Buchanan v. JM Staffing, LLC

• Decision Date: 26 August 2016
• Docket Number: No. 114,502,114,502
• Citation: 52 Kan.App.2d 943,379 P.3d 428
• Court: Kansas Court of Appeals
• Parties: Jessi L. Buchanan, Appellant, v. JM Staffing, LLC, and Commerce & Industry Insurance Co., Appellees.

52 Kan.App.2d 943

379 P.3d 428

Jessi L. Buchanan, Appellant,

v.JM Staffing, LLC, and Commerce & Industry Insurance Co., Appellees.

No. 114,502

Court of Appeals of Kansas.

August 26, 2016

Jeff K. Cooper, of Topeka, for appellant.

Jodi J. Fox and Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellees.

Before Leben, P.J., Standridge and Arnold–Burger, JJ.

Leben, J.:

In late May 2011, Jessi L. Buchanan was working on an assembly line when she tripped and fell, severely fracturing two of the three major bones in her ankle. After surgery, her ankle healed poorly, and she was left with lingering ankle pain, stiffness, swelling, and loss of range of motion, all of which cause her to limp and walk with a cane. She claims that her ankle fracture and resulting limp have caused injuries to her hip and back. But an administrative law judge and the Kansas Workers Compensation Board disagreed (although two of the five Board members dissented), finding that Buchanan's accident wasn't the primary cause of her hip and back injuries and awarding her compensation only for the ankle injury. Buchanan appeals, arguing that the accident was the primary cause of her hip and back injuries.

The Board relied mostly on the testimony of the court-appointed medical expert, Dr. Pat Do, because he was a neutral party. But because Dr. Do didn't examine Buchanan's hip or back, there really is no substantial evidence to support Dr. Do's opinion testimony about what did—or didn't—cause Buchanan's back and hip pain. Additionally, the Board unnecessarily discredited the testimony of Buchanan herself. Thus, we find that the Board's factual conclusion that Buchanan's accident wasn't the primary cause of her hip and back injuries isn't supported by substantial evidence, and we reverse and remand the Board's decision.

FACTUAL AND PROCEDURAL BACKGROUND

May 22, 2011, was Buchanan's first day of work on the assembly line at Reser's, a job she obtained through JM Staffing. Reser's had put cardboard on the floor to soak up water, and Buchanan tripped on the cardboard and fell, fracturing two of the bones in her right ankle. She had surgery the same day, and Dr. Kurt Knappenberger repaired the fracture with screws and a plate. There's no question in this case about the ankle fracture itself or whether it was the result of a work accident—the dispute is about Buchanan's hip and back injuries that she claims resulted from her ankle fracture.

Dr. Knappenberger treated Buchanan for 8 months following the surgery. His records show that for the first 2 months, Buchanan didn't put any weight on her ankle; he didn't instruct her to begin trying to walk on it until her July 22, 2011, appointment. One month later, at Buchanan's next appointment, Dr. Knappenberger's physician's assistant noted that Buchanan was limping and had decreased mobility, swelling, and stiffness. The physician's assistant prescribed physical therapy at this appointment. Dr. Knappenberger continued prescribing physical therapy through his last appointment with Buchanan in January 2012. His records show that Buchanan's physical therapist called on May 21, 2012, to request that he authorize additional appointments, so it appears that Buchanan was participating in physical therapy as late as 1 year after her injury and surgery.

Dr. Knappenberger's records show that as of January 2012, he believed Buchanan wouldn't recover any further and that her stiffness and loss of range of motion would likely be permanent, but the records don't mention any complaints of hip or back pain. At his deposition in March 2014, Dr. Knappenberger testified that this lingering stiffness and loss of range of motion are common following ankle fractures and that Buchanan's ankle fracture was on the more extreme end of the spectrum. He also noted that the stiffness and loss of range of motion would cause Buchanan to limp. Buchanan testified that Dr. Knappenberger had told her there was nothing else he could do for her ankle and recommended that she apply for disability.

As of January 2012, Dr. Knappenberger noted that Buchanan shouldn't work at all. In October 2012, he assigned her a 13% impairment rating for the injury to her right ankle based on the last time he saw her, but he noted that “this rating could change if the examination is any different than my examination of her ankle 10 months ago.” His October 2012 report doesn't mention work restrictions at all, either to modify January's complete restriction or to impose new or different restrictions.

Dr. Pedro Murati, Buchanan's medical expert, examined Buchanan in December 2012; he examined her legs, feet, hips, and back. Dr. Murati testified that Buchanan had reported that her right hip and low back began hurting about 4 months after her surgery (2 months after she began trying to walk) and that she hadn't had any hip or back pain before her ankle injury. He stated that Buchanan's ankle fracture had been severe and that breaking both the inside and outside bones at the top of the ankle can make a full recovery very difficult. Dr. Murati testified that Buchanan's ankle fracture had caused her to limp and to use a cane to walk. He diagnosed Buchanan with low back pain with signs of radiculopathy, right sacroiliac joint dysfunction, and right trochanteric bursitis. Dr. Murati testified that Buchanan's right hip and low back injuries were caused by her limp and wouldn't improve as long as she continued to limp.

Dr. Do examined Buchanan in April 2014 at the request of the administrative law judge presiding over Buchanan's workers-compensation claim. Although Buchanan told Dr. Do about her hip and back pain, he only examined her right ankle. He noted that her range of motion was moderately restricted, that she had damage to the cartilage in her ankle, and that her arthritis, night pain, and trouble walking were consistent with this type of severe ankle injury. He testified that it was appropriate for Buchanan to use a cane to walk. In Dr. Do's opinion, Buchanan should limit standing and walking to no more than 33% of her day. According to Dr. Do, Buchanan's hip and back pain could have been caused by any number of things, including aging, wear and tear, and her limp, and he couldn't say within a degree of medical certainty which of these was the primary cause. Dr. Do also testified that because he wasn't sure Buchanan's hip and back pain would be permanent, he couldn't give an opinion about the prevailing cause of those injuries.

Two experienced vocational experts also testified: Karen Crist Terrill for Buchanan and Steve Benjamin for JM Staffing. Terrill relied primarily on Dr. Murati's report, which included work restrictions based on all of Buchanan's injuries: ankle, hip, and back. (She also relied on Dr. Knappenberger's report and a report from a Dr. Hufford, whose report isn't included in the record.) Based on these reports and on Buchanan's work history, Terrill concluded that Buchanan wasn't able to engage in any substantial gainful employment. On the other hand, Benjamin relied primarily on Dr. Do's restrictions, which were based only on Buchanan's ankle injury, to conclude that there were some jobs that Buchanan could still do. Benjamin's report confirmed, however, that if he relied on Dr. Murati's broader restrictions, Buchanan wouldn't be able to find work. Benjamin also noted that his assessment of the work Buchanan would be able to do didn't account for her use of a cane.

Buchanan testified before administrative law judge Rebecca Sanders in January 2014. Buchanan has a high-school diploma and training as a welder. She described her work accident and testified that her hip and back pain developed as a result of her ankle fracture. She denied having any hip or back pain before the ankle fracture. She noted that she hadn't worked since the accident and that she receives Social Security disability benefits. Buchanan testified that she has trouble sleeping, has a hard time getting in and out of the bath, loses her balance when she bends over, can only stand up for 15 minutes at a time, has to elevate her leg when she sits down, can't bend over to pick up a basket of laundry, and has to lean against the counter to do the dishes.

For reasons not clear in our record, a different administrative law judge (Jerry Shelor, who didn't see Buchanan testify) made the initial ruling in the case. He awarded Buchanan temporary total disability and future medical treatment for her right ankle but found that her hip and back injuries weren't compensable because her work accident wasn't the prevailing factor in causing them. The judge relied on Dr. Do's conclusions because Dr. Do was a neutral, court-appointed expert.

Three members of the Kansas Workers Compensation Board affirmed the award over the dissent of the other two members. The majority found that Buchanan wasn't completely credible and accepted Dr. Do's testimony because he was a neutral expert. The dissent, on the other hand, argued that Dr. Do had misunderstood the prevailing-factor analysis and found Dr. Murati's opinion more persuasive because he had actually examined Buchanan's hip and back.

Buchanan has appealed to our court.

ANALYSIS

Buchanan argues that the Board wrongly determined that her work accident wasn't the prevailing factor in causing her hip and back injuries.

We review the Board's order under the Kansas Judicial Review Act, K.S.A. 77–601 et seq . K.S.A. 2015 Supp. 44–556(a). We may grant relief only if, among other reasons not relevant here, the Board has wrongly interpreted or applied the law or if the Board's findings aren't supported by substantial evidence. K.S.A. 2015 Supp. 77–621(c)(4), (7). We have unlimited review over questions involving the interpretation of a statute, owing no deference to the Board's interpretation. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs. , 290 Kan. 446, 457, 228 P.3d 403 (2010). Substantial evidence is evidence that a reasonable...