Opinion
No. 107,407.
2012-10-26
Patricia M. HUGGINS, Appellant, v. HAYSVILLE HEALTHCARE CENTER, and Premier Group Insurance, Appellees.
Appeal from Workers Compensation Board. Michael L. Snider, of Snider & Seiwert, L.L.C, of Wichita, for appellant. Terry J. Torline, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellees.
Appeal from Workers Compensation Board.
Michael L. Snider, of Snider & Seiwert, L.L.C, of Wichita, for appellant. Terry J. Torline, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellees.
Before MARQUARDT, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Patricia Huggins, a certified nurse's aide (CNA), began working at the Haysville Healthcare Center in about 2002. Haysville is a senior living center. Huggins' duties included moving patients, lifting them, taking them to the bathroom, turning them, and changing their garments. Her largest patient was a man who weighed about 400 pounds, who had “just passed away” before Huggins testified in 2010. She had an aide to help her with the lifting, “but a lot of times you had to do them yourself.”
2007
In about June 2007 Huggins cared for two patients who were at risk of falling, so their mattresses were placed on the floor. The record does not disclose how large these patients were. Huggins later testified that these two patients frequently had to visit the restroom, “[S]o I'd have to lift them up off the floor, take them to the rest room, bring them back, put them on the mattress, and this continued for quite a few nights. And all of a sudden my—you know, after a day of it, my hip was hurting.” Huggins told the charge nurse that her hip was hurting. She asked for and was given Tylenol for the pain.
2008
In April 2008, Huggins went to the Hunter Health Clinic complaining of hip pain that had been going on for the past 10 months. She was given pain medication, which improved her symptoms. The clinic recommended x-rays, but Huggins said she could not afford them. The clinic made no determination of the cause of Huggins' complaints.
In August 2008, Huggins saw Dr. Del Ray with complaints of the gradual onset of hip pain during the previous year. Dr. Ray diagnosed Huggins with anthropathy, but he made no determination that her work was the cause of her problem. Huggins said Dr. Ray told her he could not help her because she did not have medical insurance.
In December 2008, Huggins began using crutches to go from her car to her work because she feared she might fall on snow and ice. At work, she used a laundry and trash container on rollers to help her move about.
2009
In February 2009, the pain in Huggins' right hip increased over a period of a week. At the end of her work shift, she went to the Wesley Medical Center emergency room for care. She reported a history of hip pain for 1 1/2 years, but she said that by February 2009 the pain was so bad that she could hardly walk. X-rays were taken while Huggins was at the hospital. The diagnostic imaging report showed avascular necrosis of the femoral head. No determination was made regarding the cause of her condition. She was referred to a health clinic where she could receive financial assistance. She was told not to return to work for a week. When Huggins returned to work a week later she was using crutches.
As the emergency room doctor suggested, Huggins went to the health clinic in early March 2008, where she was seen by a physician's assistant. Huggins was told at the health clinic that she did not qualify for financial assistance, and so she was not given any help for her hip pain.
In July 2009, Huggins filed a workers compensation application for hearing, claiming that she sustained a hip fracture. She claimed she had pain in her leg, groin, back, and shoulder as a result of her work.
In August 2009, at the request of Huggins' attorney, Dr. George Fluter examined her for the first time. He diagnosed her as having possible avascular necrosis affecting the right femoral head, lower back pain, bilateral shoulder/upper extremity pain, bilateral hand numbness, and right knee pain. In his report, Dr. Fluter opined that “there is a causal/contributory relationship between Ms. Huggins' current condition and the work-related activities.” He attributed Huggins' groin pain to her transferring patients “over the course of time.” He considered Huggins' obesity and history of heavy smoking to be contributing factors to her necrosis. He recommended that Huggins limit a number of her physical activities, and he prescribed pain medications and a CT scan of the right hip.
In December 2009, Dr. Paul Stein, a neurosurgeon, evaluated Huggins at Haysville's request. He diagnosed Huggins as having avascular necrosis in her hip and opined that Huggins' obesity and smoking habit were the major factors causing her hip condition. Huggins was overweight and had been a pack-a-day smoker for approximately 40 years.
According to Dr. Stein, “once the avascular necrosis set in ... her work activity may have increased the pain but it wasn't the cause of the disease.” Further, in his opinion Huggins' work did not aggravate or accelerate the underlying condition. He stated in his written report:
“Ms. Huggins has developed avascular necrosis of the right femoral head combined with degenerative arthritis. The two major contributors to this pathology are the patient's heavy smoking history and obesity. Historically, the primary contributor to avascular necrosis other than a femoral neck fracture which is not the case here is a history of smoking. Any contribution by the patient's work activity was, in my opinion, secondary and minor compared to the factors noted above. Her work activity would not have caused avascular necrosis but in a patient with the hip deterioration, the work activity might cause increased pain. However, I do not believe it is a significant factor in terms of the structural deterioration of the hip.”
2010
In January 2010, Dr. Terrence Pratt performed an independent medical examination of Huggins at the request of the administrative law judge (ALJ). He reported that Huggins first complained of hip pain within a few days of the incidents she described of lifting patients at Haysville. Dr. Pratt noted no past history of hip injury. X-rays in 2009 showed marked degenerative changes in the hip joint, but no definite evidence of a femoral fracture. According to Dr. Pratt's report, “[t]hese significant changes as identified on the films are not felt to relate to her reported history of vocationally related activities. The changes are preexisting. It is probable that she developed an increase in symptoms while performing vocationally related activities.” Dr. Pratt was of the opinion that Huggins' avascular necrosis and hip deterioration probably would have continued to progress whether or not she was working as a CNA. Referring to his written report to the ALJ, Dr. Pratt testified at his deposition:
“[I]t was probable that [Huggins] developed an increase in symptoms, meaning the right hip, while performing vocationally related activities based on the description that she provided of frequently transferring individuals from the floor, but the activities did not cause the involvement. I stated that I agreed with the physician, which I believe was Dr. Stein, who stated that the most significant factor in the hip involvement was not related to her vocationally related activities, but was related to other factors, but I also agree that she had aggravation of underlying involvement.”
By “aggravation of underlying involvement” Dr. Pratt said he meant an increase in Huggins' symptoms. He could not say that Huggins' work accelerated her underlying condition.
In February 2010, the ALJ conducted the preliminary hearing. Huggins testified that she had no history of a pre–2007 injury to her hip. She stated that she had pain in her hip when getting in or out of a car, when putting on her shoes and socks, when putting on her clothing, when vacuuming at home, when sitting on the toilet, and “in doing every type of activity that involves some type of bending with [her] hip.”
The ALJ had before him the reports from Drs. Pratt, Stein, and Fluter. Huggins' counsel also provided the ALJ with a section from the Merck Manual on osteonecrosis. According to the Merck Manual, traumatic osteonecrosis is more common that nontraumatic osteonecrosis. The most common cause of traumatic osteonecrosis is a displaced fracture which interrupts the blood supply to the bone. The less-frequent nontraumatic osteonecrosis is often associated with a number of conditions. Huggins had been asked about those conditions at the preliminary hearing and she denied having any of them. A reprint from the Mayo Clinic was also provided to the ALJ, and it referred to risk factors similar to those identified in the Merck Manual.
In May 2010, Huggins saw Dr. John Schurman, who diagnosed Huggins as having stage 4 osteonecrosis in her right hip. He recommended a hip replacement. Huggins' last day at work was June 25, 2010, right before Dr. Schurman performed the hip replacement surgery. She never returned to work at Haysville.
Dr. Schurman was later deposed and asked about the necrosis of the femoral head, which lead to Huggins' hip replacement. He did not know what pathology caused Huggins' avascular necrosis but did not consider her smoking history to be a contributing cause. He testified: “It would be reasonable to expect that her condition would progress over time.” While he could not determine the specific cause of Huggins' hip condition, he apparently ruled out trauma as a cause. He stated that a stress fracture of the femoral neck could cause an avascular necrosis, but “[s]tress fractures generally heal. When they heal, they heal with a scar. You see the evidence of healing on the x-ray So had she had a stress fracture, my expectation would be that there would be a reparative scar on her x-ray to confirm that. She didn't have that.”
2011
In January 2011, Dr. Fluter saw Huggins a second time. He confirmed his view of a causal/contributory relationship between Huggins' condition and her work activities.
In August 2011, the ALJ, citing Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 257 P.3d 255 (2011), determined that Huggins sustained compensable injuries that arose “out of and in the course of her employment.”
Haysville appealed to the Workers Compensation Board (Board). In December 2011, the Board reversed the ALJ's decision, relying on the testimony of Drs. Pratt, Stein, and Schurman. The Board stated:
“Although many of claimant's work activities, such as standing, walking, bending, stooping, squatting, lifting, and carrying can be described as normal activities of day-to-day living, K.S.A. 44–508(e) does not exclude ‘accidents' that are the result of such activity, but rather excludes injuries where the ‘disability’ is a result of the natural aging process or the normal activities of day-to-day living. The intent of this statute is to avoid paying workers compensation benefits for conditions that result from risks that are solely personal to the worker.
“In this case Drs. Stein, Schurman and Pratt concluded claimant's avascular necrosis was not caused by her work. Moreover, Dr. Stein and the court ordered independent medical examiner, Dr. Pratt, concluded claimant's work activities simply caused an increase in claimant's symptoms but did not aggravate, accelerate or intensify the avascular necrosis. Dr. Pratt noted claimant's avascular necrosis would have continued to progress to the point where she needed surgery as long as she continued to ambulate irrespective of her work. The Board finds that claimant has failed to prove that if she had not been employed as she was with respondent, she would not be equally injured. In other words, the greater weight of the credible evidence does not establish that claimant's work activities increased her injury or otherwise contributed to her present condition to a greater degree than if she had not been so employed. The greater weight of the expert medical opinion testimony fails to establish that claimant's work activities aggravated, accelerated or intensified her avascular necrosis beyond that caused by the natural aging process and her normal activities of day-to-day living.”
Huggins appeals. She asserts two points of error in this appeal: (1) The Board erred in declining to follow our Supreme Court ruling in Bryant, and (2) the Board's denial of compensation was arbitrary, violating her rights under the Equal Protection Clause of the United States Constitution. Discussion Compensable Injury?
This case raises the issue of compensability under our Workers Compensation Act for an on-the-job event that rendered symptomatic a preexisting condition for which the worker previously experienced no symptoms. Under our current law enacted in 2011, the answer would be clear. K.S.A.2011 Supp. 44–508(f)(2) states: “An injury is not compensable solely because it aggravates, accelerates or exacerbates a preexisting condition or renders a preexisting condition symptomatic.”
But this provision was not in effect at the time of the events surrounding Huggins' claim. What has not changed is Huggins' burden to show that her injury arose out of her employment. See Jones v. Lozier–Broderick & Gordon, 160 Kan. 191, 195, 160 P.2d 932 (1945).
Huggins argues that the Board erred in not following the rule announced by the Supreme Court in Bryant. Huggins cites Bryant, arguing: “An accidental injury is compensable even if it only aggravates or accelerates and existing disease or intensifies an existing condition.”
In Bryant, decided before the change in the law in 2011, the claimant suffered a back injury unrelated to his employment, which resulted in a lumbar diskectomy in 1998. He experienced ongoing low back pain notwithstanding the surgery.
In 2001, Bryant began working for Shawnee Heating and Cooling, apparently through an arrangement with Midwest Staff Solutions. While working there he missed a number of work days due to ongoing back pain. In 2003, he reached for a tool in his tool bag at work and experienced a sudden, severe increase of his back pain. Bryant continued working but 2 months later again experienced a sudden increase of his back pain when he stooped over while working on an air conditioner installation. Four months after this second incident, Bryant had surgery to fuse the vertebrae at several levels in his back.
The ALJ and the Board found a compensable injury, but a panel of the Court of Appeals reversed, finding that Bryant's injuries were the result of normal activities of daily living. Bryant v. Midwest Staff Solution, Inc., unpublished opinion filed March 13, 2009, slip op. at 14. In addressing this issue our Supreme Court noted: “Whether an injury is compensable is a question over which an appellate court exercises unlimited review. [Citation omitted.]” 292 Kan. at 587.
The employer in Bryant argued that the claimant failed to prove that the two incidents in 2003 were compensable injuries because “he already suffered from back pain and the work incidents did not change his condition—they simply intensified it.” 292 Kan. at 589. The court responded:
“[This] contention ... carries little force. The record contains credible testimony that the [first] incident changed the physical structure of Bryant's body, causing damage or harm to it. Dr. Vito Carabetta, an independent medical examiner, testified that the incident was an instigating event that changed Bryant's relatively stable back condition, which was controlled by intermittent treatment, into a condition that required surgery. Dr. Theodore Sandow also testified that the work incidents were the triggering events that led Bryant to need surgery in 2003.” 292 Kan. at 589.
With respect to the employer's argument that Bryant's injury in 2003 was the result of normal activities of day-to-day living and not the circumstances of his employment, the Supreme Court concluded that “Bryant was not engaged in the normal activities of day-to-day living when he reached for his tool belt or when he bent down to carry out a welding task.” 292 Kan. at 596.
There are fundamental differences between Huggins' circumstances and those in Bryant. There is no question that Bryant injured his back while working for his employer. In Bryant, the court found a compensable injury based on credible testimony that the work incidents brought on Bryant's symptoms and “changed the physical structure of Bryant's body, causing damage or harm to it.” 292 Kan. at 589. Here, however, Dr. Stein stated that Huggins' work activities were not “a significant factor in terms of the structural deterioration of the hip.” The definition of an injury found in K.S.A. 44–508(e), the statute in effect for Huggins' claim, states:
“ ‘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 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.”
We find no evidence here that the onset of Huggins' complaints was the result of any “lesion or change in the physical structure” of Huggins' hip joint.
There is no question that lifting patients was a part of Huggins' work activities. The issue is whether she actually sustained an injury from this activity or whether the activity merely ignited pain symptoms that were inevitable, given her degenerative hip condition.
Dr. Pratt was of the opinion that “it was probable that [Huggins] developed an increase in [hip] symptoms ...” while performing vocationally related activities, but that he did not believe her work activities caused her necrosis and he could not say that her work accelerated her underlying condition. Dr. Pratt also stated that it was probable that Huggins' avascular necrosis and hip deterioration would have continued to progress to the point where she required hip replacement surgery regardless of whether she worked as a CNA.
In Bryant, the claimant's back condition was stable though he continued to have occasional back pain. We find no indication that it was inevitable that Bryant would have needed back surgery even if the work incident had not occurred. In fact, the Bryant court noted that “the incident was an instigating event that changed Bryant's relatively stable back condition, which was controlled by intermittent treatment, into a condition that required surgery.” 292 Kan. at 589.
This was not the case with respect to Huggins' hip. She suffered from avascular necrosis of the femoral head; that is. an interruption of the blood supply to the head of the femur, which rests in the socket of the hip joint. This interruption in the blood supply led to the necrosis, or death, of the bone. As the medical testimony established, this is a progressive, ongoing process. Huggins' daily activities, including her activities at work, caused her to experience pain in her hip, but they did not accelerate the ongoing, inevitable degeneration of her hip joint.
Avascular necrosis of the femoral head could be caused by trauma, but according to Dr. Schurman there was no evidence of trauma here. He stated:
“Stress fractures generally heal. When they heal, they heal with a scar. You see the evidence of healing on the x-ray.... So had she had a stress fracture, my expectation would be that there would be a reparative scar on her x-ray to confirm that. She didn't have that.”
According to medical treatises introduced by Huggins at the preliminary hearing, nontraumatic avascular necrosis can be caused by a number of conditions. Huggins testified that she had not suffered or been exposed to any of them. But even if she had suffered or been exposed to any of the possible nontraumatic causes of avascular necrosis, there was no evidence that any of the conditions associated with nontraumatic avascular necrosis were in any way associated with Huggins' work as a CNA.
If the injured worker in Bryant had not experienced the incidents at his work, he could have avoided the spinal fusion surgery that he ultimately had to undergo. But for Huggins, the prospect of hip replacement surgery was certain notwithstanding anything she experienced at work. Dr. Pratt testified that Huggins' hip would have continued to deteriorate “even if the only activity she engaged in was normal day-to-day activities, such as bending” to put on her shoes, to get dressed, to get in and out of her car, and so on. Further, the need for hip replacement surgery was not brought on earlier because of Huggins' work activities. According to the medical testimony, Huggins' work activities did not accelerate her ongoing degenerative condition.
This court has previously discussed the distinction between the aggravation of symptoms and a change in physical condition. In Martin v. CNH America, 40 Kan.App.2d 342, 195 P.3d 771 (2007), rev. denied 286 Kan. 1178 (2008), the claimant, like Huggins, suffered from avascular necrosis. He was involved in assembly work, which required him to bend, twist, turn, squat, stoop, be on his knees, and work underneath cars on a creeper. In 2004, he began to notice problems with his right hip and was diagnosed with the disease. He received hip replacements in March and April 2005, and he returned to his normal work duties in May 2005.
The medical testimony included the following. One doctor “indicated that Martin's repetitive work activity could have aggravated the condition,” but “the condition described by Martin could also have been aggravated by activities outside of work.” 40 Kan.App.2d at 343. An independent medical examination of Martin was conducted by Dr. Paul Stein, who also testified in the present case. According to Dr. Stein, “even though Martin's work activities may have caused pain and discomfort, it would not accelerate the process of necrosis or be any more harmful than other activities, but that it may have aggravated his symptomology.” 40 Kan.App.2d at 344. A third doctor testified similarly, stating that although Martin's work “may have aggravated the condition, it was highly unlikely to have caused it.” 40 Kan.App.2d at 344.
The ALJ denied Martin's claim for compensation benefits because Martin failed to prove that (1) he would not be equally injured had he not been employed with CNH, (2) his work activities aggravated and accelerated his condition beyond that caused by the natural aging process and normal daily activities, and (3) his injuries arose from his employment. The ALJ noted that the term “aggravate” as used by the testifying doctors referred to an increase in Martin's symptoms, not a change in the physical structure of his body. The Board affirmed the ALJ's decision.
On appeal, the Martin court interpreted the statutory definition of “injury” from K.S.A. 44–508(e). The version of K.SA. 44–508(e) in place at the time of the Martin decision was the same as the version in place at the time of the events giving rise to Huggins' claim. The Martin court affirmed the Board, finding that “[t]he evidence failed to indicate that Martin's work activities increased his disability, as opposed to merely aggravating his symptomatology, as required by K.S.A.2006 Supp. 44–501(c).” 40 Kan.App.2d at 346. The Martin court also said that to hold otherwise would be contrary to public policy:
“It would breed inefficiency to allow workers with preexisting conditions such as cancer, respiratory disease, muscle and joint disease, and similar conditions to place the burden of their personal health care expenses on employers. Although compensation seems necessary when work conditions directly accelerate or aggravate these diseases, it is less warranted when the symptoms encountered would have occurred regardless of whether the claimant was so employed. Workers compensation should be reserved for persons who are injured on the job due to hazards specifically associated with that particular work, not for persons who come to an employer with a preexisting disease and suffer the inevitable consequences of that disease while they happen to be at work.” 40 Kan.App.2d at 348.
We find that Huggins' claim does not meet the statutory definition of “injury” in K.S.A. 44–508(e) because the evidence fails to prove that Huggins' work activities caused a change in the physical structure of her body.
We further find that there is substantial competent evidence to support the Board's conclusion that “the greater weight of the credible evidence does not establish that claimant's work activities increased her risk of injury or otherwise contributed to her present condition to a greater degree than if she had not been so employed.”
We grant relief from agency actions if the action was based on a determination of fact “that is not supported by evidence that is substantial when viewed in light of the record as a whole.” K.S.A.2011 Supp. 77–621(c)(7). K.S.A.2011 Supp. 77–621(d) states:
“For purposes of this section, ‘in light of the record as a whole’ means 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.”
Our Supreme Court has defined substantial evidence as “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.” Redd v. Kansas Truck Center, 291 Kan. 176, 183–84, 239 P.3d 66 (2010).
The Board relied on the testimony of Drs. Pratt, Schurman, and Stein, which we find to be substantial competent evidence to support the Board's decision. There is no reason to discredit their testimonies, and we do not reweigh the evidence or reevaluate questions of credibility. There is substantial evidence to support the Board's finding that Huggins did not suffer an injury that arose out of her employment with Haysville.
Equal Protection Violation?
Finally, we turn to Huggins' argument that the Board's decision violated her constitutional right to the equal protection of the law and is contrary to our Supreme Court's holding in Stephenson v. Sugar Creek Packing, 250 Kan. 768, 830 P.2d 41 (1992). The Stephenson court determined that it was unfair discrimination to treat a repetitive injury different from a single trauma in workers compensation cases. It stated: “[The statute in question] permits workers suffering similar injuries caused by the same condition to be treated different. Such treatment is arbitrary discrimination and not classification.” 250 Kan. at 782.
The issue in Stephenson was the constitutionality of a workers compensation statute, which provided for repetitive use injuries to be calculated differently from injuries sustained during a single traumatic event. The Kansas Supreme Court found no rational basis for the discrimination and held that the statute violated the Equal Protection Clause of the United States Constitution. 250 Kan. at 780–82. The portion of the statute in question in Stephenson has since been repealed.
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”
On appeal, Huggins argues that the Board's decision to deny her benefits was based on the fact that Huggins' avascular necrosis was aggravated by repetitive lifting and was not an injury sustained in a single accident. We see the Board's decision differently. The Board denied Huggins compensation because it determined that her injuries did not arise out of and in the course of her employment at Haysville. As we discussed, the evidence before the Board established that Huggins' injury was one she would have experienced regardless of her work.
The Board did not discriminate against Huggins because she sustained a repetitive injury. It denied her compensation because she did not sustain an injury as defined by our workers compensation law. The Board's decision does not violate the Equal Protection Clause.
Affirmed.