Zimero v. Tyson Fresh Meats
122905
| Kan. Ct. App. | Jul 16, 2021Background
- Gerline Zimero injured her upper back/neck/shoulders while working at Tyson Fresh Meats in early 2017 and filed a workers' compensation claim.
- Initial treatment by Dr. Pat Do led to a 0% permanent impairment rating under the AMA Guides (Sixth Edition) in Feb. 2018.
- An ALJ ordered an IME; Dr. Vito Carabetta (Oct. 2018) diagnosed regional fibromyositis and rated 5% under the Fourth Edition and 3% under the Sixth Edition (increasing from 2% to 3% after exam findings).
- The ALJ awarded a 3% permanent partial impairment (body as a whole), adopting Dr. Carabetta's Sixth Edition opinion; the Board affirmed on appeal and rejected Zimero's separate claim for carpal tunnel syndrome.
- Zimero sought judicial review, arguing the Board improperly favored the Sixth Edition and ignored the Fourth Edition 5% rating; the court affirmed the Board.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board erred by using the Sixth Edition and disregarding the Fourth Edition 5% rating | Zimero: the Board should have considered Dr. Carabetta's 5% Fourth Edition rating and not treated the Sixth Edition as mandatory without comparing both editions | Tyson/Board: the Sixth Edition is the statutorily required "starting point" for post-2015 injuries; competent medical evidence supported the 3% Sixth Edition rating | Court: Sixth Edition is mandatory starting point; Fourth Edition irrelevant for post-2015 injuries; 3% rating was supported by competent medical evidence and affirmed |
| Whether Zimero preserved an argument challenging the 3% Sixth Edition rating before the Board | Zimero: seeks to raise the statutory/edition issue on judicial review (relying on Johnson) | Tyson: issue was not raised before the Board—Zimero only appealed on the carpal tunnel claim—so it was unpreserved | Court: preservation lacking, but it assumed, without deciding, that Johnson effected change in law and addressed merits; nonetheless affirmed on the merits |
Key Cases Cited
- Johnson v. U.S. Food Service, 312 Kan. 597, 478 P.3d 776 (2021) (Sixth Edition is the statutory starting point for post-2015 injuries; impairment percent must be proved by competent medical evidence)
- Linenberger v. Kansas Dept. of Revenue, 28 Kan. App. 2d 794, 20 P.3d 1290 (2001) (Board limited to reviewing issues presented to the ALJ)
- Williams v. Petromark Drilling, 299 Kan. 792, 326 P.3d 1057 (2014) (appellate review of agency factual findings: substantial evidence standard)
- Mera-Hernandez v. U.S.D. 233, 305 Kan. 1182, 390 P.3d 875 (2017) (de novo review applies when law is applied to undisputed facts)
- Estate of Graber v. Dillon Companies, 309 Kan. 509, 439 P.3d 291 (2019) (no deference on statutory interpretation of the Workers Compensation Act)