Nos. 1,009,450 and 1,030,997. AMY V. REITER VS. STATE OF KANSAS.

• Case Date: October 25, 2010
• Court: Kansas

Kansas Workers Compensation 2010. Nos. 1,009,450 and 1,030,997. AMY V. REITER VS. STATE OF KANSAS October 25, 2010BEFORE THE APPEALS BOARDFOR THE KANSAS DIVISION OF WORKERS COMPENSATIONDocket Nos. 1,009,450 and 1,030,997AMY V. REITER Claimant VS.STATE OF KANSAS Respondent ANDSTATE SELF INSURANCE FUND Insurance Carrier ORDER Statement of the Case Both claimant and respondent and its insurance carrier (respondent) requested review of the Review and Modification Award entered by Administrative Law Judge Bruce E. Moore on February 19, 2009, in Docket No. 1,009,450. Claimant further appeals the Award entered by Administrative Law Judge Bruce E. Moore on February 19, 2009, in Docket No. 1,030,997. The Board heard oral argument on June 19, 2009. James S. Oswalt, of Hutchinson, Kansas, appeared for claimant. E.L. Lee Kinch, of Wichita, Kansas, appeared for respondent. In Docket No. 1,009,450, the Administrative Law Judge (ALJ) found upon review and modification that claimant was permanently and totally disabled as a result of her injury of October 26, 1999. Claimant was, accordingly, awarded permanent total disability compensation at the rate of $269.73 per week not to exceed $125,000. Respondent was allowed a credit for the amount of temporary total and permanent partial disability compensation claimant was previously paid in Docket No. 1,009,450, as well as for the temporary total disability compensation claimant was paid in Docket No. 1,030,997. The Board has considered the record and adopted the stipulations listed in the Award. Issues Claimant requests review of the ALJ's findings that she failed to prove she suffered a new injury on August 8, 2006, that she failed to provide respondent with timely notice of her alleged injury of August 8, 2006, and that the deterioration of her condition represented the natural and probable consequence of her 1999 injury. Although claimant's application for review lists an issue concerning the amount of compensation due in Docket No. 1,009,450, that issue was not mentioned in her brief to the Board. Respondent requests that the ALJ's Award denying claimant workers compensation benefits in Docket No. 1,030,997 be affirmed. In regard to Docket No. 1,009,450, respondent argues that claimant is not permanently totally disabled. Further, respondent contends that claimant did not prove an increase in her functional disability or that she is entitled to a work disability. In the alternative, if the Board finds that claimant is entitled to a work disability, no work disability award should be effective until October 17, 2008, the date of Dr. Paul Stein's latest restrictions. The issues for the Board's review are: (1) Did claimant prove she sustained a new accident and injury on August 8, 2006, that arose out of and in the course of her employment with respondent, or is her current condition a natural and probable consequence of her previous accident of October 26, 1999? (2) If claimant's current condition is a result of a new and separate injury of August 8, 2006, did claimant provide respondent with timely notice of her alleged August 8, 2006, accident? (3) What is the nature and extent of claimant's disability in both docketed claims? (4) In the event the Board finds claimant is permanently and totally disabled as a result of her injuries in the October 26, 1999, accident, did the ALJ correctly compute the amount of compensation due claimant? Findings of Fact On October 26, 1999, claimant was working for respondent as a juvenile corrections officer. She was injured on that date when a juvenile resident of the correctional facility kicked her in her left knee. She was taken to the hospital and was off work two days. She was referred to Dr. Michael Johnson, who ordered an MRI that showed claimant had a possible torn anterior cruciate ligament (ACL). On December 8, 1999, Dr. Johnson performed surgery on claimant's left knee to repair her ACL. Claimant was sent to physical therapy after her surgery, but her knee pain worsened. She was diagnosed with complex regional pain disorder. She also began having low back pain as a result of her altered gait. Claimant returned to work in June 2000, with restrictions. She continued being treated by various physicians for her left knee and low back conditions, undergoing a myriad of treatments, including lumbar sympathetic blocks, lumbar epidural steroid injections, and nerve root blocks. She also underwent testing, including MRI's, x-rays, discogram, CT scan, EMG and nerve conduction studies. In March 2002, she was referred to Dr. Alan Moskowitz, who diagnosed her with degenerative disc disease. On June 12, 2002, Dr. Moskowitz performed a fusion to her low back from L4 to S1, with instrumentation. Claimant testified that her low back and left leg conditions worsened after her surgeries. She returned to work at respondent as a juvenile corrections officer on September 23, 2002, with lifting restrictions from Dr. Moskowitz. She continued having worsening pain in her low back, left leg and left knee. She had left nerve root blocks performed by Dr. Michael Mueller in September 2003 and January 2004 and continued to have testing in the form of an EMG, myelogram and CT scan. On or about February 19, 2004, claimant was laid off by respondent because she was unable to perform the duties of a juvenile corrections officer. On March 17, 2004, claimant was seen by Dr. Pedro Murati, an independent medical examiner, at the request of claimant's attorney. He diagnosed claimant with left knee pain status post-ACL reconstruction with patella tendon graft and low back pain secondary to posterior lumbar interbody fusion at L4-5 and L5-S1. He said that claimant had developed complex regional pain disorder in her left lower extremity and also that claimant's low back condition was a result of a limp she had after her knee injury and surgery. Using the AMA Guides,(fn1) he rated claimant as having a 25 percent permanent partial impairment to the body as a whole for her low back and a 23 percent permanent partial impairment to her left lower extremity, which he converted to a 9 percent whole person impairment. Using the Combined Values Chart, he found she had a total functional impairment of 32 percent. He also found that claimant had a 50 percent task loss after reviewing a job task list prepared by Jerry Hardin and concluding that claimant was unable to perform 16 of the 32 tasks on his list. After Dr. Murati's independent medical examination of claimant, he was authorized to be her treating physician to manage her pain. He provided her with prescriptions for pain medication and also gave her Synvisc injections in her left knee and Botox blocks for her low back. She obtained a secretarial/sales job with Bell Memorial in November 2004, however the job did not work out and her last day with Bell Memorial was on December 23, 2004. On January 26, 2005, claimant was evaluated by Dr. Philip Mills, who is board certified in physical medicine and rehabilitation, as well as being a board certified independent medical examiner, at the request of respondent. After examining claimant, he rated her as having a 10 percent permanent partial impairment to the whole body for her low back and a 3 percent permanent partial impairment to the whole body for her left lower extremity injury. These combined for a 13 percent permanent partial impairment, which he rounded up to 15 percent. Dr. Mills reviewed a task list prepared by Karen Terrill and opined that of the 39 tasks on the list, claimant was unable to perform 15 for a task loss of 38 percent. Claimant returned to work for respondent on March 7, 2005, having accepted a lower-paying position as an office assistant. She was first assigned duties in the facility's commissary. She testified that job involved bending, kneeling, climbing ladders, and standing on a cement floor for up to eight hours a day. About August 2005, she was moved from the commissary to a job as an administrative assistant in the facility's library. The library job was more accommodating to her restrictions than was the commissary job. During this time, she continued being seen by Dr. Murati for prescriptions, Synvisc injections and Botox injections. Claimant's supervisor, Katrina Pollett, testified that during this period, she at times observed claimant riding a Ninja cycle to work during nice weather. She wondered how claimant was able to ride that type of motorcycle when she allegedly had back issues. Ms. Pollett also testified that she saw claimant running in high-heeled shoes while at work. On November 23, 2005, the ALJ entered an Award in Docket No. 1,009,450, finding that claimant had a 10 percent permanent partial impairment to her low back and a 10 percent permanent partial impairment to her left lower extremity, which converted to a 3 percent impairment to the body as a whole, for a combined rating of 14 percent. This award was modified by the Board on March 31, 2006, when it found that claimant was entitled to an award of 25 percent permanent partial impairment to the whole body. On March 14, 2006, claimant was seen by Dr. Paul Stein, a board certified neurosurgeon, at the request of respondent. He was asked to provide an opinion as to the nature of claimant's injury and recommendations relative to treatment. After his examination, Dr. Stein concluded that claimant had sustained an injury to her left knee. He had no recommendations as to additional treatment for...