-workers' personal disputes, and ultimately led to the injuries suffered by claimant, the Appeals Board finds
claimant's injuries did arise out of his employment with respondent. Adams v. Smith Temporary Services and
Legion Insurance Company, Docket No. 230,849.
- September 1998. Claimant and a co-employee were in a conversation regarding the processing of a student loan.
Claimant provided an answer to the co-employee which the co-employee did not accept. The co-employee found a
contrary answer in a training manual and hit claimant on the top of the head with the manual. There is considerable
disagreement as to the force of the hit; however, claimant suffered headaches from this blow to the head and missed
work. The Board finds the Assistant Director was correct in finding that a battery suffered at the hands of a fellow
employee regarding a work-related disagreement is compensable. See Brannum v. Spring Lakes County Club, Inc,
203 Kan. 658, 455 P.2d 546 (1969). Although respondent argues a battery did not occur as there was no criminal
intent involved in the hitting, the Board finds, in this instance, the question of whether there was criminal intent to
constitute battery or negligence in the part of one employee hitting another to be irrelevant. The actions of the co-employee stem from a discussion regarding a work-related issue and occurred during a time when claimant was at
work for her employer. As a result of the co-employee's hitting claimant on the head, claimant suffered a work-related accident arising out of and in the course of her employment for which benefits can be awarded. Spring v.
SLM Holding Corp, Inc and Vigilant Insurance Company, Docket No. 230,874.
- See Also, Meeks vs. Kansas Oxide Corporation and Hartford Accident & Indemnity, Docket No. 241,740 (January
2001). Board discusses the assault exception.
- May 1997. (Ph) Claimant was injured when a coworker dragged him out of a truck and wrestled him to the point
where claimant fell and the coworker fell on him. Claimant offers no explanation for the event, and the record
otherwise does not explain the motive. The Appeals Board agrees with the conclusion by the Administrative Law
Judge that the injury was not compensable as it does not fit any of the criteria for awarding benefits in the case of a
fight between coworkers. First, the fight did not pertain to any condition or requirement of the job. Springston v.
IML Freight, Inc., 10 Kan. App.2d 501, 704 P.2d 394 (1985). The injury was not aggravated or exacerbated by
some aspect of the work place. Baggett v. B & G Construction, 21 Kan. App.2d 347, 900 P.2d 857 (1995). The
event as described appears to have been horseplay not approved by the employer. The evidence does not establish
that the respondent could have foreseen or anticipated the event. Harris v. Bethany Medical Center, 21 Kan. App.2d
804, 909 P.2d 657 (1995). Huddleston v. Chawk Construction, Inc. and Fireman's Fund Insurance Company,
Docket No. 219,234.
4.25 By Insane or Intoxicated Persons
4.26 Injuries Caused by Non Co-workers
4.27 Injuries Caused by Employees Engaging in Willful Misconduct
4.28 Unexplained Deaths
4.29 Suicide
- December 1996. (Award) The Board finds the decedent's intoxication at the time of his suicide as well as the
provisions of K.S.A. 1991 Supp. 44-501(d) bar the compensability of decedent's suicide. See Also Rodriguez v.
Henkle Drilling & Supply Co., 16 Kan. App.2d 728, 828 P.2d 1335, rev. denied 251 Kan. 939 (1992), adopting the
chain of causation test to determine the compensability of suicides under the Workers Compensation Act. McGuire
v. Martin K. Eby Construction Company, Inc and Aetna Casualty & Surety Company, Docket No. 190,596.
[Affirmed by unpublished Court of Appeals opinion, Docket No. 78,314].
- ----- But See, Dissent, the Dissenting Board Member would find the decedent's suicide to be compensable under
the Workers Compensation Act because there is an unbroken chain-of-causation between the consequences of
decedent's work-related back injury and his death. Id.
4.30 Accidents
4.31 Generally
4.32 Definition of
- September 1998. (Ph) The Appeals Board finds the assault of one employee whereby a co-employee hit claimant
on the head with a training manual causing claimant to suffer a sudden and unexpected event of an unfortunate
nature accompanied by a manifestation of force constitutes an accident per K.S.A. 1997 Supp. 44-508(d). As a
result of this unexpected event, claimant suffered a lesion or change in the physical structure of her body causing
damage or harm thereto so that claimant' body gave way under the stress of the workers' usual labor. The fact that
there may or may not have been external or visible signs of this lesion or change is irrelevant under K.S.A. 1997
Supp. 44-508(e). Spring v. SLM Holding Corp, Inc and Vigilant Insurance Company, Docket No. 230,874.
- May 1998. (Award) The term "accident" and "injury are not synonymous and neither are the terms "injury" and
"disability." See, eg., Barke v. Archer Daniels Midland Co., 223 Kan. 313, 573 P.2d 1025 (1978). Corbett v.
Schwan's Sales Enterprises and Liberty Mutual Insurance Company, Docket No. 216,787. [Reversed by
unpublished Court of Appeals opinion, Docket No. 81,349, December 10, 1999.]
- June 1997. (Award) Accident defined as "an undesigned, sudden and unexpected event or events, usually of an
afflictive or unfortunate nature and often, but not necessarily accommodated by a manifestation of force. The
elements of an accident, as stated herein, are not to be construed in a strict and literal sense, but in a manner
designed to effectuate the purpose of the workers compensation act that the employer bear the expense of accidental
injury to a worker caused by the employment." See K.S.A. 1990 Supp. 44-508(d). Lenhart v. Koss Construction
Company and United States Fidelity & Guaranty Co., Docket No. 159,327. [Affirmed by unpublished Court of
Appeals opinion, Docket No. 79,516].
- May 1997. (Ph) Claimant testified he had been attempting to untangle a chain while on his hands and knees on the
floor. As he stood up, he experienced an onset of symptoms which substantially worsened over the next hour.
Claimant ultimately passed out and fell. The Appeals Board found the definition of an accident does not require a
manifestation of force; and although the events described by claimant reach the border of the definition of an
accident, the Appeals Board nevertheless concludes that it did constitute an accident as contemplated by the Kansas
Workers Compensation Act. See Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 573 P.2d 1036
(1978). Clark v. Overland Park Maintenance Mgmt., Inc. and Liberty Mutual Insurance Company, Docket No.
217,371; and, Clark v. Superior Door Service of Johnson County, Inc. and American States Insurance, Docket No.
217,372.
4.33 Long Period After Exposure, Coupled With Manifestation of Injury
4.34 Types of Accidents
4.34a Cut
4.34b Damage to an Artificial Member
- May 1997. (Ph) Under K.A.R. 51-9-2, damage to an artificial member by work activities constitutes personal
injury by accident and is not considered the result of natural wear and tear. Therefore, where claimant damaged his
two prostheses, the Appeals Board concludes claimant has sustained a new accident and must bring a new claim for
replacement and repair of the damaged devises. Solis v. Brookover Ranch Feedyard, Inc. and United States Fidelity
& Guaranty Co., Docket No. 190,678.
4.35 Date of Accident
4.36 Generally
- May 2000. (Award) Claimant suffered repetitive trauma injuries. The Board found under these circumstances that
the date of accident was the date of the regular hearing. The regular hearing date was the date the claimant alleged
she was at maximum medical improvement. Marsha L. Kelley vs. Kinedyne Corporation and American Home
Assurance Company and Fremont Compensation Ins. Group, Docket No. 233,493.
- May 2000. (Award) The Board concluded that the most appropriate date of accident for a series of micro-traumas
is the last day claimant worked before her job significantly changed due to her reduced overtime hours. Maria E.
Rubalcava vs. Hiland Dairy Company and Old Republic Insurance Company, Docket No. 231,943.
- February 2000. (Award) Where claimant continued to injure his back while working with bread racks, Board
found date of accident was last day worked with bread rack. Following Treaster v. Dillon Companies, Inc., 267 Kan.
610, 987 P.2d 325 (1999), the Board treated the elimination of work with the bread racks as a substantial change to
the job so that the date of that change becomes the date of accident. The Board here interpreted the substantial
change referred to in Treaster as a change that eliminates the offending activity. Marker v. Interstate Brands
Corporation, Docket No. 199,375.
- See Also, Robertson vs. Great Clips For Hair and American Family Mutual Insurance Co., Docket No. 225,337
(October 2000).
- September 1999. (Award) Claimant suffered a work-related injury of a repetitive nature, underwent surgery for
that injury, returned from surgery and continued working for respondent, then resigned his position. The Board
found the date of accident to be last day before surgery, where evidence showed claimant suffered little additional
injury after that date and where he left employment to pursue a different career rather than as a result of his work-related injury. Thompson Jr. v. Lady Baltimore Foods, Inc and Self-Insured, Docket No. 210,700 [Affirmed by
unpublished Court of Appeals opinion, No. 84,015, August 25, 2000.]
- See Also, Herrera vs. Circle K and Travelers Property Casualty Company, Docket No. 239,233 (September 2000).
- June 1999. (Ph) In a series of accidents, the date of accident is the last day worked before leaving work because of
the injury. This is also the date for determining timeliness of notice and written claim. Pope v. Overnite
Transportation Company, Docket No. 237,559.
- May 1999. (Award) Since the Board is not bound by the technical rules of evidence, the Board awarded workers
compensation benefits to claimant finding that she suffered a work-related accident occurring sometime in October
of 1996 despite the fact that claimant alleged a September 1996 date of accident. Since claimant had a limited
ability to speak and understand English and since evidence pointed to the fact that a work-related injury did actually
occur -- probably sometime in October of 1996 -- the Board determined the appropriate date of accident in this case.
Pearson v. North American Philips Lighting and Travelers Insurance Company, Docket No. 219,177 [Affirmed by
unpublished Court of Appeals opinion, Docket No. 83,444, March 3, 2000].
- September 1998. (Ph) In Berry, Condon, and Alberty, the Court of Appeals established certain "bright line rules"
for determining a single date of accident in repetitive trauma cases in order to have a date from which permanent
partial disability benefits would commence and for assigning liability for those benefits. The Court did not say that
an injured worker could not receive preliminary benefits of medical treatment and/or temporary total disability
compensation before that date. Without finding a specific date of accident, the ALJ found claimant sustained
personal injury by accident arising out of and in the course of the employment with respondent; preliminary benefits
were awarded. The ALJ's award of preliminary hearing benefits is affirmed. Shafer v. Smith Trucking and Great
Wast Casualty Company, Docket No. 233,053.
- August 1998. (Award) Claimant complained of carpel tunnel or a series of micro trauma injuries to her wrists.
Claimant was provided with no restrictions, with the exception of a splint. She continued performing her regular job
up and until a 1994 surgery. There is no indication that respondent provided her with any type of accommodation
during this period of time and she was provided no specific medical restrictions prior to surgery. The Appeals
Board, therefore, finds that the date of accident is the date on which claimant last performed services for her
employer and was required to stop as a direct result of claimant's pain and disability from the carpal tunnel
syndrome. The Board acknowledges this case is not exactly like Berry as claimant did return to work for respondent
after the surgery. It further acknowledges this is not exactly like Condon or Alberty as claimant was not provided
restrictions by a treating physician which precluded her from doing her regular job. The date of accident is,
however, the last date claimant worked for respondent and suffered aggravation of her carpal tunnel syndrome as a
result of her work duties before she underwent surgery. This logically becomes the last date on which claimant
suffered micro trauma and is the appropriate date of accident. Johnson v. Salem Hospital, Inc and Liberty Mutual
Insurance Company and Kansas Workers Compensation Fund, Docket No. 203,646. [Dismissed by unpublished
Court of Appeals opinion, Docket No. 82,030, December 23, 1999.]
- August 1998. (Ph) Date of accident discussion utilizing logic set forth in Helms v. Tollie Freightways, Inc, 20
Kan. App.2d 548, 889 P.2d 1151 (1995), and the "last injurious exposure" rule. Washburn v. Hopkins
Manufacturing and Zurich Insurance Company CNA Insurance Companies, Docket No. 217,353.
- July 1998. (Award) The ALJ may and should amend the date of accident chosen by the parties or a party where the
evidences dictates that he/she should do so. Davenport v. Hallmark Cards, Inc and Kansas Workers Compensation
Fund, Docket No. 165,642.
- July 1998. (Award) The theory connecting the Berry, Condon and Alberty cases is that as long as claimant
continues to work at the same job that caused the injuries, the claimant is continuing to experience mini-traumas and
thus further injury. This is consistent with the "last injurious exposure" ruled previously followed in occupational
disease cases. In the case at hand, claimant did not leave work because of his injury but continued working for
respondent in the same job without restrictions and without accommodations until he voluntarily quit. For this
repetitive trauma case involving a series of accidents, the Appeals Board finds the date of accident is the date
claimant left work. Although he left work for reasons unrelated to the injury, the evidence shows a continued
aggravation each and every day worked and the last day worked was the last injurious exposure. Remmel, Jr. v. The
Boeing Company and Aetna Casualty & Surety Company, Docket No. 170,813. [Affirmed by unpublished Court of
Appeals opinion, Docket No. 81,693].
- July 1998. (Award) For a repetitive trauma injury, one occurring over a period of time, the date of accident is the
last day worked if the injury is the reason the claimant leaves work. Berry v. Boeing Military Airplanes, 20 Kan.
App. 2d 220, 885 P.2d 1261 (1994). If claimant does not leave work because of the injury, the last date worked may
not be the date of accident. Condon v. Boeing Co., 21 Kan. App. 2d 580, 903 P.2d 775 (1995). The date of accident
may, for example, be the date restrictions are implemented and no further injury occurs. Alberty v. Excel Corp., 24
Kan. App. 2d 678, 951 P.2d 967, rev. denied 264 Kan. (1998). In the case at hand, the Board does not believe
the injury in question was the reason claimant left work. The Board therefore adopts the date claimant left work
before her surgery for the work-related injury as the date of accident. It appears claimant was accommodated after
that date and it does not appear there was any permanent injury after that date. Milner v. American Drug Stores, Inc
d/b/a Osco Drug and Kemper Insurance Company, Docket No. 198,875. [Affirmed by unpublished Court of
Appeals opinion, Docket No. 81,675, December 23, 1999.]
- June 1998. (Ph) In Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 885 P.2d 1261 (1994), the Court of
Appeals attempted to establish a bright line rule whereby in repetitive trauma cases, the date of accident would be
the last day worked by claimant. Problems arose with this theory, however, which the Court of Appeals addressed
in Condon v. Boeing Co., 21 Kan. App.2d 580, 903 P.2d 775 (1995). There claimant left work for reasons unrelated
to her injury. Instead of applying the last day worked rule, the Court in Condon found claimant's date of accident to
have been earlier than the last day worked. Further, the Board finds Condon stands more for a "date of onset of
symptoms" or "date of seeking medical treatment" rule than it does for a "date of restrictions" rule. But the Court
strictly applied a date of restrictions rule for determining the date of accident in Alberty v. Excel Corporation, 24
Kan. App.2d 678, 851 P.2d 967, rev. denied 264 Kan. (1998). The connecting thread between the recent trend in
repetitive trauma cases is a variation of the last injurious exposure rule previously followed in occupational disease
cases. The claimant's last injurious exposure to repetitive or cumulative trauma is when he/she leaves work. But
when claimant does not leave work or leaves work for a reason other than the injury, then the last injurious exposure
is when the claimant's restrictions are implemented and/or the job changes or job accommodations are made by the
employer to prevent further injury. Sutton v. Norland Plastics, Inc and Granite State Insurance Co and Kansas
Workers Compensation Fund and Sutton v. Teleflex, Inc and Continental Natl Amer Group, Docket Nos. 183,710 &
223,862.
- ----- Claimant initially injured his right shoulder in 1993 while working for respondent. He underwent surgery but
returned to work in 1994 with restrictions. In May of 1994, he aggravated or re-injured his shoulder working on the
same machine he had worked on when he sustained his first injury. His restrictions were modified, but claimant
again aggravated or re-injured the right shoulder in July of 1994 and later in November of 1994. Around March of
1997, claimant again experienced pain in his right shoulder while working on plastic molds in respondent's factory.
Although the pain he experienced in March 1997 was similar to his previous injuries, it was described as more
intense. The Appeals Board finds claimant has sustained a new accidental injury that arose out of and in the course
of his employment with respondent. Claimant continued working for respondent after the 1997 aggravation or re-injury; therefore, under the Condon and Alberty line of cases, if claimant has a new injury, the date of accident will
be the date claimant leaves work due to his injury or when new or additional restriction s are imposed by a
physician, but that date has yet to occur. Therefore no new date of accident is established; nevertheless, claimant is
entitled to preliminary benefits under the new docketed claim with the date of accident being a series with a
beginning date but no ending date yet. Id.
- March 1997. (Ph) Discussion of recent appellate court cases discussing the date of accident. See Berry v. Boeing
Military Airplanes, 20 Kan. App. 2d 220, 885 P.2d 1261 (1994); and Condon v. Boeing Co., 21 Kan. App.2d 580,
903 P.2d 775 (1995). See Discussion in, Stevens v. The Boeing Company and American Manufacturers Mutual Ins.
Co., Docket No. 219,071.
- February 1994. (Award) Where injury occurs while driving to physical therapy session, date of accident is date of
original injury for which therapy is being provided and average weekly wage is computed for that date of accident.
Helms v. Tollie Freightways, Inc., Docket No. 152,668. [ Reversed by Court of Appeals in Helms v. Tollie
Freightways, Inc., 20 Kan. App.2d 548, 889 P.2d 1151 (1995)].
4.37 Last Day Worked: Berry and Condon Rules Analyzed; Alberty Discussed
Berry v. Boeing Military Airplanes, 20 Kan. App.2d 220, 885 P.2d 1261 (1994)
Condon v. Boeing Co., 21 Kan. App.2d 580, 903 P.2d 775 (1995)
Alberty v. Excel Corp., 24 Kan. App.2d 678, 951 P.2d 967, rev. denied 264 Kan. (1998)
- February 2000. (Award) Where claimant continued to injure his back while working with bread racks, Board
found date of accident was last day worked with bread rack. Following Treaster v. Dillon Companies, Inc., 267 Kan.
610, 987 P.2d 325 (1999), the Board treated the elimination of work with the bread racks as a substantial change to
the job so that the date of that change becomes the date of accident. The Board here interpreted the substantial
change referred to in Treaster as a change that eliminates the offending activity. Marker v. Interstate Brands
Corporation, Docket No. 199,375.
- June 1999. (Award) Date of accident found to be date restrictions were implemented in the form of a change to a
lighter-duty job. See Alberty. Baltazar v. IBP, Inc, Docket No. 211,837.
- March 1999. (Award) Claimant continued working for respondent up to the date he underwent the three surgeries
for his hand and finger injuries in March of 1996, and thereafter returned to work for respondent at his regular job.
Claimant's last day worked in June of 1996 was not associated with his injuries, but was instead connected with
claimant's desire to obtain other employment. Therefore, in line with the Condon decision, the Board finds the
appropriate date of accident for the series of microtraumas to be the last day claimant worked for respondent prior to
undergoing the final surgery by his physician in March of 1996. Wiley v. Dillon Companies, Inc, Docket No.
205,235.
- December 1998. (Award) Where the evidence in the record does not adapt to the assignment of a date of accident
to any specific event because the injuries occurred over a period of time, the Board concludes the last day worked is
the most appropriate date to use to determine what law applies and where permanent disability benefits begin. Lott-Edwards v. Americold Corporation and Wausau Underwriters Insurance Co and National Union Fire Insurance Co
and Travelers Property Casualty, Docket Nos. 175,770; 175,771; and 223,800 [Affirmed by Court of Appeals
opinion, Docket No. 82,555, June 23, 2000].
- See Also, Zapata vs. IBP, Inc. and Kansas Workers Compensation Fund, Docket Nos. 168,211 & 177,505 (August
2000).
- April 1998. (Award) In August of 1992, while working for respondent, claimant tripped on the threshold of a hotel
door and fell head first into a marble wall. Respondent argued the appropriate date of accident should be August of
1992, because all claimant's symptoms stem from that date with no aggravation thereafter. The Appeals Board,
however, in following Berry v. Boeing found the appropriate date of accident to be June 1, 1993, the last day
claimant worked for respondent. Campbell v. Gunning Wholesale, Inc and Cincinnati Casualty Company and
Kansas Workers Compensation Fund, Docket No. 187,424.
- April 1998. (Award) Claimant suffered injuries to his shoulder and neck as a result of a series of micro traumas
both before and during claimant's employment with respondent as a knife sharpener. The neck and shoulder injuries
were symptomatic at the time claimant was examined in 1992 and continued to worsen when claimant was required
to work the knife sharpening job by himself. Respondent accommodated claimant's limitations and restrictions in
the knife room through May 5, 1994, at which time claimant was taken off work for medical treatment and placed
on temporary total disability compensation. During this time, claimant received additional restrictions from a
physician which respondent was unable to meet and accommodate. Claimant was laid off work with no further offer
of accommodation from respondent in May of 1995. However, the record indicated claimant's last day of work was
May 5, 1994, approximately one year before the actual layoff. In determining the date of accident, the Appeals
Board finds claimant's circumstance is somewhat akin to both Condon and Berry. Here, claimant lost his job as a
result of a general layoff. However, claimant left work on May 5, 1994, for the purpose of seeking medical
treatment. Claimant was thereafter placed on temporary total disability compensation and remained on temporary
total disability compensation for several weeks beyond his termination of employment in 1995. The Appeals Board
finds that claimant's upper extremity micro-trauma injuries to his shoulders and neck occurred through a series of
accidents culminating on May 5, 1994, the last day claimant worked before he sought medical treatment and was
placed on temporary total disability. Villalobos v. National Beef Packing Company and Lumbermen's Underwriting
Alliance and Kansas Workers Compensation Fund, Docket No. 184,413.
- March 1998. (Ph) Claimant injured her knee while climbing stairs at work. At the time of injury, claimant worked
for two separate employers. The Board awarded benefits for claimant against respondent finding that although
claimant performed similar housekeeping duties for both employers, claimant really only climbed stairs while
working for respondent. Claimant left work for respondent after having a restriction against her climbing stairs; this
is the date of accident determined by the Board and not the date claimant stopped working for the second employer
as respondent argues. Nelson v. Maxus Properties and Truck Insurance Exchange, Docket No. 227,485.
- March 1998. (Order) Claimant suffered a specific injury to her right shoulder on February 16 1996, after which
time she was off duty for a period of time and then returned to work for a short period at light duty. When she began
working her regular job, the symptoms in her right hand and wrist worsened. Her condition worsened until her
physician recommended surgery in October 1997. The Appeals Board finds the logic of Condon applies in this
instance where a claimant suffers ongoing and continuous aggravation of a micro trauma injury and is then
recommended to undergo surgery. Therefore, the appropriate date of accident is October 1997, when claimant was
recommended for surgery. Goddard v. South Haven Guest Home and Commercial Union Insurance Company and
Kansas Workers Compensation Fund, Docket No. 223,167.
- February 1998. (Award) Claimant suffered repetitive micro traumas while working on her feet until August 3,
1993, when claimant's feet were put in casts and respondent offered an accommodated job to be performed while
sitting. The last day claimant was able to perform her regular job duties and, therefore, the last day claimant
sustained repetitive micro traumas to her feet was found to be August 3, 1993--which is determined to be the date of
accident. Treaster v. Dillon Companies, Inc. and Workers Compensation Fund, Docket No. 205,065. [Affirmed by
Kansas Supreme Court, Docket No. 80,830, July 9, 1999].
- December 1997. (Ph) Pursuant to Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 885 P.2d 1261 (1994),
the Appeals Board finds claimant's date of accident for his left hand injury constitutes a series of accidents from
July 15, 1996, through August 14, 1996, the last date claimant performed services for respondent as a delivery truck
driver. Korthanke v. Schwan's Sales Enterprises and Continental Casualty Company, Docket No. 220,101.
- December 1997. (Ph) The Appeals Board applies the holdings in Berry and Condon and finds claimant's first
accident resulted in a single traumatic event and second accident resulted in a series of aggravations with the date of
accident being the last day worked. Hanna v. M. Bruenger & Co., Inc. and Leona Bruenger & Co., Inc. and New
Hampshire Insurance Company and Business Insurance Company, Docket No. 222,182.
- October 1997 (Award) Held, the appropriate date of claimant's accident is the last day worked. Claimant's work-related injuries worsened resulting in increased work restrictions that respondent was unable to accommodate.
Therefore, claimant's last day worked is the appropriate date of accident because claimant was required to leave
work due to repetitive type injuries sustained over a period of time. See Durham v. Cessna Aircraft Company, 24
Kan. App. 2d 334. Syl. ¶ 1, 945 P.2d 8 (1997). Maberry v. Rubbermaid Specialty Products and American
Manufacturers Mutual Ins. and Kansas Workers Compensation Fund, Docket No. 186,053.
- June 1997. (Award) Claimant, a roller operator for a road building crew, suffered from a distended bladder and
resulting incontinence problem. This injury was not the result of a single event or trauma but gradually came about
as a result of respondent's failure to transport claimant on a regular, timely basis to restroom facilities. The date of
accident was therefore determined to be the last day worked, consistent with the Court of Appeals holding in Berry
v. Boeing Military Airplanes, 20 Kan. App.2d 220, 885 P.2d 1261 (1994). Lenhart v. Koss Construction Company
and United States Fidelity & Guaranty Co., Docket No. 159,327. [Affirmed by unpublished Court of Appeals
opinion, Docket No. 79,516].
- June 1997. (Award) Where claimant lost his job with his employer due to the employer's inability to accommodate
the restrictions recommended by claimant's physician for claimant's repetitive trauma, work-related injury, the
Appeals Board follows the bright line rule in Berry v. Boeing Military Airplanes, 20 Kan. App.2d 220, 885 P.2d
1261 (1994), and finds claimant's last day worked should be treated as the date of accident. Garcia v. National Beef
Packing Company and Wausau Underwriters Insurance Co. and Lumbermen's Underwriting Alliance and Kansas
Workers Compensation Fund, Docket No. 201,067. [Affirmed by unpublished Court of Appeals opinion, Docket
No. 79,459].
- See Also, Munsell-Wolf v. First Choice Support Services and Continental Loss Adjusting Services, Inc. and Workers
Compensation Fund, Docket No. 189,400 (August 1997).
- June 1997. (Ph) Although the holding in Berry v. Boeing Military Airplanes was found not to apply since claimant
did not leave the employment because of the injury but rather because she disliked a co-worker, the Appeals Board
believes the last day worked should be treated as the date of accident in this case where claimant's injuries were
from repetitive traumas resulting in carpal tunnel syndrome and where claimant's injuries significantly worsened in
the last two weeks of employment. Van Velzer v. Levy and Craig, P.C. and St. Paul Fire & Marine Insurance Co.,
Docket No. 219,718.
- June 1997. (Award) Date of accident for repetitive trauma injuries discussed. The Appeals Board believes the
court in Condon v. Boeing Co., 21 Kan. App.2d 580, 903 P.2d 775 (1995), dimmed the bright line rule set forth in
Berry v. Boeing Military Airplanes, 20 Kan. App.2d 220, 885 P.2d 1261 (1994), wherein the Court of Appeals held
the last day of work was the appropriate date of accident for repetitive trauma injuries such as bilateral carpal tunnel
syndrome. In Condon, the court distinguished Berry and held the date of accident for repetitive trauma injuries is
not always the last day worked when the worker leaves work for other than medical reasons. The Condon court did
not attempt to devise a new bright line test, but instead, left the fact-finder to determine the appropriate date of
accident based upon the facts. Ross v. Day & Zimmermann, Inc. and Liberty Mutual Insurance Company, Docket
No. 196,104. [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,497].
- See Also, Garcia v. National Beef Packing Company and Wausau Underwriters Insurance Co. and Lumbermen's
Underwriting Alliance and Kansas Workers Compensation Fund, Docket No. 201,067 (June 1997). [Affirmed by
unpublished Court of Appeals opinion, Docket No. 79,459].
- May 1997. (Ph) Claimant worked for respondent as a scaler, which required her to weigh and box bacon as it was
moving down an assembly line. One day in April or May of 1996, claimant alleges she felt a pop in her back and
injured it in a work-related accident. She continued to work for respondent until September 16, 1996, when her low
back symptoms worsened to the point that she had to seek medical treatment. Claimant was then given work
restrictions on September 17, 1996, which respondent could not accommodate. The Appeals Board finds the
appropriate date of accident to be her last day worked, September 17, 1996. Furthermore, claimant did provide
notice of the accident through a conversation with respondent's personnel manager on September 17, 1996, in
which claimant informed personnel her injury was work-related. Collins v. Dold Foods, Inc., Docket No. 220,681.
- April 1997. (Award) Claimant suffered an initial traumatic injury to his left hand on November 1, 1992. He
returned to work using his right hand mostly but had to switch back to using his left hand when he began having
trouble with the right hand. As a result, the left hand worsened. The Appeals Board found claimant had sustained
bilateral upper extremity injuries resulting from a single initial traumatic event followed by repetitive use thereafter.
In accordance with the principles outlined in Condon v. Boeing Co., the day claimant received work restrictions is
treated as the date of accident. Fellows v. The Boeing Company and American Manufacturers Mutual Ins. Co.
Aetna Casualty & Surety Company and Kansas Workers Compensation Fund, Docket No. 211,209.
- April 1997. (Ph) Where claimant's carpal tunnel syndrome in his left upper extremity was caused by repetitive
micro traumas, the Appeals Board finds the appropriate date of accident to be claimant's last day worked.
Respondent and its insurance carrier on that date are responsible for providing medical treatment. Smith v. National
Vision Center and Hartford Accident & Indemnity Co. & Travelers Indemnity Company, Docket Nos. 206,033 &
220,001.
- See Also, Lee v. OK Transfer & Storage Inc, Docket No. 202,798 (October 1998).
- February 1997. (Award) Claimant has alleged accidental injury on April 29, 1994; March 1, 1995; March 15,
1995; and each and every day through claimant's last day of work on July 25, 1995. The Administrative Law Judge
found claimant had suffered accidental injury on April 29, 1994, with claimant's disability through the last date of
employment being the result of claimant's April 1994 accident. The Appeals Board finds medical evidence supports
this finding. While claimant did suffer additional minor symptom flair ups in March 1995 and through claimant's
termination, the medical evidence does not support a finding that claimant suffered permanent injury on the later
dates. Claimant's attempt to apply the bright line rule of Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220,
885 P.2d 1261 (1994) to claimant's date of accident is not well received. While claimant alleges that his condition
continued to worsen through his last date of employment on July 25, 1995, there is no medical evidence to support
that allegation. The evidence indicates that while claimant's symptoms may have been worse, there was no
evidence of repetitive injury trauma nor worsening of his impairment; unlike Berry, this was not a repetitive trauma
case. Therefore, the Appeals Board found that the accident date of April 29, 1994, is appropriate. Stroud v.
Sedgwick County, Docket No. 202,590.
- February 1997. (Award) Claimant noticed problems with aches and pain in his hands up and until August 31,
1995, when he was taken off work by a physician. The Appeals Board, pursuant to Berry v. Boeing Military
Airplanes, 20 Kan. App. 2d 220, 885 P.2d 1261 (1994), finds the date of accident to be the last day claimant
worked--August 31,1995. Anderson v. The Boeing Company and Aetna Casualty & Surety Company & Kemper
Insurance Company, and Kansas Workers Compensation Fund, Docket No. 186,194. [Affirmed by Court of
Appeals in 25 Kan. App.2d 220].
- January 1997. (Award) The Administrative Law Judge reasoned that because the bright line rule announced in
Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 885 P.2d 1261 (1994), defined the last date of work as the
date of accident, claimant could not pursue a claim for carpal tunnel syndrome since she was still working. The
Appeals Board finds this logic was specifically rejected by the Court of Appeals in Condon v. Boeing Co., 21 Kan.
App.2d 580, 903 P.2d 775 (1995). In Condon a date of accident was utilized for compensation purposes that
corresponded with the date claimant received restrictions from her physician. In this case, claimant was given
permanent restrictions on August 31, 1993, and her condition did not permanently change after that date. Therefore,
the Appeals Board finds August 31, 1993, to be the date of accident. Chaffin v. State of Kansas and State Self
Insurance Fund and Kansas Workers Compensation Fund, Docket No. 177,089.
- January 1997. (Award) Date of accident for injury resulting from claimant suffering a series of micro-traumas that
culminated on her last day of work is the last day of work. See Condon v. Boeing Co., 21 Kan. App.2d 580, 903
P.2d 775 (1995). Harding v. Monfort of Colorado, Inc., Docket No. 192,546.
- December 1996. (Award) The date claimant was put on light duty is found to be the appropriate date of accident
for claimant's repetitive carpal tunnel syndrome condition. See Condon. Radcliff v. Latshaw Enterprises and
Insurance Company of North America and Kansas Workers Compensation Fund and Radcliff v. Beech Aircraft
Corporation, Docket Nos. 177,447 & 177,448.
- October 1996. (Award) The question before the Board was what is the date of accident for injuries resulting in
upper extremity tendinitis and bilateral carpal tunnel syndrome when the claimant continues to work for the
respondent in an accommodated job? The Board found the date of accident to be the last day claimant worked in a
light duty job before accepting a permanent accommodated position. Alberty v. Excel Corporation, Docket No.
175,246. Reversed and Remanded by Court of Appeals in Alberty v. Excel Corporation, 24 Kan. App.2d 678, 951
P.2d 967, rev. denied 264 Kan. (1998). Date of claimant's injury found to be last day of work before work
restrictions were implemented, rather than last day claimant worked on light duty before accepting a permanent
accommodated position, where claimant suffered from upper extremity tendinitis and bilateral carpal tunnel
syndrome, yet continued to work for respondent an accommodated position. See K.S.A. 44-510e(a).
4.37a Date of Accident for Occupational Diseases
- October 1997. (Award) K.S.A. 44-5a06 governs the date of accident for occupational diseases and states that the
date when an employee or workman becomes incapacitated due to the occupational disease from performing his/her
work in the last occupation in which he/she was injuriously exposed to the hazards of such disease, shall be deemed
the date of injury. This is equivalent to the date of accident under the workers compensation act. Walker v. General
Motors Corporation and Kansas Workers Compensation Fund, Docket Nos. 196,172 & 196,173.
- ----- Claimant began working for respondent, General Motors, as a pipefitter. Approximately one year after he
began his work with respondent, claimant was diagnosed as having asthma. After his extended sick leave, claimant
returned to work for respondent in November of 1994, and experienced exposures during the next month. The
Appeals Board found December 1, 1994, to be the last injurious exposure and will treat that date as the date of
accident. Id.
4.38 Occupational Diseases
4.39 Generally
- January 2001 (Ph) Generally, occupational diseases must disable a worker within one year of the last injurious
exposure or they are not compensable. See K.S.A. 44-5a01. Peitz vs. Vermillion, Inc. and ESIS, Docket No.
256,762.
- February 2000. (Award) The Board reviewed the measure of disability for occupational disease cases and noted
that although it had previously applied work disability standards for occupational disease the same as for accidental
injury, language in Burton v. Rockwell International, 266 Kan. 1, 967 P.2d 290 (1998) suggests the Supreme Court
still applies the single factor of loss of earning capacity as the measure of disability in occupational disease cases
and, therefore, measures disability differently for occupational disease than for accidental injury. Boldridge v.
Atchison Casting Corporation, Docket No. 233,132.
- October 1997. (Award) K.S.A. 44-5a01 as well as the decision in Strome v. N.R. Hamm Quarry, Docket No.
162,253 (March 1997), state the disability by occupational disease is to be treated the same as disability by accident
"except as specifically provided otherwise for occupational disease." The Appeals Board finds that the provisions
relating to occupational disease do not specifically provide another measure for determining disability. Accordingly,
the Appeals Board finds that disability should be measured, in cases of occupational disease, the same as it is for
accidental injury. Walker v. General Motors Corporation and Kansas Workers Compensation Fund, Docket Nos.
196,172 & 196,173.
- ----- The Appeals Board concludes that even with the changes to the work disability statute in 1993, the extent of
disability from occupational disease should be measured the same as for accidental injuries. The measure of
disability for accidental injuries remain, in part, dependent upon the ability to obtain employment in the open labor
market. This factor influences the wage aspect of the measure of disability. In addition, the wage prong depends not
only on the actual difference in wage, but , if the employee does not act in good faith in seeking employment, may
be based upon the claimant's ability to earn a wage in any employment. Id.
- See Also, Strome v. N.R. Hamm Quarry, Docket No. 162,253 (March 1997) [Affirmed by unpublished Court of
Appeals opinion, Docket No. 78,886].
4.40 Occupational Diseases as Distinguished from Ordinary Diseases of Life
- November 1997. (Award) K.S.A. 44-5a01(b) (Ensley) sets forth the definition of an occupational disease. The
Kansas Court of Appeals has interpreted that statute to require only that a claimant have a "disease," the disease
result from claimant's employment, and that it not be one of the ordinary diseases of life. See Armstrong v. City of
Wichita, 21 Kan. App.2d 750, 907 P.2d 923 (1995), rev. denied 259 Kan. (1996). See Discussion in Hitchcock
v. USD No. 214 and Trinity Universal Insurance, Docket No. 159,167.
- January 1997. (Award) Claimant has failed to prove her entitlement to benefits for an occupation disease arising
out of and in the course of her employment, where claimant's chronic obstructive pulmonary disease appears to have
resulted from her 32 plus years of smoking one to two packs of cigarettes a day rather than to any chemical
exposures at work. It is also significant that claimant had been diagnosed with emphysema and that the cause of the
emphysema was largely attributed to her cigarette smoking. Clark v. State of Kansas and Kansas Workers
Compensation Fund, Docket No. 166,795. [Affirmed by unpublished Court of Appeals opinion, Docket No.
78,552].
- January 1997. (Award) The statutory requirements for a disease to be an occupational disease per K.S.A. 44-5a01
are as follows: (1) the disease must arise out of and in the course of claimant's employment; (2) result from a special
risk or hazard of such disease which occurs in the particular type of employment; and, (3) must be something other
than an ordinary disease of life. Walker v. General Motors Corporation and Kansas Workers Compensation Fund,
Docket Nos. 196,172 & 196,173.
- ----- The Appeals Board notes that an ordinary disease of life is generally understood to include commonly
encountered diseases which the general public is equally at risk of suffering without regard to their employment.
The flu condition was cited as an example. Id.
- ----- The definition of an ordinary disease of life should be given a liberal construction to bring claimants within
coverage of the Act. Id.
4.41 Dual Causation
4.42 Increased Risk of
4.43 Last Injurious Exposure
4.44 Types of Diseases Covered
4.44a Asthma
- October 1998. (Award) Claimant found to have suffered an occupational disease of asthma while working for
respondent. Under the occupational disease statutes, K.S.A. 44-5a01(a), an occupational disease shall be treated as
the happening of an injury by accident and the employee shall be entitled to compensation for such disablement in
accordance with the provisions of the Workers Compensation Act, as in cases of injuries by accident. Wright v.
Plunkett Feedlot and EMC Insurance Company, Docket No. 173,322.
- January 1997. (Award) Asthma should be treated under the Workers Compensation Act as an occupational
disease. Walker v. General Motors Corporation and Kansas Workers Compensation Fund, Docket Nos. 196,172 &
196,173.
- ----- Asthma is not considered an ordinary disease of life. Id.
- ----- Despite medical testimony pointing to the fact that claimant's asthma was not caused by conditions at work,
the fact that claimant's asthmatic condition was made worse by the exposures while working for respondent does
satisfy the requirement that claimant's condition arise out of and in the course of the employment. Id.
- ----- Claimant's asthmatic condition was made worse by exposures to several irritants, such as oil contaminates,
exhaust, gasoline, antifreeze and paint fumes, in his employment for respondent which the Appeals Board finds to
be a particular and peculiar hazard which distinguishes that employment from other occupations and further
considers it to be a hazard in excess of the hazard of such disease in general. See Box v. Cessna Aircraft Co., 236
Kan. 237, 689 P.2d 871 (1984). Id.
- See Also, Walker v. General Motors Corporation and Kansas Workers Compensation Fund, Docket Nos. 196,172
& 196,173 (October 1997).
- December 1996. (Ph) For medical benefits to be awarded in cases of occupational asthma it is not the claimant's
burden to prove that such condition was caused solely by the employment or that this must be independent of all
other aggravating factors. All that is required is that the claimant sustain his/her burden of proving a causal
connection between the employment and the occupational disease by a preponderance of the evidence. Expert
medical evidence should be expressed to a reasonable probability. Banh v. The Boeing Company and Kemper
Insurance Companies, Docket No. 210,271.
4.44b Tuberculosis
4.44c Diabetes
- May 1997. (Award) Where claimant's failure to take his insulin and maintain a proper diet was attributed to his
diabetic crash , the Appeals Board finds the accident, although occurring at work, did not arise out of claimant's
employment with respondent. Additionally, the diabetic crash is not compensable as an occupational disease
because id did not result from the nature of the employment. See K.S.A. 44-5a01. Gumm v. George M. Myers, Inc.
and Travelers Insurance Company and Kansas Workers Compensation Fund, Docket No. 169,535 [Affirmed by
Kansas Court of Appeals in unpublished decision, Docket No. 79,321].
4.44d Multiple Chemical Sensitivity
- November 1997. (Award) Claimant, while employed by respondent as a custodian, was exposed to a variety of
cleaning products, fertilizers, and herbicides composed of a variety of chemicals. Claimant alleged that the
chemicals he was exposed to caused him to have various symptoms such as headaches, cramps, diarrhea, nausea and
confusion all of which amounted to a diagnosis of multiple chemical sensitivity in claimant's eyes. The Appeals
Board was troubled by the fact that claimant did not start exhibiting disabling physical symptoms until after he
found those particular symptoms contained in a pesticide certification manual. The Appeals Board found the
medical evidence to be highly conflicting. After extensive diagnostic examination and testing by two separate
medical facilities, the Univ. of Kansas Medical Center and the Environmental Health Center, the Health Center
diagnosed multiple chemical sensitivity caused by exposures to chemicals at work, whereas, the Univ. of Kansas
Med Center diagnosed psychiatric depression not caused by chemical exposure at work. Based upon the evidence,
the Appeals Board found those medical opinions expressed by the Univ. of Kansas Med Center to be more
persuasive. Compensation is therefore denied as claimant does not suffer from an occupational disease. Hitchcock
v. USD No. 214 and Trinity Universal Insurance, Docket No. 159,167.
4.44e Nature & Extent of Work Disability
(See Occupational Disease § 8.32)
4.45 Natural Consequence of Injury
4.45a Generally, See Also Sec. 4.46 (New Injury From Primary Accident)
- December 1999. (Award) Where claimant suffers aggravation of original injury that is a direct and natural
consequence of the original injury, the version of the AMA Guides applicable at the time of the original injury will
govern determination of functional impairment. Simmons v. Flint Hills Job Corps, Docket No. 209,343 [Affirmed as
modified by unpublished Court of Appeals opinion, Docket No. 84,569, December 22, 2000].
- September 1999. (Award) Based on medical evidence and claimant's testimony, the Appeals Board finds
claimant's low-back injury to be the natural and probable consequence of his right leg injury resulting in a whole
body functional impairment. White v. Payless Shoe Source and Kansas Workers Compensation Fund, Docket No.
180,691.
- September 1999. (Award) When the primary injury under the Workers Compensation Act is shown to arise out of
and in the course of employment, every natural consequence that flows from the injury, including a new and distinct
injury, is compensable if it is a direct and natural result of the primary injury. See Jackson v. Stevens Well Service,
208 Kan. 637 (1972). It is not compensable, however, where the worsening or new injury would have occurred even
absent the primary injury or where it is shown to have been produced by an independent intervening cause. See
Nance v. Harvey County, 263 Kan. 542 (1997). The Appeals Board finds that claimant's new job as a boilermaker
following his medical release was an intervening cause of his worsened condition. The right upper extremity injury,
therefore, constituted a new accidental injury and is not compensable as a direct and natural consequence of the
original injury to the left upper extremity. Eaker v. Proficient Food Company, Docket No. 219,173.
- April 1999. (Award) The Board affirms the ALJ's finding that claimant's rotator cuff injury is the natural and
probable consequence of claimant's original injury and resulting surgery and not due to an intervening cause -- such
as claimant's playing softball. Hernandez v. State of Kansas and State Self Insurance Fund, Docket No. 196,090.
- ----- A continuing disability which is aggravated is compensable as a natural consequence of the original injury,
while the increased disability from a new and separate non work-related accident is not. If the second injury or
disability was produced by a significant or traumatic event, involving substantial force or unusual exertion, the
second injury will constitute an intervening cause and, therefore, a new and separate accident. Id.
- March 1999. (Ph) Where the medical opinions offered into evidence did not prove to a reasonable degree of
medical probability that claimant's back problems were the natural and probable consequence of her work-related
knee injury, compensation is denied. Goforth v. Century Personnel and Ulico Casualty Company, Docket No.
230,461.
- January 1999. (Ph) Claimant suffered a work-related knee injury while working for respondent. Some three years
later, claimant experienced more trouble in her knee for which she sought medical treatment. During the three years
following the original work-related accident, claimant experienced only minor flare-ups with her knee. Based upon
the evidence in record, the Board finds claimant's current condition to be the direct and natural consequence of her
earlier work-related accident; claimant's disability gradually progressed over time. Zuercher v. Wheat State Manor,
Inc and Newton Medical Center and Kansas Association of Homes for the Aging Insurance Group, Inc and Kansas
Hospital Association, Docket Nos. 186,892 & 233,958.
- September 1998. (Ph) Claimant's current low back injury found to have been the natural and probable
consequence of claimant's limping, post surgery for a prior work-related foot aggravation. Tackett v. Koch
Chemical Company and Insurance Company of North America and Kansas Workers Compensation Fund, Docket
No. 163,962 [Reversed and remanded by unpublished Court of Appeals opinion, Docket No. 77,468].
- July 1998. (Award) The sneezing incident at claimant's home is found to be a natural and probable consequence of
claimant's original injury at work and not a superseding separate accident. Even though the sneeze at home caused
increased symptoms, the herniated disc arose out of and in the course of the employment where the radicular
symptoms occurred at the time of the accident at work. Nelson v. Delbert Crowl Co. Inc and Commercial Union
Insurance and Kansas Workers Compensation Fund, Docket No. 190,485.
- April 1998. (Award) Claimant, who worked for respondent as a registered nurse, was struck in the chest by a
patient in 1991 Claimant testified that her heart. stopped beating for several seconds and was followed by an
irregular heart beat and bloody, frothy sputum which she vomited from her lungs. After this cardiac arrest in 1991,
claimant had several complications, including the development of scar tissue and tracheal stenosis from her being
intubated for about six weeks. In 1993, claimant underwent surgery to remove the scar tissue caused by the
prolonged intubation. Claimant experienced respiratory failure and suffered a myocardial infarction during the
surgery and died. Although claimant had a preexisting rheumatic heart condition, the Board found this condition did
not contribute to the cardia arrest claimant suffered in 1993. Claimant's death in 1993 was found to be the direct
and natural consequence of the accidental injury to claimant suffered in 1991. Claimant's dependents are entitled to
death benefits pursuant to K.S.A. 1990 Supp. 44-510b. Galbraith v. St. Catherine Hospital and Liberty Mutual
Insurance Company and Kansas Workers Compensation Fund, Docket No. 154,243.
- February 1998. (Ph) Claimant injured his neck and arm while attempting to lift the side of a 1000 pound table for
respondent. Claimant subsequently left his employment with respondent and moved to California. While in
California, claimant attempted a job as a cement laborer; however, his neck and arm began hurting again.
Respondent argued claimant's actions of being a cement laborer constituted a subsequent, intervening cause of his
current neck and arm pain. The Appeals Board, however, found the work claimant performed as a cement laborer
temporarily aggravated his symptoms but did not constitute a separate and distinct injury nor did they constitute a
subsequent, intervening injury. The injuries claimant sustained as a cement laborer were the direct and natural result
of his original work-related accident. Cross v. Weckworth Manufacturing, Inc. and Employers Mutual Casualty Co.,
Docket No. 227,095.
- December 1997. (Ph) Claimant fractured her left hip when she fell in the course of her work for respondent.
Approximately one year later, while getting out of her son's truck at home, claimant suffered a compression fracture
of L-1 and fractured several ribs. Based upon the evidence in the record, the Board finds the facts do not involve
independent trauma. The Board further concludes the injury suffered while exiting the truck was not produced by a
separate accident but was, instead, the direct and natural result of the primary injury and is likewise a compensable
injury. Burbank v. Unified School District 259, Docket No. 223,983.
- October 1997. (Ph) Claimant sustained a compensable back injury in July of 1996. In March of 1997, claimant
was at home showing his children how to rake leaves when he suffered a severe onset of low back and radicular
pain. Just two days prior, claimant had been seen by a physician who noted that claimant was still suffering from
mechanical low back pain and that claimant was still symptomatic. Additionally, the activity which preceded the
aggravation of symptoms in March were not described as forceful or traumatic. Therefore, the Appeals Board
affirms the Administrative Law Judge's Order that claimant's condition is compensable as a natural consequence of
the prior compensable injury and is not a new injury resulting from a new and separate accident. Tanuis v. Great
Plains Casting, Inc. and Sentry Insurance A Mutual Company, Docket No. 217,819.
- October 1997. (Ph) Claimant's injury sustained while he was at home walking through his kitchen was found to be
the direct and natural consequence of a prior work-related injury. Specifically, the Appeals Board finds that
claimant's testimony that his left knee remained symptomatic and unstable after his surgery for his prior work-related injury, coupled with his physician's testimony that claimant's left knee remained unstable, are persuasive
that claimant's supracondylar fracture of the left femur was a direct and natural consequence of claimant's prior
work related injury. Additionally, the Appeals Board cited the case of Gillig v. Cities Service Gas Co., 222 Kan.
369, 564 P.2d 548 (1977), in which the Kansas Supreme Court affirmed a district court holding that claimant's knee
injury, that occurred some two years following a work-related knee injury, was a natural consequence of the work-related knee injury. One key factor considered by the Court in Gillig was that claimant's original injury remained
symptomatic and had not healed, leading the Court to conclude the original injury was ultimately responsible for the
current surgery. Byers v. Owen Corning Fiberglass Corporation and National Union Fire Insurance Company,
Docket No. 213,316.
- See also, Anguish v. Midwest Drywall and Hartford Accident & Indemnity, Docket No. 239,907 (July 1999).
- October 1997. (Award) Claimant alleges injuries to both right and left upper extremities arising out of and in the
course of her employment with respondent. Respondent does not deny claimant suffered accidental injury to the
right upper extremity; however, respondent believes claimant's injuries to the left upper extremity resulted from
non-work related circumstances as evidenced by the fact claimant was no longer working for respondent at the time
of the onset of the symptoms to the left upper extremity. The medical evidence and claimant's own testimony were
found to be confusing and conflicting by both the Administrative Law Judge and Appeals Board regarding the
symptomatology of claimant's alleged left upper extremity injuries. Therefore, the Appeals Board affirms the
Administrative Law Judges's Award allowing benefits for the right upper extremity but not the left upper extremity,
as the record was insufficient to conclude whether claimant's left upper extremity symptomatology was a natural
consequence of the previous injury to the right upper extremity or a separate non-compensable injury or even a
simultaneous aggravation to both upper extremities. McComas v. Home Office Reference Lab and Travelers
Indemnity Company, Docket No. 151,939. [Affirmed by unpublished, Court of Appeals decision, Docket No. 80,
256].
- ----- But See, Dissent. The Dissenting Opinion believes the evidence establishes that the left arm injury was the
natural consequence of the right arm injury due to overuse of the left arm to compensate for the right. Id.
- August 1997. (Award) Claimant suffered a work-related right forearm injury and was prescribed two medical
treatment programs: a work-hardening program and functional capacity evaluation. Claimant testified his
preexisting low back condition, which had been asymptomatic for six years, became symptomatic after he entered
the work-hardening program and was further aggravated after participating in the functional capacity evaluation. The
Board agreed that claimant's preexisting low back condition was permanently aggravated by his participation in the
work hardening program and functional capacity evaluation. Accordingly, claimant argues his low back injury and
resultant surgery was a natural and probable consequence of his work-related right forearm injury. The Appeals
Board, however, applied the Court of Appeals' reasoning in Helms v. Tollie Freightways, Inc., 20 Kan. App.2d 548,
899 P.2d 1151 (1995), and determined the back injury was not related to the right forearm injury. The low back
injury was found to be a new and separate accident, requiring its own notice under K.S.A. 44-520. Frazier v. Mid-West Painting Inc. and CNA Insurance Companies, Docket No. 199,465 [Reversed and remanded with directions by
Kansas Supreme Court, Docket No. 79,833, January 28, 2000 (Court of Appeals decision affirming the Board in
unpublished opinion January 29, 1999, is reversed)].
- June 1997. (Ph) When a primary injury under the Workers Compensation Act arises out of and in the course of a
worker's employment, every natural consequence that flows from that injury is compensable if it is a direct and
natural result of the primary injury. See Gillig v. Cities Service Gas Co. 222 Kan. 369, 564 P.2d 548 (1977). Ball v.
Overnite Transportation Company, Docket Nos. 219,441 & 219,442.
- See Also, Cibulski vs. Cohen Esry Real Estate, Inc. and CGU Hawkeye Security Insurance, Docket No. 253,381
(August 2000).
- June 1997. (Award) Where the record indicates claimant's long standing degenerative arthritic hip condition was
one which would naturally progress and where the evidence also indicates claimant had been considering having a
hip replacement for the past 20 years, the Appeals Board finds claimant's need for hip replacement surgery was not
the natural consequence of his 1981 accident. Owens v. Great Plains Manufacturing, Inc. and Safeco Insurance Co.
of North America & Aetna Casualty & Surety and Kansas Workers Compensation Fund, Docket Nos. 98,734 &
160,228 [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,498].
- June 1997. (P/A) Claimant suffered a work-related accident and injured his back in May, 1992. Later, in March of
1996, claimant experienced sharp back pains while bending over at home to pick up some toys. Medical opinion
testimony stated claimant's current back problems "related" to the original injury; however, the Appeals Board finds
the doctor's testimony regarding the back pain relating to the original injury is not equivalent to claimant's condition
being the natural consequence of the initial work-related accident. Additionally, the doctor does not identify what
the relationship might be between claimant's present problems and the original accident. Therefore, the Appeals
Board is unconvinced claimant's back pain flare ups from the March 1996 incident are the direct and natural
consequences of the May 1992 work-related accident rather than a new and separate accident. Claimant's request
for medical treatment is denied. Fox v. Praytor Construction and Aetna Casualty & Surety, Docket No. 173,869.
- ----- Although Kansas recognizes the doctrine that every natural and direct consequence which flows from a work-related injury is compensable, the doctrine is not applicable when the consequence results from a new and separate
accident. See Wietharn v. Safeway Stores, Inc., 16 Kan. App.2d 188, 820 P.2d 719 (1991). Id.
- See also, (Gaston) Parks v. Automotive Controls Corporation, Docket No. 233,786 (September 1999).
- February 1997. (Award) Because of the lengthy delay between claimant's de Quervain's and carpal tunnel
syndrome, which occurred in 1991, and the onset of claimant's thoracic outlet syndrome in 1994, the Appeals Board
finds that claimant has failed to prove the thoracic outlet syndrome is the direct and natural consequence of the 1991
accidents. Lynn v. Pioneer Materials, Inc. and St. Paul Fire & Marine Insurance Company and Workers
Compensation Fund, Docket No. 186,894.
- January 1997. (Award) Claimant was injured in 1992 while attempting to get a patient out of bed and into a wheel
chair. The patient grabbed claimant's arm and twisted it behind her back. Claimant immediately felt pain in her left
shoulder. Claimant returned to work after this incident but was not entirely symptom free. Subsequently, in 1993,
as claimant was changing a bed with the patient in it, claimant again strained her left shoulder. The Appeals Board
found the 1993 incident to be the natural consequence of the 1992 incident. No separate accident in 1993 was found
to have occurred. Accordingly, all medical treatment and periods of temporary total disability subsequent to the
1992 accident would be the responsibility of claimant's employer at the time of the original 1992 accident. Rivers v.
Atchison Hospital and Insurance Company of North American & Phico Insurance Company and Kansas Workers
Compensation Fund, Docket Nos. 189,073 & 189,687.
- March 1994. (Award) Where claimant was injured at work and subsequent incident at home (claimant bent over to
splash water on a wasp in a swimming pool) caused increased symptoms, claimant was awarded temporary total
benefits on the basis of medical testimony that intervening incident was natural consequence of lumbar disease and
was a direct consequence of an on-the-job injury. Crowell v. Frito-Lay, Inc., Docket Nos. 183,353 & 183,354.
- February 1994. (Award) Injury which occurs while driving to physical therapy is compensable injury. Helms v.
Tollie Freightways, Inc., Docket No. 152,668. [ Reversed by Court of Appeals in Helms v. Tollie Freightways, Inc.,
20 Kan. App.2d 548, 889 P.2d 1151 (1995)].
4.46 Secondary Injury / New Injury Resulting from Primary Accident, See Also
Sec. 4.45a (Natural & Probable Consequences)
- October 1999. (Award) Where claimant had reached maximum medical improvement after initial surgery and then
condition worsened, requiring second surgery, the Board found that the second surgery and increase in disability
occurred from an intervening injury when claimant lifted his grandson at home and not as a natural and direct
consequence of the original injury. The claimant was, therefore, limited to the 10 percent disability which resulted
from the first injury and surgery. Jellison v. Kiowa County, Docket No. 219,964.
- November 1998. (Award) If the injury, temporary or permanent, is the natural and probable consequence of an
earlier work-related injury, benefits are assignable to that earlier injury. If, on the other hand, there has been a new
accident, the benefits for the injury, again either temporary or permanent, are assignable to the employer and
insurance carrier for the new accident. See Burbank v. Unified School District, Docket No. 223,983 (December
1997). Council v. Shilling Construction Company, Inc and United States Fidelity & Guaranty Co, Docket No.
210,040. [Affirmed by unpublished Court of Appeals opinion, Docket No. 82,424, December 10, 1999.]
- May 1998 (Ph). Although claimant had a history of pre-existing low-back problems, claimant established that he
was capable of performing his job duties as a construction laborer up and until he suffered the June 1997 work-related injury. Claimant remained symptomatic after that injury. While the Board acknowledges the medical
records do not show a direct correlation between claimant's current low-back problems and the June 1997 accident,
the Board finds the evidence persuasive that the June 1997 injury at work either caused claimant to suffer a new
low-back injury or aggravation of a pre-existing low-back condition. Bell v. Midwest Construction Company, Inc
and Builders' Association Self-Insurers' Fund, Docket No. 231,011.
- April 1998. (Ph) Claimant's knee gave out causing him to fall and injure his knee and ankle. The injuries to his
knee and ankle were found to be the natural and probable consequence of an original work-related injury because the
original injury never fully healed and claimant never had problems with his knee prior to the original work-related
injury. Additionally, medical opinion related claimant's new, accidental injury as a part of the same process
involved in the original work-related injury. Garnica v. The Boeing Company and American Manufacturers Mutual
Ins., Docket No. 228,939.
- December 1997. (Ph) When determining whether a subsequent injury is compensable, the test remains one of
determining whether the new injury is a "direct and natural result" of the primary injury or was from a "new and
separate accident." The former is a compensable consequence of the first injury and the second is not. A "separate"
accident can logically be defined as an accident involving independent trauma, ie., trauma independent from the
original injury, as a cause of the new injury. Burbank v. Unified School District 259, Docket No. 223,983.
- ----- Claimant fractured her left hip when she fell in the course of her work for respondent. Approximately one year
later, while getting out of her son's truck at home, claimant suffered a compression fracture of L-1 and fractured
several ribs. Based upon the evidence in the record, the Board finds the facts do not involve independent trauma.
The Board further concludes the injury suffered while exiting the truck was not produced by a separate accident but
was, instead, the direct and natural result of the primary injury and is likewise a compensable injury. Id.
- See Also, Holman v. Greif Bros. Corp, Docket Nos. 214,336 & 217,115 (April 1998); and Sally Duree vs. HCA
Wesley Medical Center, Docket No. 201,208 (December 1998). [Affirmed by unpublished Court of Appeals
opinion, Docket Numbers 82,616 and 82,625, March 24, 2000.]
4.47 Results of Pre-Existing Conditions
4.47a Generally
4.47b Aggravation of,
- April 1999. (Award) Work-related factors which only produce a temporary increase in symptoms are not
considered to have produced a permanent aggravation of the underlying condition. See West-Mills v. Dillon
Companies, Inc., 18 Kan. App.2d 561, 859 P.2d 382 (1993); Jane A. Fuhr vs. Dillon Companies, Docket No.
223,475; Jane A. Fuhr vs. Albertson's, Inc., Docket No. 248,793 (June 2000). Zapata v. IBP, Inc and Kansas
Workers Compensation Fund, Docket Nos. 168,210; 168,211; & 177,505.
- See Also, Tyrone Tyner vs. Southeastern Public Service and Insurance Company fro the State of Pennsylvania,
Docket No. 196,907 (February 1999). The Board concluded the work-related accident suffered by claimant was a
temporary aggravation only and concluded claimant did not suffer any additional permanent impairment above and
beyond the impairment which existed from congenital scoliosis. [Affirmed by unpublished Court of Appeals
opinion, Docket Number 82,793, December 23, 1999.]
- April 1999. (Ph) While it was acknowledged that there were discrepancies in claimant's rendition of how the
accident occurred, the Board also acknowledged that claimant suffered an injury at work which was reported to his
employer and for which he received treatment. Further, claimant's health care provider clearly opined that
claimant's work-related accident aggravated his preexisting condition. Therefore, the Board found claimant had
proven his accidental injury arose out of and in the course of his employment. Robinson v. Stone Masons Inc and
Northwestern National Casualty, Docket No. 205,004.
- March 1999. (Ph) Benefits denied where it is determined claimant did not suffer a new injury as a result of an
aggravation, acceleration or intensification of a disease or affliction. Medical evidence did not state that claimant's
second work-related incident intensified or accelerated her current need for surgery . Hill v. Interim Personnel and
Vita Craft Corporation and Insurance Co. State of Pennsylvania and Continental National American Group,
Docket Nos. 234,285 & 236, 528.
- March 1999. Where medical evidence only substantiated an aggravation to claimant's right upper extremity and it
is opined that claimant's left upper extremity actually improved, the Award of benefits is limited to the right upper
extremity. Gillum v. Texaco Refining & Marketing and Cigna Workers Compensation, Docket Nos. 223,962 &
225,494.
- February 1999. (Award) An employee shall not be entitled to recover for the aggravation of a preexisting
condition, except to the extent that the work-related injury causes increased disability. Any award of compensation
shall be reduced by the amount of functional impairment determined to be preexisting. Houk v. Community Living
Opportunity and Cigna Workers Compensation and Workers Compensation Fund, Docket No. 189,952.
- See Also, Terry D. Rice vs. Kansas Labor, Inc. and Kansas Building Industry WC Fund, Docket No. 195,918
(March 1999). The Board found no preexisting functional impairment for claimant's prior injuries. [Affirmed by
unpublished Court of Appeals opinion, Docket Number 83,050, March 17, 2000.]
- January 1999. (Award) Claimant awarded a 5 percent permanent partial impairment to the body as a whole. All in
all claimant was found to have a 20 percent impairment, but 15 percent of that impairment was determined to be
preexisting. Bauman v. Goodyear Tire & Rubber Company and Travelers Insurance Company and Kansas Workers
Compensation Fund, Docket Nos. 199,815 & 199,816.
- ----- But See, Dissent, the Dissenting Board Member finds the preponderance of evidence points to claimant's
condition as being a mere temporary aggravation of claimant's preexisting condition for which compensation should
currently be denied. Id.
- February 1998. (Award) The Board affirms the ALJ's finding that claimant's current degenerative disc disease
was not aggravated or accelerated by his 1994, work-related knee injury. Compensation denied. Denny v. State of
Kansas & State Self Insurance Fund, Docket No. 213,519 (February 1998) [Affirmed by unpublished Court of
Appeals opinion, Docket No. 80,901].
- June 1998. (Ph) Aggravation of claimant's original low back injury found, where claimant returned to work after
the first injury but then re-injured his back when he jumped from a freight box to the floor of a tractor-trailer.
Kasper v. Chris Truck Line and Cigna Insurance Companies, Docket No. 231,574.
- June 1998. (Ph) Claimant's foot problems, including severe flat foot orthopedic deformity, plantar fasciitis and
degenerative joint disease, found to have been aggravated by claimant's prolonged standing on her job as a sausage
packer. Armour v. Swift-Eckrich Inc., Docket No. 230,648.
- ----- It is well established under the workers compensation law in Kansas that when a worker's job duties aggravate
or accelerate an existing condition or disease or intensify a preexisting condition, the aggravation becomes
compensable as a work-related accident. Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 573 P.2d
1036 (1978). The risk of employing a worker with a preexisting condition and thereby making the worker
susceptible to injury, falls on the employer. Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 547 P.2d 751 (1976). Id.
- May 1998 (Ph) Benefits granted where aggravation of preexisting knee injury accelerated claimant's need for
surgery. Claimant is found entitled to medical benefits for the increased instability of the knee, including , if
necessary, surgery to correct the preexisting knee problems. Held: the test for whether the surgery is compensable
is not whether the injury caused the condition, but whether the injury aggravated or accelerated the condition.
Cardonnier v. Sheehan Pipeline Construction and St. Paul Fire & Marine Insurance Company, Docket No.
228,922.
- See Also, Dent v. U.S.D. # 500 and Management Services, Docket No. 230,657 (July 1998).
- May 1998 (Ph). Possible aggravation of pre-existing low back condition where despite claimant's history of low-back problems, he established that he was capable of performing the heavy construction duties required in his job up
and until he suffered a work-related injury. Bell v. Midwest Construction Company, Inc and Builders' Association
Self-Insurers' Fund, Docket No. 231,011.
- See Also, Yandell v. State of Kansas, Topeka State Hospital and State Self-Insurance Fund, Docket No. 213,170.
- March 1998. (Ph) The Appeals Board affirms the Administrative Law Judge's finding that claimant's injury,
whereby claimant's supervisor grabbed claimant's arm after a heated discussion causing an aggravation to
claimant's neck and arm injuries, arose out of and in the course of her employment. Williams v. Cessna Aircraft
Company, Docket No. 228,821.
- March 1998. (Ph) Claimant's current bilateral knee problems found to be the direct result of an aggravation caused
by a specific incident at work, whereby claimant twisted his left knee. Williams v. The Boeing Company and Aetna
Casualty & Surety Company Kemper Insurance Companies and Kansas Workers Compensation Fund, Docket Nos.
186,109 & 223,159.
- ----- A worker suffers a separate work related injury where the worker's work activities either aggravate or
accelerate a preexisting injury. See Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 573 P.2d 1036
(1978). Id.
- December 1997. (Award) The Appeals Board agrees with the Administrative Law Judge's finding that the
claimant has proven her work for respondent aggravated , accelerated and intensified claimant's low back condition
and the resulting disability is compensable. Claimant was awarded a work disability. Siebert v. F.W. Woolworth,
Inc. and Travelers Insurance Company, Docket No. 184,351.
- December 1997. (Award) The Appeals Board finds claimant's reoccurrence of her painful right shoulder, right
hand/wrist tendinitis and right lateral epicondylitis after she returned to work was more probably than not aggravated
by her work. See Discussion in, Adra v. Sears Roebuck & Company and Kemper Insurance Companies, Docket
No. 186,683.
- November 1997. (Ph) Compensation denied where claimant failed to meet his burden of proving the need for his
hip replacement surgery was caused in whole or in part or accelerated / aggravated by his work-related accident.
Anneler v. Goodyear Tire & Rubber Company and Travelers Insurance Company and Kansas Workers
Compensation Fund, Docket No. 222,218.
- November 1997. (Award) In 1987, approximately five years before the accident involved in this case, claimant
broke both heels and one ankle while working for respondent. Claimant returned to work and was able to do her
duties until April 1992 when claimant decided she could no longer perform her job. The Appeals Board found
claimant did suffer additional injury as evidenced by claimant's treating physician who testified that although he
found no evidence of a new injury the symptoms claimant related to him were worse than those she had previously
related. Additionally, a second treating physician found claimant had sustained a new and additional injury. Based
upon the evidence, the Appeals Board concluded that the injury claimant sustained in 1992 was, in part, an
aggravation of a preexisting condition. The law in effect at the time of claimant's injury, August of 1992, provided
that in cases of an aggravation of preexisting injury, respondent was liable for the full extent of the resulting
disability, including the preexisting impairment. Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 573
P.2d 1036 (1978). The Appeals Board further found claimant was entitled to benefits based upon a functional
impairment of 17.5 percent. Foreman v. Salvation Army and The Home Insurance Company and Kansas Workers
Compensation Fund, Docket No. 169,430 [Reversed and remanded by unpublished Court of Appeals opinion,
Docket No. 80,426].
- October 1997. (Ph) Held, claimant suffered a work-related aggravation of his non work-related left leg fracture,
when he stubbed his toe on a pallet at work causing him to trip and put a substantial amount of weight on his left
leg. Gordon v. Oldham's Farms Sausage, Inc., Docket No. 223,537.
- October 1997. (Ph) Claimant's work for respondent consisting of getting elderly patients groceries, housekeeping
services and occasionally assisting patients in or out of the bathtub found to have aggravated claimant's preexisting,
work-related back injury. Stogsdill v. State of Kansas and State Self Insurance Fund, Docket No. 220,890.
- October 1997 (Ph) It is well settled in this state that an accidental injury is compensable where the accident only
served to aggravate or accelerate an existing disease or to intensify the affliction. Demars v. Rickel Manufacturing
Corporation, 223 Kan. 374, 573 P.2d 1036 (1978); Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 547 P.2d 751 (1976);
Harris v. Cessna Aircraft Co., 9 Kan. App.2d 334, 678 P.2d 178 (1984). Tanuis v. Great Plains Casting, Inc. and
Sentry Insurance a Mutual Company, Docket No. 217,819.
- See Also Anneler v. Goodyear Tire & Rubber Company and Travelers Insurance Company and Kansas Workers
Compensation Fund, Docket No. 222,218 (November 1997); Parrish v. Russell Stover Candies and Hartford
Accident & Indemnity and Parish v. Geary Community Hospital and Kansas Hospital Association, Docket Nos.
233,990 & 233,991 (September 1998).
- September 1997. (Ph) Where claimant's low back injury was permanently aggravated by her work activities
performed for a subsequent employer, the Appeals Board affirms the Administrative Law Judge's Order denying
claimant's request for temporary total disability from the previous employer. Himmaugh v. Mid-Kansas Travel
Center and Insurance Co. State of Pennsylvania, Docket No. 223,095.
- September 1997. (Award) Aggravations of claimant's bilateral wrists held compensable as carpal tunnel
syndrome. Rotramel (Wallace) v. Brite Voice Systems, Inc. and The St. Paul Fire and Marine Insurance Company,
Docket No. 179,341.
- August 1997. (Ph) Where a worker's preexisting condition is either aggravated or accelerated by a subsequent
work-related injury, the resulting injury is compensable. See Claphan v. Great Bend Manor, 5 Kan. App.2d 47, 611
P.2d 180, rev. denied 228 Kan. 806 (1980). Cline v. The Boeing Co & Ins. Co State of Pennsylvania & Ins. Care of
America Int'l Group, Docket No. 216,725.
- See Also, Carolyn S. Stice vs. Automotive Controls Corporation and Hartford Accident and Indemnity, Docket No.
253,215 (July 2000); and Fabela vs. Architectural Cast Stone Mfg. and Safeco/American States Insurance Co. and
Kansas Workers Compensation Fund, Docket No. 245,046 (September 2000); and Almarez vs. EVCON Industries
and American Home Assurance Company, Docket No. 259,127 (January 2001).
- July 1997. (Ph) Claimant's asthma condition found not to be aggravated or caused by the work environment.
Brown v. Frito Lay, Inc., Docket No. 219,171.
- July 1997. (Ph) Claimant, a school track coach, was unloading first aid supplies and track equipment when he
stepped off a bus at a track meet and felt a pop in his right knee. The Appeals Board concluded that where
claimant's work-related accident aggravated claimant's pre-existing injury to his right knee, claimant's need for a
total knee replacement was thus accelerated by the work-related accident and therefore arose out of and in the
course of his employment. Hanson v. U.S.D. 326 and Employers Mutual Casualty Co., Docket No. 217,114.
- July 1997. (Ph) Claimant's failure to prove aggravation of his left foot and ankle injury following a single
traumatic event discussed. Ross v. Shawnee County Refuse Dept., Docket No. 217,771.
- July 1997. (Award). Aggravation of preexisting back injury discussed. Carver v. Missouri Gas Energy, Docket
No. 195,270.
- June 1997. (Ph) In August of 1994, claimant, a claims adjustor, suffered an accident when he tripped over some
weeds adjacent to an automobile he was inspecting. Claimant suffered injuries to his left shoulder and left knee.
Later, in October of 1996, claimant injured the left shoulder again while using crutches to recover from his
authorized left knee surgery for the first compensable accident. The Appeals Board found uncontradicted testimony
pointing to the fact the claimant suffered a work-related injury to his left shoulder and left knee in August of 1994,
and an aggravation to claimant's left shoulder in October of 1996. Kiehl v. Allied Group Insurance and Cigna
Property & Casualty Ins., Docket No. 217,855.
- May 1997 (Ph) Claimant suffered a non work-related injury while playing softball in 1996. Later that year, while
using a crowbar at work, claimant alleges he suffered an exacerbation of his conditions. Although the treating
doctor did not feel claimant's injury at work contributed to his overall condition, a CT scan and MRI of claimant's
cervical spine evidenced a herniated disc at C4-5 not present after claimant's softball injury. Therefore, the Appeals
Board found that while there may be some connection between the ongoing symptomatology and claimant's original
softball injury, the Board does find that claimant suffered an aggravation of his prior degenerative condition as a
result of the injuries suffered while using the crowbar. Krege v. Fiberglass Engineering, Inc. and Cigna Insurance
Companies, Docket No. 217,752.
- May 1997. (Award) Aggravation of a pre-existing condition is a compensable injury. Fahringer v. IBP, Inc.,
Docket Nos. 159,418 & 159,419.
- ----- Claimant worked for respondent as a bagger, scale operator and pastrami and brisket trimmer. Consequently,
claimant would spend much of her day working in a cold environment, using a hook and knife and performing
repetitive pulling and pushing motions to trim the meat pieces. Based upon these facts and various medical
opinions, the Appeals Board finds claimant's Raynaud's Syndrome was aggravated by claimant's work. Id.
- January 1997. (Ph) If the work-related accident either aggravates, accelerates, or intensifies a preexisting
condition, the claim is compensable. See Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 573 P.2d
1036 (1978). Therefore, the Appeals Board finds it reasonable to conclude that claimant's spondylosis condition
was aggravated by her work activities. Mulvhill v. Stormont Vail Regional Medical Center, Docket No. 216,062.
- January 1997. (Ph) Claimant's prolonged walking and standing, while working for the respondent, found to have
aggravated his bilateral knee problems. Kennedy v. Beachner Const. Co., Inc., Docket Nos. 216,904 & 206,079.
- December 1995. (Award) Claimant slipped on ice and fell injuring both knees. Based upon medical evidence, the
Board found claimant's fall to have aggravated the pre-existing osteoarthritis in claimant's knees and accelerated the
necessity for surgery. The rule regarding preexisting conditions is well established in Kansas that an accidental
injury is compensable under the Act where the accident only serves to aggravate or accelerate an existing disease or
intensifies the affliction. Compensation awarded. Counterman v. Econo Lodge of Dodge City and Kansas
Restaurant Self-Insurance Fund and Workers Compensation Fund, Docket No. 198,417.
- See also, Hanson v. U.S.D. No. 326 and Employers Mutual Casualty Co., Docket No. 217,114 ( July 1997).
- July 1995. (Ph) Claimant was employed by respondent as a janitor and injured his left knee while working for
respondent. The injury occurred as claimant was coming down some stairs, missed the last stair and twisted his left
knee. Based upon the opinion of physicians, the Board affirmed the ALJs determination that claimant's preexisting
degenerative changes in his left knee were subsequently aggravated, accelerated or intensified by his work-related
injury which resulted in the need for a total knee replacement. Compensation granted. Tremblay v. First United
Methodist Church and Church Mutual Insurance Company, Docket No. 198,779.
- February 1995. (Award) Respondent argues that K.S.A. 44-501(c), which prohibits a claimant from recovering for
the aggravation of a pre-existing condition, except to the extent that the work-related injury causes increased
disability, applies to this case and that medical benefits for the aggravation should be denied because claimant has
not proven increased disability. While K.S.A. 44-501(c) does require a claimant prove increased disability to be
entitled to an award of permanent disability as a result of the aggravation, it is the Board's opinion that the claimant
does not have to prove increased disability to obtain medical treatment for an aggravation of a pre-existing
condition. Osbern v. Big Smith Brands, Inc and Equity Mutual Insurance Company, Docket No. 193,652.
- March 1994. (Award) Where claimant concealed evidence of ongoing low back symptoms and medical care
shortly before the alleged accident and the only medical expert giving a complete history concluded the accident
caused temporary aggravation but could not say whether it caused permanent aggravation, the Appeals Board found
claimant established only a temporary aggravation and was entitled to medical treatment and temporary total
disability benefits only. Collier v. Western Uniform & Towel Service, Docket No. 160,523.
- January 1994. (Award) Evidence leading to award of 65% work disability is reviewed and subsequent injury
found to be temporary aggravation of first injury which entitled claimant to temporary total only with all permanent
disability attributed to the first injury. Ross v. Wallace Energy, Docket Nos. 172,215 & 172,216.
4.47c Causal Connection Required
4.48 Specific Types of Injuries
4.48a Back & Shoulder Injuries
- April 1999. (Award) Claimant's neck and shoulder injuries found to be work related where claimant's repetitive
work activities caused claimant to sustain a separate and distinct injury to both shoulders and neck not associated
with his pre-existing carpal tunnel syndrome condition. Zapata v. IBP, Inc and Kansas Workers Compensation
Fund, Docket Nos. 168,210; 168,211; & 177,505.
- ----- The ALJ's award denying benefits and finding claimant not to be a credible witness is reversed by the Board,
which found claimant's low back injury did arise out of and within the course of claimant's employment. The
Board found claimant was consistent in his describing of his work-related injury, and further, that claimant's use of
an interpreter was not an attempt to manipulate the system but a means to assure claimant's full understanding of the
questions being asked of him while he testified. Id.
- March 1999. (Award) Claimant found to have proven she suffered permanent impairment to her back from an
altered gait due to her knee injury. That injury entitled her to a whole body disability. Chinn v. Gay & Taylor, Inc.,
219 Kan. 196, 547 P.2d 751 (1976). Hammerschmidt v. Kingman Community Hospital and Liberty Mutual
Insurance Company and Kansas Workers Compensation Fund, Docket No. 166,016.
- March 1999. (Award) The Board finds claimant's injury , specifically her chronic regional myofascial pain
syndrome due to right trapezius and right scapulocostal myofascitis and mild right carpal tunnel syndrome, was to
the upper extremity, including the shoulder musculature, and was not a general body injury. The Board did not,
however, by limiting this case to the schedule agree with the argument that all of the trapezius muscle should be
considered to be the shoulder as the Board acknowledges claimant made complaints, principally complaints of pain,
beyond the shoulder. The Board found, however, that these complaints did not constitute a functional impairment,
as the only impairment was to the upper extremity, including the shoulder. Bettes v. Great Plains Manufacturing
and Sentry Insurance Company, Docket No. 230,530.
- May 1998. (Award) Claimant's back and shoulder injuries found to have been caused by the physical activity of
aligning semitrailer trucks; and therefore, the injuries arose out of and in the course of claimant's employment.
Amack v. Bontrager Express Service, Inc and Kansas Truckers Risk Management, Docket No. 216,357 & 216,358.
- April 1994. (Award) Board finds claimant failed to meet burden of establishing back injury arose out of and in the
course of employment where medical records show no complaints relating to back and the first evidence of back
complaints were not made until after claimant traveled to Romania and returned. Gradinariu v. Salvation Army,
Docket No. 179,610.
- April 1994. (Award) Low back injury caused by altered gait due to ankle injury is considered general body
disability. Fees v. Chance Industries, Docket No. 172,192.
- April 1994. (Ph) ALJ's decision affirmed denying benefits at preliminary hearing based upon finding that the
injury did not arise out of and in the course of employment where claimant's testimony regarding his back injury
was contradicted by medical records. Serrano v. Modern Air Conditioning, Inc., Docket No. 176,402.
- See also, Mabe v. Raytheon Aircraft Company and Workers Compensation Fund, Docket Nos. 174,765 & 222,521
(June 1999).
4.48b Cumulative Injury
4.48c Deafness
- April 1994. (Award) Appeals Board affirmed denial of benefits for hearing loss where most credible medical
evidence indicated claimant's's hearing tests were not consistent with loss due to noise exposure. Shaw v. City of
Winfield, Docket No. 168,958.
4.48d Heart Conditions
- March 1998. (Award: Note, this case pertains more to work disability and imputing a wage than to "heart
conditions," since the heart condition was an intervening, non work-related injury. However, it is indexed under
section 4.48d for easier reference.) Claimant was injured in a work-related accident and then was released and
returned to work for two weeks before suffering a disabling, non work-related heart attack. At the time claimant
returned to work, she could not perform her job due to her work-related injuries. As such, the Appeals Board
imputed a wage and found claimant was entitled to a work disability award. Wortham v. Wal-Mart and Claims
Management, Inc, Docket No. 213,499 [Affirmed by unpublished Court of Appeals opinion, Docket No. 83,086].
- October 1998. (Award) K.S.A. 1987 Supp. 44-501(e) provides that the injury and disability from coronary or
coronary artery disease is not compensable unless it is shown that the exertion at work which caused the condition is
unusual. In the case at hand, the Board determines claimant's heart attack was not the result of exertion at work but
was instead the natural progression of cardiomyopathy and is not a compensable injury. Polk v. The Boeing
Company and Aetna Casualty & Surety Company and Kansas Workers Compensation Fund, Docket No. 135,970.
- ----- If a heart attack is caused by external force, and not by exertion, the provisions of K.S.A. 44-501(e) do not
apply and the injury and disability may be compensable. See Dial v. C.V. Dome Co., 213 Kan. 262, 515 P.2d 1046
(1973); and Makalous v. Kansas State Highway Commission, 222 Kan. 477, 565 P.2d 254 (1977). In the case at
hand, the Board finds claimant's heart attack was not caused by exposure to paint fumes and therefore was not
caused by an external force. Id.
- October 1997. (Award) Claimant worked as a housekeeper for respondent. Her general duties included cleaning
residents' rooms and the dining room after meals, sweeping and mopping floors, dusting, and cleaning small
bathrooms. At one point, while claimant was stripping floors, she began to feel ill. She was admitted to the hospital
that day complaining of shortness of breath and chest pain. Claimant was later diagnosed and treated for congestive
heart failure. Claimant now argues she suffered a myocardial infarction which was precipitated by her work for
respondent which involved more exertion than claimant usually experienced. According to claimant, the
circumstances satisfy the requirements of K.S.A. 1993 Supp. 44-501(e) for a compensable myocardial infarction.
Two physicians testified, however, that claimant did not have the necessary criteria present in her case to identify an
acute myocardial infarction, or heart attack. Therefore, the Appeals Board finds that claimant has failed to establish
by a preponderance of evidence that claimant did sustain either a myocardial infarction or other accidental injury
arising out of and in the course of her employment. Blackmon v. Medicalodges, Inc., Docket No. 206,025 [Affirmed
by unpublished Court of Appeals opinion, Docket No. 80,247].
- May 1997. (Ph) Claimant's heart attack was found to be causally related to his employment as a member of the
SCAT Team. Although physical exertion was a part of claimant's job responsibilities, the Appeals Board feels the
amount of physical exertion claimant was subject to was unusual. Shelton v. State of Kansas and State Self
Insurance Fund, Docket No. 217,936.
- April 1997. (Ph) Claimant suffered a heart attack while installing a fence. Respondent contends the "heart
amendment" of K.S.A. 44-501 precludes an award for workers compensation benefits. The Appeals Board,
however, found that the exertion claimant was performing at the time of his heart attack was more than his usual
work and that his heart attack was precipitated by the physical labor requirements of his job. Therefore, the Appeals
Board finds claimant has met his burden of proving a compensable injury which arose out of and in the course of his
employment with respondent. Grisham v. S & J Construction and Northwestern National Casualty, Docket No.
216,786.
- April 1997. (Award) Claimant injured her back in a work-related accident and received permanent partial disability
for only her functional impairment since she earned a post-injury wage equal to at least 90% of her pre-injury wage.
Claimant, however, was later off work due to non work-related heart problems. The Board found that for the period
of time in which claimant was off work for the heart problems, claimant is only entitled to permanent partial
disability benefits based upon the functional impairment rating for the previous work-related back injury. Claimant
is not entitled to a work disability for this period, because although claimant is no longer earning a post-injury wage,
the non work-related intervening or superseding event -- the heart condition -- does not trigger work disability under
the Act. Fenwick v. Sterling Presbyterian Manor and Insurance Management Associates, Inc., Docket No. 206,618.
- February 1997. (Award) After receiving adverse and stressful news regarding foreclosure proceedings filed
against respondent on top of already having driven 14 hours for a work-related horse show, claimant suffered
personal injury as a result of an acute inferior wall myocardial infarction. The Appeals Board found claimant's
infarction was precipitated by the unusual physical exertion caused by the long drive and inordinate stress caused by
a late night, business-related telephone conversation. The Appeals Board therefore found claimant's accident arose
out of and in the course of his employment; compensation was awarded. Hamrick v. Arabian Horse Express and
Farmers Alliance Mutual Insurance Company, Docket No. 183,004. [Affirmed by unpublished Court of Appeals
opinion, Docket No. 78,510].
- ----- By implication, the Kansas Supreme Court in Dial v. C.V. Dome Co., 213 Kan. 262, 515 P.2d 1046 (1973),
indicated that anxiety and stress could constitute external force and an exception to the heart amendment contained
in K.S.A. 44-501. Id.
4.48e Infection
4.48f Mental & Nervous Injuries
- November 1999. (Award) Board found claimant entitled to benefits for injury to body as a whole when scheduled
injury resulted in post traumatic stress disorder. Helmstetter v. Midwest Grain Products, Inc., Docket No. 222,191
[Affirmed by unpublished Court of Appeals opinion, Docket No. 84,437, February 16, 2001].
- August 1999. (Award) A traumatic neurosis, even preexisting, if aggravated by a subsequent industrial accident, is
compensable under the Workers Compensation Act if it results from a physical injury and meets the other
requirements of the Act. See Boutwell v. Domino's Pizza, 25 Kan. App.2d 110, 959 P.2d 469, rev. denied Kan.
(1998). Smallwood v. Golf Enterprises, Inc. and Travelers Insurance Company and Kansas Workers
Compensation Fund, Docket No. 206,399.
- May 1999. (Award) Traumatic neurosis is covered under the Workers Compensation Act. However, if it is caused
by an emotional, nonphysical trauma on the job, it is not covered by the Workers Compensation Act. Traumatic
neurosis is treated in the Act like any other health problem. "If a subsequent covered industrial accident aggravates,
accelerates, or intensifies the disease or affliction, the worker is not to be denied compensation just because it is a
preexisting condition." See Boutwell v. Domino's Pizza, 25 Kan. App.2d 110, 959 P.2d 469 (1998), rev. denied
Kan. . Christianson v. Perkins Restaurant and Kansas Restaurant and Hospitality Self-Insurance Fund, Docket
No. 214,694.
- ----- The Board found claimant failed to prove a direct causal connection between his work-related burn injury, as a
cook, and his diagnosis of depression, where claimant was admittedly stressed and depressed before the burn
accident and expert medical testimony put more emphasis on claimant's termination as being the cause of his
depression rather than the burn injury. Id.
- December 1998. (Ph) Where claimant's psychological problems are traceable to the accident but not the injury,
compensation is denied. To establish a claim for a traumatic neurosis, the claimant must establish a physical injury
and establish that the neurosis stems from the physical injury. Followil v. Emerson Electric Co., 234 Kan. 791, 674
P.2d 1050 (1984). In the case at hand, claimant's psychological problems most probably stem from exposure to the
explosion and resulting death and injury to his co-workers. Although claimant sustained some minor cuts and
hearing problems, the evidence does not convincingly establish that the psychological problems are directly
traceable to the physical injuries. Stallbaumer v. DeBruce Grain, Inc and Travelers Insurance Company, Docket
No. 236,114.
- November 1998. (Award) Claimant's severe depression found directly attributable to her work-related back injury.
Claimant found permanently and totally disabled. Murphy v. Labette County Medical Center and Liberty Mutual
Insurance Company, Docket No. 193,360. [Affirmed by unpublished Court of Appeals opinion, Docket No. 82,467,
November 24, 1999.]
- January 1998. (Award) Claimant was hit on the head three or four times while caring for a mentally handicapped
person for respondent. The Appeals Board found claimant's testimony coupled with that of her physicians proves
claimant suffered a head injury as a result of the assault at work. That head injury was then found to have
accelerated claimant's preexisting psychological problems resulting in claimant's present hysteria neurosis
condition. The Appeals Board further finds this diagnosis of hysteria neurosis also known as traumatic neurosis is a
compensable claim because the evidence has established that claimant suffered a work-related physical injury, has
symptoms of hysteria neurosis, and the neurosis is directly traceable to claimant's head injury. See Love v.
McDonald's Restaurant, 13 Kan. App.2d 397, 771 P.2d 557, rev. denied 245 Kan. 784 (1989). Holt v.
Developmental Services of N.W. Kansas and Travelers Insurance Company, Docket No. 204,896.
- October 1997. (Award) Where the record indicated claimant had no evidence of depression-like behavior prior to
her work-related accident and where claimant's physician testified to the fact claimant possessed a 20 percent
impairment to the body as a whole as a result of a psychiatric disability, the Appeals Board finds claimant has met
her burden of proof in establishing a compensable psychiatric injury (her depression was related to the physical
injury) and that she is entitled to medical treatment for the same. Huyett v. Franklin County, Kansas and Tri-State
Insurance Co. and Kansas Workers Compensation Fund, Docket No. 141,134 [Affirmed by unpublished Court of
Appeals opinion, Docket No. 80,082].
- September 1997 (Award) Where the evidence shows claimant's alleged neurosis condition is not directly traceable
to her previous work-related injury, compensation is denied. Roland v. U.S.D. No. 259, Docket No. 169,654.
- ----- To be compensable, traumatic neurosis conditions or emotional problems must be directly traceable to the
physical, work-related injury. See Love v. McDonald' s Restaurant, 13 Kan. App.2d 397, 771 P.2d 557 rev. denied
(1989); Berger v. Hahner, Foreman & Cale, Inc., 211 Kan. 541, 506 P.2d 1175 (1973). Id.
- June 1997. (Ph) The issue dealing with whether or not a claimant's need for psychological treatment stems from
the accidental injury is an issue dealing with the nature and extent of injury rather than accidental injury arising out
of and in the course of employment. Gilman v. Olathe Medical Center, Docket No. 211,937.
- See Also, Anno-Pfortmiller v. Delta Design and Cincinnati Insurance Company, Docket No. 196,588 (October
1996).
- May 1997. (Award) Claimant awarded temporary total disability benefits, where it is found claimant was incapable
of performing any substantial and gainful employment due to the fact claimant withdrew from association with
anyone outside her immediate family following her severe, work-related hand injury and disfigurement. One
psychiatrist who examined claimant opined she was 80 to 90 percent disabled on a psychiatric basis. Pressley v.
Mission Untied Super, Inc. and Liberty Mutual insurance Company, Docket No. 141,570.
- March 1997. (Award) When dealing with traumatic neuroses or traumatic incidents in Kansas, the case law is
clear. A neurosis following a physical injury must be shown to be directly traceable to the injury in order to be
compensable. The Court in Love v. McDonald's Restaurant, 13 Kan. App.2d 397, 771 P.2d 557, rev. denied 245
Kan. 784 (1989), listed the required findings in order to establish a connection between a traumatic neurosis and a
work-related injury. Those being: (1) the claimant must suffer a physical injury; (2) have symptoms of traumatic
neurosis; and (3) the symptoms must be directly traceable to the physical injury. Eaton v. Coleman Co. and
Continental Casualty, Docket No. 205,158.
- ----- Where claimant, who was involved in an accident in which a battery he was recharging exploded near him, did
not suffer a specific physical injury as a result of the accident, the Appeals Board finds for preliminary hearing
purposes that claimant has not met his burden of proving he suffered any injuries arising out of and in the course of
his employment for which a claim of traumatic neurosis can be based. Id.
- See Also, Lopez v. Russell Stover Candies and Tig Premier Insurance Company, Docket No. 213,844 (December
1996).
- December 1996. (Award) Where claimant failed to prove that a blow to the abdomen at work caused her any
physical injury resulting in the miscarriage of her 12 week old fetus, the Board finds that it cannot award claimant
benefits for suffering from post traumatic stress disorder. In the absence of proof of physical injury, claimant's
request for benefits for a mental or nervous disorder like post traumatic stress disorder must fail. Hullum v. State of
Kansas, Docket No. 154,143.
- April 1994. (Award) Generally claimant must provide expert opinions from a psychologist or psychiatrist in order
to establish that the psychological injury was caused by an accident arising out of and in the course of employment.
Fees v. Chance Industries, Docket No. 172,192.
4.48g Carpal Tunnel Syndrome
- February 1999. (Ph) The Board finds more probably than not, claimant's carpel tunnel syndrome is related to her
activities at work as a hair dresser. Blair v. Fantastic Sam's and First National Insurance Co. of America, Docket
No. 237,778
- January 1999. (Ph) The origins of claimant's carpal tunnel syndrome found to stem from her employment with
respondent during which she experienced numbness in her hands after being moved to a computer terminal in which
the keyboard was on top her desk rather than in a tray below it. Further, the fact claimant changed jobs and
employers is immaterial as claimant's second job did not involve the repetitive use of her hands. Hommertzheim v.
Farmers Bank & Trust and Hartford Accident & Indemnity, Docket No. 237,536.
- September 1998. (Award) Claimant contended she suffered injuries to her right elbow and left thumb. The dispute
on appeal related to the difference between the functional impairment ratings given by two different doctors. Both
doctors indicated their ratings were given pursuant to the Fourth Edition of the AMA Guides. One doctor gave
claimant an impairment rating of 5 % to the right upper extremity but concluded claimant had no functional
impairment to the left. The second doctor diagnosed bilateral carpal tunnel syndrome as well as ulnar nerve
entrapment. The Board agreed with the ALJ and second doctor and found the diagnosis of bilateral carpal tunnel
syndrome to be the more credible diagnosis. Hannah v. Kreonite, Inc and Continental Western Insurance Co,
Docket No. 230,249 ( September 1998).
- September 1997. (Award) Aggravations of claimant's bilateral wrists held compensable as carpal tunnel
syndrome. Rotramel (Wallace) v. Brite Voice Systems, Inc. and The St. Paul Fire and Marine Insurance Company,
Docket No. 179,341.
- November 1996. (Award) Although claimant's pregnancy is a potential for causation, the Board finds the weight
of the evidence points to claimant's overuse injury of bilateral carpal tunnel syndrome and possibly bilateral thoracic
outlet syndrome as being caused by her working for respondent and performing computer keyboarding activities.
Thompson v. Blue Cross & Blue Shield of Kansas and Fidelity & Casualty of New York and Kansas Workers
Compensation Fund, Docket Nos. 166,281 & 166,282.
- October 1996. (Award) Claimant denied compensation for alleged bilateral carpel tunnel syndrome where one of
claimant's physicians indicated that carpel tunnel syndrome is caused by repetitive movements, but claimant did not
describe any repetitive movements done at his job as a road grader. Further, claimant's physicians were not asked
whether any work-related activities could have caused bilateral carpel tunnel syndrome. The Board did find that
claimant may be entitled to receive permanent partial general disability benefits for bilateral ulnar nerve injuries.
Hink v. Clark County and Employers Mutual Insurance Company and Workers Compensation Fund, Docket No.
180,825.
4.48h Distended Bladder
- June 1997. (Award) Held, claimant's accident resulting in a distended bladder found compensable where
claimant's usual tasks required she be out-of-doors and away from regular restroom facilities, and where
respondent's repeated delays in affording claimant appropriate restroom facilities were found to be the series of
events that caused claimant's injuries. Lenhart v. Koss Construction Company and United States Fidelity &
Guaranty Co., Docket No. 159,327. [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,516].
4.48i Kidney Failure
- March 1997. (Award) The Appeals Board finds claimant's kidney failure which rendered him permanently and
totally disabled was either caused or substantially aggravated and contributed to by claimant's exposure to smoke,
gases and chemical residue while working for respondent. Daniels v. Americold Corp. and Travelers Indemnity
Company, Docket No. 189,238.
4.48j Hernia
- January 1999. (Award) Claimant entitled to the statutory maximum of 12 weeks of permanent partial disability
compensation for her hernia. See K.S.A. 44-510d(a)(22). Claimant's hernia was found to be inoperable until such
time as she lost weight and cleared up the dermatitis condition on her abdomen. Goodwin v. Southland
Corporation, D.B.A. 7-Eleven and American Protection Insurance Company, Docket No. 216,691.
4.49 Scheduled Injuries
4.50 Generally
- August 1999. (Award) A claimant who suffers a scheduled injury and a whole body injury in the same work-related accident is entitled to permanent partial general disability benefits as provided for in K.S.A. 44-510e(a). See
also, Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 547 P.2d 751 (1976). Hernandez v. Monfort, Inc., Docket No.
208,012
- January 1999. (Award) The ALJ denied temporary total disability citing K.S.A. 1997 Supp. 44-510d(b) for his
denial. While the Board acknowledges the language of K.S.A. 1997 Supp. 44-510d(b) is somewhat misleading in
that it seems to indicate that temporary total disability should not be allowed when there is a scheduled injury, the
Appeals Board does not find this to be the legislative intent. By looking at the plain language of K.S.A. 44-510c,
the statute pertaining to temporary total disability, the Board finds it clear that the legislature contemplated an
entitlement to temporary total disability followed by compensation under the scheduled injury statute. Additionally,
it is clear from the Court of Appeals' opinion in Carter v Koch Engineering, 12 Kan. App.2d 74, 735 P.2d 247, rev.
denied 241 Kan. 838 (1987), that the payment of temporary total disability compensation is proper in a scheduled
injury award under K.S.A. 1997 Supp. 44-510d. Morris v. Lance, Inc and Travelers Insurance Company, Docket
No. 237,383.
- July 1998. (Award) K.S.A. 44-510d provides a list, referred to as a schedule, of the maximum number of weeks of
benefits for injury to various parts of the body. If the injury results in a partial loss of use, the percentage of loss is
multiplied by that maximum number of weeks. For injuries not included in this list, unscheduled injuries,
calculation of benefits is based on a maximum of 415 weeks. Milner v. American Drug Stores, Inc d/b/a Osco Drug
and Kemper Insurance Company, Docket No. 198,875. [Affirmed by unpublished Court of Appeals opinion, Docket
No. 81,675, December 23, 1999.]
- March 1998. (Award) Despite claimant's complaints of pain to his neck and right shoulder, the Appeals Board
finds places the greater weight on the testimony of claimant's physician which found no evidence of damage to
claimant's cervical spine and that the only work-related injury claimant suffered was that to his right shoulder. The
Appeals Board further adopts the treating physician's opinion, based upon the AMA Guides, Third Edition, that
claimant has a 25 percent permanent functional impairment rating. Wogan v. Consolidated Freightways, Inc,
Docket No. 201,820.
- December 1997. (Award) Compensation limited to a scheduled injury to the left knee based upon a 40 percent
permanent partial loss of use of the left lower extremity under K.S.A. 44-510d. Although claimant could be entitled
to benefits for his low back under the Workers Compensation Act the injury resulted either from treatment for the
knee or from the altered gait from the knee surgery such evidence was not established in the record. Shepard v.
Overnite Transportation Company, Docket No. 172,165.
- October 1996. (Ph) Temporary partial disability is not to be awarded in scheduled injury cases. The language in
K.S.A. 44-510e specifically provides for temporary partial disability only in cases of "temporary or permanent
partial general disability not covered by such schedule." K.S.A. 44-510e also contains the language or formula for
calculating temporary partial disability. No such language appears in K.S.A. 44-510d, the "scheduled injury"
statute. Ledbetter v. Constar Plastics and Cigna Property & Casualty, Docket No. 205,252.
- See Also, Brown v. Finest Food Service d/b/a Bagel & Bagel, Docket No. 213,792 (October 1996).
- January 1994. (Award) Evidence relating to four separate scheduled injuries involving fingers and hand which
were combined for litigation examined to determine appropriate percentage of disability. Humbert v. Goodyear,
Docket No. 157,724.
- January 1994. (Award) Evidence supports finding claimant suffered separate injuries to each knee and claimant
entitled to two awards based upon scheduled injuries, not a general body disability. Hammerschmidt v. OXY USA,
Docket No. 166,132.
- December 1993. (Award) Facts reviewed and determined to establish that disability extended into the wrist so that
award should be based upon forearm rather than hand. Thomas v. Sunshine Biscuits, Inc., Docket No. 168,058.
- ----- The situs of the disability, not the situs of the injury, determines the benefits to be awarded. Id.
4.51 Repetitive Use
4.52 Specific Traumatic Event
- July 1997. (Award) Claimant suffered a specific traumatic injury to her right upper extremity while attempting to
start a street blower. While the right upper extremity was in a sling, claimant injured the left upper extremity. The
Appeals Board found there was no simultaneous aggravation of these upper extremities and thus no "whole body
injury." Therefore, the matter is controlled by the scheduled injury section under K.S.A. 44-510d, which allows for
separate scheduled awards for both the right and left upper extremity injuries. Atwood v. City of Wichita and
Kansas Workers Compensation Fund, Docket No. 192,202.
4.53 Nonscheduled Injuries / General Body Injuries / Injuries to Body as a Whole
4.54 Generally
- November 1999. (Award) Board found claimant entitled to benefits for injury to body as a whole when scheduled
injury resulted in post traumatic stress disorder. Helmstetter v. Midwest Grain Products, Inc., Docket No. 222,191
[Affirmed by unpublished Court of Appeals opinion, Docket No. 84,437, February 16, 2001].
- August 1999. (Award) A claimant who suffers a scheduled injury and a whole body injury in the same work-related accident is entitled to permanent partial general disability benefits as provided for in K.S.A. 44-510e(a). See
also, Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 547 P.2d 751 (1976). Hernandez v. Monfort, Inc., Docket No.
208,012.
- July 1998. (Award) K.S.A. 44-510d provides a list, referred to as a schedule, of the maximum number of weeks of
benefits for injury to various parts of the body. If the injury results in a partial loss of use, the percentage of loss is
multiplied by that maximum number of weeks. For injuries not included in this list, unscheduled injuries,
calculation of benefits is based on a maximum of 415 weeks. Milner v. American Drug Stores, Inc d/b/a Osco Drug
and Kemper Insurance Company, Docket No. 198,875. [Affirmed by unpublished Court of Appeals opinion, Docket
No. 81,675, December 23, 1999.]
- ----- For a general body disability, a claimant is entitled to either the functional impairment or, if claimant does not
earn a wage after the injury equal to 90 percent or more of the pre-injury wage, claimant may be entitled to a higher
work disability. K.S.A. 44-510e. Id.
- June 1997. (Award) Where the injury is "unscheduled," K.S.A. 44-510e governs claimant's rights to permanent
partial disability benefits. Enriquez v. IBP, Inc., Docket No. 196,942.
- See Also, Janice A. Fergusson vs. Cardie Oil, Inc. and Farmland Insurance Company, Docket No. 220,790 (March
1999). [Affirmed by unpublished Court of Appeals opinion, Docket Number 82,993, March 17, 2000.]
- January 1994. (Award) Neck injury and forearm injuries which were caused by same work activity and occurred
essentially simultaneously are combined for a general body rating. Gauld v. Koch Engineering, Docket No.
158,876.
4.55 General Body Injury / Injury to Two Scheduled Members
- September 1999. (Award) Claimant suffered a work-related accident to her left ankle. Subsequently, on her way
to receive treatment for the left ankle, claimant further injured her right ankle. The Board held that the two
accidents were to be treated as separate accidents; therefore, claimant is entitled to compensation for each as a
scheduled injury-- the two should NOT be combined to form a general body disability. Sublett v. Intracorp and
Cigna Workers Compensation and Kansas Workers Compensation Fund, Docket Nos. 186,917 & 219,875.
- March 1999. (Award) Claimant, who worked as a grocery attendant for respondent, injured his hand and fingers.
The ALJ awarded claimant benefits for three separate scheduled injuries. The Appeals Board reversed finding that
claimant had proven his accidental injury occurred as a result of a series of microtraumas over a period of several
years with simultaneous aggravations occurring from claimant's work duties stocking groceries for respondent. In
line with the Kansas Supreme Court's decisions in Murphy v. IBP, Inc., 240 Kan. 14, 727 P.2d 468 (1986) and
Depew v. NCR Engineering & Manufacturing, 263 Kan. 15, 947 P.2d 1 (1997), the Board finds claimant suffered a
general body injury. Wiley v. Dillon Companies, Inc, Docket No. 205,235.
- September 1998. (Award) Claimant suffered a series of compensable injuries to the left forearm ending in January
of 1991. Claimant also suffered a compensable injury in October of 1991 to the left leg from an automobile accident
while on his way to treatment for his left arm. Claimant argues the two injuries should be treated as one general
body injury citing Taylor v. Centex Construction Co., 191 Kan. 130, 379 P.2d 217 (1963). The Board, however,
finds claimant's injuries should be treated as two separate injuries. Helms v. Tollie Freightways, Inc., 20 Kan.
App.2d 548, 889 P.2d 1151 (1995). Walker v. The Boeing Company and Aetna Casualty & Surety and Kansas
Workers Compensation Fund, Docket Nos. 155,443 & 166,487.
- October 1997. (Award) If a worker simultaneously injuries either both upper extremities or both lower extremities
the disability is removed from a scheduled disability to a general body disability. See Murphy v. IBP, Inc., 240 Kan.
14, 727 P.2d 468 (1986). See Discussion in, Maberry v. Rubbermaid Specialty Products and American
Manufacturers Mutual Ins. and Kansas Workers Compensation Fund, Docket No. 186,053; Milner v. American
Drug Stores, Inc d/b/a Osco Drug and Kemper Insurance Company, Docket No. 198,875 (July 1998). [Affirmed by
unpublished Court of Appeals opinion, Docket No. 81,675, December 23, 1999.]
- ----- The Appeals Board finds claimant suffered simultaneous injury to both shoulders while performing her
repetitive work activities as a production employee. Therefore, claimant is eligible for a work disability. Id.
- See Also, Heminger v. The Boeing Co-Wichita and Aetna Casualty & Surety and Workers Compensation Fund,
Docket Nos. 172,884 & 186,604 (March 1997).
- July 1997. (Award) A simultaneous injury to two separate and different scheduled members (eg. an arm and leg),
should be treated the same as a simultaneous injury to two of the same scheduled members. Both should be treated
as a general body injury. The injury is in effect an unscheduled injury. Jacobson v. Idaho Timber Insurance
Company, Docket No. 201,301.
- But See, July 1997. (Award) Claimant suffered an injury to her right upper extremity and then later injured the
left upper extremity. The Appeals Board found there was no simultaneous aggravation of these upper extremities
and thus no "whole body injury." Therefore, the matter is controlled by the scheduled injury section under K.S.A.
44-510d, which allows for separate scheduled awards for both the right and left upper extremity injuries. Atwood v.
City of Wichita and Kansas Workers Compensation Fund, Docket No. 192,202.
- April 1997. (Remand). Claimant suffered three separate mechanisms of injury, a single traumatic injury to her left
arm in September of 1991; a single traumatic injury to her right arm in March of 1992; and a series of accidents to
both upper extremities beginning in September 1991 and continuing each and every working day through July 30,
1992, claimant's last day worked. This date was determined to be claimant's date of injury per the bright line rule
announced in Berry v. Boeing Military Airplanes, 20 Kan. App.2d 220, 885 P.2d 1261 (1994), as modified in
Condon v. The Boeing Co., 21 Kan. App.2d 580, 903 P.2d 775 (1995). Because both upper extremities were
simultaneously aggravated, these separate events were treated as one accident and as an jury to the body as a whole.
See Murphy v. IBP, 240 Kan. 141, 727 P.2d 468 (1986). Diaz v. Beech Aircraft Corporation and Kansas Workers
Compensation Fund, Docket No. 169,533. [Affirmed by unpublished Court of Appeals opinion, Docket No.
79,064].
4.56 Proof of Injury