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Poff v. IBP3/11/2005
jevac opined that Poff could perform a full day's work with a limitation of no standing more than 4-6 hours per day, and during an 8-hour shift he would need to alternate between standing and sitting. The Board also gave considerable weight to the court-ordered independent medical examination where Dr. Peter Bieri concluded that even with the varicose vein condition, Poff still retained the ability to perform work of a sedentary nature, and if the varicose vein condition was eliminated from the equation, Poff would be able to perform light to medium work. The Board acknowledged the counter testimony brought forth by Poff's medical experts Drs. Sharon McKinney and Truett Swaim, but concluded Dr. Bieri and Dr. Bosiljevac to be more persuasive. The Board also stated:
"Moreover, Dr. Bosiljevac stated that moving the lower extremities combined with wearing Jobst stocking was good for claimant's varicose vein condition. It is significant to note that the treating surgeon, Dr. Bosiljevac never imposed work restrictions requiring claimant to lay down and elevate his leg as suggested by Dr. Swaim. And it was those restrictions which Mr. Dreiling primarily focused upon in offering his conclusion."
We find the Board's conclusion that Poff was not permanently disabled is supported by substantial competent evidence. Our duty is to uphold Board findings supported by substantial evidence even though evidence in the record could have supported contrary findings. Webber v. Automotive Controls Corp., 272 Kan. 700, Syl. 3, 35 P.3d 788 (2001). We find Poff's reliance on Wardlow v. ANR Freight Systems to be unpersuasive. The court in Wardlow found the medical evidence supported a finding that Wardlow was "'essentially unemployable as he is unable to do work that requires substantial sitting or standing as well as climbing, squatting, kneeling, lifting, pushing, or pulling.'" 19 Kan. App. 2d at 114.
We acknowledge that if the board had ruled in Poff's favor, we would have probably sustained that decision considering the evidence here and our scope of review.
Poff also argues the Board erred in finding that he failed to give timely notice and provide a timely claim for his alleged work-related hearing loss.
The timeliness of a claim is primarily an issue of fact, Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 541, 449 P.2d 521 (1969), which should not be disturbed on appeal if it is supported by substantial competent evidence. K.S.A. 77-621(a)(7); Allen v. Goodyear Tire & Rubber Co., 184 Kan. 184, 185-86, 334 P.2d 370 (1959). We will apply the previously stated standard of review for substantial competent evidence. See Neal v. Hy-Vee, Inc., 277 Kan. at 16-17. An appellate court will uphold findings supported by substantial evidence even though evidence in the record would have supported contrary findings. Webber v. Automotive Controls Corp., 272 Kan. 700, Syl. 3, 35 P.2d 788 (2001).
Employees are required to give employers timely notice of injuries. K.S.A. 44-520 states in relevant part that an employee must give notice of any accident to the employer, stating the time and place and particulars thereof, and any name and address of the person injured, within 10 days after the accident. However, actual knowledge of the accident by the employer or employer's duly authorized agent shall render the giving of such notice unnecessary. Equally important, as required by K.S.A. 44-520a, a claimant must make a timely written claim for compensation :
"(a) No proceedings for compensation shall be maintainable under the workmen's compensation act unless a written claim for compensation shall be served upon the employer by delivering such written c
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