Opinion
112,218.
06-12-2015
Stevie D. MASON, Appellant, v. U.S.D 59, Appellee.
Bryce D. Benedict, of Eschmann & Pringle P.A., of Topeka, for appellant. Vincent A. Burnett and Dallas L. Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellee.
Bryce D. Benedict, of Eschmann & Pringle P.A., of Topeka, for appellant.
Vincent A. Burnett and Dallas L. Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellee.
Before PIERRON, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Stevie D. Mason was awarded workers compensation benefits for an injury to his right shoulder. On appeal, Mason contends he also suffered a compensable injury to his left elbow and, as a result, he was permanently and totally disabled. We disagree with Mason's contention and affirm the Workers Compensation Board (Board).
Factual and Procedural Background
The parties are well aware of the factual background of this case and the medical evaluations and treatments received by Mason since his work injury. Highly summarized, on February 22, 2011, Mason was a 55–year–old special education instructor for Unified School District No. 259 (U.S.D.). During school that day he injured his right shoulder while physically restraining a student. About 6 months later, on August 30, 2011, Mason resigned from teaching. He has not been employed since that time. Shortly after his resignation, on September 29, 2011, Mason filed a workers compensation claim for his right shoulder injury.
Mason's right shoulder was treated by Dr. Justin Strickland. Mason did not report any left elbow symptoms to Dr. Strickland during his medical treatment. On January 27, 2012, after Mason had filed the present workers compensation claim, he saw Dr. Strickland at the request of his own counsel. Mason still did not complain of left elbow symptoms, although he did tell the doctor that “[h]e has been doing everything with his left arm since he cannot use his right arm.”
On July 15, 2013, Mason saw Dr. Edward J. Prostic at the request of his own attorney. Mason now complained of “numbness going down the left arm to the ulnar three fingers.” Dr. Prostic's examination showed “irritability of the ulnar nerve at the cubital tunnel.” The doctor diagnosed “ulnar nerve entrapment at the left elbow” and assigned a 10 percent impairment to the left upper extremity. Aside from assigning an impairment rating, however, Dr. Prostic did not state a cause of the left elbow injury in his written report.
On November 27, 2013, Mason appeared for the regular workers compensation hearing. Mason testified that although he immediately knew of his right shoulder injury on February 22, 2011, “my left elbow started doing something” thereafter. Mason did not testify precisely when his left elbow symptoms began. He also tended to combine his left elbow symptoms with symptoms in the rest of his arm, testifying for example that the pain in his “left arm and elbow would be between 4 and 7.” In fact, Mason testified the problem in his left arm was “[n]ot just the elbow,” and that “[t]he shoulder started because ... I've replaced being right-hand dominant to being left-hand dominant.” Mason gave only one example of such reliance on his left hand—“reach overhead, try to get a five-pound bag of sugar.” Mason also acknowledged that prior to his work accident, he had received treatment in 2009 for left elbow pain and numbness.
On December 9, 2013, the parties deposed Dr. Prostic. Initially, the doctor reviewed a few pages of Mason's regular hearing testimony at the request of Mason's attorney. Dr. Prostic then testified that Mason's left elbow injury was caused by overcompensation following the right shoulder injury.
On December 3, 2013, Mason saw Dr. Chris D. Fevurly at the request of U.S.D. 259's attorney. Mason completed a “Pain Drawing” which indicated symptoms throughout his left arm, including at the left elbow. Mason also completed a questionnaire which asked in part what had “occurred since” the injury to his right shoulder. Mason wrote: “I've had to use my left hand to do most of the tasks that I used to do with my right arm and a hand.”
Dr. Fevurly did not specifically discuss Mason's left elbow symptoms in his written report, however. The doctor only noted “nonspecific upper extremity complaints (which occurred several months to more than one year after the event on 2/22/11.)” On January 16, 2014, Dr. Fevurly was deposed but was not asked about Mason's left elbow.
On January 20, 2014, the parties deposed Dr. Strickland. Once again, neither party asked the doctor about Mason's left elbow. The parties cite no other medical testimony bearing directly on Mason's left elbow, and a review of the record located none.
The administrative law judge (ALJ) found that Mason's left elbow injury was not related to his February 22, 2011, work place accident. Mason appealed to the Board, which agreed with the ALJ's finding. The Board explained:
“Nowhere in the 15 months of treatment [for the right shoulder injury] did [Mason] mention left elbow complaints. The first notation in any record of left elbow involvement was in Dr. Prostic's examination report, two and one-half years after the [right shoulder] injury.
“Dr. Prostic provides no explanation in his report or his testimony regarding what caused the left ulnar nerve condition. When asked on direct examination, Dr. Prostic agreed that use of the left arm as compensation for the right shoulder injury ... was the cause of his left upper extremity condition. [Mason's] testimony ... does not discuss specific compensation activities.... [Mason] stated he had been doing everything with his left arm, but he did not elaborate and explain what specific activities he performed or how the activities affected his left elbow. Again ... [Mason] does not cite any specific aggravating activity which could have caused the left elbow injury.
“Based on the absence of medical treatment for the elbow and lack of any specific activity causing a new condition as a result of compensation for the right shoulder injury, the Board finds [Mason] did not suffer an injury to his left elbow arising out of and in the course of his employment with [U.S.D. 259]. As such, the presumption of permanent total disability contained in K.S.A. 44–510c(a)(2) does not apply.”
On July 18, 2014, the Board awarded Mason compensation for his right shoulder injury. The parties do not dispute the Board's award for the injury to Mason's right shoulder. Mason appeals the Board's decision that he did not suffer a compensable injury to his left elbow and, as a result, that he was not permanently and totally disabled.
Analysis
On appeal, Mason contends the Board misapplied the secondary injury rule. This rule provides that “when a primary injury under the Workers Compensation Act is shown to have arisen out of and in the course of employment, the natural consequences directly flowing from the injury, including new and distinct injuries, are compensable.”Redd v. Kansas Truck Center, 291 Kan. 176, Syl. ¶ 2, 239 P.3d 66 (2010).
At the outset, it is necessary to summarize our standards of review. “Whether a second injury is compensable as a natural and probable consequence of the primary injury is dependent upon the facts of each case.” 291 Kan. 176, Syl. ¶ 3. We review the Board's factual findings to determine whether they are supported by substantial evidence viewed in light of the record as a whole. K.S.A.2014 Supp. 77–621(c)(7), (d) ; Williams v. Petromark Drilling, 299 Kan. 792, Syl., 326 P.3d 1057 (2014). “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.2014 Supp. 77–621(d).
Mason first defends his testimony at the regular hearing. Mason believes the Board placed an “impossible burden” on him by requiring more specificity. Pointing to testimony that he did “ ‘everything’ “ with his left arm, Mason argues: “It would seem that ‘everything’ should be sufficiently all-encompassing to show that over-compensation had occurred, especially when taken in tandem with the medical records which documented limitations in use of the right arm.”
We agree that “ ‘everything’ “ in this context meant all activity for which Mason had used his left arm. At the time of the regular hearing, however, Mason had not worked for over 2 years. He was receiving retirement benefits and Social Security disability payments. When asked what he did “to occupy your time,” Mason said, “I read” and “I play with my grandkids.” Asked if he had any hobbies other than reading, Mason said he did not.
Given this limited evidentiary basis, the Board's finding that Mason “does not cite any specific aggravating activity which could have caused the left elbow injury” had less to do with his testimony's generalized nature than a simple lack of reference to excessive use. In this regard, Mason's situation could be contrasted with a 56–year–old meat packer who returned to work after a left shoulder injury and “ ‘had to do all the work with my right arm.’ “ Casco v. Armour Swift–Eckrich, 283 Kan. 508, 517, 154 P.3d 494 (2007). Mason provided no comparable testimony showing that his left elbow was repeatedly used and overtaxed—while doing his work—following his right shoulder injury. Cf. 283 Kan. at 520 (carrying boxes with one arm when other employees used both arms). Mason bore the burden to prove his left elbow injury arose out of and in the course of employment. See K.S.A. 44–501(a), (c) ; K.S.A.2014 Supp. 44–50b(b)(c). We are persuaded the Board's finding that Mason's testimony was insufficient in this regard was supported by substantial evidence.
Next, Mason asserts the Board improperly disregarded Dr. Prostic's causation opinion. In particular, Mason emphasizes that the doctor's opinion was not contradicted by testimony from other physicians. Our analysis of this argument is guided by caselaw precedent. “In workers compensation litigation, when there is uncontroverted expert medical testimony linking the causation of the second injury to the primary injury, the second injury is to be considered to be compensable as the natural and probable consequence of the primary injury.” Casco, 283 Kan. 508, Syl. ¶ 4. The Board may disregard even undisputed evidence, however, if it is “improbable, unreasonable, or untrustworthy.” See 283 Kan. 508, Syl. ¶ 2.
As discussed in its written order, the Board disregarded Dr. Prostic's causation opinion, in part, because of its weak foundation, i.e., Mason's testimony which lacked reference to specific excessive use. The Board further found: “Dr. Prostic provides no explanation in his report or his testimony regarding what caused the left ulnar condition.” We find substantial evidence for both points.
In his written report, Dr. Prostic assigned a disability rating for Mason's left elbow injury without specifying the causal mechanism. Then, after reviewing Mason's testimony, the doctor testified the injury was due to overcompensation. Yet, Mason described nothing in his testimony beyond ordinary activities of daily living. Unlike in Casco, where the claimant had returned to a physically demanding job with the use of only one arm, the record shows Mason was less active following his workplace injury.
Moreover, Dr. Prostic's testimony at the deposition was brief and conclusory:
“Q. Is the overcompensation thus described ... a competent cause of Mr. Mason's left upper extremity injury ?
“A. Yes.
“Q. In your opinion is it more likely than not that the overcompensation caused the left upper extremity injury ”
“A. Yes.”
Although Dr. Prostic did identify a cause of Mason's left shoulder injury, namely overcompensation, he did not explain how Mason's sedentary lifestyle could stress and damage the left arm. Furthermore, Dr. Prostic did not relate his specific diagnosis of ulnar nerve entrapment to the purported excessive use, nor did he relate that the overcompensation was work related.
In our appellate review, we must also consider the record as a whole. Mason did not complain of left elbow symptoms for over a year after his workplace injury, and he had suffered similar symptoms before that injury. Mason's health is also poor, and Drs. Fevurly and Strickland both testified that Mason's uncontrolled diabetes could damage his joints. In particular, Mason has adhesive capsulitis (frozen left shoulder). Dr. Strickland testified that Mason's medical condition was probably attributable to his diabetes, which the doctor described as “[t]he number-one risk factor for frozen shoulder.” Doctor Strickland also specifically opined that Mason's frozen left shoulder was not caused by his right shoulder injury.
Dr. Strickland's medical testimony was significant in light of Mason's testimony at the regular hearing. As discussed earlier, in his testimony, Mason tended to combine his left shoulder and elbow symptoms. He said in another such instance: “My left shoulder and elbow just kind of freeze up.”
Considering all of the evidence together, the record as a whole suggests causes for Mason's left elbow injury other than overcompensation. Yet, Dr. Prostic offered no reasoning to support his medical opinion at the deposition. “Opinion testimony is not substantial evidence of causation if it is based on nothing more than post hoc, ergo propter hoc logic: the symptoms follow the exposure; therefore, they must be due do it.” Chriestenson v. Russell Stover Candies, 46 Kan.App.2d 453, Syl. ¶ 8, 263 P.3d 821 (2011), rev. denied 294 Kan. 943 (2012). We see little more than that logical fallacy here. Accordingly, we conclude the Board's disregard of Dr. Prostic's opinion that Mason's left elbow condition was caused by overcompensation following his right shoulder work injury was supported by substantial evidence.
Affirmed.