Opinion
No. 107,192.
2012-08-31
Roberta COPP, Appellee, v. STATE of Kansas, and State Self–Insurance Fund, Appellants.
Appeal from Workers Compensation Board. Bryce D. Benedict, of Kansas Department of Health and Environment, of Topeka, for appellant. George H. Pearson III, of Topeka, for appellee.
Appeal from Workers Compensation Board.
Bryce D. Benedict, of Kansas Department of Health and Environment, of Topeka, for appellant. George H. Pearson III, of Topeka, for appellee.
Before McANANY, P.J., HILL, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
On March 11, 2008, Roberta Copp was working for the State of Kansas as a corrections supervisor at the Topeka Correctional Facility when she tripped on a step, twisted her ankle, and fell down four or five stairs. Copp landed on her knees and hands.
Copp was immediately aware that she had injured her left ankle and both of her knees. Dr. Peter Lepse performed surgery on Copp's left knee in March 2009 and on her right knee in July 2009. Additionally, Dr. Greg Horton operated twice on Copp's left ankle. The first surgery was in October 2008, and the second surgery was in October 2009.
In June 2008, Copp started having pain in her back. She reported this back pain to Dr. Lepse, who told her he would have to refer her to another doctor because he only treats knees. Rather than wait for a referral, Copp elected to see her primary care physician, Dr. John Bernard, about her back pain. Copp saw Dr. Bernard the same day she reported her pain to Dr. Lepse. Dr. Bernard ordered an x-ray of Copp's back.
After her fall, Copp worked in the prison office, where she was allowed to remain seated while she worked. She last worked at the facility on October 16, 2008. She was fired effective March 10, 2010, due to her inability to perform her job duties. She has not been employed since then.
Meanwhile, in January 2010, Dr. Christopher Fevurly, who is board certified in internal medicine, evaluated Copp. In his opinion Copp did not have a specific injury to her back, she simply had back pain. He opined that Copp's back pain was associated with degenerative disc disease as opposed to an altered gait. He found no connection between Copp's back condition and her altered gait.
In May 2010, the administrative law judge (ALJ) ordered an independent medical examination to be performed by Dr. Edward Prostic to determine whether Copp's back pain was a result of her fall on March 11, 2008. Dr. Prostic, a board-certified orthopedic surgeon, saw Copp in June 2010 and again in December 2010.
Dr. Prostic opined that Copp developed an abnormal gait because her ankle and knee injuries made her limp. He said that this gait caused a secondary injury to Copp's lower back. Dr. Prostic stated: “She's been limping for a long time because the difficulties with her knees and ankle, it causes an abnormal muscle strain to her low back, and the combination of that plus her excessive weight makes it more likely to have a sore back.” Dr. Prostic reviewed an MRI of Copp's back, which he said showed degenerative changes that were aggravated by Copp's limping. In accordance with the American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed.1993), Dr. Prostic gave Copp a permanent partial impairment rating of 5% of the body as a whole because of the injury to her back.
At the State's insurer's request, Copp was examined by Dr. John Ciccarelli, who is also a board-certified orthopedic surgeon. Copp met with Amy Sclesky, Dr. Ciccarelli's physician assistant, in August 2010. Sclesky scheduled an MRI of Copp's lower back. At the follow-up visit later that month, Dr. Ciccarelli examined the MRI results and found chronic changes in Copp's back as opposed to an acute injury. He opined that these were normal degenerative changes given Copp's age.
Dr. Ciccarelli opined that Copp's altered gait “could be one of the contributing factors to her chronic complaints of back pain.” He stated it is probable that someone who sustained the injuries and subsequent surgeries that Copp experienced would develop an altered gait. He attributed 25% to 50% of Copp's back pain to her altered gait, though he said to his knowledge, “there's been no definitive study linking” an altered gait to back pain.
Finally, Dr. P. Brent Koprivica, who is board certified in emergency medicine and occupational medicine, conducted an independent medical evaluation of Copp in January 2011. According to Dr. Koprivica, Copp developed chronic back pain as a result of her altered gait. He attributed this to the March 11, 2008, accident. He assigned a 5% whole person impairment based on Copp's back injury.
On June 1, 2011, and after reviewing the various doctors' depositions, the ALJ determined that “the weight of the evidence is in favor of the finding that the impairment to Claimant's low back was caused by antalgic gait.” She determined that Copp's injury was a whole body injury and applied K.S.A. 44–510c(a)(2), which stated that a presumption of permanent total disability exists when the claimant experiences a loss of both eyes, both hands, both arms, both feet, or both legs, or any combination thereof. Finding that the presumption was not rebutted, the ALJ awarded Copp permanent total disability.
The State appealed to the Appeals Board for the Kansas Division of Workers Compensation. The Board affirmed the ALJ's decision, finding that the weight of the evidence established that Copp's back injury arose from the altered gait caused by her March 11, 2008, fall. It also found that Copp was entitled to permanent total disability under the presumption in K.S.A. 44–510c(a)(2). The State appeals.
The State contends that there is not substantial competent evidence to support the Board's finding that Copp's back injury arose from her fall. The State claims the doctors who testified that there was a connection between the fall and the back injury were “totally unreliable.”
The burden to show that an injury arose out of employment is upon the claimant. K.S.A. 44–501(a). That burden is satisfied if the claimant introduces any substantial competent evidence tending to support the findings of an award, even if there is competent evidence to the contrary. Pence v. Centex Construction Co., 189 Kan. 718, 720, 371 P.2d 100 (1962); see K.S.A.2011 Supp. 77–621(c)(7), (d).
K.S.A.2011 Supp. 77–621(c)(7) allows this court to grant relief from an agency action if the action was based on a determination of fact “that is not supported ... by evidence that is substantial when viewed in light of the record as a whole.” As stated in Redd v. Kansas Truck Center, 291 Kan. 176, 183, 239 P.3d 66 (2010):
“Effective July 1, 2009, the legislature revised the statutory standard of review of an agency's factual determination. See K.S.A.2009 Supp. 77–621(c)(7) and (d).... As revised, K.S.A.2009 Supp. 77–621(d) now alters an appellate court's analysis in three ways: (1) It requires review of the evidence both supporting and contradicting the Board's findings; (2) it requires an examination of the presiding officer's credibility determination, if any; and (3) it requires review of the agency's explanation as to why the evidence supports its findings. The revised statute now states:
‘(d) 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. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review.’ (Emphasis added.) K.S.A.2009 Supp. 77–621(d).”
Substantial evidence is “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 reasonably resolved.” 291 Kan. at 183–84. In other words, substantial evidence is “such evidence as a reasonable person might accept as being sufficient to support a conclusion.” Herrera–Gallegos v. H & H Delivery Service, Inc., 42 Kan.App.2d 360, 363, 212 P.3d 239 (2009). Since the 2009 statutory amendment,
“we must now consider all of the evidence—including evidence that detracts from an agency's factual findings—when we assess whether the evidence is substantial enough to support those findings. Thus, the appellate court must now determine whether the evidence supporting the agency's decision has been so undermined by cross-examination or other evidence that it is insufficient to support the agency's conclusion.” 42 Kan.App.2d at 363.
Applying those standards, we see that the ALJ and the Board were confronted with conflicting medical testimony regarding the cause of Copp's back injury. All of the doctors stated that Copp's knee and ankle injuries caused an altered gait. The medical testimony on the issue of the cause of Copp's low back condition can be summarized as follows:
Dr. Prostic (board-certified orthopedic surgeon):
Ankle and knee injuries made Copp limp. Limp caused aggravation of degenerative changes in Copp's low back. Rating: 5% permanent partial impairment to body as a whole because of back injury.
Dr. John Ciccarelli (board-certified orthopedic surgeon):
Chronic changes in Copp's back which were normal degenerative changes due to age. Probable that injuries to her ankle and knees and her surgeries caused altered gait. Twenty-five percent to fifty percent of back pain caused by her altered gait, though no definitive study linking altered gait and back pain.
Dr. P. Brent Koprivica (board certified in emergency medicine and occupational medicine):
Chronic back pain caused by altered gait that resulted from work accident. Five percent whole person impairment based on back injury.
Dr. Christopher Fevurly (board certified in internal medicine):
No specific injury to her back. Back pain associated with degenerative disc disease, not altered gait. No connection between back condition and altered gait.
The State relies on Kuxhausen v. Tillman Partners, 291 Kan. 314, 241 P.3d 75 (2010). In Kuxhausen, the issue was whether the district court “ ‘properly excluded the doctor's testimony that Kuxhausen's ongoing problems were caused by her exposure to epoxy-paint fumes.’ “ 291 Kan. at 316. In our case, however, the medical testimony was received into evidence without objection. No objection was raised during the depositions to the lack of foundation for the witnesses to express expert medical opinions on the cause of Copp's back complaints. There was no post-deposition motion to strike the testimony from the record. While the State made the same argument to the ALJ that it makes today regarding the credibility of the medical testimony, the State did not seek to strike it from the record. The medical testimony was there for the ALJ and the Board to consider.
The ALJ and the Board determined that Drs. Koprivica, Ciccarelli, and Prostic offered more credible opinions than Dr. Fevurly. Drs. Prostic and Ciccarelli are board-certified orthopedic surgeons. Dr. Koprivica is board certified in emergency medicine and occupational medicine. The doctors conducted thorough physical examinations of Copp and reviewed Copp's medical records and the results of her diagnostic tests before rendering their opinions. We do not find that their medical opinions were so undermined by cross-examination or other evidence that they were insufficient to support the conclusion that Copp's altered gait from the injuries to, and surgeries on, her ankle and knees caused an aggravation of her back condition. The testimony from Drs. Koprivica, Ciccarelli, and Prostic provide substantial competent evidence to support the Board's decision that Copp's back pain arose from the injuries she sustained on March 11, 2008.
Finally, the State challenges the Board's finding that Copp's two scheduled injuries created a presumption of a permanent total disability. The State contends that Copp only experienced the loss of use of both legs, and that K.S.A. 44–510c(a)(2) states that the presumption of permanent total disability exists only when a claimant experiences loss of both legs.
This issue raises a question of statutory interpretation, an issue of law over which we have unlimited review without deference to the Board's interpretation of the statute. See 143rd Street Investors v. Board of Johnson County Comm'rs, 292 Kan. 690, 698–99, 259 P.3d 644 (2011) (citing Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs., 290 Kan. 446, 457, 228 P.3d 403 [2010] ). “When a statute is plain and unambiguous, the court will not read into the statute something not readily found in it.” Denning v. Johnson County Sheriffs Civil Service Board, 46 Kan.App.2d 688, 703, 266 P.3d 557 (2011).
The Board found that Copp was entitled to compensation for a permanent total “whole body” disability, as defined in K.S.A. 44–510c(a)(2) because of her combined bilateral lower extremity injuries. At the time of Copp's injury and before the statute was amended in 2011, K.S.A. 44–510c(a)(2) stated in relevant part:
“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. Loss 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.” (Emphasis added.)
The statute in effect at the time of the claimant's injury governs the rights and obligations of the parties. See Overstreet v. Mid–West Conveyor Co., Inc., 26 Kan.App.2d 586, 588, 994 P.2d 639 (1999).
The State asserts: “The plain language of the statute speaks of the loss of the body part, not the partial loss of use of.” Essentially, the State's argument is that K.S.A. 44–510c(a)(2) applies only in situations where the claimant's extremities are severed or amputated in the course of the injury he or she experienced at work. (Applying this argument, we presume that the State would contend that under this statute an injury that causes total blindness would only be compensable if both eyes were plucked out of their sockets.)
But the Board found that Casco v. Armour Swift–Eckrich, 283 Kan. 508, 154 P.3d 494 (2007), holds to the contrary. In Casco our Supreme Court determined that the presumption from K.S.A. 44–510c(a)(2) applies when the claimant lost the use of both arms even though the claimant did not have both extremities amputated or severed. 283 Kan. at 528–29. The State's argument on this issue is that Casco was wrongly decided. But we are bound by Casco absent some indication that the Supreme Court is departing from this construction of the statute. See Buchanan v. Overley, 39 Kan.App.2d 171, 175–76, 178 P.3d 53,rev. denied 286 Kan. 1176 (2008). We find no such indication.
Affirmed.