1,021,347. PHILOMENA WOHLFORD.

• Case Date: March 31, 2009
• Court: Kansas

Kansas Workers Compensation 2009. 1,021,347. PHILOMENA WOHLFORD March 31, 2009DOCKET NO.1,021,347BEFORE THE APPEALS BOARD FOR THE KANSAS DIVISION OF WORKERS COMPENSATION PHILOMENA WOHLFORD) Claimant VS.) Docket No. 1,021,347BOMBARDIER AEROSPACE/LEARJET) Self-Insured Respondent) ORDER Respondent appealed the October 6, 2008, Review & Modification Award entered by Administrative Law Judge John D. Clark. The Workers Compensation Board heard oral argument on January 16, 2009, in Wichita, Kansas.Appearances John L. Carmichael of Wichita, Kansas, appeared for claimant. Vincent A. Burnett of Wichita, Kansas, appeared for respondent (Bombardier).Record and Stipulations The record considered by the Board and the parties' stipulations are listed in the Review & Modification Award. In addition, the parties agreed to consolidate this claim with Docket No. 1,027,918 for purposes of taking evidence as the claims are interrelated. Accordingly, the following transcripts are also part of the record in this claim: the May 2, 2006, Preliminary Hearing transcript; the June 13, 2008, deposition transcript of C. Reiff Brown, M.D.; the August 4, 2008, deposition transcript of James L. Gluck, M.D.; the August 4, 2008, deposition transcript of Philomena Wohlford; the August 7, 2008, deposition transcript of Paul Stein, M.D.; and the August 8, 2008, deposition transcript of Chris D. Fevurly, M.D.Issues This is an appeal in a review and modification proceeding. Judge Clark initially decided this claim in a February 10, 2006, Award, in which claimant was granted a 25.5 percent work disability [1] for a February 5, 2003, accident. Bombardier appealed that Award to the Board. In its June 30, 2006, Order, the Board affirmed the Judge's finding of a 26 percent wage loss but decreased claimant's task loss to 18.5 percent, which reduced claimant's work disability to 22 percent for the injuries she had sustained to her neck and right shoulder. Claimant's 26 percent post-injury wage loss was based upon the wages claimant was earning working for another employer, The Arnold Group (Arnold). But while the appeal was pending before the Board, claimant left her employment with Arnold, where she had worked from May 23, 2005, through February 19, 2006. Consequently, claimant promptly applied for review and modification of the February 10, 2006, Award, alleging there had been a change of wages and change of condition. That application was filed with the Division of Workers Compensation on February 28, 2006. Two weeks later claimant filed an application for hearing in Docket No. 1,027,918, alleging she had injured her neck, back, both shoulders and both arms while working for Arnold. In the October 6, 2008, Review & Modification Award, Judge Clark found claimant's wage loss had increased from 26 percent to 56.36 percent [2], which increased her work disability from 22 percent to 37.21 percent [3]commencing February 20, 2006 (the date claimant began working for another employer). Bombardier contends Judge Clark erred by granting claimant additional work disability benefits. Bombardier argues claimant's award of work disability should not be modified as claimant created her additional wage loss by voluntarily leaving Arnold's employment. In addition, Bombardier argues that claimant sustained later injuries at Arnold that terminates claimant's right to modify the award she received in this claim. Accordingly, Bombardier maintains any increased work disability should be paid by Arnold in Docket No. 1,027,918 as these two claims should be considered together. Finally, Bombardier contends the Judge did not follow K.S.A. 44-511 and, therefore, erred in computing claimant's post-injury wage. In short, Bombardier requests the Board to (1) deny claimant's request to increase her award of work disability benefits, (2) find that any additional work disability is the result of the injuries she later sustained while working for Arnold, and (3) use a higher post-injury average weekly wage should claimant's award be modified. Claimant argues she now has a 61 percent wage loss when considering the self-employment taxes she now pays. She also argues her job with Arnold ended due to an economic layoff and that she exercised good faith in obtaining other employment. Finally, she argues the injuries she sustained working for Arnold did not prevent her from doing that work except for a short period immediately following her right carpal tunnel and right shoulder surgeries. Accordingly, claimant requests the Board to increase her work disability and to grant her ongoing medical treatment in either this claim or the related claim. The issues before the Board on this appeal are:1. Should claimant's 22 percent work disability be increased because she has left Arnold's employment and is now earning less?2. If so, what is her post-injury average weekly wage for purposes of K.S.A. 44-510e?3. Should any increased work disability be assessed against Bombardier or, instead, against Arnold in Docket No. 1,027,918?4. Should Bombardier at this time be required to designate an authorized physician for claimant to consult for future medical treatment?Findings of Fact After reviewing the entire record and considering the parties' arguments, the Board finds and concludes: On February 5, 2003, claimant fell at work and dislocated her right shoulder, tore her right rotator cuff, and broke her right upper arm. At the time of the accident claimant was employed by Bombardier. In an Award dated February 10, 2006, Judge Clark determined claimant's date of accident was February 5, 2003, and that claimant had sustained a 20 percent whole person impairment for permanent injuries she sustained to her neck and right upper extremity. The Judge also determined claimant sustained a 25.5 percent work disability under K.S.A. 44-510e, commencing January 27, 2005, which was the approximate date claimant was laid off by Bombardier. Claimant's 25.5 percent work disability represented a 25 percent task loss and a 26 percent wage loss. That wage loss was based upon the wages that claimant was earning working for Arnold, where claimant had commenced working on May 23, 2005. And Arnold, which is a temporary employment agency, assigned claimant to work at Bombardier. Bombardier appealed the February 10, 2006, Award to this Board, which affirmed the Judge's finding that claimant had sustained a 20 percent whole person impairment as measured by the AMA Guides.[4] The Board, however, reduced claimant's task loss to 18.5 percent. Accordingly, in its June 30, 2006, Order, the Board reduced claimant's work disability to 22 percent effective April 29, 2005, or the day after Dr. Paul S. Stein released claimant as having reached maximum medical improvement. The Board also noted in its June 2006 Order that claimant's work for Arnold was aggravating her symptoms. The Board wrote in part:

Claimant now works at [Bombardier] as a temporary worker through The Arnold Group. She works 40 hours per week plus 10 to 15 hours overtime and works on a computer most of the time. No one from The Arnold Group supervises her work. She reports to a supervisor at [Bombardier].

Claimant filled out the application for employment at The Arnold Group on May 13, 2005. She did not fill out any form from The Arnold Group that asked anything about her physical condition. No one from The Arnold Group asked her anything about her workers compensation claim. She testified that she did not tell The Arnold Group about her restrictions because she had been asked by Joni Holding, the human resources representative at [Bombardier], to submit an application because [Bombardier] wanted to hire her for employment through The Arnold Group. She knew that [Bombardier] was aware of her restrictions.

Claimant's first day of work as a temporary employee at [Bombardier] through The Arnold Group was May 23, 2005. She has had a flare-up of her condition because of the constant typing she is now doing. Claimant said she currently wakes up feeling well, but as the day progresses, the numbness comes into her fingers and her shoulder and neck hurts. She has continuous pain in her shoulder and neck caused by constant computer work. Because her shoulder was not getting better, the fingers continued to tingle, and her neck kept hurting, she returned to Health Services in June 2005. . . .

Claimant

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