Opinion
No. 106,385.
2012-08-31
Michael A. GOUDY, Appellee, v. EXIDE TECHNOLOGIES, and American Zurich Insurance Co. (Risk Enterprise Management), Appellants.
Appeal from Workers Compensation Board. Dustin J. Denning and Jared T. Hiatt, of Clark, Mize & Linville, Chartered, of Salina, for appellants. Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for appellee.
Appeal from Workers Compensation Board.
Dustin J. Denning and Jared T. Hiatt, of Clark, Mize & Linville, Chartered, of Salina, for appellants. Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for appellee.
Before BUSER, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal by Exide Technologies (Exide) of the Workers Compensation Board's (Board) award of disability benefits to their employee, Michael A. Goudy, who suffered a right inguinal hernia while working for Exide. We reverse the Board's ruling.
Factual and Procedural Background
In the summer of 2005, Goudy began working at Exide on the formation line where he filled batteries with acid, charged them, and placed them on another line to be tested. This job required constant lifting of 50–pound batteries. On October 20, 2005, while Goudy was in the process of “throwing a battery,” he strained his “right lower abdominal area” causing a “noticeable bulge in that region.” The injury was diagnosed as a right inguinal hernia.
Goudy notified Exide of the injury, and the company referred him to Dr. David Hanson for medical care. Dr. Hanson then referred Goudy to Dr. Ted Macy for surgical repair of the hernia. On November 9, 2005, Dr. Macy performed a right indirect inguinal herniorrhaphy. After recovery, Dr. Macy released Goudy to light duty work with strengthening exercises and work hardening.
Dr. Macy released Goudy to return to work, without restrictions, on January 15, 2006. Goudy testified that after he returned to his position on the formation line, he “did pretty good,” but he kept experiencing sharp pains in his “lower midsection, groin section” around his beltline. Because of Goudy's complaints about pain, Exide referred him back to Dr. Macy.
About 8 months later, on August 2, 2006, Goudy saw Dr. Macy due to “ongoing problems of right groin pain.” Dr. Macy determined that Goudy's complaints were “compatible with painful scar tissue or possible neuroma,” and he noted that Goudy had some numbness in that area. Dr. Macy injected the area with medicine near the site of Goudy's scar twice during a 2–week period. Dr. Macy also noted the possibility that Goudy would eventually need a referral to a pain clinic.
Goudy voluntarily resigned from Exide, effective September 10, 2006, and began work as a crane operator building ethanol plants for The Industrial Company (TIC) in Nebraska. Goudy took the new position because his job at Exide was “tearing [him] apart,” and he felt like his pain was “getting a little worse.” According to Goudy, operating a crane was “a whole lot easier” than throwing batteries at Exide.
In late 2006 and early 2007, Dr. Macy and Dr. David Smith suspected that Goudy's right groin pain was associated with right ilioinguinal nerve entrapment caused by his surgery. Both doctors indicated that surgical exploration was a reasonable treatment option. Shortly after being scheduled for a second surgery, however, Goudy resigned from his employment at TIC. Goudy testified that although he believed TIC would have additional work for him after his surgery, he quit his job so he could spend time with his daughter. Additionally, Goudy explained that he chose not to return to TIC because he “got cold feet.”
On February 7, 2007, Dr. Macy performed a groin exploration, which included “[e]xcision of scar tissue, division of [Goudy's] nerves [and excision of a neuroma,] and repair of a small direct inguinal hernia.” Dr. Macy also ordered Goudy to remain off work until March 14, 2007. On that date, Dr. Macy noted that Goudy had some improvement following his second surgery. Goudy, however, denied any improvement and claimed a worsened condition.
Following his second surgery, Goudy received weekly disability benefits from Exide's third-party administrator, Risk Enterprise Management (REM). About May 9, 2007, after his payments from REM ceased, Goudy began working, on a cash-only basis, as a subcontractor doing “anything and everything [he] could” such as remodeling, drywall, painting, tile work, repairs, and maintenance. Goudy testified that after his second surgery, he continued to have intermittent pain in his groin area; he stated, “I don't have [pain] every day, but I know—I've had it at least four or five times a week, sometimes more, sometimes less. It comes whenever it wants, and it goes about as fast as it comes.”
According to Goudy, he experiences three separate and distinct pains which never occur at the same time. The first pain began after his first surgery and is located in his “lower midsection, groin section” around his beltline. This pain does not bother him while he is working; instead, it occurs when Goudy is relaxing after work. Goudy described his second pain, which developed after his second surgery, as “around the pubic area there's a real tender spot to the touch. It's real irritating, not—during sex it's aphrodisiac, but after sex is when I feel it in that spot.” Goudy's third pain, a sharp pain which began after his second surgery, occurs around his left testicle when he attempts to stand from a kneeling position. Goudy testified that he does not take pain medication, however, because “[a] pain killer would just make [him] loopy,” and his pain is intermittent rather than constant.
Goudy was ultimately referred to a pain clinic on March 28, 2007, where he received three ilioinguinal and genitofemoral nerve blocks during April and May 2007. After the nerve blocks failed to provide “long-lasting relief,” Goudy returned to Dr. Macy in the summer of 2007. Later, because Goudy indicated that his pain was worse at the end of his workday, Dr. Macy recommended a 50–pound weight restriction on lifting and carrying. On December 5, 2007, repeat nerve blocks were performed.
In April 2008, Goudy was evaluated by yet another physician, Dr. Scott Clarke who opined that Goudy's pain was consistent with ilioinguinal neuritis, which is treated with anti-inflammatory medications. Dr. Clarke also discussed the possibility of a third surgical exploration. Goudy declined.
With regard to employment, Goudy continued to work “odd jobs” as a subcontractor throughout 2007. In 2008, he obtained a tradesman's license and opened his own remodeling business called M.A.G./Pro. Goudy provided many of the same services he performed as a subcontractor; however, he also did some concrete work, brush hogging, mowed grass, cleaned houses, and he trimmed, cut, and removed trees.
On July 10, 2008, Dr. Russell Beamer, a board certified general surgeon, evaluated Goudy, at the request of REM, for an initial assessment and treatment. Dr. Beamer noted that Goudy had “tenderness in the right pubic region”; however, he did not find evidence of a right inguinal hernia. Dr. Beamer also noted a small mass in “the right pubic tubercle region.” Dr. Beamer indicated, however, that Goudy's condition did not require any restrictions to his activities.
Because Dr. Beamer was unable to determine the “etiology of [Goudy's] persistent right groin pain,” he referred him to Dr. David Sollo, a board certified pain management physician and anesthesiologist, for a selective nerve block to determine whether Goudy's pain was “secondary to neuralgia.” In the fall of 2008, Dr. Sollo evaluated Goudy. Dr. Sollo noted that Goudy's sensory exam was “decreased to both pinprick and temperature along [the] incisional area, just superior to it, and radiating down into the inguinal ligament.” He also noted that Goudy had a “trigger point” over his right pubic tubercle. Dr. Sollo opined that Goudy had pubic tubercle osteitis, which did not require treatment. Dr. Sollo testified that osteitis often occurs after a hernia repair.
Dr. Sollo also diagnosed Goudy with right ilioinguinal neuralgia based upon the fact that a neuroma—a formation of tissue around the ends or a branch of a nerve that causes chronic, painful irritation along the distribution of that nerve—was excised during Goudy's second surgery and his “decreased sensation to pinprick and temperature in the right inguinal region.” According to Dr. Sollo, ilioinguinal neuralgia is a typical consequence of a hernia and associated surgeries. Dr. Sollo indicated the neuroma was probably not excised proximally enough during Goudy's second surgery, which resulted in irritation along the remnants of the ilioinguinal nerve.
Dr. Sollo performed a nerve block to numb the nerve, and the purpose of this procedure was to determine whether Goudy received any relief. According to Dr. Sollo, Goudy reported very little relief. Dr. Sollo testified that although Goudy did not obtain long-term relief from the pain block, it did not change his opinion that Goudy suffered from ilioinguinal neuralgia.
Dr. Sollo testified that Goudy's ilioinguinal neuralgia did not cause him any loss of motor control because the ilioinguinal nerve is a sensory nerve only. The doctor also did not believe the neuralgia had caused any associated damage to surrounding tissues. According to Dr. Sollo, Goudy reported that he remodeled homes, which required a lot of dry walling and tile work, and although his pain “slow[ed] his work down,” it did not prevent him from completing it. Consequently, Dr. Sollo did not recommend any further treatment because Goudy's pain was not impacting his work activities.
Following the nerve block, Dr. Beamer reevaluated Goudy on four occasions during 2009. Dr. Beamer indicated that the cause of Goudy's testicular pain remained unknown and it appeared to be unrelated to his prior hernia or subsequent surgeries. According to the doctor:
“He was operated on the right side, so he shouldn't have left testicular pain from his initial injury, which was right-sided pain, nor from his operation. Since this was left testicular pain, I didn't know the etiology of his pain, but it wasn't—should not have been related to either his initial injury ... or his subsequent operations.”
Dr. Beamer opined that Goudy's pain was musculoskeletal in nature and unrelated to neuralgia. This opinion was based on Goudy's response to the nerve block. Dr. Beamer acknowledged, however, that if Goudy did in fact have pain relief for several days following the nerve block, despite what he reported to him, this would be an indication that Goudy's symptoms “could be neurogenic in origin.” Ultimately, the only treatment Dr. Beamer recommended was observation.
On January 4, 2010, Dr. Beamer gave Goudy an impairment rating of 2%. The doctor was unable to identify the resource material he used to arrive at this rating, in particular, whether he consulted the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (Guides). Dr. Beamer explained his impairment rating as follows:
“I do not know the exact etiology of [Goudy's] pain. Since the pain blocks failed, I do not think it is based on ilioinguinal neuralgia. It could be secondary to the inflammation from his prior operations.
“As you know, he used to be a crane operator and has not been able to do that since his operation. He also could not work at Exide Battery in the assembly line because of pain. However, he is able to do remodeling work.
“I recommend a disability of 2%.”
Dr. Beamer was uncertain whether Goudy's pain was a direct result of his hernia or a natural consequence of his hernia surgeries. He did not recommend any permanent work restrictions. According to the doctor, if a certain activity increased Goudy's pain, he should “stay away” from that activity.
On April 17, 2010, Dr. Preston Brent Koprivica, a doctor certified in emergency and occupational medicine, completed an independent medical evaluation of Goudy at the request of Goudy's attorney. Dr. Koprivica noted that Goudy had a “trigger point” on “the medial end of [his] herniorrhaphy scar.” The doctor diagnosed Goudy with chronic ongoing right groin pain and pubic tubercle osteitis—a musculoskeletal complication of Goudy's surgeries—which he felt did not require any specific treatment. When asked if Goudy's musculoskeletal problem developed on the date of his accident, Dr. Koprivica responded, “With the clinical course, I don't believe so.” Finally, Dr. Koprivica diagnosed Goudy with a secondary ilioinguinal neuritis associated with scar entrapment and probable neuroma formation on the ilioinguinal nerve.
Dr. Koprivica was questioned regarding whether Goudy's problems were related to the hernia itself or a structure separate from the hernia, and Dr. Koprivica responded, “[B]oth the musculoskeletal pain which is the abdominal wall and the ilioinguinal neuralgia are structures that are distinct from the hernia so they are the source of ongoing impairment.” Dr. Koprivica further testified that it is possible for a patient to develop a functional impairment from ilioinguinal neuralgia, according to the Guides, even though the ilioinguinal nerve is a sensory nerve. Ultimately, Dr. Koprivica ultimately assigned Goudy a 5% whole person impairment rating, which he derived from the Guides. Dr. Koprivica indicated that the Guides instruct the physician to make an estimate regarding the degree to which the patient's capacity to conduct daily activities has diminished. Although the Guides contain guidelines for rating nerve impairment, the doctor could not find any guidelines for rating impairment associated with the ilioinguinal nerve.
Dr. Koprivica explained that Goudy's “chronic right groin pain, which has a musculoskeletal component and a component of neuralgia, is something that limits activities of daily living,” As a result, Dr. Koprivica recommended the following permanent restrictions on Goudy's activities:
“[S]elf-limiting lifting and carrying to less than 50 pounds, avoiding frequent or constant lifting and carrying, avoiding sustained or awkward postures, such as forward bending, especially against hard surfaces where there is direct pressure put in the right lower abdominal area, would be consistent with the impairment from this condition.”
Dr. Koprivica further opined that Goudy had a task loss of 61% based upon his review of a list of the job tasks Goudy performed in the 15 years preceding his accident. This list was compiled by Goudy and Dick Santner, a retained vocational rehabilitation counselor. Dr. Koprivica acknowledged that his opinion regarding task loss was dependent upon the quality of information Goudy provided him and Santer. Other than avoidance of the above-mentioned exacerbating activities, Dr. Koprivica did not recommend any further treatment.
Goudy remained self-employed from 2008 until 2010. In April 2010, Goudy also started working part-time for Loux Home Improvements doing home repairs and remodeling. When he was not working, Goudy engaged in several hobbies, including fishing, “messing with hot rods,” riding his motorcycle, and playing the guitar, drums, and bass.
On March 8, 2010, Goudy applied for workers compensation. A regular hearing was held on September 7, 2010. At this hearing, Goudy testified to supplement his previous deposition testimony. Drs. Sollo, Beamer, and Koprivica did not testify at the hearing, although the administrative law judge (ALJ) reviewed their deposition testimony. Medical records from Goudy's treating physicians, other than Drs. Sollo, Beamer, and Koprivica, were not included in evidence.
The parties agreed that Goudy was entitled to compensation for his traumatic hernia, a scheduled injury for which benefits are limited to medical expenses and temporary total disability benefits under K.S.A. 44–510d(a)(22). The parties disagreed, however, as to the compensability of Goudy's intermittent groin pain. Specifically, the parties disputed whether Goudy's groin pain constituted “impairment above and beyond the hernia repair,” which would entitle Goudy to permanent partial work disability benefits.
On December 15, 2010, the ALJ issued an award of compensation solely for Goudy's traumatic hernia, and pursuant to K.S.A. 44–510d(a)(22), the ALJ limited Goudy's compensation to the medical expenses and temporary total disability benefits Goudy had already received. The ALJ indicated that future medical expenses would be considered upon proper application. In particular, the ALJ found that Goudy failed to sustain his burden of proof to establish an additional injury to his ilioinguinal nerve, which would remove his claim “from the scheduled injury statute.” The ALJ explained that the evidence regarding whether Goudy suffered from ilioinguinal nerve damage was conflicting and contradictory. Further, the ALJ noted that, notwithstanding Dr. Koprivica's opinion, Goudy had not presented competent evidence indicating that he lost the ability to perform any activities.
On December 21, 2010, Goudy filed an application for review by the Board, alleging that the ALJ erred when it found that he failed to prove the existence of an injury, independent from his traumatic hernia, which resulted in a permanent impairment of function. Goudy argued that the preponderance of the evidence, specifically the testimony of Drs. Beamer, Sollo, and Koprivica, “seems to indicate” that he suffers from two distinct complications from his hernia surgeries, tubercle osteitis and ilioinguinal nerve damage. Goudy also contended that he was entitled to an award for future medical benefits.
On June 7, 2011, the Board issued its order. A majority of three members affirmed the ALJ's determination that Goudy was entitled to compensation for a traumatic hernia and future medical expenses, as appropriate. The majority, however, reversed the ALJ's finding that Goudy had failed to prove an injury distinct from his traumatic hernia. The majority found that Goudy suffers from both a musculoskeletal injury and ilioinguinal nerve damage. Moreover, although these injuries were directly related to Goudy's hernia surgeries, they “are separate and distinct injuries from the hernia .”
The majority adopted Dr. Koprivica's determination that Goudy had a 61% task loss, because this opinion was “[t]he only evidence of [Goudy's] task loss” in the record. The majority explained: “The conundrum [was] determining [Goudy's] wage loss from May 9, 2007, and following” because Goudy's earnings were “nebulous except for the three weeks he worked at Loux Home Improvement,” as he “worked mainly on a cash basis and did not always report all of his subcontracting work earnings.” The majority explained that Goudy's “lackadaisical record keeping ma[de] it nearly impossible to determine what he earned as an independent subcontractor or contractor.” The majority, however, accepted Goudy's testimony regarding his earnings, as summarized in his brief, and found that Goudy “suffered a wage loss of more than 10% of his pre-injury average weekly wage.”
The two remaining Board members wrote a concurring and dissenting opinion. At the outset, the minority explained that Dr. Koprivica's testimony was both credible and persuasive regarding his opinion that Goudy sustained a musculoskeletal injury and ilioinguinal nerve damage—separate and distinct medical conditions and ratable impairments.
The minority disagreed, however, that Goudy proved, by a preponderance of the evidence, these conditions resulted in a permanent impairment of function. Specifically, the minority explained that Dr. Beamer did not recommend any work restrictions, Dr. Sollo testified that Goudy's injuries were not associated with loss of motor control or damage to surrounding tissues, and Goudy's activity level indicated that further treatment was unnecessary. The minority also found that Dr. Koprivica's impairment rating was not credible because it was based solely upon Goudy's pain and a general passage from the Guides rather than a specific table, chapter, or DRE category. Finally, the minority highlighted that Goudy testified that many of his current job tasks exceed Dr. Koprivica's restrictions.
Exide filed a timely appeal.
Substantial Competent Evidence of a Separate and Distinct Injury
Exide contends that substantial competent evidence, when viewed in light of the record as a whole, does not support the Board's finding that Goudy's intermittent groin pain constituted a separate and distinct nonscheduled injury entitling him to work disability benefits beyond those scheduled for a traumatic hernia in K.S.A. 44–510d(a)(22). Goudy counters that substantial competent evidence supports the Board's finding that he sustained both a musculoskeletal injury, tubercle osteitis, and ilioinguinal nerve damage; surgical complications that are separate and distinct from the hernia.
Preliminarily, in workers compensation cases, the statute in effect at the time of the claimant's injury governs the rights and obligations of the parties. See Matney v. Matney Chiropractic Clinic, 268 Kan. 336, 339, 995 P.2d 871 (2000) (declining to apply an amended workers compensation statute because the injury predated the amendment). Moreover, the Kansas Judicial Review Act (KJRA), K.S.A.2011 Supp. 77–601 et seq. , governs this court's standard of review for cases under the Workers Compensation Act, K.S.A. 44–501 et seq. See K.S.A.2011 Supp. 44–556(a); K.S.A.2011 Supp. 77–618(a); K.S.A.2011 Supp. 77–621. The KJRA provisions relating to scope of review were amended effective July 1, 2009. See K.S.A.2011 Supp. 77–621. The KJRA provisions in effect at the time of the agency action are controlling; thus, since the Board's order was issued on June 7, 2011, the amended version of the KJRA is applicable to this case. See K.S.A.2011 Supp. 77–621(a)(2); Redd v. Kansas Truck Center, 291 Kan. 176, 183, 239 P.3d 66 (2010).
An appellate court reviews a challenge to the Board's factual findings in light of the record as a whole to determine whether the findings are supported to the appropriate standard of proof by substantial competent evidence, and whether such evidence exists is a question of law subject to de novo review. See K.S.A.2011 Supp. 77–621(c)(7), (d); Redd, 291 Kan. at 182–83. Since the accident in this case occurred in October 2005, we cite to the applicable workers compensation statutes then in effect. See Matney, 268 Kan. 339. In a workers compensation case, the claimant has the burden of proof to establish his or her right to an award of compensation and to prove the various conditions on which the right depends. K.S.A.2005 Supp. 44–501(a). In this context, “ ‘[b]urden of proof means the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party's position on an issue is more probably true than not true on the basis of the whole record.” K.S.A.2005 Supp. 44–508(g). Although not statutorily defined, “substantial evidence” refers to “evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis of fact from which the issue raised could be easily resolved. [Citation omitted.]” Redd, 291 Kan. at 183–84.
K.S.A.2011 Supp. 77–621(d) defines “ ‘in light of the record as a whole’ “ as follows:
“For purposes of this section, ‘in light of the record as a whole’ means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77–620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency's explanation of why the relevant evidence in the record supports its material findings of fact.”
Under that standard of review, this court must not reweigh evidence or engage in de novo review. K.S.A.2011 Supp. 77–621(d).
Under the Workers Compensation Act, the amount of compensation an injured worker is entitled to receive depends upon the nature of his or her disability. Casco v. Armour Swift–Eckrich, 283 Kan. 508, 522, 154 P.3d 494 (2007). Workers suffering from temporary and permanent total disabilities are compensated according to K.S.A. 44–510c. Casco, 283 Kan. at 522. Permanent partial disabilities, on the other hand, are compensated under K.S.A. 44–510d and K.S.A. 44–510e. Casco, 283 Kan. at 522.K.S.A. 44–510d calculates an injured worker's award based upon a schedule of disabilities, and “[t]he compensation for a scheduled disability is based on the schedule alone without regard to the claimant's loss in earning power. [Citation omitted.]” Casco, 283 Kan. at 522. If the worker's disability is not included on the schedule, the award is calculated under K.S.A. 44–510e. Casco, 283 Kan. at 522.
A traumatic hernia is a scheduled injury under K.S.A. 44–510d, and a worker who sustains such an injury is limited to the compensation articulated in subsection (a)(22):
“For traumatic hernia, compensation shall be limited to the compensation under K.S.A. 44–510h and 44–510i and amendments thereto, compensation for temporary total disability during such period of time as such employee is actually unable to work on account of such hernia, and, in the event such hernia is inoperable, weekly compensation during 12 weeks, except that, in the event that such hernia is operable, the unreasonable refusal of the employee to submit to an operation for surgical repair of such hernia shall deprive such employee of any benefits under the workers compensation act.” K.S.A. 44–510d(a)(22).
According to the Kansas Supreme Court: “Scheduled injuries are the general rule and nonscheduled injuries are the exception.... If an injury is on the schedule, the amount of compensation is to be in accordance with K.S.A. 44–510d.” Casco, 283 Kan. 508, Syl. ¶ 7. In fact,
“[w]hen a worker's injury results in objective physical damage to a member of his body which is included in the schedule under K.S.A. 44–510d, and general bodily disability arises solely by reason of the resulting physical limitations inherent in the loss of use of that scheduled member, the worker is limited to the compensation provided for loss of use of the scheduled member.” Duncan v. City of Osage City, 13 Kan.App.2d 364, Syl. ¶ 1, 770 P.2d 843,rev. denied 245 Kan. 783 (1989).
Under the secondary injury rule, however, an injured worker is entitled to compensation “for all of the natural consequences arising out of an injury, including any new and distinct injuries that are the direct and natural result of the primary injury. [Citation omitted.]” Casco, 283 Kan. at 515. Additionally, our courts have held that when a worker sustains an injury to both a scheduled member and a nonscheduled portion of the body, compensation should be calculated according to K.S.A. 44–510e. See Goodell v. Tyson Fresh Meats, 43 Kan.App.2d 717, 731, 235 P.3d 484 (2009). Thus, in order for an injured worker suffering from a scheduled disability to obtain benefits under K.S.A. 44–510e, it is incumbent upon him or her to prove that as a result of the scheduled injury, he or she sustained a functional disability to an unscheduled part of the body. Duncan, 13 Kan.App.2d at 367–68.
In the present case, the ALJ issued an award solely for Goudy's traumatic hernia, and under K.S.A. 44–510d(a)(22), the ALJ limited his compensation to medical expenses and temporary total disability benefits. The ALJ found that Goudy failed to sustain his burden of proof to establish an additional injury, stating that “[i]ntermittent pain following hernia repair surgery, which does not affect the ability to perform daily activities, does not remove the hernia” from the application of K.S.A. 44–510d(a)(22).
The Board, however, reversed the ALJ's determination. The three-member majority found that Goudy suffers from both a musculoskeletal injury and ilioinguinal nerve damage and that although these injuries were directly related to Goudy's hernia surgeries, they “are separate and distinct injuries from the hernia” entitling Goudy to permanent partial disability benefits under K.S.A. 44–510e. For its part, Exide argues that substantial competent evidence does not support the Board's finding that Goudy suffers from anything other than intermittent postsurgical groin pain, a typical result of a hernia and associated surgical repair.
Our court has held that “nerve injuries [which develop as a natural consequence of a traumatic hernia] are not the same injury as the hernia injury[,] are not governed by K.S.A. 44–510d(a)(22),” and are compensable under the Workers Compensation Act. Lozano v. Excel Corp., 32 Kan.App.2d 191, 193, 81 P.3d 447 (2003). Lozano sustained a traumatic inguinal hernia, during his employment with Excel Corporation. Following two hernia surgeries, Lozano was diagnosed with “neurolysis of the ilioinguinal and genitofermoral nerves.” 32 Kan.App.2d at 191–92. Our court affirmed the Board's decision to award Lozano permanent partial disability benefits under K.S.A. 44–510e because there was substantial competent evidence that the nerve damage was a natural consequence of the hernia. 32 Kan.App.2d at 193–95. Moreover, in Rondon v. Tyson Fresh Meat, Inc., No. 98,101, unpublished opinion filed April 11, 2008, slip op. at 11–12, a panel of this court reaffirmed the notion that nerve damage is a separate and distinct injury from a traumatic hernia; however, the panel found that substantial competent evidence did not support a finding that Rondon suffered from such an injury.
In short, in the present case, the Board did not err if substantial competent evidence supports the finding that as a result of Goudy's traumatic hernia, he sustained nerve damage, an unscheduled injury. As the ALJ noted, the evidence regarding whether Goudy sustained a nerve injury apart from the traumatic hernia was conflicting and contradictory. However, it appears that substantial competent evidence supports the findings of the Board.
Both Dr. Sollo and Dr. Koprivica agreed that Goudy suffers from ilioinguinal neuralgia. Dr. Sollo diagnosed Goudy with right ilioinguinal neuralgia based upon the fact that a neuroma was excised during Goudy's second surgery and Goudy exhibited “decreased sensation to pinprick and temperature in the right inguinal region.” Dr. Koprivica also diagnosed Goudy with a secondary ilioinguinal neuritis associated with scar entrapment and probable neuroma formation on the ilioinguinal nerve, and he indicated that Goudy had a “trigger point” on “the medial end of [his] herniorrhaphy scar.”
On the other hand, Dr. Beamer opined that Goudy's pain was purely musculoskeletal in nature and unrelated to neuralgia. Dr. Beamer based his opinion on Goudy's lack of improvement after having the nerve block. Dr. Sollo, however, explained that Goudy probably did not obtain relief from the nerve block because the injection of anesthetic did not actually strike the nerve. Notably, Dr. Koprivica agreed with Dr. Sollo's rationale. Finally, both doctors agreed that the fact that Goudy did not obtain long-term relief from the pain block did not change their opinion that Goudy suffered from ilioinguinal neuralgia.
We conclude, when viewed in light of the record as a whole, that substantial competent evidence supports the Board's finding that Goudy sustained a separate and distinct nonscheduled injury, ilioinguinal nerve damage, which could entitle him to work disability benefits beyond those scheduled for a traumatic hernia in K.S.A. 44–510d(a)(22).
Award of Benefits Pursuant toK.S.A. 44–510e
Exide contends the Board erred when it awarded Goudy benefits under K.S.A. 44–510e.
As explained above, when a worker sustains an injury that is not included in the schedule of disabilities articulated in K.S.A. 44–510d, benefits are calculated pursuant to K.S.A. 44–510e, which provides, in 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.... An employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury.”
Under K.S.A. 44–510e(a), permanent partial general disability benefits may be calculated in two ways—“(1) based on a statutorily defined work disability or (2) based on overall functional impairment”—and the injured worker receives the greater of these two awards. Stephen v. Phillips County, 38 Kan.App.2d 988, 990, 174 P.3d 452,rev. denied 286 Kan. 1186 (2008). K.S.A. 44–510e(a) prohibits an injured worker from receiving compensation in excess of the percentage of functional impairment “for ‘as long as' he or she is earning at least 90% of the pre-injury wage.” 38 Kan.App.2d at 990.
The Board found that Goudy's nerve injuries caused him to suffer a 5% permanent impairment of function to the body as a whole. The Board also found that Goudy sustained a statutorily defined work disability, and because it calculated the work disability as the greater of the two awards, it awarded Goudy work disability benefits. Exide challenges both of these findings.
Once again, we review 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 competent evidence, and whether such evidence exists is a question of law subject to de novo review. See K.S.A.2011 Supp. 77–621(c)(7), (d); Redd, 291 Kan. at 182–83. Additionally, resolution of this issue also requires us to interpret K.S.A. 44–510e, which is a question of law over which we exercise unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
Exide argues that the Board erred when it awarded Goudy disability benefits under K.S.A. 44–510e because the Board's findings that Goudy suffered a 61% task loss and a wage loss of more than 10% of his preinjury average weekly wage were not supported by substantial competent evidence.
The calculation of work disability, under K.S.A. 44–510e, is based upon two factors: “(1) medical evidence of the employee's percentage loss of ability to perform work-related tasks and (2) the employee's actual wage loss (calculated as the percentage of pre-loss wages that the employee is now unable to earn).” Stephen, 38 Kan.App.2d at 990. After the task loss and wage loss percentages are calculated, the percentages are averaged and a formula is utilized to calculate the injured worker's permanent partial general disability award. Stephen, 38 Kan.App.2d at 990; see K.S.A. 44–510e(a).
A three-member majority of the Board found that Goudy had a task loss of 61% and “suffered a wage loss of more than 10% of his pre-injury average weekly wage.” The ALJ and two dissenting Board members disagreed, however, that Goudy proved by a preponderance of the evidence that he suffered from conditions, distinct from his traumatic hernia, that resulted in a permanent impairment of function or task loss. We will individually analyze Goudy's task and wage loss to determine if the Board's findings are supported by substantial competent evidence.
Task Loss
Task loss is calculated as a means for ultimately arriving at an appropriate award that takes into account the wages lost because of an injury. Gustin v. Payless Shoesource, Inc., 46 Kan.App.2d 87, 93, 257 P.3d 1277 (2011). Task loss is defined as “ ‘the extent ... 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.’ “ Stephen, 38 Kan.App.2d at 994. In other words, “K.S.A. 44–510e(a) clearly establishes the proof necessary to establish task loss: a physician's opinion that the injured worker has lost the ability to perform a calculated percentage of the work tasks that the worker formerly performed while employed in the 15 years before the accident.” Gustin, 46 Kan.App.2d at 95.
The Board adopted Dr. Koprivica's determination that Goudy had a 61% task loss because it was “[t]he only evidence of [Goudy's] task loss” in the record. The ALJ and a minority of the Board disagreed. The minority explained that Dr. Beamer did not recommend any work restrictions, Dr. Sollo testified that Goudy's injuries were not associated with loss of motor control or damage to surrounding tissues, and Goudy's activity level indicated that further treatment was unnecessary. The minority also pointed out: “Many of claimant's current job tasks exceed Dr. Koprivica's restrictions.”
Exide contends that the Board's task loss finding is not supported by substantial competent evidence because conflicting evidence, specifically the testimony of Drs. Beamer and Sollo, outweighs the Board's reliance on Dr. Koprivica's testimony. Goudy counters that Dr. Koprivica's testimony is sufficient. Additionally, Goudy points out that although Dr. Beamer felt that no work restrictions were necessary, he did acknowledge that Goudy should avoid activities that cause him pain.
While Dr. Koprivica's medical opinion is some evidence which supports the Board's conclusion that Goudy suffers from a task loss of 61%, our review of the record persuades us that his testimony is undermined such that a reasonable person would no longer accept it as substantial. We reach this conclusion given Goudy's testimony regarding his activity level and the expert testimony of Drs. Beamer and Sollo.
Dr. Koprivica opined that Goudy had a task loss of 61% based upon his review of a list of the job tasks Goudy performed in the 15 years preceding his accident. Dr. Koprivica explained that Goudy's “chronic right groin pain ... is something that limits activities of daily living.” As a result, Dr. Koprivica recommended the following permanent restrictions on Goudy's activities: “[S]elf-limiting lifting and carrying to less than 50 pounds, avoiding frequent or constant lifting and carrying, avoiding sustained or awkward postures, such as forward bending.” Dr. Koprivica did not recommend any further therapeutic treatment.
Goudy's testimony, however, establishes that he did not, in fact, suffer a task loss because he continues to perform all of the tasks Dr. Koprivica recommended as permanent restrictions. First, after his first surgery, Goudy was eventually released to return to his position at Exide without restrictions. Goudy testified that after he returned to his position on the formation line, he “did pretty good,” but he kept experiencing sharp pains in his “lower midsection, groin section” around his beltline. At his deposition, Exide's counsel asked him to rate this pain on a scale of 1 to 10, with 10 being the worst pain he had ever experienced, and Goudy responded as follows, “[O]h, there's that rating thing. I don't know, it was very irritating, I wasn't crying or nothing. I'm going to say three or four, you know.” Goudy remained at Exide for approximately 8 months before he voluntarily resigned. He never testified that he accepted the position at TIC because of his pain level.
Moreover, Goudy testified that after his second surgery, he continued to have intermittent pain in his “groin area.” But Goudy testified that he does not take pain medication because “[a] pain killer would just make [him] loopy,” and his pain is intermittent rather than constant and does not occur on a daily basis. In short, Goudy's own testimony highlights the sporadic and occasional nature of the pain even without the use of any pain medication.
Further, following his second surgery and after his payments from REM ceased, Goudy began working as a subcontractor doing “anything and everything [he] could” such as remodeling, drywall, painting, tile work, repairs, and maintenance. When asked if this work required heavy lifting, Goudy responded:
“Well, yeah, I mean, you pick up a box of drywall mud and it's 50 pounds, or five gallons of paint, you know, is basically around the same weight, you know. I never did any dry—putting up drywall by myself because it was too awkward and, you know, anytime I always helped or had help.”
Goudy continued to work “odd jobs” as a subcontractor and contractor from 2007 through 2010. In fact, in 2008 Goudy obtained a tradesman's license and opened his own remodeling business called M.A.G./Pro. Goudy testified that he performed the following labor-intensive tasks: remodeling, repairs, maintenance, concrete work, drywall, painting, tile work, brush hogging, mowed grass, cleaned houses, and he trimmed, cut, and removed trees. Goudy also testified that he continues to enjoy several hobbies including “messing with hot rods,” riding his motorcycle, and playing the guitar, drums, and bass.
Finally, both Drs. Sollo and Beamer testified that Goudy's injuries did not appear to be impacting his activities. Dr. Beamer did not recommend any permanent work restrictions. He simply suggested that if a certain activity increased Goudy's pain, he should “stay away” from that activity. Dr. Sollo testified that Goudy's ilioinguinal neuralgia did not cause any loss of motor control because the ilioinguinal nerve is a sensory nerve. Additionally, Dr. Sollo noted that he did not think that the neuralgia had caused any damage to surrounding tissues. In fact, Dr. Sollo did not recommend any further treatment because Goudy's pain did not appear to be impacting his activities. According to Dr. Sollo, Goudy reported that he remodeled homes, which required a lot of dry walling and tile work, and although his pain “slow[ed] his work down,” it did not prevent him from completing the work.
Employing our standard of review, we conclude that substantial competent evidence does not support the Board's conclusion that Goudy sustained a 61% task loss. On the contrary, there is substantial and persuasive testimony that Goudy did not sustain a compensable task loss.
Wage Loss
Wage loss is defined as “ ‘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.’ “ Stephen, 38 Kan.App.2d at 994.
The ALJ found:
“Some of the work [Goudy] performs is done for cash. He reports as much of the cash income ‘as he can.’ When his business and income records were subpoenaed, he was unable to produce any documentation of his income since 2006. All of the requested documentation was ostensibly with his book-keeper, whom he could not locate. [Goudy] has produced no reliable evidence of his earnings since 2006.”
The ALJ had an opportunity to assess Goudy's credibility in this regard. We consider the ALJ's use of the word “ostensibly” as raising doubt about this claim and, necessarily, suggesting doubt about Goudy's credibility on the issue of wage loss.
A majority of the Board found that Goudy “suffered a wage loss of more than 10% of his pre-injury average weekly wage.” However, the Board explained that “[t]he conundrum [was] determining [Goudy's] wage loss from May 9, 2007, and following” because Goudy's earnings were “nebulous except for the three weeks he worked at Loux Home Improvement,” as he “worked mainly on a cash basis and did not always report all of his subcontracting work earnings.” The majority explained that Goudy's “lackadaisical record keeping makes it nearly impossible to determine what he earned as an independent subcontractor or contractor.” (Emphasis added.) Despite these shortcomings and the ALJ's questioning of Goudy's credibility, however, the majority accepted Goudy's testimony regarding his earnings.
In order to resolve this issue, it is first necessary to review the evidence regarding Goudy's wage loss. At Exide, prior to his injury in 2005, Goudy earned a gross average weekly wage with benefits and additional compensation yielding a gross average salary of $1,226.33. After his accident on October 20, 2005, Goudy continued to work for Exide, for comparable wages, until September 10, 2006.
Goudy worked at TIC from approximately September 11, 2006, until February 6, 2007. While working at TIC, Goudy earned $22 an hour plus a $65 per diem for room and board. Additionally, Goudy worked approximately 10 to 12 hours of overtime per week, for which he was paid time and a half.
Following his second surgery, Goudy received temporary total disability benefits from REM in the aggregate sum of $6,071, or $467 per week for 13 weeks. Goudy also received temporary partial disability benefits totaling $4,261. REM also paid Goudy's medical expenses, which totaled $24,898.68.
About May 9, 2007, following his second surgery and after payments from REM ceased, Goudy began working, on a cash-only basis, as a subcontractor, and he worked “odd jobs” throughout 2007. Goudy testified that he did not file a tax return for 2007, and he was unable to quantify the amount of money he earned.
In 2008, Goudy obtained his tradesman's license and opened his own remodeling business. According to Goudy, although the majority of his business was bid work, he typically charged about $12 to $13 per hour. Additionally, Goudy testified that he tried to obtain at least 40 hours of work per week. Goudy's tax return for 2008 indicated that he earned business income totaling $5,086; however, according to Goudy his income may have been “a little more” because he had trouble maintaining his bookkeeping. Goudy estimated that in contrast to the amount of income he reported on his tax return, he probably earned $7,000 in 2008.
Goudy remained self-employed throughout 2009. Goudy's 2009 tax return reflected a business income of $12,947, which Goudy indicated was an accurate statement of his income. Goudy estimated that he earned approximately $2,000 from January 1, 2010, to April 15, 2010. In April 2010, in addition to running his business, Goudy worked part-time for a few weeks for Loux Home Improvements doing home repair and remodeling for $12 an hour. Goudy estimated that he worked somewhere between 20 and 30 hours per week during that time.
From May 6, 2010, through about September 7, 2010, Goudy worked various jobs, such as “brush hogging” a farm, fixing a toilet, and removing water from a basement. Goudy testified that he earned $13 an hour at the “brush hogging” job, but it is unclear how many hours he worked. Additionally, Goudy testified that he cleaned a hoarder's home for about $9,000.
Goudy had the burden to prove his right to compensation and the various conditions on which the right depends. See K.S.A.2005 Supp. 44–501(a); K.S.A.2005 Supp. 44–508(g). Having independently reviewed the record we are not persuaded that Goudy met his burden. The evidence of wage loss was not “substantial” or “evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis of fact from which the issue raised could be easily resolved. [Citation omitted.]” See Redd v. Kansas Truck Center, 291 Kan. 176, 183–84, 239 P.3d 66 (2010). The only evidence of wage loss Goudy presented was his testimony which primarily consisted of conjecture, estimations, and inconsistencies. Moreover, Goudy's credibility was specifically challenged by the ALJ, a point not addressed by the Board majority. These considerations, coupled with the lack of any primary documentation of wages earned by Goudy since 2006, convince us that Goudy has failed to prove a substantial wage loss.
When viewed in light of the record as a whole, substantial competent evidence does not support the Board's finding that Goudy suffered a wage loss of more than 10% of his preinjury average weekly wage.
5% Permanent Impairment of Function to the Body as a Whole
Finally, Exide also challenges the Board's determination that Goudy suffered a 5% permanent impairment of function to the body as a whole from his nerve injuries because this finding is not supported by substantial competent evidence. Specifically, Exide argues that the Board's reliance upon Dr. Koprivica's 5% impairment rating was misplaced because the Guides provide “no specific mechanism for rating damage or injury to the ilioinguinal nerve.” Moreover, Exide argues that Goudy's injury does not preclude him from performing normal activities and the ilioinguinal nerve is a sensory nerve that does not affect motor control or cause damage to surrounding tissue. Goudy counters that caselaw supports the notion that an impairment of function can result from a nerve injury and substantial competent evidence supports the Board's finding that he suffered a 5% impairment of function.
According to K.S.A. 44–510e, “[f]unctional 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.” K.S.A. 44–510e indicates that functional impairment should be calculated according to the fourth edition of the Guides, if the impairment is contained therein. See Stephen, 38 Kan.App.2d at 990. However, the fact that the Guides do not contain an impairment rating for the disability at issue does not necessitate a finding of zero impairment. Goodell v.. Tyson Fresh Meats, 43 Kan.App.2d 717, Syl. ¶ 7, 235 P.3d 484 (2009).
The ALJ rejected Dr. Koprivica's impairment rating and found that Goudy did not suffer a permanent impairment of function:
“Dr. Koprivica is the only physician to offer a permanent impairment rating ostensibly based on the Guides. However, he based his rating on that section of the Guides that refers to the loss of ability to perform daily activities. There is no competent evidence before the court that Claimant has lost the ability to perform any activities due to intermittent pain following his hernia repairs.... Claimant continues to perform all of the activities that he performed prior to his injury and surgeries, although he claims to work slower and self-limit some activities. He acknowledges lifting buckets of paint and drywall compound that weigh 50 pounds. He does drywall work, tile work, painting and window repairs. He also operates equipment, including a ‘brush hog,’ rides his motorcycle, and works on cars.”
The Board disagreed with the ALJ and found that Goudy suffered a 5% permanent impairment of function to the body as a whole based on Dr. Koprivica's opinion. A dissenting minority of the Board, however, agreed with the ALJ.
Dr. Koprivica testified that it is possible for a patient to develop a functional impairment from ilioinguinal neuralgia, according to the Guides, even though the ilioinguinal nerve is a sensory nerve. Dr. Koprivica explained, “And in particular, when you look at—I'm blank on the table but when you assign impairment for the sensory portion of nerve function, they look at dysesthesias which is the painful sensation from a damaged nerve as being impairing.”
Dr. Koprivica assigned Goudy a 5% whole person impairment rating, which he derived from the Guides:
“I derived [the impairment rating by] looking at the definition of impairment on page two [of the Guides] and making reference to similar levels of loss of functional capabilities on conditions that are specifically diagnosed in the Fourth Edition of the Guides; namely, chronic back pain that is soft tissue in nature is a five percent impairment.”
Dr. Koprivica indicated that although the Guides contain guidelines for rating nerve impairment generally, he could not find any guidelines for rating impairment specifically associated with the ilioinguinal nerve. The doctor explained, however, that Goudy's “chronic right groin pain ... limits activities of daily living,” which resulted in his recommendation of permanent restrictions.
Dr. Koprivica's medical opinion constitutes some evidence to support the Board's conclusion regarding Goudy's impairment of function. The doctor's testimony is undermined, however, such that a reasonable person would not accept it as substantial, because of Goudy's testimony regarding his activity level and the expert testimony of Drs. Beamer and Sollo.
First, Dr. Koprivica testified that his impairment rating was based upon page two of the Guides, which he attached to his independent medical evaluation. That page indicates: “An impairment percentage derived by means of the Guides is intended, among other purposes, to represent an informed estimate of the degree to which an individual's capacity to carry out daily activities has been diminished.” As explained in the Guides:
“An impaired individual is handicapped if there are obstacles to accomplishing life's basic activities that can be overcome only by compensating in some way for the effects of the impairment. Such compensation or accommodation often entails the use of assistive devices, such as crutches, wheelchairs, elevators, hearing aids, optical magnifiers, prostheses, or special tools or equipment. Accommodation may include modification of the environment.
“If an impaired individual is not able to accomplish a specific task or activity despite accommodation, or if no accommodation exists that will enable completion of the task, then that individual is both handicapped and disabled. However, an impaired individual who is able to accomplish a specific task with or without accommodation is neither handicapped nor disabled with regard to that task.”
When compared to this section of the Guides, Goudy's testimony elucidates the fact that he does not suffer from a permanent impairment of function because, as explained above, it appears that he performs all of the tasks Dr. Koprivica utilized as the factual basis for his impairment rating. Moreover, both Dr. Sollo and Dr. Beamer testified that Goudy's injuries did not appear to be impacting his activities.
We are persuaded that Dr. Koprica's testimony was not substantial competent evidence of Goudy's impairment of function because of a lack of factual basis and conflicting expert medical evidence. As a result, the Board's finding on this issue was in error.
Goudy was required under K.S.A.2005 Supp. 44–501(a) to establish his right to an award of compensation “by prov[ing] the various conditions on which the claimant's right depends.” For all of the reasons stated, we hold that Goudy did not meet his burden. Accordingly, the Board erred when it awarded Goudy permanent work disability benefits under K.S.A. 44–510e.
Reversed.