Opinion
No. 107,101.
2012-08-10
William J. MIKESELL, Appellant, v. KEIM TS, INC. and Liberty Mutual Insurance Co., Appellees.
Appeal from Workers Compensation Board. George H. Pearson III, of Topeka, for appellant. Jason M. Lloyd, of The Law Offices of Stephanie Warmund, of Overland Park, for appellee.
Appeal from Workers Compensation Board.
George H. Pearson III, of Topeka, for appellant. Jason M. Lloyd, of The Law Offices of Stephanie Warmund, of Overland Park, for appellee.
Before MALONE, P.J., MARQUARDT, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
William J. Mikesell appeals the decision of the Workers Compensation Board (Board) modifying the administrative law judge's (ALJ) award for permanent partial general disability. Mikesell argues that the Board erred by considering the independent physician's report without supporting testimony. He also argues that the Board erred by interpreting the independent physician's opinion that Mikesell had no work restrictions to mean that he had no task loss. We agree with Mikesell's latter argument, and we reverse and remand the Board's decision.
Mikesell worked for Keim TS, Inc. (Keim) as an over-the-road truck driver. As part of his job duties, Mikesell was required to secure a tarp over the bed of a flat-bed truck and then remove the tarp and unload the contents of the truck upon delivery. On October 23, 2009, Mikesell was removing a 100–pound tarp when he injured his neck, back, and right shoulder. He initially received medical treatment from Dr. Christian Tramp, who diagnosed Mikesell with a cervical strain or sprain. An MRI showed a right central disc herniation at C5–6 and a protrusion at C6–7. Mikesell was off work for approximately 4 weeks while receiving conservative treatment for his injury. He returned to light-duty work and was eventually released on December 9, 2009, to return to full-time work performing his same job. Mikesell filed a claim for compensation, initially seeking an award only for functional impairment and not work disability.
On July 17, 2010, Dr. P. Brent Koprivica examined Mikesell. Koprivica diagnosed Mikesell with cervical radiculopathy due to persistent complaints of neck and right upper extremity intermittent radicular symptoms. Koprivica opined Mikesell had a 15 percent whole body functional impairment. Koprivica did not believe the issue of permanent partial disability applied at that point because Mikesell was accommodating his impairment and earning a comparable wage.
On October 14, 2010, the ALJ ordered an independent medical examination (IME) to be performed by Dr. Edward Prostic. Prostic examined Mikesell on November 19, 2010, and found Mikesell's symptoms were consistent with cervical sprain and strain. Prostic believed that Mikesell could be in the process of developing rotator cuff tendinopathy of the right shoulder but concluded he was at maximum medical improvement and no medical treatment was necessary. Prostic rated Mikesell as having a 5 percent functional impairment of the body as a whole. Prostic's report indicated that “[n]o work restrictions are necessary at this time.”
On February 11, 2011, Mikesell resigned his job because the tarp work aggravated his neck pain, and he believed he had a new job with another company that would be less physically demanding and require fewer hours. As a result, Mikesell sought an award for permanent partial general disability. On February 21, 2011, Richard Santner, a vocational rehabilitation counselor, conducted a telephone interview of Mikesell in order to compile a task list for the 15–year period preceding the October 23, 2009, work injury.
On April 15, 2011, Mikesell's attorney asked Koprivica to reevaluate Mikesell and render an opinion regarding whether permanent work restrictions would be appropriate as well as an opinion on task loss. Koprivica imposed permanent work restrictions on Mikesell, such as limitations on lifting and repetitive reaching overhead. Koprivica reviewed the list of Mikesell's former work tasks prepared by Santner and concluded Mikesell could no longer perform 10 of the 23 tasks for a 43 percent task loss.
Before the ALJ, the parties stipulated to Mikesell's average weekly wage at the time he ended his employment with Keim. Mikesell had obtained employment with another trucking company, and the parties stipulated that he had sustained a 34 percent wage loss. The ALJ averaged the functional impairment rating of both Koprivica and Prostic to give Mikesell a functional impairment of 10 percent to the body as a whole. Regarding task loss, the ALJ found Koprivica was the only physician to determine task loss, at 43 percent, which gave Mikesell a permanent partial general disability of 38.50 percent. The ALJ made an award of compensation consistent with these findings.
Keim and its insurance carrier sought review from the Board. Keim disputed the award of permanent partial general disability, specifically the ALJ's determination that Koprivica was the only physician to find a percentage of task loss. Keim urged the Board to find that Prostic's November 19, 2010, finding that Mikesell had no work restrictions equated to a finding that there was no task loss.
The Board agreed with Keim. The Board noted that the ALJ's order referring Mikesell for an IME specifically requested that Prostic impose restrictions as appropriate and offer an opinion regarding task loss, if any. The Board found that Prostic did not impose any restrictions and, as a result, did not offer a task loss opinion. The Board gave the following reasoning to support its determination of task loss:
“A task loss is determined by a physician applying restrictions to the injured worker which the doctor then uses to determine which physical tasks (from a list of tasks the injured worker performed in the 15 years preceding the accident) the injured worker can still perform. It goes without saying that if there are no physical restrictions applied, then the injured worker can still perform the previous physical job tasks and has no task loss. Dr. Prostic was specifically asked to address any potential task loss Mikesell suffered but did not because he did not impose any permanent restrictions. Simply stated, Dr. Prostic's report established Mikesell had a 0 percent task loss.
“The fact that Mikesell continued working for respondent and then applied for an ultimately found another truck driving job supports Dr. Prostic's opinion. However, the fact that continued work for respondent increased Mikesell's pain and led him to seek less physically demanding employment supports Dr. Koprivica's opinion. Affording some weight to both, the Board will average the task loss opinions and finds Mikesell has suffered a 21.5 percent task loss.”
The Board recalculated Mikesell's award for permanent partial general disability based on this determination. Mikesell timely appealed the Board's decision.
Mikesell first claims the Board erred by considering Prostic's report without supporting testimony. Mikesell argues that under K.S .A. 44–519, no physician's report shall be considered as competent evidence unless the parties stipulate to the report or the report is later supported by testimony of the physician. Mikesell further asserts that K.S.A. 44–510e(a) limits consideration of an IME to an opinion of functional impairment and, thus, the Board's consideration of Prostic's opinion on task loss was erroneous.
Workers compensation appeals are subject to review under the Kansas Judicial Review Act as set out in K.S.A.2011 Supp. 77–621. K.S.A.2010 Supp. 44–556(a). As applicable to Mikesell's statutory arguments, this court can grant relief if the Board has erroneously interpreted or applied the law. K.S.A.2011 Supp. 77–621(c)(4). Appellate courts have unlimited review of questions involving the interpretation or construction of a statute and owe “no significant deference” to the agency's interpretation or construction. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010).
Mikesell's arguments require examination of the following statutes concerning medical opinions in workers compensation cases. K.S.A. 44–519 states in pertinent part:
“no report of any examination of any employee by a health care provider ... shall be competent evidence in any proceeding for the determining or collection of compensation unless supported by the testimony of such health care provider, if this testimony is admissible, and shall not be competent evidence in any case where testimony of such health care provider is not admissible.”
In contrast, K.S.A. 44–510e(a) allows consideration of an IME report under the following circumstances:
“If the employer and the employee are unable to agree upon the employee's functional impairment and if at least two medical opinions based on competent medical evidence disagree as to the percentage of functional impairment, such matter may be referred by the administrative law judge to an independent health care provider who shall be selected by the administrative law judge from a list of health care providers maintained by the director. The health care provider selected by the director pursuant to this section shall issue an opinion regarding the employee's functional impairment which shall be considered by the administrative law judge in making the final determination.”
According to Mikesell, the Court of Appeals in Sims v. Frito–Lay, Inc., 23 Kan.App.2d 591, 933 P.2d 161 (1997), concluded the plain language of K.S.A. 44–510e(a) limits consideration of an independent health care provider's opinion to issues of functional impairment. Mikesell also cites Roberts v. J .C. Penney Co., 263 Kan. 270, 281, 949 P.2d 613 (1997), where it stated the requirement of K.SA. 44–519 is preserved in K.A.R. 51–3–5a, which states a neutral physician's report shall not be considered in the ALJ's final award unless the parties stipulate to the report or the report is later supported by the testimony of the physician making the report.
Keim relies on K.S.A. 44–516 and the administrative regulation implementing that statute, K.A.R. 51–9–6 (“If a neutral physician is appointed, the written report of that neutral physician shall be made a part of the record of hearing. Either party may cross examine each neutral physician so employed.”). Keim argues that nothing prevented the ALJ and the Board from considering Prostic's opinion in full. Furthermore, Keim points out the ALJ ordered an IME of Mikesell under K.S.A. 44–510e(a) andK.S.A. 44–516, and the ALJ specifically requested Prostic to provide an opinion on impairment, work restrictions, and task loss.
K.S.A. 44–516 states in full:
“In case of a dispute as to the injury, the director, in the director's discretion, or upon request of either party, may employ one or more neutral health care providers, not exceeding three in number, who shall be of good standing and ability. The health care providers shall make such examinations of the injured employee as the director may direct. The report of any such health care provider shall be considered by the administrative law judge in making the final determination.”
In Galloway v. U.S.D. No. 497, No. 102,810, 2010 WL 2978084 (Kan.App.2010) (unpublished opinion), the ALJ ordered an IME asking the physician to render an opinion regarding (1) what, if any, additional medical treatment was necessary for the claimant, and (2) whether claimant's work activities caused her current symptoms or whether the symptoms were in whole or in part from her work with a subsequent employer. The order further stated that the claimant was being referred for an IME and recommendations pursuant K.S.A. 44–510e(a) and/or K.S.A. 44–516. 2010 WL 2978084, * 1. The ALJ adopted the independent physician's opinion that the claimant had a 25 percent functional impairment rating to her right upper extremity. The Board found that the ALJ did not request that the independent physician address the question of permanent impairment and, thus, the physician's opinion could not be considered. 2010 WL 2978084, * 2. On appeal, this court found the Board's decision was arbitrary and capricious because a plain reading of the ALJ's order showed that the ALJ specifically requested the physician to provide a disability rating. This court further noted that the physician, by providing the disability rating, clearly understood the language in the ALJ's order to include a request for disability rating, and language in the ALJ's award indicated the ALJ intended the physician to address the functional impairment issue. 2010 WL 2978084, *4.
We agree with Keim that K.S.A 44–516 controls. The plain language of K.S.A. 44–510e(a) appears to limit the independent medical examiner's opinion to issues of functional impairment. But there is no such limitation in K.S.A. 44–516. That statute specifies the neutral health care provider “shall make such examinations of the injured employee as the director may direct. The report of any such health care provider shall be considered by the administrative law judge in making the final determination.” (Emphasis added.) Also, caselaw suggests the ALJ is free to request that an independent medical examiner address issues beyond the claimant's functional impairment, and the ALJ may consider the physician's report in making a determination regardless of whether the parties choose to depose the physician. Thus, we conclude the Board did not err by considering Prostic's report without supporting testimony.
Next, Mikesell contends that the Board acted arbitrarily and capriciously by interpreting Prostic's opinion that Mikesell had no work restrictions to mean that he had no task loss. According to Mikesell, at the time of Prostic's examination, no work restrictions were necessary because he had returned to work performing the same job. Mikesell suggests Prostic could not have meant that restrictions would never be necessary because Prostic added the proviso “at this time.” Mikesell surmises that Prostic might have changed his opinion had he known about Mikesell's increased pain while performing his job with Keim. More importantly, Mikesell points out that Prostic never saw the task list compiled by Santner and, thus, he did not know what tasks Mikesell had performed in the 15 years prior to the injury.
Mikesell can obtain relief if the Board's action is otherwise unreasonable, arbitrary or capricious. K.S.A.2011 Supp. 77–621(c)(8). A challenge under K.S.A.2011 Supp. 77–621(c)(8) attacks the quality of the agency's reasoning. See Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 569, 232 P.3d 856 (2010) (stating that agency may have acted arbitrarily when it fails to properly consider factors courts require it to consider to guide its discretionary decision). Also, Mikesell's argument involves interpretation of task loss as the term is defined in K.S.A. 44–510e(a). Appellate courts have unlimited review of questions involving the interpretation of a statute. Ft. Hays St. Univ., 290 Kan. at 457.
To the extent Mikesell's arguments concern sufficiency of the evidence to support the Board's findings, he is entitled to relief if the Board's action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof 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) statutorily defines “in light of the record as a whole” as:
“[T]he 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.”
In interpreting Prostic's opinion that Mikesell had no work restrictions to mean that he had no task loss, the Board determined that if an employee has no work restrictions, it can be assumed there is no task loss regardless of what variety of work tasks were performed over the past 15 years in any other employment. The Board's reasoning would be correct if the recent legislative changes were applicable in this case. K.S.A.2011 Supp. 44–510e(a)(2)(D) changes the consideration of the employee's former work tasks from the past 15 years to the past 5 years and further states “[t]he permanent restrictions imposed by a licensed physician as a result of the work injury shall be used to determine those work tasks which the employee has lost the ability to perform.”
But the version of K.S.A. 44–510e(a) applicable to Mikesell's case states that task loss is “the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident.” This is the proof necessary to establish Mikesell's task loss. See Gustin v. Payless ShoeSource, Inc., 46 Kan.App.2d 87, 95, 257 P.3d 1277 (2011). Furthermore, the determination of the percent of task loss is critical in the determination of whether the claimant receives work disability benefits. See K.S.A. 44–510e(a); Stephen v. Phillips County, 38 Kan.App.2d 988, 990, 174 P.3d 452,rev. denied 286 Kan. 1186 (2008) (work-disability calculation is based on two factors-the percent loss of the ability to perform work-related tasks and the employee's actual wage loss).
Here, Prostic performed a physical examination of Mikesell on November 19, 2010. On that date, Mikesell was still employed at Keim earning a comparable wage and he was not even making a claim for work disability. Prostic's report indicated that “[n]o work restrictions are necessary at this time.” However, Prostic never reviewed the task list prepared by Santner, the vocational rehabilitation counselor, for the 15–year period preceding the work injury. Koprivica was the only physician who provided an opinion on task loss in accordance with the version of K.S.A. 44–510e(a) applicable in Mikesell's case. Koprivica reviewed the list of Mikesell's former work tasks prepared by Santner and concluded he could no longer perform 10 of the 23 tasks for a 43 percent task loss.
Pursuant to the plain and unambiguous language of K.S.A. 44–510e(a) applicable in Mikesell's case, Prostic was required to specifically consider a list of tasks Mikesell performed over the past 15 years in prior employment before giving a competent opinion on task loss. Prostic failed to do so. Thus, Prostic's opinion on November 19, 2010, that Mikesell had no work restrictions at that time cannot be interpreted to mean that Mikesell had no task loss as the term was defined in the applicable statute. See Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607–08, 214 P.3d 676 (2009) (“When a workers compensation statute is plain and unambiguous, this court must give effect to its express language rather than determine what the law should or should not be.”).
In summary, the Board did not err by considering Prostic's report without supporting testimony. But we agree with Mikesell that the Board erred by interpreting Prostic's opinion that Mikesell had no work restrictions to mean that he had no task loss. Eliminating Prostic's opinion leaves Koprivica's opinion on task loss as the only viable opinion on the matter. Stated differently, the Board's finding on Mikesell's task is not supported by substantial competent evidence when viewed in light of the record as a whole. See K.S.A.2011 Supp. 77–621(d). The ALJ was correct in determining Mikesell's permanent partial general disability at 38.50 percent based upon Koprivica's opinion of a 43 percent task loss. Accordingly, the Board's decision is reversed and remanded with directions to reinstate the ALJ's award for permanent partial general disability.
Reversed and remanded with directions.