Opinion
No. 110,538.
2014-10-17
Charles E. UITTS, Appellant, v. WHITAKER CONSTRUCTION, INC., and Travelers Casualty & Surety Co., Appellees.
Appeal from Workers Compensation Board.William L. Phalen and Crystal D. Marietta, of Pittsburg, for appellant.William L. Townsley, III, and Ali N. Marchant, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellees.
Appeal from Workers Compensation Board.
William L. Phalen and Crystal D. Marietta, of Pittsburg, for appellant. William L. Townsley, III, and Ali N. Marchant, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellees.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal of the denial of some workers compensation benefits from the Workers Compensation Appeals Board. The Board concluded, after weighing conflicting medical opinions, that Charles E. Uitts did not sustain a permanent injury to his low back when he was working. After reviewing the Board's opinion, we hold the Board's ruling is supported by substantial competent evidence and affirm.
Uitts unloaded tires.
Uitts began working for Whitaker Construction, Inc. in September 2002 to supplement his social security benefits. At the time of his injury, Uitts' job was feeding tires onto a conveyor belt for Monarch Cement in Humboldt, Kansas. The tires were brought in on a tractor-trailer and were layered at an angle, filling the trailer. Uitts would use a long bar to pull tires out of the semi trailer. Next, he would carry the tires to a conveyor belt. The tires weighed between 20 and 70 pounds. The distance Uitts carried these tires varied depending on whether the trailer was full. If the trailer was full, Uitts carried the tires about 15 feet. If the tires were located in the front of the trailer, Uitts carried the load around 53 feet. When Uitts carried the tires to the conveyor belt, he would drop them as opposed to lifting or throwing the tires. Uitts worked 8 hours per day as a tire feeder.
On June 13, 2006, Uitts was loading car and pickup tires onto the conveyor belt. When he was pulling tires off the top with the bar, Uitts felt a pain in his abdomen and his back. He tried to continue working for a bit, but his pain worsened. Due to the pain, Uitts was unable to perform his job anymore so he contacted the production manager. Uitts told the manager to contact Sandy Whitaker, the supervisor of Whitaker Construction, to get a replacement. Uitts reported the accident to Whitaker, and she sent him to the emergency room.
The doctor in the emergency room was Dr. Gordon Sipkens. Dr. Sipkens diagnosed Uitts with an umbilical hernia. Dr. Sipkens determined Uitts was in need of hernia surgery and referred him to his regular physician. Dr. Richard Hull performed Uitts' hernia surgery on June 21, 2006.
Uitts was scheduled to return to work on July 24, 2006. However, he never returned to work following the injury. There was a disagreement over whether Uitts was terminated due to the workers compensation claim or because he failed to contact Whitaker Construction following his injury.
The special administrative law judge found that Uitts sustained only a hernia injury and awarded him medical benefits and temporary total disability benefits, but no permanent disability benefits. Uitts was awarded temporary total disability compensation for the umbilical hernia injury he sustained in the course of his employment; this claim is not disputed. The parties dispute Uitts' claim that he also suffered an injury to his lower back. Uitts appealed to the Workers Compensation Appeals Board. The Board concluded that Uitts did not sustain any permanent injury to his lower back and he was entitled only to compensation set forth in K.S .A. 44–510d(a)(22),(23), and (b). Uitts appeals to this court.
In this appeal, Uitts contends the Board erred when it found that he did not sustain a permanent injury to his lower back when he was hurt on June 13, 2006. Moreover, he argues the Board erred as a matter of law when it based its findings of fact on the assumption that the court's independent medical examiner did not have all of his medical records. He seeks to reverse the Board's factual finding that he sustained only a hernia and not an injury to his back.
How we handle such questions.
The final orders of the Board are subject to review under the Kansas Judicial Review Act, K.S.A. 77–601 et seq. , as amended. See K.S.A.2013 Supp. 44–556(a). Our standard of review depends on the issue raised. See K.S.A.2013 Supp. 77–621.
The determination of whether an injury arose out of and in the course of employment is a question of fact. Scott v. Hughes, 294 Kan. 403, 415, 275 P.3d 890 (2012). An appellate court reviews a challenge to the Board's factual findings in light of the record as a whole to determine whether its findings are supported to the appropriate standard of proof by substantial evidence. See K.S.A.2013 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.2013 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 of fact from which the issue raised could be easily resolved. Saylor v. Westar Energy, Inc., 292 Kan. 610, 614, 256 P.3d 828 (2011).
Three physicians offered opinions in this case. Dr. Edward Prostic was retained by Uitts. Whitaker Construction and its insurance carrier, Travelers Casualty & Surety Co., hired Dr. John McMaster to examine Uitts. And Dr. Robert Eyster examined Uitts at the request of the special administrative law judge assigned to the case. Their opinions varied, and we will discuss them at the appropriate point in this opinion.
We review the Board's ruling.
In its decision, the Board agreed with the special administrative law judge and adopted his conclusions. The Board noted Uitts testified that he told the emergency room personnel about his back pain, but there was no reference to the low back pain in the emergency room records. Those records indicate that Uitts' chief complaint was the pain in his abdomen. Additionally, the “back/flank pain” description had been crossed out on the nursing form and only the abdomen was circled, indicating the location of the pain.
The Board reviewed Uitts' testimony regarding his prior low back pain problems. Uitts testified he had no low back pain or problems before June 13, 2006. But the Board was not convinced by this testimony. It continued with its inquiry and correctly identified the dates and the diagnoses for his previous back complaints. The Board found Uitts had a history of low back pain, which began in October 2003. In fact, on June 9, 2006, four days prior to Uitts' hernia, Uitts saw Dr. Walter complaining of neck and back pain. The Board found: “It is improbable claimant could have forgotten his lengthy history of low back and radicular symptoms.”
The Board also addressed the weight of the doctors' medical examinations and records. The Board determined:
“4. It was unclear at best whether Drs. Eyster and Prostic had access to the same history and medical documentation which was provided to Dr. McMaster. Certainly, Dr. Prostic was provided an inaccurate past history by claimant. In opining that claimant's accident served to aggravate claimant's preexisting degenerative disease, Dr. Eyster assumed claimant was asymptomatic before the accidental injury. That assumption has no validity based on the evidence in this record.”
“5. Under the circumstances of this claim, the opinions of Dr. McMaster are more credible and persuasive than the other medical opinions in evidence. Dr. McMaster testified claimant's low back pain was unrelated to the accident and was instead a consequence of claimant's preexisting lumbar degenerative disease. Dr. McMaster opined claimant sustained no permanent functional impairment associated with the accident for low back pain. Given the state of claimant's lumbar spine before the accident and his pre-injury low back and radicular symptoms, Dr. McMaster's opinions are provided more weight than those of Drs. Prostic or Eyster.”
Dr. Eyster, appointed by the special administrative law judge, provided a written report. In his report, Dr. Eyster indicated he reviewed medical records from Dr. Pat Do, Allen County Hospital, Dr. Hull, the Chanute Chiropractic Clinic, and Dr. Prostic. Dr. Eyster noted Uitts' chief complaint was his lower back pain and some inner thigh pain on the left leg.
Dr. Eyster also discussed Uitts' medical history, which includes degenerative disc disease. The x-rays and an MRI showed degenerative changes of the lumbar spine, particularly at L5–S1. He pointed out that Uitts complained of lower back pain in 2003 and 2005. He noted Uitts' history of treatment by an orthopedic surgeon who recommended an epidural to relieve sciatic radicular pain. Dr. Eyster also noted that Uitts denied having much back pain prior to this injury but does admit that in 2003 and 2005, around October or November of those years, he had some episodes of lower back irritation. Uitts reported that he had no other significant treatment to the lower back other than the epidural and had not had pain since the treatment.
Dr. Eyster concluded:
“The patient in my opinion is at maximum medical. I believe that he has a five percent impairment rating to the lower back due to the injury. He has a preexistent degenerative condition but was not symptomatic prior to the injury and therefore I do not believe that it is the cause of the reason for impairment.”
Dr. Eyster placed numerous restrictions on Uitts and opined that Uitts could continue to work as long as he abided by the restrictions.
Dr. Edward Prostic was hired by Uitts to perform an examination regarding Uitts' work-related injury. Dr. Prostic was deposed twice. In the first deposition, it was clear that Dr. Prostic was not provided with Uitts' complete medical history. Dr. Prostic stated that if he was provided an inaccurate medical history, this could impact his opinion. Dr. Prostic testified that Uitts denied previous difficulties with his low back. In addition to the information given, Dr. Prostic reviewed records from Dr. Do and Allen County Hospital.
Dr. Prostic was not provided with any of the following: prior Allen County Hospital records regarding Uitts' back surgery; records from Dr. Falk who performed prior epidurals to Uitts' low back; Dr. William Bailey, the orthopedic surgeon who treated Uitts in 2005; records from the chiropractor; prior MRIs or other prior diagnostic tests; or any medical records that referenced any injury to Uitts' back occurring in 2006, before the accident.
However, Dr. Prostic stated that the questions on cross-examination regarding Uitts' medical history did not change any of his opinions. It was Dr. Prostic's opinion that Uitts' low back injury was caused or contributed to by the work-related accident and that Uitts “sustained 10 percent permanent partial impairment of the body as a whole on a functional basis.”
Dr. Prostic was provided the missing medical records prior to his second deposition. Dr. Prostic again stated it was his opinion that Uitts has a 10 percent permanent partial impairment, which is over and above any preexisting condition. When Dr. Prostic first met with Uitts he believed Uitts had preexisting degenerative disc disease. Dr. Prostic said the rating he assigned to Uitts was for the worsening of the disease and increased loss of motion caused by the accident. The complete medical history did not change Dr. Prostic's opinion; instead, he said it reinforced his original opinion.
Whittaker Construction and Travelers hired Dr. McMaster to perform an independent medical evaluation. In his deposition, Dr. McMaster identified the medical records he reviewed prior to his evaluation. He was provided with a complete medical history. The medical records included reports from Drs. Eyster and Prostic.
Dr. McMaster opined that there was no causal relationship between Uitts' chronic low back pain and the work-related incident. Dr. McMaster stated he did not believe any restrictions should be placed on Uitts with respect to the umbilical hernia injury and an alleged back injury on the same date. Dr. McMaster said any task loss or work restrictions that should be placed on Uitts have more to do with the individual, which includes his age and age-related changes.
We note that one Board member dissented. The dissenter offered:
“Despite the fact that claimant had a hernia and lumbar disk disease, Dr. McMaster opined claimant had no permanent impairment, no work restrictions and no task loss. This Board Member might have found Dr. McMaster's opinions credible had he determined claimant did not aggravate or exacerbate his preexisting lumbar degenerative disk disease, but then opined claimant had some permanent restrictions and task loss. It is difficult to imagine how an 82–year–old man with a history of lumbar degenerative disk disease would have neither permanent restrictions nor task loss.”
In the dissenter's view, more weight should have been given to the opinions of the doctor appointed by the special administrative law judge rather than the doctors hired by the parties.
We offer our analysis.
This case is similar to McManis v. Superior Industries, No. 109,667, 2014 WL 1302631 (Kan.App.2014) (unpublished opinion), petition for rev. pending. Like Uitts, McManis argued he should have been awarded benefits for both a hernia injury and a back injury sustained at the same time. McManis had a back injury prior to the work-related incident. When McManis sought treatment for his hernia, there was no evidence of any treatment to his back. McManis claimed the Board arbitrarily disregarded uncontroverted medical testimony when it found the opinions of two doctors untrustworthy. In its analysis, the panel noted:
“As stated in Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 380, 576 P.2d 1036 (1978):
‘Uncontroverted evidence which is not improbable or unreasonable cannot be disregarded by [the trier of fact] in a workers' compensation case unless it is shown to be untrustworthy; and such uncontradicted evidence should ordinarily be regarded as conclusive. [Citations omitted.]’
But the Board was not obligated to accept the opinions of [the doctors] if those opinions were untrustworthy.” 2014 WL 1302631, at *4. The McManis panel held that there was sufficient evidence to support the Board's determination regarding the doctors. Additionally, the panel held that the Board did not err when it concluded McManis failed to satisfy his burden of proving a compensable back injury. 2014 WL 1302631, at *4. This case is the same.
The medical records support the Board's finding that Uitts suffered from back pain prior to the date of his hernia. Although Uitts told Dr. Prostic that he had no low back pain or problems before his hernia, the medical records show he was treated for such problems beginning in October 2003 and into 2005. The emergency room records have no indication of back problems, just pain associated with the hernia. Uitts never told Sandra Whitaker, his work supervisor, that he had back pain or a back injury. Indeed, Dr. Prostic was initially provided with incomplete medical records.
It appears that the Board concluded that Drs. Prostic and Eyster were given incomplete medical histories by Uitts. We cannot conclude otherwise. Further, Dr. McMaster's opinion supports the Board's decision. We will not reweigh the evidence because we are prohibited by law from doing so. “[T]he court shall not reweigh the evidence or engage in de novo review.” K.S.A.2013 Supp. 77–621(d).
Given our standard of review and the evidence in the record, we conclude there was substantial competent evidence for the Board to give more weight to Dr. McMaster in its overall conclusion that Uitts did not sustain a permanent injury to his low back on June 13,2006.
Finally, Uitts also argues the doctrines of equitable estoppel and quasi-estoppel are applicable here. He contends he had the right to rely upon Whitaker Construction to furnish Dr. Eyster with all of the medical records but it did not do so and it was silent about that for 2 years. Therefore, in his view, Whitaker Construction should be barred from taking a contrary position in this case.
This issue was first raised on appeal. Generally, issues not raised below cannot be raised on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). We know of no exception to this general rule that exists in Uitts' case. Even so, we cannot see how this doctrine helps Uitts, because substantial evidence supports the Board's decision.
The Board here simply sorted through conflicting medical testimony and evidence and gave its conclusion. We see no reason to reverse it.
Affirmed.