Roberts v. J.C. Penney Co.

• Decision Date: 11 April 1997
• Docket Number: No. 76313,76313
• Citation: 935 P.2d 1079,23 Kan.App.2d 789
• Parties: Jamie D. ROBERTS, Claimant/Appellant, v. The J.C. PENNEY COMPANY, Respondent/Appellee, Liberty Mutual Insurance Company, Insurance Carrier/Appellee, and The Kansas Workers Compensation Fund.
• Court: Kansas Court of Appeals

Page 1079

935 P.2d 1079

23 Kan.App.2d 789

Jamie D. ROBERTS, Claimant/Appellant, v. The J.C. PENNEY COMPANY, Respondent/Appellee Liberty Mutual Insurance Company, Insurance Carrier/Appellee and The Kansas Workers Compensation Fund.

No. 76313.

Court of Appeals of Kansas.

April 11, 1997.

Review Granted July 10, 1997.

Syllabus by the Court

1. Medical evidence is not essential to the establishment of the existence, nature, and extent of an injured worker's disability.

2. In workers compensation cases, the administrative law judge and the Workers Compensation Board are not bound by the technical rules of procedure and are to give the parties a reasonable opportunity to be heard and present evidence.

3. K.S.A. 44-519 applies only when a party introduces the medical report of a nontestifying physician as evidence.

4. A vocational expert may rely on the medical reports of nontestifying physicians which have not been introduced into evidence.

Chris Miller, Lawrence, for appellant.

James C. Wright, of Wright & Shafer, Topeka, for appellees.

Before MARQUARDT, P.J., GREEN, J., and CAROL J. BACON, District Judge, Assigned.

CAROL J. BACON, District Judge, Assigned:

Jamie D. Roberts appeals from the ruling of the Workers Compensation Board (Board), which found that K.S.A. 44-519 requires the exclusion of vocational expert testimony regarding the percentage of a claimant's work disability when that percentage is based on restrictions contained in medical reports generated by an absent, nontestifying, treating physician.

Roberts suffered a work-related back injury in February 1990. Following this injury, Roberts continued working, but after a few weeks, she had to stop due to the pain. In September 1990, Roberts was referred to Dr. Roger Jackson for back surgery. Thereafter Roberts went through vocational rehabilitation, which was ultimately unsuccessful. Roberts contends that she is unable to return to gainful employment as a result of her injury.

Dr. Edward J. Prostic, a board-certified orthopedic surgeon who examined and evaluated Roberts, testified that she had sustained a 40 percent functional impairment and was only capable of performing light-duty employment. Michael Dreiling, Roberts' vocational expert, testified that Roberts had suffered a 100 percent work disability. Dreiling's conclusions were based on the restrictions noted in the medical records of Dr. Jackson, Roberts' treating physician, as well as those of other doctors who had seen Roberts for this injury. Dr. Jackson's deposition was not taken and, subsequently, his records were not introduced into evidence. However, Dr. Jackson's records were part of the vocational rehabilitation information on file with the Kansas Division of Workers Compensation and were, therefore, available to counsel.

Monty Longacre, the vocational expert for J.C. Penney Company (Penney), testified that although Roberts had sustained a 36 percent loss in her ability to perform in the open market, she had suffered no loss in her ability to earn comparable wages.

After considering the opinions of Longacre and Dreiling, an administrative law judge (ALJ) found that Roberts had suffered a 59 percent permanent partial disability as a result of her work-related injury. On appeal, the Board modified the ALJ's award, finding that

"[t]he determination of loss of ability to perform work in the open labor market and loss of ability to earn compensable 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.... 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 on Longacre's testimony, the Board found that claimant had only an 18 percent work disability. Roberts appeals.

In workers compensation cases, the scope of appellate review is limited. See K.S.A.1996 Supp. 44-556; K.S.A. 77-621. Under K.S.A. 77-621(c), relief will be granted only if it is determined that any one or more of the following has occurred:

"(4) the agency has erroneously interpreted or applied the law;

...

"(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, ... or

"(8) the agency action is otherwise unreasonable, arbitrary or capricious."

K.S.A. 44-510e(a) states in pertinent part:

"The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury." (Emphasis added.)

K.S.A. 44-519 provides:

"No...