Castro v. IBP, Inc., 85,298.[1]

• Decision Date: 04 May 2001
• Docket Number: No. 85,298.[1],85,298.[1]
• Citation: 30 P.3d 1033,29 Kan. App.2d 475
• Parties: MARTHA CASTRO, Appellee, v. IBP, INC., Appellant.
• Court: Kansas Court of Appeals

29 Kan. App.2d 475

30 P.3d 1033

MARTHA CASTRO, Appellee, v. IBP, INC., Appellant.

No. 85,298.¹

Court of Appeals of Kansas.

Opinion filed May 4, 2001.

Douglas M. Greenwald and Gregory D. Worth, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellant.

C. Albert Herdoiza, of Kansas City, for appellee.

Before RULON, C.J., KNUDSON, J., and WAHL, S.J.

WAHL, J.:

IBP, Inc., appeals the decision of the Workers Compensation Board (Board) finding an expert's opinion admissible and awarding Martha Castro a sum for permanent partial general disability.

The appellant argues that the Board improperly interpreted K.S.A. 1999 Supp. 44-510(c)(2). Interpretation of a statute is a question of law which this court can review de novo. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. Auten v. Kansas Corp. Comm'n, 27 Kan. App. 2d 252, 254, 3 P.3d 86, rev. denied 269 Kan. 931 (2000). When the agency is one of special competence and experience, its interpretation of a statute may be entitled to controlling significance. If there is a rational basis for the agency's interpretation, it should be upheld on judicial review. In re Application of Zivanovic, 261 Kan. 191, 193, 929 P.2d 1377 (1996). Ultimately, however, the court must exercise de novo review.

The primary dispute is whether Castro violated K.S.A. 1999 Supp. 44-510(c)(2) when she obtained a follow-up, self-paid, functional impairment opinion from the same physician IBP previously paid $500 to examine and diagnose her condition. If Castro violated the statute, then any opinion rendered by Dr. Prostic would be inadmissible in the claim proceedings. The statute provides:

"(2) Without application or approval, an employee may consult a health care provider of the employee's choice for the purpose of examination, diagnosis or treatment, but the employer shall only be liable for the fees and charges of such health care provider up to a total amount of $500. The amount allowed for such examination, diagnosis or treatment shall not be used to obtain a functional impairment rating. Any medical opinion in violation of this prohibition shall not be admissible in any claim proceedings under the workers compensation act." (Emphasis added.) K.S.A. 1999 Supp. 44-510(c)(2).

Castro scheduled an appointment with Dr. Prostic for November 6, 1996. The doctor examined Castro and provided an opinion on relevant work restrictions and need for additional medical treatment. The engagement letter from Castro's attorney to Dr. Prostic specifically instructed him not to provide a functional impairment rating. The total cost of services provided was $535 of which $500 was paid by IBP pursuant to the statutory allowance. The bill itemized a $375 exam and two x-rays. Dr. Prostic issued a report of his findings and testified his sole purpose in meeting with Castro was for an "examination and evaluation and recommendations for treatment."

On March 7, 1997, Castro's attorney contacted Dr. Prostic and requested a functional impairment opinion. Without reexamining Castro, Dr. Prostic issued a separate written functional impairment opinion. The entire cost of $25 was paid by Castro's attorney and not out of the $500 statutory medical allowance. At Dr. Prostic's deposition, Castro did not request Dr. Prostic to express his opinion on functional impairment, and that opinion is not part of the record. Evidence of functional impairment was provided by Dr. Harris, who was appointed by the administrative law judge to provide such a rating.

IBP contends Castro violated the statute because the functional impairment rating obtained at a later date was based on services previously paid for by IBP and this was an abuse by Castro. IBP argues the last two sentences of that statute require that once a functional impairment rating is obtained from the examining physician, the statutory prohibition applies and any medical opinion from this physician is inadmissible.

The Board concluded that Castro did obtain a functional impairment rating from Dr. Prostic, but the rating was not paid for by the $500 medical allowance provided by IBP. The functional impairment rating report was paid for by Castro almost 4 months later and almost 2 months after the administrative law judge appointed Dr. Harris to provide a rating. The Board also concluded that

"[a] claimant, if he or she so desires, may obtain a functional impairment rating from an examining physician and pay for such a rating separately. The claimant can then choose whether or not to enter the functional impairment rating into the record and this would not violate the provisions of K.S.A. 44-510(c)(2)."

The Board's interpretation of the statute is rational. If the statute was meant to be applied as IBP suggests, it would require the statute to contain additional language that would preclude the "results" of the exam from being subsequently used to obtain an impairment rating. IBP conceded the statute was "technically" complied with, but Castro violated the spirit of the statute. However, it is a legislative, not a judicial, function to rewrite the statute.

We conclude that the more obvious and simple conclusion is that Dr. Prostic did not testify as to the functional impairment of Castro, Dr. Harris did. Dr. Harris was appointed by the administrative law judge and Dr. Prostic's work-task loss opinion was not given in violation of K.S.A. 1999 Supp. 44-510(c)(2).

IBP contends the permanent partial disability benefit based on work disability should be remanded for further findings as to the effect of Castro's refusal of vocational and educational assistance, including her failure to obtain her GED in determining the post-injury wage. The Board found Castro did not look for work in good faith and that sh...