Opinion
No. 108,789.
2013-06-28
Pamela D. JOHNSON, Appellant, v. TOPEKA COMMUNITY HEALTHCARE, and Ace American Insurance, Appellees.
Appeal from Workers Compensation Board. Roger D. Fincher, of Bryan, Lykins, Hejtmanek & Fincher, P.A., of Topeka, for appellant. Kevin M. Johnson and Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Overland Park, for appellees.
Appeal from Workers Compensation Board.
Roger D. Fincher, of Bryan, Lykins, Hejtmanek & Fincher, P.A., of Topeka, for appellant. Kevin M. Johnson and Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Overland Park, for appellees.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Injured on the job, Pamela D. Johnson received workers compensation benefits for a scheduled injury to her shoulder but did not receive compensation for a claimed whole body injury. She administratively appealed her claim and the Workers Compensation Board affirmed her award. Johnson now brings her cause to this court. We affirm the Board's holding because Johnson has not shown that the Board's decision was unreasonable, arbitrary, or capricious. Additionally, after reviewing the evidence that supports the Board's findings and reviewing that evidence which contradicts the Board, we hold the Board's factual findings are supported by substantial evidence.
Because we have upheld the Board's decision of a scheduled injury, we need not address the appellees' contentions about applying the direct and natural consequences rule, nor do we need to decide if there was an aggravation of a preexisting condition. Finally, we will not address the appellees' challenge to any alleged overpayment of temporary benefits because no cross-appeal was brought by them on this point.
Johnson seeks compensation.
Johnson worked as a medication aide for Topeka Community HealthCare on July 5, 2009, when she was injured at work by repeatedly lifting and turning residents. Johnson reported that she injured her left shoulder and arm. After her injury, Johnson consulted a chiropractor, Dr. Travis R. Oiler, about her shoulder and neck.
After filing for benefits, an administrative law judge ordered an independent medical examination of Johnson by Dr. Terrance Pratt. Dr. Pratt noted that in March 2008 Johnson was assaulted while working for a former employer. He explained that this assault resulted in a fracture to one of Johnson's fingers, cervical and back pain, and a mild concussion. Dr. Pratt noted that Johnson was treated by a chiropractor for her injuries, but she had some “cervical residual.” The doctor concluded Johnson did not have “resolution” of the symptoms she suffered as a result of the March 2008 assault.
With regard to Johnson's July 2009 incident, Dr. Pratt indicated Johnson's current complaints were pain and numbness in her left shoulder and hand. Dr. Pratt recommended therapeutic treatment and use of nonsteroidal agents for Johnson's shoulder.
Based on Dr. Pratt's assessment, the ALJ determined Johnson was entitled to medical care for her left shoulder. Johnson was paid temporary compensation and medical payments in the months following this determination. In 2011 and 2012, two vocational rehabilitation counselors interviewed Johnson and prepared task lists detailing the various tasks Johnson had performed in the 15 years preceding the July 2009 injury. Dr. Pedro Murati, a doctor certified in physical medicine and rehabilitation, also interviewed Johnson at the request of her attorney.
After considering the testimony of the various experts, the ALJ entered an award in favor of Johnson based on a finding that she suffered a permanent partial disability due to a 7 percent loss of the use of her shoulder. The ALJ determined Johnson suffered a scheduled injury to her shoulder and she did not suffer a whole body injury. In reaching this conclusion, the ALJ found Dr. Pratt's testimony regarding Johnson's injuries more credible.
Claiming she sustained a neck and back injury that resulted in a whole person impairment to her spine, Johnson requested a review of her case by the Workers Compensation Board. The Board affirmed the findings and decision of the ALJ. In doing so, the Board found the medical opinion of Dr. Pratt persuasive and determined Johnson only proved she suffered an injury to her left shoulder—not to the cervical, middle, or low sections of her spine.
To us, Johnson argues that Dr. Pratt had improper contact with an insurance agent in violation of the ALJ's orders, thus rendering the ALJ's and Board's decisions (which relied heavily upon Dr. Pratt's testimony) unreasonable, arbitrary, and capricious. Next, Johnson contends Dr. Pratt's opinion regarding her disability— i.e., that in July 2009, she only sustained an injury to her upper left extremity and that the 5 percent impairment to her cervical spine was related to a prior incident—was not based on substantial evidence. Neither argument is persuasive.
We see no violation of the Administrative Law Judge's preliminary hearing order by Dr. Pratt.
When the ALJ ordered an independent examination of Johnson by Dr. Pratt, the judge also ordered limited contacts by counsel with the doctor and stated:
“Claimant's counsel shall make the appointment for the examination at the physician's earliest convenience. Additionally, claimant's counsel shall prepare on non-letterhead stationary a letter of confirmation of the appointment made, and an itemization of the relevant medical reports and records to be reviewed by the examining physician. Any additional information or requests in the letter must be by agreement of the parties, or by approval of the court. The letter shall be forwarded to the physician after both claimant's counsel and respondent's counsel have affixed their signatures. Any further contacts, tests, or referrals must be approved by the court. Counsel shall refrain from further contact with the physician without court approval, except to respond to additional information that the physician might request.” (Emphasis added.)
According to Johnson, on January 3, 2011, Dr. Pratt was contacted by “Sheila Wilson–Ufford of Coventry Health Care” when she sent him a fax and therapy records regarding Johnson's case. Johnson claims this contact was not approved by the ALJ and was in direct violation of the order. Johnson also says Dr. Pratt was contacted by Wilson–Ufford a second time—without approval and in violation of the ALJ's order—when he issued a rating report to Wilson–Ufford in response to her request. Johnson claims Dr. Pratt's improper contact with Wilson–Ufford renders the ALJ's and Board's decisions unreasonable, arbitrary, and capricious.
Our initial reaction to Johnson's argument on this point is doubt about whether the order was violated. The order plainly reads: “Counsel shall refrain from further contact with the physician without further court approval....” The order is directed to the counsel of record in the case and does not mention nurses.
Neither the ALJ nor the Board found merit in Johnson's complaint. The ALJ stated Dr. Pratt's testimony was “not tainted like [Johnson] suggest[ed.]” The Board stated:
“Claimant's objection to Dr. Pratt's impairment opinion was not listed as an issue in her submission letter to the ALJ. It was only briefly referenced in the body of the submission letter. It was not raised at the regular hearing nor is it contained in the pre-hearing settlement notes of the ALJ. It is not listed as an issue in the Award and the ALJ does not discuss or decide the dispute regarding the inclusion of Dr. Pratt's impairment opinion in the Award. Additionally, it is not clear from this record which entity actually requested the impairment opinion from Dr. Pratt. Sheila Wilson is apparently an employee of Coventry Health. But the insurance company insuring respondent in this matter is Ace. Whether there is a business connection between Coventry Healthcare and Ace is never revealed in this record. This makes it impossible to determine whether the original order of the ALJ has been violated in some fashion.”
The Kansas Judicial Review Act provisions in effect at the time of the agency action are controlling. Since the Board's order in this case was issued on September 14, 2012, the amended version of the Act applies. See K.S.A.2012 Supp. 77–621(a)(2); Redd v. Kansas Truck Center, 291 Kan. 176, 183, 239 P.3d 66 (2010). The burden of proving the invalidity of agency action is upon the party asserting invalidity. K.S.A.2012 Supp. 77–621(a)(1). Thus, in this case Johnson has the burden of proving the Board's decision was unreasonable, arbitrary, and capricious.
The arbitrary and capricious test relates to whether an agency's decision was without foundation in fact, as well as to the reasonableness of its exercise of discretion. In re Appeal of Gates from Kansas Real Estate Comm'n, 273 Kan. 1025, 1027, 46 P.3d 1206 (2002). An unreasonable agency action is one “taken without regard to the benefit or harm of all interested parties which is so wide of the mark that its unreasonableness lies outside the realm of fair debate.” In re Tax Application of Emporia Motors, Inc., 30 Kan.App.2d 621, Syl. ¶ 2, 44 P.3d 1280,rev. denied 274 Kan. 1112 (2002).
Here, Johnson has not explained or demonstrated how she was harmed—or how the Appellees were benefitted—by Dr. Pratt's contact with Wilson–Ufford. In fact, Johnson has not even explained who Wilson–Ufford is and how she is connected to this case. Johnson does not dispute that Ace American Insurance is the insurer for Topeka Community Healthcare. We have no way of knowing what Wilson–Ufford, apparently an employee of Coventry Health Care, has to do with Johnson's case.
When specifically asked whether his opinion was influenced by the fact that a “nurse” from Coventry Health Care requested a rating of Johnson, Dr. Pratt responded “No.” Johnson has not shown the Board's decision was unreasonable, arbitrary, or capricious because it considered Dr. Pratt's testimony. Johnson has not demonstrated the ALJ's order was actually violated or that she was harmed by a possible violation of that order.
The Board's findings are supported by substantial competent evidence.
We review a challenge to the Board's factual findings in light of the record as a whole to determine whether those findings are supported to the appropriate standard of proof by substantial evidence. See K.S.A.2012 Supp. 77–621(c)(7),(d). The phrase “ ‘[I]n light of the record as a whole’ “ is statutorily defined as meaning
“that the adequacy of the evidence in the record before the court to support a particular finding of fact shall bejudged 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.” K.S.A.2012 Supp. 77–621(d).
Basically, this means we “must review the evidence both supporting and contradicting the Board's findings” and “must review the agency's explanation as to why the evidence supports its findings.” Rausch v. Sears Roebuck & Co., 46 Kan.App.2d 338, 341, 263 P.2d 194 (2011), rev. denied 293 Kan. ––– (March 9, 2012) (citing Redd, 291 Kan. at 182). Significantly, when reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review. K.S.A.2012 Supp. 77–621(d).
A brief review of the salient evidence follows: Dr. Pratt testified that when Johnson came to him in October 2010, she had complaints about her left shoulder. Dr. Pratt said Johnson's past medical history indicated she had a 2008 event that primarily involved her spine. Dr. Pratt indicated that when he reviewed documentation from Johnson's medical history, he saw she received chiropractic treatment for severe neck and back pain prior to July 2009. Dr. Pratt reviewed a March 2008 detailed report from Dr. Oiler noting Johnson had neck pain connected to the upper back, a constant headache, and numbness and tingling in the left hand.
Dr. Pratt diagnosed Johnson as having a left shoulder syndrome with a history of chronic cervicothoracic syndrome. For the July 2009 injury, Dr. Pratt recommended therapeutic treatment to the shoulder. Dr. Pratt opined that none of Johnson's other body parts were related to the July 2009 injury.
Johnson admitted she had a neck injury prior to July 2009 and conceded she received treatment for her neck. Johnson confirmed she was treated by Dr. Oiler in March 2008 after she was beaten by a resident while working at Providence Living Center. Johnson had complaints about her left hand, neck, and low back. Johnson last saw Dr. Oiler for these problems in June 2009—just 2 weeks before the July 2009 incident at Topeka Community HealthCare. Johnson agreed that Dr. Oiler's report would indicate that as of June 19, 2009, Johnson reported her neck pain had not gotten any better since Dr. Oiler first started treating her. Johnson agreed she was aware that Dr. Oiler had rated her as having a 15 percent impairment to her cervical spine and neck and a 5 percent impairment to her back as a result of the 2008 incident.
Now, in an effort to review evidence that contradicts the Board's findings we turn to Dr. Murati, who examined Johnson at the request of her attorney. This doctor rated Johnson as having a 5 percent whole person impairment due to an injury in the cervicothoracic area. At the time of her examination, Johnson told Dr. Murati about the 2008 assault. But Dr. Murati had no documents indicating whether any permanent restrictions were placed upon Johnson as a result of the 2008 assault. Johnson did not describe to Dr. Murati any of the treatment she had with Dr. Oiler as it related to the 2008 injury.
Dr. Murati agreed he would have found it “relevant” to know Johnson suffered permanent functional impairment to her left upper extremity, neck, or back prior to July 2009. Dr. Murati believed Johnson's neck symptoms began with the July 2009 injury and said he had no records indicating she had a preexisting condition. Dr. Murati said he did not “have any records of this alleged date of injury that shows injuries to her neck.” When Johnson filled out an information sheet in Dr. Murati's office, she checked “no” when asked whether she ever had a significant injury to the body parts for which she was seeing Dr. Murati. Dr. Murati testified he assumed Johnson had no permanent restrictions with regard to her neck and shoulder prior to July 2009.
To us, Johnson argues the 2008 incident mostly involved an injury to her finger and says she received no treatment for her cervical complaints. Johnson argues Dr. Pratt's opinion was based on the “incorrect premise” that her 2008 accident primarily involved an injury to her spine. These arguments are not persuasive because when Dr. Pratt reviewed documentation from Johnson's medical history, he saw Johnson had received chiropractic treatment for severe neck and back pain prior to July 2009. The record reflects Dr. Pratt was aware the 2008 incident involved an injury to Johnson's finger, but the evidence demonstrated the 2008 incident also involved a serious injury to Johnson's spine. Johnson herself testified she was aware Dr. Oiler rated her as having a 15 percent impairment to her cervical spine and neck and a 5 percent impairment to her back as a result of the 2008 incident.
Given this record, we hold there is substantial evidence to support the finding that Johnson suffered only a scheduled injury to her upper left extremity as a result of the July 2009 incident. When Dr. Pratt rendered his opinion, he considered Johnson's prior injuries. Dr. Murati, on the other hand, was unaware of Johnson's substantial prior injury to her neck and back. The Board found Dr. Pratt's opinion more persuasive—a finding supported by the record.
We need not address the appellees' arguments.
For their part, the appellees argue that (1) Johnson failed to prove she suffered a compensable workplace injury in the first place, as her current symptoms are merely a natural consequence of an earlier injury; (2) this court should apply the direct and natural consequences rule or determine Johnson merely had an aggravation of a preexisting condition in affirming the Board's decision; and (3) this court should determine the appellees made an overpayment of benefits to Johnson and award them a credit.
Because we are upholding the Board's decision that Johnson suffered a scheduled injury, we need not discuss the direct and natural consequences rule or decide if there was an aggravation of a preexisting condition. Those two arguments would be more appropriate if we had overturned the Board's ruling and decided Johnson had an injury to the body as a whole.
The final argument concerning an overpayment of benefits is clearly not before us because the appellees have presented no evidence that they challenged the Board's determination of benefits to be awarded to Johnson or that they cross-appealed the Board's decision. In the absence of any ruling by the Board on the alleged overpayment of benefits and no cross-appeal by the appellees, this court cannot consider the matter. See K.S.A.2012 Supp. 60–2103(h). We apply the rule in Mid–Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191–92, 106 P.3d 483 (2005), where the court ruled the appellee must file a cross-appeal to preserve an issue on appeal not raised by an appellant.
Affirmed.