Opinion
No. 110,872.
2014-11-7
Brian S. SACHS, Appellee, v. CITY OF TOPEKA, Appellant.
Appeal from Workers Compensation Board.Matthew S. Crowley, of Crowley Law Office, LLC, of Topeka, for appellant.George H. Pearson. III, of Topeka, for appellee.
Appeal from Workers Compensation Board.
Matthew S. Crowley, of Crowley Law Office, LLC, of Topeka, for appellant. George H. Pearson. III, of Topeka, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
The City of Topeka appeals the Workers Compensation Board's decision to compensate Brian S. Sachs for a permanent partial disability to his neck that allegedly resulted from both an on-the-job car accident and the repetitive motions his job for the City required. The City argues that the Board erred because it lacked substantial evidence to hold that Sachs was permanently disabled as of the date it found the “accident” had occurred, November 16, 2010. But the City stipulated that Sachs was injured by an accident on that date, and when it did so it knew both that the term “accident” covered repetitive-use and sudden injuries and that Sachs was alleging both. We therefore affirm the Board's decision compensating Sachs for his injury.
Factual and Procedural Background
Sachs worked in the Water Division for the City of Topeka, where he was required to crank a wrench on the bolts of a fire hydrant and shovel dirt to clean up after water-main breaks multiple times a day. On November 16, 2010, Sachs was in a car accident at work. He filed a workers-compensation claim against the City, alleging that as a result of the car accident and the repetitive motions he made while working, he had become permanently partially disabled in his neck. He was eventually terminated by the City for missing too much work due to his neck pain.
Before an administrative law judge heard Sachs' claim, the City stipulated that Sachs was accidentally injured while working on the date of the car accident, which was also the day Sachs first reported job-related neck pain. At the hearing before the administrative law judge, Sachs' expert testified that Sachs was permanently partially disabled in his neck from the repetitive motions of his job and the car accident, though he did not know how much of the total impairment—if any—should be attributed to the car accident. Conversely, the City's expert testified that Sachs' neck showed some impairment, but he attributed all of the impairment to another accident that Sachs had been in before he worked for the City—not to the November 2010 accident or to Sachs' repetitive on-the-job movements.
After reviewing the evidence, the administrative law judge held that Sachs had established a permanent partial disability to his neck resulting from an “accident” on November 16, 2010, for which he was owed compensation. The City appealed to the Board, arguing that the administrative law judge had erred by finding that Sachs was permanently injured on November 16, 2010, because, according to some of the expert testimony, the repetitive-use injuries didn't emerge until later and the accident didn't cause a permanent injury.
The Board affirmed the administrative law judge. It found that because the City had stipulated that the accident—which included both the car accident and the repetitive-motion accidents—had occurred on November 16, 2010, the date of the accident wasn't before the administrative law judge. The Board also noted that the City had conceded it had not raised the issue of Sachs' accident date at the administrative hearing. The Board therefore held that it could not consider the date of Sachs' injury for the first time on appeal. The City again appealed.
Analysis
On appeal to this court, the City argues that the Board lacked substantial evidence to find that Sachs suffered permanent partial disability to his neck on November 16, 2010. The City does not dispute that Sachs was injured in a car accident on that date; rather it argues that Sachs' car accident didn't result in any permanent compensable disability and that his repetitive-use injury didn't occur until after November 16, 2010.
We review the Board's decision under the Kansas Judicial Review Act, K.S.A. 77–601 et seq. Because the Board is the entity tasked by law to find the facts in these cases, we must give deference to its factual findings. Abdi v. Tyson Fresh Meats, Inc., No. 104,132, 2011 WL 3444330, at *3 (Kan.App.2011) (unpublished opinion). We therefore uphold the Board's findings when they are supported by substantial evidence. K.S.A.2013 Supp. 44–556(a); K.S.A.2013 Supp. 77–621(c) and (d); Gustin v. Payless ShoeSource, Inc., 46 Kan.App.2d 87, Syl. ¶ 1, 257 P.3d 1277 (2011). Substantial evidence is evidence that a reasonable person might accept as sufficient to support a conclusion. See Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 263, 75 P.3d 226 (2003); Herrera–Gallegos v. H & H Delivery Service, Inc., 42 Kan.App.2d 360, 363, 212 P.3d 239 (2009).
The evidence supporting the Board's conclusion must be substantial in light of the whole record. Gustin, 46 Kan.App.2d at 92. We must therefore look at all of the available evidence on the record—even if it's contrary to the Board's conclusion. K.S.A.2013 Supp. 77–621(d); Redd v. Kansas Truck Center, 291 Kan. 176, 182, 239 P.3d 66 (2010). But we must also filter out all evidence that has been so undermined by cross-examination or other evidence that no reasonable person would accept it as sufficient to support a particular conclusion. In re Protests of Oakhill Land Co., 46 Kan.App.2d 1105, 1114, 269 P.3d 876 (2012); Herrera–Gallegos, 42 Kan.App.2d at 363. If a reasonable person could accept the evidence that remains as sufficient to support the Board's decision, then we must uphold the Board's factual findings. Oakhill Land, 46 Kan.App.2d at 1114; Herrera–Gallegos, 42 Kan.App.2d at 362–63; Mendez v. Cargill Meat Solutions Corp., No. 110,052, 2014 WL 2871368, at *1 (Kan.App.2014) (unpublished decision).
As an initial matter, Sachs argues that the City can't dispute the date the administrative law judge assigned to the accident because it contested the accident date for the first time on appeal to the Board. Sachs is correct that the City first disputed the date of the accident on appeal to the Board. Further, the Board noted that the City had conceded at oral argument before it that the City had not disputed the accident date while the claim was before the administrative law judge.
In its decision affirming the administrative law judge's award in favor of Sachs, the Board explained why it could not argue about the accident date for the first time on appeal. The Board said that it lacked the authority to consider issues not brought before the administrative law judge: “The review by the appeals board shall be upon questions of law and fact as presented and shown by a transcript of the evidence and the proceedings as presented, had and introduced before the administrative law judge.” (Emphasis added.) K.S.A. 44–555c(a).
The Board's reading of K.S.A. 44–555c(a) seems correct: an issue not raised before the administrative law judge is not properly before the Board. If some exception were to be made to that rule, the proper party to rule on an exception would be the Board.
Similarly, once a case reaches us on appeal from an administrative agency's decision (here, the Board), a party is limited to raising the issues that it raised at the administrative hearing. Linenberger v. Kansas Dept. of Revenue, 28 Kan.App.2d 794, 797, 20 P.3d 1290, rev. denied 271 Kan. 1037 (2001); Spencer v. Millard Refrigerated Services, Inc., No. 93,712, 2005 WL 3527053, at *2 (Kan.App.2005) (unpublished opinion). The City did not properly raise the issue while before the agency, based on K .S.A. 44–555c(a) and the Board's ruling.
Even if this court could consider the issue of the accident date for the first time on appeal, the City's position is further undermined by the fact that it stipulated to the date of Sachs' neck injury at the administrative hearing. Parties are bound to their stipulations unless the tribunal they make them in front of allows the stipulations to be withdrawn. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, Syl. ¶ 1, 202 P.3d 7 (2009). Where the tribunal held the parties to their stipulated facts, we are obligated to render judgment based on them. 288 Kan. 268, Syl. ¶ 1. Because the City stipulated that Sachs' neck was injured by accident on November 16, 2010, and because the Board held the City to that stipulation, we must decide the case based on the stipulated fact that Sachs injured his neck by accident on November 16, 2010. See State v. Stegman, 41 Kan.App.2d 568, 571, 203 P.3d 52 (2009) (noting that stipulations generally are binding on the parties).
The City argues that the Board and the administrative law judge misunderstood what it was stipulating to. It argues that it intended to stipulate only to the fact that Sachs had been in a car accident on November 16, 2010, not that all of his neck injuries had occurred by that date. We reject this argument for two reasons.
First, the City didn't stipulate that Sachs was in a car accident at the administrative hearing; it stipulated that November 16, 2010, was the date of the “accident” and that Sachs was injured by the accident. The definition of “accident” for the purposes of workers compensation was broad enough in 2010 to include both sudden and repetitive-use injuries;
“ ‘Accident’ means an undersigned, sudden and unexpected event or events, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. The elements of an accident, as stated herein, are not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the workers compensation act that the employer bear the expense of accidental injury to a worker caused by the employment. In cases where the accident occurs as a result of a series of events, repetitive use, cumulative traumas or microtraumas, the date of the accident shall be the date the authorized physician takes the employee off work due to the condition or restricts the employee from performing the work which is the cause of the condition. In the event the worker is not taken off work or restricted as above described, then the date of injury shall be the earliest of the following dates: (1) The date upon which the employee gives written notice to the employer of the injury; or (2) the date the condition is diagnosed as work related, provided such fact is communicated in writing to the injured worker. In cases where none of the above criteria are met, then the date of accident shall be determined by the administrative law judge based on all the evidence and circumstances.” (Emphasis added.) K.S.A.2010 Supp. 44–508(d).
Not only does the definition of “accident” cover both types of injuries that Sachs alleged, the transcript proves that the City was aware of both definitions. For example, when discussing another claim Sachs made against the City for an injury not at issue here, the judge asked if the City was denying that Sachs had been accidentally injured as a result of a series of events or motions on January 7, 2011. The City denied that Sachs had been injured in an “accident” comprised of a series of events. The City therefore knew that an accident could refer to either a single, sudden event or a series of events when it stipulated to the date of Sachs' accident.
Second, the City was aware—before it made its stipulations—that Sachs was claiming his neck injury resulted from both the car accident and repetitive use. In fact, Sachs' attorney questioned him about the neck pain he experienced related to the car accident and the neck pain related to repetitive use at the pretrial hearing, when counsel for the City was present, before the City stipulated to the accident date. In sum, we reject the City's argument that it only intended to stipulate to November 16, 2010, as the date of the car accident because it knew of the types of injuries that could constitute an accident and because it knew that Sachs was using both definitions of “accident” to explain his injuries.
The City also argues that the Board lacked substantial evidence to find that Sachs had been permanently injured as of November 16, 2010. But this is merely a creative attempt to get around its stipulation. Had the City not stipulated to the accident date, the administrative law judge and the Board would have had to decide when the injuries to Sachs' neck actually occurred. But because the City stipulated to the date of the accident and to the fact that Sachs' neck was injured by an accident on that date, the City cannot now claim that Sachs had no accident or injury.
The City makes a final argument that the Board has allowed Sachs to make one claim of accident and then recover under that claim for later accidental injuries. The City then claims that it is against public policy to allow an employee to recover for anticipated accidents because that would result in an abuse of the workers-compensation system. The City misconstrues what the Board has done. The Board did not base its award on a claim that Sachs was injured on November 16, 2010, and through a series of future events. Rather, the Board based its award in this case on the City's stipulation that the accident—including the car accident and related repetitive motions—occurred on November 16, 2010. That some of Sachs' injuries may actually have occurred after that date is irrelevant because by stipulating that the accident occurred on November 16, 2010, the City admitted that all of Sachs' injuries accrued on that date.
We therefore affirm the Board's decision awarding Sachs compensation for his neck injury.