230309A. LAWRENCE A. WRIGHT.

• Case Date: October 10, 2003
• Court: Kansas

Kansas Workers Compensation 2003(5). 230309A. LAWRENCE A. WRIGHT For Case Summaries go to: Table of ContentsKeyword ListingOctober 10, 2003DOCKET NO. 230,309ABEFORE THE APPEALS BOARD FOR THE KANSAS DIVISION OF WORKERS COMPENSATION LAWRENCE A. WRIGHT Claimant VS. Docket No. 230,309 GCR TRUCK TIRE CENTER Respondent AND INSURANCE COMPANY OF THE STATE OF) PENNSYLVANIA Insurance Carrier ORDER Respondent appeals the August 22, 2000, Award of Administrative Law Judge Brad E. Avery. Claimant was awarded a 14 percent whole body functional impairment, followed by a 76.5 percent permanent partial disability to the body as a whole, followed by a 66 percent permanent partial disability to the body as a whole, for a total award not to exceed $100,000 for injuries suffered to his low back. Respondent contends claimant did not prove his accidental injury arose out of and in the course of his employment, nor did he provide timely notice. Respondent further argues the Administrative Law Judge did not give respondent ample time to brief this matter. The Appeals Board held oral argument on February 20, 2001. Appearances Claimant appeared by his attorney, John J. Bryan of Topeka, Kansas. Respondent and its insurance carrier appeared by their attorney, Michael R. Kauphusman of Overland Park, Kansas. Record and Stipulations The Appeals Board has considered the record and adopts the stipulations contained in the Award of the Administrative Law Judge. Issues (1) What is the nature and extent of claimant's injury and/or disability? (2) Did claimant provide timely notice of accident? (3) Did the Administrative Law Judge err by issuing an award in this matter prior to the respondent being given an opportunity to submit its brief? (4) Should the conclusion of Mary Titterington's deposition taken on August 23, 2000, be included in the record?Respondent also raises all issues raised before the Administrative Law Judge in its Application for Review, which include the following additional issues: (5) Did claimant prove that he suffered accidental injury arising out of and in the course of his employment with respondent? (6) Is claimant entitled to future and unauthorized medical as a result of this injury? Respondent also disputed the average weekly wage finding of the Administrative Law Judge in its appeal. However, in its brief to the Board, respondent acknowledged that it had no quarrel with the average weekly wage found by the Administrative Law Judge in the amount of $633.73. The Appeals Board, therefore, affirms the Administrative Law Judge's finding of claimant's $633.73 average weekly wage. Findings of Fact and Conclusions of Law Based upon the evidence presented, the Appeals Board finds that the Award of the Administrative Law Judge should be modified. Claimant began working for respondent in 1995 as an off-road tire fixer. Claimant's duties required that he travel to different locations and fix tires on tractors, graders and other pieces of equipment. Claimant's job required that he lift heavy weights on a regular basis, with the tires weighing anywhere from 75 up to 200 pounds. Tractor tires would be even larger than that, but claimant was provided a hoist to help with the tires he was unable to handle. Claimant testified that he occasionally suffered back problems as a result of the heavy physical labor required in this job. The fact that this was a heavy physical labor job was confirmed by several respondent employees, including respondent's store manager, Billy Joe (Red) Everhart, the office and credit manager, David Lee Lancaster, the service manager, Robert W. Meyer, and the assistant manager, Jerry Shelman. Claimant first experienced low back problems in February of 1996. He went to a Dr. Douglas Boehr, a chiropractor, for an adjustment. Claimant saw Dr. Boehr again on May 8, 1996, in November 1996 and again in May 1997. With the exception of the May 1997 visits, claimant's back always improved after the adjustments by Dr. Boehr. After receiving two treatments in May of 1997 and showing no improvement, claimant went to see Mark Newth, D.O., a family practitioner. Dr. Newth first saw claimant on September 20, 1995, as a new patient. The first time Dr. Newth examined claimant for low back symptoms was on February 3, 1997. He was advised at that time that claimant was a tire changer for respondent. He ordered x-rays, diagnosing lumbar arthritis and bilateral L5 spondylolysis and grade I spondylolisthesis at L5 and S1. Claimant was again seen in Dr. Newth's office for his low back on May 21, 1997, at which time claimant had low back and neck pain and right leg numbness. When Dr. Newth examined claimant on June 27, 1997, he continued to complain of low back pain. Claimant advised Dr. Newth he had obtained chiropractic adjustments in the interim, but that they did not help. Claimant again discussed the fact that his job required heavy lifting. Dr. Newth last saw claimant on August 5, 1997, with his ultimate diagnosis being a herniated disc at L4-L5 on the right and a central disc at L1-2. The herniation diagnosis was in addition to the spondylolysis and spondylolisthesis diagnoses earlier discussed. On July 21, 1997, claimant contacted Dr. Newth's office by telephone, discussing his increased back symptoms. Due to the increase in pain, Dr. Newth recommended claimant not work until he saw John Ebeling. M.D. An appointment was scheduled for August 14, 1997. Claimant was provided stronger pain medication including Relafen and Flexeril. Due to the significant pain he was experiencing, claimant underwent an epidural injection on July 30, 1997. Claimant's last day of work with respondent was July 24, 1997. Claimant had driven to Wamego, Kansas, to repair a tractor tire on that date. He replaced the tractor tire, but experienced significantly more difficulties with his back while performing...