Opinion
No. 112341.
07-24-2015
Janet L. VANCE, Appellant, v. DCCCA, INC, and Continental Western Ins. Co, Appellees.
William L. Phalen and Crystal D. Marietta, of Pittsburg, for appellant. Kirby A. Vernon, Law Office of Kirby A. Vernon, L.L.C, of Wichita, for appellees.
William L. Phalen and Crystal D. Marietta, of Pittsburg, for appellant.
Kirby A. Vernon, Law Office of Kirby A. Vernon, L.L.C, of Wichita, for appellees.
Before LEBEN, P.J., HILL and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is a workers compensation case in which Janet Vance has sought benefits for various injuries she received while working for DCCCA, Inc. A panel of this court had reversed a decision of the Workers Compensation Board and remanded for modification of the award to take into account Vance's temporomandibular joint syndrome. On remand, the Board declined to make any modification for permanent impairment. Vance has again appealed. We reverse and remand with additional directions for considering the TMJ syndrome, since the Board misconstrued the earlier panel decision.
The parties and the Board are thoroughly familiar with the underlying facts and the extended procedural history in this case. Given the narrow issue at hand, we do not recount those details. To highly summarize the pertinent circumstances, the Board, in reviewing and modifying the administrative law judge's award, originally determined that Vance had a compensable injury to her left leg but found no causal connection between the workplace injury and her TMJ syndrome and her loss of a number of teeth. On appeal, this court held the Board failed to properly credit evidence demonstrating a causal relationship between the injury and the TMJ syndrome. Vance v. DCCA, Inc., No. 109,294, 2014 WL 349585, at *11–12 (Kan.App.2014) (unpublished opinion) (Vance I ). But the panel also held the Board correctly determined Vance offered insufficient evidence to show the loss of her teeth and related dental problems were caused by the covered injury. 2014 WL 349585, at *10.
During the administrative process, Dr. Peter Bieri, a medical doctor, examined Vance. He offered expert testimony on causation and provided impairment ratings for Vance's various injuries. Dr. Bieri gave Vance a 5 percent whole person impairment for the TMJ syndrome and the loss of teeth. He found that both contributed to the impairment but was not asked to ascribe a portion of the rating to each. Other physicians and a dentist either examined and rated Vance or treated her; none of them provided an impairment rating pertaining to the TMJ syndrome.
In Vance I, the panel discounted Dr. Bieri's opinion on causation because he had examined Vance only after she suffered additional facial injuries in an unrelated incident in which she was physically assaulted. 2014 WL 349585, at *9, 11. On remand, the Board construed those passages in Vance I to be findings of the panel that Dr. Bieri's testimony and opinions were not credible in any respect. The Board, therefore, concluded that “Dr. Bieri's impairment rating will not be given any weight[.]” In the absence of any other impairment rating for the TMJ syndrome, the Board declined to modify the award to include benefits for any resulting permanent impairment. Based on testimony from other physicians and related evidence, the Board found Vance to be entitled to benefits for medical treatment of the TMJ syndrome.
We, too, have reviewed the panel's decision in Vance I. The panel discounted only Dr. Bieri's opinion on causation of the TMJ syndrome and Vance's loss of teeth. And the panel recognized that other expert testimony did establish a causative link between Vance's workplace injury and the TMJ syndrome. The panel, however, did not reject Dr. Bieri's impairment rating. On remand, the Board extrapolated the panel's discussion of Bieri's causation opinion and directly applied that discussion as if it included his impairment rating. In doing so, the Board misconstrued and impermissibly expanded the Vance I panel's determination.
We, therefore, reverse and remand to the Board with directions to consider Dr. Bieri's impairment rating and any other relevant record evidence related to Vance's degree of impairment resulting from the TMJ syndrome. We recognize that Dr. Bieri offered an impairment rating combining the effects of the TMJ syndrome and Vance's loss of teeth. That, however, is not, in and of itself, a reason to deny benefits to Vance. Dr. Bieri plainly concluded the TMJ syndrome did impair Vance's functioning to a measurable degree. We leave it to the Board and the parties to determine how best to address the issue on remand.
Reversed and remanded with directions.