Opinion
111,984.
04-24-2015
Deborah R. SMITH, Appellant, v. FOUNTAIN VILLA and Firstcomp Insurance, Appellees.
Bryce D. Benedict, of Eschmann & Pringle, of Topeka, for appellant. Joseph R. Ebbert, of Foland, Wickens, Eisfelder, Roper & Hofer, P .C., of Kansas City, Missouri, for appellees.
Bryce D. Benedict, of Eschmann & Pringle, of Topeka, for appellant.
Joseph R. Ebbert, of Foland, Wickens, Eisfelder, Roper & Hofer, P .C., of Kansas City, Missouri, for appellees.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Deborah R. Smith appeals from the Workers Compensation Board's (Board) decision finding that she did not suffer a permanent partial impairment as the result of her compensable personal injury by accident. She argues the chronic pain that resulted from her injury constitutes a permanent impairment as defined by the American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed. 1995) (AMA Guides).
Facts
In July 2010, Smith was an employee of Fountain Villa, a home care facility. Her job responsibilities included counting narcotics, conducting insulin checks, dressing and undressing residents, and tending to other basic needs of the residents. On July 14, 2010, Smith was leaning over a table in the facility's dining area to speak to a resident when Joseph Monsour, the owner/operator of Fountain Villa, struck her on the left hip with an aluminum skillet. Monsour admitted striking Smith with the pan but described his action as a “pat” that was not strong enough to cause injury. Smith disagreed with Monsour's characterization of the incident and claimed the impact of the skillet against her hip was hard enough to make her feel as if she had been lifted off of her feet.
Smith testified that immediately after she was struck with the frying pan, she felt a sharp burning pain in her left hip area. Smith reported that when she turned around and saw who hit her, she grabbed Monsour's arm and said, “[Y]ou ass, that really hurt.” She then punched him and shoved him into the wall and afterwards shoved him into the kitchen. Monsour does not remember Smith calling him an ass or telling him that she was hurt. Monsour and Meredith Rogers, the assistant operator of Fountain Villa, both testified that everyone in the room was laughing after the incident, including Smith. Smith denied laughing after she was struck but acknowledged that everyone else was laughing.
Rogers reported that Smith came into her office after the incident and asked whether Rogers had seen what Monsour had done. During this interaction, Smith did not indicate she was upset or injured. Smith finished her shift at 2 p.m. At about 3:50 p.m., Smith called A.J. Monsour, who was her direct supervisor at Fountain Villa. A.J. also was Monsour's son. After describing the incident to A.J., Smith told A.J. that she was quitting and not coming back.
Later that day, Smith reported the incident to the Iola Police Department. She completed a written report that described the incident and then noted that she would not accept anyone hitting her and that “paybacks are hell.” Police officers took Smith to the local hospital to have pictures taken of the area where she was struck. At the time the pictures were taken, there were no markings on Smith's body indicating trauma to her hip. Smith did not receive any medical treatment at the hospital.
On July 16, 2010, Smith saw a chiropractor. After describing her symptoms, the chiropractor performed a manipulation of her tailbone and lower back. On July 20, 2010, Smith completed an application for hearing and sent it to the Kansas Department of Labor's Division of Workers Compensation. A preliminary hearing was held on October 7, 2010. With the exception of her July 16, 2010, visit to the chiropractor, Smith did not receive any medical treatment related to the frying pan incident prior to the preliminary hearing.
On October 15, 2010, the administrative law judge (ALJ) entered an order designating Dr. Pat Do as the authorized treating physician. Dr. Do began treating Smith in November 2010. He asked her to undergo an MRI scan of the lumbar spine and pelvis. The MRI showed a degenerative disc disease that Dr. Do believed likely predated July 14, 2010. Dr. Do's assessment of Smith's condition was that she suffered from “left buttock pain secondary to contusion” and “[l]eft lower extremity radicular-type pain.” To treat Smith's condition, he suggested medications and physical therapy.
On April 26, 2011, Dr. Do determined Smith was at maximum medical improvement and released her from his care without any work restrictions. Although Smith was still complaining of mild pain and numbness when Dr. Do released her, he testified there was no objective medical basis for Smith's complaints. When asked about Smith's functional impairment, Dr. Do responded that, in his opinion, Smith did not have a permanent impairment.
Smith's attorney referred her to Dr. Peter Bieri for a medical evaluation, which occurred on October 25, 2011. Dr. Bieri evaluated Smith's condition under the AMA Guides and determined she had a DRE Lumbosacral Category II impairment, which calculated into a 5% whole person impairment. Dr. Bieri also found sensory change around the left hip, which lead him to conclude she had an additional 2% whole person impairment. Dr. Bieri specifically attributed these impairments to the injury Smith sustained when Monsour struck her on the left hip with an aluminum skillet. Dr. Bieri did agree, however, that Smith's 2010 MRI did not show disc herniation or impingement but rather showed degenerative disc disease that was consistent with her age.
Smith was dissatisfied with Dr. Bieri's evaluation. She made handwritten comments on a copy of his report, which she has included in the record on appeal. Specifically, Smith commented that she was in Dr. Bieri's office for only 10 minutes, that he did not ask her more than three or four questions, and that she felt the appointment was a waste of time. She also noted that she was very upset and that she did not feel Dr. Bieri did an in-depth evaluation of her. At some point, Smith and her attorney also created a list of activities that now cause pain as a result of her injury.
Dick Santner, a vocational rehabilitation counselor, met with Smith in August 2012. Santner reviewed Smith's work history and determined the job tasks she was able to perform prior to her injury. Santner generated a report detailing these tasks for review by a physician to determine task loss resulting from her injury. Santner identified 19 tasks that Smith performed in the 15 years prior to the frying pan incident. Santner did not offer an opinion as to whether Smith was currently able to perform any of those tasks.
Dr. Do evaluated the task list. Based on his knowledge of Smith's condition, he testified that, in his opinion, Smith could perform all the tasks on the list; accordingly, she suffered no task loss. Dr. Bieri, on the other hand, believed that Smith was unable to perform three of the tasks, resulting in a 16% task loss.
On September 6, 2012, the ALJ ordered Smith to be evaluated by Dr. Vito Carabetta. He performed an examination of Smith on January 23, 2013. Many of Dr. Carabetta's findings were inconsistent with Smith's claims. For instance, one test was performed both in seated and supine positions. In the seated position, he found no problems, but in the supine position, Smith reported problems when lifting her left leg only 20 degrees. In another test, Smith reported feeling a pinprick test on an area she claimed was numb. Given Smith reported that she felt the pinprick, Dr. Carabetta concluded Smith did not suffer from any nerve impingement in the lower extremities. Finally, Smith demonstrated severe weakness in her left leg during a muscle test. Dr. Carabetta testified that if such a weakness truly existed, Smith would not have been able to walk or stand. Yet, Dr. Carabetta reported that Smith walked into his office the day of the exam. Although it does not appear that he reviewed the task list prepared by Santner, Dr. Carabetta stated that he would not place any restrictions on Smith's activities as the result of the frying pan incident.
Dr. Carabetta found that Smith fit into DRE Category I, which translated into no permanent impairment. In his initial report, Dr. Carabetta suggested the ALJ should consider a 3% permanent impairment under the circumstances. He explained in his deposition, however, that he was cutting Smith some slack and giving her some latitude when he suggested a 3% impairment. Dr. Carabetta confirmed that, according to the AMA Guides, his findings readily indicate Smith did not have a permanent impairment.
The ALJ ultimately found Smith did suffer a personal injury by accident as defined in K.S.A.2010 Supp. 44–508(e) and (d). The ALJ also found the injury arose out of and in the course of her employment. Nevertheless, the ALJ concluded Smith failed to show the injury she sustained resulted in a permanent injury, impairment, or disability. The ALJ gave greater deference to the opinions of Dr. Do and Dr. Carabetta. The ALJ pointed out that, unlike a treating physician or a neutral medical practitioner, Dr. Bieri was retained by the claimant specifically for the purposes of litigation. The ALJ also noted that Smith herself complained that Dr. Bieri's examination was limited and perfunctory. With regard to Smith's testimony, the ALJ noted her subjective claims were unsupported by the medical evidence and thus undermined her credibility. In sum, the ALJ concluded there was no credible evidence to support Smith's claim that she suffered a permanent injury, impairment, or disability as a result of the frying pan incident.
Smith requested the Board review the ALJ's findings. The Board adopted the findings of the ALJ regarding the nature and extent of Smith's alleged impairment. In so doing, the Board specifically noted that Smith's physical complaints were of questionable credibility not only based on a lack of objective evidence to support her complaints, but also based on physical testing results that actually contradicted the alleged physical ailments about which she complained.
Analysis
When reviewing questions of fact in the context of a workers compensation appeal, this court must review the record as a whole to determine whether the Board's factual determinations are supported by substantial evidence. This analysis requires this court to (1) review evidence both supporting and contradicting the agency's findings, (2) examine the presiding officer's credibility determination, if any, and (3) review the agency's explanation as to why the evidence supports its findings. Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014). “Substantial evidence” is evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper or furnishing a basis of fact from which the issue raised could be easily resolved. Ward v. Allen County Hospital, 50 Kan.App.2d 280, 285, 324 P.3d 1122 (2014). This court does not “weigh conflicting evidence except to determine whether the evidence supporting the Board's decision has been so undermined by conflicting evidence that we no longer have confidence in the substantial nature of the evidence.” Messner v. Continental Plastic Containers, 48 Kan.App.2d 731, 750, 298 P.3d 371, rev. denied 291 Kan. 1246 (2013).
K.S.A. 44–510e(a) defines functional impairment as “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.” Smith contends that the chronic pain resulting from her injury at Fountain Villa constitutes a permanent impairment.
At the outset of the analysis, this court notes that Smith's impairment claim is based entirely on her assertion that she suffers from chronic pain from being hit by a frying pan and that her pain limits her daily activities. She argues on appeal that uncontroverted evidence established that she suffered chronic pain. Specifically, she asserts in her brief that no physician or lay witness testified that Smith was not in pain. Uncontradicted evidence cannot be ignored unless it is improbable, unreasonable, or untrustworthy, and such evidence must be considered conclusive. Lake v. Jessee Trucking, 49 Kan.App.2d. 820, 844, 316 P.3d 796 (2013), rev. denied 301 Kan. –––– (January 15, 2015).
While Smith's claims of pain may be uncontroverted, both the ALJ and the Board found that Smith's physical complaints were not worthy of belief and thus there was no credible evidence showing that Smith suffered from any permanent impairment. Appellate courts should not attempt to assess a witness's credibility from a record because the ability to observe a witness is an import part of determining credibility. See Lake, 49 Kan.App.2d at 843. As a result, this court may properly discount Smith's claims that she suffered from chronic pain.
In further support of her claim that the evidence in the record established that she suffered a permanent impairment, Smith relies on the testimony of Dr. Bieri, who she retained, and a patchwork of testimony from Dr. Do and Dr. Carabetta that could have led a factfinder to find she had a permanent impairment. But this is merely an invitation to reweigh the evidence. Although the doctors in this case had differing opinions, substantial evidence supports the Board's finding that Smith did not have a permanent impairment.
Simply put, there is nothing in the evidence cited by Smith or in the record as a whole to undermine this court's confidence in the substantial nature of the evidence supporting the Board's conclusion. Dr. Do and Dr. Carabetta testified that, in their opinions as physicians, Smith did not suffer a permanent impairment. Dr. Bieri found Smith suffered a 7% permanent impairment, but the Board adopted the ALJ's decision to give less weight to his testimony because Dr. Bieri was retained by Smith's attorney. Additionally, Smith herself believed Dr. Bieri's examination was inadequate.
A thorough review of the record as a whole reveals that substantial evidence supports the Board's conclusion that Smith suffered no permanent impairment as the result of the frying pan incident at Fountain Villa. Therefore, the Board's decision is affirmed.
Affirmed.