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Keystone Nursing Care Center v. Craddock9/30/2005
Employer appeals district court judgment affirming workers' compensation commissioner's award of permanent partial disability benefits and penalty benefits. DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED.
In this appeal, an employer and its workers' compensation insurance carrier seek reversal of a district court judgment affirming an award of permanent partial disability benefits and penalty benefits to a former employee. We affirm the district court's decision upholding the award of disability benefits, but we reverse on the issue of penalty benefits.
I. Background Facts and Proceedings
On March 26, 1998, appellee, Billi Craddock, was employed as a certified nursing assistant (CNA) at a nursing home operated by the appellant, Keystone Nursing Care Center. Craddock testified she injured her back on that date when helping a resident into a wheelchair. A co-employee working with Craddock at the time recalled the lifting incident, but did not remember Craddock complaining of an injury or pain. Five days later Craddock completed a formal report of injury for her employer.
Upon being notified of the injury, Keystone referred Craddock to Rita Taylor, a physician assistant, for medical care. After conservative treatment was unsuccessful, Craddock saw Dr. Chad Abernathey, who eventually performed surgery on her lower back. On June 15, 1998, Dr. Abernathey released Craddock to return to work. The written release form states, "No restriction." Craddock testified, however, that Dr. Abernathey told her orally that she should not help residents with showers or whirlpools. She also said Keystone accommodated her request that she not be assigned such duties. On October 9, 1998, Dr. Abernathey gave Craddock a seven percent whole body impairment rating.
Keystone paid all of Craddock's medical expenses. In addition, Keystone paid healing period benefits until Craddock returned to work on June 15, 1998, but made no voluntary permanent partial disability payments. The employer did not notify Craddock of the reason for its refusal to pay additional benefits until Craddock's counsel inquired on November 5, 1999. In its response ten days later, the employer explained that it believed Craddock had not sustained an industrial disability because she was released to full duty without restrictions.
Craddock left her employment with Keystone in September 1998, and began working for another nursing home located closer to her residence. She did not have to give baths in her new job because her new employer had an employee who bathed all residents. Nonetheless, in March 1999, Craddock sustained another on-the-job injury to her lower back. Dr. Abernathey again performed surgery, and upon releasing Craddock to return to work, imposed a thirty-pound lifting restriction.
After the second injury, Craddock obtained an independent medical examination from Dr. Ray Miller. Dr. Miller reported his opinion that Craddock had a ten percent permanent impairment for the whole person following the second surgery. He also suggested that the claimant would have benefited from a 30-pound lifting restriction after her first surgery.
At the time of the hearing, Craddock was employed as a cashier at a convenience store at an hourly wage of $9.15. (She earned $7.40 per hour when working for Keystone.) The claimant was able to do most of the required work except her back condition and restrictions prevented her from taking out the garbage.
Craddock filed a petition seeking workers' compensation benefits and penalty benefits on February 14, 2001. After a hearing, a deputy workers' compensation commissioner issued a
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