Opinion
No. 109,010.
2013-11-27
Angela COBB, Appellee, v. FAB–PRO ORIENTED POLYMERS and The Hartford, Appellants.
Appeal from Workers Compensation Board. Timothy A. Emerson, of Law Offices of Steven G. Piland, of Overland Park, for appellants. Phillip B. Slape, of Slape & Howard, Chtd., of Wichita, for appellee.
Appeal from Workers Compensation Board.
Timothy A. Emerson, of Law Offices of Steven G. Piland, of Overland Park, for appellants. Phillip B. Slape, of Slape & Howard, Chtd., of Wichita, for appellee.
Before MALONE, C.J., ARNOLD–BURGER and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Fab–Pro Oriented Polymers (Fab–Pro) and its insurance company, The Hartford, appeal the Workers Compensation Board's (the Board) finding that Fab–Pro's former employee, Angela Cobb, sustained a 13% functional impairment as a result of facial burns she received while on the job. Fab–Pro raises two issues on appeal. First, Fab–Pro alleges that the Board erroneously interpreted K.S.A. 44–510e(a) to require that a physician consult the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) (1993) even when the physician believes the injury does not rise to the level of a functional impairment. Because we find that the Board did not base its decision on an erroneous interpretation of the statute, but instead based its decision on a credibility contest between the two examining physicians, this claim of error fails. Second, Fab–Pro contends that the Board's findings were not supported by substantial competent evidence. Because we find the Board's findings were supported by substantial competent evidence, we affirm the Board's decision.
Factual and Procedural History
Angela Cobb began working for Fab–Pro in November 2004 and resigned on September 16, 2010. On January 6, 2010, Cobb was injured when a machine in the plant malfunctioned, shooting 400–degree melted plastic onto her forehead, nose, and chin. Following the accident, the safety coordinator helped Cobb apply burn cream and placed a gauze bandage over the affected areas but determined Cobb did not need immediate medical treatment.
The next day, Cobb went to the Kingman Community Hospital emergency room because she noticed there were still pieces of plastic in her forehead. Medical personnel used saline water to rinse out the burn and used tweezers to pull the remainder of the plastic from her forehead. The emergency room released Cobb and gave her a tube of triple antibiotic ointment to apply to the affected areas.
The following week, Cobb presented to plastic surgeon Jeremy Tamir, M.D., who told her to follow-up in 2 weeks, but she did not.
Three days later, Cobb saw Mark Dobyns, M.D., who practices occupational medicine, specializing in work-related injuries and illnesses. Upon examination, Dr. Dobyns opined that Cobb, sustained second-degree burns to her forehead, nose, and chin, but the extent of his treatment was “[b]asically nothing more than first aid.” On March 5, 2010, Cobb again presented to Dr. Dobyns, and he noted Cobb's “burns have healed completely and are virtually invisible. Close inspection reveals the different shade of skin but it is really minimal and this should be able to be covered with makeup satisfactorily. There was no defect in the skin. It is just a slightly different shade of color.” Dr. Dobyns explained to Cobb that there was nothing a plastic surgeon could do to lessen the appearance of the scars. Accordingly, Dr. Dobyns released Cobb from follow-up and concluded there was no permanence to her injuries.
Approximately 1 year after the accident, Cobb presented to Pedro Murati, M.D., for an independent medical evaluation at the request of her attorney. Cobb complained of permanent scarring on her face; occasional puffy forehead; scarred areas being dry and breaking out, especially in the shower and after wearing makeup; and she has to be careful in the sun. Dr. Murati performed a sensory pinprick test, which revealed Cobb was hypoesthetic in the scarred areas and had areas of hypopigmentation on her face. Dr. Murati opined Cobb had trigeminal neuropathy and a skin disorder, which was secondary to the burn. Dr. Murati restricted Cobb's activities to work as tolerated and to use common sense.
At a regular hearing before the assigned administrative law judge (ALJ), the parties stipulated to the following:
• An employment relationship existed between Fab–Pro and Cobb at the time of the accident.
• Cobb sustained a personal injury that arose out of and in the course of her employment.
• Fab–Pro received the requisite notice and a timely claim was made by Cobb.
• The parties are covered by the Kansas Workers Compensation Act.
At the hearing, Cobb explained the heat of the ovens and dyes would cause her scarred areas to burn. Thus, immediately following the accident, she requested a demotion in an effort to continue her employment, but Fab–Pro denied her request. Nevertheless, Cobb continued working for Fab–Pro for another 8 months before resigning. Cobb testified she was having problems working around the hot ovens and hot dyes.
Cobb also testified she has not worked since leaving Fab–Pro and, thus, has suffered a 100% wage loss. Cobb stated she continues to experience the following problems:
• The scar is dry, especially in the wintertime.
• The scar flakes.
• She cannot go out into the sun very often because it makes the scar more prominent.
• Makeup irritates her skin and causes her to break out.
• She has to wash her face more than once a day.
• When she wears a hat outside and perspires, it causes red bumps on her forehead.
• She has loss of sensation in the middle of the scar on her forehead.
The parties took Dr. Murati's deposition. Dr. Murati testified he consulted the AMA Guides when concluding Cobb had a permanent impairment–10% whole person impairment for the skin disorder and 3% whole person impairment for the trigeminal neuropathy, resulting in a to 13% whole person impairment. When asked about Cobb's task loss, Dr. Murati concluded she could not perform 2 out of 39 tasks, which resulted in a 5% job task loss.
The parties also took Dr. Dobyns' deposition. Dr. Dobyns testified he did not consult the AMA Guides because he opined Cobb sustained no permanent impairment and, thus, did not think it was necessary to consult the AMA Guides. Moreover, Dr. Dobyns testified Cobb did not report to him any symptoms of nerve damage or loss of sensation and Dr. Dobyns' did not believe her injuries were severe enough to cause such damage. He did not place any restrictions on Cobb's work abilities and found zero task loss. He ultimately concluded Cobb sustained no physical impairment.
The parties stipulated Cobb's average weekly wage was $654.31 and the workers compensation rate was $436.23.
After reviewing the record the ALJ entered an award granting Cobb 211.65 weeks of permanent partial disability compensation in the amount of $92,328.08. The Award stated, in part:
“The opinions from Dr. Dobyns and Dr. Murati are persuasive that the Claimant's work injury resulted in a whole person impairment between 0 and 13 per cent. The Court will give equal weight to the opinions of both physicians and find that the Claimant sustained a 6.5 per cent impairment of function to the body as a whole. However, the Claimant seeks a work disability award in excess of her functional impairment rating.
“... The Court will average the Claimant's task loss and wage loss. The Claimant sustained a task loss of 2.5 per cent on the task loss opinions of Dr. Dobyns and Dr. Murati.”
Fab–Pro appealed the award to the Board. The five-member Board issued a 3–2 decision. The majority affirmed the award, finding Cobb sustained a permanent functional impairment, but modified the percent of permanent functional impairment from 6.5% to 13%.
In reaching its decision, the majority discounted Dr. Dobyns' opinion because he did not consult the AMA Guides and did not conduct a sensory pinprick examination to determine whether Cobb had a loss of sensation. Accordingly, the majority adopted Dr. Murati's impairment rating of 13%.
All five Board members agreed Cobb suffered no task loss and reversed the ALJ's finding that Cobb sustained a 2.5% task loss. The Board found Dr. Murati's task loss opinion was based on Cobb's concerns about potential problems, not the standard of more probable than not or to a reasonable degree of medical probability. Moreover, the Board noted that based upon Cobb's own testimony the work restrictions imposed by Dr. Murati-work as tolerated and to use common sense—would not preclude her from performing any of the 39 tasks she performed in the last 15 years.
The majority concluded Cobb was entitled to a 50% work disability based upon a 0% task loss and a 100% wage loss.
The dissenting board members concluded Cobb did not sustain a permanent functional impairment or permanent restrictions on her ability to work. The dissent discounted Dr. Murati's opinion, finding it was not based on competent medical evidence. The dissent noted Dr. Murati based his opinion on the mistaken belief that Cobb's burns had blistered but she testified they had not.
The dissent relied on Dr. Dobyns' opinion, finding he correctly understood Cobb did not have blisters and he had found no evidence or symptoms of nerve damage. The dissent also rejected the majority's reasoning in discounting Dr. Dobyns' testimony because it was not based on the AMA Guides. The dissent found since Dr. Dobyns was certain Cobb did not have any functional impairment, “K.S.A. 44–510e(a) did not require him to specifically consult the AMA Guides.”
Fab–Pro timely petitioned for judicial review.
Analysis
Fab–Pro challenges the sufficiency of the evidence to support the Board's finding that Cobb suffered a permanent functional impairment, which is the prerequisite to a finding of work disability. See Blaskowski v. Cheney Door Co., No. 106,899, 2012 WL 4795580, at *3 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. –––– (2013); Hart v. Bott Family Farms, No. 99,895, 2009 WL 1140274, at *5, (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1093 (2010).
Standard of Review
We review a challenge to the Board's factual findings in light of the record as a whole to determine whether the findings are supported to the appropriate standard of proof by substantial evidence. See K.S.A.2012 Supp. 77–621(c)(7). “ ‘[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 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, 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. In 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).
Although not statutorily defined, “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.’ “ Saylor v. Westar Energy, Inc., 292 Kan. 610, 614, 256 P.3d 828 (2011).
Substantial competent evidence supported the Board's conclusions .
Fab–Pro contends the Board's findings were not supported by substantial evidence. It bases this argument on two primary concerns: (1) Dr. Murati's testimony was not credible, and (2) the Board improperly discounted Dr. Dobyns' opinion because he did not consult the AMA Guides, a position Fab–Pro claims is not supported by K.S.A. 44–510e. We examine each claim in turn.
Fab–Pro argues Cobb's burns were superficial and required no more than basic first aid. Fab–Pro acknowledges Cobb sustained an area of discoloration but contends this does not amount to a permanent injury. To support its argument, Fab–Pro challenges Dr. Murati's opinion, claiming it was based on “incomplete or inaccurate information.” It claims that Dr. Murati's impairment rating was based on a faulty assumption—that her burn blistered. To fully examine this claim, we must examine Dr. Murati's testimony.
In describing the various gradients of burn injuries, Dr. Murati testified in his deposition that first-degree burns do not blister, but second-degree burns do blister. He described first-degree burns as similar to a sunburn. He said that Cobb had blisters, “so that makes it an automatic type second degree.” Fab–Pro claims that the following exchange during Dr. Murati's deposition establishes that Dr. Murati's opinion that Cobb suffered a second-degree burn is not credible.
“Q. [Mr. Emerson] Are you aware that the claimant testified at the Regular Hearing in this case on Page 27, Lines 14 and 15, when I asked her did the burns blister, she said, and 1 quote: No, they did not blister. Were you aware of that testimony?
“A. [Dr. Murati] Yeah. Well, excuse me. I am not completely aware of that testimony, no, I don't recall that precisely.
“Q. [Mr. Emerson] That testimony wouldn't be in line with your opinion that first degree burns do not blister, true?
“A. [Dr. Murati] Not necessarily. I mean, if you get hot melted plastic to your skin, you might necessarily not blister, it might burn the skin right off. You know, go beyond the blister.
“A. [Dr. Murati] But there is no way that you will get those changes in the skin without having a second degree burn. Absolutely not. It's impossible.”
We do not believe that this testimony undercuts Dr. Murati's opinion. Dr. Murati indicated that second-degree burns blister and because Cobb blistered she had at least a second-degree burn. But when confronted with the fact that she did not blister, Dr. Murati did not say that the converse was true. In other words, although blisters mean there is at least a second-degree burn, lack of blisters does not necessarily mean the burn was not a second-degree burn. He testified that plastic might have burned the skin off, preventing blistering. He further testified that “there is no way that you will get those changes in the skin without having a second-degree burn. Absolutely not. It's impossible.” Accordingly, we do not find that Dr. Murati's opinion was based on a faulty assumption, as alleged by Fab–Pro.
Second, Fab–Pro argues that the Board erroneously found, contrary to Fab–Pro's interpretation of K.S.A. 44–510e(a), that a “doctor of occupational medicine must consult the AMA Guides in order for his opinion concerning impairment to be valid.” Fab–Pro asks us to find that the statute does not require a doctor to consult the AMA Guides if he or she does not believe there is an impairment.
K.S.A. 44–510e(a) provides:
“Functional impairment means the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence and based on the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, if the impairment is contained therein.” (Emphasis added.)
In this case, Dr. Dobyns testified that Cobb's injury was so minor that he did not feel it necessary to consult the AMA Guides. We do not find it necessary to engage in an interpretation of the statute because the Board did not come to its conclusion based on a specific finding that K.S.A. 44–510e requires Dr. Dobyns to review the AMA Guides and he failed to do so. Instead, it found that Dr. Murati's testimony was more credible because he did consult the AMA Guides and based his decision on the AMA Guides as well as a sensory pinprick examination of the scarring and Dr. Dobyns did neither. The Board noted that not only did Dr. Dobyns not consult the AMA Guides but he “did not know where to look in the AMA Guides to assess impairment for burns and scars.” Moreover, as the Board noted, “Dr. Dobyns could have demonstrated why claimant's injury did not warrant an impairment by citing the AMA Guides ... [or] adequately explain[ing] why claimant had no impairment” but he failed to do so. The Board also noted that although Dr. Dobyns concluded that Cobb's injuries “could not possibly have caused injury to the trigeminal nerve,” he did not check for loss of sensation at the situs of Cobb's scar.
The Board is permitted to make credibility determinations based on the doctor's inclusion or exclusion of the AMA Guides in his or her analysis in arriving at an impairment rating. See Ricks v. Catholic Care Center, No. 95,979, 2007 WL 220108, at *4 (Kan.App.2007) (unpublished opinion) (there is an objective basis for evaluating the doctor's credibility when the impairment opinion is based on the doctor's inclusion or exclusion of the AMA Guides in his analysis); DuBoise v. Hallmark Cards, Inc., No. 94,949, 2006 WL 995746, at *3 (Kan.App.2006) (unpublished opinion), rev. denied 282 Kan. 788 (2006) (Board's decision that one doctor's testimony was more credible than another doctor's testimony because he examined the claimant on several occasions and conducted physical and neurological tests and “based his impairment rating on the AMA Guides as statutorily mandated”); Cerritos v. Tyson Fresh Meats, No. 93,177, 2005 WL 1089708, at *4 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 981 (2005) (substantial competent evidence supported the Board's denial when the doctor acknowledged that had he used the AMA Guides, 4th edition, the claimant's impairment would have been zero).
In sum, Fab–Pro essentially asks this court to do what it cannot—reweigh the testimony and determine credibility. There were two competing medical opinions in this case. Dr. Murati, based on the AMA Guides and a skin prick test, determined that there was a functional impairment. Dr. Dobyns, who based his opinion solely on visual examination, found there was no impairment. In this case the majority of the Board determined that Dr. Murati's opinion was more credible as to functional impairment than Dr. Dobyns. The Board's credibility determination was reasonably supported by the testimony.
In addition, when examining the evidence as a whole to determine if there was substantial evidence to support the Board's finding, Cobb's testimony was also consistent with Dr. Murati's ultimate conclusion.
“Claimant testified that she continued to experience problems following her release from treatment. Specifically, she had dryness, flakiness, and chapping of the skin on her forehead, especially in the wintertime. At times she applied Vitamin E lotion and Vasoline. Claimant avoided being out in the sun and perspiring because those conditions irritated the scarring on her forehead and caused a rash to develop. Claimant had to pull her hair back away from her forehead to keep the oil from her hair from causing a rash. Wearing makeup at times irritated the skin as well. Claimant had visible scarring and lighter skin pigmentation on her forehead. She testified she experienced some loss of sensation in the middle of the scar.”
In light of the record as a whole, there is substantial evidence to support the Board's finding that Cobb sustained a permanent functional impairment.
We are unable to grant the relief requested by Cobb.
The Board discounted Dr. Murati's opinion that Cobb suffered a 5% task loss and found Cobb suffered no task loss. Cobb requests this court remand in part with directions to the Board to adopt the 5% task loss opinion of Dr. Murati. However, Cobb never appealed this finding.
The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. Harsch v. Miller, 288 Kan. 280, 287, 200 P.3d 467 (2009). Pursuant to K.S.A.2012 Supp. 60–2103(h), an appellee must file a cross-appeal from adverse rulings in order to obtain appellate review. See Mid–Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191–92, 106 P.3d 483 (2005).
Since Cobb failed to cross-appeal, this court lacks jurisdiction to grant the relief requested by Cobb.
Affirmed.