Mitchell v. Petsmart, Inc.(Supreme Court)

THE SUPREME COURT OF THE STATE OF KANSAS

No. 99,528

TODD L. MITCHELL,
Appellee/Cross-appellant,

v.

PETSMART, INC.,
Appellant/Cross-appellee,

ROYAL & SUN ALLIANCE INSURANCE COMPANY,
Appellee/Cross-appellee,

and

TRAVELERS PROPERTY AND CASUALTY COMPANY OF AMERICA,
Appellant/Cross-appellee.


SYLLABUS BY THE COURT

1.
K.S.A. 44-510d requires compensation for each scheduled injury when multiple
injuries occur within a single extremity.

2.
Regulations an administrative agency is authorized to adopt are presumed valid,
and the party challenging a regulation bears the burden to establish its invalidity.

3.
K.A.R. 51-7-8 does not violate the Workers Compensation Act by authorizing the
Workers Compensation Board to deduct the number of weeks awarded to an injured
worker for temporary total disability from that worker's permanent partial disability
award.

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4.
K.S.A. 77-621(a)(2) provides that the validity of an agency action is determined in
accordance with the standards for judicial review under K.S.A. 77-621(c) in effect at the
time the agency action was taken.

5.
Kansas appellate courts have established a bright-line rule for identifying the date
of injury in a repetitive, microtrauma situation like carpal tunnel syndrome. The date of
injury is the last day worked.

6.
Disputes between insurance carriers concerning their respective liabilities for
payment of workers compensation benefits to an injured worker employed by their
insured generally should not be litigated in the compensation proceedings. Carriers
should bring separate proceedings for such purposes.

Review of the judgment of the Court of Appeals in 41 Kan. App. 2d 523, 203 P.3d 76 (2009).
Appeal from Workers Compensation Board. Opinion filed September 10, 2010. Judgment of the Court of
Appeals affirming the Workers Compensation Board is affirmed in part and reversed in part. Judgment of
the Workers Compensation Board is affirmed in part, reversed in part, and remanded with directions to
the Workers Compensation Board.

Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, of Wichita, argued the cause, and Brian R.
Collignon, of the same firm, was with him on the briefs for appellant/cross-appellee Petsmart, Inc., and
appellant/cross-appellee Travelers Property and Casualty Company of America.

Terry J. Torline, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, argued the
cause, and Timothy A. Emerson, of the same firm, was with him on the briefs for appellant/cross-appellee
Petsmart, Inc., and appellee/cross-appellee Royal & Sun Alliance Insurance Company.

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Michael L. Snider, of Snider & Seiwert, of Wichita, argued the cause and was on the briefs for
appellee/cross-appellant Todd L. Mitchell.

The opinion of the court was delivered by

BILES, J.: This appeal comes on cross-petitions for review following a workers
compensation award. Todd L. Mitchell, the injured employee, challenges the Workers
Compensation Board's method for calculating his permanent partial disability award. His
first issue is whether the Board erred in combining his multiple left arm and right arm
injuries into a scheduled injury for each arm at the shoulder level. We hold it was error to
combine these injuries. A variation of this issue is decided in Redd v. Kansas Truck
Center, (No. 101,137, this day decided).

Mitchell's second issue attacks the Board's decision to deduct the number of weeks
awarded for temporary total disability from the number of weeks allotted on the K.S.A.
44-510d schedule to calculate his permanent partial disability award. We hold the Board
properly deducted the weeks of temporary total disability.

Finally, each of the two insurance carriers involved seeks to shift responsibility to
the other by challenging the decision to impose joint and several liability for certain
injuries suffered by Mitchell. We hold the Board's order imposing joint and several
liability should be affirmed because the evidence supports the Board's finding that
Mitchell's repetitive trauma injuries resulted from a combination of the initial injury that
began these proceedings and subsequent work activities.




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FACTUAL AND PROCEDURAL BACKGROUND

The facts are not in dispute. On December 31, 2003, Mitchell fell while working at
Petsmart, Inc., and broke his left thumb. He underwent surgery and returned to work with
a cast on his left arm. He did not miss any work. Mitchell's job responsibilities included
building displays, transporting merchandise to the sales floor, and stocking the shelves
with dog food weighing up to 50 pounds. Mitchell testified he wore the cast on his left
arm for about 12 weeks but continued to complete his regular job tasks using primarily
his right arm.

When Mitchell broke his left thumb, Petsmart was insured by Royal & Sun
Alliance Insurance Company. But on February 1, 2004, 1 month after the injury,
Travelers Property and Casualty Company of America began insuring Petsmart.

On March 2, 2004, Mitchell filed his first workers compensation claim (No.
1,015,618) against Petsmart, naming Royal as the insurer. Mitchell alleged the December
31, 2003, fall caused his work-related injury. He claimed injuries to his "hand, thumb,
arm and all parts affected thereby." Later, this claim was amended to allege the date of
accident for purposes of the statutory claims process included subsequent aggravations
after December 31, 2003. The amendment also expanded the claimed injuries to include
"bilateral hands, shoulders, arms and all other body parts affected."

On April 5, 2004, which appears to be the date the cast was removed, Mitchell was
released at maximum medical improvement. He testified he continued to rely on his right
arm for most lifting activities for at least another month after the cast was taken off
because his left arm remained stiff and weak.

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Dr. Pedro Murati examined Mitchell for complaints of left thumb and hand pain
and weakness. For the left thumb, Dr. Murati determined Mitchell suffered a 20 percent
impairment for lateral instability and a 14 percent impairment for loss of motion, which
Dr. Murati converted to 8 and 6 percent hand impairments, respectively. He assigned an
additional 12 percent hand impairment for sensory deficits in the thumb. For the
weakness in Mitchell's left hand, Dr. Murati assigned an11 percent hand impairment. Dr.
Murati then combined these for a total of 32 percent impairment to the left hand. He did
not convert this into a left upper extremity impairment. Dr. Murati's recommended
restrictions were to "work as tolerated and use common sense."

On July 18, 2004, Mitchell reported pain in his right arm. Petsmart sent Mitchell
to Dr. Mark Dobyns, who treated Mitchell with Ibuprofen and a cortisone shot. Mitchell
testified Dr. Dobyns restricted him from lifting more than 10 pounds with his right arm,
so Mitchell switched back to primarily using his left arm to complete his job duties. Dr.
Murati also evaluated Mitchell for right shoulder pain. He diagnosed probable right
carpal tunnel syndrome with pain in his right shoulder, right rotator cuff sprain or tear,
and right shoulder pain with instability. Dr. Murait attributed these impairments to a
work-related injury occurring on July 23, 2004. This appears to be an error because July
23 does not have any other significance to this litigation. Dr. Murati probably meant to
refer to the date Mitchell reported right arm pain, July 18, 2004.

On October 20, 2004, Mitchell notified Petsmart his left arm and shoulder hurt. On
October 25, 2004, Mitchell filed a second claim against Petsmart and Royal (No.
1,019,828) for overuse of extremities, listing an accident date of July 18, 2004, the date
Mitchell initially reported pain in his right arm and each day worked thereafter. This
second claim alleged injury to "bilateral hands, shoulders, and all parts affected."
Travelers was substituted later as the insurance carrier for this claim.

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In November 2004, Dr. Bernard Hearon diagnosed Mitchell with a superior labum
anterior to posterior (SLAP) lesion on his right shoulder, and surgery was performed in
January 2005. On February 24, 2005, Dr. Hearon diagnosed a SLAP lesion on Mitchell's
left shoulder and restricted overhead work on the left side. Dr. Hearon recommended
surgery to treat the second SLAP lesion, but Mitchell refused.

Petsmart terminated Mitchell for poor attendance on July 19, 2005. His last day
worked was July 15, 2005. The same day he was terminated, Mitchell returned to Dr.
Hearon, complaining of bilateral upper extremity tingling and numbness. He was
diagnosed with bilateral carpal tunnel syndrome and possible bilateral cubital tunnel
syndrome (cubital relates to the elbow). A nerve conduction test confirmed cubital tunnel
syndrome for his right upper extremity. Nerve tests did not support a finding for left
cubital tunnel syndrome. On August 15, 2005, Dr. Hearon performed right carpal tunnel
release surgery followed by physical therapy. Mitchell was released without restrictions
on September 27, 2005.

Mitchell returned to Dr. Murati on December 21, 2005, with continued complaints
of right and left shoulder pain, pain in his left hand, and right hand weakness. Dr. Murati
diagnosed him with a 36 percent right upper extremity impairment for the status postright
carpal tunnel release, status postright subacromial decompression, status postright distal
clavicle excision, right ulnar cubital syndrome, and loss of shoulder motion. Dr. Murati
then converted this to a 22 percent whole body impairment. Dr. Murati also found a 15
percent left upper extremity impairment for left carpal tunnel syndrome and mild
glenohumeral crepitus of the left shoulder, which he converted to a 9 percent whole body
impairment. Finally, Dr. Murati combined the 22 and 9 percent whole body calculations
into a 29 percent whole person impairment. He found the injuries were caused by a work-
related injury occurring on July 18, 2004 (the date the injury was reported), and every
day thereafter.
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The ALJ Award

The administrative law judge (ALJ) consolidated Mitchell's two workers
compensation claims. In both cases, the parties entered into stipulations. In No.
1,015,618, pertaining to the left thumb injury, the parties agreed Mitchell injured his
thumb on December 31, 2003, because of his employment. They also stipulated
Mitchell's average weekly wage was $560.90, excluding fringe benefits. Petsmart and
Royal denied Mitchell suffered any other injury for which they would be responsible. In
the second claim, No. 1,019,828, the parties agreed that Travelers insured Petsmart
during the time period at issue in the case and that Mitchell's wage was $576.32,
including fringe benefits. Petsmart and Travelers did not stipulate Mitchell was injured
during Travelers' coverage period.

The ALJ ordered an independent medical evaluation with Dr. Pat Do, who
diagnosed: (1) status postright carpal tunnel release; (2) status postleft thumb ulnar
collateral ligament repair; (3) status postright shoulder subacromial decompression,
rotator cuff repair, distal clavicle excision, and SLAP repair; and (4) left shoulder pain.
Dr. Do concluded that all of these injuries resulted from the December 31, 2003, left
thumb break and were the natural consequence of overuse following surgery of the
uninvolved extremity.

The ALJ found Mitchell suffered an injury on December 31, 2003, and provided
the following description of events:

"The claimant in this case was stepping backwards to get clear of a truck of some
kind that was working in the isle [sic] of the store at Petsmart. But as he stepped
backwards he tripped and put out his left hand to catch himself and his left thumb was
broken and bent severely. He never lost work over that particular injury even though a
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screw was later put in [his left hand] that was done on his days off and he continued to
work and continued to use the right hand more than he did the left hand as he was
favoring the left hand because of the thumb injury. From that he had several other
problems including but not limited to carpal tunnel on the right hand and he had surgery
on it. Then he had shoulder problems and then he had elbow problems so the whole right
upper extremity and part of the left extremity had several arthroscopic surgeries and he
continued to have all kinds of problems."

The ALJ then calculated Mitchell's injuries as a general body disability under
K.S.A. 44-510e—instead of using the scheduled injuries set out in K.S.A. 44-510d. The
ALJ then averaged the impairment ratings given by Drs. Murati and Do, which resulted
in a permanent partial disability award of $85,354.09. The ALJ did not award temporary
total disability.

The ALJ's order did not specifically address whether the secondary injury rule,
which permits compensation for a subsequent injury if it is a natural and probable
consequence of the primary injury, applied to the bilateral shoulder and right elbow
injuries. But such a determination is implied in the ALJ's finding that the accident date
was December 31, 2003, which is when Mitchell fell and broke his left thumb. Finally,
the ALJ imposed joint and several liability on Royal and Travelers, explaining: "The law
is clear that if [insurance carriers] have a disagreement among themselves as to who the
responsible carrier is, that should be decided in the District Court . . . [because] we are
not authorized to make that determination in the Comp Court."

Traveler's sought review of the ALJ's order before the Board. Travelers challenged
the nature and extent of Mitchell's disabilities, the joint and several liability
determination, and the ALJ's failure to award a scheduled injury under K.S.A. 44-510d.
Royal and Mitchell did not cross-appeal.

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The Board's Order

The Board did not agree with the ALJ's calculations for Mitchell's injuries as a
general body disability under K.S.A. 44-510e. The Board held Mitchell's injuries to both
his arms and shoulders must be compensated under the schedules set out in K.S.A. 44-
510d, citing Casco v. Armour Swift-Eckrich, 283 Kan. 508, 154 P.3d 494 (2007) (See
Syllabus Paragraph 7—Scheduled injuries are the general rule and nonscheduled injuries
are the exception. If an injury is on the schedule, the amount of compensation is
determined under K.S.A. 44-510d.).

The Board then addressed each claimed injury. For Mitchell's left thumb, the
Board found he suffered a 44.5 percent impairment and awarded Mitchell 26.70 weeks of
permanent partial disability at a rate of $373.95, totaling $9,984.47. The Board found
Royal solely liable for the left thumb injury award. This finding is not challenged on
appeal. For the remaining injuries, the Board found Mitchell suffered repetitive trauma
injuries, including bilateral carpal tunnel syndrome, right cubital tunnel syndrome, and
bilateral shoulder injuries. The Board explained that when Mitchell returned to work after
the thumb surgery, he used his right arm to unload pallets of dog food until the right arm
became symptomatic. Then, Mitchell went back to using his left arm to compensate for
the right shoulder pain, and the left arm also became symptomatic.

The Board also expressly found Mitchell's arm and shoulder injuries, which
occurred after he broke his left thumb, resulted from a combination of Mitchell's work
duties and his initial thumb injury. The Board referenced Dr. Murati's testimony as
establishing Mitchell's routine work activities contributed to his subsequent injuries. It
also cited Mitchell's and Dr. Do's testimony that the left thumb break was a contributing
factor. The Board held:

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"[I]t cannot be said those additional repetitive trauma injuries to claimant's arms and
shoulders would have occurred without the strenuous work that claimant performed after
his thumb surgery. Likewise, it cannot be said claimant would have developed these
injuries without the initial thumb injury. Consequently, the Board finds and concludes the
combination of claimant's work activities and his initial thumb injury resulted in claimant
developing bilateral carpal tunnel syndrome, right elbow symptoms, and bilateral
shoulder injuries." (Emphasis added.)

But the Board disagreed over how to calculate Mitchell's compensation. A
majority combined the separate injuries to each upper extremity and then made one
award each for the right and left upper extremities. They listed the date of injury as
Mitchell's last day worked, July 15, 2005. For the right upper extremity, the Board
awarded $29,238.19—$6,706.44 temporary total disability benefits and $21,651.86
permanent partial disability benefits. Mitchell was awarded $6,706.44 in permanent
partial disability for his left upper extremity.

Two dissenters disagreed with the majority's method of combining injuries. They
argued Mitchell's disabilities should be calculated at each level specified in the statutory
schedule that contained an injury because K.S.A. 44-510d does not contain any language
authorizing the Board to combine injuries. Under the minority's approach, each injury to
the fingers, hand, forearm, arm, and shoulder would be compensated separately under the
schedule regardless of whether the injuries occur separately, simultaneously, or are
progressive. This disagreement over combining impairments under K.S.A. 44-510d when
there are multiple injuries to scheduled members is a recurring controversy. See Redd,
slip op. at 13-27.

Finally, the entire Board agreed with the ALJ and ordered joint and several
liability against Royal and Travelers for the medical treatment and disability
compensation for Mitchell's bilateral carpal tunnel syndrome, right elbow symptoms, and
11



bilateral shoulder injuries. The Board reasoned that joint and several liability was
appropriate based on its factual finding that Mitchell's initial left thumb injury and
subsequent work activities combined to cause those injuries.

Travelers appealed. It contended the Board erred by finding more than one date of
injury, arguing the secondary injury rule applied and that Mitchell's extremity
impairments were the natural and probable consequence of the left thumb injury. This
error, Travelers claimed, led the Board to mistakenly impose joint and several liability on
Travelers and Royal because Royal was the insurer at risk when the left thumb was
broken. Mitchell filed a cross-appeal. He argued the dissenting board members were
correct in finding he should have received separate awards at each injury level and the
Board majority erred by combining his injuries to the highest level for the right and left
extremities on the statutory schedule. He also claimed the Board erred by deducting the
weeks of temporary total disability from the 225 weeks allotted on the schedule.

The Court of Appeals held: (1) The secondary injury rule did not apply because
there was sufficient evidence supporting the Board's decision that a combination of the
left thumb break and Mitchell's subsequent work activities caused his injuries; (2) it was
appropriate to combine Mitchell's extremity impairments to the highest level of the
extremity because the K.S.A. 44-510d schedule is progressive, i.e., the higher up the
extremity the more weeks are awarded; and (3) K.A.R. 51-7-8 allows for the credit of
temporary total disability paid when a claimant is awarded those temporary benefits
followed by a permanent partial disability. Mitchell v. Petsmart, Inc., 41 Kan. App. 2d
523, 203 P.3d 76 (2009). The Mitchell panel also affirmed the joint and several liability
imposed on the two insurance carriers, presumably because the panel believed its
decision on the secondary injury rule resolved that controversy. But the panel's decision
is not specific as to this point.

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Both Travelers and Mitchell filed petitions for review, which we granted.
Jurisdiction is proper under K.S.A. 20-3018(b) (review of a Court of Appeals' decision).

We address the issues raised in the following order: (1) whether the Board erred in
calculating Mitchell's permanent partial disability award by combining his extremity
impairments to the highest level of the extremity; (2) whether the Board erred by
deducting Mitchell's temporary total disability in calculating his permanent partial
disability; and (3) whether the Board erred by assigning joint and several liability to both
Royal and Travelers.

ISSUE ONE: PERMANENT PARTIAL DISABILITY CALCULATION

Mitchell argues the Board majority improperly combined his multiple left and
right arm injuries into one scheduled injury for each arm at the shoulder level. Instead,
Mitchell argues his injuries should have been compensated separately according to the
schedule in K.S.A. 44-510d at the level corresponding to each injury. Travelers asserts it
was proper to combine these injuries into two awards, noting the number of weeks
assigned to each arm at the shoulder level on the statutory schedule includes the value of
the lower members.

The Mitchell panel agreed with Travelers. 41 Kan. App. 2d at 537. But the Board
has used, and other Court of Appeals panels have affirmed, conflicting methods for
calculating an award under similar circumstances. See, e.g., Redd v. Kansas Truck
Center, 2008 WL 4149955, at *12(Work. Comp. Bd., No. 1,020,892, filed August 27,
2008; Conrow v. Globe Engineering Co., No. 99, 718, unpublished Court of Appeals
opinion filed March 13, 2009. This statutory interpretation issue is a question of law over
which we have unlimited review. See Redd, slip op. at 14-15; Ft. Hays St. Univ. v.
University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010).
13




The Mitchell panel interpreted K.S.A. 44-510d to allow compensation at the
highest level of injury when multiple injuries occur within a single extremity. It noted the
statutory structure of the scheduled injuries is progressive, meaning an injured worker is
entitled to more weeks if the injury occurs at a higher level, i.e., 200 weeks for a forearm,
but 210 weeks for the loss of an arm. 41 Kan. App. 2d at 537-38.The panel also relied
upon Casco, 283 Kan. at 522, which found that if an injury is on the schedule, the amount
of compensation stated in the statutory schedule includes compensation for the complete
loss of the member or the partial loss of the member. The panel then reasoned that
because the number of weeks is reduced by the percentage of the loss, "the principle of
compensating an extremity at the highest level affected applies regardless of whether the
loss is total or partial." 41 Kan. App. 2d at 537. In the end, this justified the Board
majority's statutory interpretation, which the Mitchell panel found was entitled to judicial
deference. 41 Kan. App. 2d at 538.

But in Redd, a Board majority awarded an injured worker five scheduled injuries
to his left hand, left forearm, left arm, right forearm, and right arm. The employer argued
the Board was required to combine the individual impairment ratings into a whole body
impairment because K.S.A. 44-510d(a)(23) requires loss of a scheduled member be based
on the permanent impairment of function to that member as determined using the
American Medical Association Guides to Evaluation of Permanent Impairment (4th ed.
1995) (Guides). The Guides instruct physicians to generate a whole body impairment
rating as part of a recommended three-step evaluation process. We agreed that this
created an ambiguity in the statute, but we rejected the employer's statutory interpretation
in Redd, slip op. at 22-24, because it rendered meaningless the statutory schedules set out
in K.S.A. 44-510(d)(a)(1)-(22) .

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To reach this conclusion, we analyzed the governing statutes from the Workers
Compensation Act; K.S.A. 44-501 et seq.; the case law interpreting those statutes; the
Guides; and the legislative history for K.S.A. 44-510(d)(a)(23). We found the legislature
created its own statutory mechanism to calculate permanent partial disability awards in
K.S.A. 44-510d and K.S.A. 44-510e. Thus, the more reasonable interpretation for K.S.A.
44-510d(a)(23) was that the legislature meant to adopt the evaluation requirements and
methods for combining impairments to the same statutorily specified level, but not the
Guides' process for combining multiple scheduled injuries occurring at different levels or
on different members. Redd, slip op. at 24-25.

For example, if there are several injuries causing impairment to an injured
worker's thumb, those injuries should be combined to generate a total impairment to the
thumb because it is specifically identified in K.S.A. 44-510d. But the thumb injury
should not be combined with a scheduled injury to the hand, which also is specifically
identified in the statute. This view, we reasoned in Redd, slip op. at 25, maintains the
Guides' purpose of bringing greater objectivity to the physician's task of estimating the
magnitude of permanent impairments but also allows for application of the scheduled
injury calculations specified in the statute. See K.S.A. 44-510d(a)(1)-(22).

In Redd, we also touched on the Mitchell panel's decision to combine impairments
to the highest level of the extremity, by stating:

"Admittedly, [the Mitchell] approach does not render the statutory schedule
meaningless, but it does read something into K.S.A. 44-510d(a)(1)-(22) that does not
exist. The schedule does not contain any language requiring the combination of
scheduled injuries, and the panel does not explain where it finds the authority permitting
the Board to combine injuries in the manner the panel approved." (Emphasis added.)
Redd, slip op. at 27.

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While in Redd we found that the adoption of the Guides in K.S.A. 44-510d(a)(23)
created an ambiguity in the statute, the schedule's plain language helps us resolve the
arguments made by Travelers and adopted by the Court of Appeals' panel in this case.
See Higgins v. Abilene Machine, Inc., 288 Kan. 359, 362, 204 P.3d 1156 (2009) (Canons
of statutory construction are used to resolve an ambiguity only if the plain reading of a
statute yields an ambiguity or lack of clarity.). We find the statutory schedule plainly
does not authorize the combining of impairment values to be found for the specific
scheduled members identified in K.S.A. 44-510d(a)(1)-(22).

K.S.A. 44-510d defines a permanent partial disability as a disability "partial in
character but permanent in quality." K.S.A. 44-510d(a) then states permanent partial
disability compensation "is to be paid for not to exceed the number of weeks allowed" in
the following schedule:
"(1) For the loss of a thumb, 60 weeks.
. . . .
"(12) For the loss of a forearm, 200 weeks.
"(13) For the loss of an arm, excluding the shoulder joint, shoulder girdle,
shoulder musculature or any other shoulder structures, 210 weeks, and for the loss of an
arm, including the shoulder joint, shoulder girdle, shoulder musculature or any other
shoulder structures, 225 weeks.
. . . .
"(21) Permanent loss of the use of a finger, thumb, hand, shoulder, arm forearm,
toe, foot, leg or lower leg . . . shall be equivalent to the loss thereof. For the permanent
partial loss of the use of a finger, thumb, hand, shoulder, arm, toe, foot or leg, or the
sight of an eye or the hearing of an ear, compensation shall be paid as provided for in
K.S.A. 44-510c . . . per week during that proportion of the number of weeks in the
foregoing schedule provided for the loss of such finger, thumb, hand, shoulder, arm, toe,
foot or leg, or the sight of an eye or the hearing of an ear, which partial loss thereof
bears to the total loss of a finger, thumb, hand, shoulder, arm, toe, foot or leg, or the
sight of an eye or the hearing of an ear; but in no event shall the compensation payable
16



hereunder for such partial loss exceed the compensation payable under the schedule for
the total loss of such finger, thumb, hand, arm, toe, foot or leg, or the sight of an eye or
the hearing of an ear, exclusive of the healing period. As used in this paragraph (21),
'shoulder' means the shoulder joint, shoulder girdle, shoulder musculature or any other
shoulder structures." (Emphasis added.)

There are three relevant points apparent from the statute. First, it does not contain
a provision treating multiple injuries differently than singular injuries. Second, it also
does not expressly provide for the combination of impairment values. Third, K.S.A. 44-
510d(a)(21) states that the permanent partial loss of the "finger, thumb, hand, [arm, or
shoulder]" shall be compensated by the number of weeks which the "partial loss thereof
bears to the total loss of [the] finger, thumb, hand, [arm, or shoulder] . . . ." It does not
provide that the permanent partial loss shall be compensated by the percentage of loss of
the extremity.

Unlike the arguments made in Redd, the Mitchell panel did not rely upon the
adoption of the Guides as justification for combining impairments. It found the statute's
progressive nature, which allots more weeks for the higher levels of the extremity,
justified the Board majority's decision to combine Mitchell's injuries under the operative
construction doctrine, which allows judicial deference to an administrative agency's
statutory interpretation when it is supported by a rational basis. Mitchell, 41 Kan. App. 2d
at 537-38.

But this ignores this court's recent decisions recognizing there is little utility for
such deference given the long-standing admonition that appellate courts are always free
to substitute their judgment for that of the administrative agency when reviewing a
question of law. Ft. Hays St. Univ., 290 at 457 ("In this matter, an appellate court
exercises unlimited review on the determinative question of statutory interpretation
17



without deference to [the agency's] view as to its own authority."); Higgins, 288 Kan. at
361 ("No significant deference is due [an administrative law judge's] or the [Workers
Compensation] Board's interpretation or construction of a statute."). Indeed, when an
agency applies the same statute in conflicting ways, as the Board has on this question,
any judicial deference is stymied. Redd, slip op. at 15. Therefore, the Mitchell panel's
rationale is not compelling.

Travelers presents a better argument in its brief by contending that the number of
weeks contained on the schedule compensates the injured worker for the complete loss of
the body member. For example, when a claimant suffers an amputation at the level of the
shoulder, the 225 weeks on the schedule necessarily includes the loss of the entire arm.
Since the number of weeks for the complete loss is simply reduced by the percentage of
loss in partial loss cases, Travelers argues the number of weeks assigned to the highest
level must include the lower parts of the member. But this argument also fails because it
is contrary to the plain language of the statute and reads a rule into the schedule that does
not exist.

We find the Act requires that an injured worker is entitled to an award at each
separate level for multiple injuries to the same extremity corresponding to the statutory
schedule set out in K.S.A. 44-510d. Redd, slip op., Syl. ¶ 5. We reverse the Board's and
the Court of Appeals' determinations combining the multiple scheduled
injuries/impairments to the same extremity, and this case is remanded to the Board for a
recalculation of Mitchell's award consistent with this opinion.

ISSUE TWO: THE PERMANENT PARTIAL DISABILITY REDUCTION

Mitchell was awarded 18 weeks of temporary total disability for injuries sustained
to his right upper extremity. He also received a permanent partial disability award. Under
18



the K.S.A. 44-510d(a)(13) schedule, an injured worker is typically awarded 225 weeks
for the loss of the arm at the shoulder. In calculating Mitchell's permanent partial
disability award, the Board first reduced the 225 weeks assigned under K.S.A. 44-
510d(a)(13) by the 18 weeks of temporary total disability. Then, the Board multiplied the
reduced weekly total by Mitchell's functional impairment rating. Mitchell argues it was
improper to deduct the 18 weeks of temporary total disability.

K.A.R. 51-7-8(b)(1) expressly provides for this deduction. But Mitchell argues a
different interpretation to the regulation, citing the preceding section, K.A.R. 51-7-8(a)(1)
to contend the regulation was misapplied. K.A.R. 51-7-8 states in relevant part:

"(a)(1) If a worker suffers a loss to a member and, in addition, suffers other
injuries contributing to the temporary total disability, compensation for the temporary
total disability shall not be deductible from the scheduled amount for those weeks of
temporary total disability attributable to the other injuries.
. . . .
"(b) If a healing period of 10% of the schedule or partial schedule is granted, not
exceeding 15 weeks, it shall be added to the weeks on the schedule or partial schedule
before the following computations are made.
(1) If a loss of use occurs to a scheduled member of the body, compensation shall
be computed as follows:
(A) deduct the number of weeks of temporary total compensation from the
schedule;
(B) multiply the difference by the percent of loss or use to the member; and
(C) multiply the result by the applicable weekly temporary total compensation
rate." (Emphasis added.)

Mitchell claims K.A.R. 51-7-8(a)(1) pertains to workers with both scheduled and
nonscheduled injuries and that it prohibits the deduction of temporary total disability paid
from a claimant's permanent partial disability award for the scheduled member. We agree
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the plain language of K.A.R. 51-7-8(a)(1) prohibits the deduction of temporary total
disability from the permanent partial disability award—if the temporary total is caused by
both a scheduled injury and some other injury. But these are not the facts in this case
because all of Mitchell's injuries are scheduled. Mitchell's argument misses the relevant
point that K.A.R. 51-7-8(b)(1) explicitly provides for the calculation employed in his
case when a loss of use occurs to a scheduled member, which is what happened here. We
find Mitchell's argument to be without merit under these facts.

In the alternative, Mitchell argues K.A.R. 51-7-8 is void because allowing the
deduction for temporary total disability paid contradicts K.S.A. 44-510c and K.S.A. 44-
510d. The Mitchell panel upheld the Board's calculation, finding K.A.R. 51-7-8 was a
valid regulation and the deduction of the temporary total disability weeks approved by
previous case law, citing another Court of Appeals decision, Cowan v. Josten's American
Yearbook Co., 8 Kan. App. 2d 423, 427, 660 P.2d 78 (1983). Mitchell, 41 Kan. App. 2d
at 538-39. We note a second Court of Appeals panel addressed this issue in a later
decision and adopted the same conclusion. Barbury v. Duckwall Alco Stores, 42 Kan.
App. 2d 693, Syl. ¶ 3, 215 P.3d 643 (2009).

Regulations an administrative agency is authorized to adopt are presumed valid,
and the party challenging a regulation bears the burden to establish its invalidity. In re
Tax Appeal of City of Wichita, 277 Kan. 487, 495, 86 P.3d 513 (2004). It is undisputed
the director of workers compensation is authorized to adopt regulations administering and
enforcing the Act. K.S.A. 44-573 and K.S.A. 74-717. The only remaining issue then is
whether the regulation is inconsistent with the relevant statutes. Because Mitchell
received temporary total disability followed by an award for permanent partial disability,
the relevant statues are K.S.A. 44-510c and K.S.A. 44-510d.

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K.S.A. 44-510c governs compensation for temporary and permanent total
disability. It states a claimant can only receive medical benefits during the first week the
claimant is totally disabled, unless the claimant is disabled a minimum of 3 weeks. After
the first week, "weekly payments shall be made during such temporary total disability."
K.S.A. 44-510c(b)(1). K.S.A. 44-510c(c) then states that the scheduled injury statute,
K.S.A. 44-510d, governs when a permanent total or temporary total disability is followed
by a permanent partial disability contained on the schedule.

As discussed above, K.S.A. 44-510d governs compensation to injured workers
who are permanently, but not totally, disabled—if their injury appears on the schedule. It
begins by restricting an injured worker to medical benefits during the first week of injury.
Thereafter, compensation is to be paid according to the schedule, and the award is
calculated using the statutorily provided formula. The statute then goes on to state
disability is presumed to exist immediately after the injury if permanent disability is
awarded and "compensation is to be paid for not to exceed the number of weeks allowed
in the following schedule." (Emphasis added.) K.S.A. 44-510d(a). K.S.A. 44-510d(b)
provides:

"Whenever the employee is entitled to compensation for a specific injury under
the foregoing schedule, the same shall be exclusive of all other compensation except the
[medical] benefits provided . . ., and no additional compensation shall be allowable or
payable for any temporary or permanent, partial or total disability." (Emphasis added.)

The Barbury panel did a persuasive job of reconciling these statues. It began by
noting the injured worker clearly was entitled to temporary total disability under K.S.A.
44-510c, but that the statute directed the Board to K.S.A. 44-510d to calculate the award.
The panel continued by explaining that K.S.A. 44-510d indicates the disability exists
immediately following the injury. This suggests the number of weeks on the schedule
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encompasses the entire award for an injury to that scheduled member. Further, the panel
reasoned the concluding statement in the statute that compensation is not to exceed the
number of weeks on the schedule further emphasizes that the number of weeks contained
on the schedule is designed to cover the entire award for an injury to a member, whether
it is calculated as a total or a permanent award. 42 Kan. App. 2d at 697.

In Barbury, the injured worker received temporary total disability followed by
permanent partial disability to his leg. The panel's analysis concluded:

"[T]he legislature has set an overall compensation limit for a scheduled injury to the leg
of 200 weeks, part of which may have been provided as a temporary-total-disability
compensation under K.S.A. 44-510c. Although K.S.A. 44-510c lets the employee receive
temporary-total-disability compensation, it defers to K.S.A. 44-510d to determine
compensation when a permanent scheduled injury follows a temporary total disability.
And K.S.A. 44-510d explicitly provides that the compensation provided there 'shall be
exclusive of all other compensation' except medical benefits and amputation cases." 42
Kan. App. 2d at 697.

We find this reasoning logically follows the statutory language. K.A.R. 51-7-8 is
in keeping with that reasoning.

But Mitchell poses a final challenge to this view by urging this court to contrast
these provisions with K.S.A. 44-510e, which establishes how an unscheduled permanent
partial disability award is calculated. That provision requires the deduction of temporary
total disability in the following calculation:

"(2) find the number of disability weeks payable by subtracting from 415 weeks
the total number of weeks of temporary total disability compensation was paid, excluding
the first 15 weeks of temporary total disability compensation that was paid, and
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multiplying the remainder by the percentage of permanent partial general disability as
determined under this subsection [a]." K.S.A. 44-510e(a)(2).

Admittedly, this is a very clear instruction, and the above analysis of K.S.A. 44-
510c and K.S.A. 44-510d is more difficult. But as the Barbury panel considered, this
distinction is not surprising based on the differences in these statutory schemes. 42 Kan.
App. 2d at 698. K.S.A. 44-510e provides detailed instructions on how to calculate general
body disability awards, i.e., injuries not on the schedule. K.S.A. 44-510c and K.S.A. 44-
510d do not. Without doubt, the legislature could have made the instructions for
calculating a scheduled injury more explicit, but that does not alter the analysis
suggesting the legislature intended deducting temporary total disability awards. As such,
K.A.R. 51-7-8 does not violate the statutes.

The Board did not err by reducing the number of weeks assigned for Mitchell's
permanent partial disability award by the number of weeks of temporary total disability
awarded.

ISSUE THREE: JOINT AND SEVERAL LIABILITY

As discussed above, the Board found that both the overcompensation for the initial
injury and the sustained repetitive work over a longer period of time after that injury
combined to cause Mitchell's left and right extremity impairments. It assigned Mitchell's
last day worked as the date of accident under the Act. But Travelers argues the secondary
injury rule applies, which would make the date of accident under the statute December
31, 2003—the date Mitchell suffered the initial thumb injury. The issue underlying this
argument is which insurance carrier is liable. Travelers believes that if the secondary
injury rule applies the date of accident is within Royal's coverage period. We first
consider whether the secondary injury rule applies.

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Travelers argues the subsequent bilateral shoulder, carpal tunnel, and right elbow
injuries flowed as a direct and natural result from the original thumb injury. Citing Dr.
Do's testimony, Travelers claims the facts show the residual effect from the initial left
thumb injury led to the right upper extremity injury, which in turn led to the left upper
extremity injury. Travelers argues the secondary injury rule applies because the
subsequent injuries were the natural and probable consequence of the left thumb break, so
the date of injury for all impairments was the date the left thumb broke.

Royal argues the subsequent injuries were new and distinct. Royal notes Mitchell
began developing bilateral hand numbness 7 months after the break, even though
Travelers claims Mitchell was overusing the right extremity as a result of trying to protect
his initial thumb injury. Royal finds support for these arguments in the testimony of
Mitchell and Dr. Murati. Royal further notes Mitchell was released to return to work with
no cast and no restrictions on April 15, 2005, which was 2 months before Mitchell first
noticed right extremity problems.

In dealing with Travelers' arguments, the Mitchell panel held the secondary injury
rule did not apply because there was sufficient evidence supporting the Board's decision
that a combination of the thumb injury and Mitchell's subsequent work activities caused
his injuries. Therefore, the panel concluded the Board did not err in determining the dates
of accident for each of Mitchell's repetitive trauma injuries were separate and distinct
from the date of accident for his initial thumb injury. 41 Kan. App. 2d at 533.

As to the evidence regarding the cause of Mitchell's subsequent injuries, the panel
found Travelers mistaken in its arguments that the evidence was undisputed. The panel
noted Dr. Do's testimony, which Travelers relies upon, was arguably inconsistent and
contradicted by other medical testimony that concluded Mitchell's subsequent injuries
24



resulted from both the left thumb break and repetitive mini traumas each day he engaged
in work activities. See 41 Kan. App. 2d at 531-33. The panel concluded:

"[C]ontrary to Travelers' suggestion, the Board did not ignore evidence establishing that
Mitchell's repetitive trauma injuries were the natural and probable consequence of the
initial thumb injury. Instead, the Board found that repetitive work and overcompensation
contributed equally to cause Mitchell's injuries." (Emphasis added.) 41 Kan. App. 2d at
533.

We apply the standard of review applicable at the time of the agency action under
review. K.S.A. 77-621(a)(2); see K.S.A. 2009 Supp. 77-621(a)(2); Redd, slip op., Syl. ¶
1. At the time at issue in this appeal, K.S.A. 77-621(c)(7) required review of the agency's
factual determinations for evidence "that is substantial when viewed in light of the record
as a whole." Case law defines substantial evidence as evidence possessing something of
substance and relevant consequence to induce the conclusion that the award was proper,
furnishing a basis to act from which the issue raised could be easily resolved. Graham v.
Dokter Trucking Group, 284 Kan. 547, 553-54, 161 P.3d 695 (2007). Under this analysis,
the Board's decision should be upheld if supported by substantial evidence, even though
there is other evidence in the record supporting contrary findings. 284 Kan. at 554.

We agree with the panel and hold the Board's findings are supported by substantial
competent evidence in light of the record as a whole. As correctly noted by the panel, Dr.
Do's opinion was conditioned on factors that both Mitchell and other medical experts
disputed. The Board made a factual determination based upon that disputed testimony,
which we will not disturb on appeal based on this record. The evidence supports a finding
that Mitchell's subsequent bilateral shoulder, carpal tunnel, and right elbow injuries were
the combined result of both repetitive work and overcompensation use from the initial
thumb injury. Now we must determine the date of accident under the statutory scheme.
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K.S.A. 2009 Supp. 44-508(d), which was amended effective July 1, 2005 (L.
2005, ch. 55, sec. 1), and was thus applicable prior to Mitchell's last day worked,
establishes the date of accident for work-related injuries caused by a series of events,
repetitive use, cumulative traumas, or microtraumas. It states:

"[T]he date of accident shall be the date the authorized physician takes the employee off
work due to the condition or restricts the employee from performing the work which is
the cause of the condition. In the event the worker is not taken off work or restricted as
above described, then the date of injury shall be the earliest of the following dates: (1)
The date upon which the employee gives written notice to the employer of the injury; or
(2) the date the condition is diagnosed as work related, provided such fact is
communicated in writing to the injured worker. In cases where none of the above criteria
are met, then the date of accident shall be determined by the administrative law judge
based on all the evidence and circumstances; and in no event shall the date of accident be
the date of, or the day before the regular hearing."

Kansas appellate courts have set as a bright-line rule that in repetitive microtrauma
situations like carpal tunnel syndrome, the date of injury is the last day worked. See
Kimbrough v. University of Kansas Med. Center, 276 Kan. 853, 855-57, 79 P.3d 1289
(2003). The Board's decision to set the date of accident for Mitchell's repetitive trauma
injuries as his last day worked is in agreement with the statute and our case law. We hold
the Board correctly recognized the date of accident for Mitchell's subsequent injuries
(other than the initial left thumb) as July 15, 2005, i.e., Mitchell's last day of work for
Petsmart. Given this particular factual scenario, we next consider the Board's decision to
impose joint and several liability.

Royal argues its coverage ended on January 31, 2004. It claims it would be unfair
to impose joint and several liability when Royal no longer had a contractual obligation to
26



provide coverage, especially since Mitchell's wage had increased and any benefits
awarded would be higher than anticipated by the premium collected from Petsmart.
Royal also argues joint and several liability cannot be imposed because the Kansas
Workers Compensation Act does not provide for it. The Board found the injuries to
Mitchell's left thumb and the repetitive activities he engaged in for his work combined to
cause Mitchell's subsequent bilateral shoulder, carpal tunnel, and right elbow injuries.

The Mitchell panel treated Travelers' and Royal's challenges to joint and several
liability as separate issues for each insurer. It refused to address Royal's argument that
Travelers was solely responsible because Royal failed to file a cross-appeal, depriving the
panel of jurisdiction to consider this argument under K.S.A. 60-2103(h) (appellee must
file notice of cross-appeal from adverse rulings in order to obtain appellate review of
those issues). 41 Kan. App. 2d at 528. We note Royal also did not seek this court's review
of the panel's jurisdictional determination. Therefore, we have no jurisdiction to hear any
challenge to the joint and several liability order as it relates to Royal's arguments because
it failed to appeal from the Board's ruling.

Turning to Travelers' argument, the insurance carrier predicates its entire attack
against the Board's joint and several liability holding on the basis of its factual dispute
with the Board's decision that Mitchell's subsequent injuries resulted from both the initial
thumb injury and regular job activities. But we have upheld the Board's factual
determinations, so Travelers' premise fails at its starting point. The argument is without
merit.

Finally, we agree generally with the notion expressed by the ALJ and in the case
law that insurance carriers should not litigate disputes about their respective liabilities for
the compensation awarded to an injured worker in the compensation proceedings.
Instead, these matters should be decided in separate proceedings between the carriers
27



brought for such purposes and outside the Board's jurisdiction. See Kuhn v. Grant
County, 201 Kan. 163, Syl. ¶¶ 3-5, 439 P.2d 155 (1968) (discussing the hardship that may
confront a claimant when insurance carriers litigate claims and equities existing between
themselves during the injured worker's compensation process); Hobelman v. Krebs
Construction Co., 188 Kan. 825, 830-33, 366 P.2d 270 (1961) (where employee of two
employers is injured, degrees of liability between employers and their carriers are not to
be decided in workers compensation proceedings); Tull v. Atchison Leather Products Co.,
37 Kan. App. 2d 87, 93-94, 150 P.3d 316 (2007) (not an erroneous application of law
when an ALJ or the Board embraces the general rule stated in Kuhn).

We affirm the Board's judgment assigning joint and several liability to Royal and
Travelers.

CONCLUSION

We reverse the Board and the Court of Appeals in their determinations that
Mitchell's multiple injuries should be combined at the highest level of the scheduled
injury. Instead, the Board is required to calculate Mitchell's permanent partial disability
as separate injuries under the schedule set out in K.S.A. 44-510d, as more fully explained
in this opinion and Redd v. Kansas Truck Center, (No. 101,137, this day decided), slip
op. at 15-27. We remand the case for the purpose of making that recalculation consistent
with this ruling.

We affirm the Board's deduction of the weeks of Mitchell's temporary total
disabilities benefits from the permanent partial disability award.

We affirm the Board's factual findings that Mitchell's subsequent repetitive trauma
injuries resulted from the combination of his work activities and his initial thumb injury.
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We also affirm the Board's decision to assign joint and several liability to both Royal and
Travelers for Mitchell's subsequent bilateral shoulder, carpal tunnel, and right elbow
injuries.

Affirmed in part, reversed in part, and remanded with directions.

DAVIS, C.J., not participating.