Langvardt v. Innovative Livestock Servs. & Kan. Livestock Assoc.

• Docket Number: 125,517
• Decision Date: 30 June 2023
• Parties: Steven Langvardt, Appellee, v. Innovative Livestock Services and Kansas Livestock Assoc. Risk Management, Appellants.
• Court: Kansas Court of Appeals

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Steven Langvardt, Appellee, v. Innovative Livestock Services and Kansas Livestock Assoc. Risk Management, Appellants.

No. 125,517

Court of Appeals of Kansas

June 30, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Workers Compensation Board.

D Shane Bangerter, of Bangerter Law, P.A., of Dodge City, for appellants.

Scott J. Mann, of Mann Wyatt Tanksley, of Hutchinson, for appellee.

Before MALONE, P.J., GREEN and ISHERWOOD, JJ.

MEMORANDUM OPINION

PER CURIAM

Innovative Livestock Services and the Kansas Livestock Association (ILS) appeal an award of compensation from the Kansas Workers Compensation Appeals Board (Board). The Board awarded Steven Langvardt benefits for a workplace injury to his back. ILS argues that the Board erred because Langvardt failed to prove that the workplace accident was the prevailing factor in his compensable injury, given his history of back problems. ILS also contests the Board's award of unauthorized medical expenses in excess of $500. And ILS claims a credit against any award for payment of unearned wages. We have considered ILS's contentions and have determined that their contentions are fatally flawed. As a result, we affirm the Board's order.

FACTS

Langvardt started working as an accountant for ILS in 2006. During his employment, he had lumbar spine difficulties, including difficulty walking long distances and prolonged standing. Langvardt underwent imaging scans and epidural steroid injections. In 2014, he had a posterior decompression of three discs and then a lumbar fusion in 2016. Both of those surgeries were performed by Dr. Raymond Grundmeyer.

On October 15, 2018, Langvardt fell through an open access door in the floor, also called a trap door, at work. He struck his upper back on the edge of the floor before landing on his back 5 to 6 feet below. He received an MRI that day. The MRI showed extensive age-related degenerative changes throughout the cervical, thoracic, and lumbar spines.

The authorized treating physician, Dr. John Estivo, diagnosed a thoracic sprain, pain in Langvardt's shoulders, and a nondisplaced fracture of the left small finger. When Langvardt went back to Dr. Estivo in December, Langvardt was using a cane. Dr. Estivo diagnosed a thoracic spine strain, a right shoulder labral tear, a left shoulder acromioclavicular separation, and rotator cuff tendinitis, the prevailing factor being the work accident.

A week later, Langvardt returned for an appointment and reported lower extremity weakness, with difficulty standing and walking. Dr. Estivo ordered an MRI of the lumbar spine. That MRI showed evidence of a previous lumbar spine fusion and degenerative changes, but no other abnormalities, such as a compressed spine. Dr. Estivo testified that the MRI of Langvardt's lumbar region did not explain his lower extremity complaints.

In January 2019, Dr. Estivo reviewed Langvardt's records. The MRI from the day of the accident "reveal[ed] advanced degenerative changes throughout the thoracic spine with multiple bulging degenerative discs. No acute abnormalities are seen." Dr. Estivo determined that Langvardt reached maximum medical improvement (MMI) for his work-related injuries. Dr. Estivo opined that Langvardt's remaining spinal issues were due to his preexisting advanced degenerative disc disease of the thoracic spine. Dr. Estivo stated that the work incident was not the prevailing factor in Langvardt's spinal condition.

The neurosurgical consultant, Dr. John Dickerson, agreed that Langvardt reached MMI for his work accident and that the need for treatment came from the underlying condition of his back. Dr. Dickerson also wrote that Langvardt had extensive age-related degenerative changes throughout the cervical thoracic, and lumbar spine. By the time Langvardt saw Dr Dickerson, he had significant back pain and had gone from using a cane to using a walker, and to using a wheelchair to get around at work. Dr. Dickerson performed laminectomies at T6-7 to decompress Langvardt's spinal cord.

In April 2019, Langvardt got up from his wheelchair and felt a pop in his back. An MRI showed a "'blown out'" disc, and Dr. Dickerson performed a transpedicular microdiscectomy to remove fragments that had broken off and were pressing on the spinal cord.

ILS and Langvardt also reached a severance agreement. Langvardt released ILS from liability with a covenant not to sue. In exchange, ILS agreed to pay Langvardt biweekly wages from April 2019 to August 2019, when his Social Security retirement benefits began.

In May 2019, the administrative law judge (ALJ) conducted a settlement hearing with Langvardt appearing by phone from a rehabilitation hospital. In the phone conversation, Langvardt "agreed to a lump sum payment of $20,512.50, closing out all issues. Shortly thereafter, [Langvardt] changed his mind after being told by physical therapists his condition was permanent, he would never walk again and he would need modifications to his home." Langvardt told ILS that he wanted to reverse the settlement, and he appealed the settlement to the Board. When the Board set aside the settlement, ILS appealed to this court, which dismissed ILS's appeal as not stemming from a final agency action.

After remand, Langvardt sought out Dr. Paul Stein to perform a records review of his case. Dr. Stein concluded that the work accident was the prevailing factor in Langvardt's spinal injury. He testified that Langvardt's previous issues in the lumbar region were unconnected: "The reasoning behind it was that the thoracic spine is very different from the lumbar spine in that the thoracic spine, you have the rib cage which stabilizes the spine considerably."

Dr. Stein agreed that the MRI from the day of the injury showed preexisting degenerative disc disease in the thoracic spine and some disc bulging but not a true disc herniation. Dr. Stein testified: "[Y]ou have very little movement in the thoracic spine, and the pathology, like dis[c] herniation or spinal stenosis in the thoracic spine is very uncommon, very, very, very uncommon. I think in all of my years of doing active surgery I operated on maybe three cases." He believed that Langvardt's workplace injury caused trauma to the thoracic region, with a later edema-which usually takes days or weeks to develop. Dr. Stein testified about the surgery to correct the edema as follows:

"Doctor Dickerson did not take out any dis[c], he just took out a lot of bone and ligament to make more room for the spinal cord, and I'm not saying that was inappropriate, that was appropriate, but what happened as a result of all of that is that he became even more unstable in that area and that's what resulted in that large dis[c] rupture that he subsequently went in to remove, and that's my opinion."

Dr. Dickerson wrote a letter in 2020 to state that he did not write the 2019 letter which stated Langvardt's condition was not caused by the workplace accident. Dr. Dickerson testified that the earlier letter was written by a midlevel employee who summarized medical records. He stated that the 2019 letter did not represent his medical opinions. Dr. Dickerson testified that the accident was the prevailing factor for the T6-7 herniation, and he erred by not reading the 2019 letter closely when reviewing his midlevel employee's work.

ILS had Dr. Alexander Bailey review Langvardt's records. Dr. Bailey reported that Langvardt's preexisting medical condition consisted of an entire spine in severe degenerative state, several surgeries since 2013, previous problems walking and standing, numbness, and a need for crutches or a cane. Dr. Bailey concluded that Langvardt's condition was not related to the workplace accident. Dr. Bailey opined that the prevailing factor is the random event of progression of spine degeneration. The cause is "'unknown specific reason.'"

At a preliminary hearing, the ALJ initially denied the compensability of Langvardt's claim. In the order, the ALJ stated the following:

"The court has serious concerns about the shifting positions of Dr. Dickerson. It is difficult to believe that he would approve the March 7, 2019 letter without reading it, and even a cursory review of the letter demonstrates an opinion that the work injury was not the prevailing factor for the subsequent herniation at T6,7. It should be noted that Dr. Dickerson did not fuse the thoracic spine when he did the first surgery in January, 2019, but removed bone thereby weakening the spine and leading to the subsequent catastrophic reherniation that left Langvardt a paraplegic. The shifting opinion could be perceived as an effort to shift responsibility for Langvardt's paraplegia from the surgery he performed to the work accident."

After the preliminary hearing, the ALJ ordered a neutral independent medical examination by orthopedic surgeon Dr. Theodore Koreckij. Dr. Koreckij testified that he looked closely at the MRI from the day of the accident and found nothing significant. He testified that if the accident caused spinal edema, it should have been visible that day. He testified that thoracic herniations are due to degeneration or trauma but stated that Langvardt's herniation within 60 days of the accident was just a coincidence. Dr. Koreckij testified: "'I don't have a cause for the actual disc herniation. I did not feel it was related to the work injury in question.... I don't have a good reason as to why he had a disc herniation.'"

The ALJ found that "the greater weight of the medical evidence before the court, including the opinions of Drs. Estivo, Bailey and Koreckij, establishes that the work accident of October 15, 2018 was not the prevailing factor for the subsequent herniation at T6,7 and Langvardt's resulting paraplegia."

Langvardt...