Opinion
No. 107,026.
2012-07-20
Andrew B. HENSON, Claimant/Appellee, v. BELGER CARTAGE SERVICES, INC., Self–Insured Respondent/Appellant, and Thomas McGee, L.C., Third–Party Adjuster/Appellant.
Appeal from Workers Compensation Board. Douglas O. Hobbs, of Wallace, Saunders, Austin, Drown & Enochs, Chartered, of Wichita, for appellants Belger Cartage Services, Inc. and Thomas McGee, L.C. Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for appellee.
Appeal from Workers Compensation Board.
Douglas O. Hobbs, of Wallace, Saunders, Austin, Drown & Enochs, Chartered, of Wichita, for appellants Belger Cartage Services, Inc. and Thomas McGee, L.C. Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for appellee.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
While working for Belger Cartage Services (“Belger Cartage”) Andrew B. Henson was injured when a fellow employee driving a forklift accidently pinned him between a large crate and a printing press. The accident resulted in injuries to Henson's chest and back. He immediately sought medical attention, but the pain in his chest continued to fluctuate in severity. About a week later, Henson went to a hospital for a CAT scan and it was discovered that he had suffered a heart attack. Henson filed a claim for workers compensation benefits, and Belger Cartage admitted that he had suffered a work-related injury. But because the company believed the heart attack was not related to the injury, it refused to pay any expenses related to Henson's heart condition. An Administrative Law Judge (“ALJ”) eventually found that the heart attack was work-related and concluded that Henson was permanently and totally disabled. Subsequently, the Workers Compensation Appeals Board (“Appeals Board”) affirmed the ALJ's decision and Belger Cartage appealed to this court. On appeal, Belger Cartage argues that there was not substantial evidence to support a causal connection between Henson's work-related injury and his heart attack. In addition, the company argues that the Appeals Board misinterpreted two workers compensation statutes. For the reasons set forth in this opinion, we affirm the decision of the Appeals Board.
Facts
On February 4, 2008, Henson was working at Belger Cartage in Wichita when a fellow employee hit a large crate with a forklift he was driving. The crate slid across the floor and pinned Henson in between it and a printing press. Henson remembers regaining consciousness outside, where his coworkers were loading him into a truck to take him to a hospital.
On the way to the hospital, Belger Cartage's Wichita Division Manager called Henson and instructed him to go to a clinic instead. At the clinic, Henson saw Dr. Ronald Davis, who examined him for chest and back injuries. Dr. Davis imposed physical restrictions on Henson and placed him on pain medication. Although Henson returned to work the next day, he did not feel capable of performing the work assigned to him. So he went home and took a few days off work to try to recover.
Henson went back to see Dr. Davis on February 13, 2008. At Dr. Davis' office, nurses had trouble getting a reading on Henson's blood pressure. Because this caused Dr. Davis concern, he sent Henson to the hospital for a CAT scan. At the hospital, Henson's blood pressure was 60 over 40. And as he was headed back to his truck in the hospital parking lot, an x-ray technician caught up to Henson to tell him he needed to go to the emergency room.
In the emergency room, Dr. Hussam Farhoud told him that he had recently suffered a heart attack and needed further treatment. Dr. Farhoud then performed an emergency cardiac catheterization on Henson. He found a 100% occluded artery, placed two stents, inserted an intra-aortic balloon pump, and implanted a permanent pacemaker. After Henson was discharged from the hospital, he initially passed a physical examination. But 30 days later, Henson took another physical and failed.
Henson eventually returned to work at Belger Cartage, where he was given accommodated work and other employees helped him with his duties. In April 2009, however, he was laid off work. Although Henson tried to find work after being laid off, he has never been successful in his efforts and he remains unemployed.
Henson filed a claim for benefits with the Division of Workers Compensation. Dr. Farhoud informed Belger Cartage that it was difficult to determine whether the work-related injury caused Henson's heart attack. So Belger Cartage advised the ALJ that it agreed to pay for benefits to Henson arising out of the initial work-related injury, but it would not pay claims relating to his heart attack.
Accordingly, the ALJ determined that she wanted a neutral physician to evaluate the cause of Henson's heart attack, and she ordered Henson and Belger Cartage to locate a physician to perform the evaluation. Ultimately, both parties agreed that Dr. Michelle R. Brown would serve as the neutral evaluator, and she was appointed by the ALJ. Unfortunately, a dispute arose between Dr. Brown and Belger Cartage over payment for her services.
The parties participated in mediation, where it was evidently agreed that Belger Cartage would not pay Dr. Brown's fee and Dr. Brown would not provide a report. But the ALJ subsequently determined that because she had ordered the neutral evaluation, Dr. Brown was obligated to give her a report. Belger Cartage then alleged that Dr. Brown was biased because of her animosity over the payment dispute. Nevertheless, the ALJ admitted Dr. Brown's report into evidence.
In her report, Dr. Brown rendered the opinion that the work-related accident caused Henson's heart attack. In reaching this opinion, Dr. Brown reviewed the original images of Henson's cardiac catheterization and found what she believed to be evidence of a rare dissection of Henson's right coronary artery. According to Dr. Brown, the dissection resulted in the occlusion of the artery, which in turn caused Henson's heart attack. Although Dr. Brown recognized that the rupture of unstable plaque is a more common cause for heart attacks in men with risk factors comparable to Henson's, she expressly ruled out such a cause in her report.
Dick Santner, a vocation rehabilitation counselor, also evaluated Henson and compiled a list of the tasks he was able to perform in the 15 years prior to his work-related injury. Santner then compared Henson's postinjury physical restrictions with his work history, transferable skills, age, educational background, the current job market, and other factors. Based on this comparison, Santner rendered the opinion that Henson was realistically unemployable as a result of his work-related injury.
Dr. Daniel D. Zimmerman, an internal medicine physician, also evaluated Henson and rated his impairments according to the American Medical Association Guidelines, Fourth Edition (“AMA Guidelines”). He agreed with Dr. Brown that the crush injury resulted in an aortic dissection that caused Henson's heart attack. So he assigned impairment ratings based on Henson's thoracic and cardiac health. Dr. Zimmerman assigned a 5% rating for chronic thoracic paraspinous myofascitis and permanent aggravation of thoracic osteoarthritis; a 49% rating for coronary artery disease; a 29% rating for arrhythmias; and a 10% rating for upper urinary tract impairment. According to the AMA Guidelines' combined values chart, this amounted to a total body impairment of 70%. Dr. Zimmerman also found an 89% task loss based on Santner's vocational evaluation.
In response to Henson's claim that his heart attack was caused by the work-related injury, Belger Cartage obtained its own cardiac expert, Dr. Michael W. Farrar, to render an opinion regarding the cause of Henson's heart attack. Dr. Farrar reviewed the images of Henson's x-rays and cardiac catheterization contained on CD–Rom and did not see an aortic dissection. Rather, in his opinion, the cause of Henson's heart attack was the rupture of unstable plaque. Dr. Farrar also opined that the unstable plaque likely resulted from Henson's risk factors, including obesity, a history of smoking, and possible sleep apnea.
Belger Cartage also retained its own vocational rehabilitation expert, Steve Benjamin, to evaluate Henson. Benjamin determined that theoretically, there were some entry-level jobs that Henson could perform notwithstanding his medical condition. Even so, he admitted that each of the jobs he had in mind had the potential to involve tasks that Henson may not be able to handle due to his impairments. Ultimately, Benjamin concluded that Henson suffered a 53.8% task loss as a result of the work-related injury.
Notwithstanding their disagreements, the parties were able to enter into several factual and legal stipulations, which are set out in the ALJ's Award entered on July 12, 2011. In the Award, the ALJ also made several findings of fact and conclusions of law. Specifically, the ALJ found that Dr. Brown's report was admissible despite Belger Cartage's allegations of bias.
After considering the conflicting medical opinions, the ALJ concluded that Henson “suffered a crush injury to his mid-back which resulted in a permanent impairment of function to his thoracic spine; and further that [his] heart attack was a direct result of the work-related trauma injury to [his] chest wall.” Moreover, the ALJ concluded that due to the work-related injury, Henson was permanently and totally disabled.
The ALJ calculated that Belger Cartage owed Henson $91,361.40, payable in one lump sum, less any amounts it had already paid. In addition, she ordered that Belger Cartage continue to pay $510 per week to Henson until it reached the $125,000 limit. Further, the ALJ ordered Belger Cartage to pay for the cost of Lansoprazole, for which it had previously refused to pay, and assessed a $25 penalty for the failure to pay.
Belger Cartage appealed the ALJ's Award to the Appeals Board. In a 17–page Order issued on October 21, 2011, the Appeals Board unanimously affirmed the Award. On November 18, 2011, Belger Cartage timely appealed the Appeals Board's Order to this court.
Did Substantial Competent Evidence Support The Appeals Board's Findings?
Standard of Review
“Under the Kansas Judicial Review Act, K.S.A. 77–601 et seq. , an appellate court reviews an agency's factual findings to see whether substantial evidence supports them in light of the whole record, considering evidence both supporting and detracting from the agency's findings. This substantial-evidence standard evaluates the reasonableness of an agency's conclusion in terms of the evidence. Substantial evidence is such evidence as a reasonable person would accept as sufficient to support a conclusion.” Herrera–Gallegos v. H & H Delivery Services, Inc., 42 Kan.App.2d 360, Syl. ¶ 1, 212 P.3d 239 (2009).
We must also determine whether the evidence relied upon by the ALJ and the Appeals Board was so undermined by other evidence or cross examination that it failed to provide sufficient support for their conclusion. 42 Kan.App.2d 360, Syl. ¶ 3. Although we can take the credibility of witnesses into consideration, we cannot reweigh the evidence. 42 Kan.App.2d 360, Syl. ¶ 2, ¶ 3. Furthermore, to the extent that analysis requires the interpretation of a statute, our standard of review is unlimited. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010); Tyler v. Goodyear Tire & Rubber Co., 43 Kan.App.2d 386, 389, 224 P.3d 1197 (2010).
Cause of Henson's Heart Attack
As indicated above, the parties stipulated that Henson's work-related injury is compensable. But the parties disagreed as to whether the work-related injury caused Henson's heart attack. Consequently, the ALJ decided to appoint a neutral physician under K.S.A. 44–516, and the parties agreed to the appointment of Dr. Brown to serve in this capacity. Specifically, the ALJ ordered Dr. Brown to perform an evaluation of Henson for the purposes of “diagnosis, causation opinion and treatment recommendations, if any .”
Henson acknowledges that he bore the burden of proving that his heart attack resulted from the accident at Belger Cartage when he was pinned between the large crate and a printing press. See. K.S.A. 44–501(a). In an attempt meet his burden of proof on the issue of causation, Henson relied primarily upon the opinion expressed by Dr. Brown. But Belger Cartage contends that neither the ALJ nor the Appeals Board should have considered Dr. Brown's opinion because she was biased against the company as a result of a dispute over the payment of her fee.
Clearly, K.S.A. 44–516 grants an ALJ the authority to appoint a neutral health care provider to examine an injured employee. Here, the ALJ appropriately determined a neutral health care provider was needed because of the dispute over the cause of Henson's heart attack. The ALJ also acted appropriately by seeking the input of the parties, and they agreed to the appointment of Dr. Brown.
Initially, Dr. Brown refused to produce the report until Belger Cartage paid her fee. Ultimately, however, the ALJ ordered Dr. Brown to produce her report notwithstanding the fee dispute. Belger Cartage contends that because of this dispute, Dr. Brown finalized her report in a biased manner rendering it inadmissible as a neutral evaluation. In other words, Belger Cartage argues that Dr. Brown lost her neutrality.
It is important to note that the rules of evidence are not applicable in workers compensation proceedings and, as a result, evidence is more liberally admissible. See Roberts v. J.C. Penney Co., 263 Kan. 270, 281, 949 P.2d 613 (1997). Under the rules of evidence, bias or hostility is always relevant to the credibility of a witness. See K.S.A. 60–420; Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, Syl. ¶ 26, 244 P.3d 642 (2010). But even under the rules of evidence, an allegation of bias normally goes to the weight of the evidence rather than to its admissibility. See Svaty, 291 Kan. at 625;Curry v. Klein, 251 Kan. 670, 675, 840 P.2d 443 (1992) (“The admissibility of evidence is largely within the discretion of the trial judge.”).
According to K.S.A. 44–516, the report of a neutral physician “shall be considered by the administrative law judge in making the final determination.” Hence, we do not find that it was error for the ALJ to consider Dr. Brown's report in making a determination regarding the cause of Henson's heart attack. Rather, we find Belger Cartage's argument regarding Dr. Brown's alleged bias goes to the weight to be given to her report—not to its admissibility. Thus, it was within the ALJ's discretion to determine the weight, if any, to be given to Dr. Brown's opinions, and we cannot find that it was error for the ALJ and the Appeals Board to consider a report prepared by a health care provider whose appointment had been agreed to by the parties.
In addition, Belger Cartage contends that the ALJ and the Appeals Board improperly considered Dr. Brown's report because she did not use the AMA Guidelines in her evaluation. Although the AMA Guidelines are to be used in determining a claimant's functional impairment, we do not find it was necessary for Dr. Brown to refer to the AMA Guidelines in rendering an opinion regarding the cause of Henson's heart attack.
Belger Cartage also attacks Dr. Brown's credentials. Because Belger Cartage agreed to Dr. Brown's appointment as a neutral evaluator under K.S.A. 44–516, the company's challenge to her credentials appears at best to be disingenuous. Certainly, Belger Cartage and its counsel would have performed due diligence in investigating Dr. Brown's credentials prior to agreeing for her to serve in such an important capacity in this case.
Moreover, Belger Cartage suggests that the ALJ and Appeals Board erred in considering Dr. Zimmerman's opinion because he is not a cardiologist. Dr. Zimmerman candidly admitted that cardiac issues rarely come up in his practice and he did not claim to know more than either Dr. Brown or Dr. Farrar. Nevertheless, Dr. Zimmerman opined that the work-related trauma caused Henson's heart attack. And Belger Cartage abandoned this point by offering no authority as to why Dr. Zimmerman should be precluded from expressing his opinion on causation. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). Thus, we find that the fact that Dr. Zimmerman is not a cardiologist goes to the weight of his opinion rather than its admissibility.
Based on our review of the record as a whole, considering the evidence both supporting and detracting from the findings of the ALJ and the Appeals Board, we find that there was sufficient evidence presented upon which a reasonable person could conclude that Henson's heart attack was caused by the work-related trauma he suffered when he was pinned between a large crate and a printing press. Furthermore, we do not find the evidence presented by Belger Cartage to be so strong as to undermine the other evidence.
Evidence of Permanent and Total Disability
Belger Cartage next contends that there was insufficient evidence presented to support the finding of the ALJ and the Appeals Board that Henson was permanently and totally disabled. In support of this contention Belger Cartage argues that Dr. Zimmerman's opinions regarding Henson's functional impairment were insufficient and unreliable. We disagree.
A person is permanently and totally disabled when he or she is “essentially and realistically unemployable.” Wardlow v. ANR Freight Systems, 19 Kan.App.2d 110, 113, 872 P.2d 299 (1993). In the present case, a review of the record reveals that Dr. Zimmerman used the statutorily required AMA Guidelines to compile Henson's functional impairment ratings. See K.S.A. 44–510e(a). Specifically, the record reflects that Dr. Zimmerman assigned a 5% rating for chronic thoracic paraspinous myofascitis and permanent aggravation of thoracic osteoarthritis; a 49% rating for coronary artery disease; a 29% rating for arrhythmias; and a 10% rating for upper urinary tract impairment. According to the AMA Guidelines' combined values chart, this amounted to a total body impairment of 70%.
Next, Dr. Zimmerman compared his ratings to the task list created by Santner. In doing so, Dr. Zimmerman determined that Henson could no longer perform eight of the nine tasks he had performed during the 15 years preceding the accident, which amounted to an 89% task loss. Further, Santner concluded that Henson was not realistically employable considering his transferable skills, the geographic location, his physical restrictions, his age, his education level, and the condition of the labor market. Thus, although Benjamin disagreed and we may or may not have reached the same conclusions as the ALJ and the Appeals Board if we were the finder of fact, we conclude that there was substantial competent evidence presented upon which a reasonable person could conclude that Henson was permanently and totally disabled as a result of a work-related injury.
Award for the Cost of Lansoprazole and the $25 Penalty
Belger Cartage asserts that the ALJ and the Appeals Board erred in finding that Henson's prescription for Lansoprazole was related to the injuries he suffered on the job. Belger Cartage points out that it asked Henson's treating physician whether each of the medications he prescribed was for his general health or for his cardiac problems. The doctor responded that Lansoprazole was for Henson's general health. As such, Belger Cartage argues that it was not required to pay for that medication and should not have been penalized for its failure to pay.
An employer must pay for medications “as may be reasonably necessary to cure and relieve the employee from the effects of [a work-related] injury.” K.S.A. 44–510h. Here, the ALJ and the Appeals Board determined that Henson suffered a heart attack as a result of his compensable work injury. Moreover, Dr. Farrar noted that it is common for doctors to prescribe Lansoprazole to control the acid that accompanies the taking of aspirin following a heart attack. So there is evidence in the record upon which a reasonable person could infer that Henson's use of Lansoprazole was related to the trauma he suffered at his place of employment. Accordingly, we conclude that there was substantial competent evidence to support the order for Belger Cartage to pay for the Lansoprazole and to support the $25 penalty assessment under K.S.A. 44–512a.
Did The Appeals Board Misinterpret Workers Compensation Statutes When It Awarded Work Disability Benefits?
Standard of Review
“An appellate court exercises unlimited review on questions of statutory interpretation without deference to an administrative agency's or board's interpretation of its authorizing statutes.” Ft. Hays St. Univ., 290 Kan. 446, Syl. ¶ 2.
Interpretation of K.S.A. 44–510c(a)(2)
Belger Cartage contends that K.S.A. 44–510c(a)(2) requires a person seeking workers compensation benefits to make a good-faith effort to find substantial and gainful employment before he or she can be found to be a permanently and totally disabled. But this court has previously held that “[w]hen a person is permanently and totally disabled, there is no requirement under Kansas workers'-compensation law that the person continue to look for work.” Herrera–Gallegos, 42 Kan.App.2d 361, Syl. ¶ 6.
Notwithstanding, Belger Cartage argues that the Kansas Supreme Court's decision in Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009), implicitly overturned Herrera–Gallegos. The Bergstrom case, however, did not address the good-faith effort doctrine as it relates to K.S.A. 44–510c(a)(2). Rather, our Supreme Court addressed K.S.A. 44–510e(a), which only limits workers compensation payments if a claimant is actually engaging in alternate work that pays 90% or more of his or her pre-injury wages. Furthermore, the Bergstrom court noted that if the legislature sought to require a good-faith effort to find work, the statute would contain language about a claimant's attempt to work or capability of working. 289 Kan. at 610.
The statute at issue in the present case, K.S.A. 44–510c(a)(2), provides that “[p]ermanent 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.” Belger Cartage argues the comments in Bergstrom—that the legislature would have added language about capability to work if it intended the good-faith effort doctrine to apply—overruled Herrera–Gallegos because K.S.A. 44–510c(a)(2) does mention capability to engage in work. But this argument ignores the fact that unlike K.S.A. 44–510e(a)'s straightforward compensation limitation, K.S.A. 44–510c(a)(2) provides that if a person is not presumptively disabled, “permanent total disability shall be determined in accordance with the facts.”
To be sure, an attempt to find work may be one of the factors that an ALJ or the Appeals Board can consider in making a permanent and total disability finding, but nowhere does K.S.A. 44–510c(a)(2) mandate an extensive, good-faith job search as a prerequisite to such a determination. As this court noted in Herrera–Gallegos, it is “the very definition of a fool's errand” to require a person that is otherwise “permanently incapable of engaging in any type of substantial and gainful employment” to make a good-faith effort to find employment as a prerequisite to the finding of permanent and total disability. K.S.A. 44–510c(a)(2); 42 Kan.App.2d at 367. Nevertheless, the record reveals that Henson did—albeit unsuccessfully—attempt to find another job after he was laid off from Belger Cartage.
We, therefore, conclude that the ALJ and the Appeals Board did not misinterpret K.S.A. 44–510e(a) in finding that Henson was permanently and totally disabled.
Interpretation of K.S.A. 44–510e
Belger Cartage also contends that K.S.A. 44–510e does not provide for compensation when there is not a nexus between Henson's injury and his wage loss. Hence, Belger Cartage argues the award of permanent partial disability was inappropriate because Henson lost his wages due to being laid off—not as a direct result of his work-related injury. But this court has held that “[a]bsent a specific statutory provision requiring a nexus between the wage loss and the injury, this court is not to read into the statute ... such a requirement.” Tyler, 43 Kan.App.2d at 391; see also Bryant v. Midwest Staff Solutions, Inc., No. 99,913, 2011 WL 4563066, at *5 (Kan.App.2011) (unpublished opinion); Killough v. Goodyear Tire & Rubber Co., No. 103,321, 2011 WL 2175950, at *4 (Kan.App.2011) (unpublished opinion). Thus, we conclude that the ALJ and the Appeals Board did not err in its interpretation of K.S.A. 44–510e.
Affirmed.