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Tallman v. Case Corp.10/10/2003
Affirmed.
Case Corporation (Case) appeals the decision of the Workers Compensation Board of Review (Board) awarding permanent partial general disability benefits to Wesley Tallman. Case argues the Board erred in refusing to apply Watkins v. Food Barn Stores, Inc., 23 Kan. App. 2d 837, 936 P.2d 294 (1997), and that the Board's approach of allowing work disability based on the coincidence of an injury and an economic layoff is inconsistent with the goals of the Workers Compensation Act (K.S.A. 44-501 et seq.). We affirm.
The basic facts are undisputed. In 1999, Tallman began working for Case as a welder building skid steer loaders. On July 18, 2000, Tallman was pulling a loader frame from one station to another when he felt a pop in his back. He finished his night shift and reported the injury to his supervisor the next day and then to the company physician, Dr. Wilson. Due to his previous back surgery, Dr. Wilson referred Tallman back to Dr. Paul Stein.
Dr. Stein first saw Tallman in 1995 for a lower back injury occurring at a different employer . Dr. Stein performed a left L5-S1 partial discectomy in 1996. Dr. Stein performed a functional capacities evaluation following the surgery, and he recommended that Tallman return to work without major work restrictions. Tallman testified he had back symptoms for approximately 6 months after the first surgery, but the symptoms dissipated. Dr. Stein gave Tallman a 7% functional impairment rating at that time.
On August 23, 2000, Dr. Stein determined Tallman injured the same disc area as he had earlier, but this time on the right side at the L5-S1 disc with impingement on the nerve root. After failure of conservative treatments, Dr. Stein performed another discectomy on the L5-S1 disc. Tallman was placed on light duty by Dr. Stein and returned to work at Case on November 26, 2000. On January 25, 2001, Dr. Stein released Tallman to return to full duty work with the same restrictions he had received following the first surgery, which were essentially none. Dr. Stein gave Tallman an additional 4% functional impairment rating. Tallman testified he returned to his regular welding duties approximately 2 weeks before being released by Dr. Stein.
Tallman testified his back continued to hurt despite the fact that the company-wide workload had decreased from 9 or 10 frames per shift to approximately 5 frames per shift. Tallman stated that he would not have been able to work at full capacity building 9 or 10 frames per shift and that his symptoms while building 5 frames were such that he was contemplating a revisit to Dr. Stein.
On February 8, 2001, the economic downturn caused Case to reduce its workforce. Tallman, along with 11 other welders, were laid off for economic reasons. The layoffs were based on seniority.
From the time of the layoff until the regular hearing on December 4, 2001, Tallman made modest efforts in finding a job and he remained unemployed except for a brief period. Dr. Stein reevaluated Tallman and found that he had a 5%, rather than 4%, functional impairment rating following the July 2000 injury. Tallman obtained a second evaluation by Dr. Pedro Murati who opined that Tallman had an 11% functional impairment attributable to the 2000 injury and a 20% whole body functional impairment overall.
Dr. Murati also testified concerning Tallman's loss of ability to perform the work tasks he performed during the previous 15 years. Dr. Murati used the vocational rehabilitation report produced by Karen Crist Terrill and testified that Tallman lost the ability to perform 12 of the 19 tasks, or 63%, due to the July 2000 accident.
The administrative law judge (
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