Opinion
No. 107,221.
2012-11-2
Amy PARKER–ROUSE, Appellee, v. LARNED HEALTHCARE CENTER, and Premier Group Insurance Company, Appellants.
Appeal from Workers Compensation Board. Terry J. Torline, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellants. John L. Carmichael, of Conlee, Schmidt & Emerson, LLP, of Wichita, for appellee.
Appeal from Workers Compensation Board.
Terry J. Torline, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellants. John L. Carmichael, of Conlee, Schmidt & Emerson, LLP, of Wichita, for appellee.
Before McANANY, P.J., HILL, J., and ALLEN R. SLATER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
The claimant in this workers compensation case, Amy Parker–Rouse, age 23, worked as a certified nurse's aide (CNA) at the Larned Healthcare Center (Larned). Her job duties included patient care, which sometimes required her to lift patients weighing between 150 and 300 pounds. The parties are well acquainted with the facts so we need not recount all of them. Here is a brief overview.
On March 4, 2009, Amy injured her back while at work. At a hearing on September 10, 2009, she testified:
“I was transferring a patient into bed and afterwards, I bent down to pick up something and I just had a sharp pain in the right side of my lower back that shot down my right leg.... I started feeling a little aching as I was transferring [the patient] into bed. It wasn't more so lifting patients, she was more of a pull and tug, and I started having aching, and as I bent down, it was a full, sharp pain in the back.”
At a later hearing on April 1, 2011, she testified:
“I was putting [the patient] to bed and I got her totally transferred into bed and bent down to pick up stuff off the floor, and as I was lifting up, I noticed the pain. There was a little bit of pain as I was transferring her, but as I bent down and stood up, that's when all the pain came.”
The next day, March 5, 2009, Larned sent Amy to see Dr. David Sanger. Dr. Sanger found she had low back pain that radiated into her leg caused by lifting a patient at work. He prescribed a muscle relaxant and imposed a 10–pound lifting restriction. Amy returned to work, and Larned accommodated her lifting restriction. Dr. Sanger also sent Amy to physical therapy.
On March 16, 2009, Dr. Sanger released Amy to return back to work without any work restrictions. Amy returned to work at that time.
Amy quit her job 2 weeks later. Larned claims she quit in order to provide at-home child care for her fiance's three children. Amy claims she quit because lifting aggravated her pain to the point that she was in tears and vomited. She told her supervisor that she said she could do all the work except the heavy lifting. She says her supervisor told her to decide whether she could do the work or not. Amy decided she could not and resigned.
In June 2009, Dr, Hufford saw Amy and ordered temporary restrictions on her activities and ordered physical therapy. Amy's therapy was interrupted when she became pregnant.
In August 2009, Lamed made a surveillance video which depicted Amy engaged in normal childcare and household duties, apparently without difficulty.
In September 2009, Larned offered Amy a job that was within the work restrictions imposed by Dr. Hufford. Lamed says Amy declined because of her home childcare duties. According to Amy, Lamed offered, and she accepted, a job on the 6 a.m. to 2 p.m. shift. When she arrived for work the next day, she was told she would have to work the graveyard shift from 10 p.m. to 6 a.m., which Amy could not do because of her husband's work schedule.
Amy had her baby in April 2010. In June 2010, Dr. Hufford released her to return to work with no restrictions.
Amy was then seen by Dr. Fluter who imposed permanent work restrictions. He found that she had an 8% functional impairment. Dr. Hufford found that Amy had a 5% functional impairment. Dr. Pratt, who was appointed to do an independent medical exam, found that Amy suffered a 5% permanent partial impairment from her back injury.
The Workers Compensation Board found that Amy suffered an on-the-job injury on March 4, 2009. The Board found that she suffered a 5% functional impairment and awarded her a 41% task loss based on Dr. Fluter's opinion. The Board also found she suffered a 100% wage loss and awarded her a 70.5% work disability.
Lamed appeals, contending that the evidence does not support the Board's determination that Amy suffered an on-the-job injury. Lamed argues that the activity that caused Amy's injury was not unique to the job but was an activity of day-to-day living, which is not compensable.
Larned also contends the Board erred when it awarded Amy a 70.5% work disability. Amy was offered a new job within her work restrictions, but she refused to take it. She chose to stay home with the children. Her work at home caring for the children had economic value and should be considered compensated work because she did not have to work outside the home and pay someone else for daycare for the four children.
Larned also contends the Board erred in awarding future medical benefits and temporary total disability benefits.
Compensable Injury?
Larned contends that Amy did not sustain an injury that arose out of and in the course of her employment. Citing Bryant v. Midwest Staffing Solutions, Inc., 292 Kan. 585, 257 P.3d 255 (2011), Larned argues that Amy's injury arose out of an activity of daily living unrelated to her employment.
Whether an injury is compensable is a question over which we exercise unlimited review. 292 Kan. at 587. But whether an injury arose out of and in the course of employment is a question of fact. Scott v. Hughes, 294 Kan. 403, 415, 275 P.3d 890 (2012). In reviewing the Board's factual determination, we consider whether the factual determination is “supported by evidence that is substantial when viewed in light of the record as a whole.” See K.S.A.2011 Supp. 77–621(c)(7), (d); Casco v. Armour Swift–Eckrich, 283 Kan. 508, 514, 154 P.3d 494 (2007). In concluding that Amy suffered a compensable injury the Board found:
“Claimant has consistently maintained that her injury happened when she was transferring a patient into a bed and then afterwards she bent over to pick up something and felt pain in her lower back. Following the injury, she immediately notified a nurse of the accident. The fact that a notation in Dr. Sanger's report states that claimant injured herself while lifting a patient is evidence that supports claimant's contention that her injury was work related. Further, Drs. Hufford and Fluter opined the injury was work related.”
Larned argues that Amy gave at least three different and inconsistent versions of how the injury occurred: (1) her report to Dr. Sanger, (2) her testimony at the preliminary hearing, and (3) her testimony at the regular hearing.
Dr. Sanger's report, taken the day after the injury, notes that “[t]he event which precipitated this pain was lifting a patient. This occurred at work.” At the preliminary hearing Amy testified that she “started feeling a little aching as I was transferring [a patient] into bed.” Amy said that she then bent down and “it was a full, sharp pain in the back.” She later testified that she experienced “a little bit of pain as I was transferring her, but as I bent down and stood up, that's when all the pain came.”
While different words may be used at different times to describe a single event, we fail to see any significant difference between Amy's description of how her injury occurred. Lifting a patient, a job-related activity, was always an element in Amy's description of her initial pain-inducing activity.
K.S.A.2008 Supp. 44–508(e), the applicable statute at the time of Amy's injury, defines “injury” as follows:
“ ‘Personal injury’ and ‘injury’ mean any lesion or change in the physical structure of the body, causing damage or harm thereto, so that it gives way under the stress of the worker's usual labor. It is not essential that such lesion or change be of such character as to present external or visible signs of existence. An injury shall not be deemed to have been directly caused by the employment where it is shown that the employee suffers disability as a result of the natural aging process or by the normal activities of day-to-day life.”
From this, and the holding in Bryant, Larned argues that Amy's injury was not work related but occurred from normal activities of day-to-day life.
In Bryant, the claimant had a history of back problems which resulted in back surgery before he began working for his employer. Bryant worked as an air conditioning repair technician. While on a service call, Bryant stooped over to pick up a tool used for his work and felt a pop when he twisted toward the equipment he was servicing. Two months later, while on another service call, Bryant stooped down to do some welding and immediately felt pain in his back, prompting additional back surgery. The Board found a compensable injury, but a panel of this court reversed, concluding that Bryant's injury resulted from normal activities of day-to-day life. On review, our Supreme Court reversed, concluding that “Bryant was not engaged in the normal activities of day-to-day living when he reached for his tool belt or when he bent down to carry out a welding task.” 292 Kan. at 596. In doing so, the Supreme Court focused
“on whether the injury occurred as a consequence of the broad spectrum of life's ongoing daily activities, such as chewing or breathing or walking in way that were not peculiar to the job, or as a consequence of an event or continuing events specific to the requirements of performing one's job.” 292 Kan. at 595.
We fail to see how Bryant advances Larned's cause. Larned's argument is based on its assumption that Amy's injury occurred when she bent down, rather than when she was lifting a patient. The Board found otherwise, and we have concluded that substantial evidence supports this finding. It is not the function of our court to reweigh the Board's findings of fact. Webber v. Automotive Controls Corp., 272 Kan. 700, 705, 35 P.3d 788 (2001). Lifting patients is clearly an inherent duty in Amy's work for Larned as a CNA. We conclude that the Board did not err in finding Amy's injury to be compensable.
Work Disability
Larned contends that pursuant to K.S.A. 44–510e(a), Amy is ineligible to recover a work disability because she is engaged in work for wages equal to 90% or more of her average gross weekly wage. The work Larned refers to is Amy's full-time care of her child and stepchildren following her resignation from Larned. Larned argues that this activity amounts to “additional compensation” under K.S.A. 44–511(a)(2).
This claim involves an issue of statutory interpretation over which our review is unlimited. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
We find no statutory basis to support Larned's claim. The applicable part of K.S.A. 44–510e(a) is clear:
“An employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury.”
But we fail to follow Larned's argument that Amy not having to pay for child care costs constitutes being engaged “in any work for wages.” If she is working for wages, who is paying for her services? No one that we can determine, and no one Larned's counsel could identify in oral argument.
Larned relies on K.S.A. 44–511(a)(2), which defines “additional compensation” as:
“(A) Gratuities in cash received by the employee from persons other than the employer for services rendered in the course of the employee's employment; (B) any cash bonuses paid by the employer within one year prior to the date of the accident, for which the average weekly value shall be determined by averaging all such bonuses over the period of time employed prior to the date of the accident, not to exceed 52 weeks; (C) board and lodging when furnished by the employer as part of the wages, which shall be valued at a maximum of $25 per week for board and lodging combined, unless the value has been fixed otherwise by the employer and employee prior to the date of the accident, or unless a higher weekly value is proved; (D) the average weekly cash value of remuneration for services in any medium other than cash where such remuneration is in lieu of money, which shall be valued in terms of the average weekly cost to the employer of such remuneration for the employee; and (E) employer-paid life insurance, health and accident insurance and employer contributions to pension and profit sharing plans. In no case shall additional compensation include any amounts of employer taxes paid by the employer under the old-age and survivors insurance system embodied in the federal social security system. Additional compensation shall not include the value of such remuneration until and unless such remuneration is discontinued. If such remuneration is discontinued subsequent to a computation of average gross weekly wages under this section, there shall be a recomputation to include such discontinued remuneration.”
We fail to discern which of these provisions could possibly apply to Amy. Larned cannot point to any specific provision either. We find no statutory basis for treating the caring for one's children or stepchildren as engaging in work for wages.
As the Board aptly stated, “[e]conomic gain is not the same as earning wages from an employer.” But here, there was not even a demonstrated economic gain. Amy did not enjoy an economic gain by staying home and caring for the children. There was no evidence that Amy paid for childcare while she was working for Larned, an expense she would be spared if she cared for the children herself. To the contrary, Amy testified that when she was working for Larned, either her husband or the children's grandmother cared for the children. Thus, we find neither a statutory nor a factual basis for Larned's claim.
Next we turn to the cases Lamed relies upon. Lamed analogizes Amy's circumstances to those of the claimant in Thompson v. Harold Thompson Trucking, 12 Kan.App.2d 449, 748 P.2d 430 (1987), rev. denied 243 Kan. 782 (1988). There, the issue was how to compute the average weekly wage of the decedent who owned a trucking company and did not draw a salary but had the company pay all his living expenses out of company funds. The court determined that the application of these company funds to personal living expenses constituted substantial competent evidence from which to compute the decedent's income.
In Thompson, the decedent traded his services for money his company paid out on his behalf to his creditors. The decedent was the employee. His company was his employer. His employer paid his bills in lieu of direct compensation to him. In Amy's case, who is the employer? What payments were made on her behalf in lieu of direct monetary compensation for services rendered to an employer? Thompson clearly does not apply. There was no employer paying Amy indirectly for her services as a babysitter.
Larned also relies on Leslie v. Reynolds, 179 Kan. 422, 295 P .2d 1076 (1956), in which the Supreme Court found that the use of a company automobile and a food stipend were properly included when calculating the claimant's weekly wage. But in Amy's case, there has been no payment in kind by the employer for services rendered. There was no employer providing compensation in kind for Amy's services.
Neither Thompson nor Leslie supports Lamed. Our reading of the unambiguous language of K.S.A. 44–510e(a) makes clear that the Board did not err in rejecting Larned's argument against the awarding of permanent partial general disability compensation.
Task Loss
Larned claims the Board erroneously interpreted K.S.A. 44–510e(a) as allowing Amy to recover a task loss. The relevant part of the statute reads:
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident.” K.S.A. 44–510e(a).
Dr. Fluter testified that Amy had a task loss of 41% under the restrictions he imposed. Larned argues that this opinion cannot be relied on, because, as demonstrated in its surveillance video, Amy engaged in many of the restricted tasks while caring for her child and stepchildren.
In Gustin v. Payless ShoeSource, Inc., 46 Kan.App.2d 87, 95, 257 P.3d 1277 (2011), the court stated: “K.S.A. 44–510e(a) clearly establishes the proof necessary to establish task loss: a physician's opinion that the injured worker has lost the ability to perform a calculated percentage of the work tasks that the worker formerly performed while employed in the 15 years before the accident.”
Here, Dr. Fluter's uncontested opinion established Amy's task loss. As the Gustin court noted, this is all that matters. The fact that Amy engaged in tasks she was restricted from doing does not speak to whether her task loss was valid. As the Gustin court noted, a claimant may be able to do a task once and then have to rest from work the following day because the claimant was hurt by doing the task. 46 Kan.App.2d at 92.
The Board did not improperly broaden the mandate of K.S.A. 44–510e(a) when it awarded Amy benefits based on the task loss assigned to her by Dr. Fluter. The Board followed the language of K.S.A. 44–510e(a) and properly considered Amy's task loss.
Future Medical Benefits
Larned claims the Board deprived it of due process of law when it concluded that “claimant is entitled to future medical benefits upon proper application to and approval by the Director of the Division of Workers Compensation.” Larned asserts that Amy sought future medical benefits for the first time in her application to the Board for review of the ALJ's order, depriving Larned of any “opportunity to present any evidence to defend against this new issue.” Our review of this issue is de novo. See State v. Gilliland, 294 Kan. 519, 545, 276 P.3d 165 (2012); Unruh, 289 Kan. at 1193.
At the time of Amy's injury, the law stated that a claimant maintained a right to future medical benefits even when there was no evidence of a continuing need. See Ferrell v. Day & Zimmerman, Inc., 223 Kan. 421, 423, 573 P.2d 1065 (1978); Boucher v. Peerless Products, Inc., 21 Kan.App.2d 977, 983, 911 P.2d 198,rev. denied 260 Kan. 991 (1996).
Though K.S.A.2011 Supp. 44–510h(e), enacted in 2011, predicates the right to claim future medical benefits upon a showing that “it is more probably true than not true that additional medical treatment will be necessary” after a claimant reaches maximum medical improvement, this 2011 legislative change is prospective rather than retroactive in application and does not apply to Amy's case. See Matney v. Matney Chiropractic Clinic, 268 Kan. 336, 339, 995 P.2d 871 (2000).
K.S.A.2008 Supp. 44–510k governs the process for obtaining future benefits. The statute permits both parties to present evidence regarding a disputed claim. The Board's decision entitles Amy to ask for future medical benefits, not to receive them. Lamed retains the right to contest any claim for future medical benefits should such a claim be made. As the court noted in Ferrell, “since [the law] requires the claimant to prove the reasonableness of any future medical expenses, no hardship is worked upon the respondent.” 223 Kan. at 423. We find no denial of due process in the Board's order regarding future medical benefits.
Temporary Total Disability Benefits
For its final issue, Larned claims that the Board erred in awarding Amy temporary total disability (TTD) benefits. Resolution of this issue involves statutory interpretation, an issue over which we have unlimited review. Unruh, 289 Kan. at 1193.
K.S.A. 44–510c(b)(2) governs an award for TTD. It states:
“Temporary total disability exists when the employee, on account of the injury, has been rendered completely and temporarily incapable of engaging in any type of substantial and gainful employment. A release issued by a health care provider with temporary medical limitations for an employee may or may not be determinative of the employee's actual ability to be engaged in any type of substantial and gainful employment, except that temporary total disability compensation shall not be awarded unless the opinion of the authorized treating health care provider is shown to be based on assessment of the employee's actual job duties with the employer, with or without accommodation.”
The Board determined that Amy was not entitled to TTD benefits for the period between March 26, 2009, to June 29, 2009, because she was under no restrictions and voluntarily left her work at Lamed. But the Board awarded TTD benefits for the period from June 29, 2009, to June 23, 2010, because Lamed offered Amy accommodated work but when Amy reported for work, Lamed told her she would have to work the graveyard shift, the only shift Amy could not work because of parenting responsibilities. “Because respondent did not keep its agreement, the Board finds that claimant is entitled to TTD benefits from June 29, 2009, through June 23, 2010, the date claimant reached MMI.”
Applying the plain language of K.S.A. 44–510c(b)(2), we conclude that Amy was not entitled to TTD benefits when work was available to her. The statute states that a claimant is entitled to workers compensation only “when the employee, on account of the injury, has been rendered completely and temporarily incapable of engaging in any type of substantial and gainful employment.” (Emphasis added.) K.S.A. 44–510c(b)(2). Dr. Hufford testified that Amy could work with certain restrictions, and Lamed offered Amy employment that accommodated those restrictions. Amy reported to work and was capable of engaging in substantial and gainful employment. Her not working was unrelated to her physical ability to do the accommodated work. That Lamed changed the shift available to Amy does not change this. Accordingly, we must reverse the Board's award of TTD benefits.
Affirmed in part and reversed in part.