1019460. LAVERNE BOLLING.

• Case Date: April 15, 2005
• Court: Kansas

Kansas Workers Compensation 2005. 1019460. LAVERNE BOLLING For Case Summaries go to: Table of ContentsKeyword ListingApril 15, 2005DOCKET NO. 1,019,460BEFORE THE APPEALS BOARD FOR THE KANSAS DIVISION OF WORKERS COMPENSATION LAVERNE BOLLING Claimant VS. UNITED WAY OF THE PLAINS Respondent) Docket No. 1,019,460 AND EMCASCO INSURANCE COMPANY Insurance Carrier ORDER Respondent and its insurance carrier (respondent) request review of the December 3, 2004 preliminary hearing Order entered by Administrative Law Judge (ALJ) John D. Clark. Issues Following the November 18, 2004 preliminary hearing, Judge Clark awarded claimant preliminary benefits including payment of all medical expenses and specifically authorized Dr. Drew E. Shultz and Dr. Earl Mills as claimant's treating physicians. The ALJ's Order makes a specific finding "that the [c]laimant aggravated a pre-existing condition and therefore was injured out of and in the course of her employment with the [r]espondent and the [r]espondent had notice of the [c]laimant's injuries."[1] Respondent argues that claimant has failed to prove that her current back complaints are attributable to her alleged August 6, 2004 accident at work with respondent. Instead, respondent points to claimant's prior January 2004 slip and fall as the probable cause of her low back condition and need for surgery. Respondent further denies receiving timely notice of the alleged accident at work. Conversely, claimant argues that her accident at work either caused or aggravated her low back condition and that she gave timely notice thereof. Claimant contends the ALJ's Order should be affirmed. Accordingly, the issues for the Board's review are whether claimant has proven personal injury by accident arising out of and in the course of her employment and, if so, whether she gave respondent timely notice of her accident. Findings of Fact and Conclusions of Law The Workers Compensation Act places the burden of proof upon claimant to establish her right to an award of compensation and to prove the conditions on which that right depends.[2] "'Burden of proof' means the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party's position on an issue is more probably true than not true on the basis of the whole record."[3] An injury arises out of employment if it arises out of the nature, conditions, obligations, and incidents of employment.[4] Whether an accident arises out of and in the course of the worker's employment depends upon the fact peculiar to the particular case.[5] Claimant had a preexisting back condition from an earlier accident not related to her work with respondent. Nevertheless, she alleges that she aggravated her preexisting condition lifting boxes at work on August 6, 2004. She has been unable to work since that date. It is well settled in this State that an accidental injury is compensable even where the accident only serves to aggravate or accelerate an existing disease or intensifies the affliction.[6] "The test is not whether the job-related activity or injury caused the condition but whether the job related activity or injury aggravated or accelerated the condition."[7] Claimant acknowledged having a preexisting back and left leg condition, but said the problem was in her upper back, not lower back. Q. (Ms. Franklin) Ms. Bolling, you heard the statements that were made before you started testimony here today. Is it true that you have...