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BROBST v. BRIGHTON PLACE NORTH5/23/1997
Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish by an order dated November 13, 1997, pursuant to Rule 7.04 (1997 Kan. Ct. R. Annot. 44).
Judith Elaine Brobst filed a workers compensation claim against respondent, Brighton Place North (Brighton Place), and its insurance carrier, Church Mutual Insurance Company (Church Mutual), regarding injuries suffered in two separate accidents. The administrative law judge (ALJ) granted Brobst an award, and the Workers Compensation Fund (Fund) was ordered to bear 33.33 percent of the total award. The Workers Compensation Board (Board) lowered the ALJ's 71.03 percent work disability award to 21 percent, and Brobst appeals that aspect of the Board's decision. Brighton Place and Church Mutual cross-appeal
the Board's decision that Brobst's second accident occurred in the course of her employment. We affirm.
On April 14, 1990, Brobst was working as a licensed practical nurse (LPN) for the Brighton Place nursing home when she injured her back and neck lifting a heavy patient. The parties do not dispute the nature and extent of this injury. Brobst reported the incident to Brighton Place and sought treatment from a chiropractor, Dr. Ron Warta. She received treatments from Dr. Warta and continued to see him weekly through the time of the preliminary hearing in this case. From the time of this accident until October 1990, Brobst continued to perform her regular job duties at Brighton Place.
To keep her LPN position at Brighton Place, Brobst had to maintain her nurse's license. On October 12, 1990, Brobst attended an all-day continuing education seminar at Washburn University. Brobst had learned about the seminar from a notice posted on a bulletin board at Brighton Place. After seeing the posting regarding the Washburn seminar, Brobst told her employer she wanted to attend, and, although Brighton Place did not pay Brobst any wages to attend, it gave her a check to cover the tuition for the seminar.
As Brobst was leaving the seminar to go home, she stepped off a curb to cross the street to the parking lot where her car was located, twisted her ankle, and fell to the ground. Brobst informed Brighton Place about the accident but went to work that night because there was no one to cover for her. Her ankle swelled after working on it all night, and Brobst went in to see her personal physician, Dr. Ethan Bickelhaupt. The fall had twisted her back again, and the ankle injury complicated the back problems by imposing an abnormal gait. Dr. Bickelhaupt recommended that Brobst see an orthopedic surgeon, Dr. Joseph Shaw.
Brobst stayed away from work to rest her ankle until October 30, 1990, when Brighton Place called to see if she could come in. She worked the 30th and 31st of October, but stopped working again when her back and ankle bothered her, and Dr. Bickelhaupt told her she needed to stay off her feet and could not give her a medical release to work. Brobst has not worked at Brighton Place
since October 31, 1990, and her position there has been filled in her absence.
Brobst later attempted to work as a private duty personal companion for an elderly lady but had to quit when the job began to require heavy lifting.
Brobst continued to receive treatment from Dr. Warta and Dr. Bickelhaupt. She has additionally been seen by three other doctors: Dr. Shaw, the orthopedic surgeon; Dr. Jeff Wade, of the Back in Action back rehabilitation center; and Dr. Gary Counselman, a chiropractor recommended to Brobst by Dr. Warta. Jerry Zook provided a vocational assessment/evaluation of Brobst.
Dr. Counselman and Dr. Warta each
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