Opinion
No. 111,592.
2015-03-6
Jelice Cathrina KOPPA, Appellee, v. INTERIM HEALTH CARE OF WICHITA and Kansas Employers Workers Compensation Fund, Appellants.
Appeal from Workers Compensation Board.Richard S. Fisk and Kevin J. Kruse, of Beam–Ward, Kruse, Wilson & Fletes, LLC, of Overland Park, for appellants.Randall J. Price, of Wichita, for appellee.
MEMORANDUM OPINION
Appeal from Workers Compensation Board.
Richard S. Fisk and Kevin J. Kruse, of Beam–Ward, Kruse, Wilson & Fletes, LLC, of Overland Park, for appellants. Randall J. Price, of Wichita, for appellee.
Before MALONE, C.J., HILL and SCHROEDER, JJ. PER CURIAM.
Interim Health Care of Wichita (Interim) appeals the Workers Compensation Board's (the Board) finding Jelice Cathrina Koppa suffered a compensable workers compensation injury while she was attending to the care of a patient. Our review is governed by the Kansas Judicial Review Act (KJRA). See K.S.A. 77–601 et seq. The Board correctly determined Koppa's injury was compensable and the amount of her task loss, but it incorrectly determined her average weekly wage. We affirm in part, reverse in part, and remand with directions.
Facts
Koppa was employed as a CNA at a long-term acute care facility (LTAC) through Interim. Her duties at LTAC included taking vital signs and helping patients with toileting. On April 15, 2011, Koppa and another nurse were cleaning a very large patient who had soiled herself. Koppa pushed the patient toward the other nurse to turn her, which “unleashed the most ungodly smell.” Koppa turned her head and leaned back, then her arm fell asleep. Her hands were still on the patient when this happened. Koppa described a tingling sensation, as well as the feeling in her arm coming and going. She reported the accidental injury to Interim.
Koppa went to the doctor the next day. Although her medical records are not included in the record on appeal, her independent medical evaluation states she was given an X-ray on April 16, 2011, which showed “ ‘[d]isk space narrowing and degenerative changes at C5–6 and C6–7,’ “ referring to the spaces between the lowest two vertebrae of the neck. On May 24, 2011, Koppa was placed on 15–pound work restrictions, which prevented her from lifting or turning any patients. An MRI on June 1, 2011, showed “[m]oderate spinal stenosis [narrowing of the spinal canal] C5–C6 and [C]6–C7.' “ Koppa participated in physical therapy and received steroid injections but did not have surgery.
Koppa filed a workers compensation claim on July 25, 2011, for injuries to her neck sustained while turning a patient. At her deposition, Koppa described the continuing pain in her arm and fingers. She also stated she was continuing to receive physical therapy.
Koppa's hearing was held on January 28, 2013, before Administrative Law Judge (ALJ) Nelsonna Potts Barnes. Her description of her injury and treatment was generally consistent with her deposition testimony. Koppa also testified she continued to be “in a constant state of aggravating pain.” Over Interim's objection, the ALJ accepted an exhibit showing Koppa's average wage calculation. The exhibit includes check amounts and hours worked for several weeks preceding Koppa's accident.
A different ALJ issued Koppa's award on September 5, 2013. Special ALJ Mark E. Kolich found Koppa's injury was compensable, highlighting the combined facts that Koppa turned her neck and “changed her body mechanics” while “pushing a very heavy patient onto her side.” Based on a 100% wage loss and a 57% task loss, the ALJ concluded Koppa sustained a 15% permanent whole body functional impairment and a 78.5% work disability. The ALJ characterized Koppa's wage documentation as “confusing” but relied on her testimony she earned $13.75 per hour and evidence she “regularly worked 40 hours per week” to calculate her straight-time average wage of $550.00. Combined with the average overtime earned in the 16 weeks prior to her accident, the ALJ found Koppa's average weekly wage was $558.23. The ALJ granted temporary total disability (TTD) benefits for the 18 weeks Koppa could not work due to medical restrictions, but he denied ongoing TTD benefits after the date of Koppa's termination for cause.
Interim requested review by the Board, arguing the ALJ erred in: (1) finding Koppa's injury arose out of and in the course of her employment; (2) calculating Koppa's gross weekly wage; and (3) determining the nature and extent of Koppa's injury. The Board made additional findings of fact and affirmed the ALJ. Interim has timely petitioned for judicial review.
Analysis
Did the Board Err in Finding Koppa Sustained a Compensable Injury?
Our review of the Board's decision in a workers compensation case is controlled by the Kansas Judicial Review Act (KJRA). K.S.A. 77–601 et seq.; K.S.A.2014 Supp. 44–556a. Our jurisdiction to proceed is governed by K.S.A.2014 Supp. 77–607(a). The party claiming error below has the burden to show how the Board erred. See K.S.A.2014 Supp. 77–621(a)(1). We review the factual determinations of the Board below in light of the record as a whole to determine whether those findings are supported by substantial competent evidence. See K.S.A.2014 Supp. 77–621(c)(7), (d). We cannot reweigh the evidence or engage in a de novo review of the facts. K.S.A.2014 Supp. 77–621(d).
The standard of proof before the Board is preponderance of the evidence. See K.S.A.2014 Supp. 44–508(g). Substantial evidence refers to “ ‘evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis to act from which the issue raised could be easily resolved.’ [Citations omitted.]” Saylor v. Westar Energy, Inc., 292 Kan. 610, 614, 256 P.3d 828 (2011). “[I]n light of the record as a whole” is statutorily defined as:
“[T]he adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged 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 ... cited by any party that supports such finding.” K.S.A.2014 Supp. 77–621(d).
Interim argues the Board's factual determination Koppa suffered injury while pushing a heavy patient is not supported by substantial competent evidence. This assertion of invalid agency action is within the scope of review provided for by the KJRA. K.S.A.2014 Supp. 77–621(c)(7). As previously stated, Interim must show how the Board erred.
To succeed on appeal, Interim must show either that Koppa's injury is not compensable because the act of turning her neck is not sufficiently related to her work or that she did not establish that her injury was caused by her actions while changing the patient and arising out of and in the course of her employment.
Causal Connection With Workplace Activity
The Board affirmed the ALJ, who found Koppa was not “ ‘simply turning her neck.’ “ Specifically, the ALJ found Koppa “was in the process of pushing a very heavy patient onto her side plus ... when she turned her head to avoid the unpleasant odor she also changed her body mechanics.”
Interim argues this does not reflect the actual evidence, pointing out subtle differences between Koppa's deposition testimony and her testimony at the hearing. At her deposition, Koppa stated she was “turning the patient ... turning this woman to her side, which was a pushing motion,” and “unleashed the most ungodly smell.... [S]o I changed my body mechanic and turned my head and leaned back for a breath of fresh air and my arm fell asleep.” At the hearing, Koppa testified she was “going to clean” the patient and “grabbed the turning sheet.” While Koppa was “going to push” the patient, she “pulled up [the patient's] sheet,” the woman “unleashed the most ungodly smell” and Koppa turned her head away from the bad smell. Interim argues this testimony fails to demonstrate Koppa put any strain on her arms, shoulder, back, or neck and Koppa could not have been injured simply by turning her head.
Interim's argument assumes the Board was required to consider the evidence provided at Koppa's hearing in a vacuum. However, as Interim notes in its appellate brief, Koppa's initial award was issued by an ALJ who was not the presiding officer at her hearing. The Board affirmed the ALJ's award based on the cold record, which included Koppa's deposition testimony. The Board affirmed the ALJ's determination compensability was based on the “ ‘overall context’ “ of Koppa's actions. Thus, it is clear the Board reviewed all the evidence and found the distinction between Koppa's statement she “grabbed the turning sheet” or “pulled up her sheet” to be really one and the same, meaning she was “pushing” the patient consistent with her deposition testimony; there is no evidence that the sheet mentioned at the hearing was anything other than the turning sheet mentioned at the deposition. Thus, there was substantial evidence to support the Board's factual finding that Koppa was “in the process of pushing a very heavy patient onto her side ... when she turned her head to avoid the unpleasant odor.” Koppa's testimony was relevant and supports the Board's conclusion that Koppa was not “ ‘simply turning her neck.’ “
Interim's argument is not persuasive under this court's scope of review. The Board made factual findings based on the evidence in the record. There is no evidence to detract from those findings, just Interim's speculation and attempts to minimize what Koppa was doing to help the patient when her injury occurred.
Insufficient Evidence of Physical Injury
Interim next argues there was insufficient evidence of a physical change in Koppa's body, which it claims is a requirement for finding an injury under the Kansas Workers Compensation Act (the Act), K.S.A. 44–501 et seq. Interim highlights the preexisting degenerative damage to Koppa's C–6 and C–7 vertebra and argues there was no medical evidence to support this damage was caused when she turned her neck and head.
The Act “was enacted to award disability benefits to employees for damages resulting from injuries received at the workplace. Whether an injury is compensable is a question over which an appellate court exercises unlimited review.” Chriestenson v. Russell Stover Candies, 46 Kan.App.2d 453, 459, 263 P.3d 821 (2011) (citing Coleman v. Swift–Eckrich, 281 Kan. 381, 383, 130 P.3d 111 [2006] ), rev. denied 294 Kan. 943 (2012).
Here, Interim's argument relies on a portion of K.S.A.2010 Supp. 44–508(e) but fails to acknowledge the full impact of the subsection that provides:
“ ‘Personal injury’ and ‘injury’ mean any lesion or change in the physical structure of the body, causing damage or harm thereto, so that it gives way under the stress of the worker's usual labor. It is not essential that such lesion or change be of such character as to present external or visible signs of its existence. An injury shall not be deemed to have been directly caused by the employment where it is shown that the employee suffers disability as a result of the natural aging process or by the normal activities of day-to-day living.” (Emphasis added.)
The record reflects Koppa's injury occurred immediately and during the time she was assisting a patient in the care home, specifically required as part of her employment duties.
Interim acknowledges the holding of Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 257 P.3d 255 (2011), but attempts to distinguish Bryant to support its position. However, the Kansas Supreme Court in Bryant was clear that “an instigating event that changed Bryant's relatively stable back condition, which was controlled by intermittent treatment, into a condition that required surgery[, where] ... Bryant himself testified that his pain had been intermittent before [the accident], but was continuous afterwards” was legally an injury under the Act. 292 Kan. at 589. “An accidental injury is compensable [even] if it only aggravates or accelerates an existing disease or intensifies the condition.” 292 Kan. at 589 (citing Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 377, 573 P.2d 1036 [1978]; Chirm v. Gay & Taylor, Inc., 219 Kan. 196, 202, 547 P.2d 751 [1976] ); see K . S.A.2010 Supp. 44–501(c) (“the aggravation of a preexisting condition” is compensable “to the extent that the work-related injury causes increased disability”). Where, as here, the claimant's preexisting condition was unknown to the claimant and caused him or her no pain, an accident in the course of employment that creates pain and limits the claimant's ability to work is clearly an injury under the Act.
Interim fails to demonstrate error as required by K.S.A.2014 Supp. 77–621(a)(l). Koppa was not required to show an actual physical change in the structure of her neck. The fact she was without pain prior to the accident and the fact she suffered numbness and tingling in her arm and fingers afterward, preventing her from continuing her duties, are sufficient to show she experienced a physical change constituting injury under the Act, even if her accident only aggravated a preexisting condition.
Accordingly, the Board did not err in concluding Koppa suffered a compensable accidental injury arising out of and in the course of her employment.
Did the Board Err in Finding Koppa Sustained a Partial Permanent Disability?
Interim argues the Board should have ignored the testimony of Dr. Pedro A. Murati, who “had an incorrect understanding of [Koppa's] mechanism of injury,” which would have precluded the finding of functional impairment. This assertion of invalid agency action is not within the scope of review provided for by the KJRA. See K.S.A.2014 Supp. 77–621(c) (enumerating the allowed grounds for relief); K .S.A.2014 Supp. 77–621(d) (prohibiting an appellate court from reweighing the evidence). As discussed above, substantial competent evidence supports the Board's determination Koppa's accidental injury was compensable under the Act.
Interim next argues there was insufficient evidence to support the Board's determination of task loss. This assertion of an invalid agency decision is within the scope of review provided for by the KJRA under K.S.A.2014 Supp. 77–621(c)(7). “Permanent partial disability exists when the employee is disabled in a manner which is partial in character and permanent in quality and which is not covered by the schedule in K.S.A. 44–510d and amendments thereto. The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury.” K.S.A. 44–510e(a).
Interim highlights numerous instances where the evidence was insufficient to support the Board's finding; Interim's primary contention is “[t]he overwhelming majority of the evidence shows that [Koppa's] condition did not change as a result of the workplace incident.” This is a request by Interim for this court to reweigh the evidencesomething we are restricted from doing by the KJRA. See K.S.A.2014 Supp. 77–621(d). Instead, Interim must show the Board's determination was not supported by substantial competent evidence.
The Board's determination of task loss was based on the reports of Dr. Murati and Dr. Chris D. Fevurly. Dr. Murati's opinions were based on a list of tasks Koppa performed in several previous jobs. Interim directs this court to an instance of purportedly duplicative tasks not being removed from the list. This is an attempt by Interim to induce us to take the plunge and reconsider the facts before the Board. As previously stated, this court cannot reconsider the factual determinations of the Board or reweigh the evidence pursuant to the KJRA.
Interim also attempts to challenge the record involving Koppa's task loss and work after her injury. The allegations of work being performed are not supported by citations to the record. Moreover, Interim does not provide any legal support for its implicit assertion that a claimant performing work against medical restrictions loses the ability to later seek compensation according to the statutory formula. Consequently, Interim fails to demonstrate error on this point. Additionally, Interim's attacks on Dr. Fevurly's reported task loss is an attempt to get this court to reweigh the evidence. We decline to do so.
The Board did not err in finding Koppa suffered a 57% task loss.
Did the Board Err in Calculating Koppa's Average Weekly Wage?
Interim argues the Board's calculation of Koppa's average weekly wage misinterpreted the Act and was not based on substantial competent evidence. This assertion of invalid agency action is within the scope of review provided for by the KJRA. See K.S.A.2014 Supp. 77–621(c)(4); K.S.A.2014 Supp. 77–621(c)(7).
There is more than one way for the employee's wages to be calculated under K.S.A.2010 Supp. 44–511(b), as follows:
“(b) The employee's average gross weekly wage for the purpose of computing any compensation benefits provided by the workers compensation act shall be determined as follows:
“(4) If at the time of the accident the employee's money rate was fixed by the hour, the employee's average gross weekly wage shall be determined as follows: (B) if the employee is a full-time hourly employee, as defined in this section, the average gross weekly wage shall be determined as follows: . .; (iv) the average gross weekly wage of a full-time hourly employee shall be the total of the straight-time weekly rate, the average weekly overtime and the weekly average of any additional compensation.” K.S.A.2010 Supp. 44–511(b)(4)(B)(iv).
“(b)The employee's average gross weekly wage for the purpose of computing any compensation benefits provided by the workers compensation act shall be determined as follows:
“(5) If at the time of the accident ... on any other basis where the money rate is not fixed by the week, month, year, or hour, and if the employee has been employed by the employer at least one calendar week immediately preceding the date of the accident, the average gross weekly wage shall be the gross amount of money earned during the number of calendar weeks so employed, up to a maximum of 26 calendar weeks immediately preceding the date of the accident....” K.S.A.2010 Supp. 44–511(b)(5).
Here, the Board used K.S.A.2010 Supp. 44–511(b)(4)(B)(iv) to determine Koppa's average weekly wage and should have used K.S.A.2010 Supp. 44–511(b)(5) as explained below.
Koppa submitted an exhibit at the hearing titled “Jelice Koppa Average Weekly Wage Calculations.” The document proposed three different average weekly compensation rates of $287.29, $320.40, or $480.99. The second page listed Koppa's hourly rate at between $9 and $12.75 per hour based on where Interim had her work on any given day; it also claimed she averaged 34 hours per week but earned 7.75 hours of overtime in the previous 26 weeks. The third, fourth, and fifth pages were provided by Interim and listed Koppa's paychecks and hours worked.
The ALJ called the exhibit “confusing.” In particular, the ALJ noted Koppa claimed an average work week of 34 hours but the documentation showed she “regularly worked 40 hours per week making her a full time employee.” The ALJ then multiplied Koppa's hourly rate at $13.75 at LTAC by 40 hours per week to arrive at a weekly average rate, plus an overtime calculation. The Board then affirmed this calculation by the ALJ. The Board used only the hourly rate Koppa was earning at the time of her injury and not her average weekly wage as reflected by her employment records for the weeks she had worked for Interim prior to the date of her injury.
This calculation was in error. Koppa's compensation rate must be determined based on her average weekly wage for up to 26 weeks preceding the date of her injury. The record contains substantial competent evidence for 12 weeks of employment preceding the accident, showing Koppa earned different rates of pay depending on the shift she worked and what kind of work she was assigned to do by Interim. The record reflects the Board determined Koppa's average straight-time wage calculation based on her testimony that she was earning $13.75 per hour at the time of her injury, multiplied by 40 hours per week, plus an overtime calculation. The Board's calculation fails to follow the statutory scheme to calculate Koppa's average weekly wage where Koppa's wages were not fixed. Thus, when we consider our standard of review, the record fails to reflect substantial competent evidence Koppa's average weekly wage should be calculated at a flat rate of $13.75 per hour times 40 hours per week plus overtime. The Board must use the actual wage figures for the previous weeks worked, up to a maximum of 26 weeks, in addition to any overtime, to arrive at the average weekly wage upon which to calculate the amount of Koppa's resulting permanent partial disability.
Given the Board erred in this calculation, we remand for the Board to recalculate Koppa's average weekly wage in compliance with K.S.A.2010 Supp. 44–511(b)(5).
Affirmed in part, reversed in part, and remanded with directions.