Preexisting head injury doesn't prevent worker's PTD benefits
Case name: Perkins v. Prestige Cabinets, No. 107,233 (Kan. Ct. App. 02/15/13, unpublished).
In an unpublished decision, the Kansas Court of Appeals held that a worker was entitled to permanent total disability benefits for her bilateral carpal tunnel syndrome.
What it means:
In Kansas, an employer can rebut a presumption of permanent total disability by showing that the worker is capable of engaging in any type of substantial, gainful employment.
Summary: A worker for a cabinet manufacturer felt pain from her shoulders to her hands while working on the paint line. Testing revealed severe bilateral carpal tunnel syndrome. She had surgery on both arms. The worker had a preexisting brain injury resulting from a car accident. A psychiatrist assigned her a 45 percent psychological impairment rating and found her brain impairment, in combination with her orthopedic injuries, made her permanently and totally disabled. A vocational expert concluded that the worker's arm injuries eliminated her employment options, rendering her permanently and totally disabled from performing substantial, gainful employment. The worker said that she was unable to find work, and she sought benefits. The Kansas Court of Appeals held that she was entitled to PTD benefits.
The court explained that a rebuttable presumption of permanent total disability is established when a worker lost "both hands" or "both arms." Here, the worker's injuries to her "hand," "arm," and "upper extremity" engaged the presumption. The manufacturer argued that the worker's head injury should have been discounted in the determination of whether it rebutted the presumption of permanent total disability. The court explained that the presumption was not conditioned on a certain level of health apart from the hand injury.
The presumption could be rebutted with evidence that the worker was capable of engaging in any type of substantial and gainful employment. Evidence that she was capable of engaging in employment would prove her actual capability, not a hypothetical capability that might exist under different health circumstances. The worker was able to work with her head injury before her work-related injury at the manufacturer. The court found the manufacturer failed to rebut the presumption.
The court rejected the manufacturer's argument that the worker's award should be reduced for her preexisting head injury, finding no statutory authority to do so under the circumstances that existed prior to an amendment.
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May 28, 2013
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