Lake v. Jessee Trucking

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No. 109,519

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

GLENN C. LAKE,
Appellant,

v.

JESSEE TRUCKING and CONTINENTAL WESTERN GROUP,
Appellees.


SYLLABUS BY THE COURT

1.
An appellate court's standard of review for cases appealed under the Workers
Compensation Act, K.S.A. 44-501 et seq., is controlled by the Kansas Judicial Review
Act, K.S.A. 77-601 et seq.

2.
Under K.S.A. 2012 Supp. 77-621(c) and (d), an appellate court reviews the
Workers Compensation Board's factual findings to see whether substantial evidence
supports them in light of the whole record, considering evidence both supporting and
detracting from the Board's findings. This substantial-evidence standard evaluates the
reasonableness of the Board's conclusion in terms of the evidence. Substantial evidence is
evidence that a reasonable person would accept as sufficient to support a conclusion.

3.
In a workers compensation proceeding, if an administrative law judge has made
credibility determinations regarding a witness who appeared in person before that judge,
the appellate court must consider those credibility determinations. If the Board disagrees
with those credibility determinations, it should give reasons for disagreeing, and the
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appellate court should consider those reasons on appeal under K.S.A. 2012 Supp. 77-
621(d).

4.
Pursuant to K.S.A. 2012 Supp. 77-621(d), an appellate court does not reweigh the
evidence or engage in de novo review of the Board's factual findings. But the appellate
court must consider all of the evidence—including evidence that detracts from the
Board's factual findings—when assessing whether the evidence is substantial enough to
support those findings. The appellate court must determine whether the evidence
supporting the Board's decision has been so undermined by other evidence that it is
insufficient to support the Board's conclusion.

5.
As a general rule, an employee who suffers personal injury by accident arising out
of and in the course of employment covered by the Workers Compensation Act is owed
compensation under K.S.A. 44-501(a).

6.
Under K.S.A. 44-501(a), a workers compensation injury arises "out of"
employment when there is apparent to the rational mind, upon consideration of all the
circumstances, a causal connection between the conditions under which the work is
required to be performed and the resulting injury. The claimant has the burden to show
that an injury, disease, or condition arose out of the employment.

7.
Under the facts of this workers compensation case, having considered all of the
evidence—including the credibility determinations made by the administrative law judge
regarding the claimant and the reasons given by the Board for disagreeing with those
credibility determinations, the Board's findings of fact in support of its conclusion to
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deny compensation are not supported by substantial evidence when viewed in light of the
record as a whole.

Appeal from Workers Compensation Board. Opinion filed December 27, 2013. Reversed and
remanded with directions.

Kala Spigarelli, of The Spigarelli Law Firm, of Pittsburg, for appellant.

Christopher Shepard, of Law Offices of Watkins Calcara Chtd., of Great Bend, and Nathan
Burghart, of Fairchild & Buck, P.A., of Lawrence, for appellees.

Before ARNOLD-BURGER, P.J., BUSER and STANDRIDGE, JJ.

BUSER, J.: This is an appeal by Glenn C. Lake of the denial of his workers
compensation claim. Lake had an accident at work and then experienced increasing
symptoms of back pain and arm and leg numbness. Lake's treating physicians, a neutral
physician appointed by the administrative law judge (ALJ), and a physician retained by
Lake, all testified that the work accident caused his injuries. A physician retained by
Lake's employer, Jessee Trucking, offered no opinion because he was uncertain regarding
the onset of Lake's symptoms. The ALJ heard sworn testimony from Lake describing his
work accident, his symptoms, and his medical care. The ALJ determined that the work
accident caused significant neurological injuries and awarded Lake compensation for his
permanent total disability. Upon review, however, the Workers Compensation Board
(Board) rejected Lake's testimony and held that he had failed to prove the work accident
had caused his neurological injuries. Lake appeals from this adverse order.

We have reviewed the record on appeal, read the parties' briefs, and listened to
oral arguments. Having considered all of the evidence, including the credibility
determinations made by the administrative law judge regarding Lake's testimony and the
reasons given by the Board for disagreeing with those credibility determinations, we hold
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the Board's findings of fact in support of its conclusion to deny compensation are not
supported by substantial evidence viewed in light of the record as a whole. Accordingly,
we reverse the Board's order and remand with directions to reinstate the ALJ's award of
compensation.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts were developed from the evidence presented to the ALJ at the
workers compensation hearing on February 6, 2012.

Lake was a 39-year-old shop supervisor and mechanic for Jessee Trucking in
Galena, Kansas. Jessee Trucking was owned by Rick Jessee, his younger brother Brent
Jessee, and their mother. Lake had worked as a mechanic for about 20 years and had
served in the Army and National Guard. He did not have any prior disabilities.

At about noon on May 16, 2008, a 600-pound, 12- to 14-foot fiberglass bedliner
for a semi-truck dump trailer was delivered to Jessee Trucking. Lake unloaded the
bedliner with the help of the delivery driver and a temporary employee, Jimmy Palmer,
who is also Lake's nephew. Palmer pulled the bedliner from the trailer with a forklift
while Lake and the delivery driver assisted.

At some point during the unloading, the bedliner caught on the trailer. Lake placed
his right arm in an opening of the bedliner and attempted to move it over the obstruction.
Lake testified the bedliner had "come off the forks and come down on me and put me
against the back of the trailer." Lake and Palmer testified that Lake screamed upon being
struck. Lake said he "twisted, put my right leg on the ground and tried to stomp out from
under" the bedliner.

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It was uncontroverted that the work accident occurred. As related by Lake and
Palmer, Lake was obviously hurt at the accident scene and walked with difficulty. Lake
thought he had "pulled a groin" because he could not lift his leg. Palmer confirmed that
Lake "was dragging his legs like he had . . . I don't know if you've ever played football or
not. See somebody get hit between the legs . . . and they got [sic] that limp to them."

Lake and Palmer testified the work accident was promptly reported to Brent,
Shelly Downs (dispatcher), and Becky Beck (secretary and bookkeeper). According to
Lake and Palmer, each person asked if Lake was all right, and Lake said he had just
"pulled a groin." This response produced some amusement. Lake did not seek immediate
medical attention.

Lake did not submit a work accident report because no forms were available at
Jessee Trucking. Lake completed a blank form he had from a prior employer, but he did
not submit it due to his subsequent but unrelated hospitalization. It was uncontroverted
that Lake continued to work, aside from this hospitalization, until October 2, 2008.

Only 5 days after the work accident, on May 21, 2008, Lake was taken by
ambulance to St. John's Regional Medical Center (St. John's) in Joplin, Missouri. He
complained of black, tarry stools and being unable to rise from the toilet without passing
out. Lake remained hospitalized for 3 days for treatment of gastrointestinal bleeding and
"peptic ulcer disease and erosive gastritis." He received a blood transfusion and
medication. Upon his release from the hospital, Lake did not return to work for a week.

The St. John's medical records are not in the record on appeal. Testimony
regarding them came from Dr. Paul Stein, who examined Lake at the request of Jessee
Trucking, and Dr. Edward J. Prostic, who examined Lake at the request of Lake's
counsel. Both doctors reviewed the St. John's records but did not recall seeing a reference
to a work injury or to a complaint by Lake of a problem with his back or extremities.
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Lake and Palmer testified that Lake's difficulties continued after his return to
work. Palmer said Lake "just . . . didn't look right, looked real weak. Couldn't lift nothing
[sic] I had to [do all the] heavy lifting. Anytime there [were] any tires to be changed or
anything that was saved over for me."

Witnesses from Jessee Trucking gave a different account. Brent testified he did
not learn of the work accident for 10 days to 2 weeks. According to him, Lake said he
was not hurt. Brent confirmed, however, that 2 weeks after hearing about the work
accident, Lake complained "about his neck or his legs and the back was hurting." Brent
maintained, however, that Lake was not having noticeable difficulties at work.

Beck denied hearing about the work accident on the day it occurred, saying she
only learned of it some 6 months later in October 2008. Rick testified that he noticed
Lake "sometimes" having problems with his neck, back, and/or legs between the date of
the work accident and October 2008. Rick also testified that he noticed Lake walking
"with a limp just a little bit but it wasn't every day." Downs did not testify. Lake testified
he "kept complaining" to Beck and Downs that "I still wasn't right." According to Lake,
Downs told him to go to a chiropractor. Lake said he had to wait more than 2 weeks for
an appointment with the chiropractor, Dr. Russell McDaniel.

On July 8, 2008, Lake saw Dr. McDaniel. At his deposition, Dr. McDaniel, who
testified that he averages "probably 150 to 160 patient visits a week," could not
remember treating Lake, so the doctor's medical records were the only evidence of Lake's
visits. The records were three single-sheet forms, one of which was a patient information
form apparently completed by Lake. To the question, "[w]hom may we thank for
referring you to us," Lake wrote "Mike Lake." The patient information form did not
include a question regarding the origin of the complaint or whether it was work related.

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Dr. McDaniel made cursory hand-written entries on the forms based on his
interview and examination of Lake. The doctor recorded: "Patient states that he has
chronic low back pain. Occupation, mechanic at Jessee Trucking. States work position
creates pain in low back and sacroiliac area." The forms showed that Lake had reported
the pain was made worse by work, sitting, and bending over. The pain was reported as
"sharp" and occasionally radiated "near the buttocks area." With regard to the onset of
Lake's back pain, Dr. McDaniel wrote: "[U]nknown, may be work related." At his
deposition, the doctor testified that Lake had not complained of numbness or symptoms
in his extremities because these complaints were not reflected in his notes. Lake saw Dr.
McDaniel once more, on July 15, 2008, and the notes from that visit read: "'Pain
continuing low back-SI area, better after treatment, but still . . . has pain, especially
getting up and at end of day.'"

Lake testified that at some point a neighbor referred him to Dr. Bryan Barnes. On
August 26, 2008, after waiting some time for the appointment, Lake saw Dr. Barnes. Dr.
Barnes' records are not in the record on appeal, nor was he deposed. Dr. Stein reviewed
Dr. Barnes' records and indicated that according to Dr. Barnes: "Lake was . . .
complaining of bilateral arm pain and numbness as well as low back pain, right leg pain.
He reported being struck by a 600 pound dump trailer liner in May with symptomatology
since the accident."

On September 3, 2008, Lake had an MRI of his lumbar spine. A report of this
procedure revealed:

"Severe congenital short pedicle spinal stenosis is noted diffusely from the lower thoracic
region to L5. There is a broad-based disk protrusion noted at T11-T12 causing
impingement on the distal thoracic cord with a focus of abnormal signal within the
thoracic cord at this level. The L1-2 level demonstrates a broad-based disk protrusion
causing mild impingement on both L2 nerve roots. The L3-4 level also demonstrates a
diffusely prominent annulus resulting in mild acquired stenosis. The L4-5 level
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demonstrates a diffusely prominent central disk protrusion causing impingement on both
L5 nerve roots."

As a result of the MRI, Dr. Barnes referred Lake to a board-certified
neurosurgeon, Dr. Margaret Ellen Nichols, of the NeuroSpine Institute in Joplin,
Missouri, for "thoracic and lumbar stenosis, leg pain, and arm numbness."

On September 25, 2008, Lake saw Dr. Nichols and told her "his symptoms began
on May 19, 2008, [sic] when he was moving a 600-pound bed liner with a forklift, the
bed liner came off the forklift and pinned him between the bed liner and truck bed." Lake
said that "he had immediate numbness in his right leg, down the back of the leg to the
mid lower leg, and also developed lumbar pain and numbness in both arms." Dr. Nichols
did not believe the MRI of Lake's lumbar spine explained the symptoms in his upper
body and arms. She ordered MRIs of Lake's cervical and thoracic spine.

On October 2, 2008, the additional MRIs were performed. The MRI of the cervical
spine showed:

"There is a central and left-sided disk herniation noted at C4-5 causing impingement on
the left C5 nerve root. Large central and right-sided broad-based disk herniation is noted
at C5-6 causing impingement on both C6 nerve roots and moderate cord compression.
Abnormal cord signal is noted in this location."

The MRI of the thoracic spine revealed: "The thoracic canal is diffusely narrowed
most likely on a congenital basis. Multilevel degenerative disk disease is noted with a
broad-based central disk herniation noted at T11-12. This causes mild cord compression
with an area of abnormal cord signal at this level." Dr. Nichols believed Lake needed
immediate surgery to relieve the pressure on his spinal cord. She testified, "[T]he sooner
the pressure is taken off the spinal cord the better the chances it will have of recovering,
and we worry that the neurologic deficits can worsen over time."
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On October 17, 2008, Dr. Nichols performed a cervical decompression and fusion
surgery with the assistance of another physician at the NeuroSpine Institute, Dr. Laurie L.
Behm, who is board-certified in physical medicine and rehabilitation. Dr. Behm, in
addition to assisting Dr. Nichols in surgery, provided care to patients and also prepared
impairment ratings. On November 12, 2008, Dr. Nichols performed a lumbar
decompressive laminectomy on Lake.

Dr. Behm saw Lake for postsurgical care, and Dr. Nichols was still seeing Lake at
the time of her deposition in May 2012. Lake had only minimal improvement after the
surgeries, which Dr. Nichols attributed to permanent spinal cord damage. Dr. Behm
would eventually rate Lake with a 60 percent whole body impairment, especially noting
his muscle weakness and spasticity.

In her report, Dr. Nichols opined: "Because [Lake] had no pain or neurologic
complaints prior to the injury, I believe that the injury exacerbated preexisting cervical,
thoracic, and lumbar stenosis, and that his spinal cord disfunction is directly related to the
injuries at those levels." Dr. Nichols testified at her deposition that despite Lake's
"congenitally narrow spinal canal," his spinal cord was actually compressed only at the
levels where Lake had "bulging discs." The doctor attributed this condition to the work
accident, testifying it was "likely that the accident caused or exacerbated the herniated
disc at C5-6."

Dr. Nichols arrived at the same causation opinion regarding the T11-T12 level,
although she believed it was "somewhat less likely" there "because that was more of a
disc protrusion than a herniation." The doctor still believed the spinal cord compression
at the T11-T12 level was "either caused by" the work accident or that it had "contributed"
to it. Under cross-examination, Dr. Nichols testified she would expect Lake to have had
symptoms within 1 week of the work accident if it had caused the symptoms. She said
more particularly that if Lake "had no neurological complaints in July [2008], then I
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would think it unlikely that his neurologic problems later were related to the work
injury."

Dr. Behm similarly testified that Lake's work accident "caused his neurological
deficits." Dr. Behm agreed on cross-examination that Lake had congenital conditions of
the spine—specifically, shortened pedicles—but she mirrored Dr. Nichols' opinion by
distinguishing Lake's congenital conditions from the spinal cord compression:

"You can look at a cervical canal and see how patent it is above and below the narrowing.
If it's patent up here and it's patent down here, then the congenital narrowing really isn't
that much. But his stenosis or narrowing was from the bulge, from the disc coming back,
and that's not congenital or pre-existing for the most part. It could be if he had an injury
some place else, but it's not congenital."

On November 30, 2009, Lake saw Dr. Stein, a board-certified neurosurgeon.
According to Dr. Stein's report, Lake said he experienced "'immediate'" numbness in his
right arm and leg after the work accident. Lake said he reported the symptoms to Jessee
Trucking and continued working the best he could. Lake said the situation continued to
worsen over time until he started dragging his right leg. Lake also reported that "'the lady
in charge'" at Jessee Trucking told him "'to go see a chiropractor.'"

Upon examination, Dr. Stein found Lake had "[n]umbness and tingling . . . in both
hands, from the waist to the knee in the left lower extremity, and throughout the right
lower extremity." Lake was now reporting "difficulty with both urine and bowel control."
He was also using "a four-point cane for walking and balance."

Dr. Stein arrived at a diagnosis:

"Mr. Lake has a cervical myelopathy and, likely, some element of lower thoracic
myelopathy. The pathology behind his spinal cord compression is multifocal; 1. A spinal
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canal that is congenitally narrow in several locations due to short pedicles, predisposing
to spinal cord compression. 2. Degenerative disease with osteophyte formation combined
with ligamentous enlargement and disk protrusion."

Dr. Stein rated Lake as having a 55 percent whole body impairment. With respect
to causation, the doctor opined:

"There is a question regarding causation and the relationship of the pathology to a work
incident which apparently occurred on 5/16/08. Questions arise because Mr. Lake reports
. . . the immediate onset of numbness in the right lower extremity and pain after the
incident at work. However, when he presented at St. John's . . . on 5/21/08 with
substantial GI complaints, there was no history given or noted regarding spinal
complaints such as neck or back pain or numbness in the extremities. He presented to the
chiropractor on 7/8/08 with complaints of low back pain which was characterized by the
chiropractor as 'chronic' and for which the patient reported an unknown onset. There was
no report of the injury which apparently occurred on 5/16/08. It was not until 8/26/08, at
the office of his primary care physician, that Mr. Lake reported the work incident and
related it to a variety of spinal origin symptoms. I have no mechanism based on purely
medical information from which to determine whether the symptomatology was causally
related to the work incident. This type of symptomatology frequently comes on without
the benefit of trauma. Other information might be more beneficial in making a
determination such as: 1. Documentation that this work incident actually occurred. 2.
Documentation that Mr. Lake reported initial symptomatology to his employer on the day
of injury, as he states today. 3. Documentation as to whether Mr. Lake was having
difficulty performing his work activities in the month immediately following the work
incident as he indicates today. Absent such documentation, I cannot make a statement
one way or the other as to whether there is a causal relationship between the alleged
work incident and the symptomatology." (Emphasis added.)

Counsel for Jessee Trucking prepared unsworn statements for signature by Rick,
Brent, and Palmer, whose depositions had yet to be taken in the workers compensation
proceedings. Rick signed his statement, which stated that he was not present at the time
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of the work accident and that Lake had not reported an injury or exhibited signs of injury
in the 30 days following the work accident. He further indicated that he learned of the
work accident in October 2008 "when I noticed for the first time that [Lake] was
limping." Later, at Rick's deposition, Lake's counsel objected to the admission of his
statement "to the extent that he testified inconsistently to portions of it in today's
deposition." Brent also signed his statement, which was similar to his deposition
testimony.

Palmer refused to sign the statement prepared by counsel for Jessee Trucking.
Palmer testified he had spoken by telephone with an assistant to counsel for Jessee
Trucking. Palmer said when he received a draft of the statement, however, "it was all
twisted up," so he "told her that I would not sign it." Palmer's unsigned statement is in the
record. It says Lake "was walking fine" after the incident, Palmer did not hear Lake "tell
Brent about the accident," and:

"I worked with [Lake] for two and a half weeks after the incident, until I left
Jessee Trucking on June 2, 2008. Until I left Jessee Trucking, I spoke with [Lake] and
had the opportunity to observe him on a daily basis, and he seemed fine. He didn't
complain of pain or numbness in his back, neck, hands or legs. He was walking fine, he
could do his job, and I didn't notice anything different about him."

Palmer testified these representations, prepared by counsel for Jessee Trucking, were not
true.

Counsel for Jessee Trucking apparently provided the statements of both Rick and
Brent to Dr. Stein. Dr. Stein produced a supplemental report stating: "Clearly, there is a
disconnect between the above two statements and that which I was told by Mr. Lake."
The doctor repeated that he could not "state, within a reasonable degree of medical
probability and certainty, that an incident at work on 5/16/08 was responsible for the
myelopathy and treatment related thereto."
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Counsel for Lake then provided Dr. Stein with a copy of Lake's discovery
deposition (which is not in the record), and the doctor produced another supplemental
report. The doctor believed that "[i]n the deposition, Mr. Lake provided information very
similar to that which he gave me." The doctor concluded: "I cannot rule out a
contribution from the incident of 5/16/08 but there is no definitive indication in the
records to allow a causal relationship to be determined within a reasonable degree of
medical probability. The cervical stenosis was preexisting and this type of
symptomatology frequently occurs without trauma."

In his deposition, Dr. Stein said Lake's short pedicles and the degenerative changes
in his discs preexisted the work accident, but that he could not "make a definitive
statement about the disc herniation . . . ." The doctor also said the "stenosis was likely
present prior to the event as it is related to . . . the congenitally narrow canal from the
short pedicles and the degenerative change." Dr. Stein thought Lake's work accident did
not cause his injuries if he had no symptoms for a "week or two" after the incident. The
doctor opined that Lake would have experienced "some of these symptoms" within that
time period.

Dr. Stein agreed, however, that if Lake's account of symptoms immediately
following the work accident were credited, the accident probably caused his symptoms.
Dr. Stein conceded that the test was the timing of the symptoms, not when Lake actually
sought medical care. The doctor agreed he did not know whether Lake was telling the
truth regarding his symptoms and did not know whether the individuals associated with
Jessee Trucking were telling the truth. He stated: "I'm not saying that Mr. Lake is not
telling the truth, I don't know what happened, all I can say is that he says one thing, but
there is no documentation of it. That's all I can do from a medical standpoint."

When Lake continued to experience numbness and weakness in his right hand
after the back surgeries, testing showed problems with the ulnar nerve in his right elbow.
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Dr. Nichols recommended surgery, and the ALJ referred Lake to Dr. Lynn Ketchum, a
board-certified hand surgeon, for an independent medical evaluation.

On August 12, 2010, Lake recounted his medical history to Dr. Ketchum, which
the doctor reported as follows:

"Mr. Lake is right-hand dominant and has problems with his right upper extremity, which
he denies having prior to beginning work at Jessee Trucking . . . . He had a specific
accident on May 16, 2008, when he was unloading a bedliner on a truck. Because of a
forklift problem, the bedliner came down and pinned him between the bedliner and the
back of the trailer. . . . At the time of the injury his right elbow was also pinned, and
when he tried to extricate himself he noticed that immediately the ulnar three digits in his
right hand were numb, and that he had lost feeling in them."

On October 20, 2010, Dr. Ketchum performed a right cubital tunnel release. This
surgery provided some relief to Lake, although the doctor still rated Lake at a 25 percent
impairment rating of his upper right extremity "based on the diagnosis of moderate
compression of the ulnar nerve at the elbow, and weakness." In his report, Dr. Ketchum
opined: "[T]he prevailing factor in the cause of the right cubital tunnel syndrome was the
pinning of the right elbow at the time of [Lake's] accident, on May 16, 2008."

Dr. Ketchum was questioned about his causation opinion at his deposition. He
responded: "It was because [Lake], on repeated questioning, denied having any problems
with that upper right extremity and that immediately upon extricating himself from . . .
being pinned between the bedliner and the truck, he noticed numbness in the ulnar three
digits of that right hand." During cross-examination, Dr. Ketchum agreed that Dr. Barnes'
notes of August 26, 2008, appeared "to be the first reference . . . in the medical records of
the right upper extremity problems." When asked whether the absence of an earlier
reference would "change your opinion regarding whether the work event of May 16 was
the cause of the right ulnar nerve compression," the doctor stated: "[M]y answer to that
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is . . . that in many instances I see when people go to a specific doctor, they go to them
for their chief complaint. And that's the focus. And sometimes other complaints which
are considered less troublesome are not brought up."

On October 28, 2011, Lake was examined by Dr. Prostic, a board-certified
orthopedic surgeon. Lake again recounted the work accident of May 16, 2008, saying that
"he recognized injury immediately but did not seek medical attention at the time." Lake
made the same complaints as before but now added "absent sexual function." In his
report Dr. Prostic stated that Lake had a "pre-existing congenitally small spinal canal"
and had also "sustained injuries to his spine during the course of his employment." The
doctor assigned a 73 percent whole body impairment rating, which included the 25
percent impairment of the upper right extremity, a consideration taken into account by
Dr. Behm but not by Dr. Stein. Dr. Prostic also considered Lake's bowel and bladder
incontinence in his calculation, unlike Dr. Behm who simply noted the incontinence.

In his deposition, Dr. Prostic said Lake "had sprains and strains of his spine
perhaps with herniation of disc superimposed upon preexisting spinal stenosis and
degenerative disc disease with development of spinal cord contusions." When asked
whether Lake's delay in seeking medical attention would "cause you any concern as to
whether the injuries he sustained were a result of the bedliner," the doctor said: "[V]ery
commonly people with symptoms of cervical or lumbar spinal stenosis have it increase
gradually rather than all of a sudden." Dr. Prostic suggested that because Lake "did not
recognize a major injury to the neck or back immediately, I think it's most likely that he
had some preexisting disc protrusions at both levels and that he had a worsening from the
work accident on May 16, 2008." The doctor thought Lake was at "a very young age for
having symptoms of spinal stenosis, and especially for having it in two separate areas," if
trauma were not, in fact, a cause.

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Dr. Prostic testified he would expect symptoms by early June 2008 if the work
accident had caused the symptoms. He also said that if Lake "truly ha[d] no symptoms
for several weeks, then it's rather hard to say that it's the work event rather than being
unrelated to work." The doctor also stated that if Lake had no symptoms in his upper
extremities by July 2008, "then I could change my opinion."

Lake filed his workers compensation claim on October 17, 2008. More than 3
years later, on February 6, 2012, Lake personally appeared for the workers compensation
hearing to testify before the ALJ. In addition to the facts already related, Lake testified
that after the work accident he could do "[s]ome" of his duties, "like ordering parts and
stuff like that." Lake said he needed help, however, for the "physical parts" of his job.

Lake answered affirmatively when asked if he had reported his work injury while
hospitalized at St. John's. Lake agreed that he told hospital staff his "leg and back . . .
[were] hurting." Lake also said that "[t]hey gave me pain medication for my back and my
arm." Lake again answered affirmatively when asked whether he had told Dr. McDaniel
about his work injury. However, Lake was not questioned on the specifics of his
statements to Dr. McDaniel about his symptoms.

Describing his current condition to the ALJ, Lake testified that his right leg was
numb "from the waist down" and did not function at all. Lake said he had feeling to the
knee of his left leg and that it functioned partially. He complained of continuous neck
pain and testified he was unable to look up or down. Lake rated his back pain at 7 on a
scale of 1-10 during the hearing, saying he could "get it down to a four if I lay on the
couch all day like I usually do." Lake said that after his arm surgery, "I've got three
fingers back and the thumb, and the pinkie one is dead, no bend, no range of motion at
all." Lake confirmed that he was receiving Social Security disability payments.

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After considering all the evidence presented, including Lake's personal testimony,
the ALJ found that Lake "was suffering ill effects from his injury at the time of the
accident, per his testimony and that of Mr. Palmer." The ALJ further found that "the
medical evidence indicates a man [Lake's] age could not have suffered injuries of the
magnitude to his spine without significant trauma. The only evidence of trauma in the
record is when the bed-liner [pinned] Mr. Lake against the truck trailer."

Accordingly, the ALJ held that Lake "suffered personal injury by accident which
arose out of and occurred in the course of his employment with [Jessee Trucking]." With
regard to the nature and extent of the disability, the ALJ noted: "Four physicians offered
opinions of functional impairment. One of those, Dr. Stein . . . , wrote in his report that he
could not draw a definite conclusion about the causation of [Lake's] injuries within a
reasonable degree of medical certainty." Of the remaining doctors, Dr. Ketchum's rating
was incorporated into the ratings by Dr. Behm and Dr. Prostic, and since Dr. Prostic had
included Lake's incontinence while Dr. Behm had not, the ALJ accepted Dr. Prostic's
rating. The ALJ concluded Lake had a functional impairment of 73 percent to his body as
a whole, had a permanent total disability, and should be awarded the statutory cap of
$125,000 plus medical expenses and ongoing medical care.

After the ALJ's ruling, Jessee Trucking applied for review by the Board. Upon its
consideration of the record, the Board found the work accident had occurred, including
that Lake "attempted to free the bed liner by sticking his arm in a hole in the bed liner,
picking it up and telling Mr. Palmer to back up." The Board also accepted that Lake
"screamed and tried to get free by jerking his right arm out of the hole, pushing the
ground with his right leg and twisting his neck and back."

The Board concluded that Lake "had an accidental injury arising out of and in the
course of his employment on May 16, 2008, when he was momentarily pinned between
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the bed liner and trailer." The Board, however, limited this injury to a "groin strain," for
which it made no award of compensation.

With regard to Lake's neurological injuries, the Board found that Lake had not told
medical personnel at St. John's of his symptoms. The Board also found Dr. McDaniel's
notes did not mention the work accident or "neck, upper extremity or lower extremity
complaints." The Board found it "difficult to grasp why [Lake] would not have voiced
complaints of arm and leg numbness and tingling to medical professionals until August
2008." The Board concluded:

"The Board finds that if [Lake] suffered a traumatic injury severe enough to cause his
need for three surgeries, his diffuse complaints would have existed when he went to St.
John's and when seen by Dr. McDaniel. The Board cannot conclude [Lake] simply
suffered with his various neck, arm, back and leg symptoms until finally seeing his
primary care physician, Dr. Barnes, on August 26, 2008. The Board finds that [Lake]
failed in his burden of proving such symptoms were due to his May 16, 2008 accident,
primarily based on the medical testimony that such symptoms should have been present
by at least early-June 2008."

The Board reversed the ALJ's award of compensation for a permanent total
disability, holding that Lake "did not meet his burden of proving any other personal
injury arising out of or in the course of his employment." Lake appeals.

IS THE BOARD'S FINDING THAT LAKE'S NEUROLOGICAL INJURIES DID NOT ARISE OUT OF
HIS EMPLOYMENT SUPPORTED BY COMPETENT EVIDENCE VIEWED IN LIGHT OF THE
RECORD AS A WHOLE?

On appeal, Lake contends "the medical evidence proves [he] suffered injuries to
his spinal cord and arm" from the work accident at Jessee Trucking. Lake notes the "only
doctor that questions the causal connection . . . is Dr. Stein who was hired by" Jessee
Trucking and that "even he could not say conclusively [that the] injuries were not related
19

to the work accident." Jessee Trucking responds that "the Board made an implicit
assessment of [Lake's] credibility based on the apparent severity of his allegedly
'immediate' onset symptoms and the substantial delay in which he opted to seek treatment
for them." Jessee Trucking maintains the Board's "assessment of [Lake's] credibility was
supported by substantial competent evidence in the total absence of corroborating
medical documentation."

We begin our analysis with a review of relevant workers compensation statutes
and caselaw. Lake is owed compensation if he suffered "personal injury by accident
arising out of and in the course of employment." K.S.A. 44-501(a). The parties do not
dispute that Lake was working in the course of his employment. The issue is therefore
whether Lake's injuries arose out of that employment. "'[A]n injury arises "out of"
employment when there is apparent to the rational mind, upon consideration of all the
circumstances, a causal connection between the conditions under which the work is
required to be performed and the resulting injury.' [Citations omitted.]" Rinke v. Bank of
America, 282 Kan. 746, 752, 148 P.3d 553 (2006). "The claimant has the burden to show
that an injury, disease, or condition arose out of the employment." Chriestenson v.
Russell Stover Candies, 46 Kan. App. 2d 453, Syl. ¶ 4, 263 P.3d 821 (2011), rev. denied
294 Kan. __ (June 13, 2012); see K.S.A. 44-501(a).

On appeal, an appellate court's standard of review for cases brought under the
Workers Compensation Act, K.S.A. 44-501 et seq., is controlled by the Kansas Judicial
Review Act (KJRA). See K.S.A. 77-601 et seq.; K.S.A. 44-556. As an appellate court, we
review the Board's factual findings to determine if those findings are supported by
substantial evidence "viewed in light of the record as a whole." K.S.A. 2012 Supp. 77-
621(c)(7); L. 2009, ch. 109, sec. 28; see Herrera-Gallegos v. H & H Delivery Service,
Inc., 42 Kan. App. 2d 360, 362-63, 212 P.3d 239 (2009). Jessee Trucking agrees that we
review for substantial evidence. Substantial evidence is defined as that which "a
20

reasonable person might accept as being sufficient to support a conclusion." Herrera-
Gallegos, 42 Kan. App. 2d at 363.

"'[I]n light of the record as a whole' means that the adequacy of the evidence in the record
before the court to support a particular finding of fact shall be judged in light of all the
relevant evidence in the record cited by any party that detracts from such finding as well
as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and
amendments thereto, cited by any party that supports such finding, including any
determinations of veracity by the presiding officer who personally observed the
demeanor of the witness and the agency's explanation of why the relevant evidence in the
record supports its material findings of fact. In reviewing the evidence in light of the
record as a whole, the court shall not reweigh the evidence or engage in de novo review."
(Emphasis added.) K.S.A. 2012 Supp. 77-621(d).

Moreover, appellate courts should "examine whether the evidence supporting the
Board's decision has been so undermined by other evidence that it is insufficient to
support the Board's conclusion." Olds-Carter v. Lakeshore Farms, Inc., 45 Kan. App. 2d
390, 395, 250 P.3d 825 (2011) (citing Herrera-Gallegos, 42 Kan. App. 2d at 363). We
must "consider the credibility determination that the hearing officer made," and "[i]f the
agency head, here the Board, does not agree with those credibility determinations, the
agency should give its reasons for disagreeing." Kotnour v. City of Overland Park, 43
Kan. App. 2d 833, 837, 233 P.3d 299 (2010), rev. denied 293 Kan. 1107 (2012). We will
then "consider the agency's explanation as to why the relevant evidence in the record
supports its material factual findings." 43 Kan. App. 2d at 837.

An analytical roadmap for appellate review in an analogous workers compensation
case was provided in Rausch v. Sears Roebuck & Co., 46 Kan. App. 2d 338, 341-45, 263
P.3d 194 (2011), rev. denied 293 Kan. 1107 (2012). In Rausch, the ALJ held that Rausch,
a workers compensation claimant, had met her burden of proof on causation. The Board
disagreed, finding that Rausch was not credible. On appeal, our court outlined the reasons
21

the Board gave for its credibility determination and analyzed whether they constituted
"legitimate reasons for the Board to question Rausch's credibility." 46 Kan. App. 2d at
344. We will employ a similar analysis in this case by evaluating whether the individual
reasons given by the Board to discount Lake's sworn testimony that he experienced
symptoms of back and arm injuries during or shortly after the work accident were
supported by the evidence. In this way, we will answer the central question posed by this
appeal: Is the Board's finding that Lake's neurological injuries did not arise out of his
employment supported by substantial evidence viewed in light of the record as a whole?

Lake's Failure to Promptly Obtain Medical Treatment

In its ruling, the Board emphasized that Lake's sworn testimony about his
immediate neurological symptoms was incredible because he had not sought immediate
medical treatment: "The symptoms [Lake] reported having immediately or shortly after
his work accident would seem to be the sort of symptoms that would compel him to seek
medical treatment immediately." Although the Board did not acknowledge it, this finding
was predicated on a presumption—that Lake was the sort of person who would feel
compelled by the onset of neurological symptoms to seek immediate medical treatment.

The Board did not identify any evidence in the record supporting this finding or
the presumption upon which it was based. Considering the Board relied on this finding
when disregarding the ALJ's determination of Lake's veracity, the Board's failure to
identify any supporting evidence is disconcerting. Having independently reviewed the
record, however, we conclude the Board's finding was not supported by any substantial
evidence.

On the other hand, there was evidence to support the notion that Lake was not the
sort of person inclined to promptly seek medical treatment when confronted with serious
health issues. In particular, we note his delayed response to suffering from serious
22

gastrointestinal disorders. Instead of seeking immediate treatment, Lake ignored the
symptoms until they worsened to the extent it was necessary for him to be taken by
ambulance to St. John's. We could add that Dr. Nichols' report showed that Lake had an
abnormally elevated and untreated blood pressure of 200/106. Lake also reported
consuming a six-pack of beer daily, and said he had used five cans of chewing tobacco a
week for 20 years.

Because this evidence was uncontested, the Board's finding based on a
presumption leaves us with a person who disregarded his health care in other situations,
yet was expected to seek immediate treatment of neurological symptoms. We do not find
any evidence to support such inconsistent traits or behaviors in Lake, nor does reason or
common experience suggest it. The Board's finding that Lake's claimed neurological
symptoms were not credible because he did not seek immediate medical treatment was
unsupported by the record, while evidence to the contrary was presented during the
proceedings.

No Mention of Work Accident or Neurological Symptoms in Selected Medical Records

The Board also found Lake's testimony about his immediate neurological
symptoms was incredible because those symptoms were not mentioned in the medical
records from St. John's and Dr. McDaniel. The Board specifically found: "[T]here is no
mention of the accident or [Lake's] asserted immediate symptoms in the St. John's
records or in Dr. McDaniel's records." The Board thought it "troubling that [Lake]
actually obtained medical treatment at St. John's in May 2008 and with Dr. McDaniel in
July 2008, both on his own accord, without making mention of his accident or his diffuse
symptoms."

The importance placed by the Board on the apparent absence of Lake's mention of
neurological symptoms or the work accident in the St. John's records is overstated. The
23

St. John's records were never in evidence for review. Testimony submitted to the Board
regarding those records revealed next to nothing about them, including whether they
typically would have included complaints unrelated to the gastrointestinal disorders for
which Lake was emergently admitted to the medical center. The evidence showed only
that two doctors who reviewed the St. John's medical records did not recall any mention
of neurological symptoms or Lake's work accident.

We conclude this testimony was not substantial evidence supporting the Board's
disregard of the ALJ's determination that Lake's testimony was truthful when he stated
that he noticed a range of neurological symptoms within a relatively short time after the
work accident. In other words, a reasonable person would not consider the doctors'
testimony about their review of the medical records sufficient by itself to support a
conclusion that Lake was not experiencing neurological symptoms while being treated
for serious gastrointestinal disorders at St. John's.

With regard to Dr. McDaniel's records, during Lake's testimony he was never
questioned regarding any statements that he made to the doctor about the onset of his
symptoms or their cause. Moreover, Dr. McDaniel had no recollection of Lake's
statements because he did not even remember evaluating him. With this context, the
Board relied on the doctor's cursory handwritten notes from his clinical records for
evidence of Lake's statements about his medical complaints. The Board also relied on Dr.
McDaniel's testimony that he would have written down other symptoms if Lake had
reported them. If we consider the very high volume of Dr. McDaniel's practice and the
perfunctory nature of the three pages of medical records, this evidence was hardly
sufficient for the Board's finding that Lake never mentioned his work accident or his
symptoms to Dr. McDaniel.

Contrary to the Board's finding, however, Dr. McDaniel recorded that Lake had
sharp back pain radiating near his buttocks and that the onset of Lake's symptoms "may
24

be work related." These entries were at least a mention, and arguably some corroboration,
of Lake's testimony that his accident was work related.

For all these reasons, we find the Board's inference from the limited medical
records to be overstated. Dr. McDaniel's records confirm that Lake saw the chiropractor
in early July 2008. When considered together with Lake's uncontroverted testimony that
he waited more than 2 weeks for this appointment, Lake was clearly experiencing some
back symptoms by June 2008—only 1 month after his work accident. The only question
would be the specific type and degree of symptoms, and in this regard Dr. McDaniel's
perfunctory records were simply insufficient to support the Board's disregard of the ALJ's
determination of Lake's veracity.

Next, in questioning Lake's truthfulness, the Board highlighted his testimony that
Downs (Jessee Trucking's dispatcher) had referred him to a chiropractor. The Board
found this testimony was "not credible" because Lake "listed in [Dr. McDaniel's] patient
information sheet that he was referred by 'Mike Lake.'"

Lake testified at the regular hearing:

"Q. At some point you asked to go to the doctor, correct, for your leg and arm?
"A. At some point, yes.
"Q. And it looks like from the record you first started seeing a chiropractor in July?
"A. Yes.
"Q. And that would have been—
"Q. That's who I was told to go to by [Downs]."
. . . .
"Q. . . . You told both [Downs] and [Beck] that you were still hurting?
"A. Yes.
"Q. And they suggested that you go to a chiropractor?
"A. [Downs] did."
25

Unlike the Board, we do not see a contradiction between Lake's testimony and Dr.
McDaniel's patient information sheet. Lake's testimony was that Downs told him to see a
chiropractor. While this could mean that Downs specifically referred Lake to Dr.
McDaniel, Lake did not explicitly say so. Lake's testimony also could be read fairly to
mean that Downs told Lake to see an unnamed chiropractor and then Mike Lake
specifically referred him to Dr. McDaniel. Of course, this is all a matter of speculation
because Downs never testified in the proceedings to either confirm or contradict Lake's
testimony. There was simply scant and ambiguous evidence regarding the tangential issue
of how Lake came to visit Dr. McDaniel. In summary, for all of the reasons stated, we
conclude the St. John's and Dr. McDaniel's medical records did not provide substantial
evidence to discount Lake's sworn testimony.

Lack of a Full Range of Neurological Symptoms Shortly After the Work Accident

On several occasions in its opinion, the Board implicitly found that if the work
accident was the cause of Lake's neurological symptoms, he would have experienced the
full range of these symptoms soon after his work accident.

One example is the Board's treatment of Dr. Ketchum's causation opinion, which
the Board discussed in its findings of fact:

"Dr. Ketchum testified the cause of [Lake's] right cubital syndrome was the May
16, 2008 accident. . . . Dr. Ketchum testified that it was his understanding that [Lake's]
right elbow problems occurred immediately as a result of the accident. He agreed the first
mention of [Lake] having right upper extremity complaints was in Dr. Barnes' August
2008 report and the St. John's and chiropractic records made no such mention of right
arm problems. Dr. Ketchum stated [Lake's] right elbow problems could have worsened
over time if [Lake] had a contusion that caused bleeding, which in turn would cause scar
tissue. However, Dr. Ketchum agreed his operative report contained no mention that
scarring was ever identified."
26

The Board surmised that Lake's symptoms in his right arm would have occurred
earlier if the work accident had caused the symptoms:

"While it is possible [Lake's] accidental injury could have caused swelling to
develop slowly within [Lake's] spine, causing pressure on the spinal cord and resulting in
[Lake's] arm and leg symptoms, there is no credible medical evidence to support such
theory. The majority of the medical experts testified [Lake's] arm and leg symptoms
should have been identifiable within a finite period of time, within a few days or by
early-June 2008, not by late-August, 2008. No doctor provided a credible reason why
[Lake] would have delayed onset of symptoms if the accident caused his injuries and
need for emergency surgeries in late-September and mid-October 2008."

We disagree. Based on our independent review of the record, we do not find
substantial evidence supporting the Board's findings. Lake testified to a gradual increase
in his symptoms, and even the testimony of Rick and Brent provided some corroboration
of this testimony. Dr. Ketchum testified that upper extremity symptoms like those
experienced by Lake could worsen over time, and contrary to the Board's implication, he
also thought his operative report was "compatible" with the existence of scar tissue. Dr.
McDaniel specifically testified it was "not uncommon" for the symptoms of a disc injury
or spinal cord compression to worsen over time. Dr. Nichols testified that surgery was
necessary to arrest Lake's decline, which clearly meant his symptoms were worsening
over time. Dr. Stein testified that "you would certainly expect some of these symptoms to
start reasonably soon after the incident." (Emphasis added.) Finally, Dr. Prostic testified
that symptoms like Lake's "can gradually get worse and you can pick up progressively
more symptoms as time goes on." In fact, Dr. Prostic testified it was "common" for
symptoms to grow worse over time.

In summary, we do not find evidentiary support for what the Board called the
"majority" medical opinion that Lake's "arm and leg symptoms should have been
identifiable within a finite period of time, within a few days or by early-June 2008." The
27

medical testimony was more generalized and nuanced. While substantial expert medical
evidence supported a conclusion that some neurological symptoms should have been
experienced within a week or two—which Lake clearly testified he experienced and
Palmer testified he noticed—a majority of the doctors did not specify the symptoms they
would expect within that short time frame. Considering the record as a whole, we hold
there was not substantial evidence to support the Board's finding that Lake's sworn
testimony that he experienced some symptoms consistent with neurological injuries
within a short time after the work accident was not credible.

CONCLUSION

There was considerable undisputed testimony proving many aspects of Lake's
workers compensation claim. First, the fact that Lake was involved in a work accident on
May 16, 2008, was uncontroverted. Second, Lake's and Palmer's eyewitness accounts of
the manner in which the work accident occurred were also uncontested. Third, even the
Board concluded that Lake had sustained an injury, albeit a minor one, during this work
accident. Fourth, there was no evidence that Lake had ever sustained a neck, back, or
right arm injury prior to the work accident. Fifth, on the other hand, there was no
evidence of trauma to Lake's neck, back, or right arm after the work accident and before
the extent of his back condition was fully revealed in the fall of 2008 by the three MRI
studies of his spine. Moreover, it was uncontroverted that Lake underwent three surgeries
in an effort to alleviate his back and arm conditions. Finally, Lake's permanent total
disability was apparent and well-supported by medical testimony.

The critical issue presented to the ALJ was the cause of Lake's injuries. Lake bore
the burden to prove this aspect of his claim. See Chriestenson, 46 Kan. App. 2d 453, Syl.
¶ 4. The ALJ had the opportunity to evaluate Lake's testimony when he appeared in
person under oath before the ALJ. The ALJ credited Lake's testimony, especially with
regard to Lake's assertion that he sustained the serious back and arm injuries as a result of
28

the work accident. In particular, the ALJ found that Lake "was suffering ill effects from
his injury at the time of the accident, per his testimony and that of Mr. Palmer."
(Emphasis added.)

As an appellate court, we are tasked under K.S.A. 2012 Supp. 77-621(d) with
reviewing the total record, "including any determinations of veracity by the presiding
officer who personally observed the demeanor of the witness." (Emphasis added.) This
legal imperative to carefully consider a judicial officer's personal determinations of
veracity rather than formulating later credibility judgments based solely on transcripts
and documentary evidence is consonant with the limited role of an appellate court
generally: "One of the reasons that appellate courts do not assess witness credibility from
the cold record is that the ability to observe the declarant is an important factor in
determining whether he or she is being truthful." State v. Scaife, 286 Kan. 614, 624, 186
P.3d 755 (2008).

The Board was within its rights to discount the ALJ's credibility determinations
and provide reasons for its findings. See Kotnour, 43 Kan. App. 2d at 837. But the law
requires those findings to be supported by substantial evidence in light of the record as a
whole. See K.S.A. 2012 Supp. 77-612(c)(7), (d). The law does not allow the Board to
discount an ALJ's credibility determinations of a claimant based on presumptions,
suppositions, and cherry-picked record references of questionable or limited evidentiary
value.

In the present case, the undisputed causation opinions of Drs. Nichols, Behm,
Ketchum, and Prostic related Lake's neurological injuries to the work accident. Dr. Stein's
uncertainty was based on a lack of documentation of Lake's testimony that he suffered
immediate symptoms—not on his medical opinion that the work accident as described
could not have caused the neurological injuries. We recognize the Board "'is not bound
by medical evidence presented in the case and has the responsibility of making its own
29

determination.'" Roskilly v. Boeing Co., 34 Kan. App. 2d 196, 199, 116 P.3d 38 (2005).
We also recognize medical evidence is not necessary to prove causation generally. See
Webber v. Automotive Controls Corp., 272 Kan. 700, 705, 35 P.3d 788 (2001). Yet the
Board may not "disregard undisputed evidence that is not improbable, unreasonable, or
untrustworthy. Such evidence must be regarded as conclusive. [Citations omitted.]"
Casco v. Armour Swift-Eckrich, 283 Kan. 508, 515, 154 P.3d 494 (2007).

Because the question here is not the existence of a work accident, which the Board
found, or even of injury to Lake, which the Board found in the form of a pulled groin, but
only of a link between the work accident and Lake's neurological injuries, the causation
opinions of Drs. Nichols, Behm, Ketchum, and Prostic do not seem improbable,
unreasonable, or untrustworthy. We conclude that the weight of this medical evidence,
coupled with the lack of substantial evidence to uphold the Board's findings that Lake
was not credible (contrary to the ALJ's determination) and the evidence corroborating
Lake's testimony that he experienced neurological symptoms during and shortly after the
accident, require reversal of the Board's ruling. In short, we hold the Board's findings of
fact in support of its conclusion to deny compensation are not supported by substantial
evidence viewed in light of the record as a whole. Accordingly, we reverse the Board's
order and remand with directions to reinstate the ALJ's award of compensation.

Reversed and remanded with directions.