Opinion
No. 106,163.
2012-06-29
MYRTLE STURDIVANT, Appellant, v. PLAZA REAL ESTATE and State Farm Fire & Casualty Co., Appellees.
Appeal from Workers Compensation Board. Joseph Seiwert, of Snider & Seiwert, LLC, of Wichita, for appellant. P. Kelly Donley and Dallas L. Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellees.
Appeal from Workers Compensation Board.
Joseph Seiwert, of Snider & Seiwert, LLC, of Wichita, for appellant. P. Kelly Donley and Dallas L. Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellees.
Before LEBEN, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Myrtle Sturdivant was injured while working at Plaza Real Estate when she fell down several stairs and broke her hip. Sturdivant eventually underwent surgery for a total hip replacement and settled a workers compensation claim with Plaza Real Estate. Several months after the surgery, Sturdivant sought treatment for pain in her knees and back; she had sought similar treatment for arthritis before she fell. A doctor recommended that Sturdivant have knee replacement surgery, and Sturdivant filed an application for postaward medical benefits, claiming that her back and knee problems were aggravated by or were the natural and probable consequence of her hip injury. An administrative law judge (ALJ) granted Sturdivant's application, but the Workers Compensation Board (Board) reversed that decision. Sturdivant appeals from the Board's decision. For the reasons stated below, we affirm.
Facts
Sturdivant worked as a receptionist at Plaza Real Estate. On April 11, 2007, Sturdivant suffered a broken left hip when she fell down several stairs at work. Dr. Robert Eyster treated Sturdivant immediately after her fall and eventually performed a total hip replacement on her left hip. As a result of the hip replacement, Sturdivant limps when she walks. On June 11, 2007, Dr. Eyster determined that Sturdivant had reached maximum medical improvement and released Sturdivant from treatment. At the time of Sturdivant's injury and treatment, she did not complain to Dr. Eyster about pain in her left knee.
In 2006—before Sturdivant's hip injury—she was treated by her family physician, Dr. Alberto Carro, for arthritis pain in her left knee. Dr. Carro prescribed Sturdivant medication for her arthritis and administered injections in one of her knees. It is unclear from the record into which knee Sturdivant received injections, but the record clearly states that Sturdivant's arthritis pain was in her left knee. On September 27, 2006, Dr. Carro recommended that Sturdivant undergo knee replacement surgery. Sturdivant elected not to have the surgery at that time.
After Sturdivant was released from treatment for her hip, she saw Dr. Pedro Murati at the request of her attorney. Sturdivant did not tell Dr. Murati that she was experiencing pain in her knees. On September 12, 2007, Sturdivant and Plaza Real Estate settled a workers compensation claim for the hip replacement surgery. The settlement stated that Sturdivant sustained a 17.5% permanent partial general bodily disability and was entitled to $25,177.60 in permanent partial compensation. This agreement was modified on May 27, 2010. The modified agreement awarded Sturdivant $95,177.60 in permanent partial compensation for 66% permanent partial general bodily disability.
In December 2007, Sturdivant saw Dr. Carro for her knee pain. Dr. Cairo referred her to Dr. Eyster to have her knees evaluated. Dr. Eyster saw Sturdivant on December 19, 2007. At that appointment, X-rays showed evidence of patella femoral rheumatoid arthritic cartilage depletion. Dr. Eyster told Sturdivant that she needed a total knee replacement. Sturdivant told Dr. Eyster that she did not have health insurance and would have to postpone the surgery until she did. Dr. Eyster continued to treat Sturdivant's knees with injections.
Sturdivant saw Dr. Eyster again in August 2009. Dr. Eyster's notes from that appointment state Sturdivant was doing well recovering from her hip surgery and was walking without a limp. The notes do not mention any problems in Sturdivant's knees. About 2 months later, Dr. Eyster treated Sturdivant's knees with Synvisc injections. She received at least three subsequent injections.
Dr. Eyster saw Sturdivant again in August 2010 for low back pain and knee pain. Dr. Eyster's notes from the appointment state that Sturdivant's hip was doing well, with no pain. The notes addressed her knee problems, stating, “[Sturdivant] has bilateral knee pain but she does not have any resources otherwise she said she would be in for consideration of total knees.” Dr. Eyster suggested injections to treat Sturdivant. Sturdivant returned to Dr. Eyster on September 8, 2010, for back pain and pain in her left leg. Dr. Eyster suggested that Sturdivant obtain an MRI of her low back.
On September 14, 2010, Sturdivant's lawyer mailed a letter to Dr. Eyster inquiring whether Sturdivant's back pain and pain in her knees may relate to her hip injury from 2007. Dr. Eyster responded on September 23, 2010, and gave this opinion:
“[T]he work injury certainly an injury to the extent of breaking the hip bone the impact would cause some articular cartilage irritation in the knee in all likelihood.
“It would be my opinion in summary that the lower back and knee certainly were aggravated to some extent by the injury that resulted in a total hip with the degenerative change of the discs in the lower back as a diagnosis and cartilage irritation in the knee.”
On September 22, 2010, Sturdivant filed an application for postaward medical benefits. She asked that Plaza Real Estate cover the expense of medical care for her back and knee pain.
As part of Sturdivant's postaward medical application, Dr. Eyster was deposed. At his deposition, Dr. Eyster offered this opinion about the connection between Sturdivant's back and knee problems and the hip injury she sustained when she fell in 2007:
“A [Dr. Eyster] Well, what I'm trying to say is—I was asked by counsel through, you know, correspondence whether there was, in my opinion, some, you know, possible contribution. I believe there's some contribution. Now, I'm not saying that that contribution's nearly as great as other factors, but there's some contribution, and that's the only thing I'm saying with a medical degree of certainty.
“Q [Respondents' counsel] So if I understand correctly then, the hip injury had a possible contribution to the low back symptomology.
“A And the knee, the symptoms. Not the disease process.
“Q That was my next question.
“A Yes.
“Q But as it relates to the back, would that be an accurate statement?
“A Yes.
“Q And as I understand it, the hip injury was a possible contribution to the symptoms in the lower extremity, correct?
“A Correct.
“Q All right. Is the back condition a natural and probable consequence of the hip injury and the resulting treatment?
“A No.
“Q Are the symptoms in the back a natural and probable consequence of the hip injury and the resulting treatment?
“A No.
“Q Okay. Is the knee condition a natural and probable consequence of the hip injury and the resulting treatment to the hip?
“A No.
“Q Are the symptoms in the knee a natural and probable consequence of the hip injury and the resulting treatment to the hip?
“A No.
“Q Has all the testimony that you provided me on cross-examination been within a reasonable degree of medical probability?
“A Yes.”
Dr. Eyster summarized his deposition by stating, “I am saying that there is a contribution on the symptoms, and I'll stick by that .”
On February 24, 2011, the ALJ authorized Dr. Eyster “to treat [Sturdivant's] low back and left knee problems.” In reaching this decision, the ALJ referred to the letter from Dr. Eyster stating that there is “some contribution” to Sturdivant's knee problems from her fall. Plaza Real Estate timely appealed to the Board.
The Board reversed the ALJ's decision. The Board reviewed Dr. Eyster's letter and deposition testimony and found significant the fact that Dr. Eyster's opinion regarding aggravation of the work injury was tentative in nature (the lower back and knee pain were aggravated “ ‘to some extent” ‘ by the work injury; the work injury “was a possible contribution” to the lower back and knee pain), but his opinion regarding the relationship between the work injury and the lower back and knee pain was patently clear (the knee and back condition and symptoms related thereto are not “a natural and probable consequence of the hip injury” and the resulting treatment to the hip). The Board, with one member dissenting, determined that in the absence of persuasive evidence that Sturdivant's knee and back conditions were aggravated by her fall or were the natural and probable consequence of the hip injury, the conditions were not compensable. The dissenting member stated that Dr. Eyster's testimony supported Sturdivant's contention that her fall aggravated the symptoms in her knee and back.
Analysis
On appeal, Sturdivant argues that Dr. Eyster's opinion “supports the finding that [Sturdivant] is in need of medical treatment to her back and left knee, and that the work injury at least accelerated her need for treatment.” Plaza Real Estate contends Sturdivant's claim is not compensable because her symptoms relate back to her preexisting arthritis and are not the natural and probable consequence of her fall. Standard of Review
This court reviews final orders of the Board under the Kansas Judicial Review Act (KJRA), K.S.A. 77–601 et seq. , as amended. Kansas law requires employers to compensate employees who suffer an injury arising out of and in the course of their employment. The burden to show that an injury arose out of employment is upon the claimant K.S.A.2007 Supp. 44–501(a); Coleman v. Swift–Eckrich, 281 Kan. 381, 384, 130 P.3d 111 (2006).
The parties disagree on the appropriate standard of review on appeal. Sturdivant asserts that the facts in this case are not in dispute; therefore, this court reviews the Board's decision de novo. On the other hand, Plaza Real Estate asserts that the parties do have a factual disagreement—whether Sturdivant's knee and back pain was aggravated by or is the natural consequence of the 2007 fall—thus, this court must review the Board's decision using a substantial competent evidence standard.
Plaza Real Estate's assertion is correct. In workers compensation cases, de novo review is generally reserved for situations where the parties stipulate to the facts surrounding the claim or one party admits that the injury was or was not work related. See, e.g., Adee v. Russell Stover Candies, Inc., 39 Kan.App.2d 1017, 1024, 186 P.3d 840 (2008). That is not the case here. The heart of this appeal is a factual disagreement between the parties as to whether Sturdivant's knee problems were either aggravated by her work injury or were the natural and probable consequence of her work injury. The parties interpret Dr. Eyster's testimony differently—Sturdivant states that Dr. Eyster “makes clear that Ms. Sturdivant's work injury made some contribution to her knee and back pain” and Plaza Real Estate maintains that Dr. Eyster's opinion regarding aggravation was anything but persuasive, especially given his patently clear opinion that Sturdivant's knee problems were not the natural and probable consequence of her fall. Resolving this claim involves reviewing the Board's finding under the substantial competent evidence standard.
An appellate court reviews 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.2011 Supp. 77–621(c)(7). 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 of fact from which the issue raised could be easily resolved.” Reddv. Kansas Truck Center, 291 Kan. 176, 183–84, 239 P.3d 66 (2010). “ ‘[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.2011 Supp. 77–621(d).
Notably, the amendments made to the KJRA in 2009 effectively abrogated use of the negative findings standard of review in administrative actions. Cf. Herrera–Gallegos v. H & H Delivery Service, Inc., 42 Kan.App.2d 360, 362–63, 212 P.3d 239 (2009). In this case, the Board made negative findings about Sturdivant's failure to prove that her hip injuryaggravated her arthritis or that her back and knee pain was the natural and probable consequence of her fall. Rather than use the negative findings standard of review, this court applies the substantial competent evidence standard. The Board's finding that Sturdivant failed to show her injuries were aggravated by the fall or were the natural and probable consequence of the fall is supported by substantial competent evidence.
Viewing the evidence in the light of the record as a whole, we find substantial evidence supports the Board's finding that Sturdivant failed to show her knee and back problems were aggravated by her fall or were the natural consequence of her fall. Dr. Eyster's deposition testimony substantially supports the determination that Sturdivant's back and knee pain exists independent of the hip injury she sustained when she fell in 2007. Dr. Eyster expressly stated in his deposition that the symptoms and conditions in Sturdivant's knees and back were not the natural and probable consequence of the hip injury Sturdivant sustained at work. And the Board chose to give more weight to Dr. Eyster's deposition testimony than to the paragraph in his letter. That is an issue of credibility that is not for this court to review on appeal. See K.S .A.2011 Supp. 77–621(d).
In addition, Sturdivant was recommended to undergo knee replacement surgery before her hip injury. The fact that Sturdivant did not immediately complain of knee or back pain after her fall supports the Board's finding. It appears that Sturdivant's back and knee problems did not reemerge until well after her fall and hip replacement surgery. The Board's finding that Sturdivant's back and knee problems were not aggravated by or the probable consequence of the hip injury is supported by substantial competent evidence.
Affirmed.