Opinion
No. 109,439.
2013-11-8
William STOUT, Appellant, v. JOHNSON COUNTY & Board of Commissioners, Appellees.
Appeal from Workers Compensation Board. Michael R. Wallace, of Shawnee Mission, and Keith C. Sevedge, of Lenexa, for appellant. Douglas M. Greenwald and Eric T. Lanham, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellees.
Appeal from Workers Compensation Board.
Michael R. Wallace, of Shawnee Mission, and Keith C. Sevedge, of Lenexa, for appellant. Douglas M. Greenwald and Eric T. Lanham, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellees.
Before Standridge, P.J., Schroeder, J., and Larson, S.J.
MEMORANDUM OPINION
PER CURIAM.
William Stout appeals from the award of benefits by the Workers Compensation Board (Board). The Board affirmed the administrative law judge's (ALJ) decision that Stout should be awarded benefits for an injury to his left knee but that Stout had failed to sustain his burden of proof of his entitlement to benefits for his low back symptoms. We find no error in the rulings of both the ALJ and the Board and consequently affirm the Board.
Factual and Procedural Background
Factual background of the injury
In April 2010, William Stout, a 49–year–old law enforcement officer, was working as a deputy for the Johnson County Sheriff's Department when he sustained an injury to his left knee. While engaging in corps training involving defense tactics and ground fighting, Stout was on all fours attempting to escape a coworker's grasp when he was pulled backwards. Stout felt a pop and had immediate pain in his left knee. Stout's training officer took him for immediate medical evaluation. He was referred to Dr. Daniel Stechschulte, an orthopedic surgeon, for treatment.
On May 19, 2010, Dr. Stechschulte performed reconstructive knee surgery on Stout. After his surgery, Stout continued to experience weakness, pain, and swelling in his left leg. Stout was off work for approximately 2 months. He returned to restricted, limited duty employment with the sheriff's department in July 2010. Stout continued to walk with an obvious limp.
After returning to work, Stout performed a sedentary desk job, answering telephone calls and opening and closing doors in the jail facility.
In July 2011, about a year after returning to work, Stout's attorney referred him to Dr. Edward Prostic, an orthopedic surgeon. Dr. Prostic examined Stout to provide an impairment rating and report. The report was limited to Stout's knee injury. Dr. Prostic conducted a physical examination of Stout on July 18, 2011, and found that Stout sustained a knee injury during the course of his employment that required surgical correction. In accordance with the American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed. 1995) (AMA Guides), Dr. Prostic assessed a permanent partial impairment rating of the lower extremity of 25%. Dr. Prostic did not recommend any physical restrictions, concluding that Dr. Stechschulte's restrictions were appropriate. Dr. Stechschulte recommended that Stout could engage in sedentary work with a sit/stand option as needed to control his pain.
During the July 2011 examination with Dr. Prostic, Stout reported no low back complaints. The report summarizing the July 2011 examination did not mention an altered gait or low back pain. However, during mid- to late July, Stout began to notice some pain in his low back. Stout informed his employer of the pain on August 2, 2011. Stout attributed the pain to the limp he had developed and to sitting for extended periods of time. Stout experienced pain in his low back when sitting or standing for extended periods of time. He also complained of low back stiffness in the mornings, and he had difficulty sleeping on his left side due to pain in his left hip.
After reporting his back pain, Stout was referred to Dr. Eden Wheeler, a board certified physical and rehabilitation specialist, who discussed pain management and treatment options with Stout. Dr. Wheeler agreed that Stout's low back symptoms were due to his altered gait. Stout testified that Dr. Wheeler told him the best way to relieve his back pain was to have his knee replaced to fix his altered gait. Stout chose not to pursue injections for temporary pain relief.
In September 2011, Stout was forced to take disability retirement, as Dr. Stechschulte's work restrictions changed from temporary restrictions to permanent restrictions and the sheriffs department was unable to accommodate the permanent restrictions that had been placed on him. These restrictions related solely to the left knee and not to his complaints about low back pain. After his dismissal, Stout started receiving disability benefits through KPERS and applied for social security benefits.
Stout continued physical therapy and home exercises with Dr. Wheeler after the termination of his employment. On final examination on November 9, 2011, Stout's range of motion and mobility had improved, but he was still reporting intermittent back pain. Conflicting opinions regarding Stout's injuries
On June 7, 2012, Dr. Wheeler prepared a report for the regular hearing. Dr. Wheeler explained that Stout presented with “signs and symptoms” but no “clinical evidence of symptoms.” Dr. Wheeler found that Stout had no clinical radiculopathy from the back complaints and his lumbar spine range of motion was good. Dr. Wheeler concluded (1) Stout's low back pain was causally related to the work-related left knee injury; and (2) pursuant to the AMA Guides, Stout had no lumbar spine functional impairment because his signs and symptoms placed him in DRE Category I, 0% impairment. The Category I placement indicates no significant clinical findings and no ratable impairment for workers compensation purposes.
Stout was reexamined by Dr. Prostic in January 2012, at which time Stout reported hip and low back pain. Dr. Prostic noted that Stout denied any new medical problems or additional injuries since the July 2011 examination. However, Dr. Prostic noted that Stout had developed low back pain from an altered gait and prolonged sitting. Dr. Prostic's examination of Stout's left hip was entirely normal, and his examination of Stout's low back demonstrated normal spine alignment without tenderness, no significant limitation of range of motion, and no neurological deficit in either leg.
Dr. Prostic diagnosed a chronic sprain or strain to the low back that had been caused or aggravated by Stout's altered gait. Dr. Prostic rated Stout's permanent partial disability for the low back symptoms at 5% under DRE Category II. Dr. Prostic combined this 5% impairment with the 25% permanent partial impairment for the left lower extremity for a 15% whole body impairment on a functional basis. Dr. Prostic used the AMA Guides in reaching his impairment opinion.
Dr. Prostic recommended additional work or physical restrictions, but he stated that Dr. Stechschulte's limitations of restricting Stout to a sedentary desk job would generally incorporate his proposed restrictions. Dr. Prostic assessed job task loss at 77%, as Stout was unable to perform 20 out of 26 job tasks described by vocational rehabilitation expert Michael Dreiling. However, Dr. Prostic testified that in assessing job task loss, he did not distinguish between the tasks that Stout could no longer perform because of the low back complaints from those that Stout could no longer perform due to the left knee injury. Workers compensation claim and award
A regular hearing was held on Stout's workers compensation claim on April 19, 2012. Stout testified and various depositions and exhibits were admitted for the Board's consideration. The parties stipulated that Stout's April 15, 2010, injury arose out of and in the course of his employment.
On August 10, 2012, the ALJ issued an award of compensation for injuries sustained as a result of Stout's injury on April 15, 2010. The ALJ calculated Stout's compensation based on the schedule in K.S.A. 44–510d. In particular, the ALJ found that Stout was entitled to 13.29 weeks of temporary total disability compensation, followed by 46.68 weeks of permanent partial disability compensation for a 25% functional impairment to the left leg. Finally, the ALJ considered the opinions of both Dr. Prostic and Dr. Wheeler and ultimately rejected Stout's claim for permanent partial disability benefits for the low back injury, concluding:
“Looking at the physicians' testimony and records and the claimant's description of the effects of the low back symptoms, it is held there is no permanent partial disability for a non-scheduled injury. The claimant does experience some low back pain and stiffness with certain activities, but not to the extent it is physically disabling. Permanent partial disability in this case shall be limited to the left leg.”
The ALJ adopted Dr. Wheeler's impairment rating of 0% because it better matched specific findings to the AMA Guides. The ALJ concluded Stout had no functional impairment to the low back.
On August 13, 2012, Stout filed a timely application for review to the Board, asking for review of the ALJ's determination of the nature and extent of Stout's disability. On review, Stout argued that he was entitled to a work disability for his low back and left hip conditions as they are related to the altered gait from his left knee injury. He claimed the ALJ erred in limiting his award to a scheduled injury under K.S.A. 44–510d.
On January 28, 2013, the Board affirmed the ALJ's findings. The Board pointed to Dr. Wheeler's testimony that the restrictions imposed by Dr. Stechschulte to accommodate Stout's left knee injury “were adequate to accommodate claimant's back complaints and assigned nothing additional.” The Board affirmed the ALJ's decision to limit Stout's recovery to benefits for a scheduled injury under K.S.A. 44–510d. The Board reasoned:
“The ALJ determined that claimant's permanent impairment was limited to his left lower extremity. The Board agrees. Dr. Wheeler found no justification under the AMA Guides, 4th ed. to award permanent impairment to claimant for his low back symptoms. Claimant had no limitation in his range of motion, nor did he have clinical radiculopathy to justify a permanent low back rating.
“The physical exam with Dr. Prostic failed to note range of motion limitations in the low back, displayed no neurological deficits in either leg and had a negative straight leg raise maneuver.
“Neither examination generated the findings necessary to qualify for DRE II under the AMA Guides, 4th ed. Thus, the finding by Dr. Wheeler that claimant had suffered no permanent impairment to his low back is the most persuasive in this record. The Award limits claimant to a functional impairment to his left lower extremity. The Board agrees and affirms this finding. As noted in the Award, Dr. Prostic provided the only functional impairment opinion for the left lower extremity, 25 percent.” (Emphasis added.)
Stout filed a timely petition for judicial review to this court.
Did the Board correctly limit Stout's award to benefits for his knee injury under the schedule in K.S.A. 44–510d and reject Stout's request for permanent partial general disability or work disability under K.S.A. 44–510e(a)?
Stout's principal contention on appeal is that in addition to his benefits for a scheduled knee injury under K.S.A. 44–510d, he should also be awarded permanent partial general disability or work disability benefits under K.S.A. 44–510e(a) for his resulting back injury.
Although Stout frames his appellate issue as a legal one and claims he accepts the Board's finding of facts, an examination of the issue reveals he is challenging the Board's factual determination that he failed to prove he was entitled to work disability under K.S.A.44–510e(a).
Johnson County responds that there was substantial competent evidence in the record to prove that Stout suffered no functional impairment to his low back. Johnson County points directly to the testimony of Dr. Wheeler, which Stout does not challenge on appeal.
Under K.S.A.2012 Supp. 44–556(a), 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. Redd v. Kansas Truck Center, 291 Kan. 176, Syl. ¶ 1, 239 P.3d 66 (2010). The standard of review varies based on the issue raised. K.S.A.2012 Supp. 77–621 (defining and limiting the scope of review of administrative decisions under the KJRA).
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.2012 Supp. 77–621(c)(7). “[I]n light of the record as a whole” ' is statutorily defined as meaning:
“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).
Accordingly, we give deference to the factual findings of the Board and uphold its findings when they are supported by substantial evidence in light of the record as a whole. Gustin v. Payless Shoesource, Inc., 46 Kan.App.2d 87, Syl. ¶ 1, 257 P.3d 1277 (2011).
Under this standard of review, an appellate court does not weigh conflicting evidence except to determine whether the evidence supporting the Board's decision has been so undermined by conflicting evidence that the appellate court no longer has confidence in the substantial nature of the evidence. Herrera–Gallegos v. H & H Delivery Service, Inc., 42 Kan.App.2d 360, 363, 212 P.3d 239 (2009). 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. Saylor v. Westar Energy, Inc., 292 Kan. 610, 614, 256 P.3d 828 (2011).
The claimant has the burden of proof to establish his or her right to an award of compensation under the Workers Compensation Act and to prove the various conditions on which the claimant's right depends. K.S.A.2012 Supp. 44–501b(c); K.S.A.2012 Supp. 44–508(h). “ ‘Burden 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.2012 Supp. 44–508(h). Once the claimant has met his or her burden of proving a right to compensation, the employer has the burden of proving relief from that liability based on any statutory defense or exception. Messner v. Continental Plastic Containers, 48 Kan.App.2d 731, 751, 298 P.3d 371 (2013).
However, the issue raised in this case also involves a question of statutory interpretation of the Workers Compensation Act, K.S.A. 44–501 et seq. Appellate courts have unlimited review of 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).
The version of K.S.A. 44–510e(a) in effect at the time of the injury provided in relevant part:
“ Permanent partial general disability exists when the employee is disabled in a manner which is partial in character and permanent in quality and which is not covered by the schedule in K.S .A. 44–510d and amendments thereto. The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury. In any event, the extent of permanent partial general disability shall not be less than the percentage of functional impairment. 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, if the impairment is contained therein.” (Emphasis added.)
But, where the injury is proven solely to a scheduled body part, such as Stout's injury to his left knee, permanent compensation is governed by and limited to the benefits set out in K.S.A. 44–510d. See K.S.A. 44–510d(a)(15); McCready v. Payless Shoesource, 41 Kan.App.2d 79, 94, 200 P.3d 479 (2009) (K.S.A. 44–510d covers injury to claimant's right wrist, right ankle, and right knee; K.S.A. 44–510e controls only when nonscheduled injury is also proven); Duncan v. City of Osage City, 13 Kan.App.2d 364, 368, 770 P.2d 843 (employee limited to compensation provided for loss of use of scheduled member absent resulting injury to nonscheduled member), rev. denied 245 Kan. 783 (1989).
Stout points to two cases in support of his position—Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 547 P.2d 751 (1976), and McLaughlin v. Excel Corp., 14 Kan.App.2d 44, 783 P.2d 348,rev. denied 245 Kan. 784 (1989).
The facts in Chinn are similar to the facts in the present case. In Chinn, the worker claimed that an injury to his knee caused a change in his posture and gait which resulted in a disability to his back. Knee surgery failed to cure the limp or the pain in his knee and his lower back which intensified with prolonged sitting. The treating physician attributed Chinn's back discomfort to the knee injury, citing the altered walking gait and the resulting posture changes as the cause of his back issues. Applying the secondary injury rule, our Supreme Court held that the scheduled character of the primary injury did not limit the disability award to the scheduled benefit. 291 Kan. at 201.
However, one important fact distinguishes Chinn from the present case. Here, Dr. Wheeler assessed Stout's low back functional impairment as 0% under the AMA Guides. The 0% impairment rating assessed by Dr. Wheeler distinguishes the facts of this case from those in Chinn. In Chinn, the claimant's treating physician and the only medical witness testified that claimant had sustained a permanent partial disability to the back of less than 5%, in addition to his scheduled injury to his left knee. “[T]he factfinders, based on the medical evidence, found that [Chinn's] back condition had reached the point where it was disabling as a new and distinct injury apart from the scheduled knee injury.” 219 Kan. at 201.
When there is undisputed evidence of a functional impairment to a nonscheduled body part, as in Chinn, an award under K.S.A. 44–510e would be logical. However, where a claimant fails to prove a functional impairment to a nonscheduled body part, the Board must deny an award of work disability. See Duncan, 13 Kan.App.2d at 368 (“[I]n order for claimant to be entitled to a finding of general bodily disability, it was incumbent upon him to prove that, as a result of his leg injury, he suffered functional disability to an unscheduled part of his body.”). In the present case, the Board found that Stout had failed to prove the functional impairment to his low back. This finding was supported by substantial competent evidence.
McLaughlin can also be distinguished from the facts of this case and was recently distinguished in Blaskowski v. Cheney Door Co., No. 106,899, 2012 WL 4795580 (Kan.App.2012) (unpublished opinion), rev. denied August 29, 2013. As discussed in Blaskowski, the McLaughlin court held that a nonscheduled injury would be compensable under K.S.A. 44–510e(a) if it either causes functional impairment or work disability. However, the injury to the nonscheduled body part was presumed. Stout ignores the fact that there must first be a “threshold finding of a permanent impairment or disability before applying the formula for work disability.” Blaskowski, 2012 WL 4795580, at *3. In the present case, Stout's task and wage loss can be attributed to a scheduled injury to his left lower extremity. The Board found that Stout failed to meet his burden of proving that his task and wage loss are the result of the nonscheduled injury to his low back.
In this case, the ALJ and the Board ruled that Stout had failed to meet his burden of proof on that threshold finding of a permanent impairment or disability to a nonscheduled body part. Both the ALJ and the Board adopted Dr. Wheeler's medical opinion of no functional impairment, and Stout does not challenge Dr. Wheeler's opinion. If there is no functional impairment, there is no basis to award work disability benefits to Stout for low back functional impairment. The ALJ and the Board were not obligated to adopt the opinion of Stout's expert, Dr. Prostic. Dr. Prostic did not testify that any of his proposed restrictions were based on Stout's low back symptoms, and he did not distinguish between task loss arising from the knee injury and task loss arising from the alleged low back injury. The Board found that Dr. Prostic's examination did not generate “the findings necessary to qualify for DRE II under the AMA Guides, 4th ed. Thus, the finding by Dr. Wheeler that [Stout] had suffered no permanent impairment to his low back is the most persuasive in this record.”
Stout failed to prove a functional impairment to his low back. As indicated above, we do not weigh conflicting evidence except to determine whether the evidence supporting the Board's decision has been so undermined by conflicting evidence that the appellate court no longer has confidence in the substantial nature of the evidence. Herrera–Gallegos, 42 Kan.App.2d at 363. Here, the ALJ and the Board gave a reasonable explanation for adopting Dr. Wheeler's opinion over Dr. Prostic's opinion, finding that Dr. Wheeler's opinion that Stout's low back symptoms failed to qualify as permanent impairment was better supported than Dr. Prostic's opinion. In this case, Dr. Wheeler's opinion has not been undermined by conflicting evidence.
Stout does not challenge the Board's factual findings. The Board found that Stout failed to prove that he suffered a work disability to his lower back. There is substantial evidence in the record when viewed in the light of the record as a whole to uphold the Board's decision.
Affirmed.