CHAPTER V.
EFFECT OF INDEPENDENT CAUSES
AFTER THE ORIGINAL ACCIDENT OCCURRED |
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§ 5.01 Generally
5.02 Complications & Accidents During Medical Treatment
- October 1999. (Ph) When claimant suffers a compensable injury and then suffers additional injury while doing
exercises recommended by the authorized physical therapist, the additional injury is a compensable consequence of
original injury. Fleming v. Key Construction, Inc., Docket No. 244,404.
- September 1999. (Ph) Claimant's sexual assault by one of her treating physicians found to be a consequence of her
original work-related foot and ankle injury and is thus compensable under the Act. Poland v. State of Kansas and
State Self Insurance Fund and Kansas Workers Compensation Fund, Docket No. 155,182.
- September 1999. (Award) Injury that occurred on the way to medical treatment for a compensable injury is also
compensable, but as a new accident. Sublett v. Intracorp and Cigna Workers Compensation and Kansas Workers
Compensation Fund, Docket Nos. 186,917 & 219,875.
- March 1998. (Ph) Injury suffered in automobile accident on the way to receive authorized medical treatment for a
prior work-related injury is a compensable injury even if claimant no longer works for the same employer he/she
worked for at the time of the first injury. See Taylor v. Centex Construction Co., 191 Kan. 130, 379 P.2d 217
(1963). Sanchez v. Wayman Brothers 66 and Union Insurance Company, Docket No. 202,088.
- ----- The Workers Compensation Act requires respondent to provide transportation to medical treatment.
Transportation is, therefore, part of the employment contract. See K.S.A. 44-510 and K.A.R. 51-9-11. Since
respondent is required under the Act to provide transportation, an accidental injury during that travel should be
considered to be "in the course of" employment. Additionally, the injury arises out of the employment since the
risks involved in driving to the medical appointment are risks to which claimant would not have been exposed
except for the original injury and subsequent medical treatment. Id.
- November 1997. (Ph) When a worker alleges an injury while seeking medical treatment, the test is not whether the
initial incident causes personal injury as that term may be defined but whether the worker was experiencing
symptoms of such nature that medical consultation was reasonable. Coheely v. The Energy Center and Kansas
Building Industry Workers Compensation Fund, Docket No. 225,598.
- ----- Where claimant sought medical treatment at a hospital for chemical inhalations and fell off a gurney at the
hospital injuring his back, the Administrative Law Judge, in determining whether claimant's back injury is a
compensable injury, must determine whether the inhalation caused symptoms or was of such nature that it was
reasonable for claimant to seek medical consultation and whether claimant then injured his back while seeking such
medical consultation. Id.
- April 1997. Under the Workers Compensation Act, securing medical treatment arises out of and in the course of
claimant's employment with respondent and injuries occurring during ongoing medical treatment for work-related
injuries are compensable. See Taylor v. Centex Construction Co., 191 Kan. 130, 379 P.2d 217 (1963); Robert v.
Krupka, 246 Kan. 433, 790 P.2d 422 (1990); and Helms v. Tollie Freightways, Inc., 20 Kan. App.2d 548, 889 P.2d
1151 (1995). Zimmer v. Central Kansas Medical Center and Reliance National Insurance Company and Workers
Compensation Fund, Docket No. 186,009.
5.03 New Injury Resulting from New & Separate Accident
- November 1999. (Ph) Where claimant suffers new accidental injury which aggravates an old injury, employer must
file a new report of accident. Pursuant to K.S.A. 44-557, the failure to file the report of accident tolls time limit for
filing application for hearing under K.S.A. 44-534. Edwards v. Foss Motor Company, Inc., Docket No. 244,923.
- October 1999. (Award) Where claimant had reached maximum medical improvement after initial surgery and then
condition worsened, requiring second surgery, the Board found that the second surgery and increase in disability
occurred from an intervening injury when claimant lifted his grandson at home and not as a natural and direct
consequence of the original injury. The claimant was, therefore, limited to the 10 percent disability which resulted
from the first injury and surgery. Jellison v. Kiowa County, Docket No. 219,964
- September 1999. (Award) Injury that occurred on the way to medical treatment for a compensable injury is also
compensable, but as a new accident. Sublett v. Intracorp and Cigna Workers Compensation and Kansas Workers
Compensation Fund, Docket Nos. 186,917 & 219,875.
- ----- Claimant suffered a work-related accident to her left ankle. Subsequently, on her way to receive treatment for
the left ankle, claimant further injured her right ankle. The two accidents are to be treated as separate accidents;
therefore, claimant is entitled to compensation for each as a scheduled injury-- the two should NOT be combined to
form a general body disability. Id.
- April 1999. (Award) The Board affirms the ALJ's finding that claimant's rotator cuff injury is the natural and
probable consequence of claimant's original injury and resulting surgery and not due to an intervening cause -- such
as claimant's playing softball. Hernandez v. State of Kansas and State Self Insurance Fund, Docket No. 196,090.
- ----- A continuing disability which is aggravated is compensable as a natural consequence of the original injury,
while the increased disability from a new and separate non work-related accident is not. If the second injury or
disability was produced by a significant or traumatic event, involving substantial force or unusual exertion, the
second injury will constitute an intervening cause and, therefore, a new and separate accident. Id.
- See Also, Elkins vs. Cowley County Community College and Kansas Association of School Boards, Docket No.
253,708 (October 2000).
- November 1998. (Award) If the injury, temporary or permanent, is the natural and probable consequence of an
earlier work-related injury, benefits are assignable to that earlier injury. If, on the other hand, there has been a new
accident, the benefits for the injury, again either temporary or permanent, are assignable to the employer and
insurance carrier for the new accident. See Burbank v. Unified School District, Docket No. 223,983 (December
1997). In the case at hand, the injury was found to be a new and separate accident. Council v. Shilling Construction
Company, Inc and United States Fidelity & Guaranty Co, Docket No. 210,040. [Affirmed by unpublished Court of
Appeals opinion, Docket No. 82,424, December 10, 1999.]
- June 1998. (Ph) In 1993, claimant suffered an aggravation of a preexisting back injury. From 1994, when claimant
underwent surgery for this injury, until 1997, claimant felt his back was much improved as he was experiencing
practically no symptoms. In 1997, claimant suffered a severe pain in his low back as he arose from a chair in his
home and bent over. Claimant's treating physician stated that he believed a connection between claimant's 1993
and 1997 injuries was "indirect at best." Based upon the treating physician's statements and claimant's own
testimony, the Appeals Board finds claimant's 1997 injury to be a new and separate intervening injury with little to
no connection to his 1993 injury. Myers v. Design Forum, Inc and CNA Insurance Company, Docket No. 198,736.
- December 1997. (Ph) When determining whether a subsequent injury is compensable, the test remains one of
determining whether the new injury is a "direct and natural result" of the primary injury or was from a "new and
separate accident." The former is a compensable consequence of the first injury and the second is not. A "separate"
accident can logically be defined as an accident involving independent trauma, ie., trauma independent from the
original injury, as a cause of the new injury. Burbank v. Unified School District 259, Docket No. 223,983.
- See Also, Elizabeth B. Navrat-Karzon vs. Wyndham Garden Hotel of Wichita and American Insurance Company,
Docket No. 248,631 (May 2000); and Elizabeth B. Navrat-Karzon vs. Pacific Linen, Inc. and American Home
Assurance Company, Docket Number 222,007 (May 2000).
- August 1997. (Award) Where the injury is found to not be the natural and probable consequence of a preexisting
injury but a new injury, resulting from a new and separate accident, claimant must file timely notice and written
claim as required by K.S.A. 44-520 and K.S.A. 44-520a for the new injury. Frazier v. Mid-West Painting Inc. and
CNA Insurance Companies, Docket No. 199,465 [Reversed and remanded with directions by Kansas Supreme
Court, Docket No. 79,833, January 28, 2000 (Court of Appeals decision affirming the Board in unpublished opinion
January 29, 1999, is reversed)].
- June 1997. (P/A) Although Kansas recognizes the doctrine that every natural and direct consequence which flows
from a work-related injury is compensable, the doctrine is not applicable when the consequence results from a new
and separate accident. See Wietharn v. Safeway Stores, Inc., 16 Kan. App.2d 188, 820 P.2d 719 (1991). Fox v.
Praytor Construction and Aetna Casualty & Surety, Docket No. 173,869.
- January 1997. (Award) Claimant injured his low back in May of 1994 as a result of a work-related accident.
Subsequently claimant returned to work without permanent work restrictions. However, in July of 1994, claimant
experienced increased back pain after swimming at home with his children. Claimant was later diagnosed with a
herniated and bulging disc. The Appeals Board found the record as a whole established that claimant's permanent
injuries were the result of a new and separate accident away from work. The employer is therefore not responsible
for injuries sustained by an employee from new and separate accidents away from work following a resolved work-related injury. See Stockman v. Goodyear Tire & Rubber Co., 211 Kan. 260, 505 P.2d 697 (1973). Alicea v. Nutri-Pet and Hanover Insurance Company, Docket No. 193,283.
- January 1994. (Award) In case involving claimant who had a 1984 Missouri Workers Compensation claim for
injury to his left knee, evidence examined and found to support finding that claimant suffered additional accidental
injury to both knees from work for respondent as a drywall finisher. Flores, Jr. v. Cameron Drywall, Docket No.
152,948.
- December 1993. (Award) After a review of the record to determine whether claimant's injury was a new injury or
merely a continuation of problems from the old injury, the Appeals Board finds claimant suffered a new injury for
which compensation is to be awarded. Peterson v. Tony's Pizza Service and Liberty Mutual Ins and Kansas
Workers Compensation Fund, Docket No. 154,563.
5.04 Intervening Cause
- October 1999. (Award) Where claimant had reached maximum medical improvement after initial surgery and then
condition worsened, requiring second surgery, the Board found that the second surgery and increase in disability
occurred from an intervening injury when claimant lifted his grandson at home and not as a natural and direct
consequence of the original injury. The claimant was, therefore, limited to the 10 percent disability which resulted
from the first injury and surgery. Jellison v. Kiowa County, Docket No. 219,964.
- September 1999. (Award) When the primary injury under the Workers Compensation Act is shown to arise out of
and in the course of employment, every natural consequence that flows from the injury, including a new and distinct
injury, is compensable if it is a direct and natural result of the primary injury. See Jackson's v. Stevens Well Service,
236 Kan. 431 (1984). It is not compensable, however, where the worsening or new injury would have occurred even
absent the primary injury or where it is shown to have been produced by an independent intervening cause. See
Nance v. Harvey County, 263 Kan. 542 (1997). The Appeals Board finds that claimant's new job as a boilermaker
following his medical release was an intervening cause of his worsened condition. The right upper extremity injury,
therefore, constituted a new accidental injury and is not compensable as a direct and natural consequence of the
original injury to the left upper extremity. Eaker v. Proficient Food Company, Docket No. 219,173.
- April 1999. (Award) The Board affirms the ALJ's finding that claimant's rotator cuff injury is the natural and
probable consequence of claimant's original injury and resulting surgery and not due to an intervening cause -- such
as claimant's playing softball. Hernandez v. State of Kansas and State Self Insurance Fund, Docket No. 196,090.
- ----- A continuing disability which is aggravated is compensable as a natural consequence of the original injury,
while the increased disability from a new and separate non work-related accident is not. If the second injury or
disability was produced by a significant or traumatic event, involving substantial force or unusual exertion, the
second injury will constitute an intervening cause and, therefore, a new and separate accident. Id.
- See Also, Sarah E. Hull vs. Wichita Racquet Club, Inc. and American Motorist Insurance Co. Docket No. 251,209
(April 2000).
- December 1998. (Ph) Car accident which caused claimant increased low back symptoms found to not be an
intervening cause of claimant's current low back problems. The back problems claimant experienced prior to the
car accident and as a result of her work related injury were ongoing and symptomatic at the time of the car accident.
Johnston v. Laich Industries Corporation and Atlantic Mutual Insurance Company, Docket No. 220,172.
- June 1998. (Ph) In 1993, claimant suffered an aggravation of a preexisting back injury. From 1994, when claimant
underwent surgery for this injury, until 1997, claimant felt his back was much improved as he was experiencing
practically no symptoms. In 1997, claimant suffered a severe pain in his low back as he arose from a chair in his
home and bent over. Claimant's treating physician stated that he believed a connection between claimant's 1993
and 1997 injuries was "indirect at best." Based upon the treating physician's statements and claimant's own
testimony, the Appeals Board finds claimant's 1997 injury to be a new and separate intervening injury with little to
no connection to his 1993 injury. Myers v. Design Forum, Inc and CNA Insurance Company, Docket No. 198,736.
- February 1998. (Ph) Claimant injured his neck and arm while attempting to lift the side of a 1000 pound table for
respondent. Claimant subsequently left his employment with respondent and moved to California. While in
California, claimant attempted a job as a cement laborer; however, his neck and arm began hurting again.
Respondent argued claimant's actions of being a cement laborer constituted a subsequent, intervening cause of his
current neck and arm pain. The Appeals Board, however, found the work claimant performed as a cement laborer
temporarily aggravated his symptoms but did not constitute a separate and distinct injury nor did they constitute a
subsequent, intervening injury. Cross v. Weckworth Manufacturing, Inc. and Employers Mutual Casualty Co.,
Docket No. 227,095.
- December 1997. (Award) Claimant suffered a work-related injury and returned to work at a comparable wage until
she was terminated for excessive absenteeism. Claimant contends the absenteeism was the result of her work-related accident. The Administrative Law Judge found and the Appeals Board affirms the conclusion that claimant's
attendance problems were the result of an intervening accident at work, for which claimant did not file a workers
compensation claim, and not a result of the original accidental injury. In addition, the Court of Appeals in a case
factually similar to this case affirmed a district court's decision denying claimant a work disability where claimant
was returned following a work-related accident to work at a comparable wage and later was terminated for excessive
absenteeism. See Perez v. IBP, Inc., 16 Kan. App.2d 277, 826 P.2d 520 (1991). Gutierrez v. Parkview
Manor/Beverly Enterprises and National Union Fire Insurance Company and Kansas Workers Compensation Fund,
Docket No. 175,047.
- July 1997. (Ph) Compensation denied where claimant's subsequent intervening activities were of a nature which
would tend to aggravate claimant's carpal tunnel syndrome condition. Dittmer v. First Class Ford Mercury and
Universal Underwriters of Texas and Kansas Workers Compensation Fund, Docket No. 199,160.
- See Also, Riley v. Graphics Systems, Inc and Maryland Casualty Company, Docket No. 237,773 (December 1998).
- July 1997. (Ph) The Appeals Board finds claimant has met his burden of proving his incarceration and altercation
with a police officer, following his work-related back injury, are not intervening causes of his current need for
medical treatment for back problems. Roda v. Brown & Brown, Inc., Docket No. 222,605.
- April 1997. (Award) Claimant suffered a work-related accident and received permanent partial disability for her
functional impairment. Claimant, however, contends she should receive work disability for the time she could not
work due to her non work-related coronary bypass surgery. Although it is true that the difference between
claimant's pre and post injury wages at this time was 100 percent, such a reading of K.S.A. 44-510e contradicts the
general intent of the Workers Compensation Act. The Act provides benefits to assist with the loss caused by a
work-related injury. Before work disability is appropriate, the work-related injury must have a negative impact
claimant's ability to work and earn wages. When after the work injury, a claimant suffers a separate non work-related accident or illness, such as the coronary problems in the case at hand, which by itself renders claimant unable
to work, such an intervening or superseding event should not trigger work disability benefits. Fenwick v. Sterling
Presbyterian Manor and Insurance Management Associates, Inc., Docket No. 206,618.
5.05 Refusal to Accept Medical Treatment
See Also Sec. 7.05a