Beverly TULL, Appellee,
andBerger Company, Inc., Appellee,
andFireman’s Fund Insurance, Superior National Insurance Company/Risk Enterprise
Management, St. Paul Fire & Marine Insurance Company, Cincinnati Insurance Company,
Appellees,
andCommerce & Industry Insurance Company, Appellant.
Jan. 12, 2007.
Before , P.J., , J., and LARSON, S.J.
temporary total disability benefits; (ii) the Board erred in its findings and conclusions regarding
Tull’s injury date; and (iii) the Board erred in endorsing a late amendment to Tull’s application
for benefits. We disagree and affirm the Board’s decision.
Tull was employed by Atchison since 1989 and began having hand, wrist, and shoulder pain in
Now that she is hurting worse, she would like to go ahead and proceed, but we are having
to the point that the right side now hurts as much as the left. There have been no new
injuries, and she has used an extra dose of to control her pain so she can get some sleep at
November 2000, St. Paul Fire & Marine Insurance Company (St. Paul) provided coverage from
annual change in insurance carriers; ultimately four carriers provided coverage to Atchison
during the course of this litigation: Fireman’s Fund Insurance (Fireman’s) provided coverage
from November 1998 through November 1999, Superior National Insurance Company/Risk
Enterprise Management (Superior/REM) provided coverage from November 1999 through
November 2000 through November 2001, and C & I provided coverage from November 2001
through November 2002. The dispute among these carriers predominated the entire
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
between the carriers brought for such purpose. . In so holding, the court relied upon several
other authorities from within and beyond Kansas and reasoned:
“The present action presents a graphic illustration of the hardship which may confront a
claimant where insurance carriers are permitted to litigate, during the compensation process,
claims and equities existing between themselves….
“These are adversities which a claimant should not be forced to undergo. While we recognize
the right of insurance carriers to be protected in their legal rights and to engage in litigation
when disputes over their respective liabilities arise between them, yet their quarrels should not
be resolved at the expense of an injured workman.” .
administrative decisions for a “minority view” embracing and applying the doctrine.
Despite the rather clear holding of the insurers here argue that recent decisions of this court
have undertaken or affirmed an apportionment of insurer liability. Chief among these
authorities is where a panel of this court (i) affirmed the Board’s division of responsibility
between insurers for temporary and permanent disability benefits; and (ii) affirmed the denial
of an ALJ. The Board and this court held that such reimbursement was inappropriate because
the last-day–**322 worked rule “was not crafted to excuse an insurance company from liability
for benefits paid during its coverage period.” The Board and court also held that there was
no right of reimbursement from the Fund. see and . It is clear to us that neither the Board
nor the court in was faced with multiple carriers that had potential liability for temporary
apparently concluded that, despite the general rule, both the ALJ and the Board had
jurisdiction to determine which of two insurance carriers before them had coverage of the
accident. We do not view as requiring any apportionment of insurance carrier liability, only
as authorizing such determinations under the circumstances of that case. When an ALJ or
the Board embraces the general rule of we certainly do not believe this constitutes an
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
her condition worsened although it did remain symptomatic-as it probably will for the rest of her
life regardless of her activities.”
Atchison and C & I argue that Tull was not examined by physicians Prostic or Sandow until
dates after her last day of work for Atchison and that neither physician issued an opinion
apportioning Tull’s permanent impairment between the two periods of employment.
Nevertheless, Dr. Prostic opined that claimant sustained repeated minor trauma to her upper
extremities during her employment with Atchison through December 2000, and Atchison was
fully aware of Tull’s medical problems during her employment and selected the physician who
diagnosed her injuries and performed two surgeries. We conclude that there is ample
evidence to support the finding that the date of injury was during Tull’s employment at
the date of accident issue in cases involving injuries from repetitive trauma…. A claimant’s last
injurious exposure to repetitive or cumulative trauma is when he or she leaves work. But
when the claimant does not leave work or leaves work for a reason other than the injury, then
the last injurious exposure is when the claimant’s restrictions are implemented and/or the job
changes or job accommodations are made by the employer to prevent further injury. [Citing ]
Atchison’s employ.”
*99 We conclude that the Board’s application of and to these facts was correct. Here, the
Board found that Tull’s employment tasks at Berger were less demanding and less stressful;
thus, her last day of work for Atchison was indeed the “last day the claimant performed the
earlier work tasks” under The Board’s conclusion was supported by sufficient evidence and
was allowed after the first regular hearing on February 26, 2004, which date had been
established as the claimant’s terminal date under .
Terminal dates as defined by and set under can be extended by agreement of the parties or
by reason of specific statutory exceptions, which include “for good cause shown.” The
granting of an extension of the terminal dates for good cause shown carries a discretionary
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
between the carriers brought for such purpose. . In so holding, the court relied upon several
other authorities from within and beyond Kansas and reasoned:
“The present action presents a graphic illustration of the hardship which may confront a
claimant where insurance carriers are permitted to litigate, during the compensation process,
claims and equities existing between themselves….
“These are adversities which a claimant should not be forced to undergo. While we recognize
the right of insurance carriers to be protected in their legal rights and to engage in litigation
when disputes over their respective liabilities arise between them, yet their quarrels should not
be resolved at the expense of an injured workman.” .
administrative decisions for a “minority view” embracing and applying the doctrine.
Despite the rather clear holding of the insurers here argue that recent decisions of this court
have undertaken or affirmed an apportionment of insurer liability. Chief among these
authorities is where a panel of this court (i) affirmed the Board’s division of responsibility
between insurers for temporary and permanent disability benefits; and (ii) affirmed the denial
of an ALJ. The Board and this court held that such reimbursement was inappropriate because
the last-day–**322 worked rule “was not crafted to excuse an insurance company from liability
for benefits paid during its coverage period.” The Board and court also held that there was
no right of reimbursement from the Fund. see and . It is clear to us that neither the Board
nor the court in was faced with multiple carriers that had potential liability for temporary
apparently concluded that, despite the general rule, both the ALJ and the Board had
jurisdiction to determine which of two insurance carriers before them had coverage of the
accident. We do not view as requiring any apportionment of insurance carrier liability, only
as authorizing such determinations under the circumstances of that case. When an ALJ or
the Board embraces the general rule of we certainly do not believe this constitutes an
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
her condition worsened although it did remain symptomatic-as it probably will for the rest of her
life regardless of her activities.”
Atchison and C & I argue that Tull was not examined by physicians Prostic or Sandow until
dates after her last day of work for Atchison and that neither physician issued an opinion
apportioning Tull’s permanent impairment between the two periods of employment.
Nevertheless, Dr. Prostic opined that claimant sustained repeated minor trauma to her upper
extremities during her employment with Atchison through December 2000, and Atchison was
fully aware of Tull’s medical problems during her employment and selected the physician who
diagnosed her injuries and performed two surgeries. We conclude that there is ample
evidence to support the finding that the date of injury was during Tull’s employment at
the date of accident issue in cases involving injuries from repetitive trauma…. A claimant’s last
injurious exposure to repetitive or cumulative trauma is when he or she leaves work. But
when the claimant does not leave work or leaves work for a reason other than the injury, then
the last injurious exposure is when the claimant’s restrictions are implemented and/or the job
changes or job accommodations are made by the employer to prevent further injury. [Citing ]
Atchison’s employ.”
*99 We conclude that the Board’s application of and to these facts was correct. Here, the
Board found that Tull’s employment tasks at Berger were less demanding and less stressful;
thus, her last day of work for Atchison was indeed the “last day the claimant performed the
earlier work tasks” under The Board’s conclusion was supported by sufficient evidence and
was allowed after the first regular hearing on February 26, 2004, which date had been
established as the claimant’s terminal date under .
Terminal dates as defined by and set under can be extended by agreement of the parties or
by reason of specific statutory exceptions, which include “for good cause shown.” The
granting of an extension of the terminal dates for good cause shown carries a discretionary