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Cooper v. Mid-America Dairymen5/1/1998
The Workers Compensation Board (Board) awarded claimant permanent partial disability benefits based on a finding of "work disability" of 85%. The Board then determined that claimant had a 100% wage loss. Respondent and its insurance carrier appeal.
In early 1993, claimant was employed by respondent Mid-America Dairymen to bag dry powdered milk. This work consisted of bagging 50-pound bags of dry powder and lifting, weighing, and twisting the bags. After she had been on the job for only a few days, claimant developed soreness and swelling in her fingers as well as aching in her elbow and shoulder.
Claimant then sought medical attention for her pain and disability. She was diagnosed with bilateral carpal tunnel syndrome. She had surgery on each arm, one in November 1993 and the other in January 1994. The fact that the injury suffered by claimant was job related is not contradicted.
Respondent apparently attempted to accommodate claimant and reassigned her to jobs that it believed were compatible with her restrictions. Despite her pain and discomfort, claimant continued to work for respondent until she was laid off in 1994.
The key to this case is whether claimant was entitled to a 100% loss of wages as a result of her disabilities as was found by the Board. Respondent argues that claimant is capable of earning wages but has no interest in doing so as long as workers compensation checks continue to flow into her hands.
The Board found claimant to have sustained an 85% work disability. It did so by averaging a 70% loss of task function by Dr. Zimmerman with a wage loss figure of 100%.
The record shows that from the time claimant was laid off in 1994 to the date of the hearing, she had worked for only 2 weeks at a local grocery store. She testified briefly that she had looked for other work but was unable to find it.
The issues to be decided on this appeal are the claimant's "capacity" to earn wages and "good faith" in seeking another job.
The Board set the date of the accident on claimant's last day at work. We agree. The Board applied our decisions in Condon v. Boeing Co., 21 Kan. App. 2d 580, 903 P.2d 775 (1995), and Berry v. Boeing Military Airplanes, 20 Kan. App. 220, Syl. 3, 885 P.2d 1261 (1994), in reaching its decision as to the date of the accident. We agree with the Board's decision and its rationale.
The only seriously disputed issue on this appeal is the extent of claimant's wage loss. The Board determined " he difference between what claimant was earning [at the time of the injury] and what claimant is earning is, therefore, 100 percent." The math employed by the Board was arrived at by merely observing that claimant is now unemployed and is earning no wages. A person earning no wages at this time has a 100% wage loss from the wages he or she was earning while employed. If the end period were to stop at this point, claimant's loss would be 100%.
Respondent argues that the Board should have taken into consideration claimant's "capacity to work." This suggestion is strongly opposed by claimant, who does not want her capacity to work to be considered by the court.
K.S.A. 44-510e(a) states:
"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, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average wee
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