Opinion
No. 107,105.
2012-08-17
Linda S. MILLER, Appellee, v. CATHOLIC CHARITY COMMUNITY SERVICE and Virginia Surety, Co., Inc., Appellants.
Appeal from Workers Compensation Board. Robert J. Wonnell, Douglas M. Greenwald, and Lara Q. Plaisance, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellants. Michael R. Lawless, of Michael R. Lawless, P.A., of Lenexa, for appellee.
Appeal from Workers Compensation Board.
Robert J. Wonnell, Douglas M. Greenwald, and Lara Q. Plaisance, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellants. Michael R. Lawless, of Michael R. Lawless, P.A., of Lenexa, for appellee.
Before MALONE, P.J., MARQUARDT, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Catholic Charity Community Service (Catholic Charity) and its insurance carrier, Virginia Surety Co., Inc. (hereinafter referred to jointly as the respondent), appeal from a final order of the Workers Compensation Board (Board), which granted the claimant Linda Miller permanent partial disability benefits. Two issues are raised on appeal: (1) Did the Board err in its finding that the claimant met with accidental injury arising out of and in the course of employment from an accident occurring on May 23, 2007; and (2) did the Board err in its determination that the claimant was entitled to compensation resulting from an aggravation of a preexisting condition? We affirm the Board's decision.
In September 2005, Miller began employment with Catholic Charity as a personal care attendant. Her primary work involved helping clients with bathing and personal care. Miller was paid a trip fee to cover her costs driving to clients' homes and a set rate per visit. In 2007, she was working an average of 41 hours a week.
On May 23, 2007, Miller had finished with her first client of the day and was driving to her next client when she was involved in a vehicle accident. She was stopped at a three-way intersection waiting for the light to change, when she was struck from behind by another vehicle. Miller filled out an accident report for her employer about a week later in which she reported feeling immediate pain in her lower back and left shoulder after being hit. Despite the pain, Miller went on to the next client's house.
Miller realized while helping the client get in and out of the shower that her lower back and left shoulder area were hurting. After finishing with that client, she drove herself to KU Medical Center to get the area checked. The attending physician noted that Miller had been involved in a minor vehicle accident which resulted in lumbar strain and left shoulder pain. She was given muscle relaxants and anti-inflammatory medication for her pain. Miller had the prescriptions refilled by her personal physician at Swope Health Services. She also elected to receive chiropractic treatments and manipulations from Dr. Shane Bisson between June 1, 2007, and July 17, 2007.
Miller's employer, through workers compensation, authorized treatment with Dr. Kimberly Cater and a physical therapist at the same office. Dr. Cater ordered an x-ray on June 1, 2007, for Miller's spine and left shoulder. The spine x-ray revealed normal alignment, no fractures with some marginal bone spurs at several locations. The x-ray report says “Impression: Degenerative changes. No acute abnormality.” The x-ray of the left shoulder showed no apparent fracture, dislocation, or other bone or joint abnormality. Miller received heat therapy, ice therapy, electrical stimulation therapy, and physical therapy for approximately 6 weeks.
Miller testified that she thought she was getting better but still experienced pain radiating from her lower back to her left foot. Dr. Cater referred Miller to Dr. Jennifer Finley, who specialized in physical medicine and rehabilitation. Dr. Finley testified that she spent 99% of her time treating patients. Dr. Finley first examined Miller on July 25, 2007, and noted that she complained of shoulder pain, numbness in her fingers, low-back pain, and leg numbness after sitting for approximately 30 minutes. Dr. Finley referred Miller for more physical therapy, therapeutic injections, and recommended she continue with the light duty restrictions imposed by Dr. Cater.
Miller continued to receive treatment from Dr. Finley from August 2007 through October 2007. At the last visit on October 15, 2007, Dr. Finley noted that Miller had improved overall but still had left shoulder pain, osteoarthritis in her left shoulder, and pain in her shoulder muscle. Dr. Finley released Miller with a 0% whole person impairment rating. She released Miller without restrictions on her ability to work.
At her deposition, Dr. Finley testified that Miller did not suffer any permanent aggravation of a preexisting condition as a result of the motor vehicle accident. She also agreed that any x-rays showing degenerative changes and spurring would not be related to the accident because the condition couldn't have occurred that quickly. Dr. Finley said that it takes a long time for arthritic and degenerative changes to show on x-rays. Dr. Finley said the accident did not cause any increased disability for Miller. At the deposition, the attorney read the definition of injury from the Kansas Workers Compensation Act (Act) as “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.” See K.S.A. 44–508(e). The attorney then asked Dr. Finley if Miller had such an injury as defined in the Act. Dr. Finley said Miller did not have an injury as defined but said the definition was “vague [and] bizarre.” Dr. Finley also testified that Miller did not require any future medical treatment as a result of the accident but did need to continue working on her posture, body mechanics, and exercise. Dr. Finley also stated that during the course of medical treatment, Miller showed test manipulation and symptom magnification to both Dr. Finley and the physical therapist. She said Miller refused to appropriately participate in the exercises and gave little effort in the therapy.
During her treatment with Dr. Finley, Miller worked with one patient who required two visits a day and very little lifting. After Dr. Finley released Miller in October 2007 without restrictions on her work abilities, she continued to work with that one client until the end of September 2007. Not long after that, she terminated her employment with Catholic Charity because she was having difficulty performing her job and she felt it wasn't safe for her to do that kind of work. Since September 2007, Miller did not look for any other employment because she was not able to do the work she was licensed to do. Miller testified that she didn't look for employment outside her field because she didn't think there was any type of work that could accommodate her but that she also had not actually looked for such employment.
Miller filed an application for hearing on October 8, 2008. The administrative law judge (ALJ) appointed Dr. Terrence Pratt, as a neutral physician, to evaluate her cervical spine, low back, and left shoulder and provide treatment recommendations. Dr. Pratt reviewed Miller's medical records and conducted an independent examination in March 2009. In Dr. Pratt's report to the ALJ, he noted that Miller complained of pain in her neck and upper arm but did not have any specific weakness or numbness. She also complained of stabbing pain in her mid to lower back with numbness in her lower extremities while sitting and weakness in her legs with difficulty in ascending stairs. Dr. Pratt diagnosed Miller with left-shoulder syndrome with acromioclavicular arthrosis and rotator cuff tendinopathy. He also said Miller had low-back pain with degenerative disease, multilevel, and cervicothoracic complaints with reported history of myofascial pain. Dr. Pratt recommended an MRI of the cervical spine and lumbosacral region but said he would not recommend an MRI for the shoulder complaints because she had inappropriate responses during the examination. Dr. Pratt filed an addendum to his original report after receiving the MRI results. He said the MRI showed a focal protrusion of disc material on the right at both C4–5 and C6–7 which was causing encroachment on the right neural foramina and impression on the anterior right lateral aspect of the thecal sac. He also noted marked left neural foraminal encroachment at the L5–S1 level and moderate bilateral neural foraminal encroachment at the L4–5 level. He recommended an opinion with a surgical specialist and suggested epidural injections.
On July 28, 2010, Dr. Jeffrey MacMillan, an orthopedic surgeon and specialist in spine surgery, examined Miller and testified at the request of the respondent. After examining Miller and her x-rays, Dr. MacMillan said Miller showed some minimal degenerative or arthritic changes in her neck. The x-rays of her shoulder showed mild degenerative changes of her acromial clavicular joint in her low back. She also had some arthritic facet changes, mild scoliosis, and possible right thoracic scoliosis. Dr. MacMillan assessed a 5% impairment to her cervical spine and lumbar spine with a 10% impairment of the left upper extremity for the carpal and cubital tunnel syndrome. Dr. MacMillan's opinion was that Miller's impairment was not related to the motor vehicle accident. He said they were more related to age, gender, and body habitus. He said the x-rays for the cervical and lumbar spine were age-related degenerative changes and there was no evidence of injury on any of the x-rays. The other impairments, the carpal and cubital tunnel syndrome, were a result of being overweight, age, and gender-not related to the accident. Dr. MacMillan also opined that Miller did not suffer any permanent aggravation of a preexisting condition or increased disability as a result of the car accident.
Miller retained Dr. John Pazell, an orthopedic surgeon, to perform an exam and give his opinion regarding her condition. Dr. Pazell's practice consisted almost entirely of doing medical evaluations for attorneys and insurance companies. He testified that he had not performed any surgeries since 1998. Dr. Pazell examined Miller on December 9, 2009, and diagnosed her with C6–C7, C4–C5 cervical abnormality, cervical lesion; and L4–5 and L5–S1 lumbar spine lesion, which he attributed to the car accident. He did not find any structural abnormality in her shoulder. Dr. Pazell assessed a combined whole body permanent impairment of 24%.
On cross-examination, Dr. Pazell acknowledged that any x-rays or MRJ's taken around the time of the accident showing degenerative changes or spurring would not have been a result of the accident because those changes couldn't have occurred that quickly. Dr. Pazell also acknowledged that he could not accurately assess the level of preaccident impairment because he did not know whether there was any increase in impairment from before to after the car accident.
The ALJ entered an award in Miller's favor on July 28, 2011. The ALJ found that “claimant has met her burden of proof that she did sustain personal injury on the date alleged and this is well documented by the various medical professionals who evaluated and treated claimant following the motor vehicle accident.” The ALJ found the injury did arise out of and in the course of Miller's employment with Catholic Charity. The ALJ further found that although the testimony of Drs. MacMillan and Pazell was conflicting, Miller's functional impairment was a result of the injury. “Claimant may have had preexisting conditions that clearly were not work related, but those conditions were asymptomatic prior to the injury,” The ALJ found that the accident “either caused injury or permanently aggravated a pre-existing condition resulting in impairment to the cervical spine of 10% to the body as a whole, 7.5% to the body as a whole as a result of the lumbar spine and 5% to the left upper extremity.” The ALJ found that Miller did not meet her burden of proof regarding her task loss because the only opinion was expressed by Dr. Pazell based on a vocational analysis by another professional. The ALJ assessed Miller's work disability at 50%.
The respondent timely sought review by the Board and raised the issue of whether Miller met with accidental injury arising out of and in the course of her employment and whether Miller should be barred from receiving any compensation under the Act pursuant to K.S .A. 44–501(a).
The Board affirmed the ALJ's award on November 16, 2011. The Board found Miller's testimony to be credible and consistent and also found the testimony of Dr. Pazell to be more credible than that of Dr. MacMillan. The order pointed out that
“Dr. MacMillan appeared to have formed his conclusions based upon an inaccurate understanding of claimant's treatment history and, in particular, the onset of her neck and back complaints. When this error was pointed out to him at his deposition, Dr. MacMillan agreed hypothetically that the mechanism of injury with simultaneous neck and back symptoms could aggravate a degenerative disc condition but he would not change his opinions with respect to the claimant in this case. His explanation is not persuasive.”
The Board found Dr. Pazell's conclusions were supported by the independent medical examiner Dr. Pratt and the results of the MRI testing. It found that Miller's degenerative disc disease preexisted the accident but that she was able to work without restrictions or accommodations before the accident. It found there was no evidence of preexisting disability or impairment and adopted the findings and conclusions of the ALJ. From the Board's order, the respondent has filed a timely notice of appeal.
Claimant did meet with accidental injury arising out of and in the course of her employment
The respondent contends that the Board erred in its decision because Miller failed to meet her burden of proof that she suffered an actual “injury” as defined in K.S.A. 44–508(e). The respondent argues that because the accident did not cause any lesion or change to the physical structure of Miller's body, she did not suffer an injury as defined under the statutory language.
“ ‘Burden of proof means the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party's position on an issue is more probably true than not true on the basis of the whole record.” K.S.A. 44–508(g). The claimant has the burden of proof to establish his or her right to an award of compensation under the Act and to prove the various conditions on which the claimant's right depends. K.S.A. 44–501(a). “Once the claimant has met his or her burden of proving a right to compensation, the employer has the burden of proving relief from that liability through [a statutory defense or exception].” Foos v. Terminix, 277 Kan. 687, 693, 89 P.3d 546 (2004).
Any findings of fact made by the Board in its decision are viewed 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), (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 reasonably resolved.” Redd v. 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).
At the time of Miller's accident, K.S.A. 44–508(e) defined injury as:
“(e) ‘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 be 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.”
An accidental injury is compensable under the Act even when the accident only aggravates a preexisting condition. See Odell v. Unified School District, 206 Kan. 752, 758, 481 P.2d 974 (1971). The applicable test is whether the accident aggravates or accelerates the condition, not whether the accident caused the condition. Woodward v. Beech Aircraft Corp., 24 Kan.App.2d 510, 514, 949 P.2d 1149 (1997).
The respondent argues that there was a lack of credible, substantial competent evidence that Miller sustained any lesion or change in the physical structure of her body as a result of the car accident. It is not required under the statute and caselaw cited above that Miller show a visible lesion or change in the physical structure of her body. The statute states that “[i]t is not essential that such lesion or change be of such character as to present external or visible signs of its existence,” and the caselaw clearly states that an “injury” can result from the aggravation of a preexisting condition. See K.S.A. 44–508(e).
The respondent also argues that the only plausible conclusion from the evidence is that any current impairment or disability that Miller experiences is not a result of the car accident, but rather was caused by the natural aging process and normal activities of a person living with degenerative disc disease.
Again, both sides presented evidence in favor of their position. Dr. Finley testified that Miller did not have an “injury” as defined in the statute but also stated that she found the definition “vague [and] bizarre.” Dr. Finley also testified that Miller's back pain was more likely attributed to her preexisting condition, general health, and posture habits. The respondent's other expert, Dr. MacMillan, testified that Miller did not suffer an injury as defined in the statute and that the impairment was from her age, gender, and body habitus. But as the Board points out, Dr. MacMillan also seemed confused about Miller's treatment and pain history which affected his credibility.
It is important to note that although the doctors retained by the respondent testified that they did not believe Miller's back condition to be an injury, they did not present substantial evidence that her condition was a result of the normal aging process or her day-to-day activities. None of the doctor's testified as to what specific normal day-to-day activities would lead to Miller's condition. They testified that her weight, age, and poor posture could lead to degenerative disc disease but presented no definitive evidence that the accident did not at least aggravate the condition.
The only case the respondent cites to for support is Bryant v. Midwest Staff Solutions, Inc., No. 99,913, 2009 WL 744160 (Kan.App .2009) (unpublished opinion), rev'd292 Kan. 585, 257 P.3d 255 (2011). In Bryant, a panel of this court found the Board lacked substantial competent evidence to conclude that Bryant suffered an injury as a result of a work-related hazard. Bryant had previously injured his back outside of work and subsequently aggravated it by stooping and leaning over at the work site. The panel further found that stooping and leaning were normal activities of daily living, and no evidence was presented that any hazards particular to the claimant's job caused the aggravation of the injury. 2009 WL 744160, at *4–5.
The respondent fails to recognize that the Kansas Supreme Court later overturned the panel's decision in Bryant. The Kansas Supreme Court disagreed with this court and found that Bryant was not engaged in normal everyday activities when he was reaching for his tool belt or bending down to perform a welding task-both activities arising out of his employment. It overturned this court and upheld the Board's decision. Bryant, 292 Kan. at 596–97.
The Board's finding that Miller suffered an injury as defined in the statute is supported by substantial competent evidence. Miller testified as to having no problem performing her work duties for nearly 2 years prior to the accident. Her medical expert, Dr. Pazell, opined that based on her age she would likely present with some form of degenerative disc disease in her cervical, thoracic, and lumbar spine on the date of the accident. But he noted that the degenerative disc disease was not causing her any impairment at the time prior to the accident because she was leading an active work life. It was his opinion that the car accident aggravated her degenerative disc disease and therefore met the definition of injury. The Board found Dr. Pazell's testimony more credible and aligned with the diagnosis from the independent physician, Dr. Pratt.
We conclude the respondent's arguments invite this court to reweigh the evidence and second-guess the Board's assessment as to the credibility of witnesses. This is not within the scope of appellate review. Looking at all of the evidence presented, we conclude there was substantial evidence supporting the Board's finding that Miller did sustain a compensable injury in the form of an aggravation of a preexisting condition resulting from the accident on May 23, 2007.
Miller's work-related injury did cause increased disability
The respondent also contends the Board erred because the evidence established that Miller sustained no increased disability from her preexisting condition as a result of the accident. They argue that the physical complaints Miller had were a result of a previous condition and the accident did not cause an increase in the disability as required under K.S.A. 44–501(c).
At the time of the administrative action in question, K.S.A. 44–501(c) read: “The employee shall not be entitled to recover for the aggravation of a preexisting condition, except to the extent that the work-related injury causes increased disability. Any award of compensation shall be reduced by the amount of functional impairment determined to be preexisting.”
As the Board correctly pointed out, an accidental injury is compensable under the Act even when the accident only aggravates a preexisting condition. See Odell, 206 Kan. at 758. The applicable test is whether the accident aggravates or accelerates the condition, not whether the accident caused the condition. See Woodward, 24 Kan.App.2d at 514. In this case, the Board found that Miller's degenerative disc disease preexisted the accident but that she was able to work without restrictions or accommodations before the accident. It found there was no evidence of previous disability or impairment from the preexisting degenerative disease and therefore upheld the ALJ's decision and award.
In this case, there is substantial evidence, and the respondent agrees, that Miller suffered from a preexisting condition, specifically, the degenerative changes in her spine. Drs. Finley, MacMillan, and Pazell all testified that the x-rays and MRI images of Miller's spine showed degenerative changes that would not have been a direct result of the accident but rather evolved over a long period of time. The issue therefore is whether the accident caused an “increased disability” as defined in K.S.A. 44–501(c).
Dr. Finley, the treating physician who ordered physical therapy and released Miller without any work restrictions at the end of her therapy, testified that the accident did not cause aggravation or increased disability of the preexisting condition. Dr. MacMillan, the expert obtained by the respondent, also testified that the car accident did not cause any permanent aggravation or increased disability of the preexisting condition. But, as the Board points out, Dr. MacMillan also seemed to misunderstand Miller's treatment history and onset of the neck and back complaints. When Miller's attorney pointed this out to Dr. MacMillan, he agreed hypothetically that an accident could aggravate a previously undetected degenerative back problem but that he would not change his testimony in regards to Miller's situation.
Miller provided evidence and testimony that supported her contention that the accident aggravated her condition. Through her own testimony, she related to the ALJ that she performed her work duties at Catholic Charity without any problems for nearly 2 years. From her testimony, it is apparent that her back problems only started to affect her ability to work after the accident. Further, Miller's expert, Dr. Pazell, whom the ALJ and Board found was more credible, testified that the degenerative changes could have been aggravated by the car accident, but he also admitted during cross-examination that he could not accurately assess the level of preaccident impairment.
As we have already noted, it is not within the purview of this court to reweigh evidence or second guess the Board as to the credibility of witnesses. We conclude under our standard of review that there does exist substantial evidence to support the Board's finding that the injury on May 23, 2007, did cause increased disability for Miller.
Conclusion
We hold that the Board did not err in its finding that the claimant met with accidental injury on May 23, 2007, arising out of and in the course of employment or in its finding that the claimant was entitled to compensation resulting from an aggravation of a preexisting condition. Accordingly, the Board's order is upheld.
Affirmed.