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Jones v. U.S.D. No. 259

Court of Appeals of Kansas

May 4, 2018

Loren E. Jones, Appellant,
U.S.D. No. 259, Appellee.


         1. Under the Kansas Judicial Review Act, an appellate court may reverse the Workers Compensation Board's determination if the court finds that the Board erroneously interpreted or applied the law. K.S.A. 2017 Supp. 77-621(c)(4).

         2. An appellate court gives no deference to the Workers Compensation Board's interpretation of statutory language.

         3. The first step of statutory interpretation is to try to determine the legislative intent by looking to the words of the statute, giving common words their ordinary meanings.

         4. When the Legislature used the phrase, "If the employee has preexisting permanent restrictions . . ." in K.S.A. 2013 Supp. 44-510e(a)(2)(D), it created a condition precedent requiring the existence of such permanent restrictions before the work tasks the restrictions address could be excluded from the calculation of the task loss in an award for a subsequent work injury. If there were no such permanent restrictions, then the statute does not apply.

          Appeal from Workers Compensation Board. Opinion filed May 4, 2018. Reversed and remanded with directions.

          Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for appellant.

          Travis L. Cook, Vincent A. Burnett, and Dallas L. Rakestraw, of McDonald Tinker PA, of Wichita, for appellee.

          Before Standridge, P.J., Hill and Buser, JJ.

          Hill, J.

         This is an appeal by an injured worker from the task loss reduction imposed on his workers compensation award by the Workers Compensation Board. While he was working as a middle school janitor for U.S.D. No. 259, Loren E. Jones hurt his cervical spine and upper back while lifting and carrying boxes of copy paper in 2011 and then hurt his lower back while shoveling snow at the school in 2014. He claimed workers compensation benefits for both injuries. The self-insured District contested both of Jones' claims. Since the parties agreed to seek separate awards for both injuries, the Workers Compensation Division docketed the claims separately but then adjudged them in a common proceeding.

         The administrative law judge granted Jones his benefits, and the District appealed to the Workers Compensation Board. The Board, again in a combined proceeding, affirmed the ALJ's award for Jones' 2011 upper back injury after finding that his cervical spine injury arose from a workplace accident. The Board, however, reversed part of the award for his 2014 injury after finding that the ALJ's task loss determination failed to account for any task loss attributable to the 2011 injury.

          In separate cases, both parties appeal to this court. In this case, Jones, as the appellant, argues that the Board erred in its task loss analysis for the 2014 injury. In the other case-No. 117, 970-the District is the appellant and argues that the Board erred in deciding the cause of Jones' 2011 cervical spine injury.

         In this opinion, we will focus mainly on the task loss issue raised by Jones concerning the Board's holding on his 2014 injury. We will, however, refer to some of the circumstances of the 2011 injury and its treatment as it relates to the 2014 injury and the computation of task losses. In turn, we will discuss in greater detail the facts of the 2011 injury in our opinion in Case No. 117, 970.

         Jones is hurt and seeks medical treatment.

         Jones' first accident occurred on February 14, 2011. On that date, Jones' tasks included moving boxes of copy paper to locations throughout the school, setting up bleachers in the auditorium, and lifting a metal meal cart that had fallen over. The school is a two-story building that does not have an elevator, so Jones was required to carry the copy paper up a flight of stairs. After performing this work, he began to feel pain in his shoulders, arms, hands, and wrists. Jones also claimed to have had numbness and tingling at this time. Jones reported his injury to the District, and the District referred him to Dr. John Babb.

         Jones went to see Dr. Babb about ten days later. Jones provided his medical history and described the symptoms he was experiencing. On a pain diagram chart, Jones stated that he was experiencing symptoms in both shoulders, both arms, and his right hand. At this time, Jones was most concerned with his shoulder pain, but stated that his arms, hands, and also wrists had been bothering him.

          Dr. Babb treated Jones conservatively. He administered a corticosteroid injection into Jones' shoulders and ordered physical therapy. On June 11, 2011, Dr. Babb released Jones to return to work without restrictions. Throughout the treatment, Jones denied feeling numbness or tingling in his arms. Although he was released to return to work, Jones was still experiencing some pain in his shoulders and down both arms. Jones ...

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