Roberts v. J.C. Penney Co.

• Decision Date: 12 December 1997
• Docket Number: No. 76313,76313
• Citation: 263 Kan. 270,949 P.2d 613
• Parties: Jamie D. ROBERTS, Appellant, v. The J.C. PENNEY COMPANY and Liberty Mutual Insurance Company, Appellees.
• Court: Kansas Supreme Court

Page 613

949 P.2d 613

263 Kan. 270

Jamie D. ROBERTS, Appellant, v. The J.C. PENNEY COMPANY and Liberty Mutual Insurance Company, Appellees.

No. 76313.

Supreme Court of Kansas.

Dec. 12, 1997.

Syllabus by the Court

1. Standards of review for decisions of the Workers Compensation Board are stated and applied.

2. K.S.A. 44-519 is a specific legislative mandate, not a technical rule of evidence.

3. A vocational rehabilitation expert is not qualified to express his or her own opinion regarding the medical evidence and must rely upon the opinions of health care providers in order to form an opinion. Therefore, his or her opinion merely reflects and expresses the medical opinions of absent health care providers.

4. An expert witness may base opinions upon matters within his or her personal knowledge or observation, or upon competent evidence in the case, or upon both.

5. Opinions formed by vocational rehabilitation experts relying upon evidence from nontestifying health care providers are based on an insufficient foundation and are prohibited by K.S.A. 44-519.

6. Although medical experts may rely upon the reports of nontestifying physicians in forming their opinions, this differs from allowing a vocational rehabilitation expert to do so. Such medical experts have the training and experience to interpret and evaluate the soundness of other medical reports and also have the expertise to form their own medical opinions. Vocational rehabilitation experts, however, do not have medical expertise and are not competent to assess the soundness of medical opinions in the reports of health care providers. Nor may they formulate their own medical opinions.

7. Medical experts may be cross-examined regarding the basis for their own medical opinions and may be questioned as to their assessment of the reliability of the data and opinions they have examined and utilized. Vocational rehabilitation experts, on the other hand, cannot be cross-examined regarding the soundness of the medical opinions they have relied upon.

Chris Miller, Lawrence, argued the cause and was on the briefs for appellant.

James C. Wright, of Wright & Shafer, Topeka, argued the cause and was on the brief for appellees.

LARSON, Justice:

This workers compensation appeal questions the construction of K.S.A. 44-519 relating to usage of written reports of health care providers by a vocational rehabilitation expert without the testimony of the health care provider being properly admitted as competent evidence in a proceeding for the determination and collection of compensation.

Jamie D. Roberts appealed the Workers Compensation Appeals Board (Board) decision that it would not consider the testimony of a vocational rehabilitation expert as to her work disability. The expert's opinion was based upon restrictions and recommendations contained in medical reports of physicians which were not admitted as competent evidence in the case.

The Court of Appeals reversed the Board in Roberts v. J.C. Penney Co., 23 Kan.App.2d 789, 935 P.2d 1079 (1997), holding that K.S.A. 44-519 applies only when a party seeks to admit the report of a health care provider and that vocational rehabilitation experts may rely on the reports of health care providers which have not been introduced into evidence.

We granted the petition for review of the respondent, J.C. Penney Company (J.C. Penney), and its insurance carrier, Liberty Mutual Insurance Company (Liberty Mutual). For the reasons hereinafter stated, we reverse the Court of Appeals and affirm the Board's decision.

Factual and procedural background

Roberts suffered a work-related back injury in February 1990. She continued working for several weeks until the pain became too severe. In September 1990, Roberts was referred to Dr. Roger Jackson, who eventually performed back surgery on her. Roberts contends she remains impaired and is unable to obtain gainful employment.

Dr. Edward J. Prostic, an orthopedic surgeon who examined and evaluated Roberts, testified in his deposition that she had sustained a 40% functional impairment due to her injuries and was capable of performing only light-duty employment.

Roberts' vocational rehabilitation expert, Michael Dreiling, conducted an extended telephone conference with Roberts and reviewed the medical records of Dr. Jackson and other treating or examining physicians. Dreiling formed the opinion that Roberts suffered a 100% work disability, based upon the restrictions and recommendations found in these reports and upon her work background. Dr. Jackson's deposition was not taken, nor were his records introduced into evidence. A few of Dr. Jackson's reports were included in the court's vocational rehabilitation file.

Monty Longacre, the vocational rehabilitation expert for J.C. Penny and Liberty Mutual, reviewed the deposition and medical records of Dr. Prostic, read the regular hearing transcript, and held a telephone interview with Roberts. He testified in his deposition that Roberts had suffered a 36% loss of her ability to access jobs in the open labor market and no loss of her ability to earn comparable wages.

The ALJ considered the opinions of both Dreiling and Longacre in finding Roberts had suffered a 59% permanent partial disability as a result of her work-related injury.

In meeting the argument that K.S.A. 44-519 precluded consideration of Dreiling's testimony and opinion, the ALJ stated:

"In my opinion the case of Boeing Military Airplane Company v. Enloe, 13 Kan.App.2d 128, 764 P.2d 462 (1988), rev. denied, 244 Kan. 736 adequately disposes of this argument. It is there held that K.S.A. 44-519 does not limit the information a testifying physician or surgeon may consider in rendering his or her opinion as to the condition of an injured employee. Further, K.S.A. 44-519 does not prevent a testifying physician from considering medical evidence generated by other absent physicians as long as the testifying physician is expressing his or her own opinion rather than the opinion of the absent physician. In addition, when a claim is made that evidence was erroneously admitted in a workers compensation proceeding the court will affirm when the decision is based on substantial and satisfactory evidence even though some evidence is not technically admissible under the rules of evidence. In 13 Kan.App.2d at page 130 the court stated: 'the statute [K.S.A. 44-519] literally applies only when a party seeks to introduce a report or certificate of a physician or surgeon into evidence.' The court further noted at page 131 that a contrary interpretation would unduly complicate workers compensation proceedings, create more expense and delay the resolution of claims for injured workers. I hold that this rationale extends to the opinions of vocational experts."

Both parties requested review by the Board. Pointing out that Dreiling had based his conclusions upon the opinions of physicians that did not testify and whose reports were not placed into evidence, the Board ruled the ALJ had erred in considering Dreiling's opinion. The Board stated:

"The determination of loss of ability to perform work in the open labor market and loss of ability to earn comparable wages is critical in determining an injured worker's right to permanent partial disability benefits under K.S.A.1989 Supp. 44-510e. Unless the medical information utilized by the labor market expert is part of the evidentiary record, the expert's opinion that is based upon that information is without foundation and should not be considered by the trier of facts when timely objections are lodged. To hold otherwise would be to circumvent the intent of K.S.A. 44-519 (Ensley) that provides that no report of any examination by a health care provider is competent evidence to be considered in a workers compensation proceeding unless it is supported by the health care provider's testimony. Although claimant had the opportunity to introduce the medical opinion either by deposition or stipulation, the medical information considered by Mr. Dreiling and which constituted the primary basis for his opinions was never introduced into the evidentiary record."

Based upon the opinion of Longacre, the Board concluded Roberts had suffered an 18% work disability.

In reinstating the award of the ALJ and reversing the Board, the Court of Appeals relied upon Boeing Military Airplane Co. v. Enloe, 13 Kan.App.2d 128, 764 P.2d 462 (1988), rev. denied 244 Kan. 736 (1989), and McKinney v. General Motors Corp., 22 Kan.App.2d 768, 921 P.2d 257 (1996), to hold:

"Boeing and McKinney provide three important rules of law applicable to the present case: (1) Medical testimony is not required to establish a claimant's work disability rating; (2) neither the ALJ nor the Board is bound by technical rules of evidence; and (3) K.S.A. 44-519 applies only when a party introduces a medical report of a nontestifying physician as evidence. Here, the ALJ correctly ruled that a vocational expert could rely on the medical reports of nontestifying physicians which had not been introduced as evidence in the proceeding." 23 Kan.App.2d at 793, 935 P.2d 1079.

Analysis

Our applicable standard of review of the decision of the Board is set forth in Gleason v. Samaritan Home, 260 Kan. 970, 975-76, 926 P.2d 1349 (1996), where we stated:

"The 1993 amendments to the Kansas Workers Compensation Act specifically adopt the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., for workers compensation appeals. K.S.A.1995 Supp. 44-556. The KJRA further states that such review shall be limited to questions of law. K.S.A.1995 Supp. 4-556(a). The determination of whether the Board's findings of fact are supported by substantial competent evidence is a question of law. Berry v. Boeing Military Airplanes, 20 Kan.App.2d 220, 222-23, 885 P.2d 1261 (1994)."

In this case we are required to construe a statute following its review by the Board,...