No. 1,027,918. Wohlford v. The Arnold Group.

• Court: Kansas

Kansas Workers Compensation 2009. No. 1,027,918. Wohlford v. The Arnold Group PHILOMENA WOHLFORD, Claimant v. THE ARNOLD GROUP, Respondent AND ALEA NORTH AMERICA INSURANCE COMPANY, Insurance CarrierBEFORE THE APPEALS BOARD FOR THE KANSAS DIVISION OF WORKERS COMPENSATION Docket No. 1,027,918ORDER Claimant appealed the October 6, 2008, Award entered by Administrative Law Judge John D. Clark.(fn1) The Workers Compensation Board heard oral argument on January 16, 2009, in Wichita, Kansas. Appearances John L. Carmichael of Wichita, Kansas, appeared for claimant. Samantha N. Benjamin-House of Kansas City, Kansas, appeared for respondent and its insurance carrier. Record and Stipulations The record considered by the Board and the parties' stipulations are listed in the Award. At oral argument before the Board, the parties stipulated claimant's average weekly wage for the alleged period of accident was $847.95. Issues Claimant alleges she injured her neck, back, both shoulders, both arms and both wrists from repetitive work she performed for respondent from May 23, 2005, through February 19, 2006. In the October 6, 2008, Award, Judge Clark determined claimant sustained a 10 percent impairment to each arm for bilateral carpal tunnel syndrome. The Judge consequently granted claimant permanent partial disability benefits under K.S.A. 44-510d for two scheduled injuries. The Judge also found that claimant's October 2006 right shoulder surgery was precipitated by the work she performed for respondent and, therefore, the Judge concluded that surgery should be paid by respondent. In addition, the Judge found claimant was paid seven weeks of temporary total disability benefits while she was being paid wages by her subsequent employer, RJR Financial Services (RJR). Consequently, the Judge determined respondent was entitled to receive ...a dollar for dollar credit against this Award in the total amount of $3,269.00."(fn2) Claimant appealed the October 6, 2008, Award. Claimant, however, acknowledges that she initiated this appeal because in a related claim, Docket No. 1,021,347, the employer (Bombardier Aerospace/Learjet) appealed an award of increased permanent disability benefits entered in that claim. In short, claimant argues that if additional work disability(fn3) is not granted in the review and modification proceeding against Bombardier Aerospace/Learjet then work disability should be granted in this claim. Accordingly, claimant conditionally requests the Board to affirm the Judge's findings that she has sustained a 10 percent impairment to each upper extremity. In all events, claimant requests ongoing medical benefits at respondent's expense with a designated physician so she might receive prompt treatment for any future flare-ups she may experience. In addition, claimant argues respondent should not receive a credit for the entire seven-week period that she was off work for medical treatment following right shoulder surgery and simultaneously received temporary total disability benefits from respondent and wages from RJR as any credit (or, in essence, reduced number of weeks of temporary total disability benefits) should be limited to three weeks in which she was working part-time.(fn4) Claimant maintains she had a salary continuation agreement with RJR, which should not affect her right to receive temporary total disability benefits from respondent. Respondent also contends Judge Clark erred. Respondent requests the Board to reverse the Judge's finding that claimant is entitled to a 10 percent impairment to each arm. Additionally, respondent argues claimant's right shoulder condition was a natural and probable consequence of claimant's 2003 work-related injury with Bombardier Aerospace/Learjet and, therefore, respondent should not be required to pay for that treatment. Finally, respondent asserts that, based upon the Casco(fn5) decision, claimant is not entitled to any award of work disability in this claim as her bilateral upper extremity injuries fall under the schedule of K.S.A. 44-510d. The issues before the Board on this appeal are: 1. What is the nature and extent of claimant's injury and disability? 2. Is claimant entitled to temporary total disability benefits for the seven-week period in which she was recuperating from right shoulder surgery but she was also paid wages from her present employer, RJR Financial Services? 3. Should respondent be held financially responsible for the right shoulder surgery claimant underwent in October 2006? 4. Should respondent be required to designate at this time 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: The parties agreed to consolidate this claim with Docket No. 1,021,347, for purposes of taking evidence. At the June 12, 2008, hearing before Judge Clark, the parties represented the claims against Bombardier Aerospace/Learjet (Bombardier) and The Arnold Group (Arnold) were interrelated.(fn6) Accordingly, the Judge approved the parties' agreement that these claims would be tried together, but separate awards would be issued.(fn7) A brief review of Docket No. 1,021,347 is helpful and places this matter in context. The subject of Docket No. 1,021,347 is a February 5, 2003, accident that occurred during the course of claimant's employment with Bombardier. On that date claimant fell at work and dislocated her right shoulder, tore her right rotator cuff, and broke her right upper arm. In an Award dated February 10, 2006, Judge Clark found 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 post-injury 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 to this Board the February 10, 2006, Award, which affirmed the Judge's finding that claimant had sustained a 20 percent whole person impairment as measured by the AMA Guides.(fn8) 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, which commenced 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 findings that claimant's work for Arnold was aggravating her symptoms. In its June 2006 Order, 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 testified that there has been no occasion since her employment with The Arnold Group that she has been asked to do something she felt was outside her restrictions or that she told anyone she could not do. Her current job at [Bombardier] is within her restrictions, although she feels she is overdoing it and needs to get up and take breaks.(fn9)

Claimant leaves The Arnold Group and seeks additional medical treatment While the February 10, 2006, Award was pending review before this Board, claimant quit her job with Arnold. February 19, 2006, was claimant's last day of work. The next day claimant began working for RJR for lower wages preparing income tax returns and performing other tasks. Claimant promptly filed a request in Docket No. 1,021,347 to review and modify the February 10, 2006, Award against Bombardier due to a...