Nance v. Harvey County

• Decision Date: 30 December 1997
• Docket Number: No. 75703,75703
• Citation: 263 Kan. 542,952 P.2d 411
• Parties: Michael G. NANCE, Appellant, v. HARVEY COUNTY and Northwestern National Casualty, Appellees.
• Court: Kansas Supreme Court

Page 411

952 P.2d 411

263 Kan. 542

Michael G. NANCE, Appellant, v. HARVEY COUNTY and Northwestern National Casualty, Appellees.

No. 75703.

Supreme Court of Kansas.

Dec. 30, 1997.

Syllabus by the Court

1. K.S.A. 44-528 permits modification of workers compensation awards in order to conform to changed conditions. This statute was intended to permit modification of awards when the condition of an injured employee either improves or worsens after the original hearing and award.

2. Where evidence establishes that disability results because of the normal aging process and not from any identifiable injury occurring on the job within the scope of employment, compensation under the Kansas Workers Compensation Act is unwarranted.

3. Once the work-connected character of any injury, such as a back injury, has been established, the subsequent progression of that condition remains compensable under the Kansas Workers Compensation Act so long as the worsening is not shown to have been produced by an independent nonindustrial cause.

4. When a primary injury under the Kansas Workers Compensation Act is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.

5. Since 1993, the decision of the administrative law judge in workers compensation cases is subject to review by the Workers Compensation Board, and such review is a prerequisite for appeal. The Board has the power to review both questions of law and fact. The Board's determination is then appealable directly to the Court of Appeals, which is limited to reviewing questions of law in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq.

6. Under the Act for Judicial Review and Civil Enforcement of Agency Actions, the Court of Appeals may only grant relief from a Workers Compensation Board decision if it determines that the agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied; the agency has acted beyond the jurisdiction conferred by any provision of law; the agency has not decided an issue requiring resolution; the agency has erroneously interpreted or applied the law; the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure; the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification; 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; or the agency action is otherwise unreasonable, arbitrary, or capricious. K.S.A. 77-621(c).

7. A negative finding of fact will not be disturbed on appeal absent an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice.

Steven L. Foulston, Wichita, argued the cause and was on the brief, for appellant.

James A. Cline, of Law Office of James A. Cline, Wichita, argued the cause and was on the brief, for appellee.

DAVIS, Justice:

This is a workers compensation appeal. Michael Nance, an employee of Harvey County, was injured while working within the course and scope of his employment. He was awarded temporary total disability, permanent general body disability, and permanent partial general body disability as a result of this injury. He moved for review and modification of the award pursuant to K.S.A. 44-528. Upon review, evidence established that his condition had worsened. The administrative law judge (ALJ) awarded additional compensation. The Workers Compensation Board (Board) reversed, concluding the worker did not establish causation with regard to his worsened condition and that the worsened condition was attributable to the normal aging process. We affirm the Court of Appeals' decision reversing the Board.

Facts

On April 20, 1990, Nance was working for Harvey County. He was unloading a stack of bridge planks when the stack began to fall. Nance prevented the stack from falling. He did not notice any physical problems at that time. Approximately 30 minutes later, after working underneath a truck, he found he could not get off the creeper. When he finally could get up, he was in pain. There is no dispute that Nance was injured while working within the course and scope of his employment with Harvey County.

Harvey County paid Nance compensation for temporary total disability and medical treatment/benefits. On February 14, 1994, the ALJ found that Nance sustained a 9% permanent partial general bodily disability as a result of his injuries. Nance requested a review by the Board. On July 28, 1994, the Board issued its decision. In discussing the matter, the Board noted:

"[C]laimant's attitude, potential misrepresentation and apparent lack of effort creates an unreliable record from which to assess the claimant's abilities in either performing work in the open labor market or earning comparable wages. The opinion of two qualified treating physicians that claimant was intentionally attempting to mislead them coupled with the security testimony provided by Barbara Steil of Silver Hawk Investigators and claimant's attempted manipulation when tested on the Cybex machine creates a record so clouded as to make it impossible to assess what, if any, work disability may or may not exist in this matter."

Nevertheless, the Board found Nance had sustained a 3.5% permanent partial impairment to the body as a whole on a functional basis. He was awarded temporary total disability, permanent general body disability, and permanent partial general body disability in the total amount of $35,132.83.

Nance appealed the decision to the Court of Appeals, arguing only that the Board was unconstitutional. Pursuant to Sedlak v. Dick, 256 Kan. 779, 887 P.2d 1119 (1995), the Court of Appeals in an unpublished decision sustained Nance's appeal, vacated the Board's decision, and remanded the case to the newly constituted Board for a rehearing. On November 9, 1995, the Board adopted its previous decision that Nance had sustained a 3.5% permanent partial functional impairment.

During the pendency of his first appeal, Nance filed a motion for post-award medical treatment on July 21, 1994. Nance's motion was granted, and he received treatment from Dr. Anthony G.A. Pollock.

Soon thereafter, on January 27, 1995, Nance filed a motion for review and modification pursuant to K.S.A. 44-528. K.S.A. 44-528 permits modification of awards in order to conform to changed conditions. This statute was intended to permit modification of awards when the condition of an injured employee either improves or worsens after the original hearing and award. See Brandt v. Kansas Workers Compensation Fund, 19 Kan.App.2d 1098, Syl. p 2, 880 P.2d 796, rev. denied 256 Kan. 994 (1994). In his motion for modification, Nance alleged that his functional impairment and work disability had increased since receipt of the original award. It is this motion for review and modification that forms the substance of this appeal.

In support of his motion, Nance introduced the deposition testimony of Dr. Pollock, who testified that he had examined Nance. Dr. Pollock indicated that Nance had come to him complaining of pain in his right shoulder and lower back as well as numbness and a burning sensation in his toes. Dr. Pollock had an MRI done, which revealed a bulging of the disc in the L5-S1 area. The bulging was obviously greater than in the 1990 MRI. Dr. Pollock stated that in his opinion, Nance's back condition was significantly worse than it was in 1990. Dr. Pollock opined that the defendant now has a 7% permanent partial impairment of function to the body as a whole and needs certain permanent work restrictions as a result of his worsened condition. These work restrictions include (1) a limitation to occasional bending, i.e., six times per hour; (2) lifting restrictions of 25 to 30 pounds occasionally and 15 to 20 pounds repetitively; and (3) no excessive twisting, pushing, or pulling heavy equipment, although Nance could push or pull a 40- to 45-pound load on an occasional basis.

On cross-examination, Dr. Pollock noted that the natural aging process could have been responsible for the worsening of Nance's back. Dr. Pollock admitted that even with the MRI, he could not be absolutely sure what caused the changes in Nance's back. However, he stated that with Nance's back injury, the degenerative changes involved were less surprising than they would be if Nance had had no prior history of back injury.

On redirect, Dr. Pollock stated that he had no reason to believe that Nance had suffered any injuries subsequent to the one in question. Dr. Pollock also stated that in his opinion, Nance had suffered some changes in his L5-S1 disc in 1990, consistent with his claimed injury at that time, and that the disc condition had gotten worse. Dr. Pollock testified that the problem Nance is experiencing now was the same problem as in 1990, only worse.

Jerry Hardin, a personnel placement expert, testified concerning Nance's loss of ability to perform work in the open labor market and ability to earn comparable wages. Hardin stated that as a result of the new restrictions advocated by Dr. Pollock, Nance would suffer a 55 to 60% loss of jobs he could perform as opposed to the 45 to 55% loss he suffered from the injury in 1990. Further, Hardin testified that Nance would suffer a 35% loss of wage earning ability as compared to the 9% loss from the 1990 injury.

Nance also testified. He stated that his back condition had gotten worse, especially within the last year. He denied experiencing any...