Estate of Emery v. State

Decision Date01 March 2013
Docket NumberNo. 107,921.,107,921.
Citation295 P.3d 1054
PartiesESTATE OF Harry EMERY, Appellant, v. STATE of Kansas, and State Self–Insurance Fund, Appellees.
CourtKansas Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Workers Compensation Board.

Joshua P. Perkins, of Spooner & Perkins, P.C., of Kansas City, Missouri, for appellant.

Bryce D. Benedict, of Kansas Health Policy Authority, Kansas Department of Health and Environment, for appellees.

Before McANANY, P.J., BUSER and STANDRIDGE, JJ.

MEMORANDUM OPINION

PER CURIAM.

In this workers compensation appeal, the claimant's estate challenges the sufficiency of the evidence the Workers Compensation Board relied upon to determine the extent of functional impairment to the claimant's left arm. The Estate also challenges the Board's failure to determine that the claimant's right-arm injury and his later head injury were job-related and the Board's failure to award interest on the claim for the left-arm injury for which an award was made.

The claimant was Harry Emery, a security officer at Osawatomie State Hospital. Emery filed two separate claims: one for his arm injuries, and the other for a head injury. Emery died from unrelated causes before either claim was resolved. After his death, his widow moved to substitute Emery's Estate as the claimant. The administrative law judge (ALJ) allowed the substitution and that decision ultimately was affirmed by the Board.

In his first claim, Emery alleged that on April 6, 2002, he injured his left elbow while attempting to restrain a patient and that he later suffered a repetitive-trauma injury to his right arm from overuse while doing work activities.

For his second claim, Emery alleged that on December 20, 2007, he suffered injuries to his head, neck, and back during an altercation with a combative patient.

Following each injury the State paid Emery temporary total disability compensation and provided treatment, including surgery to his left arm, until Emery reached maximum medical improvement. At the State's request, Emery's authorized treating physicians examined Emery and submitted impairment ratings reports for each of the injuries. Dr. Alexandra Strong evaluated Emery's left arm. Dr. John Moore evaluated Emery's right arm. Dr. James Zarr evaluated Emery's head injury.

Emery died on October 11, 2009.

The ALJ held a regular hearing in June 2011. Emery's estate sought to introduce into evidence the rating reports from Drs. Strong, Moore, and Zarr, none of whom had been deposed and none of whom were available for cross-examination. The State's objection on the grounds of hearsay was sustained.

Following the regular hearing, the Estate retained Dr. Michael Poppa to review Emery's medical records regarding both claims. Dr. Poppa reviewed the records of Drs. Strong, Moore, and Zarr. He also reviewed the operative report from the SurgiCenter of Kansas City, along with records relating to the head injury from Dr. Robert Satake, a neurologist, and from Dr. Staecker, an ear, nose, and throat specialist. Dr. Poppa concluded:

“1) I accept and adopt Dr. Strong's 17% left upper extremity impairment; Dr. J.B. Moore's 20% right upper extremity impairment and Dr. Zarr's 17% whole body permanent impairment.

“2) Mr. Emery's work related injury and employment at Osawatomie State Hospital was the direct and proximate cause of his resulting work related injuries with residuals involving his bilateral upper extremities and closed head injury. These injuries occurred during the course and scope of his employment. His employment did cause or substantially contribute to his present conditions as well as the need for treatment which he received.

“3) The treatment Mr. Emery received regarding his work related medical conditions from all providers has been reasonable, appropriate and directly necessary to cure and relieve the effects of his injury.”

Dr. Poppa was deposed in August 2011, and his deposition testimony was introduced into evidence.

With respect to Emery's left arm, the ALJ rejected Dr. Poppa's opinion of a 17% whole body permanent impairment and found that Emery had sustained a 10% impairment to his left arm. The Board affirmed this finding.

With respect to Emery's right arm, the ALJ found that there “was nothing in the record to prove a work related injury to the right elbow.” The ALJ noted: “The respondent's [2002] accident report showed injuries involving the left elbow, chest, left shin, and head, but nothing about the right elbow. Dr. Poppa attributed the claimant's right elbow problem to the claimant's repetitive job duties, but when asked what those repetitive duties were, Dr. Poppa did not know.” The Board agreed that the evidence did not support a connection between Emery's work activities and his right-arm injury.

With respect to Emery's head injury, the ALJ “found no probative value to Dr. Poppa's opinions” and rejected the Estate's argument that it was entitled to permanent partial disability compensation for the head injury. The Board affirmed, noting that, although the Guides to the Evaluation of Permanent Impairment (4th ed. 1995) (AMA Guides) allow physicians to rely on their own judgment when forming impairment ratings, Dr. Poppa never personally examined Emery and thus arrived at his opinion simply by reviewing medical records.

Finally, with respect to the Estate's claim for interest, the ALJ awarded interest in the amount of $269.37 pursuant to K.S.A. 44–512b, finding no “just cause or excuse for the failure of the employer or insurance carrier to pay compensation prior to an award.” This related to the State's failure to pay compensation prior to Emery's death for the 10% impairment to his left arm. The Board reversed the award of interest, noting that the State challenged the nature and extent of Emery's injuries and argued that the Estate was not entitled to any workers compensation award because the widow's substitution motion was not properly filed. The Board concluded: “Neither of these defenses is frivolous.”

Emery's Estate appeals.Appellate Review Standards

The nature and extent of our review is defined by K.S.A.2012 Supp. 44–556(a), which directs that final orders of the Board are subject to review under the Kansas Judicial Review Act (KJRA), K.S.A. 77–601 et seq., as amended. When the issue is the sufficiency of the evidence supporting the Board's decision, we grant relief only if the Board's determination “is not supported by evidence that is substantial when viewed in light of the record as a whole.” K.S.A.2012 Supp. 77–621(c)(7). Whether substantial competent evidence exists is a question of law. Casco v. Armour Swift–Eckrich, 283 Kan. 508, 514, 154 P.3d 494 (2007). “In light of the record as a whole” is statutorily defined:

“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.” K.S.A.2012 Supp. 77–621(d).

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).

Left–Arm Functional Impairment

The Estate's first challenge is to the Board's finding that Emery sustained a 10% permanent impairment to his left arm as a result of his April 6, 2002, injury. The Estate claims that the Board should have followed Dr. Poppa's opinion that Emery sustained a 17% impairment.

Dr. Strong treated Emery's left arm and ultimately performed surgery on Emery's left elbow. She prepared a narrative report in which she opined on the extent of Emery's injury, but she did not testify, and the findings and opinions in her narrative report were rejected as hearsay and not received into evidence. The State conceded its liability for benefits on account of Emery's left-arm injury and paid treatment and temporary total benefits. The State also conceded that Emery had a 10% permanent impairment to his left arm.

At his deposition, Dr. Poppa testified that Emery sustained a 17% permanent impairment to his left arm. According to Dr. Poppa, 10% of this impairment rating was for the injury to Emery's ulnar nerve. Dr. Poppa assigned the additional 7% because the AMA Guides did not adequately address Emery's impairment for lateral epicondylitis. For support, Dr. Poppa quoted the following provisions from Section 1.3 of the AMA Guides:

[I]t should be understood that the Guides does not and cannot provide answers about every type and degree of impairment.... [T]he physician's judgment and his or her experience, training, skill, and thoroughness in examining a patient and applying the finding to Guides criteria will be factors in estimating the degree of patient's impairment.’

Having reviewed this testimony, the ALJ concluded: “The 10% appeared to be reasonably based on the injury and the Guides, 4th Edition, but the extra 7% was crafted out of thin air to match up with Dr. Strong's rating.” The Board affirmed, finding that Dr. Poppa's “explanation does not satisfy the requirement of K.S.A. 44–510e(a) that a functional impairment must be based upon the Guides.

When reviewing the evidence in light of the record as a whole, our court “shall not...

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