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DEPEW v. NCR ENGINEERING & MANUFACTURING10/31/1997
The opinion of the court was delivered by
Saundra Depew, whose work activities all involved use of a computer, sought compensation for bilateral carpal tunnel syndrome. The administrative law judge (ALJ) determined that Depew should be compensated for a permanent partial general disability. On review, the Workers Compensation Board (Board) concluded that she had suffered two separate scheduled injuries to her forearms. Depew appealed the Board's decision to the Court of Appeals, which affirmed the Board's decision. Depew v. NCR Engineering & Mfg., 23 Kan. App. 2d 463, 932 P.2d 461 (1997). Depew's petition for review was granted by this court.
Depew raised two issues on appeal: (1) In the circumstances of this case, should the claimant have been compensated for a permanent partial general disability or for two separate scheduled injuries? and (2) Does the Board's decision awarding compensation for two separate scheduled injuries violate the Equal Protection Clause of the federal Constitution?
Depew began working at NCR in September 1978. By 1980 she was using a computer in her work. She was the first secretary at NCR to use a computer. In February 1989, she began working in a department where all activities, including ordering supplies, filling out time sheets, completing expense statements, and reading mail, were computerized. At that time she also began using a computer mouse for producing detailed computer drawings of product systems. She estimated the portion of her work time spent in making drawings as approximately 1 day a week. She used the keyboard of the computer to perform her other job tasks.
Before Thanksgiving 1990, Depew began to have "a shooting, aching pain" that ran from the palm of her right hand up into her forearm. The symptoms increased with time. She was referred to an orthopedic surgeon, Dr. Melhorn, who performed surgery on her right wrist and elbow on April 1, 1991. The surgeon's operative report states that the procedure decompressed the right median
nerve that was entrapped at the wrist and the right ulnar nerve that was entrapped at the elbow. She returned to work on May 6, 1991, with no restrictions on her activities. When she returned to work, Depew's right hand and arm were not hurting or bothering her at all. She believed that the problem "was fixed." Within a few weeks of returning to work and resuming her regular work activities, however, her hand and arm began hurting again.
On May 17 she telephoned her surgeon's office reporting that her right hand and arm ached and were sore. She told him that "she types and uses the mouse all day long." On May 21, Depew had an appointment with Dr. Melhorn. His notes from that visit include the following:
"I shared with her that this is consistent with the entrapment post release process. Some permanent damage had occurred to the nerve prior to the surgical release. The goal of surgery is to decompress but not to return to normal.
. . . .
"I shared with her that over the next 18 months gradual improvement will occur, although again complete resolution is unlikely."
On May 24, Depew told Dr. Melhorn that she still has some ache and a sharp shooting pain up her arm. On May 31, she felt that she had "made gains."
On August 8, Depew told Dr. Melhorn that she was frustrated because she "continued to have symptom complaints [discomfort involving her right arm] off and on." Since she had last seen Dr. Melhorn, her family physician had sent her to Dr. Artz, who injected her right wrist. Because there was no improvement, he and the family physician agreed that "she probab
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