Opinion
No. 104,784.
2012-07-27
Walter David CAMP, Appellee/Cross–Appellant, v. BOURBON COUNTY, and Kansas Workers Risk for Coop for Counties, Appellants/Cross–Appellees.
Appeal from Workers Compensation Board. Jeffery R. Brewer, of Powell, Brewer, & Reddick, L.L.P., of Wichita, for appellants/cross-appellees. Patrick C. Smith, of Loy Law Firm, L.L.C., of Pittsburg, for appellee/cross-appellant.
Appeal from Workers Compensation Board.
Jeffery R. Brewer, of Powell, Brewer, & Reddick, L.L.P., of Wichita, for appellants/cross-appellees. Patrick C. Smith, of Loy Law Firm, L.L.C., of Pittsburg, for appellee/cross-appellant.
Before BUSER, P.J., MARQUARDT and LEBEN, JJ.
MEMORANDUM OPINION
BUSER, J.
This is a consolidated appeal of two workers compensation cases filed by Walter David Camp for claimed work-related injuries he sustained during the course of his employment with the Bourbon County Public Works Department (Bourbon County). In the first case, Docket No. 1,001,697, Camp asserted that his disability from a back injury he sustained on December 11, 2000, increased from a functional impairment to a permanent disability. As a result, Camp sought a review and modification of his previous settlement. In the second case, Docket No. 1,044,337, Camp alleged that he received new injuries to his back from repetitive job duties he performed for Bourbon County after his settlement in Docket No. 1,001,697.
Bourbon County appeals the Workers Compensation Board's (Board) determination in Docket No. 1,044,337, that Camp suffered additional compensable injuries. Camp cross-appeals the Board's holding in Docket No. 1,001,697 that K.S.A. 44–510e(a)(3) is a statute of limitations that limits the compensation available to Camp in his review and modification proceeding to 415 weeks following the date of injury.
Factual and Procedural Background
On December 11, 2000, Walter Camp sustained a back injury arising out of his employment with Bourbon County. Camp's injury occurred when his back “popped” as he was assisting a fellow employee with the repair of a semi-trailer truck tire. Camp notified Bourbon County of the injury, and the county sent him to a doctor. After the injury, Camp continued to work for Bourbon County with accommodations.
In 2002, Dr. William Dillon, an orthopedic surgeon, performed a diskectomy to repair a herniated lumbar disc in Camp's back. After the surgery, Dr. Dillon released Camp to return to work with the following restrictions: no lifting, pushing, or pulling over 20 pounds, and no repetitive bending or stooping. However, according to Camp, the surgery provided him no relief, and his back pain increased over time.
On January 17, 2002, Camp filed an application for workers compensation (Docket No. 1,001,697), One year later, on January 17, 2003, while Camp's application was pending, his attorney had Camp examined and evaluated by Dr. Edward J. Prostic. In his report, Dr. Prostic voiced no objection to the work restrictions imposed by Dr. Dillon; although, he did recommend that Camp be cautious with lifting, twisting, pushing, pulling, and the use of vibratory equipment. Dr. Prostic assessed Camp with a permanent partial impairment rating of 16% of the body as a whole on a functional basis. This assessment differed from Dr. Dillon's diagnosis of a permanent 10% whole person impairment, an opinion he made on December 10, 2002, following Camp's surgery.
On February 27, 2003, Camp's workers compensation claim proceeded to a settlement hearing where the parties agreed that Camp was entitled to permanent partial disability benefits based on a 13% whole person functional impairment. Camp's settlement was in the nature of a “running award,” which left open his right to seek future medical benefits and a review and modification. Following the settlement, Camp twice applied for post-award medical hearings, in 2005, and again, in 2008. Both applications were resolved by the parties without a hearing.
Subsequent to the settlement, Camp continued working for Bourbon County in an accommodated position for comparable wages. His work duties included operating and servicing a dump truck which hauled material over uneven roads for about 7 hours a day. Camp was also occasionally responsible for loading and unloading the dump truck, shoveling asphalt and gravel onto roadways, and assisting other employees in the removal of tires by handling an impact gun.
At some point, Camp sought further medical treatment from Dr. Dillon after he noticed increased back pain. Dr. Dillon referred Camp to Dr. Douglas Burton, who saw him for the first time on July 27, 2004, for evaluation of back pain. Dr. Burton diagnosed Camp with degenerative disk disease with no evidence of recurrent disk herniation. The doctor's clinical notes indicated that various treatment options were discussed. Camp declined additional surgery and stated he could do physical therapy exercises on his own. Dr. Burton found this was a reasonable treatment option. After Camp expressed a desire to return to work, Dr. Burton imposed a 20–pound lifting restriction and a required 5–minute break every hour to stand and stretch; “restrictions [Camp had] been on previously and [were] well within the requirements of his job.”
Over 1 year later, on October 14, 2005, the same area of Camp's back “popped again” after he picked up a can of diesel fuel. Notably, Camp later testified that other than this accident and his initial injury on December 11, 2000, he had no other specific injuries while on the job.
Camp took off work for a few days, and then he saw Dr. Maxwell J. Self. Dr. Self's clinical notes indicated that Camp had “a low back injury with previous disc involvement” with “point tenderness in the L-spine just lateral to his previous [surgical] incision.” An MRI revealed a “significant improvement” from a previous MRI conducted on May 6, 2004, which showed “ ‘disk extrusion with question of free fragment in the right lateral recess at L5–S1 with impression upon the right S1 nerve root.’ “ Following his evaluation, Dr. Self imposed a 10–pound lifting restriction and prohibited Camp from repetitive bending and squatting.
On November 1, 2005, Camp had a follow-up appointment with Dr. Burton to discuss the accident with the diesel fuel can. Dr. Burton diagnosed Camp with “[e]xacerbation of low back pain” due to lumbar strain. In particular, the doctor noted he did not “think that [Camp's] situation [had] appreciably changed from previous [visits].” Dr. Burton offered Camp additional physical therapy, but Camp declined. Camp was provided a release to return to work with his previous restrictions. Later, Dr. Burton testified that while it was impossible to know the clinical significance of Camp's 2005 diesel fuel can accident, there was no physical injury associated with the incident that was identifiable by an imaging study or neurological test. According to Dr. Burton, the only identifiable consequence was Burton's complaint of increased pain.
Two and a half years later, on April 1, 2008, Dr. Burton again examined Camp, and Camp informed him that driving a dump truck over rough and uneven roadways really bothered his back. As a result of this complaint, Dr. Burton increased Camp's work restrictions by prohibiting him from driving on uneven surfaces. Dr. Burton testified, however, that when he saw Camp on April 1, 2008, the purpose of the examination was for “the same type of a problem ... a flare of his low-back pain.”
After receiving Camp's new work restrictions, Bourbon County reassigned him to the county dump where he used a stick and bucket to pick up trash and take it to a hopper located on a hill. Camp testified this task did not fall within his job restrictions, however, because he had to walk over uneven surfaces and climb a hill, but he did “the best [he] could.”
On April 18, 2008, Bourbon County terminated Camp because there was no more light-duty work available to accommodate his restrictions. Despite numerous attempts to find gainful employment, Camp has not worked since his termination.
On July 1, 2008, Dr. Burton evaluated Camp for his continued lower back pain. Dr. Burton's clinical impression was “[c]ontinued low back pain status post work injury seven years prior,” An MRI revealed: “1. Overall mild degenerative changes of the lumbar spine are seen without definable significant canal or foraminal compromise identified to clearly suggest nerve impingement. 2. Probable postsurgical changes of right hemilaminectomy noted at L5–S1. Correlate with surgical history.”
On December 11, 2008, Camp filed an application for review and modification alleging that his work disability had increased from a functional impairment to a permanent disability. About 2 months later, on February 17, 2009, Camp filed a workers compensation application (Docket No. 1,044,337), for new injuries he sustained daily during the 5 years from February 27, 2003, through April 18, 2008, due to “repetitive and cumulative work duties.” The Division consolidated both cases.
A regular hearing was held on July 10, 2009. At that hearing, Camp testified that from February 2003, (the time of the settlement of Docket No. 1,001,697), through April 18, 2008, (the date of his termination), his back condition deteriorated considerably and “[t]he longer time goes by, the worse it gets.” Camp testified that Bourbon County required him to work outside his work restrictions, because he was expected to bend, climb, and dig; “everything that Dr. Burton told [him] not to do.” Camp described his back problems, following surgery, while working for Bourbon County:
“It seemed like I would have a flare-up and then I would go two or three years and then I would have to take off and see the doctor, and they would—you know, I would get to feeling better and I would go back and then it would be two to three years and I would have trouble again. It just seemed like it just—I had two or three spells of two to three years, is what it seemed like to me.”
Camp testified, however, that his back problems did not all relate to his initial injury:
“What's happened is, yeah, I hurt my back then [on December 11, 2000], but you don't understand the intensity of this job. If I just sit in this chair and jump up and down about a foot up and down, that's what I would do for seven hours a day, five days a week, year around. That's what's wrong with my back.”
When asked whether his back improved after he stopped working for Bourbon County, Camp responded, “Well, it's kind of leveled off. It still gives me a lot of problems.”
On September 21, 2009, Camp's attorney again referred him to Dr. Prostic for an evaluation. In his report, Dr. Prostic explained that since Camp's surgery in 2002, he continued to have symptoms of S1 radiculopathy. Based on his evaluation, Dr. Prostic made the following findings:
“During the course of his employment through April 18, 2008, Walter D. Camp sustained injury to his low back, aggravating pre-existing disease. He now has bilateral S1 radiculopathy. He needs to continue with restrictions against more than light duty employment with avoidance of frequent bending or twisting at the waist, forceful pushing or pulling, use of vibrating equipment, or captive positioning. He has an additional 5 to 10% permanent partial impairment of the body as a whole from his status of January 17, 2003.”
On March 1, 2010, the Administrative Law Judge (ALJ) issued an award of compensation in Docket No. 1,001,697. In particular, the ALJ found that Camp was entitled to benefits commensurate with a general work disability of 88.5%. The ALJ explained that Camp was eligible for benefits for a period of 415 weeks from the December 11, 2000, date of injury; thus, the ALJ held that Camp's work disability applied to the 32.86 week period from April 18, 2008, through December 4, 2008.
With regard to Camp's allegation of a new on-the-job injury in Docket No. 1,044,337, the ALJ denied compensation:
“There was little in the record to support the notion of a new repetitive low back injury since the previous claim was settled. The claimant did, eventually, start experiencing low back [pain] when driving and was restricted from that duty. But there was no evidence of a physical change in the claimant's low back and no evidence of any real change in the claimant's functional impairment of the low back.”
The ALJ also found that, assuming Camp received a new injury, the accident date would have been April 1, 2008, the date Camp received new work restrictions. However, the ALJ found no evidence that Camp provided notice of the injury to Bourbon County or presented a written claim as required by K.S.A. 44–520 and K.S.A. 44–520a. For all of these reasons, the ALJ found that Camp was ineligible for benefits.
On March 5, 2010, Camp filed an application for review by the Board claiming the ALJ erred in its holding in both cases. On July 30, 2010, the Board issued its order. In Docket No. 1,001,697, the Board affirmed the ALJ's finding that Camp's benefits should be limited to 415 weeks from December 11, 2000. However, the Board calculated the expiration date as November 24, 2008, instead of December 4, 2008; thus, it modified the ALJ's award accordingly.
In Docket No. 1,044,337, a majority of three members of the Board reversed the ALJ's determination that Camp failed to prove that he suffered additional injuries from February 28, 2003, through his last day of employment on April 18, 2008. The majority found that April 1, 2008, the date Dr. Burton provided the additional restriction, qualified as the date of accident for the new series of traumas. Additionally, the majority found that Camp provided Bourbon County with notice of accident as required by K.S.A. 44–520 because Camp testified he regularly discussed his continuing back problems, including the worsening of his pain, with his supervisors. Moreover, the majority found Dr. Burton's note adding a new work restriction qualified as a timely written claim for purposes of the Kansas Workers Compensation Act. Thus, the majority concluded that Camp was entitled to an award of “an additional whole person functional impairment of 7.5 percent, followed by a permanent partial general disability of 88.5 percent, with respondent entitled to a 100 percent credit for the overlapping weeks of permanent partial general disability ... against the award in Docket No. 1,001,697.”
Two Board members wrote a dissenting opinion. The dissenters explained:
“The ALJ, after having the opportunity to observe this claimant in live testimony, determined that, had claimant experienced some new and distinct injury, claimant would have alleged it at the time of the accident or series of accidents, instead of several months later, as was the case here. This claimant has failed to prove that he suffered a new accident or series of accidents while working for respondent. The only specific accident described by claimant occurred in 2005 when he picked up a can of diesel fuel.... Additionally, Dr. Burton failed to identify any physical injury from that incident. Claimant was released to return to work with no restrictions beyond those already in place.”
The dissenters also disagreed with the majority's determination that Camp had provided timely notice of the accident and a timely written claim to Bourbon County.
Bourbon County filed a petition for judicial review, and Camp filed a cross-appeal.
Standards of Review
On appeal, Bourbon County first contends that substantial competent evidence, when viewed in light of the record as a whole, does not support the Board's finding that Camp sustained additional compensable traumas from February 28, 2003, through April 18,2008.
The Kansas Judicial Review Act (KJRA), K.S.A.2010 Supp. 77–601 et seq. , governs this court's standard of review for cases under the Workers Compensation Act, K.S.A.2010 Supp. 44–501 et seq. See K.S.A.2010 Supp. 44–556; K.S.A.2010 Supp. 77–621(a)(2); Redd v. Kansas Truck Center, 291 Kan. 176, 183, 239 P.3d 66 (2010).
An appellate court reviews a challenge to the Board's factual findings in light of the record as a whole to determine whether the findings are supported to the appropriate standard of proof by substantial evidence. See K.S.A.2010 Supp. 77–621(c)(7). In a workers compensation case, the claimant has the burden of proof to establish his or her right to an award of compensation and to prove the various conditions on which the right depends. K.S.A.2010 Supp. 44–501(a). In this context, “ ‘[b]urden of proof means the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party's position on an issue is more probably true than not true on the basis of the whole record.” K.S .A.2010 Supp. 44–508(g). Although not statutorily defined, “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. [Citation omitted.]” Redd, 291 Kan. at 183–84.
K.S.A.2010 Supp 77–621(d) defines “ ‘in light of the record as a whole” ‘ as follows:
“For purposes of this section, ‘in light of the record as a whole’ means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77–620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency's explanation of why the relevant evidence in the record supports its material findings of fact.”
The amended version of the KJRA does not alter the longstanding standard of review for sufficiency of the evidence determinations. Gustin v. Payless Shoesource, Inc., 46 Kan.App.2d 87, 92, 257 P.3d 1277 (2011). However, it does alter the manner in which this analysis is conducted. 46 Kan.App.2d at 92. The amended version of K.S.A.2010 Supp. 77–621 adds three new requirements: “ ‘(1) It requires review of the evidence both supporting and contradicting the Board's findings; (2) it requires an examination of the presiding officer's credibility determination, if any; and (3) it requires review of the agency's explanation as to why the evidence supports its findings. [Citation omitted.]’ “ Gustin, 46 Kan.App.2d at 92; see Redd, 291 Kan. at 182. A panel of this court recently articulated the following summary of this test:
“[E]vidence that has been so undermined that a reasonable person would no longer accept it as substantial to support a particular conclusion is filtered out. If the remaining evidence is substantial, i.e., if the remaining evidence is sufficient that a reasonable person might accept it as supporting the agency's decision, then we must uphold the agency's factual findings.” Abdi v. Tyson Fresh Meats, Inc., No. 104,132, unpublished opinion filed August 5, 2011, slip op. at 5.
Still, this court must not reweigh evidence or engage in de novo review. K.S.A.2010 Supp. 77–621(d).
Substantial Competent Evidence of Additional Compensable Injuries
As stated by the Board in its order, “it is well established under the workers compensation law in Kansas that when a worker's job duties aggravate or accelerate an existing condition or disease or intensify a preexisting condition, the aggravation becomes compensable as a work-related accident.” Poff v. IBP, Inc., 33 Kan.App.2d 700, 708–09, 106 P.3d 1152 (2005). Bourbon County contends that substantial competent evidence does not support the Board's finding that Camp's job duties aggravated or accelerated his previous back injury.
The Board premised its finding that Camp suffered repetitious trauma to his back from February 28, 2003, through April 18, 2008, on the testimony of Dr. Prostic and Camp himself. Bourbon County challenges both of the Board's bases for its decision. First, it contends the Board erred by accepting the medical testimony of Dr. Prostic rather than the testimony of Dr. Burton. Second, Bourbon County asserts the Board improperly disregarded the ALJ's adverse determination of Camp's credibility. On the other hand, Camp asserts the Board's decision is supported by substantial evidence because his testimony that the county required him to work outside his restrictions and Dr. Prostic's testimony regarding repetitious trauma were uncontroverted.
The medical testimony was in dispute. Dr. Prostic opined that from January 2003, through April 18, 2009, Camp sustained additional repetitious injuries to his low back from work assigned by Bourbon County. This medical opinion provides substantial competent evidence in support of the Board's conclusion.
On the contrary, as acknowledged by the Board, Dr. Burton “could find no obvious neurological findings indicating a pinched nerve or massive disk herniation.” Indeed, objective evidence in the form of comparative MRI studies weakened Dr. Prostic's medical opinion. Dr. Prostic candidly acknowledged the MRI performed after Camp's 2005 accident was a “significant improvement” from the MRI performed in 2004. And Camp's 2008 MRI did not reflect any significant changes in his lower back. Both the ALJ and the dissenting members of the Board found this lack of evidence of any physical changes in Camp's lower back during Dr. Burton's course of treatment undermined Dr. Prostic's opinion. Finally, Dr. Burton's testimony and medical records attributed Camp's back discomfort to exacerbation of pain as a result of the injury sustained on December 11, 2000.
Apart from the medical evidence, the Board took note that Camp “testified to specific incidents where, while lifting, he suffered added pain in his back. Additionally, claimant was regularly lifting, shoveling, climbing and bending while working ... [and spending] several hours per day [driving] his truck over rough roads .” This testimony was not controverted by Bourbon County.
We are persuaded that, while disputed, there was sufficient substantial competent evidence, when viewed in light of the record as a whole, to support the Board's finding that Camp suffered additional injuries from a series of traumas from February 28, 2003, through his last day of employment with Bourbon County on April 18, 2008.
Timely Notice of Accident and Timely Written Claim for Compensation
Bourbon County argues that even if Camp did suffer additional repetitious trauma to his back, these additional injuries are not compensable because Camp failed to provide timely notice of the accident and a timely written claim for compensation as required by K.S.A. 44–520 and K.S.A. 44–520a.
Bourbon County's arguments on appeal, in part, involve the interpretation of statutory language. Appellate courts exercise unlimited review over questions involving the interpretation or construction of a statute, owing “ ‘[n]o significant deference’ “ to the agency's or the Board's interpretation or construction. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010). Additionally, whether a workers compensation claimant has provided his or her employer with timely notice of accident under K.S.A. 44–520 and whether an instrument propounded as a written claim for compensation qualifies as such and is timely under K.S.A. 44–520a are primarily questions of fact which must be analyzed under the substantial competent evidence standard as set forth previously. Kotnour v. City of Overland Park, 43 Kan.App.2d 833, 838, 233 P.3d 299 (2010), petition for rev. filed June 28, 2010; Lawrence v. Cobler, 22 Kan.App.2d 291, 294, 915 P.2d 157,rev. denied 260 Kan. 994 (1996).
Bourbon County asserts that although Camp complained of ongoing problems related to his original back injury, he did not notify his supervisors of the alleged repetitive use injuries or a worsening of his condition. As a result, Bourbon County contends the Board's finding that Camp provided timely notice is not supported by substantial competent evidence.
In order to determine whether a claimant has provided timely notice of the accident and a timely claim for compensation as required by K.S.A, 44–520 and K.S.A. 44–520a, the date of the accident must be established. The Board found that Camp suffered over 5 years of repetitious traumas, from February 28, 2003, through April 18, 2008. The Board then assigned April 1, 2008—the date Dr. Burton added the restriction prohibiting driving over uneven roads—as the accident date for Camp's injuries. Bourbon County does not challenge the Board's finding, and we conclude the Board complied with the legislative directive on determining the date of the accident wherein the accident occurs as a result of a series of events, repetitive use, cumulative traumas, or microtraumas as set forth in K.S.A.2010 Supp. 44–508(d). As a result, the date of the accident was April 1, 2008.
K.S.A. 44–520 requires a workers compensation claimant to provide his or her employer with notice of the accident within 10 days after the date of accident, “except that actual knowledge of the accident by the employer or the employer's duly authorized agent shall render the giving of such notice unnecessary.” K.S.A. 44–520 states, in relevant part:
“Except as otherwise provided in this section, proceedings for compensation under the workers compensation act shall not be maintainable unless notice of the accident, stating the time and place and particulars thereof, and the name and address of the person injured, is given to the employer within 10 days after the date of the accident, except that actual knowledge of the accident by the employer or the employer's duly authorized agent shall render the giving of such notice unnecessary.”
Eighty years ago, our Supreme Court interpreted the notice requirement articulated in a prior version of K.S.A. 44–520 which contained similar language to the current statute:
“The statute does not require that the notice be given by the workman personally, and it is sufficient if the giving of the notice is naturally prompted by consideration of the injury and the relationship between the workman and his employer. A reference to the injury in casual conversation would not be notice, but the notice need not be in writing, and need not have the definiteness and certainty of detail of a common-law indictment for crime....Whether an injury may prove to be compensable may not be presently known, and what the statute contemplates is notice of injury, so that the employer may have fair opportunity to investigate the cause and observe the consequences.” Davis v. Skelly Oil Co., 135 Kan. 249, 251, 10 P.2d 25 (1932).
Moreover, “[n]otice to an immediate supervisor constitutes notice to the employer. [Citation omitted.]” Odell v. Unified School District, 206 Kan. 752, 755, 481 P.2d 974 (1971).
The ALJ determined “there was no evidence [Camp] provided notice of the injury within 10 days” of the April 1, 2008 accident date. The Board, however, found that Bourbon County had actual knowledge of the repetitive traumas because Camp testified that he discussed his ongoing problems with his supervisor “on a regular basis.”
The dissenting members of the Board agreed with the ALJ: Camp's “complaints were not specific as to time, place and particulars of the alleged new series of accidents. They were merely ongoing complaints which echoed the complaints [Camp's] supervisors had been hearing since December 2000.”
Our independent review of the record reveals that, other than vague testimony indicating that he would take off work occasionally and tell his employer it was due to his back, Camp did not establish that he discussed the time, place, and particulars of the new series of accidents with his supervisor at Bourbon County.
Additionally, Camp's personnel file does not indicate that he discussed a new series of accidents with his supervisor. The only new injury which Camp mentioned to his employer was the 2005 accident involving the diesel fuel can, for which Bourbon County had an accident report. After that incident, however, Dr. Burton did not place Camp on any additional restrictions, and he noted that he did not “think that [Camp's] situation [had] appreciably changed from previous [visits].”
As the dissenting members of the Board pointed out, our Supreme Court recently held that courts must give effect to the express language of the workers compensation statutes: “When a workers compensation statute is plain and unambiguous, the courts must give effect to its express language rather than determine what the law should or should not be.” Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, Syl. ¶ 1, 214 P.3d 676 (2009).
K.S.A. 44–520 expressly requires a workers compensation claimant to provide the employer with notice of the accident which states “the time and place and particulars thereof” within 10 days after the date of accident unless the employer has actual knowledge thereof. We agree with the dissent that Camp did not comply with this statutory requirement. Camp's casual conversations with his supervisor about back pain are not substantial evidence to support proof of notice as required under K.S.A. 44–520. There is no evidence in the record “of substance and relevant consequence” to persuade us to conclude that Camp has furnished “a basis of fact from which the issue raised could be easily resolved. [Citation omitted.]” Redd, 291 Kan. at 183–84. Without evidence of notice or the employer's knowledge of the accident, compensation is not permitted.
On the other hand, there was evidence which undermined Camp's assertion that he complied with the notice requirement. This evidence consisted of the ALJ's adverse evaluation of Camp's credibility. In evaluating the evidence in light of the record as a whole, we note the ALJ observed: “[O]ne would think if the claimant experienced some new and distinct injury he would have alleged it at the time, not ten months later as an afterthought to a review and modification hearing.” For the ALJ, who personally observed the demeanor of Camp during his testimony, this was a matter of credibility: “The notion of a new on the job injury obviously didn't occur to the claimant until a very late date, some ten months after he'd last worked for [Bourbon County]. This, in itself, makes the allegation of a new injury seem not credible.”
The ALJ's statements constitute an adverse finding on Camp's credibility which was clearly at issue with regard to his entire testimony. The dissenting members of the Board found the majority improperly disregarded the ALJ's determination of Camp's credibility. Moreover, the Board also failed to provide an explanation for its decision to disregard the ALJ's credibility determination. See K.S.A.2010 Supp. 77–621(d).
As amended, K.S.A.2010 Supp. 77–621(d) now requires this court to consider any credibility determinations made by the hearing officer “who personally observed the demeanor of the witness” when the Board has disagreed with these determinations. Thus, for this court “to fairly consider an agency's position should it disagree with a hearing officer's credibility determination, an explanation of the agency's differing opinion would generally be needed. [Citation omitted.]” Herrera–Gallegos, 42 Kan.App.2d at 362. However, in this case, the Board provided no explanation for its decision to ignore the ALJ's credibility finding. Camp testified directly before the ALJ; no other witness testified regarding notice of injury. The ALJ clearly concluded that Camp had not given notice of a new injury, giving reasons for that conclusion. Neither the Board nor Camp on appeal have cited to testimony in the record providing any reasonably specific notice of a new accident.
Because there was insufficient competent evidence that Camp provided timely notice of the claimed repetitious trauma, he is not entitled to compensation for his injuries. Accordingly, the Board erred in making its award.
Bourbon County also contends that Camp failed to provide a timely written claim for compensation as required by K.S.A. 44–520a.
Pursuant to K.S.A. 44–520a(a), an employee may not claim a right to compensation under the Workers Compensation Act unless a written claim was filed with the employer within 200 days after the date of accident. See Bethany Medical Center v. Knox, 10 Kan.App.2d 192, 195–96, 694 P.2d 1331 (1985). The purpose behind this requirement is to ensure that the employer knows about the injury in time to make an investigation. Lott–Edwards v. Americold Corp., 27 Kan.App.2d 689, 696, 6 P.3d 947 (2000).
K.S.A. 44–520a(a) provides, in relevant part:
“No proceedings for compensation shall be maintainable under the workmen's compensation act unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or his duly authorized agent, or by delivering such written claim to him by registered or certified mail within two hundred (200) days after the date of the accident, or in cases where compensation payments have been suspended within two hundred (200) days after the date of the last payment of compensation; or within one (1) year after the death of the injured employee if death results from the injury within five (5) years after the date of such accident.”
A claimant's written claim for compensation need not take any particular form, as long as it is, in fact, a claim. Cobler, 22 Kan.App.2d at 294; see Chao v. Hy–Vee Food Stores, Inc., No. 96,492, unpublished opinion filed January 26, 2007, slip op. at 6, rev. denied 284 Kan. 945 (2007). According to our Supreme Court:
“In determining whether or not a written claim was in fact served on the respondent the trial court will examine the various writings and all the surrounding facts and circumstances, and after considering all these things, place a reasonable interpretation upon them to determine what the parties had in mind.... [Essentially,] the question is, did the employee have in mind compensation for his injury when the various documents were prepared on his behalf, and did he intend by them to ask his employer to pay compensation?” Ours v. Lackey, 213 Kan. 72, Syl. ¶ 2, 515 P.2d 1071 (1973).
See Cobler, 22 Kan.App.2d at 295.
The ALJ determined “there was no evidence [Camp] ... provided a written claim within 200 days” of the accident date. The Board noted that in order for a document to qualify as a written claim, the employee must have in mind compensation for his or her injury. The Board found that Camp satisfied the written claim requirement on April 1, 2008, when he provided Bourbon County with the medical report from Dr. Burton detailing the new driving restriction.
The Board's finding, however, is not consistent with the statutory requirement for written notice:
“Here, claimant presented the added restrictions from Dr. Burton on April 1, 2008, with the intention that respondent honor the new restriction. Instead, claimant was removed from his normal job due to respondent being unable to meet the driving restriction. The Board finds that claimant intended to request added accommodation from respondent when the medical report from Dr. Burton was provided on April 1, 2008. Therefore, the requirements of K.S.A. 44–520a were satisfied and written claim was timely provided.” (Emphasis added.)
We disagree with the Board's finding that Camp complied with the statutory requirement to provide written notice to the employer. The simple fact that Camp requested accommodation does not suggest his intention to request compensation for a new series of injuries. Indeed, Camp submitted several similar medical documents in the years after his initial injury in 2000 without making a claim regarding a new injury. Additionally, Bourbon County undoubtedly expected such medical documents when it agreed to continue Camp's employment in an accommodated position after his initial injury.
As the dissent points out, when Camp provided the medical report from Dr. Burton, he was merely advising of those same continued complaints, not of a new accident or series of accidents. Whether one concludes that Dr. Burton's report constituted a medical update on Camp's long-standing back condition or a request by Camp for additional accomodation, it did not convey Camp's intention “to ask his employer to pay compensation.” Lackey, 213 Kan. 72, Syl. ¶ 2. We conclude that Dr. Burton's medical report did not put Bourbon County on notice that Camp suffered new injuries on the job. As a result, the Board erred in concluding there was sufficient competent evidence to prove that Camp delivered a written claim within 200 days of the accident.
In conclusion, when viewed in light of the record as a whole, substantial competent evidence does not support the Board's finding that Camp provided timely notice of the accident and a timely written claim for compensation as required by K.S.A. 44–520 and K.S.A. 44–520a. Accordingly, the award of compensation by the Board in Docket No. 1,044,337 is reversed.
Limitation of Compensation Beyond the 415 Weeks Following the Date of the Accident
With regard to Docket No. 1,001,697, Camp argues in his cross-appeal that the Board erred by interpreting K.S.A. 44–510e(a)(3) as a statute of limitations that limits the compensation available to him in the review and modification proceeding to 415 weeks following the date of injury, December 11, 2000.
Camp's argument on appeal involves the interpretation of statutory language. As explained above, appellate courts exercise unlimited review over such questions, and “ ‘[n]o significant deference’ “ is owed to the agency's or the Board's interpretation or construction. Ft. Hays St. Univ., 290 Kan. at 457.
K.S.A. 44–510e(a)(3) provides in pertinent part: “In any case of permanent partial disability under this section, the employee shall be paid compensation for not to exceed 415 weeks following the date of such injury, subject to review and modification as provided in K.S.A. 44–528 and amendments thereto.”
Camp contends the phrase “subject to review and modification” indicates this time limitation does not apply in a review and modification proceeding. As Camp candidly acknowledges, however, this argument was previously rejected by a panel of this court in Ponder–Coppage v. State, 32 Kan.App.2d 196, 83 P.3d 1239 (2002). In Ponder–Coppage, our court held that K.S.A. 44–510e(a) is a statute of limitations, which limits a claimant seeking a review and modification to 415 weeks of compensation calculated from the date of the work-related accident. 32 Kan.App.2d at 199–200.
Camp argues that Ponder–Coppage was wrongly decided and should not be followed by this court. We are not persuaded for two reasons. First, two panels of this court have reaffirmed the interpretation of K.S.A. 44–510e(a) articulated in Ponder–Coppage. See Serratos v. Cessna Aircraft Co., No. 104,106, unpublished opinion filed July 1, 2011, slip op. at 9 (“ ‘If the condition is increased or decreased [under K.S.A. 44–528], the extent or duration of a claimant's disability and the employer's liability are redetermined under K.S.A. 44–510e[a].’ ”); Stinchcomb v. Raytheon Aircraft Co., No. 92,174, unpublished opinion filed May 20, 2005, slip op. at 8 (“ ‘The modified award only compensates for the remaining unpaid weeks, if any, that are proven but not yet expired. If an employer has paid the maximum amount, the modified award does not offer further payment.’ [Citation omitted.]”).
Additionally, contrary to Camp's assertion, Deguillen v. Schwan's Food Manufacturing, Inc., 38 Kan.App.2d 747, 172 P.3d 71 (2007), rev. denied 286 Kan. 1177 (2008), disapproved on other grounds by Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009), does not suggest that a departure from Ponder–Coppage is appropriate. The Deguillen court was not addressing whether K.S.A. 44–510e(a) is a statute of limitations. Rather, it dealt with the method for calculating a review and modification award after an employer has allowed the injured employee to retain employment in an accommodated position and whether the accommodation period should be deducted from the eligible weeks factor. 38 Kan.App.2d at 753–55.
A second reason we conclude that Ponder–Coppage was not incorrectly decided is that the court's interpretation of K.S.A. 44–510e(a)(3) appears to be the most reasonable interpretation of the statute. As noted above, K.S.A. 44–510e(a)(3) provides that the 415–week limitation period is “subject to review and modification as provided in K.S.A. 44–528 and amendments thereto.” Camp insists the legislature intended this language to exempt proceedings under K .S.A. 44–528 from the benefits limitation. However, the following language in K.S.A. 44–528(a) essentially negates Camp's argument:
“[I]f the administrative law judge finds ... that the functional impairment or work disability of the employee has increased or diminished, the administrative law judge may modify such award, or reinstate a prior award, upon such terms as may be just, by increasing or diminishing the compensation subject to the limitations provided in the workers compensation act.” (Emphasis added.)
K.S.A. 44–510e(a)(3) is a limitation provided in the Workers Compensation Act, and if the legislature actually intended to exempt review and modification proceedings from the 415–week benefit period, we would expect this exemption to be articulated in K.S.A. 44–528, which governs review and modification proceedings. Finally, “[c]ase law consistently refers to K.S.A. 44–510e(a) to determine the modification of an award” under K.S.A. 44–528. Serratos, slip op. at 9.
Camp cursorily mentions other arguments but provides little support for these contentions. A point raised incidentally in a brief and not argued therein is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Moreover, failure to support an argument with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
We conclude the interpretation of K.S.A. 44–510e(a)(3) as articulated in Ponder–Coppage is dispositive of this cross-appeal. Thus, the Board did not err in Docket No. 1,001,697 when it held that K.S.A. 44–510e(a)(3) operated as a statute of limitations, which limited Camp's receipt of benefits upon review and modification to 415 weeks from the date of the original accident.
The Board's order in Docket No. 1,001,697 is affirmed. The Board's order in Docket No. 1,044,337 is reversed.