Hall v. Dillon Companies, Inc.

• Decision Date: 25 July 2008
• Docket Number: No. 99,476.,99,476.
• Citation: 189 P.3d 508
• Parties: Ruthie M. HALL, Appellant, v. DILLON COMPANIES, INC., Appellee.
• Court: Kansas Supreme Court

189 P.3d 508

Ruthie M. HALL, Appellant, v. DILLON COMPANIES, INC., Appellee.

No. 99,476.

Supreme Court of Kansas.

July 25, 2008.

Bruce Alan Brumley, of Topeka, argued the cause and was on the brief for the appellant.

Scott Mann, of Mann Law Offices, LLC, of Hutchinson, argued the cause and was on the brief for the appellee.

Timothy A. Short, of Pittsburg, amicus curiae.

Stephen J. Jones, of Law Office of Stephen J. Jones, of Wichita, for amicus curiae Mona S. Carthel.

Michael L. Snider, of Snider & Seiwert, LLC, of Wichita, for amicus curiae Kansas Coalition for Workplace Safety.

Jan Fisher, of McCullough, Wareheim & LaBunker, P.A., of Topeka, for amicus curiae Kansas AFL-CIO.

Jeff K. Cooper, of Topeka, for amicus curiae Kansas Association for Justice.

Michael Wallace, of Shawnee Mission, for amicus curiae Int'l Union of United Auto Workers, Local No. 31.

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

This workers compensation case comes before the court on transfer from the Court of Appeals. The appellant, Ruthie M. Hall, challenges the percentage of disability determined by the Workers Compensation Board (Board) and argues that this court should reverse its recent decision in Casco v. Armour Swift-Eckrich, 283 Kan. 508, 154 P.3d 494 (2007).

The relevant history leading to this appeal is not in dispute. Hall began her employment with Dillon Companies, Inc. (Dillons) in December 1995. She began to experience pain in her hands, arms, and shoulders toward the end of October 2001, and the pain grew worse during the course of her employment at Dillons. She was working as a delicatessen clerk at the time she was injured, working 40-hour weeks and earning a base hourly wage of $10.85. The parties stipulated that the injury arose in the course of her employment and continued through January 2004. She lost her job with Dillons for reasons unconnected to her injury, and her last date of employment there was January 30, 2004.

She was later hired by Wal-Mart, which offered her employment within her work restrictions. She is now employed as a delicatessen clerk at Wal-Mart, where she works 32-hour weeks at an hourly wage of $11. Although her hourly pay is higher at Wal-Mart, she earns 35.85 percent less on a weekly basis there than she earned at Dillons. Hall's medical condition does not impede her employment at Wal-Mart. Her duties at Wal-Mart are similar to her duties at Dillons, but the manner in which she performs the duties are sufficiently different that they do not conflict with her work restrictions.

On April 6, 2004, Hall filed an application for a hearing with the Division of Workers Compensation. Following a hearing, the administrative law judge (ALJ) found that she suffers from a 10 percent permanent partial disability in her left upper extremity and a 10 percent permanent partial disability in her right upper extremity. She awarded Hall 20 weeks of permanent partial disability compensation at $289.35 per week for each extremity, for a total award of $11,574. Following a timely application for review, the Board affirmed the ALJ's decision.

Hall filed a timely notice of appeal with the Court of Appeals, and this court assumed jurisdiction following transfer under K.S.A. 20-3018(c).

ANALYSIS

The Right-Hand Disability Rating

Hall initially asks us to reverse the finding that she suffers from a 10 percent permanent partial disability in her right extremity and maintains the uncontroverted evidence supports an additional 6 percent impairment.

Standard of Review

The standard of review when an appellant challenges a factual determination by the Board was set out in Graham v. Dokter Trucking Group, 284 Kan. 547, Syl. ¶ 1, 161 P.3d 695 (2007). This standard is highly deferential to the factual conclusions that the Board reaches when substantial competent evidence supports those conclusions:

"An appellate court's scope of review on a question of fact arising from an administrative proceeding is defined by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions [K.S.A. 77-601 et seq.]. The Act provides that the court shall grant relief only if an agency action is based on a determination of fact, made or implied, that is not supported by evidence that is substantial when viewed in light of the record as a whole. [K.S.A. 77-621(a)(7).] Substantial evidence in the workers compensation context is evidence possessing something of substance and relevant consequence to induce conviction that an award is proper; it furnishes a basis of fact from which an issue can be resolved reasonably. The court reviews the evidence in the light most favorable to the prevailing party and does not reweigh competing evidence or assess credibility of witnesses. The Workers Compensation Board's findings will be upheld if supported by substantial evidence even though other evidence in the record would have supported contrary findings. Appellate determination of whether the Board's findings of fact are supported by substantial competent evidence raises a question of law."

Under the Kansas Workers Compensation Act, the burden of proof rests "on the claimant to establish the claimant's right to an award of compensation and to prove the various conditions on which that right depends." K.S.A.2007 Supp. 44-501(a). "Burden of proof" means "the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party's position on an issue is more probably true than not true on the basis of the whole record." K.S.A.2007 Supp. 44-508(g).

The Board's determination that a party did not meet his or her burden of proof is a negative finding. Our standard of review for a negative finding of fact is that the party challenging the finding must prove arbitrary disregard of undisputed evidence or must prove some extrinsic consideration such as bias, passion, or prejudice. Nance v. Harvey County, 263 Kan. 542, 551, 952 P.2d 411 (1997).

The Disability Rating

The Board awarded Hall compensation for a 10 percent permanent partial disability to her right upper extremity. Hall contends on appeal that uncontroverted evidence supports her claim for an additional 6 percent impairment for instability in the wrist of her right hand.

Dr. Pedro Murati, M.D., testified by deposition that Hall has an instability in the right wrist that was additional to the carpal tunnel injury noted by other experts. Dr. Murati examined Hall on September 7, 2004, and on July 7, 2005. He concluded that she was experiencing mild carpal tunnel syndrome and assigned her a 10 percent impairment to each arm. He also noted the wrist instability that gives rise to the issue now before us. The other examining medical specialists made no mention of the instability. Hall concludes that because no other medical evidence expressly rejected the wrist-instability rating, the evidence from Dr. Murati is uncontroverted and must be included in the disability calculation.

At least five medical consultants, including Dr. Murati, examined Hall as a consequence of the pain that she reported. Four of them made no mention of wrist instability.

Dr. Ian Yeats, M.D., examined Hall a number of times from November 2001 through September 2003. Dr. J.E. Harrington, D.O., examined Hall on September 10, 2002. He concluded at that time that she was experiencing a connective tissue disorder. Dr. Malaz Almsaddi, M.D., examined Hall on November 1, 2002, and on April 3, 2003, and found symptoms suggesting the onset of mild bilateral carpal tunnel syndrome. None of these physical examinations suggested to the examiners that Hall was experiencing instability in her right wrist.

At the request of the parties, the ALJ ordered a neutral medical examination by Dr. C. Reiff Brown. Dr. Brown examined Hall on March 7, 2006. He determined that she had mild bilateral carpal tunnel syndrome resulting from her employment at Dillons. He found she was experiencing nighttime paresthesias and intermittent numbness of the middle fingers of both hands, with pain extending upward into her arms. He recommended that she permanently avoid work involving frequent flexion and extension of her wrists at greater than 30-degree angles and that she avoid work involving tools that require grasping by the hands. Dr. Brown determined that Hall suffered a 10 percent impairment to each arm and a combined 12 percent whole-body impairment. He also made no mention of wrist instability in his reports or deposition.

Hall argues that, because Dr. Murati provided evidence of a wrist-instability injury and no other expert contradicted that evidence, the evidence is therefore undisputed and this court must find as a matter of law that she has a compensable wrist-instability injury. This argument appears to suggest that a medical examiner must explicitly and on the record rule out every possible diagnosis except for the specific diagnosis that he or she is making. Such a requirement would be burdensome and unnecessary. One doctor found wrist instability; four others who examined Hall did not find that instability. Dr. Murati himself testified that Dr. Harrington, who is an orthopedic surgeon, should have noticed the wrist instability if it had been present when Dr. Harrington examined Hall. The fact that the other examining doctors did not diagnose wrist instability is evidence enough to render the existence of the injury a disputed question of fact.

Hall has not proven "arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice." Nance, 263 Kan. at 551, 952 P.2d 411. The ALJ discussed Dr. Murati's findings but found "that Dr. Brown's opinion is the most reliable." The Board also set out Dr. Murati's diagnosis and agreed with the ALJ, finding that Dr. Brown's opinion was "the most persuasive."

Contrary to Hall's argument, the evidence was not undisputed. Neither the ALJ nor the Board disregarded Dr. Murati's diagnosis, and Hall...