Guzzo v. Heartland Plant Innovations Inc.
| Decision Date | 16 July 2021 |
| Docket Number | 811,121 |
| Court | Kansas Court of Appeals |
| Parties | Evelyn Guzzo, Appellant, v. Heartland Plant Innovations Inc., and Emcasco Insurance Co., Appellees. |
NOT DESIGNATED FOR PUBLICATION
Appeal from Workers Compensation Board. Affirmed.
Roger D. Fincher, of Fincher Law Office, of Topeka, for appellant.
Katie M. Clifford, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellees.
Before Arnold-Burger, C.J., Gardner and Isherwood, JJ.
In July 2017, Evelyn Guzzo was injured while working for Heartland Plant Innovations (Heartland). After she filed for workers compensation, two doctors gave their medical opinions on Guzzo's partial functional impairment rating under the Fourth and Sixth Editions of the American Medical Association (AMA) Guides. The Workers Compensation Board (Board) found Guzzo suffered a 6% impairment under the Sixth Edition of the AMA Guides. Guzzo appeals the Board's decision not to stay the proceeding, challenges the constitutionality of the functional impairment statute's reference to the Sixth Edition of the AMA Guides, and argues that the Board's factual findings lack substantial competent evidence. Finding no error, we affirm.
Guzzo is a 70-year-old woman who was working with planter pots for Heartland in July 2017 when she injured her right wrist. Because the pots were stuck together, Guzzo had to slam the pots against a steel table to separate them. After doing this for several hours to several thousand pots, Guzzo's wrist began to hurt. Her wrist swelled over the weekend, and she was unable to perform her job on Monday morning. When Guzzo reported the injury, Heartland sent her to Dr. William Jones an occupational therapist. Because the wrist pain did not get better, Guzzo elected to have him perform surgery on her arm just above the wrist to repair a torn tendon.
During her postoperation appointment in February 2018, Dr. Jones examined Guzzo's wrist by having her squeeze his hand. At that appointment, Guzzo reported she had minimal pain, and Dr. Jones believed she had attained full range of motion. He released Guzzo as having attained maximum medical improvement. The parties later asked Dr. Jones to provide an impairment rating under both the Fourth and Sixth Editions of the Guides based on his last appointment with Guzzo, and he did so.
Guzzo applied for a preliminary hearing. Her brief argued that the Administrative Law Judge (ALJ) should use the functional impairment ratings under the Fourth Edition, rather than the Sixth Edition, of the AMA Guides. As support, she cited a decision by a panel of this court that had recently found unconstitutional the Kansas statute that required use of the Sixth Edition. See Johnson v. U.S. Food Service, 56 Kan.App.2d 232, 257, 427 P.3d 996 (2018) (Johnson I), overruled by Johnson v. U.S. Food Service 312 Kan. 597, 478 P.3d 776 (2021) (Johnson II).
Guzzo later hired Dr. Daniel Zimmerman for a second opinion on her functional impairment rating. During the only time she saw him, he conducted several objective tests of Guzzo's wrist impairment. Dr. Zimmerman measured her loss of range of motion with a goniometer and her loss of grip strength with a dynamometer. He then provided functional impairment ratings under both the Fourth and Sixth Editions.
Dr Jones, the treating physician, testified in his deposition that he evaluated Guzzo from her initial complaint of pain and discomfort in December 2017 until he released her from his care at maximum medical improvement in February 2018. In his medical opinion, the surgery succeeded because it fixed Guzzo's pain and gripping problems. On Guzzo's last visit, Dr. Jones asked her to do a grip test by grabbing his wrist and palm. Dr. Jones did not use any tools and relied only on visual cues and the grip test. He based his impairment rating on his evaluation of her wrist strength according to the step-by-step recommended procedure for determining site-specific impairment within the Guides. Dr Jones assessed a Sixth Edition rating of 0% and a Fourth Edition rating of 7%.
Because Guzzo had sought a second medical opinion, the parties deposed Dr. Zimmerman as well. He evaluated Guzzo in a single appointment for the purpose of her workers compensation claim. He followed the step-by-step recommended procedure to evaluate her functional wrist impairment and provided detailed testimony about each page and graph he relied on, as well as the measuring tools he used to reach his impairment ratings. Dr. Zimmerman issued an impairment rating of 6% under the Sixth Edition and 24% under the Fourth Edition of the Guides.
The ALJ held a regular hearing at which Guzzo testified to her work-related injuries and the various tests and measurements of her wrist impairment. She stated that when she saw Dr. Jones after surgery, she was with him for only a few minutes and he had her squeeze his hands to test her strength. In contrast, she spent about an hour with Dr. Zimmerman who had her perform tasks with various tools to measure her wrist impairment. She could not return to work fulltime because her training was based in fine motor skills but those tasks are difficult because of her wrist injury. She also had limited range of motion and reduced strength, which made her unable to open a water bottle.
The ALJ issued his decision in March 2019. He reviewed the regular hearing transcript, the parties' stipulations, and both depositions, and he discussed the methods each doctor used to evaluate impairment. The ALJ determined that Dr. Zimmerman's objective measurements and explanation of how he came to the impairment ratings based on those measurements was more credible than Dr. Jones' opinion. The ALJ found Guzzo suffered a 6% impairment of the function to the right upper extremity at the level of the forearm under the Sixth Edition of the Guides, as had Dr. Zimmerman. Because Johnson I was pending review in the Kansas Supreme Court, the ALJ alternatively found Guzzo suffered an 18% impairment under the Fourth Edition of the Guides. The ALJ awarded medical expenses and future medical expenses upon agreement of the parties or on proper application. The ALJ also awarded Guzzo 8.96 weeks of temporary total disability combined with temporary partial disability followed by 11.46 weeks of permanent partial disability compensation for a total award of $5, 860.95.
Both Guzzo and Heartland appealed to the Workers Compensation Appeals Board. The parties appealed several issues, including whether the Sixth Edition mentioned in the Workers Compensation Act is unconstitutional, whether Guzzo met her burden of proof in establishing need for future medical compensation, and the nature and extent of Guzzo's impairment.
The Board issued its order in August 2019. It reviewed the record before the ALJ, the ALJ's final decision, and the stipulations in the previous award. The Board declined to rate Guzzo's impairment by using the Fourth Edition ratings-since Johnson I was under a petition for review, its holding (that the statute requiring use of the Sixth Edition was unconstitutional) had no effect. See Supreme Court Rule 8.03(k)(2) (2021 Kan. S.Ct. R. 54) (if petition for review is granted, Court of Appeals' decision has no force or effect). Thus, the Board considered the statute mandating use of the Sixth Edition to be constitutional and it upheld the Sixth Edition award by the ALJ. The Board then determined that Dr. Zimmerman had evaluated Guzzo's condition more thoroughly than Dr. Jones did, even though he saw her only once. The Board adopted Dr. Zimmerman's rating of 6% under the Sixth Edition.
During oral argument, a member of the Board asked the parties whether they wished to stay the proceedings until our Supreme Court decided Johnson I. Guzzo agreed to a stay, but Heartland opposed it. Neither party formally requested a stay. In its decision, a majority of the Board found it lacked authority to issue a stay under K.S.A. 77-616(a) and K.S.A. 2020 Supp. 44-556(b). One Board member dissented, arguing the Board had statutory authority to issue a stay until the Johnson I decision was final.
Guzzo timely appeals.
We first address Guzzo's argument that the Board erred by finding that neither the Workers Compensation Act, K.S.A. 44-501 et seq., nor the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., authorized it to stay workers compensation proceedings in anticipation of a potential change in the controlling law by the Supreme Court. Heartland responds that the Board correctly found that it has no such authority.
Heartland first argues that because Guzzo did not formally request a stay, she cannot complain on appeal about the Board's failure to issue one. We agree. Because Guzzo did not formally request a stay, she failed to preserve the issue. See Tapp v. Ferrell Const. Co., No. 95, 004, 2006 WL 2337246, at *1 (Kan. App. 2003) (unpublished opinion).
Generally Pork Motel, Corp. v. Kansas Department of Health & Environment, 234 Kan. 374, 378, 673 P.2d 1126 (1983). Because agencies lack common-law powers, "[a]ny authority claimed by an agency or board must be conferred in the authorizing statutes either expressly or by clear implication from the express powers granted." Ft. Hays St. Univ. v. University...
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