Opinion
No. 112683.
06-12-2015
James K. CURRY, Appellant, v. DURHAM D & M, LLC and Old Republic Insurance Company, Appellees.
Roger D. Fincher, of Topeka, for appellant. Kip A. Kubin, of Bottaro, Kubin & Yocum, P.C., of Leawood, for appellees.
Roger D. Fincher, of Topeka, for appellant.
Kip A. Kubin, of Bottaro, Kubin & Yocum, P.C., of Leawood, for appellees.
Before MALONE, C.J., ARNOLD–BURGER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal of a workers compensation claim by James K. Curry. The Workers Compensation Board (Board) determined Curry failed to prove he sustained left knee or low back injuries that caused a permanent functional impairment as a result of work he performed after his original January 19, 2007, injury. Curry claims the Board's decision is not supported by substantial competent evidence. Finding Curry fails to meet his burden, we affirm.
Curry worked for Durham D & M. LLC, (Durham) as a bus driver from approximately 2006 until November 8, 2009, working between 22–26 hours each week. As part of his job, he climbed in and out of the bus, went up and down the steps, bent down to clean up the bus, performed emergency drills, and helped move children with special needs. On January 19, 2007, Curry slipped and fell on ice in the Durham parking lot, causing injuries to his left knee and lower back. In November of 2009, Curry was discharged by Durham for cause.
Thereafter Curry filed a workers compensation claim alleging injuries to his chest, ribs, elbows, knees, and low back based on his fall in January of 2007. But that claim was denied as untimely, and Curry did not appeal that ruling. That same day, Curry filed a second claim alleging injuries to his back, knee, shoulder, and ribs based on a series of accidents occurring after January 5, 2008. At the evidentiary hearing, Curry testified that from January of 2008 until his last day, he suffered a work-related worsening of his left knee and low back injuries caused by his 2007 fall. He indicated the injuries were caused by repetitive work activities including the following: sitting on the bus on bumpy roads; constant sitting; climbing in and out of the bus; bending over to clean the bus; walking up and down the stairs to get in and out of the bus; walking on ice to and from the bus; and other movements required by the job.
Doctors gave varying opinions on whether Curry's injuries were worsened by the repetitive activities stated above, or were, instead, the result of his January 2007 fall. The Administrative Law Judge (ALJ) found that Curry's injuries to his lower back and left knee were the natural and probable cause of the original slip and fall in 2007 and found “insufficient evidence to establish [Curry] suffered additional personal injury by accident through repetitive trauma.”
The Board affirmed the ALJ, finding the medical evidence did not support Curry's claim. In doing so, it reviewed, among other matters of record, the evidence submitted by three physicians: Dr. Prostic, who evaluated Curry at Curry's request; Dr. Pratt, who evaluated Curry at the ALJ's request; and Dr. Koprivica, who evaluated Curry at his employer's request. The Board found Dr. Prostic's opinion flawed due to his incomplete medical history of Curry. It also acknowledged that Dr. Pratt assigned no additional permanent impairment for Curry's reported “slight” worsening after the original fall. The Board found Dr. Koprivica the most credible because he had the most comprehensive medical history for Curry. The Board held that Curry failed to meet his burden to prove his “repetitive work activities after January 19, 2007 resulted in a permanent functional impairment regardless of his date of accident.” Curry timely appealed the Board's decision.
Standard of Review
The sole issue on appeal is whether substantial evidence supports the Board's decision to deny Curry's workers compensation claim. Curry has the burden of proof to establish his right to an award of compensation under the Workers Compensation Act and to prove the various conditions on which his right depends. See K.S.A. 44–501(a) ; accord K.S.A.2014 Supp. 501b(c).
This court must defer to the Board's factual findings when they are supported by substantial evidence in light of the record as a whole. In so doing, appellate courts do not engage in de novo review. See K.S.A.2014 Supp. 77–621(c)(7), (d) ; Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014). 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). In determining whether the Board's factual determinations are supported by substantial evidence under K.S.A.2014 Supp. 77–621(c)(7), we must (1) review evidence both supporting and contradicting the agency's findings; (2) examine the presiding officer's credibility determination; and (3) review the agency's explanation as to why the evidence supports its findings. K.S.A.2014 Supp. 77–621(d) ; Petromark Drilling, 299 Kan. at 795.
But even if substantial evidence supports the Board's findings, we can grant relief if the Board's findings and ultimate decision were based upon an erroneous interpretation or application of the law. See K.S.A.2014 Supp. 77–621(c)(4) ; Frazier v. Mid–West Painting, Inc., 268 Kan. 353, 356–58, 995 P.2d 855 (2000).
Analysis
The ALJ and the Board decided that Curry had failed to meet his burden to prove that his lower back and left knee injuries were caused by repetitive injuries at work after his fall in January 2007. In reaching its decision, the ALJ agreed with Dr. Prostic that the worsening of Curry's injuries was the natural and probable consequence of the original fall. The Board found Dr. Koprivica's testimony to be more credible than that of the other physicians because of his previous experience with Curry.
Dr. Koprivica's conclusion is for the most part objective and not contested by Curry.
“Based on the information I have available at this point, I do not believe that one can determine within a reasonable degree of medical certainty that Mr. Curry sustained any permanent injury based on the series of injuries from his employment activities with Durham School Bus Services as a bus driver through November of 2009.
“In coming to this conclusion, first, in reference to the left knee, I would consider the direct injury to the knee that occurred in the fall in January of 2007 to be the significant injury to the knee.
“Mr. Curry was driving an automatic school bus. Based on that history, I do not believe there is any significant exposure to risk which resulted in any permanent aggravation, acceleration or intensification of the impairment involving the left knee.
“[T]he ongoing impairment in the left knee is based on patellofemoral arthralgia. Clearly, a direct fall on his knee would be competent to result in aggravating injury, but the subsequent work place activities do not represent an unusual risk arising out of his employment in my opinion....
“In terms of the lumbar spine, I would clearly point out that Mr. Curry had preexistent overwhelming disabling pain with psychological contributions from a chronic pain syndrome that was diagnosed and ongoing prior to the work-related specific fall. Further, Mr. Curry was on chronic narcotics prior to this injury.
“I would agree ... that the potential exists that an annular tear could occur with the fall injury that would then be subsequently aggravated.
“However, I would note that there is no objective evidence to suggest diskogenic pain is the etiology of his situation at this point....
“Second, I would note that the MRI scan of November 3, 2010, which is subsequent to the last date of exposure, is essentially a normal MRI scan....
“Although one can discuss possibilities, I do not believe that there is any evidence that Mr. Curry suffered cumulative injury from his ongoing bus driving activities in terms of the lumbar spine and terms of exposure through November 8, 2009.”
Curry disagrees with the Board's determination that Dr. Koprivica was the most credible medical witness. Curry alleges Dr. Koprivica was unable to draw a conclusion regarding his lower back and left knee injuries based solely on Curry's poor memory. But Dr. Koprivica's deposition testimony and his written report indicate that his findings were not based solely on Curry's statements-instead, they were based on Curry's extensive medical records and Dr. Koprivica's physical evaluation of Curry, in addition to Curry's own statements. Curry's poor memory thus does not undermine Dr. Koprivica's conclusions, which have a factual basis independent from Curry's statements. And this court does not reweigh the evidence or reassess the credibility of witnesses and testimony. K.S.A.2014Supp. 77–621(d). The Board noted good reasons for finding Dr. Koprivica more credible than the other physicians. Dr. Koprivica's opinion, coupled with the other facts stated in the Board's decision, constitutes substantial evidence that Curry did not show a permanent work-related injury to his left knee or low back after his 2007 fall.
Curry next claims that the Board “disregard[ed]” the testimony of Dr. Pratt and Dr. Prostic. But the record does not support this assertion. The Board considered the opinions of those doctors but found Dr. Koprivica more credible based on his knowledge of Curry and his lengthy medical history.
The Board specifically addressed Dr. Prostic's opinion but found it to be “flawed” based on the lack of medical history available to him. For example, Dr. Prostic testified he was not aware of Curry's low back and left knee injuries from 1993 and admitted that knowledge of Curry's prior injuries could have affected his conclusions.
Similarly, the Board specifically addressed Dr. Pratt's testimony, noting Dr. Pratt's admission that he could not distinguish, within a reasonable degree of medical certainty, what portion of claimant's functional impairment resulted from his 2007 fall and what portion resulted from his subsequent work activities. The Board also noted Dr. Pratt's conclusion that he would not add any additional permanent impairment for claimant's reported symptoms after his 2007 fall. Thus Dr. Pratt's testimony does not contradict the Board's finding in this respect. The record reflects that the Board considered the testimony of all the physicians and stated cogent reasons for the weight and credibility it gave to each opinion.
Finally, Curry contends the Board quoted Dr. Prostic out of context in finding that Dr. Prostic concluded that Curry's functional impairments resulted from his 2007 fall. The Board found:
“... Dr. Prostic opined claimant sustained permanent functional impairments of the left knee and low back. The doctor concluded claimant's functional impairments resulted from his 2007 incident and continuing worsening injuries after that date until his last date worked. Dr. Prostic then muddied the water further by agreeing on cross-examination that claimant's left knee and low back conditions were the natural and probable consequence of his 2007 fall.”
Dr. Prostic's testimony which “muddied the water” on cross-examination follows:
“Q: [Curry] told you that he initially injured himself when he fell on ice on January 25th, 2007?
“A: Yes.
“Q: And then he told you that after that as he continued to work his conditions got worse?
“A: Yes.
“Q: Would that be a natural and probable consequence of that original January 25th, 2007, injury?
“A: Yes.”
Curry alleges Dr. Prostic meant that his injuries were the natural and probable consequence of his work conditions, rather than of his original injury. But that is not what he said, and Curry did not attempt to clarify Dr. Prostic's testimony on redirect examination when he had an opportunity to do so. Dr. Prostic's testimony is unambiguous and this court cannot change its plain meaning. Thus the Board did not err in finding that Dr. Prostic concluded that Curry's functional impairments resulted from his 2007 fall.
Having reviewed the record as a whole, and the reasons stated above, we find substantial competent evidence supporting the Board's decision.
Affirmed.