Opinion
111,350.
05-22-2015
Julie K. BEACHUM, Appellant, v. ACCESSORY CITY and Farmington Casualty Co., Appellees.
John L. Carmichael, of Conlee, Schmidt & Emerson, LLP, of Wichita, for appellant. Lyndon W. Fix and Sylvia B. Penner, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellees.
John L. Carmichael, of Conlee, Schmidt & Emerson, LLP, of Wichita, for appellant.
Lyndon W. Fix and Sylvia B. Penner, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellees.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Julie K. Beachum appeals from the final order of the Workers Compensation Appeals Board (the Board). The Board allowed a modified award of compensation based on a scheduled injury to Beachum's upper right arm and shoulder. However, a majority of the Board denied a general body disability rating based on injury to her neck, finding that Beachum had failed to prove that the neck injury arose out of and in the course of her employment.
The decision of the Board is supported by substantial evidence when viewed in light of the record as a whole. Accordingly, we affirm.
Factual and Procedural Background
The compensability of the scheduled injury to Beachum's upper arm and shoulder is not in dispute. The question before the Board, and now before this court, is whether the neck injury subsequently claimed by Beachum is compensable as a general disability to the body as a whole.
In her brief, Beachum notes that there is little dispute concerning the “operative facts” framing the issue as being whether the facts determined by the Board support the conclusion reached. To that end, we direct the parties to the detailed findings of fact set forth on pages 2 through 9 of the Board's order filed on February 18, 2014, of which we offer the following summary.
Beachum began working at Accessory City in 2007 and moved up to assistant manager by February 2010. Part of her job duties included receiving and unloading shipments of merchandise. Beachum unloaded boxes from pallets which involved repetitive overhead lifting. Beachum reported pain in her right arm and shoulder in late 2009. She informed her boss, Aleitra Tibbs, of the pain in December 2009.
Beachum saw Ronda Hanneman, a physician's assistant, on January 8, 2010, and Dr. Scott Rees on January 27, 2010. Beachum had an independent medical examination by Dr. C Reiff Brown but he did not prescribe any medication. Beachum was terminated from Accessory City on February 16, 2010.
On February 24, 2010, Beachum filed a claim for workers compensation. She alleged repetitive type injuries “each and every working day through 2/16/2010.” In her application, Beachum only claimed injuries to her “right shoulder.” In her deposition on March 24, 2010, Beachum did not complain of a specific accident but claimed repetitive type injuries from unloading boxes with over-the-head movement and then guiding the boxes to the ground. She only testified to injuries to her right shoulder and right upper arm. Beachum indicated the tightness started midway between the bottom of the neck and shoulder. At a preliminary hearing conducted on the following day, March 25, 2010, Beachum again claimed injury to her right shoulder and there was no mention of any neck injury.
Beachum saw Dr. Sandra Barrett as her treating physician. Dr. Barrett ordered physical therapy, but a MRI later revealed a tom right rotator cuff. Dr. Barrett referred Beachum to Dr. Pat Do, a board certified orthopedic surgeon, who performed a right shoulder arthroscopy in July 2010. Beachum began physical therapy for 6 to 8 months and was released from Dr. Do's care in January 2011. During this time period, there is no mention of neck pain by Beachum. On January 27, 2011, Dr. Do gave Beachum an impairment rating of 8% to the right upper extremity with no permanent restrictions.
Dr. George Fluter evaluated Beachum in March 2011. According to Dr. Fluter's medical records from March 10, 2011, Beachum now reported that her injuries began when she was unloading a large shipment of boxes in November 2009 just prior to the After–Thanksgiving Day sales. Dr. Fluter gave Beachum an 8% functional impairment to the right upper extremity at the shoulder level. He also assigned Beachum with a 5% whole body partial impairment attributable to neck pain. But at a further preliminary hearing on June 7, 2011, there was no testimony or mention regarding a neck injury. Beachum saw Dr. Do again in June 2011 and began treatment with Dr. David Harris in August 2011 for pain management. Dr. Harris determined that Beachum was at maximum medical improvement on October 20, 2011. Initially, Dr. Harris evaluated Beachum with a 4% whole person impairment for her right shoulder. Later, Dr. Harris modified his opinion in October 2012, to find that Beachum suffered from a 2% whole body impairment to reflect the pathology in her neck.
Beachum continued physical therapy with Zach Stuke from June 30, 2011, through March 7, 2012. Stuke described Beachum's treatment and the onset of her neck pain. Stuke testified that due to Beachum's right shoulder injury and surgery, the symptoms of her neck injuries were delayed. Beachum was evaluated by Dr. Fluter a second time in April 2012. Dr. Fluter reported that Beachum's condition had worsened since he had seen her in March 2011. Dr. Fluter gave Beachum a 14% functional impairment to the right upper extremity and a 5% impairment for her neck. Dr. Fluter assessed Beachum's total whole person impairment at 13%.
In June 2012, the Administrative Law Judge (ALJ) ordered an independent medical examination by Dr. Paul Stein. On July 31, 2012, Beachum reported to Dr. Stein that she had right shoulder and neck pain with some numbness and tingling in her right arm. She attributed all the injuries to her work activity at Accessory City. She related a specific incident in November 2009 when one of the boxes she was unloading was heavier than expected and came down faster than expected. She reported that she began having pain in the right side of her neck, the right trapezius, and right shoulder. Dr. Stein gave Beachum a total right upper extremity impairment at the shoulder level of 4%.
In a deposition given on August 31, 2012, and incorporated as her testimony at the regular hearing, Beachum was even more specific about the incident in November 2009 regarding the unexpectedly heavy box. The ALJ awarded Beachum a 4% functional impairment to her right upper extremity at the shoulder level. However, the ALJ adopted Dr. Stein's opinion regarding Beachum's cervical injury and the denial of compensation for any neck injury. The ALJ relied on Dr. Stein's conclusion that the evidence of any notation in the medical records of any pain in Beachum's neck occurred in March 10, 2011, approximately 8 months after the right shoulder arthroscopy surgery. The ALJ concluded Beachum failed to prove with a reasonable degree of medical probability and certainty that she sustained the neck injury during her employment.
On appeal to the Board, Beachum asserted that the postsurgical immobilization of her right shoulder caused injury to the muscles attached to her neck that are not normally used to elevate the shoulder. She claimed the neck muscles became injured resulting in a permanent whole body functional impairment. The Board agreed with the ALJ that Beachum's functional impairment was limited to the right upper extremity at the shoulder level. However, the Board increased the impairment rating to 7% functional impairment giving equal weight to the opinions of Dr. Stein and Dr. Fluter. The Board also agreed with the ALJ in denying Beachum's neck claims:
“The Board majority concludes claimant failed to prove by a preponderance of the evidence that as a result of her work-related injury she sustained a whole body permanent functional impairment. Claimant testified she injured her right shoulder and neck as a result of the November 2009 accident and repetitive work activities thereafter. She testified she had neck symptoms before her July 2010 right shoulder surgery. Yet, Mr. Stuke and Drs. Harris and Fluter indicated claimant's neck injury was likely caused by her right shoulder surgery. Their explanation is that claimant's right shoulder surgery caused her body to use muscles connected to the cervical spine to elevate claimant's right shoulder, muscles that the body does not normally use to elevate the shoulder. In turn, claimant developed myofascial pain that resulted in a whole body permanent functional impairment.
“Claimant's testimony and the theory of how she sustained her neck injury cannot be reconciled and are not credible. Claimant testified her neck began hurting in November 2009. She told Drs. Fluter and Stein her neck symptoms began at the time of her injury. However, claimant then asserts her delayed neck symptoms and resulting impairment began following her right shoulder surgery.
“Dr. Stein, the court-appointed independent medical examiner, reviewed claimant's medical records and indicated the first mention of neck pain in claimant's medical records was March 10, 2011, when she saw Dr. Fluter. That was nearly eight months after claimant's right shoulder surgery. Dr. Stein was emphatic claimant's neck symptoms were not the result of her work activities at respondent.”
One member of the Board dissented. The dissenting member would have granted whole body permanent functional impairment based on Beachum's neck injuries. The dissenting member argued that Dr. Stein's report did not state that Beachum did not have a neck injury and never commented on whether Beachum's shoulder surgery caused the neck injury. The dissenting member would find Beachum's neck injury and whole body functional impairment were the natural and probable result of her work-related activities.
Beachum appeals.
Standards of Review
Beachum argues that the ALJ and ultimately the Board erred in determining that she had failed to prove her neck injury was caused by her work accident. Essentially, she contends the Board failed to consider and/or erroneously rejected substantial competent evidence she had developed a permanent cervical spine injury as a natural and probable consequence of her work-related right rotator cuff injury. Accessory City argues that substantial evidence supports the findings of the Board that Beachum suffered only a scheduled injury to her right shoulder.
We review final orders of the Board under the Kansas Judicial Review Act, K.S.A.2013 Supp. 77–601 et seq. , as applied in K.S.A.2013 Supp. 44–556(a). Our charge is to review the record as a whole to determine whether the Board's findings are supported to the appropriate standard of proof by substantial evidence. See K.S.A.2013 Supp. 77–621(c)(7) ; K.S.A.2013 Supp. 77–621(d). Pursuant to this standard, we (1) review the evidence both supporting and contradicting the Board's findings; (2) examine the presiding officer's credibility determinations, if any; and (3) review the Board's explanation as to why the evidence supports its findings. But this court does not reweigh the evidence or engage in de novo review. See Redd v. Kansas Truck Center, 291 Kan. 176, 182, 239 P.3d 66 (2010).
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).
Accordingly, we give deference to the factual findings of the Board and uphold those findings when they are supported by substantial evidence in light of the record as a whole. See Gustin v. Payless Shoe Source, Inc., 46 Kan.App.2d 87, Syl. ¶ 1, 257 P.3d 1277 (2011). A panel of this court has persuasively noted that an appellate court has a duty to uphold the Board's findings if supported by substantial evidence “even if other evidence in the record would support a different conclusion.” Yarnell v. State, No.109,751, 2013 WL 6168308, at * 2 (Kan.App.2013) (unpublished opinion).
Claimants have the burden of proof to establish their right to an award of compensation under the Workers Compensation Act and to prove the various conditions on which their right depends. See K.S.A.2013 Supp. 44–501b(c). “ ‘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.2013 Supp. 44–508(h).
Substantial Evidence Supports the Board's Decision
In reaching its decision, the Board specifically adopted the medical opinion of Dr. Stein, the independent medical examiner appointed by the ALJ, that Beachum's neck injury was unrelated to her work injury. Dr. Stein concluded:
“Ms. Beachum reports that she had neck pain, particularly on the right, ever since her shoulder problems started. The primary care records of Dr. Rees did not reflect neck pain. The Independent Medical Evaluation done by Dr. Brown on 3/10/10 makes no mention of neck symptomatology. The physical medicine records of Dr. Barrett makes no mention of neck symptomatology and the pain diagram by the patient herself, as well as her handwritten statement regarding symptomatology, on 4/21/10 does not reflect neck symptomatology. Ms. Beachum was under the care of Dr. Do from 6/22/10 until the initial release on 1/27/11 without mention of neck pain. The first notation I found regarding neck pain was the IME by Dr. Fluter on 3/10/11 with the patient subsequently returning to Dr. Do in June of 2011 indicating that pain in the neck was present “all along”. Her work activity at Accessory City stopped on or about 2/14/10 prior to the IME by Dr. Brown and the care by Dr. Barrett and prior to the initial care by Dr. Do. I cannot document within a reasonable degree of medical probability and certainty that this patient has sustained an injury to the neck during that employment. I have no basis to provide any functional impairment or medical restrictions to the neck in relation to the work activity at Accessory City.”
Substantial evidence recited by the Board supports Dr. Stein's findings that no evidence of neck pain was documented by any medical professional prior to Dr. Fluter on March 10, 2011, some 16 months after the November 2009 work accident.
Beachum clearly proffers inconsistent evidence regarding the source of her neck pain. Her claim for compensation alleges repetitive type injuries “each and every working day through 2/16/10,” but refers only to her “right shoulder.” The Board noted that Beachum testified five times, as well as relating her medical history to various medical professionals. In a March 24, 2010, deposition, she testified to repetitive type injuries from unloading boxes with over-the-head movement then guiding the boxes to the ground. She referred only to her right shoulder and upper arm and did not complain of a specific accident. She then gave similar testimony the following day, March 25, 2010, at a preliminary hearing, again with no mention of neck injury or pain. At a further preliminary hearing on in June 2011, there was again no mention of neck injury or pain. However, in a later deposition on August 31, 2012, Beachum related an initial specific injury in November 2009, involving a box which was heavier than usual and claimed that she had experienced neck pain from and after that incident.
Beachum's medical providers, however, proffered the theory that her neck pain developed as a residual result of her rotator cuff surgery due to abnormal muscle usage during the immobilization of her arm following the surgery. The same medical providers also speculate that her neck pain may have preceded the surgery but was “masked” by the more severe pain from the injury to her shoulder and arm, thus explaining her failure to relate neck pain when testifying and providing several medical histories and a pain diagram prior to the surgery and during the subsequent rehabilitation period.
In her appeal, Beachum now seems to focus on the argument that neck problems will always result from postsurgical immobilization of an arm following rotator cuff surgery. In a virtually indistinguishable and persuasive opinion, a panel of this court recently considered and rejected a similar workers compensation claim for neck injuries appearing long after treatment of a shoulder injury. Turner v. State, No 110,508, 2014 WL 3022644, at *4–5 (Kan.App.2014) (unpublished opinion). The upshot of the discussion in Turner is that the proof to establish the cause and effect between a workrelated accident and a later injury must be such as to take the case out of the realm of speculation and conjecture. Here, the Board, being presented with inconsistent testimony and conflicting reports from several experts, chose to rely on Dr. Stein's “emphatic” conclusion that the neck injury was not related to Beachum's work related injury.
Beachum acknowledges the Board was free to disregard the opinions of Dr. Harris, Dr. Fluter, and Mr. Stuke but suggests the Board must find that such testimony was improbable, unreasonable, or untrustworthy. See Vance v. DCCCA, Inc., No 109,294, 2014 WL 349585, at *10 (Kan.App.2014) (unpublished opinion), and the cases cited therein. Beachum suggests that Dr. Stein's opinion is so undermined by the other medical evidence that it is insufficient to support the Board's conclusion. See Weihe v. Kissick Const. Co., 43 Kan.App.2d 732, 742, 232 P.3d 866 (2010). We do not find that to be the case. Dr. Stein's conclusion is supported by the record, including Dr. Do's treatment of Beachum.
Beachum argues that Dr. Stein's report fails to address the issue of whether postsurgical immobilization resulted in injury to her neck. While Dr. Stein does not directly address the postsurgical theories of the others, his final statement is, “I have no basis to provide any functional or medical restrictions to the neck in relation to the work activity at Accessory City.” This would indicate, at least indirectly, that he considered the reasonable probabilities and found no clear nexus between the shoulder injury and the neck injury.
The Board reviewed and weighed all the testimony and reports before it and rejected Beachum's position finding the “[c]laimant's testimony and the theory of how she sustained her neck injury cannot be reconciled and are not credible.” The Board, as the finder of fact, has the right and the obligation to weigh the evidence and determine the credibility of witnesses, including the physicians who testified, and to utilize that as a factor in making its decision. Tovar v. IBP, Inc., 15 Kan.App.2d 782, 785, 817 P.2d 212, rev. denied 249 Kan. 778 (1991), superseded on other grounds by statute. As noted above, we are limited in our appellate review from reweighing the evidence and/or reassessing the credibility of witnesses and testimony. K.S.A.2013 Supp. 77–621(d).
Conclusion
After review of the evidence in light of the record as a whole, we are confident that the Board has fulfilled its function to weigh and credit the evidence. Despite evidence to the contrary, there is substantial evidence to support the conclusion reached by the Board that Beachum has failed to prove her claim for general bodily disability due to injury of her cervical spine.
The Board's limitation of Beachum's recovery to a modified 7% functional impairment to her upper right extremity at the level of the shoulder is affirmed.
Affirmed.