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Carol S. Messner v. Continental Plastic

March 29, 2013


Appeal from Workers Compensation Board.


SYLLABUS BY THE COURT 1. When a workers compensation statute is plain and unambiguous, the courts must give effect to its express language rather than speculating on legislative intent. If the statutory language is clear, there is no need to resort to statutory construction. 2. When an injured worker receives benefits for an injury not listed on the K.S.A. 44-510d schedule, the Workers Compensation Act provides for an award of permanent partial disability under K.S.A. 44-510e(a). An award of permanent partial disability may be calculated in two ways: (1) based on an overall functional impairment; or (2) based on a statutorily defined work disability. An award may be calculated in different ways for two distinct periods of time. 3. K.S.A. 44-510e(a) provides that a claimant suffering an injury is entitled to temporary total disability and permanent partial disability benefits for up to 415 weeks

from the date of injury. If the claimant meets the burden of proving eligibility for compensation, an award for functional impairment may apply to one period of time, and an award of work disability may apply to a later period of time within the 415 weeks. 4. When construing statutes to determine legislative intent, an appellate court must consider various provisions of an act in pari materia with a view to reconciling and harmonizing the provisions if possible. 5. K.S.A. 44-510e(a) provides that an award may be subject to modification under K.S.A. 44-528(a) to accommodate a change in a claimant's disability. Likewise, an initial award of compensation may provide for an increase or decrease in disability which has occurred during the 415-week time limitation. 6. An appellate court's factual review of the Workers Compensation Board's decision is limited to whether the Board's findings of fact are supported by substantial evidence in light of the record as a whole. In doing so, the appellate court does not reweigh conflicting evidence except to determine whether the evidence supporting the Board's decision has been so undermined by conflicting evidence that the appellate court no longer has confidence in the substantial nature of the evidence. 7. K.S.A. 44-510c(b)(2) provides that temporary total disability benefits shall be awarded when the injured worker is rendered completely and temporarily incapable of engaging in any type of substantial and gainful employment.

8. In order to be eligible for temporary total disability benefits under K.S.A. 44- 510c(b)(2), the claimant must show that an authorized treating physician found the claimant to be unable to engage in any type of substantial and gainful employment.

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

Affirmed in part, reversed in part, and remanded with directions.


Continental Plastic Containers and its insurance carrier, American Home Assurance Company, appeal the decision of the Workers Compensation Board awarding claims to Carol Messner in two separate workers compensation cases.

In Messner's first claim, Docket No. 253,153, Messner sought compensation for injuries she sustained as a result of a fall which occurred on July 18, 1999. Messner claimed that her disability increased from a functional impairment to a work disability when she left her employment with Continental. Thus, she sought an award of functional disability followed by an award of general disability, or work disability.

In her second claim, Docket No. 261,143, Messner alleged that she received additional injuries to her right shoulder from repetitive job duties she performed for Continental after returning to work following her fall.

On October 21, 2011, the Board determined that both of Messner's alleged injuries were work-related and awarded compensation for both claims.

Continental raises three issues. First, Continental challenges the award of work disability in Docket No. 253,153, asserting that K.S.A. 44-510e(a) prohibits an award of work disability because Messner's award for functional disability would have been paid in full before she became eligible for work disability upon leaving her employment. Continental relies on the language in K.S.A. 44-510e(a) that states: "The resulting award shall be paid for the number of disability weeks at the full payment rate until fully paid or modified." We disagree with Continental's analysis. The Board found that Messner showed an increase in disability during the 415-week benefit period provided for in K.S.A. 44-510e(a). Thus, the Board had the authority to enter a lump-sum award that provided benefits for Messner's functional disability as well as her later work disability, both of which occurred as a result of her work related injury.

The remaining two issues relate to the Board's award in Docket No. 261,143. First, Continental appeals the Board's finding that Messner's shoulder injury arose out of and in the course of her employment. Our examination of the record discloses substantial evidence to support this finding by the Board. Next, Continental claims the Board erred in awarding Messner temporary total disability (TTD) compensation from April 26, 2001, to December 13, 2002, because Messner's list of work restrictions was not from an authorized treating physician. We agree with this contention. Messner's work restrictions that led to her leaving her employment were imposed by her personal chiropractor, not by an authorized treating physician. No authorized treating physician found that Messner experienced temporary total disability during the relevant time period as required by K.S.A. 44-510c(b)(2).

Factual and Procedural Background

The protracted factual and procedural history of this case extends from July 1999 to November 2011. We will provide a full narrative of the relevant events.

On July 18, 1999, Messner was working for Continental, a manufacturer of plastic bottles, as a factory line inspector when she tripped and fell. She landed on her left leg and hip, and her left arm jammed into her ribs. She felt her neck snap and was in immediate pain. She attempted to finish her shift, but she left work before her shift was over.

Messner notified Continental of her injury, and she was sent to the Shawnee Mission Urgent Care facility where she was diagnosed as having sustained contusions to her left arm, elbow, wrist, knee, and ankle. Messner's pain persisted, and she was provided additional medical treatment and physical therapy. In addition to her work-related injuries, an MRI revealed that Messner had a pre-existing degenerative disc disease.

On January 27, 2000, Continental sent Messner to Dr. Ira Fishman, who examined Messner and found "mild residuals of cervical, thoracic, and lumbar strains, as well as contusions to her left upper and lower extremities." Dr. Fishman referred Messner for a functional capacity evaluation (FCE) to determine whether she could meet the physical demands of her employment. After receiving the results of the evaluation, Dr. Fishman gave a recommendation for Messner "to return to work in the light physical demand category, with a maximum lifting of 15 pounds on an occasional basis, as well as performance of positional activities on an occasional basis, and standing and walking on a frequent basis. However, it was noted in the summary of this FCE that 'based on self-limiting behaviors, demonstrated performance should be considered the minimum she is capable of functioning [at] the present time.' . . . Messner did self-limit on positional activities due to reported complaints of mid, upper, and lower back pain and therefore because of this self-limiting behavior, the actual functional assessment was not a true reflection of her full capabilities."

Dr. Fishman opined that Messner had reached maximum medical improvement (MMI) and was not in need of further physical therapy treatments or medical intervention. Dr. Fishman believed that Messner's soft tissue injuries would resolve with time and that she had not sustained any permanent partial impairments as a result of her fall. Dr. Fishman concluded:

"In terms of Ms. Messner's return to work status, even with her identified self-limiting behavior on the [FCE], she is functioning quite close to her regular job duty physical demands. Since it has been identified on the FCE report that the results of this test may not be a true reflection of Ms. Messner's actual physical capabilities due to her self-limiting behavior, it is my opinion at this time that Ms. Messner can return to her regular job duties without restrictions. It is my impression that Ms. Messner is capable of tolerating light duty work and I am, therefore, releasing her to her regular job duties without restrictions, effective on Monday (February 14, 2000)."

On February 16, 2000, Messner returned to work without restrictions to her previous position of line inspector. Messner had been off work from July 18, 1999, until February 16, 2000. The parties have stipulated that Messner was paid TTD benefits for the weeks she was off work for these injuries.

Messner continued to experience pain and various other symptoms from her injury. She testified that she did not feel that she was physically ready to go back to work because "I just was still hurting too much and I just couldn't do it." She claimed she was unable to do her job because of pain "from my shoulders and my neck and down through my right shoulder and my upper back, then right on down into my hip area, and then I still had the problems with the left thigh and down into the left knee." She claimed she was unable to do "the pulling or the pushing and the squatting and bending" required of a line inspector. She said she was unable to work full days and took vacation time or "would go home with points." Messner described her position as a line inspector as the lightest job available to her at Continental.

During her first week back to work, Messner's attorney referred her to Dr. Edward Prostic for an evaluation. Dr. Prostic examined Messner on February 18, 2000, and found that she was suffering from "chronic sprains and strain superimposed upon pre-existing degenerative disc disease in the low back." Dr. Prostic recommended additional medical treatment and job restrictions, stating that Messner should avoid lifting more than "25 pounds occasionally, 10 pounds frequently, or 5 pounds constantly." Dr. Prostic also stated that Messner should avoid frequent bending or twisting at the waist, forceful pushing or pulling, use of vibrating equipment, and working in a captive position. He found Messner's permanent partial impairment rating to be 15% to the body as a whole on a functional basis. Messner did not mention complaints about her right shoulder to Dr. Prostic at this time.

In March 2000, Messner filed her first workers compensation claim, Docket No. 253,153. She alleged that the July 18, 1999, fall caused various work-related injuries.

After Messner reported the worsening of her physical condition to Continental, the administrative law judge (ALJ) sent Messner to Dr. Scott Luallin for an examination, which took place on August 28, 2000. Dr. Luallin noted in his report that his evaluation was to include an impairment rating and appropriate work restrictions. Dr. Luallin suggested certain work restrictions, such as limitations on lifting, using good lifting techniques, and avoiding forceful pushing or pulling. Dr. Luallin found Messner's functional impairment rating to be 10% to the body as a whole.

In November 2000, Messner filed a second workers compensation claim, Docket No. 261,143, alleging aggravation of her condition each and every working day from August 29, 2000, the day after she was evaluated by Dr. Luallin.

Messner had a follow-up visit with Dr. Prostic on February 12, 2001. Messner continued to complain of pain in her neck and back. She had also developed right carpal tunnel syndrome and right rotator cuff tendinitis. Dr. Prostic stated that the rotator cuff tendinitis and the right carpal tunnel syndrome were caused or contributed to by the work Messner performed for Continental each day beginning on August 29, 2000. Dr. Prostic concluded that Messner was suffering from a 20% impairment to the body as a whole, 15% from injuries resulting from the first accident, and an additional 5% for injuries to her upper right shoulder.

Messner claimed that her condition continued to deteriorate. She testified that her right shoulder would pop and a pain would shoot down her arm, sometimes causing her to lose control over her right hand. She continued working until April 25, 2001, when she delivered a note from her personal chiropractor with a list of work restrictions that Continental was unable to accommodate.

Beginning on September 10, 2001, Messner was examined and treated by Dr. Terrence Pratt, a board certified physical medicine and rehabilitation specialist. Messner came to court several times in an attempt to obtain authorization for medical treatment by Dr. Pratt. Dr. Pratt's notes from his initial examination identify the July 1999 fall as Messner's only work-related injury; however, Messner mentioned to Dr. Pratt that she was experiencing symptoms in her right shoulder and into her right extremity. After treatment was approved, Messner returned to Dr. Pratt for water therapy.

On December 13, 2002, Dr. Pratt concluded that Messner had reached MMI and should be released from his care. Dr. Pratt testified that he believed that Messner should be able to return to work in the sedentary or light physical demand levels of work.

Dr. Pratt last examined Messner on August 11, 2003, when he was asked to assess Messner for restrictions. Dr. Pratt believed that Messner was able to return to some form of substantial gainful employment in the open labor market if she was limited to sedentary and light physical work. Dr. Pratt did not link Messner's right upper extremity complaints to her July 18, 1999, accident, but he did not have any new claims of injury in the history given to him. On cross-examination, Dr. Pratt affirmed that he was not requested to address causation in his evaluation of Messner.

On November 10, 2003, Dr. Prostic found that Messner continued to have evidence of strain and sprain to her neck and back, trochanteric bursitis, rotator cuff disease of the right shoulder, and right carpal tunnel syndrome. Dr. Prostic increased his rating of Messner's impairment to the body as a whole to 24%. Of that 24%, Dr. Prostic attributed 15% impairment for the neck and back and 9% impairment to the whole body for the right upper extremity. Dr. Prostic reported that the cause of Messner's rotator cuff tendinitis was the repetitious lifting, pushing, and pulling that she performed during the final stage of her employment with Continental.

Dr. Craig Satterlee, a shoulder specialist, performed surgery to Messner's right shoulder on August 14, 2007, to repair the right rotator cuff. Dr. Satterlee found a 14% impairment to the right shoulder as a result of his surgical repair. Messner was released with restrictions on July 14, 2008. Dr. Satterlee found Messner to be at MMI on September 16, 2008.

Dr. Prostic reexamined Messner on July 21, 2008. He found that Messner continued to have chronic sprains and strains of her neck and back. After undergoing shoulder surgery, Messner continued to have right carpal tunnel syndrome. Dr. Prostic determined that Messner's permanent partial impairment was 15% to the body as a whole for the spine and 20% for the upper right extremity. He opined that the injury to Messner's shoulder was work-related but was not the result of her July 1999 fall.

In his deposition in 2010, Dr. Prostic testified that the combined value of his impairment ratings for Messner's injuries from her fall on July 18, 1999, was 19% to the body as a whole based on the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (4th ed. 1995). He stated that Messner had sustained a 75% loss of task performing ability and was permanently and totally disabled from performing substantial gainful employment and is "realistically unable to return to gainful employment in the open labor market."

Continental hired Dr. Chris Fevurly, a physician with a specialty in occupational medicine, to examine Messner on April 3, 2009. Dr. Fevurly found that Messner's right shoulder complaints were not related to her work with Continental because they developed in 2003, 2 years after she left active employment with Continental. Dr. Fevurly believed Messner's right shoulder condition was the result of the degenerative process and the thinning of the rotator cuff that is commonly seen in people of a similar age. Dr. Fevurly agreed with Dr. Satterlee's assessment of a 14% impairment to the right shoulder but did not find it to be a work-related injury.

The ALJ ordered an independent medical examination with Dr. Thomas Shriwise. Dr. Shriwise opined that "half of [Messner's] shoulder impairment is from her ongoing work activities when she was sent back to work and half would be secondary to rotator cuff disease from her aging process."

In 2009, the decision was made that Messner would not return to work. Messner testified that her physical condition rendered her unable ...

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