Graham v. Dokter Trucking Group

• Decision Date: 13 July 2007
• Docket Number: No. 95,650.,95,650.
• Citation: 161 P.3d 695
• Parties: John Elliott GRAHAM, Appellee, v. DOKTER TRUCKING GROUP, Soldier Creek Transportation, Union Insurance Company, and Continental Western Insurance Company, Appellants.
• Court: Kansas Supreme Court

161 P.3d 695

John Elliott GRAHAM, Appellee, v. DOKTER TRUCKING GROUP, Soldier Creek Transportation, Union Insurance Company, and Continental Western Insurance Company, Appellants.

No. 95,650.

Supreme Court of Kansas.

July 13, 2007.

Nathan D. Burghart, of Fairchild & Buck, P.A., of Lawrence, argued the cause, and Jack J. Hobbs, of the same firm, was with him on the briefs for appellants.

Frederick J. Patton II, of Patton and Patton, Chartered, of Topeka, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by BEIER, J.:

This appeal calls upon us to decide the necessity of a physician's opinion to support the existence of a compensable wage loss under K.S.A. 44-510e(a) and to evaluate the sufficiency of evidence to support the Workers Compensation Board's assessment of wage loss and thus permanent partial general disability award in this particular case.

Factual and Procedural Background

Claimant John Elliott Graham is a trucker who fell from a trailer in February 2002, injuring his right arm, right leg, and neck. Graham notified his employers, respondents Soldier Creek Transportation and Dokter Trucking, of his injury and his workers compensation claim. Claimant received temporary total disability benefits until released to return to work without restrictions the next month.

Claimant attempted to perform his job duties but was prevented from doing so adequately by headaches and persistent neck pain. After 6 months with no improvement in his condition, claimant saw Dr. Bernard Poole, who took claimant off work. Again, claimant received temporary total disability benefits until he returned to work without restrictions the following month.

After 2 days of work—including loading, handling hoses to fill and clean trailers, and other tasks on the ground—claimant and his boss, the sole owner of Soldier Creek, decided "it just wasn't going to work," and claimant was sent home.

Claimant returned to work with full accommodations in early January 2003. The accommodations consisted of reassignment to drive for a different carrier, Federal Express (FedEx), for whom claimant was not required to do any lifting or climbing. In addition, FedEx used "air ride trucks," meaning less "jostling around" while claimant was driving. Despite these accommodations, pain again forced claimant to leave work 2 weeks later.

The following June, claimant returned to work at his FedEx assignment. However, he restricted his work week to 2 or 3 days because of pain. Soldier Creek accommodated this schedule, allowing claimant to work for as long as he could tolerate the discomfort it caused.

At claimant's December 2004 hearing on his eligibility for a permanent partial general disability award, the parties introduced expert testimony by way of the depositions of vocational consultant Michael J. Dreiling and of Dr. Daniel Zimmerman. In addition, Dr. Chris Fevurly was deposed after the hearing, and his testimony was added to the hearing record.

Dreiling had reviewed claimant's medical records and interviewed him before preparing an "Essential Task Performing Analysis." Based on what Dreiling had learned about claimant's work history and the duties claimant had been responsible for during the previous 15 years, the report set out seven essential tasks. However, it also reflected that the FedEx job required claimant to perform only two of the seven: truck driving and logbook maintenance. Dreiling testified that claimant was able to do these two tasks, although he was doing them only part-time.

Dreiling also testified that claimant had no work restrictions and that, if there were no restrictions on a patient, one ordinarily would assume the patient was able to perform all of his or her essential job tasks. In this case, however, given claimant's report of pain and Poole's and Zimmerman's expressions of concern about claimant's lifting capacity and pain tolerance, Dreiling opined that it would be best if claimant's tasks did not include tarping, loading, unloading, and other work on the ground. Dreiling also suggested that, although claimant might be able to find a medium-duty, unskilled job, he would be "essentially and realistically unemployable" if he could not continue his career as a truck driver.

Zimmerman examined claimant at the request of claimant's counsel on December 5, 2002. Based on Dreiling's report, claimant's medical records, and Zimmerman's own interview and examination of claimant, Zimmerman opined claimant had a 43 percent task loss. Zimmerman also testified that claimant had sustained an 18 percent functional impairment due to cervical spine injury, based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition. Zimmerman admitted that he had not used diagnosis-related estimate (DRE) models to reach the 18 percent figure; if he had, the figure would have been lower. He further opined that claimant's reduced ability to rotate his neck would affect his ability to drive a commercial truck significantly. He also testified that he did not restrict claimant from working less than 40 hours per week or driving a truck full time but that, hypothetically, claimant's pain could incapacitate him totally. Zimmerman testified that he would restrict claimant's lifting.

Two years after Zimmerman conducted his examination, claimant saw the insurance carrier's designated physician, Fevurly. Fevurly based his opinions on the claimant's medical records and his own interview and examination of claimant. He testified that, based on DRE models and American Medical Association guides, claimant had sustained a 15 percent functional impairment, appropriately apportioned 5 percent to preexisting degenerative changes and 10 percent to the work injury. Fevurly also opined that claimant was able to do all of the essential tasks of his accommodated job and that there was no restriction against claimant working a 40-hour week. He conceded that, if claimant was having debilitating pain for 20 hours of a 40-hour week, his condition would qualify as a disability; but, in his view, it still would not require a medical restriction to a 20-hour week.

Claimant's testimony and other evidence established that, before his accident, he was making $.25 a mile. Once assigned to FedEx, he was making $.35 a mile, i.e., 40 percent more for each mile driven. However, because pain kept him from working full-time, he was not earning as much in the aggregate as he was earning before his injury. FedEx had the same number of miles available for claimant to drive, and no doctor had imposed restrictions on claimant's miles or on his hours of driving.

The administrative law judge (ALJ) found that claimant's preinjury average weekly wage was $498.36. Noting the existence of contradiction, duplicity, and inconsistency in the evidence, he ultimately found that claimant's weekly wage after the injury was $321.32. This figure was based on the wages earned between June 12, 2003, and September 25, 2004, when claimant was working part-time on a regular basis; and it supported calculation of a 24 percent wage loss under K.S.A. 44-510e.

The ALJ also specifically found that claimant "does not retain the capacity to work a normal five day work-week." He based this finding on Fevurly's testimony that, if an employer needed claimant to work 40 hours a week, claimant should be allowed a day or two off in the middle of the week to recuperate. The ALJ acknowledged Fevurly's assessment that claimant had no task loss, but he found that claimant's inability to work a regular 40-hour week meant he was not performing the tasks to the same degree. Citing Brenda A. Golden v. Hygienic Dry Cleaners, Workers Compensation Board docket No. 1,003,588 (October 2003), for the proposition that "assessment of task loss must consider the tasks as they were preformed by the employee," the ALJ found, agreeing with Zimmerman, that claimant had suffered a 43 percent task loss.

Averaging the 24 percent wage loss and 43 percent task loss as required by K.S.A. 44-510e(a), the ALJ concluded claimant had a 33.5 percent permanent partial general disability.

The ALJ also relied on Fevurly's cervical impairment testimony, discounting his attribution of 5 percent of the total 15 percent to preexisting degenerative changes because the changes were asymptomatic before the accident. The ALJ found a 15 percent functional impairment.

The ALJ's findings resulted in an award of 4.43 weeks of temporary total disability compensation at $332.57 per week, or $1,473.29; and 139.03 weeks of 33.5 percent permanent partial general disability at $332.57 per week, or $46,237.21.

Respondents appealed to the Workers Compensation Board. A three-member majority adopted the ALJ's findings and conclusions and affirmed.

The majority held the ALJ correctly found that the claimant's preinjury average weekly wage was $498.36 and that he had earned a total of $12,957.36 during the 26 weeks before the accident. Thus, with regard to wage loss, the Board majority agreed that claimant was earning less than 90 percent of his preinjury wages. It said the record supported the ALJ's finding that, from June 12, 2003, to September 25, 2004, claimant earned $25,658.74, an average weekly wage of $381.32, representing a 24 percent wage loss.

Regarding task loss, the majority noted the conflicting Zimmerman and Fevurly opinions, both based on the task list created by Dreiling. It also noted that the physicians agreed claimant's pain was consistent with his injury and that there was no evidence claimant was malingering. The Board agreed with the ALJ's assessment that Zimmerman was more credible on this point and affirmed the 43 percent task loss determination.

Under the definition of functional impairment in K.S.A. 44-510e, the Board also agreed with the ALJ's reliance on Fevurly's overall rating of a 15 percent impairment.

One Board member dissented with regard to...