Eder v. Hendrick Toyota

1

NOT DESIGNATED FOR PUBLICATION

No. 114,824

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TREVOR EDER,
Appellee,

v.

HENDRICK TOYOTA,
and
HARTFORD INSURANCE COMPANY OF THE MIDWEST,
Appellants.

MEMORANDUM OPINION


Appeal from Workers Compensation Board. Opinion filed December 16, 2016. Affirmed in part
and remanded.

Jeff S. Bloskey, of McCormick, Gordon, Bloskey & Poirier, of Overland Park, for appellants.

No appearance for appellee.

Before MCANANY, P.J., PIERRON, J., and BURGESS, S.J.

Per Curiam: In June 2011, Trevor Eder was working as an automotive technician
at Hendrick Toyota. He had been working there since 2003. His work duties as an
automotive technician required a lot of bending and lifting. On a regular basis, he lifted
objects ranging from 30 to 60 pounds all the way up to 120 to 150 pounds. Some repair
work also had to be performed in awkward positions, including looking up with his hands
extended above his head.

2

According to Eder, performing these job duties for several hours a day over 8
years eventually caused him to have neck pain. Two to three months prior to June 22,
2011, Eder began to have aches and pains in his neck but the pain remained stable over
that period. Eder testified that he woke up on Monday, June 22, 2011, with a shooting
pain in his neck. He did not recall working on the weekend prior or doing anything at
home that could have injured him.

There is some confusion in this case about the dates. Eder's testimony was that his
neck began hurting on Monday, June 22, 2011, and he went to Corporate Care that day.
June 22, 2011, was a Wednesday, and the records indicate that Eder went to Corporate
Care on June 30, 2011. The parties seemed to have agreed to use the date June 22, 2011,
as the onset of his symptoms.

During the months preceding his injury, Eder also performed automotive repair
work for a used car lot as well as friends and family at his home. The amount of work he
performed varied depending on how many hours he worked at Hendrick. If he worked 60
hours at Hendrick, he might work 10 hours at home. If he worked 40 hours at Hendrick,
he might work 15 hours at home. He testified 15 hours was the most he ever worked at
home in a week. The work he did at home was similar to what he did at Hendrick but
with less heavy lifting. Eder testified, however, that he did not perform any work at home
prior to his June 2011 injury.

Eder called Hendrick Toyota's service manager, Scott Kelford, to tell him he was
having severe pain and would not be able to come into work that day. Eder told Kelford
that he could not link his injury to a specific event, but he did not know where else the
injury could have occurred other than work. At the time, Eder was doing a lot of work on
truck frames due to a recall. He did not specifically tell Kelford that he thought his
injuries were work-related until his second surgery in 2012.

3

On the same day Eder reported his injury to Kelford, he went to the company-
designated clinic, Corporate Care. Eder saw Dr. Knudson at Corporate Care. He told Dr.
Knudson he did not have a specific accident, but he said his job duties may have
contributed to his injury. Dr. Knudson concluded the injury was not work related and
recommended Eder seek treatment from his personal physician. Eder did not receive any
further treatment from Corporate Care, but he did seek treatment on his own from Dr.
O'Boynick.

Eder had a disk herniation at his C6-C7 vertebrae, and Dr. Paul O'Boynick
performed a fusion one-level fusion on August 9, 2011. Eder did not tell Dr. O'Boynick
that his injuries might be work-related. Eder claimed this was because if Dr. O'Boynick
knew his injuries were work-related, he would not perform the surgery because he was
not a workers compensation doctor. After some physical therapy, Dr. O'Boynick released
Eder to work without restrictions on December 16, 2011.

Between June 22, 2011, and December 16, 2011, Eder was off work. During this
time, he received paid time off and vacation time. Eder then applied for and got short-
term disability, starting on June 29, 2011. His short-term disability then converted to
long-term disability, which continued through December 14, 2011.

Before returning to work, Eder got a second opinion from Dr. Tenny on December
1, 2011. Eder told Dr. Tenny he had worked in his shop over the weekend prior to his
injury occurring. Dr. Tenny released Eder to work without restrictions.

Eder returned to work on December 16, 2011. He received a raise upon his return.
He continued to work full duty at Hendrick until March 5, 2012.

On March 5, 2012, Eder sustained another neck injury while at work at Hendrick.
He reported the injury to Kelford and again went to Corporate Care. The doctors at
4

Corporate Care designated his injury as compensable and authorized treatment. After
some physical therapy and other treatment, Eder was referred to Dr. Alexander Bailey, a
board certified orthopedic surgeon.

Dr. Bailey evaluated Eder on April 5, 2012 regarding his March 5, 2012 injury. He
identified a new injury at Eder's C5-C6 vertebrae, adjacent to his prior fusion at C6-7. He
characterized the injury as a herniated nucleus pulposus. He also determined there was a
causal relationship between Eder's work at Hendrick and the injury.

Dr. Bailey first attempted to treat Eder's injury through conservative means,
including physical therapy, medication management, and epidural steroid injections.
After Eder failed to improve using these methods, Dr. Bailey recommended surgery. Dr.
Bailey performed neck surgery on Eder on July 26, 2012. As part of the surgery, he
removed the hardware from the previous fusion, re-fused the C6-C7 vertebrae, and fused
the C5-C6 vertebrae. He characterized the surgery as a two-level fusion.

Dr. Bailey released Eder to work with some restrictions on September 30, 2012. In
January, 2013, Dr. Bailey rated Eder with a 15% permanent partial whole body
impairment as a result of the March 5, 2012, injury. On January 6, 2013, Dr. Bailey
placed Eder on maximum medical improvement and released him to work without any
restrictions.

Eder had begun to look for new employment shortly after his second surgery.
Because he had not found another position prior to September 30, 2011, he returned to
work at Hendrick. He also received another raise upon his return. However, he continued
to have chronic neck pain and headaches. He sought treatment for pain management
during this period. Eventually, he resigned from Hendrick on February 15, 2013, due to
his neck pain.

5

After his resignation, Eder took a new job as a claims adjuster. He took the job
because it did not require the heavy lifting and awkward positions of his former work as
an automotive technician. He continued to have chronic neck pain, which caused him to
miss time at his new job. Eventually, Eder resigned from his position in June 2014.

Eder met with Michael Dreiling, a vocational consultant. Dreiling made a list of
job duties and what each job duty physically entailed. The list contained a total of 16 job
tasks.

Dr. Preston Brent Koprivica, a board certified occupational medicine physician,
saw Eder on April 1, 2013 at Eder's attorney's request for an independent medical
examination (IME). Dr. Koprivica obtained a medical history from Eder, examined him,
and reviewed a number of medical records and diagnostic studies. Based on this
information, Dr. Koprivica concluded Eder's June 2011 neck injury was the result of
cumulative injury due to his work as an auto technician, and his work was the prevailing
factor in the development of his injury. Due to this injury, Eder was temporarily and
totally disabled between June 2011 and December 2011. Following his first surgery, Eder
had a 15% whole person impairment. Dr. Koprivica also concluded that the treatment
Eder received for his injury between June 2011 and December 2011 was reasonable and
necessary.

Dr. Koprivica testified that Eder had not informed him that he had been doing
automotive work at home over the weekend prior to developing his June 2011 injury. He
stated that, assuming that were true, it would suggest a temporal relationship between
what he did at home and his injury.

Dr. Koprivica similarly concluded Eder's specific accident was the prevailing
factor in the development of his neck injury on March 5, 2012. He specifically noted that
the second injury did not result due to an increased risk caused by the first injury. The
6

second injury resulted in a 25% whole person impairment, separate from and in addition
to his previous 15% impairment. In his opinion, Eder should have permanent work
restrictions, and the March 5, 2012, injury was the prevailing reason for the permanent
restrictions. Eder would also need lifelong treatment based on the March 5, 2012, injury.

Dr. Koprivica also reviewed Dreiling's report. The report identified 16 job tasks
performed by Eder in his 5-year work history. Dr. Koprivica testified Eder would not be
able to perform 12 of those tasks for a 75% task loss. He attributed this task loss to both
of Eder's work injuries, but he also testified the March 5, 2012, injury alone would have
resulted in the same task loss.

Dr. Terrence Pratt did a court-ordered IME on Eder on October 29, 2013. Dr. Pratt
took a history from Eder and reviewed prior medical records. He noted that Eder did not
have any reported cervical neck pain prior to June 2011. Eder reported to Dr. Pratt that he
had been "doing repetitive activities as a technician, resulting in a slow onset of
symptoms over a weekend working with truck frames without a specific event." Dr. Pratt
did not recall Eder telling him he did automotive repair work at home, but he did review
Dr. Tenny's medical records stating Eder had worked at home the weekend before the
onset of his symptoms. He did agree that there would seem to be a temporal relationship
between what Eder was doing over the weekend and the onset of his symptoms.

In his report, Dr. Pratt concluded that the only known factors contributing to both
of Eder's injuries were work-related activities and preexisting degenerative changes in his
spine. Dr. Pratt determined that Eder had preexisting degenerative changes to his cervical
spine based on an MRI of Eder's cervical spine performed on July 14, 2011. Dr. Pratt
noted "[t]here was potential for aggravation of the underlying degenerative changes with
his activities."

7

Dr. Pratt testified that the activities Eder performed at Hendrick would have been a
more significant factor in his injury than any work he did at home. It would also be
possible with repetitive-type injuries for symptoms to emerge several days after a
triggering event. Dr. Pratt testified that after the June 2011 injury Eder had a 15%
permanent whole body impairment. He also testified Eder's work at Hendrick was the
prevailing factor in his injury, even considering Eder did some automotive work at home.

Dr. Pratt testified that as a result of the March 5, 2012, injury Eder sustained a
10% permanent whole body impairment. He testified the specific accident was the
prevailing factor leading to Eder's injury and impairment. Dr. Pratt recommended
avoidance of awkward positions and avoidance of forceful activities involving torqueing.
These were the only permanent restrictions he placed on Eder. He also stated that Eder
would most likely need continuing medical treatment.

Dr. Pratt testified that considering the two injuries in which Eder's work was the
prevailing factor together, Eder could not perform 9 out of the 16 job tasks identified in
Dreiling's report. He also testified that with the restrictions he put in place for the March
2012 injury, Eder could still perform all 16 tasks. He stated he would likely have given
Eder restrictions after the June 2011 injury but was not asked to do so. He stated he
possibly would have limited Eder to tasks with a light or medium physical demand. He
also testified that after Dr. O'Boynick released Eder to work, Eder was capable of
performing all 16 tasks through March 5, 2012.

Applying the definition of accident provided in K.S.A. 2012 Supp. 44-508(d), the
administrative law judge (ALJ) found that Eder had failed to establish his injury was the
result of an accident and was thus not compensable. Accordingly, the ALJ denied all
other claims related to Eder's June 2011 injury.

8

The ALJ found that Eder's March 2012 injury was compensable. He found Eder
had a 15% preexisting impairment and suffered an additional 15% impairment due to his
March 2012 injury. He found Eder suffered a 29% wage loss with a 0% task loss and
awarded Eder 14.5% permanent partial disability. The ALJ found Eder was entitled to an
award for all medical expenses but that all medical expenses had already been paid. He
also found Eder could apply to have his future medical expenses covered.

On review, the Board found that Eder's June 2011 injury was not the result of an
accident but rather was a repetitive trauma injury. It also found the injury was
compensable but Eder's work exposed him to an increased risk and that risk was the
prevailing factor leading to his injury. It found that Hendrick had actual knowledge of
Eder's June 2011 injury and thus had proper notice. The Board found Eder had a 15%
whole person impairment due to his June 2011 injury and was entitled to temporary total
disability from June 22, 2011 to December 15, 2011. It awarded Eder future medical
expenses and unauthorized medical expenses up to $500.

As for Eder's March 2012 injury, the Board found Eder had a 16.7% whole body
functional impairment and a current work disability of 33.5%. It found that Eder's wage
loss varied during the period of time he worked at Zurich but that his current wage loss
was 11%. It also found that this finding of wage loss was not precluded by Eder's
voluntary resignation.

The Board also found that based on Dr. Pratt's testimony, Eder had a 56% task
loss. Combining the 11% wage loss with the 56% task loss, the Board arrived at a 33.5%
work disability. The Board affirmed the ALJ's finding that Eder was entitled to future
medical treatment and unauthorized medical treatment not to exceed $500. Hendrick filed
a petition for judicial review.

9

Hendrick first argues that Eder's June 2011 injury was not compensable, and the
Board erred in finding that it was. He argues that Eder's injury did not arise out of his
employment at Hendrick because his job did not expose him to an increased risk. Rather,
the risks Eder faced as an automotive technician were a personal risk and a normal
activity of Eder's day-to-day life because he did auto repair work at home. Furthermore,
his job at Hendrick was likely not the prevailing factor causing his injury because
evidence at the hearing suggested he had been doing repair work at home the weekend
before his injuries occurred.

When determining fact questions, an appellate court's responsibility is to review
the record as a whole to determine whether substantial evidence supports the Board's
factual determinations. See K.S.A. 2015 Supp. 77-621(c)(7). "This analysis requires the
court to (1) review evidence both supporting and contradicting the agency's findings; (2)
examine the presiding officer's credibility determination, if any; and (3) review the
agency's explanation as to why the evidence supports its findings." Williams v. Petromark
Drilling, LLC, 299 Kan. 792, 795, 326 P.3d 1057 (2014) (citing K.S.A. 77-621[d]). The
court does not reweigh the evidence or engage in de novo review. K.S.A. 2015 Supp. 77-
621(d); 299 Kan. at 795. "Substantial evidence" refers to evidence possessing something
of substance and relevant consequence to induce the conclusion that the award was
proper, furnishing a basis of fact from which the issue raised could be easily resolved.
Rogers v. ALT-A&M JV, 52 Kan. App. 2d 213, 216, 364 P.3d 1206 (2015).

"The statute in effect at the time of the claimant's injury governs the rights and
obligations of the parties." Rogers, 52 Kan. App. 2d at 216. Eder's injury occurred in June
2011. The 2011 amendments to the Workers Compensation Act (Act) became effective in
May 2011, so they govern this case. See L. 2011, ch. 55, sec. 29.

According to K.S.A. 2012 Supp. 44-508(e), "'[r]epetitive trauma' refers to cases
where an injury occurs as a result of repetitive use, cumulative traumas or microtraumas."
10

An injury is only compensable if it arises out of and in the course of employment. K.S.A.
2012 Supp. 44-508(f)(2). Pursuant to K.S.A. 2012 Supp. 44-508(f)(2)(A), a repetitive
trauma injury arises out of employment only if:

"(i) The employment exposed the worker to an increased risk or hazard which the worker
would not have been exposed in normal non-employment life;
"(ii) the increased risk or hazard to which the employment exposed the worker is the
prevailing factor in causing the repetitive trauma; and
"(iii) the repetitive trauma is the prevailing factor in causing both the medical condition
and resulting disability or impairment."

Prevailing factor "means the primary factor, in relation to any other factor. In determining
what constitutes the 'prevailing factor' in a given case, the administrative law judge shall
consider all relevant evidence submitted by the parties." K.S.A. 2012 Supp. 44-508(g).

Substantial evidence supports the Board's finding that Eder's June 2011 injury was
compensable. In order to be compensable, Eder's employment must first have exposed
him to an increased risk or hazard to which he would not have been exposed in his
normal nonemployment life. See K.S.A. 2012 Supp. 44-508(f)(2)(A)(i). The Board found
that Eder's work at Hendrick exposed him to an increased risk because he worked with
heavier weights for longer periods of time than he did when doing automotive work at
home. Eder's testimony supports this finding. Eder testified he lifted heavier weights at
Hendrick than he did while working at home. He testified that he worked 40 to 60 hours
per week at Hendrick while performing only 10 to 15 hours a week at home. He also
testified that he generally only worked for 60 to 90 minutes at a time at home.
Additionally, Eder's testimony regarding his work duties was uncontested. See Casco v.
Armour Swift-Eckrich, 283 Kan. 508, 515, 154 P.3d 494 (2007) ("[A] factfinder cannot
disregard undisputed evidence that is not improbable, unreasonable, or untrustworthy.
Such evidence must be regarded as conclusive.").

11

Hendrick argues that Eder's injury was not compensable because Eder exposed
himself to the risk of automotive work at home and the hazards of his work were not
unique. K.S.A. 2012 Supp. 44-508(f)(2)(A), however, does not require that an employee's
job expose an employee to a unique risk or hazard that he or she would not have been
exposed to in his or her non-employment life. Rather, the statute requires an increased
risk or hazard.

K.S.A. 2012 Supp. 44-508(g)(A) is a new amendment to the Act, added in 2011.
L. 2011, ch. 55, sec. 5. Thus, there do not appear to be any cases applying or interpreting
this new subsection. Previously, however, Kansas courts recognized a general increased
risk rule in order to establish a causal connection between an employee's injury and his or
her employment. This rule held that "[i]f employment exposes the worker to an increased
risk of injury of the type actually sustained, the employer is liable for compensation."
Angleton v. Starkan, Inc., 250 Kan. 711, 718, 828 P.2d 933 (1992). Applying this rule,
Kansas courts have found a wide variety of work activities represented an increased risk.
See, e.g., Anderson v. Scarlett Auto Interiors, 31 Kan. App. 2d 5, 11, 61 P.3d 81 (2002)
(finding constantly getting in and out of car represented increased risk); Baggett v. B&G
Const., 21 Kan. App. 2d 347, 349-50, 900 P.2d 857 (1995) (finding falling down hole in
floor at work after being pushed by coworker was increased risk); Bennett v. Wichita
Fence Co., 16 Kan. App. 2d 458, 460, 824 P.2d 1001 (1992) (finding driving in car was
increased risk).

Admittedly, many of these cases addressed markedly different factual scenarios,
specifically accidental injuries that arose out of the combination of a personal risk or
preexisting condition and a work condition. Moreover, the 2011 amendments to the Act
were so extensive, that these cases may not be directly applicable in interpreting this
particular provision. See Moore v. Venture Corp., 51 Kan. App. 2d 132, 138, 343 P.3d
114 (2015) (discussing whether prior caselaw was still applicable under the 2011
amendments to the Act). Looking at these cases, however, there is clearly no precedent
12

for Hendrick's argument that an increased employment risk or hazard be something
entirely different from any risk the employee faces in his or her nonemployment life.

Hendrick also argues that "[r]isks to which . . . the worker exposes himself outside
of his employment . . . are part of that worker's 'normal activities of day-to-day living.'"
Hendrick provides no support for this proposition. Moreover, it is incorrect. Our Supreme
Court has provided the following analysis for determining if an activity is a "normal
activity of day-to-day living" or a work-related activity:

"Although no bright-line test for what constitutes a work-injury is possible, the
proper approach is to focus on whether the injury occurred as a consequence of the broad
spectrum of life's ongoing daily activities, such as chewing or breathing or walking in
ways that were not peculiar to the job, or as a consequence of an event or continuing
events specific to the requirements of performing one's job. . . .
"Even though no bright-line test for whether an injury arises out of employment
is possible, the focus of inquiry should be on . . . whether the activity that results in injury
is connected to, or is inherent in, the performance of the job. The statutory scheme does
not reduce the analysis to an isolated movement—bending, twisting, lifting, walking, or
other body motions—but looks to the overall context of what the worker was doing—
welding, reaching for tools, getting in or out of a vehicle, or engaging in other work-
related activities." Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 595-96, 257
P.3d 255 (2011).

See also Moore v. Venture Corp., 51 Kan. App. 2d 132, 140-43, 343 P.3d 114
(2015)(finding Bryant applicable to 2011 amendments to Act).

If an employee performs an action or activity outside of work, an injury resulting from
the same activity may still be compensable when the employee does the same activity in
connection with work.

13

Next, in order for Eder's injury to be compensable, the increased risk from Eder's
employment must have been the prevailing factor in his injury. See K.S.A. 2012 Supp.
44-508(f)(2)(A)(ii). As the Board noted, both Dr. Koprivica and Dr. Pratt testified that
Eder's work as an automotive technician was the prevailing factor in his injury.
Admittedly, both doctors testified that Eder had not told them about doing auto repair
work at home. Nevertheless, Dr. Pratt still concluded that Eder's work at Hendrick was
the prevailing factor causing his injury, even after considering that Eder did auto repair
work at home. Furthermore, as the Board notes, there was no contrary prevailing factor
opinion presented at trial. See Casco, 283 Kan. at 515 (factfinder must regard undisputed
evidence which is not improbable, unreasonable, or untrustworthy as conclusive).

Hendrick argues that Eder's injury was due to a personal risk or as a result of
Eder's normal day-to-day activities. Injuries which arise out of risks personal to an
employee or an employee's normal day-to-day activities are not compensable. See K.S.A.
2012 Supp. 44-508(f)(3)(A). Some evidence was presented at the hearing demonstrating
that Eder's injuries may have arisen out of his home auto repair work. Eder did tell Dr.
Tenny that his neck pain began after a weekend working on trucks. Both Dr. Koprivica
and Dr. Pratt agreed that the temporal relationship between any work Eder may have
done over the weekend and his injury suggested the work was a factor in the development
of his neck pain. Eder himself, however, denied working at home over the weekend.
Furthermore, no physician testified that Eder's home auto repair work was the primary
factor causing his repetitive trauma. While there was some conflicting evidence at the
hearing, it was not enough to undermine the substantial nature of the evidence which
supports the Board's conclusion that Eder's repetitive trauma arose out of his employment
and was thus compensable. See Messner v. Continental Plastic Containers, 48 Kan. App.
2d 731, 750, 289 P.3d 371 (2013) (appellate court only reviews conflicting evidence to
determine whether it has so undermined evidence supporting Board's decision as to call
into question its substantial nature). We affirm the Board's finding that Eder's June 2011
injury was compensable.
14


Next, Hendrick argues Eder failed to comply with the statutory requirements for
proper notice regarding his June 2011 injury. Hendrick contends the Act required Eder to
give Hendrick notice of his injury within 30 days of its occurrence. Furthermore, that
notice was statutorily required to contain certain information. Because Eder did not notify
Hendrick until approximately 9 months later that his injury was work related, it asserts
Eder may not recover any award.

Whether an employee has provided timely notice of any injury is a question of
fact. See Kotnour v. City of Overland Park, 43 Kan. App. 2d 833, 838, 233 P.3d 299
(2010). K.S.A. 2012 Supp. 44-520 provides the statutory requirements for proper notice
under the Act. Under K.S.A. 2012 Supp. 44-520(a)(1):

"Proceedings for compensation under the workers compensation act shall not be
maintainable unless notice of injury by accident or repetitive trauma is given to the
employer by the earliest of the following dates:
"(A) 30 calendar days from the date of accident or the date of injury by repetitive
trauma;
"(B) if the employee is working for the employer against whom benefits are
being sought and such employee seeks medical treatment for any injury by accident or
repetitive trauma, 20 calendar days from the date such medical treatment is sought; or
"(C) if the employee no longer works for the employer against whom benefits are
being sought, 20 actual days after the employee's last day of actual work for the
employer."

Notice to the employer of an employee's injury must include "the time, date, place,
person injured and particulars of such injury." K.S.A. 2012 Supp. 44-520(a)(4). If,
however, the employee demonstrates the employer had actual knowledge of the injury,
the notice requirement is waived. K.S.A. 2012 Supp. 44-520(b).

15

To determine whether an employee gave timely notice of a repetitive injury, courts
generally must first determine when the repetitive injury occurred. Under K.S.A. 2012
Supp. 44-508(e), the date of injury by repetitive trauma is the earliest of:

"(1) The date the employee, while employed for the employer against whom benefits are
sought, is taken off work by a physician due to the diagnosed repetitive trauma;
"(2) the date the employee, while employed for the employer against whom benefits are
sought, is placed on modified or restricted duty by a physician due to the diagnosed
repetitive trauma;
"(3) the date the employee, while employed for the employer against whom benefits are
sought, is advised by a physician that the condition is work-related; or
"(4) the last day worked, if the employee no longer works for the employer against whom
benefits are sought."

The Board in this case did not make a finding as to when Eder's repetitive trauma injury
occurred, and appellate courts generally do not make factual findings. See Douglas v. Ad
Astra Information Systems, L.L.C., 296 Kan. 552, 562, 293 P.3d 723 (2013) ("Appellate
courts do not make factual findings but instead review those made by district courts or
administrative agencies."). Without this finding, we cannot determine if Eder's notice
complied with K.S.A. 2012 Supp. 44-520(a)(1).

Nevertheless, the Board did find that Hendrick had proper notice of Eder's June
2011 injury because it had actual knowledge of the injury. As noted above, the notice
requirements of K.S.A. 2012 Supp. 44-520(a)(1) are waived if an employer has actual
knowledge of an injury. K.S.A. 2012 Supp. 44-520(b). The Board pointed out that Eder
called his supervisor Kelford and told him about his neck pain. He reported to Kelford
that he was not sure what caused the pain, but he did not know what it could be other than
his work for Hendrick. Kelford had Eder fill out an accident report, and Eder then went to
Hendrick's workers compensation clinic. The doctor at the clinic determined Eder's injury
was not work related. The Board reasoned Eder would not have filled out an accident
16

report and gone to a workers compensation clinic if no one suspected his injuries might
be work-related. Furthermore, the doctor at the clinic would not have determined the
injury was not work-related if no one was questioning the cause.

The Board has previously found that the filing of an accident report demonstrates
actual knowledge of an injury. For example, in Fornes v. Junction City Wire Harness,
No. 1,072,953, 2015 WL 3642466 (Kan. Work. Comp. App. Bd. 2015), the claimant
alleged a repetitive trauma injury to her shoulder, but the respondent denied receiving
proper notice of the injury. At the hearing, claimant's supervisor testified she completed
an accident report 7 days after the injury, though the actual report was not in evidence.
The Board found the respondent had actual knowledge of the injury because, "[i]f the
respondent had no knowledge of an injury, as alleged, an accident report would not have
been completed." 2015 WL 3642466, at *6. Because the respondent had actual
knowledge of the claimant's injury, the Board found the notice requirements were
waived. See also Wendel v. Morton Buildings, Inc., No. 1,071,376, 2015 WL 3642463, at
*4 (Kan. Work. Comp. App. Bd. 2015).

If an accident report may serve to demonstrate actual knowledge of an injury, then
substantial evidence supports the Board's finding that Hendrick had actual knowledge.
Eder testified that he told Kelford about his neck pain and that he did not know what
could have caused it other than work. He also testified that he filled out an accident report
and saw a doctor at Corporate Care. Hendrick did not contest any of these facts at the
hearing nor does it contest these facts in its brief.

Furthermore, the facts of this case suggest Eder's actions served the purpose of the
notice requirement. The generally recognized purpose of the notice requirement is to give
the employer an opportunity to investigate the accident or injury and provide medical
treatment. Pike v. Gas Service Co., 223 Kan. 408, 409, 573 P.2d 1055 (1978). For
example, in Battah v. Hi-Lo Industries, Inc., No. 110,972, 2014 WL 7152361 (Kan. App.
17

2014) (unpublished opinion), the court upheld the Board's determination that the claimant
had failed to provide timely notice of injury. In that case, the claimant began
experiencing back pain at work and developed sudden pain in his hips and legs one day
after moving particle board. He took time off work due to the pain and sought private
medical treatment. The record did not indicate, however, that he had ever told his
supervisors the injury might be work related until 8 weeks later when he asked about
possible workers compensation. The Battah court noted that while respondent may have
known the claimant was injured, the claimant's failure to notify respondent of a possible
work connection prevented respondent from investigating the injury for 8 weeks. 2014
WL 7152361, at *5.

Unlike in Battah, the purpose of the notice statute was likely served in Eder's case.
Eder reported the nature of his injury (neck pain) to his supervisor as well as the
possibility it might be work related. Eder also filled out an accident report regarding his
injury. This provided Hendrick with an opportunity to investigate the injury should Eder
later make a workers compensation claim. Furthermore, Hendrick was clearly able to
provide medical treatment, and it obtained the opinion of a medical professional as to
whether Eder's injury was actually work-related.

Because Hendrick had actual knowledge of Eder's injury, the notice requirements
of K.S.A. 2012 Supp. 44-520(a)(1) are waived. We affirm the Board's findings that
Hendrick had proper notice of Eder's injury.

Hendrick further argues the Board erred in awarding temporary total disability to
Eder because it was duplicative of other benefits Eder had received. It asserts Eder took
paid time off and vacation and received short-term and long-term disability after his June
2011 injury. Hendrick contends awarding Eder temporary total disability benefits for this
period would not serve the purpose of the Act and would grant Eder a windfall.

18

Resolution of this issue requires interpretation of the statutes regarding temporary
total disability. We have unlimited review of issues concerning the interpretation or
construction of a statute, owing no deference to the Board's interpretation or construction.
Fernandez v. McDonald's, 296 Kan. 472, 475, 292 P.3d 311 (2013); Le v. Armour
Eckrich Meats, 52 Kan. App. 2d 189, 193, 364 P.3d 571 (2014).

The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. Hoesli v. Triplett, Inc., 303 Kan. 358,
362, 361 P.3d 504 (2015). An appellate court must first attempt to ascertain legislative
intent through the statutory language enacted. Ullery v. Othick, 304 Kan. 405, 409, 372
P.3d 1135 (2016). When a statute is plain and unambiguous, an appellate court should not
speculate about the legislative intent behind that clear language, and it should refrain
from reading something into the statute that is not readily found in its words. Hoesli, 303
Kan. at 362.

Under K.S.A. 2012 Supp. 44-510c(b)(2)(A), an employee should receive
temporary total disability when a compensable injury has rendered him or her
"completely and temporarily incapable of engaging in any type of substantial and gainful
employment." An employee should also receive temporary total disability when an
authorized treating physician imposes restrictions as a result of a compensable injury that
the employer cannot accommodate. K.S.A. 2012 Supp. 44-510c(b)(2)(B). Pursuant to
K.S.A. 2012 Supp. 44-510c(b)(4), however, "[a]n employee shall not be entitled to
receive total disability benefits for those weeks which the employee is also receiving
unemployment benefits."

In Pierson v. City of Topeka, No. 113,247, 2016 WL 687726 (Kan. App. 2016)
(unpublished opinion), the Board awarded temporary total disability to a claimant who
was unable to work for several months due to a work-related injury. On appeal, the
respondent argued the claimant was not statutorily entitled to temporary total disability
19

because he had used his sick leave and vacation time and received benefits under his
short-term disability insurance during the period in which he could not work. The Pierson
court disagreed with respondent and affirmed the award. 2016 WL 687726, at *5.

In reaching its conclusion, the Pierson court noted that K.S.A. 44-510c(b)(4)
specifically prohibits employees from receiving temporary total disability while also
receiving unemployment benefits. The court continued:

"In crafting that subsection, the legislature provided a specific offset against temporary
total disability benefits. But the legislature chose not to include offsets for other sources
of payments that effectively substitute for wages. We think that provides a fairly
unmistakable refutation of the City's argument. A common canon recognizes that the
inclusion of one thing in a statute may be taken as indicating legislative intent to exclude
like things not mentioned. In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228
(1998); Harwood v. Feyh, No. 108,603, 2013 WL 5187637, at *4 (Kan. App. 2013)
(unpublished opinion) (recognizing and applying canon to different section of Workers
Compensation Act), rev. denied 299 Kan. 1269 (2014). The canon applies here." 2016
WL 687726, at *5.

Hendrick's argument similarly fails. Hendrick argues providing temporary total
disability to Eder fails to serve the purpose of the Act and provides a windfall for Eder.
Under the laws of statutory construction, however, there is no need to look past the
language of a statute when the language is plain and unambiguous. Here, the legislature
has clearly included an offset for unemployment benefits but has not included offsets for
other payments such as paid vacation or short-term disability. Furthermore, as noted in
Pierson, the inclusion of unemployment benefits implies that the legislature has excluded
other similar things not mentioned. See also Cole v. Mayans, 276 Kan. 866, 878, 80 P.3d
384 (2003) ("expressio unius est exclusio alterius, i.e., the inclusion of one thing implies
the exclusion of another"). Because there is no statutory basis to deny Eder temporary
total disability, the Board did not err, and we affirm the award.
20


Hendrick also argues that Eder may not recover permanent partial general
disability benefits because he voluntarily resigned from his position at Hendrick. It
contends it already demonstrated it was able and willing to accommodate any restrictions
a medical professional might impose on Eder's work. Eder, however, resigned his
position based solely on his subjective complaint that he was in too much pain to
continue working at Hendrick. Hendrick asserts without a medical restriction, Eder's
resignation was voluntary, and any resultant wage loss may not be used in determining
permanent partial general disability.

The Board's factual findings are reviewed for substantial evidence. K.S.A 2015
Supp. 77-621(c)(7); Williams, 299 Kan. at 795. To the extent this issue requires statutory
interpretation, this court applies a de novo standard of review. Fernandez, 296 Kan. at
475; Le v. Armour Eckrich Meats, 52 Kan. App. 2d 189, 193, 364 P.3d 571 (2014).

Calculating an employee's permanent partial general disability requires the
calculation of any wage loss on the part of the employee. See K.S.A. 2012 Supp. 44-
510e(a)(2)(B). Wage loss is "the difference between the average weekly wage the
employee was earning at the time of the injury and the average weekly wage the
employee is capable of earning after the injury." K.S.A 2012 Supp. 44-510e(a)(2)(E).
Under K.S.A. 44-510(a)(2)(E)(i), "[w]age loss caused by voluntary resignation or
termination for cause shall in no way be constructed to be caused by the injury."

Even though Eder left his job at Hendrick for a position at Zurich, the Board found
that Eder did not "voluntarily resign." The Board noted that Eder was unable to
physically perform his job at Hendrick, and even though he was not required to ask for a
job modification, he did discuss alternative positions with Hendrick. The Board also did
not find Eder's lack of restriction following his second injury to be realistic and noted that
of the three testifying physicians, only Dr. Bailey concluded that Eder had no continuing
21

work restrictions. It further noted that Eder testified his pain forced him to seek other,
more suitable employment, and the Board found this could not be characterized as
"voluntary."

Substantial evidence supported the Board's finding that Eder did not voluntarily
resign. Eder testified that he was released to work after his second surgery with some
restrictions on September 20, 2012. Despite work accommodations, he continued to have
chronic neck pain and headaches during this period, and he sought treatment for pain
management. Dr. Bailey released Eder to work without restrictions on January 2, 2012,
but Eder testified he continued to have neck pain and he eventually had to resign due to
the pain. Moreover, Eder continued to have significant neck pain even once he took a
sedentary position at Zurich.

Additionally, Dr. Bailey released Eder to work without restrictions on January 6,
2013. As the Board notes, however, two out of the three physicians who testified at trial
concluded Eder's second injury necessitated continuing work restrictions. According to
Dr. Koprivica, Eder needed permanent restrictions after his second surgery. Dr. Pratt also
opined Eder should permanently avoid awkward positions or forceful activities like
torqueing. Furthermore, Eder's testimony suggests he would have continued to have
significant pain even if an accommodated position were available at Hendrick.

Hendrick argues that Eder's subjective determination that he could not continue
working at Hendrick due to his neck pain is insufficient to demonstrate his resignation
was not voluntary. A recent unpublished Kansas Court of Appeals case sheds some light
on this issue. In Locke v. Barnds Bros., Inc., No. 112,029, 2015 WL 2137207 (Kan. App.
2015) (unpublished opinion), the claimant challenged the Board's majority opinion that
he had failed to establish a qualifying wage loss. The claimant left his job at respondent
due to chronic pain, despite the fact that respondent offered him an accommodated
22

position. In reaching its decision that the claimant did not have a qualifying wage loss,
the Board did not appear to have considered his chronic pain.

On review, the Locke court found the Board had erred in determining the
claimant's task loss. 2015 WL 2137207, at *5. In determining a wage loss under K.S.A.
2012 Supp. 44-510e(a)(2)(E), the Board must consider all factors, including an
employee's physical capabilities. As the court noted, "[a] worker's inability to perform
particular tasks or to remain on duty for a set number of hours because of pain caused by
a compensable injury is a factor bearing on physical capability." 2015 WL 2137207, at
*5. The court found the Board's task loss determination was erroneous because it had not
considered the claimant's chronic pain in reaching its conclusion. 2015 WL 2137207, at
*5.

The Locke opinion dealt with a different issue than the one before us. Locke does
stand for the proposition, however, that chronic pain is relevant to an employee's physical
capability to perform a job. If an employee cannot perform a job due to chronic pain, then
that employee may be physically incapable of performing the job. If an employee quits a
job because he or she is physically incapable of performing that job, then his or her
resignation is arguably not voluntary. See Black's Law Dictionary 1806 (10th ed. 2014)
(defining "voluntary" as "[d]one by design or intention"); see also Joshua W. Langkiet v.
Layne Christensen Co., No. 1,059,778, 2016 WL 3669847 (Kan. Work. Comp. Bd. 2016)
(finding claimant did not voluntarily resign by leaving work due to significant back pain);
Andrea D. Culwell v. Evans Bierly Hutchison & Associates, No. 1,063,390, 2014 WL
4402467 (Kan. Work. Comp. App. Bd. 2014) (finding claimant voluntarily resigned
because respondent offered her a suitable accommodated position).

Hendrick also argues that "[a]bsent a medically substantiated restriction, the
statute is unequivocal that 'wage loss caused by voluntary resignation . . . shall in no way
be construed to be caused by the injury.'" The plain language of K.S.A. 2012 Supp. 44-
23

510e(a)(2)(E)(i) does not require "medically substantiated restrictions" before a finding
that an employee's resignation was not voluntary. A later subsection, K.S.A. 2012 Supp.
44-510e(a)(2)(E)(iii), regarding a rebuttable presumption of no wage loss mentions
medical restrictions. Neither the ALJ nor the Board applied this subsection. Hendrick
does not mention this subsection in his argument nor does it appear to be factually
applicable in this case. See also Locke, 2015 WL 2137207, at *6 (finding subsection
inapplicable in case where no authorized treating physician had imposed work
restrictions).

Hendrick next argues there was not sufficient evidence to support the Board's
finding that Eder suffered a 56% task loss due solely to his March 2012 injury. It
contends that while the Board may adjust medical testimony, there must still be
substantial evidence supporting it. Hendrick asserts there was no substantial evidence to
support the Board's adjustment of Dr. Pratt's testimony to establish a 56% task loss.

K.S.A. 2012 Supp. 44-510e(a)(2)(D) defines task loss as "the percentage to which
the employee, in the opinion of a licensed physician, has lost the ability to perform the
work tasks that the employee performed in any substantial gainful employment during the
five-year period preceding the injury." In determining an employee's task loss,

"[t]he permanent restrictions imposed by a licensed physician as a result of the work
injury shall be used to determine those work tasks which the employee has lost the ability
to perform. If the employee has preexisting permanent restrictions, any work tasks which
the employee would have been deemed to have lost the ability to perform, had a task loss
analysis been completed prior to the injury at issue, shall be excluded for the purposes of
calculating the task loss which is directly attributable to the current injury." K.S.A. 2012
Supp. 44-510e(a)(2)(D)

In determining task loss, the Board, as the factfinder, "has the right and the
obligation to weigh the evidence and determine the credibility of witnesses, including the
24

physicians who testified, and utilize that as a factor in making its decisions." Tovar v.
IBP, Inc., 15 Kan. App. 2d 782, 785, 817 P.2d 212 (1991)s. Because the Board must
often determine task loss based on conflicting evidence, it may "decide which testimony
is more accurate and/or credible, and . . . adjust the medical testimony along with the
testimony of the claimant and any other testimony which may be relevant to the question
of disability." 15 Kan. App. 2d at 786. The Board's ultimate task loss opinion, however,
must still be supported by substantial evidence. See 15 Kan. App. 2d at 786 (finding
substantial evidence supported adjusted medical testimony).

In Tovar, the district court made a finding as to the claimant's impairment and
disability that differed from the testimony of all four witnesses at the hearing. Two
physicians testified the claimant had a 2 percent impairment in both of his hands. A third
physician testified the claimant had a 15% impairment in both of his hands. The claimant
himself also testified regarding what he believed his disabilities to be. The district court
concluded the claimant had a 9 percent impairment in both hands. On appeal, the Tovar
court affirmed the district court's finding because it was supported by substantial
evidence. 15 Kan. App. 2d at 785-86.

Kansas courts have upheld Board decisions disregarding uncontested medical
testimony due to factual circumstances that undermined its validity. See Miller v.
Williams Mach. Tool Co., No. 97,803, 2008 WL 762518, at *6-7 (Kan. App. 2008)
(unpublished opinion). Kansas courts have also upheld decisions which have essentially
averaged medical testimony regarding a claimant's impairment. See Tovar, 15 Kan. App.
2d at 785-86. There do not appear to be any cases in which Kansas courts have addressed
the Board's factual finding adjusting the medical testimony of a single witness based only
on that same witness' own testimony.

In this case, the Board adjusted the medical testimony presented at the hearing
without the support of substantial evidence. The Board found Dr. Koprivica's testimony
25

regarding Eder's task loss to be noncredible and disregarded it. The Board then noted it
found Dr. Pratt's testimony was also inconsistent. Dr. Pratt testified Eder had a 56% task
loss as a result of both of his injuries but 0% task loss as a result of solely his March 2012
injury. The Board noted Dr. Pratt also indicated he would have imposed certain lifting as
well as pushing and pulling restrictions after his first injury and fusion, and he would
have imposed similar restrictions after his second fusion. The Board concluded
restrictions are as appropriate after a two-level fusion as a one-level fusion, thus Dr.
Pratt's 56% task loss opinion more accurately reflects Eder's task loss after his two-level
fusion.

While the Board may adjust medical testimony to best assess a disability, the
adjustment must still be supported by substantial evidence. In this case, substantial
evidence does not support the Board's determination. Dr. Koprivica was the only
physician who testified Eder had any task loss due solely to his second injury, but the
Board disregarded his testimony due to its credibility determination. Dr. Pratt concluded
Eder suffered a 56% task loss due to both of his injuries combined, but he specifically
opined Eder had 0% task loss due solely to his second injury and two-level fusion. The
Board chose to assign his 56% task loss opinion solely to his second injury and fusion.
The only evidence the Board cited for adjusting Dr. Pratt's testimony in this manner was
that Dr. Pratt testified he likely would have put Eder on restrictions requiring light and
medium work after his first injury, and he also would have given Eder work restrictions
after his second injury and fusion. The Board does not cite to any other evidence
supporting its determination that Eder had a 56% task loss due solely to his March 2012
injury.

Furthermore, even if the Board did not err in initially adjusting Dr. Pratt's
testimony in this way, the Board should have excluded any preexisting permanent
restrictions from the 56% task loss. See K.S.A. 2012 Supp. 44-510e(a)(2)(D). In its
reasoning on its task loss finding, the Board noted Dr. Pratt would have given Eder
26

restrictions after his first injury. The Board, however, assigned the entire 56% task loss to
Eder's March 2012 injury without excluding these prior restrictions. Since the Board
noted Eder had preexisting restrictions, it should have excluded those restrictions from
the task loss for Eder's second injury. Based on these errors in determining Eder's task
loss, we remand this issue to the Board for reconsideration.

Finally, Hendrick argues the Board erred in not reducing Eder's permanent partial
disability by his preexisting disability. K.S.A. 2012 Supp. 44-501(e) provides: "An
award of compensation for permanent partial impairment, work disability, or permanent
total disability shall be reduced by the amount of functional impairment determined to be
preexisting." The Board entered an award for Eder for his June 2011 injury claim,
reversing the ALJ's ruling that the injury was not compensable. The Board also found
Eder sustained a 15% whole person functional impairment due to his 2011 repetitive
trauma injury. In calculating the award of compensation due to the March 2012 injury,
the Board did not reduce Eder's award by the amount of his preexisting functional
impairment due to his June 2011 injury. The Board noted neither party had argued the
award should be reduced. Citing to Goss v. Century Mfg., Inc., No. 108,367, 2013 WL
3867840 (Kan. App. 2013) (unpublished opinion), it stated it should not unilaterally raise
the issue without a request from either party.

In a dissent, Board member Carpinelli stated: "While the parties did not raise the
issue of whether respondent gets a credit in the second claim for claimant's preexisting
impairment from the first claim, the majority opinion does not apply the law as written."
He noted the Board should have reduced Eder's award for his March 2012 injury by his
15% preexisting impairment and doing so was simply part of properly calculating his
award.

While Goss does hold that the Board should not raise issues sua sponte, that
holding does not appear to be controlling in this case. In Goss, the ALJ twice granted the
27

respondent an extension of the deadline to submit evidence over the claimant's objection.
The claimant later appealed the ALJ's award to the Board, but he did not assert the ALJ
erred in granting the extensions or in admitting the respondent's evidence during the
extensions. The Board sua sponte addressed the issue of the extensions and found that the
ALJ erred in granting them and excluded any evidence admitted during those periods. On
review, the Goss court found the Board's decision to exclude evidence was arbitrary and
remanded the case for reconsideration. In reaching this conclusion, the court noted "the
Board reached out to grab the matter of the continuances of the deadlines from the record
. . . without a request from [the claimant] that it consider them," and this was a "curious
overreaching" on the part of the Board. 2013 WL 3867840, at *4.

The present case and Goss are factually distinguishable. In Goss, the Board
overreached because it addressed errors made by the ALJ sua sponte. In this case, the
Board is not declining to address an error made on the part of the ALJ because neither
party raised the issue. Rather, the Board is simply declining to apply K.S.A. 2012 Supp.
44-501(e) as written because neither party specifically requested the Board do so.

Additionally, there was no issue Hendrick could have raised. The ALJ determined
Eder's June 2011 injury was noncompensable. When the ALJ calculated Eder's
permanent partial disability, it did not deduct any preexisting impairment because there
was none. Hendrick could not have argued the ALJ erroneously applied K.S.A. 2012
Supp. 44-501(e) because the ALJ had no need to apply the statute.

Because the plain language of K.S.A. 2012 Supp. 44-501(e) requires the Board to
reduce permanent partial disability by the amount of preexisting impairment, the Board
erred in not doing so. There was no need for Hendrick to raise this issue because it is
simply a matter of applying the statute as written. We remand this issue to the Board for
reconsideration.

28

Substantial evidence supported the Board's finding that Eder's June 2011 injury
was compensable. Because Hendrick had actual knowledge of Eder's June 2011 injury,
he is not precluded from claiming compensation for this injury due to lack of notice. The
Board's award of temporary total disability was not duplicative of other benefits Eder
received after June 2011 as the Act only provides for an offset for unemployment
benefits. Eder did not voluntarily resign from his position after his second injury because
he was physically incapable of performing the job due to chronic pain. Therefore, he may
still claim permanent partial general disability. We affirm the Board on the above issues.

Substantial competent evidence did not support the Board's finding regarding task
loss. Additionally, the Board should have reduced Eder's permanent partial disability by
the amount of his preexisting disability. These issues are remanded for reconsideration.

Affirmed in part and remanded.