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GUERRERO v. DOLD FOODS12/22/1995
REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish by an order dated February 7, 1996 pursuant to Rule 7.04 (1995 Kan. Ct. R. Annot. 40).
Dold Foods, Inc., (Dold) and its insurance carrier, Liberty Mutual Insurance Company (Liberty), appeal an award by
the Workers Compensation Board (Board) to Ana Maria Guerrero. The award allowed a 43% permanent partial work disability.
Dold and Liberty argue that the disability finding is not supported by substantial competent evidence and that it was error not to assess any liability to the Kansas Workers Compensation Fund (Fund).
Guerrero worked for Dold for over 7 years, beginning in 1985. Her primary job function was packaging bacon. In 1992, she began experiencing pain in her arms and shoulders.
Guerrero sought medical attention from Dr. Melhorn, an orthopedic specialist, who operated on her for right carpal tunnel, right ulnar nerve elbow, and right medial epicondylitis. Epicondylitis is an inflammation of the humerus bone and the surrounding tissue. See Stedman's Medical Dictionary 521 (25th ed. 1990).
Dr. Melhorn assigned Guerrero a 10.35% permanent partial impairment of function to the right arm and restricted her work function to lifting no more than 35 pounds, 20 pounds frequently, and limited her repetitive tasks to no more than 30 minutes.
Guerrero was then given a job labeling and weighing bacon but was terminated after notifying her supervisor that the repetitive work was causing her problems. The basis for firing Guerrero, according to Dold, was her refusal to work within restrictions.
Guerrero was also examined by Dr. Bernard Poole, who found her permanently unfit for work involving repetitive motion and assigned her a 5% permanent partial loss of function to the body as a whole.
A personnel and human resources consultant concluded that Guerrero had suffered a 85% to 90% loss of access to her available labor market, coupled with a 45% loss of her ability to earn comparable wages in the open labor market.
The administrative law judge (ALJ) found that Guerrero sustained one injury which began in May 1992 and which was finalized on her last day of work. The ALJ stated:
"Determining that the Claimant has a partial work disability, the trier of fact has concluded that the Claimant has a work disability somewhere between 5% and 45%. The Claimant is not entitled to claim loss of ability to earn a comparable wage, because she demonstrated she had the ability to return to some jobs at Dold
at a comparable wage. Although the Claimant and the employer could not agree on a job which was satisfactory to both sides, the Claimant's medical restrictions clearly prohibit her from fully accessing the open labor market. Therefore, the Claimant is entitled to be compensated for a partial disability based upon her labor market losses.
"In concluding that the Claimant has a 25% work disability, the trier of fact has taken into consideration, the fact that the Claimant did not fully cooperate with Dr. Melhorn and the employer in making a good faith effort to return to work. In addition, the employer failed to work with the Claimant by eliminating the labeling position, which was too repetitive in nature according to Dr. Melhorn. These events culminated and led to the involuntary separation of the Claimant from her employment. Therefore, the Claimant under these facts, is entitled to a partial work disability of 25%."
On review, the Board affirmed the ALJ's decision and awarded Guerrero a 5% functional impairm
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