Boeing Military Airplane Co. v. Enloe

• Decision Date: 18 November 1988
• Docket Number: No. 61583,61583
• Citation: 13 Kan.App.2d 128,764 P.2d 462
• Parties: BOEING MILITARY AIRPLANE COMPANY and Aetna Casualty & Surety, Respondents/Appellees, v. Robert E. ENLOE, Claimant/Appellee, and Kansas Workers' Compensation Fund, Appellant.
• Court: Kansas Court of Appeals

Page 462

764 P.2d 462

13 Kan.App.2d 128

BOEING MILITARY AIRPLANE COMPANY and Aetna Casualty & Surety, Respondents/Appellees, v. Robert E. ENLOE, Claimant/Appellee and Kansas Workers' Compensation Fund, Appellant.

No. 61583.

Court of Appeals of Kansas.

Nov. 18, 1988.

Review Denied Jan. 31, 1989.

Syllabus by the Court

1. K.S.A. 44-519 governs the admissibility and competence of expert medical opinions in the form of a certificate or report of examination on the issues of determination and collection of compensation in a workers' compensation proceeding. To be considered as competent evidence in the proceeding, the opinions expressed in the certificate or report must be supported by admissible testimony of the physician or surgeon who issued the certificate or report.

2. K.S.A. 44-519 does not limit the information a testifying physician or surgeon may consider in rendering his or her opinion as to the condition of an injured employee.

3. K.S.A. 44-519 does not prevent a testifying physician from considering medical evidence generated by other absent physicians as long as the testifying physician is expressing his or her own opinion rather than the opinion of the absent physician.

4. When a claim is made that evidence was erroneously admitted in a workers' compensation proceeding, this court will affirm when the decision is based on substantial and satisfactory evidence even though some evidence is not technically admissible under the rules of evidence.

5. In an appeal of a workers' compensation award to a district court, the district court has jurisdiction to increase the claimant's award even though the claimant himself did not appeal the award.

Vincent L. Bogart of Klenda, Mitchell, Austerman & Zuercher, and Christoper A. McElgunn, Wichita, for appellant.

James B. Zongker of Render & Kamas, Wichita, for claimant/appellee Robert E. Enloe.

Vaughn Burkholder of Foulston, Siefkin, Powers & Eberhardt, Wichita, for respondents/appellees Boeing Military Airplane Co. and Aetna Cas. & Sur.

Before REES, P.J., DAVIS, J., and PORTER K. BROWN, District Judge, assigned.

DAVIS, Judge:

The Workers' Compensation Fund appeals the trial court's award to the claimant, Robert E. Enloe, of a 60% permanent partial disability and the trial court's determination that the Fund is liable for 100% of the award. The Fund contends that the only evidence supporting its liability was inadmissible under K.S.A. 44-519. The Fund also argues that the trial court lacked jurisdiction to increase claimant's award because he did not appeal the director's award of 40% permanent partial disability. We affirm.

The trial court found that the claimant was a handicapped worker, that his employer hired or retained him knowing that he was a handicapped worker, and that the injury would not have occurred but for claimant's handicap. Those findings were based on opinions expressed by Dr. Ernest Schlachter and Dr. Kenneth Zimmerman.

Dr. Schlachter examined the claimant five months after the accident for which compensation was awarded. He testified that the accident would not have caused permanent injury but for claimant's preexisting degenerative disc disease. Dr. Schlachter based his opinion that claimant had a chronic lumbosacral sprain with aggravation of preexisting degenerative disc disease on the following factors: (1) An examination of the claimant; (2) the history claimant gave him; and (3) an X-ray report that Dr. Rawcliffe had previously prepared. Dr. Rawcliffe was not present and did not testify at the workers' compensation proceeding. The X-ray report was not admitted into evidence; however, it was made available to all counsel.

Dr. Zimmerman testified that he had examined claimant numerous times as a company physician for claimant's employer. He testified that claimant had a history of lower back problems. He indicated that claimant was handicapped and would be limited in obtaining employment because of his back problems. In his opinion, claimant would not have been injured but for the preexisting condition of his spine. Dr. Zimmerman based his opinion on his own examination and on company medical records. In addition to reports prepared by Dr. Zimmerman after he had examined claimant on various occasions, the records reviewed by Dr. Zimmerman contained reports prepared by other company doctors who did not testify at the workers' compensation proceeding. Although the medical records were not admitted into evidence, they were made available to all counsel.

In their testimony, both doctors acknowledged that claimant's past medical records formed a part of the basis for their opinions concerning claimant's disability. The Fund contends that, because the doctors generating the past medical records of claimant did not testify, those past records were inadmissible under K.S.A. 44-519.

K.S.A. 44-519 provides:

"No report of any examination of any employee by a physician or surgeon, as hereinbefore in this act provided for, nor any certificate issued or given by the physician or surgeon making such examination, shall be competent evidence in any proceeding for the determining or collection of compensation unless supported by the testimony of such physician or surgeon, if this testimony is admissible, nor competent evidence in any case where testimony of such physician or surgeon is not admissible."

The report of examination referred to in K.S.A. 44-519 is identified elsewhere in the Workers' Compensation Act as a report prepared by a physician for the purpose of evaluating the extent of the employee's disability and his claim for compensation. See K.S.A. 44-515. The term "certificate" as used in K.S.A. 44-519 is not defined in the Act; however, earlier versions of this same statute required a...