Opinion
112,759.
06-12-2015
Phyllis R. HUFFMAN, Appellant, v. DeELLIOTTE COMPANY, INC., and Liberty Insurance Corporation, Appellees.
Bryce D. Benedict, of Eschmann & Pringle P.A., of Topeka, for appellant. Stephanie Warmund, of Law Offices of Stephanie Warmund, of Overland Park, for appellees.
Bryce D. Benedict, of Eschmann & Pringle P.A., of Topeka, for appellant.
Stephanie Warmund, of Law Offices of Stephanie Warmund, of Overland Park, for appellees.
Before PIERRON, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Phyllis R. Huffman appeals a finding by the Workers Compensation Board (Board) that DeElliotte Company, Inc., rebutted the statutory presumption that Huffman was permanently and totally disabled. The Board awarded Huffman compensation for a 6 percent impairment to her right forearm and a 5 percent impairment to her left forearm, but it denied her claim for permanent total disability. We affirm the Board's order.
Factual and Procedural Background
Huffman was born in 1962, has a high school education, and has worked mostly in unskilled employment. In 2001, while working as a machine operator for a former employer, Huffman was treated by an orthopedic surgeon, Dr. Neal Lintecum, for “[r]ight upper extremity pain with possible components of medial epicondylitis, lateral epicondylitis, cubital tunnel, and carpal tunnel.” Dr. Lintecum found that Huffman experienced some relief from an injection, and he recommended she “should continue with her splints, anti-inflammatories and medicines.”
Eventually, Huffman left that employment and then worked elsewhere as a home and office cleaner and assistant cook. In 2004, she began employment with DeElliotte, which continued until 2012. At DeElliotte, Huffman operated machines which processed thin sheets of plastic. This work involved the intensive use of Huffman's hands, and on January 10, 2011, Huffman returned to Dr. Lintecum complaining of “a six month history of numbness in both hands.”
Dr. Lintecum was not deposed in this proceeding. His clinical notes show that a nerve conduction study indicated “moderate severity carpal tunnel syndrome bilaterally.” Dr. Lintecum diagnosed “[b]ilateral carpel tunnel syndrome” and “[b]ilateral thumb triggering.” After conservative treatment, Dr. Lintecum performed a carpal tunnel release and a thumb trigger release on Huffman's right upper extremity on July 8, 2011, and carpal tunnel surgery on the left upper extremity on January 12, 2012.
Following these surgeries, Dr. Lintecum examined Huffman on January 23, 2012, and reported: “She states that her numbness and tingling are improving,” and “[s]he states that her pain is continually improving.” About 1 month later, on February 15, 2012, Dr. Lintecum examined Huffman and recorded that “[s]he denies any numbness or tingling,” and “[s]he states that her pain is significantly improved.” The doctor concluded Huffman would “be given a full release back to work without restrictions. She may contact us with any additional questions or concerns.”
Huffman was released to work without restrictions effective February 16, 2012. She testified at the regular workers compensation hearing, however, that she did not return to DeElliotte. On March 30, 2012, Huffman filed her application for hearing alleging “[r]epetitive motion trauma,” with an accident date of October 28, 2010. Of note, the record does not show that Huffman sought any medical treatment between the date she was released back to work without restrictions and the date she initiated this workers compensation proceeding. Huffman apparently never returned to Dr. Lintecum's care. She testified at the regular hearing that her family physician, Dr. Phillip Martin, had advised her to stop work on April 30, 2012. Dr. Martin was not deposed, and the record on appeal contains none of his clinical notes after January 24, 2012.
Huffman saw Dr. Peter Bieri at the request of her counsel on July 10, 2012. Huffman advised Dr. Bieri that “surgery has been of little benefit.” Upon clinical examination, Dr. Bieri determined that Huffman's reports of pain were inconsistent with the results of the Phalen's and Tinel's tests. He concluded that Huffman had suffered a 15 percent impairment to each upper extremity.
The administrative law judge (ALJ) ordered an independent medical examination by Dr. O. Allen Guinn, III, who evaluated Huffman on September 27, 2012. Dr. Guinn observed that Huffman “has slightly impaired mentation,” exhibited by a tendency “[w]hen asked a question” to give “a very pedantic reply,” requiring that she “be brought back to task multiple times.” The doctor found that “[o]n static grip testing, the patient only gripped to 5 pounds, but on rapid alternating gripped to 45 pounds indicating a selflimiting effort.” Dr. Guinn recorded that a nerve conduction study performed on July 13, 2012, “was normal on the right side and showed only borderline mild left median nerve entrapment on the left .” The doctor observed that the nerve conduction study was conducted 3 months after Huffman had stopped working, when Huffman's symptoms were apparently mild. Doctor Guinn made the following recommendation:
“I would recommend that the patient be returned to work at full duty, and then if her symptomatology increased, particularly the numbness, have a repeat nerve conduction study done when the patient is actually symptomatic. This would give a more realistic appraisal of her degree of nerve compression if it is present. Based on her current examination and the nerve conduction study that was done in July, I would not recommend any surgical intervention at this time for the carpal tunnel syndrome even though the left was borderline mild. This is an improvement from the previous study.”
Huffman returned to Dr. Guinn for an impairment rating on March 14, 2013. Upon examination, the doctor found no limitation on Huffman's hand motion, no sensory loss to her fingers, and slight pain with the use of each wrist. Regarding strength, the doctor again found Huffman “gave a self-limiting effort as evidenced by the wide variation between the static grip tests and the rapid alternating measurements. This indicates that a less than full effort was expended by the examinee.” Dr. Guinn explained the latter point at his deposition: “It's a little harder to control how hard you squeeze when you're doing a rapid back and forth motion which is why we use it.” Dr. Guinn concluded that Huffman had suffered a 6 percent impairment to her right upper extremity and a 5 percent impairment to her left upper extremity.
Dr. Guinn further noted that, contrary to his recommendation at the first visit, Huffman had “refused to return to work.” Instead, the record shows Huffman took “family leave” from April 30, 2012, until July 23, 2012. In August 2012, Huffman applied for and obtained unemployment compensation. By the time of the regular hearing on March 18, 2014, Huffman had registered for work placement with Kelly Services.
At the regular hearing, DeElliotte admitted that Huffman suffered compensable upper extremity injuries, but it denied Huffman's claim for permanent total disability. The parties stipulated to the date of injury, October 28, 2010. After considering the matter, the ALJ found DeElliotte had overcome the presumption of permanent and total disability. See K.S.A. 44–510c(a)(2). Upon its review of the ALJ's decision, the Board agreed:
“Considering the totality of the circumstances, including the findings of Dr. Guinn; claimant's collecting unemployment; claimant's ability to find employment in the past, notwithstanding her personality impairment; the recorded inconsistent effort on strength testing with Dr. Guinn and her statements to Dr. Bieri that were inconsistent with his findings, the Board finds respondent successfully rebutted the presumption of permanent total disability.”
Huffman appeals.
Analysis
On appeal, Huffman argues that “not only has [DeElliotte] failed to rebut” the statutory presumption of permanent total disability, but “the evidence affirmatively shows that she is permanently and totally disabled.” On the other hand, DeElliotte contends the presumption was rebutted by evidence that Huffman “did return to work full duty, she had no restrictions placed on her activities by credible expert testimony, she received unemployment benefits and she registered with an employment agency and was able to find work before this injury.”
We review the Board's decision under the Kansas Judicial Review Act, examining the Board's factual findings for substantial evidence in light of the record as a whole. K.S.A.2014 Supp. 77–621(c)(7), (d). We do not reweigh the evidence or engage in de novo review. K .S.A.2014 Supp. 77–621(d) ; Messner v. Continental Plastic Containers, 48 Kan.App.2d 731, 750, 298 P.3d 371, rev. denied 291 Kan. 1246 (2013).
“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.” K.S.A. 44–510c(a)(2). Under the statute in effect on the date of Huffman's injury, “[l]oss of ... both hands ... in the absence of proof to the contrary, shall constitute a permanent total disability.” K.S.A. 44–510c(a)(2). Importantly, the parties agree that the statutory presumption applied to Huffman's injuries. They differ, however, regarding whether DeElliotte proved that presumption was overcome by competent evidence.
To rebut the statutory presumption, DeElliotte had to produce “evidence that the claimant is capable of engaging in any type of substantial and gainful employment.” Casco v. Armour Swift–Eckrich, 283 Kan. 508, 528, 154 P.3d 494 (2007). This is a factual determination based on the totality of the evidence, including but not limited to the claimant's physical activity, age, intelligence, education, lack of training, job history, and constant pain. See Lyons v. IBP, Inc., 33 Kan.App.2d 369, 376–78, 102 P.3d 1169 (2004) ; Wardlow v. ANR Freight Systems, 19 Kan.App.2d 110, 113–15, 872 P.2d 299 (1993).
Huffman emphasizes her alleged “mental/personality problems,” which she claims “render her unsuitable for obtaining or retaining substantial gainful employment.” Dr. Guinn did note that Huffman tended to ramble in her answers, an observation consistent with some of Huffman's testimony at the general hearing. However, the record contains no medical diagnosis of a mental or personality problem.
Huffman cites the opinion of Robert W. Barnett, PhD, a clinical psychologist retained by her counsel, but Dr. Barnett was asked to evaluate Huffman's “employability.” Dr. Barnett explained at his deposition that he “also [has] credentials in Kansas as a rehabilitation counselor, rehabilitation evaluator and job placement specialist.” Dr. Barnett clarified that he was not offering a medical opinion or making a diagnosis in the present case: “My only charge was to come up with an opinion about employability.”
Thus, as the Board found, Dr. Barnett identified “personality traits” in Huffman, not a “psychological barrier” to employment. The Board pointed out that Dr. Barnett admitted Huffman was “successful [in] finding employment prior to her injury,” despite her “potential psychological issues.” The Board ultimately concluded Dr. Barnett's “opinions are not persuasive,” and we believe substantial evidence supported its finding.
Similarly, Huffman asks us to consider the opinion of Richard W. Santner, a vocational rehabilitation counselor retained by her counsel, who opined that Huffman is not “realistically employable.” The Board rejected Santner's opinion in part because he had relied on the greater impairment ratings and restrictions provided by Dr. Bieri. But the Board disregarded Dr. Bieri's opinions and adopted the opinions of Dr. Guinn. The Board reasoned: “Dr. Guinn examined [Huffman] on multiple occasions and provided a neutral opinion. Dr. Guinn's opinion on permanent restrictions is consistent with [Huffman's] statement acknowledging she was released without restrictions by Dr. Lintecum.” Considering the record as a whole, substantial evidence supported the medical reasons for the Board's rejection of Santner's opinion.
Moreover, the Board found that “Santner's opinion [that Huffman's] personality limited her ability to find work is inconsistent with the fact that, prior to her injury, [Huffman] was capable of finding employment.” The record shows Huffman has obtained employment in the past and, as the Board observed: “There is no evidence [Huffman's] personality changed after her accident.” Huffman's history of employment and the rest of the record on appeal supported the Board's finding in this regard.
Next, Huffman challenges the opinions of Terry L. Cordray, a vocational rehabilitation counselor retained by DeElliotte, who testified that Huffman is employable. Yet, the Board found Cordray's “opinions are not persuasive.” Since the Board did not credit Cordray's opinions, any inadequacy in his evaluation does not support Huffman's claim. Huffman's challenges to Cordray's vocational opinions are, as a practical matter, moot, and they require no further discussion. See Smith v. Martens, 279 Kan. 242, 244, 106 P.3d 28 (2005).
Finally, Huffman argues the “Board gave ... undue, weight to the fact that Dr. Guinn did not impose work restrictions.” As Huffman acknowledges, Dr. Guinn completed a form stating his opinions on Huffman's ability to perform 23 specific tasks from her last four employments. Dr. Guinn found Huffman could perform 20 of the tasks and stated the following regarding the balance:
“[T]hree of [the tasks] mention a lifting requirement that I cannot state definitely [she] is capable of doing. And this is based again on the problem I have where she gives an inconsistent effort with [grip strength] testing, which suggests that the numbers that we're obtaining aren't accurate, ... it does not give us a true and accurate measurement of what she's actually capable of doing. So when there was a ... mention of a lifting requirement on the job, unless it met what she already demonstrated the capability of doing, I put a question mark by it.”
Huffman now challenges Dr. Guinn's opinion regarding the work tasks, maintaining the doctor never indicated whether she could perform them for an entire work day. The form Dr. Guinn completed specifically linked the tasks with the work Huffman had performed for her employers. For example, the form stated that “[t]asks 19–23 are associated with the work she performed at DeElliotte as a machine operator.” Task 19 was described as “using a blade knife to cut film off a role and splice the roll onto another. This task is done from a standing position with reaching and handling.” Task 20 was described as “starting the machine and turning the counter off. This task is done from a standing position with frequent reaching and fingering.” In context, then, the record supports the fact that Dr. Guinn was evaluating Huffman's ability to engage in substantial and gainful employment.
Additionally, Huffman critiques Dr. Guinn's unwillingness to provide an opinion on the three tasks which required lifting. Huffman contends Dr. Guinn should have considered the grip-strength testing conducted by Dr. Bieri, who reported “[m]ultiple measurements were considered valid, forming a bell-shaped curve. Rapid exchange technique was confirmatory.” Huffman asserts: “For whatever reason, Dr. Guinn chose to not take this into account .”
We do not see from Dr. Guinn's reports that he was provided with Dr. Bieri's report, and Dr. Guinn was not questioned about Dr. Bieri's results at his deposition. Regardless, Huffman ignores Dr. Bieri's testimony that he found inconsistencies between her account and the medical testing—this time relating to the Phalen's and Tinel's tests. Thus, both doctors testified to medical indications that Huffman was less than candid with regard to her physical limitations, a fact the Board noted as a basis for its ruling.
Moreover, Huffman is essentially asking us to reweigh the evidence. The Board credited Dr. Guinn's ultimate opinions over Dr. Bieri's, a decision we do not subject to de novo review. Our question is whether the Board's findings were supported by substantial evidence, and we conclude they were.
We also note that Huffman does not address another basis for the Board's decision, her collecting of unemployment compensation. It was uncontroverted that to receive such benefits Huffman certified she was ready, willing, and able to work.
In conclusion, and considering the record as a whole, we determine that substantial evidence supported the Board's finding that DeElliotte rebutted the statutory presumption of permanent total disability.
Affirmed.