Opinion
No. 108,671.
2013-11-1
Mary K. LAWSON, Appellant, v. COFFEYVILLE REGIONAL MEDICAL CENTER and Kansas Hospital Association WCF, Inc., Appellees.
Appeal from Workers Compensation Board. William L. Phalen and Crystal D. Marietta, of Pittsburg, for appellant. Douglas A. Dorothy and Wade A. Dorothy, of Dorothy Law Firm LLC, of Overland Park, for appellees.
Appeal from Workers Compensation Board.
William L. Phalen and Crystal D. Marietta, of Pittsburg, for appellant. Douglas A. Dorothy and Wade A. Dorothy, of Dorothy Law Firm LLC, of Overland Park, for appellees.
Before STANDRIDGE, P.J., SCHROEDER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Mary K. Lawson was awarded permanent partial disability by an administrative law judge (ALJ) for “cracked, scaling skin on both hands.” The Workers Compensation Board (Board) affirmed the ALJ. Lawson appeals, arguing that the Board erred in not finding a whole body injury and, alternatively, that the Board erred in not awarding her compensation for a permanent total disability. We find no error and affirm the Board.
Facts
Lawson was employed as a housekeeper by Coffeyville Regional Medical Center (Hospital). In the course of her employment, she developed a rash on her hands that was not resolved by switching the type of gloves or by wearing two gloves at the same time.
Lawson was terminated on April 19, 2010. Afterward, she continued to have scaling, cracking, and sores on her hands and filed this workers compensation claim. Lawson was examined by Dr. Pedro Murati, who diagnosed her with contact dermatitis. Dr. Murati observed “open sores, the skin and the hands were reddened and there were some blisters evident.” These symptoms persisted even with treatment. Dr. Murati assigned Lawson an impairment rating of 10 percent whole body impairment based on the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed.1995). Dr. Murati also said if Lawson's injuries were a whole body injury, the rating would be eight percent upper extremity (five percent whole body per hand) or, if the injuries were limited to the hands, a nine percent impairment per hand. Dr. Murati also referred Lawson to Dr. Jeffrey A. Wald, an allergist.
Dr. Wald examined Lawson and noted she showed “evidence of ulceration as well as induration.” He also suspected Lawson had an underlying case of eczema that “was worsened by her workplace exposure.” Dr. Wald opined “with proper medical care, this should not be an ongoing disability” and recommended three topical treatments and the use of cotton gloves. Dr. Murati disagreed with Dr. Wald's opinion that Lawson's injuries would resolve with proper medical treatment. Dr. Murati claimed Lawson's contact dermatitis would not resolve “unless the human race stops cleaning stuff” because continued exposure from the “activities of daily living” would continue to exacerbate her injuries. He also described her eczema as an “overactive immune system ... in her bone marrow ... all over the body” and distinguished Lawson's particular injuries from a knife wound to the hand.
Lawson was also interviewed by Karen Terrill, a rehabilitation consultant. Terrill identified 36 relevant job tasks during Lawson's past employment. Dr. Murati restricted her from 18 of these tasks.
The Hospital admits Lawson “met with personal injury by accident” and that the “injury arose out of and in the course of her employment.” After the hearing, the ALJ awarded Lawson a nine percent impairment to each hand, finding her injuries were limited to the hands. Lawson presented no evidence of injury to the arms or other areas of skin. The ALJ also noted that scheduled injuries are “the general rule,” relying on Casco v. Armour Swift–Eckrich, 283 Kan. 508, Syl. ¶ 7, 154 P.3d 494 (2007).
Lawson petitioned for review by the Board, alleging that the ALJ “erred in his findings regarding the nature and extent of [Lawson]'s disability” and by not finding a permanent total disability. Before the Board the parties stipulated “if [Lawson]'s award is limited to two scheduled injuries pursuant to K.S.A. 44–510d, then ... [Lawson] has suffered a 9 percent functional impairment to each upper extremity at the level of the hand.” The Board affirmed the ALJ, finding Lawson had failed to meet her burden of proof regarding entitlement to a whole body injury award. The Board found Lawson had only demonstrated injuries to her hands, a scheduled injury, which Dr. Murati had rated at a nine percent impairment to each hand. The Board also found that the rebuttable presumption of permanent partial disability for the loss of both hands had been “rebutted by the fact that [Lawson] has only the one restriction [of contact with cleaning fluids], that she can still perform 18 of 36 former tasks and the fact no expert, medical or vocational, has found claimant is permanently and totally disabled.”
Analysis
Did the Board Err in Awarding Compensation for a Scheduled Injury?
On appeal, Lawson maintains the injury to the skin on her hands entitled her to a whole body injury calculation as the skin is the largest organ and covers the entire body.
Standard of Review
K.S.A.2012 Supp. 44–556(a) directs that final orders of the Board are subject to review upon direct appeal to this court under the Kansas Judicial Review Act (KJRA), K.S.A. 77–601 et seq. , as amended. See K.S.A. 77–609a(I). A person qualifies for judicial review upon showing standing, exhaustion of administrative remedies, and timely filing a petition for judicial review. K.S.A. 77–607(a). A petitioner “may seek any type of relief available under K.S.A. 77–622 and amendments thereto.” K.S.A. 77–610. The reviewing court is only able to grant that relief if it finds one or more instances of error enumerated at K.S.A.2012 Supp. 77–621(c). Unless aparticular statute provides otherwise, the petitioner has the burden of proving that the agency action was invalid. K.S.A.2012 Supp. 77–621(a)(1). Although the Kansas Supreme Court has now twice opined that the “standard of review will vary depending on the issue raised,” see Fernandez v. McDonalds, 296 Kan. 472, 475, 292 P.3d 311 (2013), accord Saylor v. Westar Energy, Inc., 292 Kan. 610, 614, 256 P.3d 828 (2011), the plain text of the statute reveals only a single standard of review: whether, as a matter of law, any of the sources of error enumerated at K.S.A.2012 Supp. 77–621(c) are present in the record below. Indeed, K.S.A.2012 Supp. 77–621(d) precludes the reviewing court from engaging in de novo review of the factual determinations of the agency. See Petersen–Klein & Paschang, 2013 Kansas Annual Survey, Kansas Bar Association, Administrative Law, pp. 2–3.
Misapplication of K.S.A 44–510d and K.S.A. 44–510e
Lawson argues that the Board erroneously interpreted K.S.A. 44–510d and K.S.A. 44–510e when it determined that the injuries to the skin on her hands were scheduled injuries under K.S.A. 44–510d instead of whole body injuries under K.S.A. 44–510e. This assertion of invalid agency action is within the scope of review provided for by the KJRA. K.S.A.2012 Supp. 77–621(c)(4).
We now consider the nature and extent of her injuries as a permanent partial disability or a permanent total disability and as a scheduled injury or an injury to the body as a whole.
“(a) Where disability, partial in character but permanent in quality, results from the injury, the injured employee shall be entitled to ... [medical compensation and medical benefits].... If there is an award of permanent disability as a result of the injury ... compensation is to be paid for not to exceed the number of weeks allowed in the following schedule:
....
(11) For the loss of a hand, 150 weeks.” K.S.A. 44–510d(a)(11).
“(a) ... [I]n case of a whole body injury [resulting in temporary or permanent partial general disability] not covered by the schedule in K.S.A. 44–510d and amendments thereto, ... the employee shall receive weekly compensation as determined in this subsection during such period of temporary or permanent partial general disability not exceeding a maximum of 415 weeks.... 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.” (Emphasis added.) K.S.A. 44–510e(a).
In support of her request for permanent partial general disability, Lawson cites one case involving contact dermatitis and one case involving “skin covering a scheduled injury body part.” In Garcia v. Tyson Fresh Meats, Inc., 34 Kan.App.2d 843, 846, 125 P.3d 580,rev. denied 281 Kan. 1377 (2006), an employee whose hands were exposed to dirty water and to dirty laundry developed contact dermatitis and was awarded a “10% whole body permanent partial impairment.” In Webber v. Automotive Controls Corp., 272 Kan. 700, 701–02, 35 P.3d 788 (2001), an employee had “dust and chemicals” blown into her eye with an air hose by another employee and suffered “eyelid disfigurement” for which she was awarded a 15% partial general bodily disability.
The Hospital distinguishes Garcia by arguing it discussed an occupational disease and was decided prior to Casco, 283 Kan. 508, 154 P.3d 494. A more important distinction should be drawn—the panel in Garcia was not asked to review and thus did not affirm or consider the Board's determination that the employee suffered a 10% whole body injury. The only issue on appeal was whether the employee could receive benefits when he “had not lost any wages as a result of [his] injury.” 34 Kan.App.2d at 846, 125 P.3d 580. Consequently, Garcia is not persuasive authority to support Lawson's argument that contact dermatitis is a whole body injury not subject to the schedule of injuries at K.S.A. 44–510d.
The Hospital distinguishes Webber by arguing it actually bolsters the Hospital's argument, as the Kansas Supreme Court in Webber recognized the eyelids are part of the face, which is not a scheduled injury body part. Neither party acknowledges the sole issue on appeal in Webber was causation, i.e., whether the Board had substantial competent evidence to determine contact with dust and chemicals caused the employee's injuries. See 272 Kan. at 705, 35 P.3d 788.
The hospital points out our Supreme Court has held scheduled injuries under K.S.A. 44–5 lOd are the general rule and whole body injuries are the exception. See Redd v. Kansas Truck Center, 291 Kan. 176, 195, 239 P.3d 66 (2010) (citing Casco, 283 Kan. at 528, 154 P.3d 494);Pruter v. Lamed State Hospital, 271 Kan. 865, 873, 26 P.3d 666 (2001) (“we agree with the Court of Appeals' reasoning that scheduled injuries are the general rule and nonscheduled injuries are an exception to the rule”). Where, as here, an injury occurs only upon a scheduled injury body part, “the scheduled injury provisions in K.S.A. 44–510d(a)(1)–(22) [would be rendered] meaningless” if the Board calculated the impairment as a whole body injury and compensated the employee under K.S.A. 44–510e. Cf. Redd, 291 Kan. at 194, 239 P.3d 66. “As a general rule, courts should read statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation.” State v. Trautloff, 289 Kan. 793, 797, 217 P.3d 15 (2009). The reasonable application of K.S.A. 44–510d requires this court, under these facts, with the issue to each of her hands suffering injury to look to the K.S.A. 44–510d schedule for recovery.
Lawson has failed to provide any authority for the assertion that skin injuries solely located within the situs of a scheduled-injury body part must be treated as a whole body injury. She has therefore not met her burden to prove the invalidity of the Board's action. K .S.A.2012 Supp. 77–621(a)(1), (c)(4). Instead, she relies on Dr. Murati's opinion that any condition of the skin, “even if localized, would require whole body functional impairment.” Again, Lawson has “cited no case or statutory authority which would allow a whole body award due solely to damage to the skin on a scheduled injury body part.”
The Board properly applied K.S.A. 44–510d and did not err when it applied the plain meaning to find Lawson suffered a scheduled injury to both hands.
Did the Board Err in Finding Lawson Was Not Entitled to Permanent Total Disability?
Lawson additionally argues the Board erred in not finding her scheduled injuries rendered her permanently totally disabled. Lawson claims the Board's decision is not supported by substantial competent evidence.
Standard of Review
This assertion of invalid agency action is within the scope of review provided for by the KJRA as previously discussed. See K.S.A.2012 Supp. 77–621(c)(7).
“Whether substantial competent evidence exists is a question of law. [Citation omitted.]” Redd, 291 Kan. at 182, 239 P.3d 66. “[S]ubstantial evidence is such legal and relevant evidence as a reasonable person would consider sufficient to support a conclusion. [Citation omitted.]” Winston v. Kansas Dept. of SRS, 274 Kan. 396, 415, 49 P.3d 1274 (2002).
Permanent Total Disability
“Permanent total disability exists when the employee, on account of the injury, has been rendered completely and permanently incapable of engaging in any type of substantial and gainful employment” K.S.A. 44–510c(a)(2). At the time of Lawson's injury, the statute also provided that the “[l]oss of both eyes, both hands, both arms, both feet, or both legs, or any combination thereof, in the absence of proof to the contrary, shall constitute a permanent total disability.” K.S.A. 44–510c(a)(2). The 2011 amendments to the Workers Compensation Act should not be applied retroactively. Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 588, 257 P.3d 255 (2011) (“the statutory scheme in place when [claimant] was injured and filed [a] claim continues to control this case”).
Essentially, K.S.A. 44–510c(a)(2) established a rebuttable presumption of permanent total disability in the event of the loss of both hands. However, “[i]f the presumption of permanent total disability is rebutted with evidence that the claimant is capable of engaging in any type of substantial and gainful employment, the claimant's award must be calculated as a permanent partial disability.” Casco, 283 Kan. at 528, 154 P.3d 494.
Here, the Board found that the presumption of permanent total disability was rebutted by the following: Lawson has only one restriction (against using cleaning chemicals), Lawson can still perform 18 of 36 prior job tasks, and “no expert, medical or vocational, has found [Lawson] is permanently and totally disabled.” The Board also made an explicit finding that the single restriction imposed by Dr. Murati did not render Lawson “unemployable.” Lawson also testified about seeking employment in another field and away from housekeeping with its numerous chemicals.
Lawson does not point to any other evidence, other than her injury, for our consideration of evidence detracting from the Board's conclusion. See K.S.A.2012 Supp. 77–621(d). Instead, Lawson argues without authority that the Hospital itself had an affirmative duty to rebut the presumption of permanent total disability with expert testimony and that the Board could not rely on other evidence before it-including her own admission that she was actively seeking employment. Lawson's interpretation of K.S.A. 44–510c(a)(2) adds a requirement that does not exist in the test of the statute, and we decline to adopt it. See Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007) (appellate courts “cannot read into the statute language not readily found there”). Under this court's standard of review, the evidence found by the Board was sufficiently competent to support its conclusion Lawson was not “completely and permanently incapable of engaging in any type of substantial and gainful employment.”
The Board did not err in its award based on a scheduled injury to both hands and in further deciding Lawson was not permanently totally disabled.
Affirmed.