Nance v. Harvey County

• Court: Kansas Court of Appeals
• Writing for the Court: Before KNUDSON, P.J., PIERRON, J., and PADDOCK; PIERRON
• Citation: Nance v. Harvey County, 937 P.2d 1245, 23 Kan.App.2d 899 (Kan. App. 1997)
• Decision Date: 02 May 1997
• Docket Number: No. 75703,75703
• Parties: Michael G. NANCE, Claimant/Appellant, v. HARVEY COUNTY, Respondent/Appellee, and Northwestern National Casualty, Insurance Carrier/Appellee.

Page 1245

937 P.2d 1245

23 Kan.App.2d 899

Michael G. NANCE, Claimant/Appellant, v. HARVEY COUNTY, Respondent/Appellee and Northwestern National Casualty, Insurance Carrier/Appellee.

No. 75703.

Court of Appeals of Kansas.

May 2, 1997.

Review Granted July 11, 1997.

Syllabus by the Court

1. A worsening of an injury which is the result of the normal aging process and the passage of time is a natural and probable consequence of a primary injury.

2. Where there is undisputed testimony that a primary injury has worsened, no evidence that an intervening injury has occurred, and the testimony supports the conclusion that the change could well be the result of the normal aging process and the passage of time, it is error to find the claimant has failed to meet his or her burden of proof to establish grounds for review and modification.

Steven L. Foulston, Wichita, for appellant.

James A. Cline, Wichita, for appellee.

Before KNUDSON, P.J., PIERRON, J., and PADDOCK, Special Judge.

PIERRON, Judge:

Michael G. Nance appeals from an order of the Workers Compensation Board (Board) denying his request for review and modification pursuant to K.S.A. 44-528 and finding he failed to prove by a preponderance of the evidence that his worsened condition was related to his industrial injury of April 20, 1990. We reverse.

The parties do not dispute that Nance was injured while working within the course and scope of his employment with Harvey County on April 20, 1990. Northwestern National Insurance Group is Harvey County's insurer.

Harvey County paid Nance compensation for temporary total disability and medical treatment/benefits. On February 14, 1994, the administrative law judge (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 found Nance had sustained only a 3.5% permanent partial impairment to the body as a whole on a functional basis.

Nance appealed to this court, arguing only against the constitutionality of the Board. Pursuant to Sedlak v. Dick, 256 Kan. 779, 887 P.2d 1119 (1995), we sustained Nance's appeal, vacated the Board's decision, and remanded the case to the newly constituted Board for a rehearing. Nance v. Harvey County, 902 P.2d 508 (Kan.App.1995). On November 9, 1995, the Board adopted its previous decision that Nance 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. The ALJ granted Nance's motion and he received treatment from Dr. Anthony G.A. Pollock.

On January 27, 1995, Nance filed a motion for review and modification, alleging that his functional impairment and work disability had increased since the original award. Nance submitted the testimony of Dr. Pollock and Jerry Hardin for supporting evidence. Pollock testified concerning Nance's functional impairment. Hardin testified concerning Nance's loss of ability to perform work in the open labor market and ability to earn comparable wages. Harvey County did not submit any evidence. The ALJ issued an award increasing Nance's permanent partial general bodily disability to 50%, finding: "The only evidence offered on the issues herein is that offered by claimant. The opinions of Dr. Anthony G.A. Pollock and of Mr. Jerry D. Hardin are found to be reasonable, are not improbable, are not contradicted and therefore are adopted as fact."

Harvey County filed for review before the Board. The Board reversed the award, concluding that Nance failed to prove by a preponderance of credible evidence that his worsened condition was related to the injury he suffered on April 20, 1990, and denied his request for review and modification.

Nance argues the Board committed reversible error when it concluded he failed to prove by a preponderance of the evidence that his worsened condition was related to this injury on April 20, 1990.

The 1993 workers compensation amendments limited review of all orders issued after October 1, 1993, to questions of law. K.S.A. 44-556(a). Whether the Board's findings of fact are supported by substantial competent evidence (K.S.A.77-621[c] ) is a question of law. See Guerrero v. Dold Foods, Inc., 22 Kan.App.2d 53, Syl. p 1, 913 P.2d 612 (1995).

K.S.A. 44-556 provides that workers compensation appeals are subject to the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The relevant scope of review is set forth in K.S.A. 77-621(c)(7):

"(c) The court shall grant relief only if it determines any one or more of the following:

....

(7) 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."

In a workers compensation appeal, substantial evidence is "evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing substantial basis of fact from which the issue tendered can be reasonably resolved." Angleton v. Starkan, Inc., 250 Kan. 711, Syl. p 3, 828 P.2d 933 (1992). Additionally, this court may not reweigh the evidence presented at the agency hearing or determine the weight or credibility of the witnesses' testimony. See City of Wichita v. Employment Security Bd., 13 Kan.App.2d 729, 733, 779 P.2d 41 (1989).

"In a workers compensation case, if evidence is presented that is uncontradicted, and not improbable, unreasonable, or shown to be untrustworthy, the finder of fact cannot disregard this evidence. Uncontradicted evidence should generally be regarded as conclusive. Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 380, 573 P.2d 1036 (1978)." Foulk v. Colonial Terrace, 20 Kan.App.2d 277, 285, 887 P.2d 140 (1994).

Harvey County argues our standard of review is based upon a review of a negative finding. It indicates the Board found Nance had failed to sustain his burden of proof, namely, demonstrating by a preponderance of the evidence that his worsened condition was related to his workers compensation injury. As a result, Harvey County contends our standard of review is as follows:

" 'The effect of a negative finding by a trial court is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice the finding of the trial judge [now the Workers Compensation Board] cannot be disturbed. An appellate court cannot nullify a trial judge's disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.' [Citation omitted.]" Mohr v. State Bank of Stanley, 244 Kan. 555, 567-68, 770 P.2d 466 (1989).

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). A modification for changed conditions cannot be made without comparing a claimant's condition at the time of the award with the condition at the time the modification is sought. Gile v. Associated Co., 223 Kan. 739, 741, 576 P.2d 663 (1978). K.S.A.1996 Supp. 44-501(a) provides that a claimant shall have the burden to prove the right to an award of compensation and to prove the various conditions on which that right depends.

In overruling Nance's award from the ALJ, the Board stated:

"The only medical evidence dealing with claimant's increased symptomatology comes from Dr. Anthony Pollock. Dr. Pollock, a board-certified orthopedic surgeon, had the opportunity to examine and treat claimant both for the 1990 injury and for the 1994 condition. While he noted the MRIs performed on claimant in October, 1994 showed a definite increase in the disc herniation at L5-S1, Dr. Pollock had significant difficulty attributing this progressive condition to claimant's 1990 injury. He was asked specifically the cause of this increased condition and testified at various places in the transcript that the condition was caused by progressive degenerative disc disease, or possibly from the natural aging process; in another place he testified that he did not know what the cause was but he felt it may be the natural aging process; and finally he testified that he was not sure if it was caused by the injury or the natural aging process. The Appeals Board finds Dr. Pollock cannot relate claimant's worsened condition to the 1990 work-related injury."

We note there appears to be no evidence in the record that Dr. Pollock treated Nance in 1990. It was Dr. Poole who treated Nance in 1990. Pollock first saw Nance on June 22, 1994.

Nance argues the only testimony presented on this issue was that of Dr. Pollock, which supported his position. Nance contends Dr. Pollock testified that: (1) there was no evidence that Nance had any injury to, or aggravation of, his lower back after April 20, 1990; (2) Nance's lower back condition, i.e. herniation of his L5-S1 disc and accompanying degenerative disc disease, had significantly worsened since Dr. Poole saw Nance in 1990; (3) Nance experienced the same problems now that he had had after his injury except the condition was worse; and (4) the herniated disc and condition of Nance's lower back were expected to deteriorate and that was most likely what had occurred. Nance argues this testimony was not shown to be unreliable or unreasonable and, therefore, the Board was required to adopt it since it was uncontroverted.

Harvey...