Opinion
Nos. 110,521 110,522.
2014-12-19
Fidel GOMEZ, Appellant, v. NATIONAL BEEF PACKING CO., and Zurich American Insurance Co., Appellees.
Appeal from Workers Compensation Board.Randall Fisher and Diane F. Barger, of Wichita, for appellant.Kerry McQueen and Shirla R. McQueen, of Sharp McQueen, P.A., of Liberal, for appellees.
Appeal from Workers Compensation Board.
Randall Fisher and Diane F. Barger, of Wichita, for appellant. Kerry McQueen and Shirla R. McQueen, of Sharp McQueen, P.A., of Liberal, for appellees.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is a consolidated appeal of two separate workers compensation claims by Fidel Gomez. The Workers Compensation Board (Board) found Gomez sustained injuries to his right and left shoulders in separate accidents but determined that Gomez failed to prove a whole person injury based on his claim of a neck and upper back injury. Gomez claims the Board erred: (1) in finding the evidence insufficient to support his claim that he suffered neck and upper back injuries as a result of the his shoulder injuries, and (2) in failing to award benefits for a work disability.
The injuries
Gomez was born in Mexico. He now resides in the United States. He was formerly employed in Houston, Texas, for 20 years but most recently had been employed by National Beef Packing Co. for 10 years. Gomez does not speak English. A Spanish interpreter translated for him at the hearings, when he was deposed, and at his various medical examinations. Further, Gomez was described by doctors as a “poor historian” and was often confused as to the history of his injuries.
Gomez' left shoulder injury was the result of a November 2007 work accident. His right shoulder injury arose between late December 2007 and February 2008 as a result of his use of a C02 gun to inject cattle carcasses. In February 2008 he underwent surgery to repair his left shoulder. His right shoulder was treated conservatively.
Gomez claims that he suffered neck and upper back injuries as a result of these work accidents. Gomez ended his employment with National Beef Packing Co. in May 2009. He testified that his neck and upper back started hurting in May or June 2010 when he had to sleep in a chair because it was too painful to sleep in his bed on his side, apparently due to the pain in his shoulders.
The medical testimony
The present dispute centers on the testimony of three medical doctors who examined Gomez and opined about his condition—Drs. Paul Stein, George Fluter, and Terrence Pratt—all of whom saw Gomez after he left his employment with National Beef.
Dr. Stein
Dr. Stein examined Gomez in February 2010, several months before Gomez first experienced neck and upper back pain. Gomez complained to Dr. Stein of bilateral shoulder pain. He expressed no neck complaints at the time. Dr. Stein found no signs of a neck or upper back injury in February 2010. He noted: “Cervical range of motion is intact. There is no focal tenderness in the cervical midline or musculature. No spasm.”
Dr. Fluter
Dr. Fluter examined Gomez in November 2010 at the request of Gomez' attorney. Dr. Fluter found that Gomez had tenderness in his neck and upper back and shoulders and limited range of motion in his neck. Rather than attributing Gomez' neck and upper back complaints to some new postemployment trauma, Dr. Fluter described in his deposition the stiffness in Gomez' neck and his sleeping while sitting upright in a chair as a mechanism for protecting his neck from pain rather than the cause of Gomez' neck pain.
Dr. Fluter found in the report of his examination that Gomez experienced neck and upper back pain and “[b]ased upon the available information and to a reasonable degree of medical probability, there is a causal/contributory relationship between Mr. Gomez' current condition and the reported injuries occurring on 11/16/07 and 02/01/08 and their sequelae.” He rated Gomez' neck injury as a 5% whole body impairment with a 72% task loss.
At his deposition, Dr. Fluter explained that Gomez' neck problems were related to the tenderness in his upper trapezius and rhomboid muscles which attach to the base of the skull:
“Q: ... [I]s it more probable than not that the muscular, that the muscles in the scapular area and the muscles in the trapezius area would have contributed to, if not caused, the cervical, the myofascial pain that Mr. Gomez experiences in his cervical area?
“A: I think so. Yes, I think the muscles that attached to the shoulder girdle originate on the spine, the neck and upper back, as well as portions of the base of the skull. So the shoulder girdle does actually have a connection to the neck, the cervical spine, and upper thoracic spine. So that's why it certainly, he can have pain in to what we would consider the neck because the trapezius, upper trapezius attaches to the base of the skull and the cervical spine and upper thoracic spine, the rhomboids, which are a musculature that goes from the cervical spine and upper thoracic spine to the shoulder blade. Those are all muscles that are part of the shoulder girdle, but they also attach to the cervical spine.
“So certainly they are in connection, they are continuous with those muscles. So, yes, I think that leads to the myofascial condition affecting the neck, as well as the upper back and upper shoulder and shoulder girdle and scapula stabilizers.”
Dr. Pratt
Dr. Pratt conducted an independent medical evaluation of Gomez in July 2011. Gomez' complaints included pain in his shoulders, neck, and upper back. Dr. Pratt attributed these complaints to Gomez' work accident based upon the history Gomez reported to him. But the doctor was then confronted with Gomez' deposition testimony in June 2008 in which he made no mention of neck complaints. He was also shown Gomez' testimony from the regular hearing that his neck pain began in May or June 2010 and that his neck started hurting from sleeping in a chair when he could not sleep on his side. Dr. Pratt stated this information was inconsistent with what Gomez had reported to him. Based on this new information, Dr. Pratt concluded Gomez' neck complaints “couldn't relate to activities in 2007 or '08.”
But on cross-examination, Dr. Pratt acknowledged that myofascial pain from the shoulder girdle can extend to the cervical spine. He testified that Gomez had no neck complaints or findings when Dr. Stein examined Gomez in February 2010, but Gomez complained about his neck and upper back to Dr. Fluter in November 2010. Dr. Pratt was asked:
“Q: ... [W]ere the symptoms that you found in the cervical spine on the day that you examined Mr. Gomez, on July the 14th of 2011, a consequence of the pain and the musculature of the trapezius and the scapular areas stemming from the bilateral injuries to the shoulders that Mr. Gomez suffered at National Beef?
“A: And as I stated with the prior question, if those areas were noted surrounding his injury, that would be correct.
“Q: ... [G]iven that Mr. Gomez exhibited symptoms, cervical spine—or symptoms in the cervical spine area to you in your examination, as well as the musculature surrounding the shoulder girdle, you cannot say within a reasonable degree of medical probability that Mr.—the injury to Mr. Gomez's cervical spine is not related to his work at National Beef?
“A: ... If he had symptoms following the event and no other event, then I could not state that it was not related to the event.
“Q: The event at National Beef?
“A: At National Beef, correct. But there [are] differences in testimony and depositions which are heard today stating that after he discontinued activities at National Beef he developed the symptoms.
“And if that's the case, then it would be difficult to state that it relates back to when he was performing those activities. Because he's a poor historian, the answer lies to which one do you believe, the statements that he had in 2008 or developed them after he stopped working.
“But I cannot state which is true to a reasonable degree of medical certainty.”
ALJ decision
In his submission letter to the administrative law judge (ALJ), Gomez contended that after his shoulder injuries his neck, upper back, and shoulder blades became painful and “really started hurting him sometime in May or June, 2010.” He stated that because of his shoulder injuries, he could not sleep on his side and resorted to sleeping while sitting in a chair.
The ALJ found that Gomez' injury from the November 2007 accident was limited to his left shoulder and Gomez' injury from the December 2007 accident was limited to his right shoulder. The ALJ found that Gomez suffered a scheduled permanent partial impairment injury to his left and right shoulders but not an unscheduled whole body injury to his neck or upper back.
Board decision
Gomez sought Board review. In his brief to the Board he cited Dr. Fluter's testimony that the muscles that attached to the shoulder girdle, where Gomez had undisputed injuries, “originate on the spine, the neck and upper back, as well as portions of the base of the skull.” Gomez argued to the Board that Dr. Fluter testified that it was more probable than not that these muscles in the scapular area and the trapezius muscles, which attach to the upper spine and the base of the skull, “[led] to the myofascial condition affecting the neck, as well as the upper back....” With respect to sleeping upright in a chair, Gomez argued to the Board that Dr. Fluter found this practice to be evidence of myofascial pain and not a new and independent injury. Dr. Fluter observed that it “is not an uncommon complaint of people who have myofascial pain that they often sleep sitting up on a chair or sofa, or something like that. So I think that he sleeps that way as a result of the myofascial pain.” Gomez pointed out to the Board that Dr. Fluter found in the report of his examination that Gomez experienced neck and upper back pain and “[b]ased upon the available information and to a reasonable degree of medical probability, there is a causal/contributory relationship between Mr. Gomez' current condition and the reported injuries occurring on 11/16/07 and 02/01/08 and their sequelae.”
The Board affirmed the ALJ's awards for Gomez' shoulders but ruled that Gomez failed to prove that he sustained work related neck and upper back injuries.
Gomez appeals. He challenges the Board's decision to limit his award to his shoulder injuries.
Review standards
Gomez 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.2007 Supp. 44–501(a); accord K.S.A.2013 Supp. 44–501b(c).
In considering Gomez' arguments, we 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, we do not engage in a de novo review. See K.S.A.2013 Supp. 77–621(c)(7), (d); Gustin v. Payless Shoesource, Inc., 46 Kan.App.2d 87, Syl. ¶ 1, 257 P.3d 1277 (2011).
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. Say lor 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.2013 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.2013 Supp. 77–621(d); Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014).
But even if there is substantial evidence on the record as a whole to support 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.2013 Supp. 77–621(c)(4); Frazier v. Mid–West Painting, Inc., 268 Kan. 353, 356–58, 995 P.2d 855 (2000).
Analysis
The Board's decisions denying relief on Gomez' neck and upper back claims were predicated upon the following basic facts:
• The left shoulder injury was the result of the November 16, 2007, accident.
• The right shoulder injury was the result of the December 27, 2007, accident.
• Gomez' employment ended on May 20, 2009.
• Gomez had no neck or upper back complaints when he saw Dr. Stein on February 23,2010.
• Gomez' neck and upper back began hurting in May or June 2010.
• Dr. Fluter could not state whether the “neck injury was due to the February 1st, 2008, accident or something that happened after he terminated his employment.”
• Dr. Pratt “could not relate the neck injury to activities in 2007 or 2008 if the claimant testified in 2012 that he did not start to have involvement of his cervical region until 2010.”
In its legal analysis the Board stated: “The flaw in claimant's logic is that he had no neck pain until about a year after he no longer worked for respondent.”
The medical analyses and the Board's decisions were predicated on the temporal factor: When did Gomez first complain of neck and upper back pain? Gomez argued a third alternative beyond the alternatives of the neck and back injuries occurring (1) at the time of his work accidents or (2) independently after he left National Beef's employ. He relies on the secondary injury rule which allows a claimant to receive compensation benefits for all of the natural and probable consequences arising from an injury, including any new and distinct injuries that are the direct and natural result of the primary injury. Jackson v. Stevens Well Service, 208 Kan. 637, 643, 493 P.2d 264 (1972); see Casco v. Armour Swift–Eckrich, 283 Kan. 508, 515–20, 154 P.3d 494 (2007). Under this theory, the deciding issue is causation, not whether the secondary injury occurred before or after the worker left the respondent's employ. “When there is expert medical testimony linking the causation of the second injury to the primary injury, the second injury is considered to be compensable as the natural and probable consequence of the primary injury.” 283 Kan. at 516. Indeed, in Logsdon v. Boeing Co., 35 Kan.App.2d 79, 82–85, 128 P.3d 430 (2006), the rule in Jackson applied when the initial injury occurred in 1993 and the second injury occurred in 2004, after Logsdon left Boeing's employ.
National Beef argues that Gomez has raised the secondary injury rule for the first time on appeal. But there are no magic words needed to invoke the secondary injury rule. Throughout the claims proceeding Gomez argued that his neck and back complaints were caused by the work injuries he sustained to his shoulders.
Cases applying the secondary injury rule have been predicated on medical testimony that gets to the heart of the rule: causation. For example, in Jackson, 208 Kan. at 639, Dr. Coffey testified the injuries were “related to” the claimant's work accident and “while he considered the shoulder difficulty to be secondary he did feel it was a direct result of the injury.” In Reese v. Gas Engineering & Construction Co., 219 Kan. 536, 540–41, 548 P.2d 746 (1976), Dr. Frederick testified that the damage to the bone in the work accident affected circulation to the bone and was “a condition which was related to the accident.”
Here, Dr. Stein found no neck or upper back injury. But his examination was before these injuries became symptomatic. Dr. Fluter initially declined to link Gomez' neck and upper back complaints to one of Gomez' work accidents. But later in his testimony he clarified that because of the interconnected muscle structures, Gomez' shoulder problems “[led] to the myofascial condition affecting the neck as well as the upper back....” Dr. Fluter specifically found in his report that “[b]ased upon the available information and to a reasonable degree of medical probability, there is a causal/contributory relationship between Mr. Gomez' current condition and the reported injuries occurring on 11/16/07 and 02/01/08 and their sequelae.” Dr. Pratt did not express a conflicting opinion. Given the lack of any intervening new accident, he could not testify within a reasonable degree of medical probability that Gomez' neck injury was not related to his work at National Beef.
Thus, we are left with Dr. Stein's opinion which predates the onset of any symptoms, Dr. Fluter's opinion which links Gomez' neck and upper back complaints to his work-related shoulder injuries, and Dr. Pratt's opinion which does not contradict Dr. Fluter. Under these circumstances, the Board erred in disregarding the essentially undisputed opinion of Dr. Fluter. See Casco, 283 Kan. at 515.
Further, the Board erred in applying the law by finding dispositive the fact that Gomez' neck and upper back symptoms arose after he left his employment with National Beef. The proper test was whether the medical testimony supported application of the secondary injury rule expressed in Jackson and its progeny. We conclude that Gomez satisfied that test. Accordingly, we must reverse the Board's decision on this issue.
For his second point, Gomez argues that he is entitled to a work disability. Because the Board denied the underlying neck and upper back claims, it did not reach this issue. Accordingly, we must remand to the Board for consideration of Gomez' work disability claim.
Reversed and remanded with directions.