Opinion
No. 108,768.
2013-08-16
Maria Gloria MEZA, Appellee, v. NATIONAL BEEF PACKING CO., LP and Zurich American Ins. Co., Appellants.
Appeal from Workers Compensation Board. Shirla R. McQueen, of Sharp McQueen, P.A., of Liberal, for appellants. Conn Felix Sanchez, of Kansas City, for appellee.
Appeal from Workers Compensation Board.
Shirla R. McQueen, of Sharp McQueen, P.A., of Liberal, for appellants. Conn Felix Sanchez, of Kansas City, for appellee.
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
National Beef Packing Co., and its insurer Zurich American Ins. Co., (NBP) appeal the decision of the Workers Compensation Board (Board), awarding compensation to Maria Gloria Meza and denying NBP's request to be given credit for Meza's 5% preexisting impairment to her neck.
Meza had filed two workers compensation claims against NBP. The first (prior) claim was settled on the basis of a 7% whole body disability. The second (present) claim was filed approximately a year later. The present claim was litigated and ultimately resulted in an award of compensation to Meza. The award was reduced by the administrative law judge who determined that part of Meza's present disability was a preexisting cervical impairment for which she had been compensated in the prior settlement. Meza sought review of the reduced award. The Board ruled that there was no admissible medical evidence regarding the preexisting cervical impairment showing that NBP was entitled to the credit, and entered an unreduced award from which NBP now appeals.
The factual and procedural background of the matter on appeal presents a circuitous and protracted series of claims, examinations and hearings which defy concise summary.
The Prior Claim
Meza started work at NBP in 1999. On September 21, 2004, she slipped at work and landed in a sitting position. She initiated a workers compensation claim based on that accident. She reported pain in her lower back, the right part of her upper back, her neck, and into her right arm. She also described fatigue in her upper right back and neck and some loss of sensation in her right arm.
Meza was examined by three physicians regarding her prior claim. She was first referred by NBP to Dr. Paul S. Stein, who reported that he saw no way to make a definite pathological diagnosis. He found no functional impairment and specified no work restrictions.
Dr. George G. Fluter examined Meza upon referral from her counsel. He diagnosed “neck/upper back/lower back pain” and “myofascial pain affecting the neck and back”. He assessed a permanent partial impairment to the whole body of 5% based on cervicothoracic spine impairment and 5% based on lumbosacral impairment, resulting in a total permanent partial impairment to the whole body of 10%.
Dr. Thomas Pratt examined Meza upon referral from the Administrative Law Judge (ALJ) for an independent medical evaluation. He also concluded that Meza had a 5% whole body impairment due to involvement of the cervical area and a 5% whole body impairment due to involvement of the lumbosacral area. However, he opined that part of the lumbosacral problems were attributable to degenerative disease, and he arrived at a total of 7% impairment of the whole body.
On March 29, 2007, the parties appeared for a settlement hearing on the prior claim. At the hearing, NBP announced a stipulation to a number of items on a previously prepared settlement sheet, “including the medical reports of Dr. Stein, Dr. Fluter and Dr. Pratt, which are attached and can be introduced as their testimony.” Meza agreed to the stipulation announced. The ALJ accepted the stipulation and admitted the medical reports. Significantly, Meza did not stipulate to proposed language in the settlement sheet that “[t]he claimant acknowledges that she has not suffered any industrial accident during her employment with [NBP], prior or subsequent to the industrial accident that is the subject of this compromised settlement that has not been adjudicated or settled.”
The ALJ approved the proposed settlement of the prior claim in the amount of $10,718, for “an approximate 7% permanent disability to the body as a whole.”
The Present Claim
On March 13, 2008, less than 1 year after settlement of the prior claim, Meza filed the present workers compensation claim, giving the date of the accident as “all days worked until November 29, 2006.” She alleged an “[i]njury to the neck, right hand and right shoulder.” Following this filing, Meza had a series of injections and surgeries for her right shoulder, wrist, and hand.
On August 17, 2010, Meza was examined by Dr. Pedro A. Murati upon referral from her counsel. Dr. Murati recorded that Meza denied “any previous significant injuries of her right wrist, right shoulder, neck or upper back at this time.” He diagnosed Meza as “status post” her surgeries and with “myofascial pain syndrome affecting the right shoulder girdle extending into the cervical and thoracic paraspinals.” This report did not address functional impairment.
On October 5, 2010, counsel for NBP wrote to the presiding ALJ, noting that Meza had a prior workers compensation claim concluded on March 29, 2007, which “was predicated upon neck/upper back/lower back pain, cervical/lumbar strain/sprain, and myofascial pain affecting the neck and back.” Counsel suggested that since Meza had denied any previous significant injuries to her neck and upper back, Dr. Murati was not in a position to state with any reasonable medical certainty that her present problems were a direct result of the industrial accident alleged in the present claim.
At a preliminary hearing on October 15, 2010, NBP requested that the ALJ order an independent medical examination since Dr. Murati had been misled and was unaware of Meza's prior claim and settlement. The ALJ ordered the independent medical examination to be done by Dr. Vito Carabetta.
On December 10, 2010, Dr. Carabetta produced a report of his examination. Although he wrote that he had reviewed “fairly extensive medical reports, approximately 320 pages total,” these records are not included in the record on appeal. He listed “a prior lower back injury at this job” but noted that Meza “has trouble remembering the details of the majority of her history.” Dr. Carabetta calculated an 18% whole person impairment based on problems running from the right ring finger up to the upper trapezius region at the base of the neck. The right upper trapezius myofascial pain accounted for a 5% whole person impairment, and Dr. Carabetta offered his opinion that the myofascial issues in the upper trapezius region had reached their maximum medical improvement.
On August 2, 2011, Dr. Murati again saw Meza and noted that Dr. Carabetta's report had been provided to him. Murati reported that Meza still denied “any significant previous injuries to her right shoulder, right hand, or neck prior to the work-related injury that was sustained on all days working until 11–26–06.” Murati arrived at ratings similar to Carabetta but distinguished the areas of myofascial pain, arriving at a 5% whole person impairment for the cervical area and a 5% impairment for the thoracic area.
On February 10, 2012, the parties appeared for the regular hearing before the ALJ, at which time NBP stipulated that Meza met with personal injury arising out of and in the course of her employment with NBP on November 26, 2006. The issues discussed at the hearing centered about the 5% bodily disability for the mid-back, which had not been discussed by Dr. Carabetta, and the 5% bodily disability for the cervical area, which NBP claimed was the same injury for which she had been compensated in the prior claim. At the request of NBP, the ALJ admitted into evidence a transcript of the settlement hearing on the prior claim, including the settlement statement and the medical reports from Drs. Stein, Fluter, and Pratt. Meza objected to consideration of the medical records without supporting medical testimony as to the preexisting condition, but the ALJ stated that he wanted to know what (the prior medical examiners) rated the cervical area.
Meza testified on examination that she feels “tiredness and a pain” in her mid-back. In response to leading questions from her attorney, she acknowledged a previous neck injury but agreed that the present problems were with her back, not her neck. She insisted that she had told Dr. Carabetta “about all the problems that I had and whatever questions he had, I answered.”
On February 13, 2012, shortly after the regular hearing, the parties deposed Dr. Murati. He rendered a final opinion of 32% whole body impairment, based upon a condition in the neck and a condition in the upper back, which he considered a separate thoracic spine issue. When presented with a hypothetical question, Dr. Murati agreed that if Meza had already received a 5% whole person impairment for her neck in the prior claim, she suffered no additional impairment in that area. In that situation Murati would reduce the 32% to 28% ( sic ).
On February 27, 2012, the parties deposed Dr. Carabetta. He rendered his opinion that the 5% impairment rating he had given with regard to the right trapezius muscles applied to both the cervical and thoracic regions, due to the muscular overlap. He thought that Murati's process resulted in counting the thoracic region twice. Carabetta insisted that Meza had only mentioned a prior lower back injury and had not described a prior neck injury. When presented with the hypothetical, assuming that Meza had previously been rated and compensated for a 5% cervical impairment, Carabetta agreed the impairment to her neck had not increased since the prior accident. He testified that if the 5% impairment for the cervicothoracic area was removed, the rating would no longer be for the whole body, but only for the upper extremity. However, Dr. Carabetta testified that he had not been presented the reports of Dr. Stein, Fluter, and Pratt and, therefore, he had no medical evidence of a preexisting injury to Meza's neck.
The ALJ thereafter found that Meza had suffered impairment to her right upper extremity running from her ring finger to her shoulder. However, he made no award for Meza's neck or back, stating that she had previously been compensated for a 5% permanent disability to her body as a whole for her cervicothoracic spine. The awards for each scheduled impairment added to a total of $18,107.39.
Meza sought review before the Workers Compensation Board.
The Board refused to consider the evidence of a preexisting 5 percent cervicothoracic impairment, as had the ALJ:
“The Board finds that the only the testimony given at the Settlement Hearing is admissible. It shows a settlement based on a 7 percent impairment of function to the body as a whole. It does not disclose what the 7 percent rating was for. There is no mention in the testimony as to what her diagnosis was or what the rating was for, how it was arrived at and whether it was per the 4th edition of the AMA Guides as required by statute. As such, the questions and answers [NBP] put to Drs. Carabetta and Murati about the prior rating reports are without foundation and are not to be considered. Absent that testimony, there is no proof that [Meza's] current condition is an aggravation of a preexisting condition as contemplated by K.S.A.2006 Supp. 44–501(c). Likewise, [NBP] is not entitled to a credit or reduction in compensation under K.S.A. 44–510a because there has been no showing that the prior injury contributed to the disability resulting from the current injuries.”
Noting Meza's “current diagnosis is myofascial pain syndrome,” the Board asserted “[n]o physician testified that [Meza] had a prior diagnosis of myofascial pain syndrome or that the current neck and upper and mid back conditions constitute or were the result of an aggravation of the prior injury.” The Board therefore rejected the ALJ's conclusion that NBP “has proven an entitlement to a credit for preexisting impairment.” Since it otherwise agreed with the ALJ's decision to credit Dr. Carabetta's opinions, it issued “an award of permanent partial disability compensation based upon the full rating given by Dr. Carabetta of 18 percent to the body as whole.” This totaled $27,831.73. NBP appeals. Should the Board Have Considered Evidence Admitted in the Prior Claim?
NBP argues that the Board erred in refusing to consider the evidence of a 5% cervicothoracic impairment from the prior claim. By so refusing, NBP maintains the Board “misinterpreted and/or misapplied existing law and rendered a decision that was not supported by evidence that is substantial when reviewed in light of the record as a whole.” See K.S.A.2012 Supp. 77–621(c)(4) and (7).
The Board's actions are subject to review in accordance with the Kansas Judicial Review Act. K.S.A.2012 Supp. 44–556(a). “When a party contends an agency erroneously interpreted or applied the law, we exercise unlimited review and need not give deference to the agency's interpretation. [Citation omitted.]” Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 322, 291 P.3d 1056 (2013). When a party contends the evidence was not substantial, this court must “consider all of the evidence—including evidence that detracts from the agency's factual findings” but we do “not reweigh the evidence or engage in de novo review.” Herrera–Gallegos v. H & H Delivery Service, Inc., 42 Kan.App.2d 360, 363, 212 P.3d 239 (2009).
Ordinarily, Meza would bear the burden to prove “a right to an award of compensation and to prove the various conditions on which the ... right depends.” K.S.A.2011 Supp 44–501b(c). However, in the present claim, NBP stipulated to Meza's injuries arising out of and in the course of her employment. This essentially relieved Meza of the burden to prove her 5% cervicothoracic impairment arose out of and in the course of her employment for all days worked until November 26, 2006. Rather, NBP now assumed the burden to prove that her cervicothoracic impairment was a preexisting condition subject to the prior claim for which she was not entitled to additional compensation in this present claim. See Foos v. Terminix, 277 Kan. 687, 693, 89 P.3d 546 (2004); Hanson v. Logan U.S.D. 326, 28 Kan.App.2d 92, Syl. ¶ 5, 11 P.3d 1184 (2000), rev. denied 270 Kan. 898 (2001).
“Functional impairment means the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence and based on the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment.” K.S .A. 44–510e. Medical evidence was required for that much. See also Gadberry v. R.L. Polk & Co., 25 Kan. 800, Syl. ¶¶ 2–3, 975 P .2d 807 (1998) (physician's opinion required to determine loss of work task). Dr. Carabetta testified that Meza suffers a 5% cervicothoracic impairment, satisfying the requirement.
Determining whether the functional impairment was preexisting would also generally require medical evidence. Our Supreme Court has stated: “The rating for a prior disability does not establish the degree of disability at the time of the second injury.” Baxter v. L.T. Walls Constr. Co., 241 Kan. 588, 593, 738 P.2d 445 (1987). The court reasoned that “permanent partial disability is not an unalterable condition and a worker may be rehabilitated and then return to work. A worker who has once been adjudged ... permanently partially disabled and has received or is receiving benefits, but thereafter returns to work and is again injured while working, is not precluded from receiving benefits for the loss of wages resulting from the subsequent injury's aggravation of his disability.” Baxter, 241 Kan. at 593. The point we take from Baxter is that a claimant can improve and then be reinjured. Medical evidence must establish both the recovery and the reinjury. Here, medical evidence was required to establish that Meza's 5% cervicothoracic impairment was preexisting. K.S.A. 44–501(e), enacted after Baxter, provides that an award of compensation is to be reduced by the amount of functional impairment determined to be preexisting; this statute does not alter the holding of Baxter that the recovery and reinjury be established by medical evidence and not simply assumed by the ALJ to be preexisting based on ratings from the prior claim.
In Meza's prior claim, the stipulation was not to a 5% cervicothoracic impairment, but, rather, to an undifferentiated 7% whole body impairment. Medical evidence would be required to link Meza's present neck injury to the prior stipulation. In attempting to meet the burden of proof, NBP put hypothetical questions to the doctors. When asked to assume that Meza had a preexisting 5% cervicothoracic impairment, both Dr. Carabetta and Dr. Murati testified that she would have suffered no new impairment. However, Dr. Carabetta testified that he had been presented with no medical reports suggesting such a prior injury. The Board rejected the hypothetical testimony, holding “the question and answers [NBP] put to Drs. Carabetta and Murati about the prior rating reports are without foundation and are not to be considered.”
In its order, the Board cited K.S.A. 44–519, which provides:
“Except in preliminary hearings conducted under K.S.A. 44–534a and amendments thereto, no report of any examination of any employee by a health provider, as provided for in the workers compensation act and no certificate issued or given by the health care provider making such examination, shall be competent evidence in any proceeding for the determining or collection of compensation unless supported by the testimony of such health care provider, if this testimony is admissible, and shall not be competent evidence in any case where testimony of such health care provider is not admissible.”
From this the Board inferred that the hypothetical question put to Dr. Carabetta needed support from evidence in the form of oral testimony.
K.A.R. 51–3–9 provides that, for purposes of a settlement hearing, medical evidence may be introduced either by oral testimony or though a documentary report. The parties further stipulated to the admission of the medical reports at the settlement hearing in the prior claim, which was permissible under K.A.R. 51–3–5a(a).
But the issue here is not whether the medical reports were properly admitted at the settlement hearing in the prior claim, but whether these reports were properly admitted at the regular hearing in the present claim in support of Dr. Carabetta's deposition testimony. Obviously, the regular hearing in the present claim was not a settlement hearing; thus, the exception from K.A.R. 51–3–9 is not applicable. The parties did not stipulate to admission. Indeed, Meza objected to admission and the issues were in dispute. Thus the exception from K.A.R. 51–3–5a(a) is not applicable.
To hold, as NBP would be suggesting, that the introduction of medical reports admitted in the prior settlement hearing in lieu of oral testimony would serve as “testimony” controlling in all future proceedings would run afoul of the requirement of Baxter that the first injury, the rehabilitation, and the subsequent injury be evaluated on the basis of present medical evidence and not presumed on the basis of prior ratings. Our Supreme Court has noted “that K.S.A. 44–519 is not a technical rule of evidence. Rather it is a specific legislative mandate.” Roberts v. J.C. Penney Co., 263 Kan. 270, 278, 949 P.2d 613 (1997). The court made clear that “the workers compensation system has been well served by requiring the opinions of experts to be based on testimony subject to cross-examination, and if this is to be changed, we believe the legislature should do so and not this court.” Roberts, 263 Kan. at 282. The written reports admitted in the prior claim do not meet this test and cannot be used to propose hypothetical questions determining the issues in the present claim.
The Board's application of K.S.A. 44–519 is in accordance with Baxter and Roberts and, under the facts of this case, the Board properly refused to consider evidence of the preexisting condition. Did the Board Err in Calculating the Award?
NBP also argues, somewhat summarily, that the Board erred in calculating the award. We need not address this issue for two reasons.
First, NBP simply asserts that the whole body calculation was contrary to Redd v. Kansas Truck Center, 291 Kan. 176, 239 P.3d 66 (2010), but NBP does not explain its position with references to the controlling statutes, and it does not suggest its own calculation. Issues raised incidentally are deemed abandoned on appeal. Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 71, 274 P.3d 609 (2012).
Second, NBP did not raise this argument before either the ALJ or the Board. Kansas appellate courts generally treat issues not raised before the ALJ and the Board as barred for failure to exhaust administrative remedies and/or failure to preserve the issue for appeal. See Fernandez v. McDonald's, 296 Kan. 472, 475–76, 292 P.3d 311 (2013); Scheidt v. Teakwood Cabinet & Fixture, Inc., 42 Kan.App.2d 259, 264, 211 P.3d 175 (2009), rev. denied 290 Kan. 1095 (2010).
Conclusion
The decision of the Board is affirmed.