Coffman v. State

• Decision Date: 27 December 2002
• Docket Number: No. 88,944,88,944
• Citation: 59 P.3d 1050,31 Kan.App.2d 61
• Parties: LARRY COFFMAN, Claimant/Appellee, v. STATE OF KANSAS, Respondent/Appellant, and STATE SELF-INSURANCE FUND, Insurance Carrier/Appellant.
• Court: Kansas Court of Appeals

31 Kan.App.2d 61

59 P.3d 1050

LARRY COFFMAN, Claimant/Appellee, v. STATE OF KANSAS, Respondent/Appellant, and STATE SELF-INSURANCE FUND, Insurance Carrier/Appellant.

No. 88,944

Court of Appeals of Kansas

Opinion filed December 27, 2002.

Scott M. Gates, of Kansas Department of Administration, for appellants.

Roger D. Fincher, of Bryan, Lykins, Hejtmanek & Fincher, P.A., of Topeka, for appellee.

Before GERNON, P.J., KNUDSON, J., and LARSON, S.J.

KNUDSON, J.:

The respondent, State Self-Insurance Fund (Fund), appeals from a review and modification award finding Larry Coffman to be permanently totally disabled. The issues on appeal are whether there is substantial competent evidence to support the Workers Compensation Board (Board) finding of a change in Coffman's physical condition supporting a modification of his previous award and, in the alternative, whether the Fund should be estopped to deny Coffman is permanently totally disabled.

We affirm the Board's decision because a change in the claimant's physical condition was supported by evidence rendering the original award inadequate. However, we do not agree estoppel was applicable.

Underlying the issues before the Board and this court is a rather unique set of facts. Coffman injured his back at work in 1994, with a secondary injury to his left knee in 1995. His treating physician, Dr. William Jones, testified Coffman could conceivably perform a desk job with alternate periods of sitting and standing. When asked whether he believed Coffman was permanently and totally disabled, Dr. Jones gave confusing and somewhat conflicting responses. He denied formulating an opinion that Coffman was permanently and totally disabled, but then said he agreed with Coffman's contention that Coffman could not do any work. In 1998, an administrative law judge (ALJ) entered an award of $100,000 (the statutory limit) based on a finding of 81% permanent partial disability to the body as a whole. Computation of permanent partial disability was based on findings of a 62% work task loss and a 100% wage loss.

In 2001, Coffman brought this application for review and modification, contending Dr. Jones had found him to be permanently and totally disabled. In his deposition, Dr. Jones acknowledged Coffman's functional disability had not changed since the original award. When asked to explain his seemingly inconsistent testimony given in support of the first award, Dr. Jones explained, "I believe I was reluctant to say that he was permanently disabled at that time because I thought that there still might be a chance that improvement might occur over time." Dr. Jones concluded Coffman would not have been able to engage in substantial gainful employment in 1998 due to his inability to perform any activity for more than a few minutes a time and that "since 1998, there's been no — basically no change in his condition, from my standpoint at least, with respect to working." However, Dr. Jones also testified to additional arthritic degeneration in Coffman's knees and that he was experiencing more pain in his back and knees since 1998. Based upon Coffman's change in condition, Dr. Jones came to the opinion Coffman had become permanently and totally disabled.

The Board made two general findings to support its award. First, the Fund was estopped from asserting Coffman was 100% disabled in 1998, an assertion contrary to the Fund's position when the original award for permanent partial disability benefits was entered. Second, Coffman's condition had worsened, even though there was no change in his functional impairment, restrictions, or employment status. The Board concluded the change in Coffman's physical condition supported a modification of the underlying award to one of permanent total disability.

STANDARD OF REVIEW

An appeal from an action of the Board is subject to review in accordance with the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., K.S.A. 2001 Supp. 44-556(a). The party asserting the invalidity of the Board's action, the State in this case, has the burden of proof. K.S.A. 77-621(a)(1). K.S.A. 77-621(c) limits this court's review to certain questions of law, including the following which apply to this case:

"(4) the agency has erroneously interpreted or applied the law;

... [or]

"(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act."

Regarding whether there is substantial competent evidence to support a decision of the Board, the Kansas Supreme Court has stated:

"In workers compensation cases, substantial evidence is evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing a substantial basis of fact from which the issue tendered can be reasonably resolved. The substantial competent evidence test reviews the evidence in the light most favorable to the prevailing party." Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc., 268 Kan. 33, 34, 991 P.2d 406 (1999).

DISCUSSION

K.S.A. 44-528(a)

The State argues there was not a sufficient change in circumstances to justify the Board's modification of Coffman's original award. The review and modification of a workers compensation award is addressed in K.S.A. 44-528(a), which states, in part:

"Any award ... may be reviewed by the administrative law judge for good cause shown upon the application of the employee.... The administrative law judge shall hear all competent evidence offered and if the administrative law judge finds ... that the award is excessive or inadequate or that the functional impairment or work disability of the employee has increased or diminished, the administrative law judge may modify such award, or reinstate a prior award, upon such terms as may be just, by increasing or diminishing the compensation subject to the limitations provided in the workers compensation act."

The Kansas Supreme Court has interpreted K.S.A. 44-528(a) to require evidence of a change in a claimant's condition before an award should be modified. In Gile v. Associated Co., 223 Kan. 739, 740, 576 P.2d 663 (1978), the Kansas Supreme Court stated: "Any modification is based on the existence of new facts, a changed condition of the workman's capacity, which renders the former award either excessive or inadequate." To determine whether a modification should be made, the claimant's condition at the time of the award must be compared to his or her condition at the time the modification is sought. 223 Kan. at 741. The party asserting the changed conditions has the burden of proving them. Morris v. Kansas City Bd. of Public Util., 3 Kan. App. 2d 527, 531, 598 P.2d 544 (1979).

Here, there is no evidence that Coffman's functional impairment has changed. Dr. Jones specifically testified at the second deposition that he had not issued a new functional impairment rating. However, there is some evidence that Coffman's work disability has changed. "Work disability is: (a) The extent to which the ability of the employee to perform work in the open labor market has been reduced, and, (b) the extent to which the ability of the worker to earn comparable wages has been reduced." Hughes v. Inland Container Corp., 247 Kan. 407, 417, 799 P.2d 1011 (1990). Although at his second deposition Dr. Jones testified he had not imposed any new restrictions on Coffman, at his first deposition, Dr. Jones agreed that Coffman might be able to perform a job that provided alternate...