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

• 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