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Poff v. IBP3/11/2005
LJ found a 6% functional impairment for Poff's bilateral carpal tunnel syndrome and awarded benefits. In claim No. 247,591, the ALJ found Poff's varicose vein condition was compensable and determined that he had a 4% functional impairment. In claim No. 250,093, the ALJ found a 5% functional impairment for Poff's injuries to his lower back. In claim No. 270,756, the ALJ determined that Poff failed to give timely notice of his workplace accident concerning his hearing loss and therefore was not entitled to benefits for hearing loss. The Board affirmed the ALJ's decision and rationale in all four cases, except it modified the functional impairment for Poff's varicose vein condition to 8% permanent partial whole person functional impairment and modified the functional impairment for Poff's carpal tunnel syndrome to 12% permanent partial whole person functional impairment.
Poff appeals, claiming he is totally disabled when considering all his injuries together and that his claim for hearing loss was timely filed. IBP cross-appeals the Board's decision to grant benefits for Poff's varicose vein condition.
Poff first argues the Board erred in affirming the ALJ's entry of four separate awards for his injuries. He contends the ALJ should have considered the cumulative effect of all injuries and vocational factors and rendered one award.
Poff filed applications for hearing in four separate cases (carpal tunnel on May 26, 1998; varicose veins on September 2, 1999; back injury on November 12, 1999; hearing loss on October 11, 2001). A prehearing settlement conference was held on all four docketed claims at the same time. The regular hearing on all four cases occurred at the same time as well. Before taking any testimony at the regular hearing, the ALJ separately stated the stipulations and issues for resolution in each of the four docket cases. The ALJ then informed the parties:
"Okay. Now, as a matter of procedure, we're going to go down docket by docket and we'll need to address each issue and each docket as we go through. When you are through with the evidence in one docket, we'll close that record and then we will proceed to the next docket. These are all apparently separate or alleged separate injuries, so we'll need to address each issue individually as we go through each docket individually as we go through. Is that clear?"
Poff did not object to the procedure laid out by the ALJ, nor did he ask for any clarification concerning the rendering of one award. IBP points out that Poff even filed a submission letter after the regular hearing which addressed each of the four claims separately and which contained no request for consolidating claims and no request to consider permanent total disability based on all claims cumulatively. Poff raised the argument of a single award to the Board. The Board rejected Poff's claim based on his actions before the ALJ and his failure to object: "No objection was made to this procedure nor was there any request to consolidate the claims for entry of a single award. The Board finds that each claim must be determined on its own merits separate from the other filed claims."
Poff claims the ALJ's failure to find a single award of permanent total disability was unreasonable and not an impartial application of the workers compensation laws as required by K.S.A. 2004 Supp. 44-523(a) (ALJ shall act reasonably without partiality). Poff also argues that due to the ALJ's conduct at the preliminary hearing and the ordering of one independent medical exam for all claims, "it would have been unusual and extraordinary for Claimant to object to the ALJ's procedure at the regular hearing."
In the workers compensation s
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