Opinion
No. 111484.
03-27-2015
Cynthia RADER, Appellant v. U.S.D. 259, Appellee.
Joseph Seiwert, of Snider & Seiwert, LLC, of Wichita, for appellant. Vincent A. Burnett, and Dallas L. Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellee.
Joseph Seiwert, of Snider & Seiwert, LLC, of Wichita, for appellant.
Vincent A. Burnett, and Dallas L. Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellee.
Before PIERRON, P.J., GREEN, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Cynthia Rader injured herself while working for Unified School District 259 (District). Rader filed a workers compensation claim, maintaining that she suffered a scheduled injury to her left shoulder and nonscheduled injuries to her neck and back. The Administrative Law Judge (ALJ) found that she had suffered only a scheduled injury to her left shoulder. Rader appealed to the Workers Compensation Board (Board), but the Board affirmed the ALJ's decision. Rader now appeals the Board's decision, arguing that the Board's decision was not supported by substantial competent evidence and the Board incorrectly applied this court's holding in McLaughlin v. Excel Corp., 14 Kan.App.2d 44, 783 P.2d 348, rev. denied 245 Kan. 784 (1989). Finding no merit in these contentions, we affirm.
Cynthia Rader began working for the District in 1999. In August 2008, Rader was assigned to South High School, where she served as a paraprofessional to high school students with special needs. As a paraprofessional, Rader explained that she would feed and clean as well as assist the students using the restroom. This included lifting the wheelchair-bound students about 3 times a day. On Thursday August 18, 2008, Rader maintains that she injured herself while attempting to lift a wheelchair-bound student. Rader states that she hurt her shoulder, neck, and back while trying to lift the student.
Rader reported her injury to her supervisor but continued her paraprofessional work at South High School the rest of the week. Then, the District transferred Rader to an elementary school where she continued to do paraprofessional work but with smaller children. The District terminated Rader on September 8, 2009, because it could no longer accommodate her restrictions.
While still employed with the District, Rader visited two doctors. On August 24, 2008, Rader visited Dr. Ramona Peshek. Dr. Peshek diagnosed Rader with a back injury and ordered X-rays of Rader's lumbar spine. Dr. Peshek determined the X-rays showed that Rader had degenerative spurring in the lower thoracic and lumbar spine and nonspecific pelvic calcifications. Dr. Peshek prescribed medication. On August 30, 2008, Rader saw Dr. Mark Dobyns. Dr. Dobyns diagnosed Rader with a lumbar sprain, left shoulder sprain, and biceps sprain. Dr. Dobyns also prescribed medication and physical therapy.
In September 2008, Rader filed a workers compensation claim against the District. On October 9, 2008, at her attorney's request, Rader sought medical treatment from Dr. Pedro A. Murati. At that visit, Rader complained of difficulties sleeping at night because of lower back pain, numbness in lower back, decreased range of motion, headaches, and nausea. She also complained of pain in her feet, left shoulder, lower back, hips, legs, and stomach. After performing a physical examination and obtaining and reviewing Rader's medical records, Dr. Murati diagnosed Rader with the following: (1) left rotator cuff tear with probable labral involvement; (2) myofascial pain syndrome affecting the left shoulder girdle extending into the cervical and thoractic paraspinals; (3) neck pain with signs and symptoms of radiculopathy ; (4) left SI joint dysfunction; (5) left trochanteric bursitis ; and (6) low back pain with signs and symptoms of radiculopathy. Dr. Murati then temporarily restricted Rader and recommended an MRI of the left shoulder, cervical spine, and lumbar spine. He additionally recommended more physical therapy, steroid injections, and medicine. If these methods failed to alleviate Rader's pain, Dr. Murati recommended Rader undergo a surgical evaluation.
Beginning in December 2008, Rader went to see Dr. Pat Do, an orthopedic surgeon. Dr. Do ordered MRIs of the cervical spine, lumbar spine, and the left shoulder. The MRI revealed that Rader had degenerative disc disease in her cervical and lumbar spine. The MRI also showed “[a] very small posterior central disc/ostephyste complex at C5–6 with minimal effacement.” Rader's MRI scan of the left shoulder was unremarkable. Dr. Do prescribed medication and physical therapy. Rader continued with the physical therapy until March 18, 2009, when Dr. Do released Rader at maximum medical improvement with no work restrictions.
On April 2, 2009, Rader consulted Dr. Alan Moskowitz, an orthopedic surgeon, about her back. Rader told Dr. Moskowitz that she suffered from leg and back pain. Dr. Moskowitz conducted a physical examination, reviewed Rader's medical history, and reviewed Rader's December 2008 MRI. Dr. Moskowitz found that Rader's MRI showed a very mild degenerative disease, but was normal overall. Rader tested positive for all five Waddell signs, signifying that Rader was symptom magnifying. Dr. Moskowitz stated that he wanted to give Rader the “benefit of the doubt” regarding her pain, so he recommended a transforaminal epidural steroid injection at L4–5 to see if Rader's pain improved.
On May 6, 2009, Rader went to Dr. Camden Whitaker, an orthopedic doctor specializing in the spine. Dr. Do had recommended that Rader see Dr. Whitaker. At the visit, Rader complained of pain in the left side of her neck, shoulder, and upper extremity. Rader also complained of left side upper extremity numbness, tingling, and weakness. Dr. Whitaker conducted a physical examination and reviewed Rader's previous MRI and X-rays. Dr. Whitaker stated that he did not find much regarding muscle weakness, sensory loss, abnormal reflexes, gait abnormality, or any atypical inspection or palpitation of Rader's cervical spine. Dr. Whitaker believed that Rader's previous MRI and X-rays were normal. Since the physical test, MRI, and X-ray results did not explain the amount of pain that Rader complained of, Dr. Whitaker ordered an EMG nerve conduction study to determine if Rader's pain was caused by nerve compression.
Next, Rader had a follow-up appointment with Dr. Moskowitz on June 1, 2009. Dr. Moskowitz wanted to know if the epidural steroid injection at the L4–5 given by Dr. Michael Mueller on May 6, 2009, had helped relieve Rader's pain. Rader told Dr. Moskowitz that the injection had not helped her very much. Dr. Moskowitz repeated the physical examination and found no changes. According to Dr. Moskowitz, Rader was still displaying a number of Waddell signs. Based on the amount of pain Rader reported and the lack of objective evidence supporting this pain, Dr. Moskowitz again concluded that Rader was symptom magnifying. He also determined that he could not offer Rader any further medical treatments.
On June 29, 2009, Rader returned to Dr. Whitaker. At that time, Rader brought a previous EMG study with her to the appointment. The EMG was negative for “any focal neuropathy, plexopathy, or radiculopathy.” Dr. Whitaker conducted a physical examination and noted positive Waddell signs. Based on this evidence and a review of Rader's previous MRI and X-rays, Dr. Whitaker determined that Rader was symptom magnifying and that he had no further treatments for her.
At the request of Rader's former attorney, Rader returned to Dr. Murati for treatment on July 20, 2009. At this appointment Rader complained of pain in the upper and lower back, pain the in the left shoulder, unable to sit or stand for long periods due to back pain, unable to turn her head due to neck pain, and difficulties doing household cleaning because of pain in left shoulder. Dr. Murati reviewed Rader's medical history and conducted a physical examination. He determined that Rader's Waddell signs were negative. He then determined that “[t]his patient's current diagnoses are within all reasonable and medical probability a direct result from the work-related injury that occurred on 08–18–08 and/or each working day thereafter.” Then, Dr. Murati imposed permanent work restrictions on Rader. According to Dr. Murati, in an 8–hour work day Rader's restrictions included
“no climbing ladders, no crawl, no above the shoulder work, bilaterally, no lift/carry, push/pull greater than 10 pounds, and that only occasional, up to 5 pounds frequently; rarely bend, crouch, stoop; occasional sit, climb stairs, squat and drive; frequent stand and walk; no work more than 18 inches from the body, bilaterally; avoid awkward positions of the neck; avoid twisting the trunk.”
Dr. Murati used the American Medical Association's Guides to the Evaluation of Permanent Impairment, (4th ed.) (Guides), to determine Rader's impairment. Based on the Guides, Dr. Murati assigned a 4% upper extremity impairment, 7% left lower extremity impairment, 15% whole person impairment for neck pain, 10% whole person impairment for low back pain, and 5% whole person impairment for myofascial pain syndrome affecting the thoracic paraspinals. In his evaluation, Dr. Murati states that these impairment totals constituted a 31% whole person impairment. Dr. Murati had previously treated Rader for a back injury in a 1999 worker compensation claim. Subtracting the preexisting functional impairment from the 1999 case from the whole person impairment figure in her current action, Dr. Murati found that Rader ultimately suffered a 27% impairment to the whole person. Dr. Murati additionally reviewed a work task list created by Doug Lindhal, a vocational expert hired by Rader's attorney to create a work task list, and determined that Rader was unable to perform 28 of the tasks, resulting in a 59.6% task loss.
On January 14, 2013, a regular hearing was held. Rader was the only person who testified at this hearing.
On January 31, 2013, Dr. Paul S. Stein examined Rader for the purposes of an independent medical examination (IME). Dr. Stein reviewed Rader's medical records and conducted a physical examination on Rader. Dr. Stein concluded that Rader was symptom magnifying. He did not believe that Rader was malingering but believed that Rader likely had a minor injury with a large amount of functional overlay. At his deposition, Dr. Stein described functional overlay as follows:
“Functional means it is not anatomic. In other words, it is not a torn muscle or pinched nerve or ruptured disc, it is functional. It is something from the brain. Overlay just means that ... there may be some injury underneath all of this but then there is this tremendous overlay built on top of what frequently is a minor injury.”
As a result, Dr. Stein recommended that Rader go to a psychologist or see a rheumatologist. Rader refused to do either. Based on the fact that Rader did not go to a rheumatologist or psychologist, Dr. Stein testified at his deposition that he did not “know that [he had] a definitive opinion.” He then testified that “without any additional information and with the amount of symptom magnification obscuring anything on examination, [he] couldn't determine that there was a significant structural injury or a permanent impairment of function from this incident.” Furthermore, Dr. Stein concluded that Rader did not require any permanent work restrictions.
Between February 2013 and May 2013, Dr. Murati, Dr. Moskowitz, Dr. Whitaker, and Dr. Stein were deposed. Additionally, two vocational experts who interviewed Rader to create a list of all work tasks Rader had completed in the past 15 years were deposed.
After reviewing the regular hearing transcript and depositions, the ALJ entered an award in favor of Rader on October 4, 2013. Based on Dr. Murati's and Dr. Stein's medical findings, the ALJ determined that Rader had “proven an injury to her left upper extremity only, and adopt[ed] the rating of Dr. Murati that the claimant has suffered a 4% impairment to the left upper extremity and orders an award on that basis.” The ALJ found that Rader was entitled to 9.41 weeks temporary total disability compensation and 8 .62 weeks of permanent partial disability compensation.
Rader appealed to the Board, arguing that she also suffered nonscheduled injuries to her neck and back. The Board rejected Rader's argument and affirmed the ALJ's award of a scheduled left shoulder injury based on the findings of Dr. Whitaker, Dr. Moskowitz, and Dr. Stein. In support of its decision, the Board discussed that Dr. Whitaker could not find any pathology to explain Rader's alleged injuries, Dr, Moskowitz could not find any pathology to explain Rader's alleged injuries, and Dr. Whitaker, Dr. Moskowitz, and Dr. Stein believed that Rader was symptom magnifying. The Board determined that Dr. Murati's findings regarding nonscheduled injuries to the neck and back were not supported by the weight of the evidence in light of the other doctors' findings.
Was There Substantial Competent Evidence to Support the Board's Finding?
The Board affirmed the ALJ's findings that Rader suffered a scheduled injury to her left shoulder only. On appeal, Rader argues that the weight of the evidence supports that she also suffered a nonscheduled injury to her neck and back as a result of her work injury, entitling her to work disability compensation under K.S.A. 44–510e.
Standard of Review
Review for cases under the Workers Compensation Act (WCA), K.S.A. 44–501 et seq. , is statutorily controlled by the Kansas Judicial Review Act (KJRA), K.S.A.2014 Supp. 77–601 et seq. K.S.A. 44–556. K.S.A.2014 Supp. 77–621(c)(7) provides that the court shall grant relief if it finds that an
“agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act.”
“[I]n light of the record as a whole” means this court must consider evidence both supporting and detracting from an agency finding. K.S.A.2014 Supp. 77–621(d).
To determine if the Board's factual findings are supported by substantial competent evidence in light of the record as a whole, an appellate court must: (1) review evidence both supporting and contradicting the agency's findings; (2) examine the presiding officer's credibility determination, if any; and (3) review the agency's explanation as to why the evidence supports its findings. Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014.) Moreover, an appellate court does not reweigh the evidence or engage in de novo review in fact determinations. Williams, 299 Kan. at 795. Yet, an appellate court has unlimited review of the Board's legal conclusions. Nistler v. Footlocker Retail, Inc., 40 Kan.App.2d 831, 835, 196 P.3d 395 (2008). The claimant also has the burden of proof to establish her right to an award of compensation under the WCA and to prove the various conditions on which the claimant's right depends. K.S.A.2014 Supp. 44–501b(c).
Substantial Competent Evidence Supports the Board's Decision in Light of the Record as a Whole
Rader argues that the Board's decision was not supported by substantial competent evidence for the following reasons: (1) Dr. Stein's opinions were unreliable because he did not make a “definitive diagnosis,” therefore the Board incorrectly relied on his opinions; (2) Dr. Stein's opinions were unreliable because he failed to consider that Rader had muscle spasms or a pre-existing impairment; (3) Dr. Stein's belief that Rader may suffer from fibromyalgia demonstrates she has a nor scheduled injury in her neck and back; (4) Dr. Murati's opinions demonstrated that Rader suffered injuries to her shoulder, neck, and back; and (5) the Board made its finding on the incorrect belief that an electromyogram (EMG) test had been performed and was negative. Nevertheless, all of Rader's arguments fail because the Board's findings were supported by substantial competent evidence.
First, Rader argues that the Board erred in considering Dr. Stein's opinions because his opinions were unreliable. Rader contends that Dr Stein's opinions were unreliable because Rader refused to take any psychological or fibromyalgia tests to confirm Dr. Stein's belief that her pain might stem from either psychological issues or fibromyalgia. Thus, Rader contends that the Board should have disregarded Dr. Stein's medical opinions as speculative because Dr. Stein “was unable to come up with any definitive diagnosis” since she refused to take those tests.
Nevertheless, substantial competent evidence supports that Dr. Stein's opinions were reliable. At his deposition, Dr. Stein testified that Rader was engaging in symptom magnification. He testified that Rader likely had a very minor injury, with a large amount of functional overlay. Dr. Stein also testified that Rader did not require any permanent work restrictions. Based on those opinions, Dr. Stein recommended that Rader see a rheumatologist and psychologist for further testing since he found no physical injuries to the neck or back to explain Rader's complaints. When Rader refused to see these specialists, Dr. Stein determined he could not form an opinion on Rader's impairment because “without any additional information and with the amount of symptom magnification obscuring anything on examination, [he] couldn't determine that there was a significant structural injury or a permanent impairment of function from this incident.”
Therefore, although Dr. Stein did not form an opinion on Rader's impairment, Dr. Stein clearly made several medical findings regarding Rader's work injury. In her brief, Rader does not suggest why these opinions are unreliable except that Dr. Stein could not make a definitive diagnosis. Moreover, nothing in the record indicates that these opinions were unreliable. Accordingly, substantial competent evidence supports that Dr. Stein's opinions were reliable.
Furthermore, in its order affirming the ALJ's determination that Rader did not suffer a nonscheduled injury to her back or to her spine, the Board did not conclude that Dr. Stein had made a definitive opinion on Rader's impairment. The Board only utilized Dr. Stein's opinion that Rader was symptom magnifying in rejecting Rader's arguments. Thus, the Board relied only on that part of Dr. Stein's opinion which was supported by substantial competent evidence in rejecting Rader's argument that she had suffered nonscheduled injuries to the neck and back.
We also note that Rader's argument is a non sequitur because she makes an argument that does not necessarily follow from her premises. Just because Dr. Stein could not make a definitive opinion regarding impairment should not invalidate his opinion. Not all claimants bringing an action under the WCA have compensable injuries. The fact that a doctor is unable to find an objective reason why a claimant is experiencing pain may be evidence that a claimant is not physically injured at all. Consequently, it would be illogical to disregard all doctors' opinions where the doctor is unable to make a definitive opinion regarding impairment. This is especially true given that the only reason that Dr. Stein was unwilling to form a definitive opinion on impairment was because Rader refused to take the fibromyalgia and psychological tests. Those tests would have allowed Dr. Stein to make a definitive opinion as to whether Rader had suffered a “significant structural injury or a permanent impairment of function from” the accident.
Second, Rader argues that the Board's decision was not supported by substantial competent evidence because Dr. Stein failed to consider that Rader had muscle spasms and a pre-existing impairment to her spine in forming his opinions. Regarding the muscle spasms, Rader states that the muscle spasms were “signs and symptoms of injury that [were] simply ignored by Dr. Stein.” This assertion is totally baseless.
At his deposition, Dr. Stein testified that Rader was taking muscle spasm medication when he treated her. Dr. Stein also testified there was contradictory evidence about whether Rader was actually experiencing muscle spasms. In his IME made at the time of treatment, Dr. Stein wrote that the evidence whether Rader actually suffered from muscle spasm was contradictory. Although Dr. Stein ultimately determined that Rader's alleged muscle spasms were unpersuasive in showing that she had suffered a nonscheduled work injury, it is apparent from his testimony and the IME report that he considered the muscle spasms in making his opinion. Thus, Rader's argument does not undermine the Board's decision because there is substantial competent evidence that Dr. Stein considered Rader's alleged muscle spasms in forming his medical opinion.
Rader's assertion that Dr. Stein's opinion is unreliable because he did not detect a pre-existing condition is also baseless. In his IME report, Dr. Stein wrote that Rader had a pre-existing condition from an earlier workers compensation claim. As a result, Rader's assertion that Dr. Stein was unaware of the pre-existing condition, making his opinion unreliable, is without merit.
Third, Rader contradicts her previous arguments by asserting that Dr. Stein's belief that she may have fibromyalgia proves that she suffered a nonscheduled work injury to her neck and back. Rader points out that Dr. Stein found “trigger points” in Rader's back which may signify fibromyalgia. Rader also points out that Dr. Murati diagnosed myofascial pain syndrome based on trigger points in the left shoulder. Together, Rader argues that it is clear that she suffered a nonscheduled injury to her neck and back because “these are conditions [she] did not suffer before her work injury.”
In making this argument, Rader asks this court to place great weight on the fact that Dr. Stein believed Rader may be suffering from fibromyalgia. As noted earlier, Dr. Stein testified that the pain Rader allegedly suffered in her neck and back could stem from either fibromyalgia or psychological issues. He made this determination because Rader was symptom magnifying and none of the objective tests explained Rader's complaints. When Rader refused to take either test, however, Dr. Stein testified that he could not make a definitive opinion about Rader's impairment.
The Board noted Dr. Stein's beliefs on fibromyalgia and his inability to make a definitive opinion in its findings of fact. Moreover, it was for this reason that the Board ultimately held that “[w]hile Dr. Stein found claimant might or possibly has fibromyalgia, his statements fall below the required burden that the relationship of the condition to the accidental injury be proven by a preponderance of the evidence.” Thus, since no objective evidence supported that Rader had fibromyalgia, the Board refused to find that Rader had a nonscheduled injury to her neck and back caused by fibromyalgia. Consequently, the Board's decision to reject Rader's argument concerning fibromyalgia, disregarding Dr. Stein's opinion, was supported by substantial competent evidence.
In addition, it seems that Rader believes that Dr. Stein should have made a functional impairment rating based on his belief that she may have fibromyalgia. This argument is flawed. Dr. Stein never diagnosed Rader with fibromyalgia. Dr. Stein merely recommended that Rader visit a rheumatologist so that specialist could determine if she has fibromyalgia. When Rader refused to go to a fibromyalgia specialist or a psychologist for testing, Dr. Stein determined that he could not make a definitive opinion on Rader's impairment. It is unreasonable to argue that Dr. Stein should have made a functional impairment rating for fibromyalgia when there was no objective evidence that Rader suffered from fibromyalgia.
Fourth, Rader argues that Dr. Murati's findings show that she suffered a nonscheduled work injury to her neck and back. To support her argument, Rader lists Dr. Murati's findings that show she suffered a nonscheduled work injury to her neck and back, including the fact that Dr. Murati diagnosed Rader with neck pain with radiculopathy and low back pain with radiculopathy. Moreover, Rader points out that Dr. Murati found negative Waddell signs, gave her a 27% whole person functional impairment rating, and placed her on permanent restrictions with a 59.6% work task loss.
Nevertheless, Rader's argument ignores that Dr. Murati was the only doctor who found that she had suffered injuries to her neck and back. In affirming the ALJ, the Board discussed the opinions of Dr. Murati, Dr. Stein, Dr. Whitaker, and Dr. Moskowitz at length. After reviewing those doctor's findings, however, the Board held that Dr. Murati's opinion concerning Rader's injury to her neck and back were “not supported by the weight of the evidence.” The Board then cited the findings of Dr. Whitaker, Dr. Moskowitz, and Dr. Stein, making the following findings:
“Approximately two months before Dr. Murati made findings of cervical radiculopathy, Dr. Whitaker could not find any pathology to explain claimant's neck complaints. Dr. Whitaker could not document any muscle weakness, sensory loss, abnormal reflexes, or gait abnormalities. He ordered an EMG nerve conduction study because none of his examination findings explained claimant's complaints. The EMG was negative and contrary to the findings of Dr. Murati. Dr. Whitaker thought claimant was symptom magnifying.
“Approximately three months before Dr. Murati made findings of lumbar radiculopathy, Dr. Moskowitz examined claimant for her complaints of low back pain. Of significant note, Dr. Moskowitz wrote in her report that all five Waddell signs indicated symptom magnification. Dr. Moskowitz ordered a transforaminal epidural injection as a diagnostic tool. The injection did not provide the relief of leg pain that was expected. After a followup examination of claimant on June 1, 2009, Dr. Moskowitz had no recommendation for additional treatment and continued to believe claimant was symptom magnifying.
“Dr. Stein examined claimant on January 21, 2013. His opinions are the only opinions based upon claimant's condition at the time of the regular hearing. Dr. Stein also testified that he believes claimant is a symptom magnifier, to the extent that that it interfered with his ability to examine claimant.”
Thus, the Board clearly explained why it rejected Rader's argument that she had suffered a nonscheduled work injury to her neck and back. The Board rejected her argument because Dr. Whitaker's, Dr. Moskowitz's, and Dr. Stein's findings contradicted Dr. Murati's findings. Given that three doctors found no evidence of a nonscheduled injury to Rader's neck or back and only one doctor found evidence of nonscheduled injury to the neck or back, the Board's finding is reasonable and supported by substantial competent evidence.
Fifth, for the first time on appeal Rader contends that the Board erred when it considered the EMG in its determination that she had suffered only a scheduled injury to her left shoulder because the EMG test was never conducted. In its determination that Rader had suffered only a scheduled injury to her left shoulder, the Board found that Rader's negative EMG results were important in disproving her neck complaints. Rader argues that the test that Dr. Whitaker, Dr. Stein, and Dr. Murati all reviewed was actually a nerve conduction test (NCT).
Rader's argument fails because nothing in the record suggests that Rader never took an EMG test. Dr. Whitaker testified that there was an EMG and that this EMG did not support that Rader was suffering from nerve compress ion. Dr. Murati testified that Rader underwent EMG testing, which was negative for any focal neuropathy, plexopathy, or radiculopathy. Additionally, in Dr. Stein's IME report, he stated that an “EMG/NCT was noted as negative on the second” visit with Dr. Whitaker.” Consequently, the record shows that EMG testing occurred. While it seems that Rader may have also taken an NCT, nothing indicates that Rader did not take an EMG test. Therefore, there is substantial competent evidence to support that Rader took an EMG test.
Was Rader Entitled to Work Disability Benefits Because Permanent Functional Impairment is Not a Prerequisite to Awarding Work Disability?
Next, Rader contends that she is entitled to work disability benefits under K.S.A. 44–510e because permanent functional impairment is not a prerequisite for awarding work disability. Rader bases her argument on the case McLaughlin v. Excel Corp., 14 Kan.App.2d 44, 45–46, 783 P.2d 348 (1989), holding that proof of a functional impairment is not required to find permanent partial general disability when there is evidence of work disability. Nevertheless, Rader's argument fails because Rader incorrectly interprets K.S.A. 44–510e and the McLaughlin holding.
Standard of Review
Appellate courts have unlimited review of questions involving the interpretation or construction of a statute, owing “no 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).
Rader Is Not Entitled to Work Disability Benefits
Rader's argument that she is entitled to work disability benefits under K.S.A. 44–510e fails for two reasons. First, in making her argument, Rader completely ignores the plain language of K.S.A. 44–510e. In workers compensation cases, the statute in effect when the claimant's injury occurred governs the rights and obligations of the parties. Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 588, 257 P.3d 255 (2011). When Rader's work injury occurred, K .S.A. 44–510e stated: “In case of temporary or permanent partial general disability not covered by such schedule [in K.S.A. 44–510d, and amendments thereto], the employee shall receive weekly compensation as determined in this subsection....” Thus, under K.S.A. 44–510d a person was entitled to work disability only if his or her injury was a nonscheduled injury not covered in K.S.A. 44–510d.
Again, the ALJ found and the Board affirmed that the only injury that Rader suffered was a left shoulder injury. At the time of her injury, K.S.A.2008 Supp. 44–510d(a)(13) stated:
“If there is an award of permanent disability as a result of the injury there shall be a presumption that disability existed immediately after the injury and compensation is to be paid for not to exceed the number of weeks allowed in the following schedule:
(13) For the loss of an arm, excluding the shoulder joint, shoulder girdle, shoulder musculature or any other shoulder structures, 210 weeks, and for the loss of an arm, including the shoulder joint, shoulder girdle, shoulder musculature or any other shoulder structures, 225 weeks.”
Consequently, a left shoulder injury is covered by the schedule in K.S.A. 44–510d(a)(13).
As discussed earlier, the Board's decision that Rader did not suffer a nonscheduled injury, suffering only a scheduled injury to her left shoulder, was supported by substantial competent evidence. Because the Board's decision was supported by substantial competent evidence and K.S.A. 44–510e specifically prohibits Rader from receiving work disability, Rader's argument fails.
Second, Rader's case is distinguishable from McLaughlin. In McLaughlin, this court held that proof of functional impairment is not necessary for a finding of permanent partial disability under K.S.A. 44–510e when there is proof of a work disability. 14 Kan.App.2d at 45–46. The trial court in McLaughlin, however, found that McLaughlin had a nonscheduled injury under K.S.A. 44–510e. 14 Kan.App.2d at 44–47. Therefore, when this court held that proof of functional impairment was not required to find permanent partial general disability when there is proof of work disability, it did so in interpreting the application of K.S.A. 44–510e.
Here, the ALJ held and the Board affirmed that the only injury Rader had suffered was a scheduled injury to the upper left extremity. Accordingly, McLaughlin is inapplicable in this case because the McLaughlin court holding addressed compensation for nonscheduled work injuries under K.S.A. 44–510e. Furthermore, this conclusion is also supported by Stout v. Johnson County, No. 109,439, 2013 WL 5975973, at *7 (Kan.App.2013), rev. denied 300 Kan. –––– (August 28, 2014), where this court held that McLaughlin was inapplicable when Stout, who had suffered a scheduled injury only, argued that McLaughlin entitled him to work disability under K.S.A. 44–510e.
Finally, we note that although Rader argued generally that she had a nonscheduled injury entitling her to compensation under K.S.A. 44–510e before the ALJ and the Board, she never specifically argued that she was entitled to work disability benefits based on McLaughlin before. Issues raised on judicial review of an administrative action are statutorily limited. This court will decline to consider issues that a party raises for the first time on appeal if that issue does not fall under one of the exceptions in K.S.A.2014 Supp. 77–617. In re Dillon Real Estate Co., Inc., 43 Kan.App.2d 581, 589, 228 P.3d 1080 (2010). K.S.A.2014 Supp. 77–617 states:
“a person may obtain judicial review of an issue that was not raised before the agency, only to the extent that:
(a) The agency did not have jurisdiction to grant an adequate remedy based on a determination of the issue;
(b) the agency action subject to judicial review is a rule and regulation and the person has not been a party in adjudicative proceedings which provided an adequate opportunity to raise the issue;
(c) the agency action subject to judicial review is an order and the person was not notified of the adjudicative proceeding; or
(d) the interests of justice would be served by judicial resolution of an issue arising from:
(1) A change in controlling law occurring after the agency action; or
(2) agency action occurring or first reasonably knowable to the person after the person exhausted the last feasible opportunity for seeking relief from the agency.”
Rader's argument that she is entitled to work disability based on the McLaughlin holding that “[a] finding of permanent partial disability may be based upon either work disability or functional disability” does not fit into any of these exceptions. 14 Kan.App.2d 44, Syl. ¶ 1. As a result, it is questionable whether Rader is entitled to review on this issue because even though she generally argued that she was entitled to work disability compensation under K .S.A. 44–510e, she did not specifically argue she was entitled to disability based on McLaughlin until she appealed to this court.
Affirmed.