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Myers v. Lincoln Center OB/GYN

April 4, 2008

SANDRA KAY MYERS, CLAIMANT/APPELLEE,
v.
LINCOLN CENTER OB/GYN, P.A., RESPONDENT/APPELLANT, AND TWIN CITY FIRE INSURANCE CO., INSURANCE CARRIER/APPELLANT.



Appeal from Workers Compensation Board.

SYLLABUS BY THE COURT

1. In a workers compensation case, whether a claimant has provided timely notice of an accident to an employer under K.S.A. 44-520 is a question of fact.

2. An appellate court's scope of review of questions of fact in a workers compensation case is limited to whether the Kansas Workers Compensation Board's findings of fact are supported by substantial competent evidence.

3. Substantial evidence in a workers compensation case is evidence that possesses something of substance and relevant consequence and carries with it fitness to induce the conclusion that the award is proper, or furnishes a substantial basis of fact from which the issue raised can be reasonably resolved. An appellate court reviews the evidence in the light most favorable to the prevailing party and does not reweigh the evidence or assess the credibility of the witnesses. An appellate court will uphold findings supported by substantial evidence even though evidence in the record would have supported contrary findings.

4. The Kansas Supreme Court's decision in Casco v. Armour Swift-Eckrich, 283 Kan. 508, 154 P.3d 494 (2007), shall be applied to all workers compensation cases pending when Casco was decided.

The opinion of the court was delivered by: Malone, J.

Affirmed in part, reversed in part, and remanded.

Before HILL, P.J., MALONE, J., and BUKATY, S.J.

Lincoln Center OB/GYN, P.A. (Lincoln Center) and its insurance carrier appeal the decision of the Kansas Workers Compensation Board (Board) in favor of Sandra Kay Myers. Lincoln Center raises two issues. First, Lincoln Center claims the Board erred in finding that Myers provided timely notice of her work-related injury. Second, Lincoln Center claims the Board erred in calculating Myers' award as a permanent partial general disability rather than as a scheduled injury.

Myers worked for Lincoln Center from 1998 until her termination in December 2004. The positions she held at Lincoln Center included receptionist, switchboard operator, and medical records supervisor. At the time of her termination, Myers was working as a switchboard operator.

In 2003, Myers began experiencing numbness and pain in her fingers and had trouble pushing buttons and using a computer keyboard and mouse. Myers was concerned that the condition might be related to her diabetes, so she went to see Dr. Fajardo, who treated her for diabetes. Dr. Fajardo referred Myers to Dr. Michael Schmidt, who saw Myers in September 2004.

At Myers' first appointment with Dr. Schmidt on September 14, 2004, she completed a "face sheet" containing personal information. On this form, Myers indicated that her condition was not work related. At this appointment, Dr. Schmidt diagnosed Myers with carpal tunnel in her right wrist and scheduled her for EMG/nerve conduction studies of her right arm.

Dr. Schmidt saw Myers again on September 28, 2004, following the EMG. At this time, he diagnosed her with severe carpal tunnel syndrome on her right upper extremity and moderate on her left upper extremity. Dr. Schmidt also told Myers that the carpal tunnel was work related. He wanted to perform surgery on Myers in 2 days, on September 30. Myers called her supervisor at Lincoln Center, Jenise Weakland, who asked Myers to reschedule the surgery for October 4. Myers rescheduled the surgery, and a carpal tunnel release was performed on Myers' right upper extremity on October 4. Myers was off work for 13 days following the surgery and was paid sick leave. The surgery cost was covered under her husband's health insurance policy.

On October 19, 2004, Dr. Schmidt released Myers to return to full-duty work as a receptionist. Myers returned to work at a modified ...


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