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KIMBER v. U.S.D. NO. 4188/22/1997
This is an appeal in two workers compensation cases which were consolidated for hearing before an administrative law judge (ALJ). It involves one employee seeking recovery from two separate employers for alleged injuries suffered about a year apart during different terms of employment.
Kathleen Kimber, claimant, alleged she injured both hands and knees in May 1991 as a result of a fall at her place of employment with U.S.D. No. 418 (school district). She testified she had previously had problems with her hands and wrists beginning in February 1991. As a result of the fall, she was provided with authorized medical care by the school district's insurance company. Kimber was terminated from her employment with the school district in June 1991. Kimber then worked for a Super 8 Motel from September to October 1991. On December 19, 1991, she began working at Cedars, Inc., (Cedars), a licensed long-term care facility. Her last day of work at Cedars was January 25, 1993.
On October 5, 1992, Kimber formally filed claim No. 169,842 against the school district and its insurance carrier, claiming workers compensation for the alleged 1991 work-related injury. Simultaneously, she filed an application for a preliminary hearing seeking a change of her authorized treating physician in regard to her treatment for the 1991 injury. A preliminary hearing was held, and the motion was granted. Cedars was not a party in this case.
On December 1, 1992, Kimber filed claim No. 172,282 against Cedars and its insurance carrier, alleging she had injured her wrists while working at Cedars during the period from May 15, 1992, to October 5, 1992, the date of the application for hearing in case No. 169,842. She testified her wrists had not been completely healthy when she began work at Cedars and she had not suffered injury in a specific incident or event. Kimber did not recall informing Cedars that she had suffered any type of aggravation prior to the filing of her claim. The school district and its insurance company were not named parties in case No. 172,282. The two cases were consolidated by agreement of the parties for procedural purposes, and the Workers Compensation Fund (Fund) was then impleaded.
The cases were tried together by the ALJ, who entered an award covering both cases. The ALJ ruled that Kimber had not carried
her burden of proof to establish that she had suffered an accidental injury in the course of her employment with the school district in case No. 169,842. The effect of this ruling was to relieve the school district of liability to the claimant under the Workers Compensation Act (Act).
In case No. 172,282, the ALJ found that Kimber had suffered a 20% permanent partial general work disability while working at Cedars. Of particular importance in this appeal is the portion of the order which required Cedars and its insurance carrier to reimburse the school district and its insurance carrier for all amounts previously expended in case No. 169,842 pursuant to the preliminary orders.
Cedars appealed to the Workers Compensation Board (Board), which affirmed the award in both cases in all respects except to modify the order to require Cedars to reimburse the school district only for compensation and medical expenses incurred subsequent to Kimber becoming employed by Cedars on December 19, 1991. Cedars then appealed to this court. It should be noted that both the ALJ and the Board found the date of Kimber's injury while employed at Cedars to be May 15, 1992.
Cedars raised only one basic issue on appeal: whether the Board erred in ordering Cedars and its insurance carrier to reimburse the school district for all funds expende
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