Opinion
No. 108,134.
2013-03-29
Sabina L. BRACKETT, Appellee, v. DYNAMIC EDUCATIONAL SYSTEMS and Insurance Co. State of Pennsylvania, Appellants.
Appeal from Workers Compensation Board. Christopher J. McCurdy and Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Overland Park, for appellants. Angela Trimble, of The Spigarelli Law Firm, of Pittsburg, for appellee.
Appeal from Workers Compensation Board.
Christopher J. McCurdy and Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Overland Park, for appellants. Angela Trimble, of The Spigarelli Law Firm, of Pittsburg, for appellee.
Before BRUNS, P.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this workers compensation appeal, Dynamic Educational Systems (DESI) contends that the Workers Compensation Board (Board) erred when it awarded permanent partial general disability benefits to their former employee, Sabina L. Brackett. DESI argues that Brackett did not sustain a compensable injury arising out of her employment on May 4, 2009, when she experienced lower back pain and numbness in her toes after opening her car door in the parking lot of one of DESI's offices. Alternatively, DESI claims that if Brackett did sustain an injury to her back, the injury is not compensable because Brackett failed to provide timely notice of the accident as required by K.S.A. 44–520. We affirm the Board's award.
Factual and Procedural Background
On February 23, 2009, Brackett began working at DESI as a career manager assisting clients with obtaining employment, education, and/or training. Brackett's job was based in DESI's office in Independence, Kansas. Due to staffing issues, however, beginning in April 2009, Brackett was also required to travel to the Chanute office twice a week. Additionally, in March 2009, Brackett was assigned to cover DESI's summer youth program in Chautauqua and Elk Counties, which required her to travel to several outlying offices on five or six occasions.
Typically, on her travel days, Brackett would arrive at the Independence office in the morning, speak with her supervisor, Norman Chambers, load her personal car with her laptop computer, some files or office equipment, and drive to her destination. Brackett would then return to the Independence office by the close of business, so she could return the files and update Chambers regarding her day's work.
On May 4, 2009, Brackett drove from her home to the Independence office and, after placing files in her vehicle, she drove to the Chanute office. Upon arrival, Brackett opened her car door to leave the vehicle. She discovered that she was unable to “get [her] legs to move,” she felt like she was “locked into position,” and her toes were numb. According to Brackett, the initial onset of pain occurred when she opened the door; she did not recall having any lower back pain during the drive, nor did she remember “[a]nything different or unusual” about the manner in which she parked or opened the car door. Despite her back pain, Bracket was eventually able to maneuver her legs out of the car, but it took “a little while” before she was able to stand up straight. She also had difficulty retrieving her files from the backseat and carrying them to her office.
With the assistance of over-the-counter pain medication, Brackett completed the remainder of her workday. When she returned to the Independence office, she informed Chambers of the difficulty she had that morning. According to Brackett:
“I explained to him that I couldn't get myself out of the car and once I did, I couldn't stand up and it was difficult carrying my bags to the office. Of [sic] I had taken Tylenol and I think aspirin that day to help me get relief from the pain and I wanted to know when we were going to get the career manager hired for the Chanute office which is what I was understanding ... was going to happen and he had no idea.”
According to Brackett, when she spoke with Chambers, she did not know “why [her] back was hurting.” Although Brackett did not ask Chambers to “authorize medical treatment,” she informed him that she was “going to see [her] chiropractor that weekend.”
Prior to working for DESI, Brackett saw Dr. Geoffrey Hilton, a chiropractor located in Joplin, Missouri, for “manipulation” purposes. Although Brackett saw Dr. Hilton every 6 to 8 weeks for 7 years prior to the incident on May 4, 2009, she denied having any particular problems that required treatment. According to Brackett, her visits with Dr. Hilton were solely preventative. Moreover, Brackett insisted that she never had any problems with her lower back prior to starting her job with DESI. Apparently, prior to the May 4, 2009, incident, Brackett led a “[v]ery active life” and “did just about anything and everything that [she] wanted to do,” including remodeling her home, canoeing, and embarking on numerous road trips.
In the year preceding the May 4, 2009, incident, Brackett sought treatment from Dr. Hilton on 11 occasions. Some of Dr. Hilton's clinical notes indicated that Brackett saw him for back, neck, or pelvic pain. Additionally, Brackett admitted that on April 16, 2009 (2 weeks before the incident in Chanute), she experienced “discomfort” in her back while driving back from a training session at the Emporia office, which caused her to stop and walk around to relieve these symptoms. Brackett insisted that this “discomfort” was separate and distinct from the “pain” she had been experiencing since the May 4, 2009, incident.
After the May 4, 2009, incident, Brackett saw Dr. Hilton for manipulations. Dr. Hilton told her “a lot of [traveling] wasn't good ... for a back.” Dr. Hilton's clinical notes, however, did not relate Brackett's back pain to her employment.
Sometime in late May, Brackett told Chambers what Dr. Hilton said “about [her] back and all the traveling.” According to Brackett, Chambers acknowledged that Dr. Hilton was “probably right,” and he recommended another chiropractor in Independence. Brackett was seen by Dr. Amanda Johnson, a chiropractor, for another “[m]anipulation.” On her patient information form, Brackett checked “no” when answering a question that asked if her condition was due to “an accident or injury,” and she left a question blank inquiring as to the type of accident, i.e., auto, work, home, or other.
DESI's employee manual requires employees to report Work-related accidents and injuries to a supervisor and the Human Resources Department. While Brackett indicated that she notified Chambers and Sevart about her back pain, she did not contact human resources. Brackett acknowledged that she did not fill out an “injury report” herself because she was not “thinking of [her back condition] in terms of an injury[,] ... [as she] didn't fall and break something,” and no one ever told her that she needed to complete such a report.
On August 7, 2009, Brackett saw her family physician, Dr. Lisa Salvador, for an evaluation of her back. Dr. Salvador initially ordered an x-ray, which revealed “[m]ild apophyseal arthritis at L4 and [L]5” and “[m]oderate to severe disk space narrowing at L5–S1.” An MRI revealed:
“1. L4–[L]5 shows mild disk degeneration with mild posterior disk protrusion. There is also mild narrowing of the intervertebral foramen on the right side at this level.
“2. L5–S1 shows more moderate disk disease along with some hypertrophy of the facets causing some narrowing of the intervertebral foramina, more so on the right side.”
Dr. Salvador referred Brackett to Dr. Bradley Davis, M.D., for a series of lumbar epidural steroid injections. Brackett testified that after the injections she was “still hurting and [they] just didn't really help a lot.” Dr. Davis' clinical notes, however, indicated that Brackett reported a “75% improvement in her chronic lumbar back pain that [was] of mild to moderate intensity.”
On September 21, 2009, DESI terminated Brackett because she could not fulfill her job duties. Brackett has not worked since her termination despite attempts to find gainful employment.
One week later, Brackett saw Dr. Davis for a consultation. After examining Brackett and reviewing her medical history, Dr. Davis diagnosed her with: “1. Lumbar back pain with MRI evidence of L4–L5 and L5–S1 intervertebral foraminal narrowing ... 2. Lumbar spondylosis[, and] 3. Associated quadratus lumborum and paraspinal muscle spasm.” Brackett was prescribed physical therapy and medications. At a follow-up consultation, Brackett reported “significant pain relief,” and Dr. Davis indicated that Brackett was “doing great” on her current medication and physical therapy regimen. Dr. Davis' clinical report was the first documentation from a physician which indicated that Brackett's back pain was due to a work-related injury occurring on May 4, 2009.
On October 20, 2009, Brackett filed an application for workers compensation, alleging that she sustained an injury to her back on May 4, 2009, and “continuing to [her] last day worked” from “traveling in [the] course of [her] employment[,] ... riding in [a] vehicle for long periods of time[,] and carrying [a] brief case and laptop.” Following a preliminary hearing held on January 20, 2010, the administrative law judge (ALJ) denied Brackett's request for benefits and found, based upon her testimony regarding prior chiropractic treatments, that Brackett's “condition [was] long standing and did not arise out of her employment” and, as a result, “no compensable accident took place.”
Brackett's attorney referred her to Dr. Randall Hendricks, M.D., a board certified orthopedic surgeon in Tulsa, Oklahoma. On March 26, 2010, Dr. Hendricks examined Brackett and conducted a 2–hour review of her diagnostic tests and medical records. Dr. Hendricks' report indicates that he was aware that Brackett had previously been seen by a chiropractor. Dr. Hendricks' opinion was that Brackett did “sustain an on-the-job injury which appears to have been an accumulative trauma situation.” Dr. Hendricks explained: “She most definitely had a preexisting L5–S1 degenerative disk that was aggravated by the on-the-job activities.”
Dr. Hendricks assessed Brackett with a whole person impairment of 6.5% due to her lumbar condition. Dr. Hendricks further opined that Brackett had a task loss of 5% based upon a work disability evaluation completed by Jerry D. Hardin, a personnel/human resources consultant. Although Brackett had reached “maximum medical” improvement, Dr. Hendricks recommended a permanent work restriction of “no lifting in excess of 35 to 40 pounds and no repetitive bending and twisting from the waist” because her degenerative disk could cause “additional problems in the future.”
At his deposition, Dr. Hendricks testified that while Brackett told him that she sustained an injury at work on May 4, 2009, she indicated that “no specific event” caused this injury. Brackett also failed to inform him of the back discomfort she experienced in April 2009 while driving her car. Moreover, Dr. Hendricks testified that he was unaware Brackett had been seeing a chiropractor every 6 to 8 weeks for 7 years prior to her work injury. He agreed that an accurate medical history is important and that incomplete information could affect his opinions in a workers compensation case. The doctor acknowledged that he has known patients to see a chiropractor for “maintenance” purposes and that a patient may seek such care without having sustained an injury.
The regular hearing was held on October 26, 2010. The ALJ reviewed deposition transcripts of Dr. Hendricks' and Hardin's testimony. Brackett testified in person, and the ALJ also considered a transcript of her prior testimony.
On December 5, 2011, the ALJ denied Brackett's request for compensation. Although the ALJ found that Brackett gave DESI timely notice of her injury by informing “her supervisor of her work related back problems,” the ALJ found that she had failed to prove “she sustained an accident that arose out of and in the course of her employment.” The ALJ was not persuaded by the testimony of Dr. Hendricks because “he was not aware of [Brackett's] extensive chiropractic history.” This raised doubts about his “opinion on causation and mechanism of injury.”
Brackett filed an application for review by the Board. She argued that the preponderance of the uncontroverted evidence indicated that any chiropractic care she received prior to her injury on May 4, 2009, was for “ ‘maintenance’ “ purposes only. Additionally, Brackett asserted that even if “one wants to believe that [she] had prior back problems simply because she sought treatment with a chiropractor,” her injuries were still compensable because the uncontroverted evidence indicated that her job duties aggravated this “pre-existing” condition.
DESI responded that the ALJ's order should be affirmed, except on the issue of timely notice. DESI argued that Brackett did not sustain a compensable injury because her back condition “occurred as a result of an activity of daily living and constituted a personal risk unrelated to [her] employment.” Furthermore, DESI challenged Dr. Hendricks' opinion as unreliable as to “causation” because Brackett “failed to reveal the existence of the extensive prior chiropractic treatment ... and failed to report the true nature of the accident which she sustained.” Finally, DESI reprised its arguments regarding the issue of notice.
On April 26, 2012, the Board issued its order. Three Board members affirmed the ALJ's finding that Brackett provided DESI with “timely notice” and reversed the ALJ's determination that Brackett did not sustain a compensable injury arising from her employment. The majority found that Brackett proved that she suffered a back injury that was caused or aggravated by repetitive work activities beginning on May 4, 2009, and continuing until her last day of work on September 21, 2009. As a result, the Board awarded Brackett permanent partial general disability compensation.
In reaching its majority conclusion, the Board rejected the ALJ's finding that Dr. Hendricks' opinion was not reliable because “Dr. Hendricks was never [specifically] asked if his opinion on causation had changed” and, despite Dr. Hendricks' contrary testimony, his hand-written clinical notes indicated that Brackett informed him of her history of chiropractic treatment. The Board also rejected DESI's argument that Brackett's accident was not compensable because she was injured while engaged in “a normal activity of day-to-day living,” i.e., exiting her personal vehicle. Primarily relying on the Kansas Supreme Court's decision in Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 257 P.3d 255 (2011), the Board concluded that “the overall context in which [Brackett was] performing the [injurious] activity” indicated that her accident was work related, as “travel and carrying work supplies and a laptop were an integral part of [her] job duties.”
Two Board members dissented, contending that Brackett “failed to prove ... that she suffered a back injury resulting from a single traumatic event on May 4, 2009, or from a series of repetitive work activities.” The minority found that Dr. Hendricks' opinion on causation was “unreliable and untrustworthy because he did not have all the facts concerning how [Brackett] was injured.” The minority also was not persuaded by Brackett's testimony regarding the cause of her injury. Finally, the minority interpreted the “May 4, 2009, event [as] a normal activity of day-to-day living.”
DESI filed a timely petition for judicial review.
Did Brackett's Back Injury Arise Out of and in the Course of Her Employment?
On appeal, DESI contends the Board erred when it awarded Brackett permanent partial general disability benefits because Brackett did not sustain a compensable injury, i.e., an injury that arose out of and in the course of her employment.
Preliminarily, in workers compensation cases, the statutes in effect at the time of the claimant's injury govern the rights and obligations of the parties. Despite the fact that the legislature recently amended the Workers Compensation Act, the statutory scheme in place when Brackett incurred her injury is controlling. See Bryant, 292 Kan. at 588, 257 P.3d 255. Moreover, the Kansas Judicial Review Act (KJRA), K.S.A. 77–601 et seq. , governs our court's standard of review in these cases. See K.S.A.2012 Supp. 77–618(a). The KJRA provisions relating to scope of review were amended effective July 1, 2009. See K.S.A.2012 Supp. 77–621. The amended KJRA provisions were in effect at the time of the agency action, and they are controlling in this case. See K.S.A.2012 Supp. 77–621(a)(2); Redd v. Kansas Truck Center, 291 Kan. 176, 183, 239 P.3d 66 (2010).
Whether an injury is compensable is a question over which this court exercises unlimited review. Bryant, 292 Kan. at 587, 257 P.3d 255. Appellate review of the question of whether an injury arose out of and in the course of employment, however, is a question of fact. Scott v. Hughes, 294 Kan. 403, 415, 275 P.3d 890 (2012). An appellate court reviews a challenge to the Board's factual findings in light of the record as a whole to determine whether the findings are supported to the appropriate standard of proof by substantial competent evidence, and whether such evidence exists is a question of law subject to de novo review. See K.S.A.2012 Supp. 77–621(c)(7), (d); Redd, 291 Kan. at 182–83, 239 P.3d 66.
In a workers compensation case, the claimant has the burden of proof to establish his or her right to an award of compensation and to prove the various conditions on which the right depends. K.S.A.2009 Supp. 44–501(a). In this context, “ ‘[b]urden of proof’ means the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party's position on an issue is more probably true than not true on the basis of the whole record.” K.S.A.2009 Supp. 44–508(g). Although not statutorily defined, “substantial evidence” refers to “evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis of fact from which the issue raised could be easily resolved.” Redd, 291 Kan. at 183–84, 239 P.3d 66. Furthermore, K.S.A.2012 Supp 77–621(d) defines “ ‘in light of the record as a whole’ “ as follows:
“For purposes of this section, ‘in light of the record as a whole’ means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77–620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency's explanation of why the relevant evidence in the record supports its material findings of fact.”
K.S.A.2012 Supp 77–621 provides guidelines for our standard of review for sufficiency of the evidence determinations: “ ‘(1) It requires review of the evidence both supporting and contradicting the Board's findings; (2) it requires an examination of the presiding officer's credibility determination, if any; and (3) it requires review of the agency's explanation as to why the evidence supports its findings.’ Redd, 291 Kan. at 182, 239 P.3d 66.” Gustin v. Payless Shoesource, Inc., 46 Kan.App.2d 87, 92, 257 P.3d 1277 (2011). That said, our court must not reweigh evidence or engage in de novo review. K.S.A.2012 Supp. 77–621(d).
An injured employee is entitled to workers compensation benefits if he or she suffered “personal injury by accident arising out of and in the course of [his or her] employment.” (Emphasis added.) K.S.A.2009 Supp. 44–501(a). Similarly, “it is well established under the workers compensation law in Kansas that when a worker's job duties aggravate or accelerate an existing condition or disease or intensify a preexisting condition, the aggravation becomes compensable as a work-related accident.” Poff v. IBP, Inc., 33 Kan.App.2d 700, 708–09, 106 P.3d 1152 (2005); see also Bryant, 292 Kan. at 589, 257 P.3d 255 (“An accidental injury is compensable if it only aggravates or accelerates an existing disease or intensifies the condition. [Citations omitted.]”).
The phrases “ ‘arising ‘out of’ ‘ “ and “ “in the course of” “ have “ ‘separate and distinct meanings,’ “ and each of these conditions must exist in order for a claim to be compensable. Rinke v. Bank of America, 282 Kan. 746, 752, 148 P.3d 553 (2006). An accidental injury arises out of employment when there is a “ ‘causal connection[,] ... apparent to the rational mind, upon consideration of all the circumstances, ... between the conditions under which the work is required to be performed and the resulting injury’ “; in other words, the injury “ ‘arises out of the nature, conditions, obligations, and incidents of the employment .’ “ 282 Kan. at 752, 148 P.3d 553. The phrase in the course of employment, on the other hand, “ ‘relates to the time, place, and circumstances under which the accident occurred and means the injury happened while the worker was at work in the employer's service.’ [Citations omitted.]” 282 Kan. at 752, 148 P.3d 553. Some injuries, however, “shall not be deemed to have been directly caused by the employment[, i.e.,] where it is shown that the employee suffers disability as a result of the natural aging process or by the normal activities of day-to-day living.” (Emphasis added.) K.S.A.2009 Supp. 44–508(e).
As framed by the parties, the critical question is whether substantial competent evidence supports the Board's finding that Brackett sustained an accidental injury “arising out of her employment with DESI. In other words, did the nature, conditions, obligations, and incidents of Brackett's employment cause her back injury?
DESI contends that Brackett's back injury is not compensable because it occurred while she was engaged in a “normal activity of daily living”—“opening her car door”—rather than an activity distinctly associated with her job. In response, Brackett supports the Board's order because “[w]hile most people drive to and from a certain location for work, [she] was required to drive not only to her central office, but to offices in other towns, some as much as an hour away[, and] she was required to take her files and computer with her.” Brackett maintains this “prolonged sitting and driving cannot be categorized as a normal activity of day to day living.”
On numerous occasions, our appellate courts have considered the phrase “suffers disability ... by the normal activities of day-to-day living” in an attempt to determine whether an injury arises out of the claimant's employment. See Bryant, 292 Kan. at 590–95, 257 P.3d 255. DESI relies upon two of these decisions, Martin v. U.S .D. No. 233, 5 Kan.App.2d 298, 615 P.2d 168 (1980), and Johnson v. Johnson County, 36 Kan.App.2d 786, 147 P.3d 1091,rev. denied 281 Kan. 1378 (2006), as support for its contention that Brackett's injury is not compensable. Brackett, on the other hand, relies upon Anderson v. Scarlett Auto Interiors, 31 Kan.App.2d 5, 61 P.3d 81 (2002), to establish the compensability of her back injury.
Inexplicably, neither DESI nor Brackett brief the Bryant case, wherein our Supreme Court clarified the critical inquiry for deciding whether an injury-causing activity was connected to, or inherent in, the claimant's job performance. See Bryant, 292 Kan. at 589–96, 257 P.3d 255. In our estimation, Bryant, rather than the earlier cases cited by the parties, is dispositive of this issue.
In Bryant, the claimant aggravated a preexisting back condition when he stooped over to grab a tool out of his tool bag and twisted back into position to work on some equipment. The ALJ and the Board found that the claimant was entitled to compensation because he was “injured in the course of his employment.” 292 Kan. at 586, 257 P.3d 255. On appeal, our court reversed because “the record did not contain substantial competent evidence to support the Board's finding that [the claimant] suffered an injury under K.S.A.2009 Supp. 44–508(e), because the acts of ‘stooping’ and ‘leaning’ were normal activities of daily living.” 292 Kan. at 587, 257 P.3d 255. Our Supreme Court granted the claimant's petition for review.
After discussing, at length, the various appellate decisions interpreting the statute, including Martin, Johnson, and Anderson, the statutory language, and the purpose of the workers compensation laws, our Supreme Court developed the following approach for determining whether an injury arises out of employment:
“Although no bright-line test for what constitutes a work-injury is possible, the proper approach is to focus on whether the injury occurred as a consequence of the broad spectrum of life's ongoing daily activities, such as chewing or breathing or walking in ways that were not peculiar to the job, or as a consequence of an event or continuing events specific to the requirements of performing one's job. The right to compensation benefits depends on one simple test: Was there a work-connected injury? ... [T]he test is not the relation of an individual's personal quality (fault) to an event, but the relationship of an event to an employment.' [Citation omitted.]
“Even though no bright-line test for whether an injury arises out of employment is possible, the focus of inquiry should be on whether the activity that results in injury is connected to, or is inherent in, the performance of the job. The statutory scheme does not reduce the analysis to an isolated movement-bending, twisting, lifting, walking, or other body motions-but looks to the overall context of what the worker was doing-welding, reaching for tools, getting in or out of a vehicle, or engaging in other work-related activities.” (Emphasis added.) Bryant, 292 Kan. at 595–96, 257 P.3d 255.
Employing this test, our Supreme Court found the claimant was not “engaged in the normal activities of day-to-day living when he reached for his tool belt or when he bent down to carry out a welding task.” 292 Kan. at 596, 257 P.3d 255.
In the present case, the Board utilized the Bryant test in finding that Brackett was injured while engaged in her work duties:
“In the recent case of Bryant, the Kansas Supreme Court appears to have altered its focus in claims where a respondent asserts an employee was injured at work while engaged in a normal activity of day-to-day living. The Court in Bryant indicated that the fact finder cannot look just at the isolated activity the worker is performing when injured, but must look at the overall context in which the worker is performing the activity. Here, travel and carrying work supplies and a laptop were an integral part of [Brackett's] job duties. She traveled twice a week to Chanute and on other occasions to various locations. During her travels, she was required to bring her laptop and files, which she carried herself. The Board finds that [Brackett's] injury was not the result of normal activities of day-to-day living.”
While the activity which caused Brackett's injury—exiting her personal vehicle—is a common activity in daily life, the overall context in which Brackett was performing the activity convinces us that her back injury is compensable. As the majority found, Brackett's action of opening her car door was connected to, and inherent in, the performance of her job because travel to and from DESI's satellite offices was an integral part of her job duties. Long distance travel was a regular feature of Brackett's employment. There was substantial competent evidence to support Brackett's claim that her back injury resulted from this travel beginning on May 4, 2009, and continuing until her termination. Accordingly, we hold the Board did not err when it found that Brackett's back injury arose out of her employment.
Did Brackett Provide DESI with Timely Notice of Her Injury?
On appeal, DESI contends that even if Brackett did sustain a work-related injury to her back, her injury is not compensable because she failed to provide timely notice of the accident as required by K.S.A. 44–520. Specifically, DESI argues that although Brackett complained of ongoing back problems, she “failed to provide any indication that her injury was work-related.”
DESI's arguments on appeal, in part, involve the interpretation of statutory language. Appellate courts exercise unlimited review over questions involving the interpretation or construction of a statute, owing “ ‘[n]o significant deference’ “ to the agency's or the Board's interpretation or construction. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010). Additionally, whether a workers compensation claimant has provided their employer with timely notice under K.S.A. 44–520 is a question of fact which must be analyzed under the substantial competent evidence analysis articulated above. See Kotnour v. City of Overland Park, 43 Kan.App.2d 833, 838, 233 P.3d 299 (2010), rev. denied 293 Kan. –––– (January 20, 2012).
K.S.A. 44–520 states, in relevant part:
“Except as otherwise provided in this section, proceedings for compensation under the workers compensation act shall not be maintainable unless notice of the accident, stating the time and place and particulars thereof, and the name and address of the person injured, is given to the employer within 10 days after the date of the accident, except that actual knowledge of the accident by the employer or the employer's duly authorized agent shall render the giving of such notice unnecessary.”
Eighty years ago, our Supreme Court interpreted the notice requirement as articulated in a prior version of K.S.A. 44–520 containing similar language, as follows:
“The statute does not require that the notice be given by the workman personally, and it is sufficient if the giving of the notice is naturally prompted by consideration of the injury and the relationship between the workman and his employer. A reference to the injury in casual conversation would not be notice, but the notice need not be in writing, and need not have the definiteness and certainty of detail of a common-law indictment for crime.... Whether an injury may prove to be compensable may not be presently known, and what the statute contemplates is notice of injury, so that the employer may have fair opportunity to investigate the cause and observe the consequences.” Davis v, Skelly Oil Co., 135 Kan. 249, 251, 10 P.2d 25 (1932).
Moreover, “[n]otice to an immediate supervisor constitutes notice to the employer. [Citation omitted.]” Odell v. Unified School District, 206 Kan. 752, 755, 481 P.2d 974 (1971).
In order to determine whether a claimant has provided timely notice of accident under K.S.A. 44–520, it is first necessary to determine the date of accident. The Board found that Brackett suffered a series of repetitive traumas “commencing May 4, 2009, and continuing until her last day of work on September 21, 2009.” Based upon its finding that Brackett's injury was the result of “a series of microtraumas,” the Board concluded that under “K.S.A.2009 Supp. 44–508(d), ... [Brackett's] date of accident was October 20, 2009—the date she filed her Application for Hearing with the Division of Workers Compensation”—and, as such, Brackett provided DESI with timely notice. On appeal, DESI counters that this finding was erroneous because Brackett failed to prove that her “ongoing complaints were [not] the natural and probable consequence of the injury of May 4, 2009.”
We are persuaded that substantial competent evidence supports the Board's factual finding that Brackett suffered a series of repetitive traumas. Brackett testified that the onset of her particular back pain occurred when she opened her car door in the parking lot of the Chanute office, and the performance of her job duties thereafter, i.e., travel and carrying files and a laptop, caused her to sustain additional microtraumas. “ ‘A claimant's testimony alone is sufficient evidence of his [or her] own physical condition.’ [Citation omitted.]” Anderson, 31 Kan.App.2d at 7, 61 P.3d 81.
Moreover, Dr. Hendricks' opinion lends credence to Brackett's testimony, as he opined that Brackett did “sustain an on-the-job injury which appears to have been an accumulative trauma situation.” As the Board majority points out, while Dr. Hendricks testified that he was unaware of Brackett's history of chiropractic care and the incident in the parking lot, his clinical notes suggest otherwise: “ ‘Says she's done ‘maintence’ [ sic ] DC tx. for 8yrs for spine/knee + CTS.' “ Dr. Hendricks' clinical notes also contain the following: “Pt thinks sx due to excess driving & lugging laptop—@ work [with] DESI—no known injury! in pkg. lot of job she noted acute pain LBP [with] N & T in toes [of left] foot (gr toe worse).” These notes indicate that Dr. Hendricks was informed of Brackett's prior chiropractic treatments and her belief that the particular back condition was attributable to her employment.
In cases where “ ‘the accident occurs as a result of a series of events, repetitive use, cumulative traumas or microtraumas,’ ... the assignment of any single date as the ‘accident date’ ... is inherently artificial and represents a legal question, rather than a factual determination. Saylor v. Westar Energy, Inc., 292 Kan. 610, 615, 256 P.3d 828 (2011). Appellate courts exercise de novo review over legal questions. Owen Lumber Co., v. Chartrand, 283 Kan. 911, 916, 157 P.3d 1109 (2007).
K.S.A.2009 Supp. 44–508(d) governs the determination of the accident date in repetitive, microtrauma cases:
“In cases where the accident occurs as a result of a series of events, repetitive use, cumulative traumas or microtraumas, the date of accident shall be the date the authorized physician takes the employee off work due to the condition or restricts the employee from performing the work which is the cause of the condition. In the event the worker is not taken off work or restricted as above described, then the date of injury shall be the earliest of the following dates: (1) The date upon which the employee gives written notice to the employer of the injury; or (2) the date the condition is diagnosed as work related, provided such fact is communicated in writing to the injured worker. In cases where none of the above criteria are met, then the date of accident shall be determined by the administrative lawjudge based on all the evidence and circumstances; and in no event shall the date of accident be the date of, or the day before the regular hearing. Nothing in this subsection shall be construed to preclude a worker's right to make a claim for aggravation of injuries under the workers compensation act .”
Essentially, “[t]he statute lays out an easy-to-follow progression.” Saylor, 292 Kan. at 616, 256 P.3d 828. First, the accident date “shall be the date the authorized physician takes the employee off work due to the condition or restricts the employee from performing the work which is the cause of the condition.” K.S.A.2009 Supp. 44–508(d). If, however, an authorized physician does not take the worker off work or provide work restrictions, the accident is the earliest of the following: “(1) the date the employee gives the employer written notice of the injury; or (2) the date the condition is diagnosed as work related, if that fact is communicated in writing to the injured worker. Finally, if none of those criteria apply, the ALJ determines the date of accident based on all the evidence and circumstances. [Citation omitted.]” Saylor, 292 Kan. at 616, 256 P.3d 828.
In the present case, the Board determined it was appropriate to move to the second step of the accident date formulary based upon its finding that an authorized physician did not take Brackett off work or restricted her work prior to the termination of her employment with DESI. Pursuant to the second step, Brackett's date of accident is the earlier of: (1) the date she gave written notice to DESI of her injury, or (2) the date her back condition was diagnosed as work related, provided such fact was communicated in writing to Brackett. See K.S.A.2009 Supp. 44–508(d).
Brackett first provided DESI with written notice of her injury on October 20, 2009, when she filed an application for hearing with the Division of Workers Compensation alleging that she sustained an injury to her back on May 4, 2009, and “continuing to [her] last day worked” from “traveling in [the] course of [her] employment[,] ... riding in [a] vehicle for long periods of time[,] and carrying [a] brief case and laptop.” And it appears that Brackett's back condition was not diagnosed as work related until later—March 26, 2010—when Dr. Hendricks opined that she “sustain[ed] an on-the-job injury which appear[ed] to have been an accumulative trauma situation.”
K.S.A. 44–520 expressly requires a workers compensation claimant to provide their employer with notice of the accident which states “the time and place and particulars thereof within 10 days after the date of accident unless the employer has actual knowledge thereof.” Because Brackett's date of accident is October 20, 2009, Brackett clearly complied with this requirement, as her application for hearing, filed on the same day, included the requisite information.
Accordingly, we conclude there was sufficient competent evidence presented that the proper date of the accident in this case was October 20, 2009. See K.S.A.2009 Supp. 44–508(d). The Board majority properly applied the legislative directive in the determination of the date of accident in situations where the accident occurs because of a series of events, repetitive use, cumulative traumas, or microtraumas as set forth in K.S.A.2009 Supp. 44–508(d).
Affirmed.