Opinion
No. 107,921.
2013-03-1
ESTATE OF Harry EMERY, Appellant, v. STATE of Kansas, and State Self–Insurance Fund, Appellees.
Appeal from Workers Compensation Board. Joshua P. Perkins, of Spooner & Perkins, P.C., of Kansas City, Missouri, for appellant. Bryce D. Benedict, of Kansas Health Policy Authority, Kansas Department of Health and Environment, for appellees.
Appeal from Workers Compensation Board.
Joshua P. Perkins, of Spooner & Perkins, P.C., of Kansas City, Missouri, for appellant. Bryce D. Benedict, of Kansas Health Policy Authority, Kansas Department of Health and Environment, for appellees.
Before McANANY, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this workers compensation appeal, the claimant's estate challenges the sufficiency of the evidence the Workers Compensation Board relied upon to determine the extent of functional impairment to the claimant's left arm. The Estate also challenges the Board's failure to determine that the claimant's right-arm injury and his later head injury were job-related and the Board's failure to award interest on the claim for the left-arm injury for which an award was made.
The claimant was Harry Emery, a security officer at Osawatomie State Hospital. Emery filed two separate claims: one for his arm injuries, and the other for a head injury. Emery died from unrelated causes before either claim was resolved. After his death, his widow moved to substitute Emery's Estate as the claimant. The administrative law judge (ALJ) allowed the substitution and that decision ultimately was affirmed by the Board.
In his first claim, Emery alleged that on April 6, 2002, he injured his left elbow while attempting to restrain a patient and that he later suffered a repetitive-trauma injury to his right arm from overuse while doing work activities.
For his second claim, Emery alleged that on December 20, 2007, he suffered injuries to his head, neck, and back during an altercation with a combative patient.
Following each injury the State paid Emery temporary total disability compensation and provided treatment, including surgery to his left arm, until Emery reached maximum medical improvement. At the State's request, Emery's authorized treating physicians examined Emery and submitted impairment ratings reports for each of the injuries. Dr. Alexandra Strong evaluated Emery's left arm. Dr. John Moore evaluated Emery's right arm. Dr. James Zarr evaluated Emery's head injury.
Emery died on October 11, 2009.
The ALJ held a regular hearing in June 2011. Emery's estate sought to introduce into evidence the rating reports from Drs. Strong, Moore, and Zarr, none of whom had been deposed and none of whom were available for cross-examination. The State's objection on the grounds of hearsay was sustained.
Following the regular hearing, the Estate retained Dr. Michael Poppa to review Emery's medical records regarding both claims. Dr. Poppa reviewed the records of Drs. Strong, Moore, and Zarr. He also reviewed the operative report from the SurgiCenter of Kansas City, along with records relating to the head injury from Dr. Robert Satake, a neurologist, and from Dr. Staecker, an ear, nose, and throat specialist. Dr. Poppa concluded:
“1) I accept and adopt Dr. Strong's 17% left upper extremity impairment; Dr. J.B. Moore's 20% right upper extremity impairment and Dr. Zarr's 17% whole body permanent impairment.
“2) Mr. Emery's work related injury and employment at Osawatomie State Hospital was the direct and proximate cause of his resulting work related injuries with residuals involving his bilateral upper extremities and closed head injury. These injuries occurred during the course and scope of his employment. His employment did cause or substantially contribute to his present conditions as well as the need for treatment which he received.
“3) The treatment Mr. Emery received regarding his work related medical conditions from all providers has been reasonable, appropriate and directly necessary to cure and relieve the effects of his injury.”
Dr. Poppa was deposed in August 2011, and his deposition testimony was introduced into evidence.
With respect to Emery's left arm, the ALJ rejected Dr. Poppa's opinion of a 17% whole body permanent impairment and found that Emery had sustained a 10% impairment to his left arm. The Board affirmed this finding.
With respect to Emery's right arm, the ALJ found that there “was nothing in the record to prove a work related injury to the right elbow.” The ALJ noted: “The respondent's [2002] accident report showed injuries involving the left elbow, chest, left shin, and head, but nothing about the right elbow. Dr. Poppa attributed the claimant's right elbow problem to the claimant's repetitive job duties, but when asked what those repetitive duties were, Dr. Poppa did not know.” The Board agreed that the evidence did not support a connection between Emery's work activities and his right-arm injury.
With respect to Emery's head injury, the ALJ “found no probative value to Dr. Poppa's opinions” and rejected the Estate's argument that it was entitled to permanent partial disability compensation for the head injury. The Board affirmed, noting that, although the Guides to the Evaluation of Permanent Impairment (4th ed. 1995) (AMA Guides) allow physicians to rely on their own judgment when forming impairment ratings, Dr. Poppa never personally examined Emery and thus arrived at his opinion simply by reviewing medical records.
Finally, with respect to the Estate's claim for interest, the ALJ awarded interest in the amount of $269.37 pursuant to K.S.A. 44–512b, finding no “just cause or excuse for the failure of the employer or insurance carrier to pay compensation prior to an award.” This related to the State's failure to pay compensation prior to Emery's death for the 10% impairment to his left arm. The Board reversed the award of interest, noting that the State challenged the nature and extent of Emery's injuries and argued that the Estate was not entitled to any workers compensation award because the widow's substitution motion was not properly filed. The Board concluded: “Neither of these defenses is frivolous.”
Emery's Estate appeals.
Appellate Review Standards
The nature and extent of our review is defined by K.S.A.2012 Supp. 44–556(a), which directs that final orders of the Board are subject to review under the Kansas Judicial Review Act (KJRA), K.S.A. 77–601 et seq. , as amended. When the issue is the sufficiency of the evidence supporting the Board's decision, we grant relief only if the Board's determination “is not supported by evidence that is substantial when viewed in light of the record as a whole.” K.S.A.2012 Supp. 77–621(c)(7). Whether substantial competent evidence exists is a question of law. Casco v. Armour Swift–Eckrich, 283 Kan. 508, 514, 154 P.3d 494 (2007). “In light of the record as a whole” is statutorily defined:
“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. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review.” K.S.A.2012 Supp. 77–621(d).
Our Supreme Court has defined substantial evidence as “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.” Redd v. Kansas Truck Center, 291 Kan. 176, 183–84, 239 P.3d 66 (2010).
Left–Arm Functional Impairment
The Estate's first challenge is to the Board's finding that Emery sustained a 10% permanent impairment to his left arm as a result of his April 6, 2002, injury. The Estate claims that the Board should have followed Dr. Poppa's opinion that Emery sustained a 17% impairment.
Dr. Strong treated Emery's left arm and ultimately performed surgery on Emery's left elbow. She prepared a narrative report in which she opined on the extent of Emery's injury, but she did not testify, and the findings and opinions in her narrative report were rejected as hearsay and not received into evidence. The State conceded its liability for benefits on account of Emery's left-arm injury and paid treatment and temporary total benefits. The State also conceded that Emery had a 10% permanent impairment to his left arm.
At his deposition, Dr. Poppa testified that Emery sustained a 17% permanent impairment to his left arm. According to Dr. Poppa, 10% of this impairment rating was for the injury to Emery's ulnar nerve. Dr. Poppa assigned the additional 7% because the AMA Guides did not adequately address Emery's impairment for lateral epicondylitis. For support, Dr. Poppa quoted the following provisions from Section 1.3 of the AMA Guides:
“ ‘[I]t should be understood that the Guides does not and cannot provide answers about every type and degree of impairment.... [T]he physician's judgment and his or her experience, training, skill, and thoroughness in examining a patient and applying the finding to Guides criteria will be factors in estimating the degree of patient's impairment.’ “
Having reviewed this testimony, the ALJ concluded: “The 10% appeared to be reasonably based on the injury and the Guides, 4th Edition, but the extra 7% was crafted out of thin air to match up with Dr. Strong's rating.” The Board affirmed, finding that Dr. Poppa's “explanation does not satisfy the requirement of K.S.A. 44–510e(a) that a functional impairment must be based upon the Guides.”
When reviewing the evidence in light of the record as a whole, our court “shall not reweigh evidence or engage in de novo review.” K.S.A.2012 Supp. 77–621(d). The Board determined that Dr. Poppa's opinions were unreliable because of his heavy reliance on the section of the AMA Guides that states he may substitute his own judgment for the guidelines. The Board stated: “He seems to believe that section allows him unlimited leeway to ignore the remainder of the Guides.” On appeal, we do not reevaluate Dr. Poppa's credibility.
Because no other medical evidence was admitted, Emery's estate contends that the Board was required to accept Dr. Poppa's uncontradicted opinion. “Uncontradicted evidence which is not improbable or unreasonable cannot be disregarded by [the trier of fact] in a workers' compensation case unless it is shown to be untrustworthy; and such uncontradicted evidence should ordinarily be regarded as conclusive.” Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 380, 573 P.2d 1036 (1978); see Overstreet v. Mid–West Conveyor Co., Inc., 26 Kan.App.2d 586, 589, 994 P.2d 639 (1999). But the trier of fact does not have to “ ‘accept and give effect to any evidence which, in its honest opinion, is unreliable, even if such evidence be uncontradicted.’ “ Beard v. Montgomery Ward & Co., 215 Kan. 343, 348, 524 P.2d 1159 (1974) (quoting Collins v. Merrick, 202 Kan. 276, Syl. ¶ 3, 448 P.2d 1 [1968] ).
Here, the Board found Dr. Poppa's opinion to be unreliable and unreasonable. Dr. Poppa referred to the AMA Guides, which provide for a 10% impairment rating to Emery's left-arm injury. With respect to the additional 7% impairment, Dr. Poppa stated that the AMA Guides permitted him to use his own judgment, though he had never examined Emery and did not explain how he arrived at the extra 7%. There was evidence to support the Board's finding of a 10% permanent impairment. But the Board found Dr. Poppa's testimony regarding this additional 7% rating to be unsupported and lacking in credibility. We do not revisit the issue of Dr. Poppa's credibility.
The Estate's first point of error fails.
Right–Arm Injury
Emery's Estate challenges the Board's finding that the Estate failed to meet its burden to prove that the claimed repetitive injury to Emery's right arm arose out of and in the course of his employment. The State did not stipulate that the injuries to Emery's right arm arose out of and in the course of his employment.
Dr. Poppa assigned a 20% permanent impairment to Emery's right arm based on a 1% impairment to the right radial nerve and a 20% impairment for loss of grip strength. With regard to the source of Emery's right-arm injury, Dr. Poppa testified:
“A. [Dr. Poppa] No. His job duties involve repetitive use of his upper extremities.
“Q. [Mr. Benedict] In what manner?
“A. As a safety and security officer.
“Q. Doing what? I mean how often a day would he use his upper extremities in any activity?
“A. I don't know. I know that it was aggravated and made worse after his fall.
“Q. How about the right upper extremity? When did he finally get some treatment for that? That wasn't until May of 2007; was it?
“A. That's what I was checking.
“Q. While you're looking through the records, I was also going to be asking if you knew when the right upper extremity symptoms began?
....
“A. The date of injury is 4–6–02 as listed by Dr. Moore.
“Q.... Okay. First question then, when did the right upper extremity symptoms appear in any medical record.
“A. I don't find that information.
“Q. We know that Dr. Strong provided impairment rating in June of 2003; correct?
“A. Correct.
“Q. And at that time, it was only to the left upper extremity?
“A. Correct.
“Q. So you don't know when the right upper extremity symptoms manifested themselves; do you?
“A. No. I can only tell you when he had surgery and was seen by Dr. Moore for treatment of his right upper extremity issues.
“Q. That's fine, when was that?
“A. He was—the surgery was performed on 6–14–07 and I believe I saw a note here Dr. Moore had seen him on 6–8 of '07.
“Q. So what is your explanation for the apparent four-year gap from when he was rated in June of 2003 for the left upper extremity to when he's getting treatment for the right?
“A. My best guess is that the insurance carrier did not authorize treatment until a later date.
“Q. Do you have any facts to back that up?
“A. No, it's—it's not an opinion. You asked what I thought so I guess it is an opinion.”
The ALJ found that there “was nothing in the record to prove a work related injury to the right elbow.” The ALJ noted: “The respondent's [2002] accident report showed injuries involving the left elbow, chest, left shin, and head, but nothing about the right elbow. Dr. Poppa attributed the claimant's right elbow problem to the claimant's repetitive job duties, but when asked what those repetitive duties were, Dr. Poppa did not know.”
The Board affirmed, finding that “Dr. Poppa's explanation of a nexus between Mr. Emery's work-related activities and his right upper extremity injury is not supported by sufficient evidence.” The Board was troubled by the fact that “Dr. Poppa did not know when Mr. Emery's right upper extremity symptoms began” and “could not identify the work activities that caused, aggravated, accelerated or exacerbated Mr. Emery's right upper extremity condition.”
As discussed earlier, the trier of fact need not “accept and give effect to any evidence which, in its honest opinion, is unreliable, even if such evidence is uncontradicted.” Beard, 215 Kan. at 348. In our review, we “shall not reweigh evidence or engage in de novo review.” K.S.A.2012 Supp. 77–621(d).
Emery's Estate had the burden to establish a causal connection between Emery's work activities and his claimed repetitive injury to his right arm. The Estate's only evidence on this issue came from Dr. Poppa, and the Board correctly found his testimony on this issue lacked factual support. The Board determined that Dr. Poppa's testimony on this issue lacked credibility. As noted earlier, we do not revisit issues regarding the credibility of witnesses.
The Board did not err in concluding that the Estate failed to meet its burden to prove that the claimed repetitive injury to Emery's right arm arose out of repetitive work-related activities.
Head Injury
The Estate challenges the Board's finding that the claimant failed to meet its burden of proving that Emery sustained a permanent impairment as a result of the head injury suffered in the 2007 accident. The Estate claims that the uncontradicted medical evidence showed that Emery sustained a 17% permanent impairment to his whole person as a result of the injury.
The only medical evidence relating to Emery's head injury came from Dr. Poppa. At his deposition, Dr. Poppa testified that he reviewed the medical records and reports related to this injury. This included records from Emery's primary care physician; a neurosurgeon; an ear, nose and throat specialist; and a neurologist. None of these records, or any related opinions, was received into evidence.
Based on the records he reviewed, Dr. Poppa opined that Emery sustained a 17% whole body impairment caused by his head injury. Dr. Poppa said that he relied on the AMA Guides, but that the document does not assign a specific number for rating an impairment from headaches. To bridge this gap, Dr. Poppa referred to the section of the Guides stating physicians should use their own judgment when estimating a patient's impairment. Dr. Poppa failed to elaborate on how he reached this opinion.
The ALJ “found no probative value to Dr. Poppa's opinions” regarding the head injury claim, and the Board affirmed, noting that Dr. Poppa's 17% rating was based on the frequency and intensity of Emery's headaches and Dr. Poppa had never examined Emery. The Estate again argues that Dr. Poppa's opinions were uncontradicted. But as noted earlier, the finder of fact is not bound to adopt opinions it finds to be incredible. Beard, 215 Kan. at 348. When reviewing Dr. Poppa's testimony, we do not revisit the issue of his credibility. See K.S.A.2012 Supp. 77–621(d).
The Board did not err in finding that the Estate failed to meet its burden of proving that Emery sustained a permanent impairment as a result of the head injury suffered in the 2007 accident.
Interest
The Estate's final issue is the claimed error by the Board in denying interest pursuant to K.S.A. 44–512b on the award for Emery's left arm. The ALJ entered an award of interest, but the Board reversed, noting two nonfrivolous defenses to the left-arm claim: (1) the State's challenge to the nature and extent of Emery's injuries, and (2) the claimed untimeliness of the Estate's motion for substitution of parties after Emery's death. The Board determined that the State had legitimate questions that justified delaying payment to the Estate for Emery's injuries.
K.S.A. 44–512b allows for interest to be awarded when an employer or insurance company fails to pay compensation. The statute states, in relevant part:
“(a) Whenever the administrative law judge or board finds ... that there was not just cause or excuse for the failure of the employer or insurance carrier to pay, prior to an award, the compensation claimed to the person entitled thereto, the employee shall be entitled to interest on the amount of the disability compensation found to be due and unpaid ... and shall accrue from the date such compensation was due.” K.S.A. 44–512b.
The State conceded that Emery suffered a 10% permanent impairment to his left arm, but if argued that it did not owe compensation to Emery's Estate after he died. The issue was hotly contested and not resolved until the Board's final decision. The issue ultimately turned on whether Emery's widow sought to substitute the Estate as a party within a reasonable time. See Graham v. Herring, 44 Kan.App.2d 1131, Syl. ¶ 1, 242 P.3d 253 (2010), rev. granted 293 Kan. –––– (October 7, 2011). According to Graham, there is no bright-line test for determining a reasonable time within which to seek a substitution of parties. The State contended that waiting 9 months after Emery's death before seeking to substitute Emery's Estate was an unreasonably long period. The Board found that under the particular circumstances of the case, such a delay was not unreasonable. But not every unsuccessful argument is frivolous. Here, the Board also found that the State was not frivolous in raising the issue of the timeliness of Emery's widow's action in seeking to substitute the Estate. Had the State succeeded in this argument, it would not have had to pay the Estate for Emery's impairment. Thus, we conclude that the Board did not err in rejecting the Estate's claim for interest.
Affirmed.