Evans v. Cessna Aircraft Co.

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NOT DESIGNATED FOR PUBLICATION

No. 115,258

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KEVIN D. EVANS,
Appellee,

v.

CESSNA AIRCRAFT CO.,
Appellant.


MEMORANDUM OPINION

Appeal from Workers Compensation Board. Opinion filed April 7, 2017. Affirmed.

Vincent A. Burnett and Travis L. Cook, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A.,
of Wichita, for appellant.

Jeff K. Cooper, of Topeka, for appellee.

Before GREEN, P.J., STANDRIDGE and GARDNER, JJ.

Per Curiam: Cessna Aircraft Co. appeals an order entered by the Workers
Compensation Board, challenging the functional impairment ratings for its employee,
Kevin D. Evans. Evans cross-appeals the Board's finding which limited Cessna's liability
to $500 for the costs of surgery Evans obtained independently from the workers
compensation proceeding. Finding no reversible error, we affirm.




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Factual and procedural history

Evans has worked for Cessna for about 20 years and currently works in the
production shop, overseeing repairs to aircraft. In October 2011, he was injured when he
fell to the floor after the stool he was sitting on collapsed. He struck the floor with his
middle to lower back, buttocks, and elbows. He visited Cessna's employee health services
department and was referred to physicians for treatment of his back and shoulder injuries.

For the shoulder injury, Cessna referred Evans to Dr. Daniel J. Prohaska, who
prescribed anti-inflammatory medication, physical therapy, a subacromial injection, and,
finally, arthroscopic surgery on Evans' left shoulder. When those measures failed to
eliminate his pain, Dr. Prohaska concluded that Evans had reached maximum medical
improvement and assigned a 2% impairment to each of the left and right upper
extremities, which converts to a 2% impairment to the body as a whole under the
American Medical Association Guides to the Evaluation of Permanent Impairment, (4th
ed. 1995) (AMA), as required by K.S.A. 2016 Supp. 44-510e(a)(2)(B).

For the injury to the lumbar spine, Cessna referred Evans to Dr. John P. Estivo.
Dr. Estivo ordered physical therapy, pain medication, and a series of epidural injections
to relieve "nerve root irritation." After Evans reported no relief from the injections, Dr.
Estivo diagnosed lumbar radiculopathy and ordered tests to confirm the diagnosis. He
removed his diagnosis when the CT myelogram and NCS/EMG showed no objective
evidence of radiculopathy. He did not recommend surgery because the tests did not reveal
any herniated discs or nerve root impingement. Having no other treatments available, Dr.
Estivo placed Evans at maximum medical improvement in March 2012 and released him
from care. He assigned a 5% whole body impairment.

Still in pain, Evans sought treatment from his personal physician, who referred
him to Dr. John R. Dickerson, a surgeon. Dr. Dickerson saw him in August 2012 and
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recorded leg pain consistent with radiculopathy and recommended surgery. In an effort to
resolve the conflicting opinions of Dr. Dickerson and the treating physician, Dr. Estivo,
the administrative law judge (ALJ) ordered an independent medical exam (IME) by Dr.
Paul S. Stein in August 2013. In his report in October 2013, Dr. Stein agreed with Dr.
Dickerson's surgical recommendation to some extent but later stated he could not
recommend surgery after a discogram test did not conclusively show that Evans had
nerve root impingement at the L5-S1 level causing radiculopathy. The ALJ and the Board
ultimately found a 10% functional whole person impairment to the lumbar spine.

About a year later, Evans returned to Dr. Dickerson, who performed spinal surgery
to relieve Evans' pain, under Evans' health insurance. Evans did not notify the court or
seek authorization. Cessna's attorney first learned that Evans had undergone surgery
when Evans appeared at the regular hearing in November 2014, 4 months after the
surgery. Evans sought reimbursement through his workers compensation case, and Evans
reported his leg pain was 70% better than before surgery.

Based partly on that post-surgical improvement, the ALJ found the surgery was
reasonably and medically necessary to cure Evans' left leg pain. Accordingly, he assessed
the costs of surgery against Cessna. He assigned a 17% whole body impairment rating
based on Evans' injuries to his shoulders and lower back but found Evans failed to prove
injuries to his cervical or thoracic spine. The Board reversed the award of surgical fees
but affirmed the ALJ's impairment findings.

Our standard of review is not de novo

Our review of the Board's action is governed by the Kansas Judicial Review Act
(KJRA). K.S.A. 2016 Supp. 77-621. We may grant relief if "[t]he agency action is based
on a determination of fact, made or implied by the agency, that is not supported to the
appropriate standard of proof by evidence that is substantial when viewed in light of the
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record as a whole." K.S.A. 2016 Supp. 77-621(c)(7). "'[I]n light of the record as a whole'"
includes relevant evidence cited by the parties that either supports or detracts from the
Board's findings of fact. K.S.A. 2016 Supp. 77-621(d).

This statute requires us to (1) review evidence both supporting and contradicting
the Board majority's findings; (2) examine the majority's credibility determination, if any;
and (3) review the majority's explanation as to why the evidence supports its findings.
See Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014). We
cannot reweigh the evidence or engage in de novo review of the Board's factual findings.
K.S.A 2016 Supp. 77-621(d). We explained the balance between "de novo review" and
the section 77-621(d) requirement to examine evidence that detracts from the Board's
ruling in Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 212
P.3d 239 (2009). We found we must determine whether "the evidence supporting the
agency's decision has been so undermined by cross-examination or other evidence that it
is insufficient to support the agency's conclusion." 42 Kan. App. 2d at 363. We apply that
standard here.

I. Does substantial competent evidence support the Board's impairment ratings?

The ALJ based his award of 17% whole body impairment on evidence from the
preliminary hearing and the depositions of six physicians: Dr. Prohaska, who treated the
shoulder injury; Dr. Estivo, who treated the lumbar spine injury; Dr. Chris D. Fevurly,
hired by Cessna to provide an IME; Dr. Pedro A. Murati, hired by Evans to provide an
IME; Dr. Stein, appointed by the court to provide an IME; and Dr. Dickerson, who
performed Evans' surgery.




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(A) The Claimed Cervical-Thoracic Injury

The ALJ excluded the cervical-thoracic injury from the award because he found
that "the balance of the evidence in this cases does not support an injury to that area of
the body as a result of this accident." The Board affirmed, finding that Evans failed to
prove injury.

As claimant, Evans has the burden to prove the condition for which he seeks an
award. Evans' burden is "a preponderance of the credible evidence that such a party's
position on an issue is more probably true than not true on the basis of the whole record."
K.S.A. 2016 Supp. 44-508(h).

Dr. Murati was the only physician who noted complaints of neck pain and the only
one who assigned impairment ratings for it. He assigned 15% whole person impairment
for neck pain and 5% whole person impairment for myofascial pain syndrome affecting
the thoracic paraspinals. In contrast, the treating physician, Dr. Estivo, noted a normal
examination of the cervical spine and full range of motion in the neck in December 2011
and in February and March 2012.

Evans asserts that Dr. Fevurly found deficits in his cervical range of motion when
examining him as part of an IME requested by Cessna. Actually, Dr. Fevurly's report
stated that Evans had "near normal range of motion" and "there was no evidence for a
neck injury or cervical radiculopathy." Further, he stated that the neck pain was not
mentioned until the last medical report he reviewed, which was Dr. Murati's report.

Evans argues that the other doctors did not make findings about a neck injury
because they were asked to evaluate only the shoulders and lumbar spine. But the record
refutes that assertion. Some of the exams included evaluations of Evans' neck and,
importantly, there is no evidence of Evans complaining about neck pain to any physician
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other than Dr. Murati. Further, at the regular hearing before the ALJ in November 2014,
Evans testified that he has pain in his mid-back and neck and thinks it "came over time"
instead of from the fall at Cessna.

The Board weighed the testimony and reports before it and found Dr. Murati's
testimony insufficient to prove injury to the cervical or thoracic spine. Having reviewed
the record as a whole, we find substantial evidence supporting that finding.

(B) The Shoulder Injury

We next examine the shoulder injury. The ALJ arrived at a whole body
impairment of 8% from the shoulder injury by giving equal weight to Dr. Murati's rating
of 14% and Dr. Prohaska's and Dr. Fevurly's 2% ratings. The Board agreed with the
ALJ's findings but noted "conflicting ratings" existed.

Each doctor rated for loss of range of motion (ROM), but Dr. Murati also rated for
a second type of impairment in the left shoulder. We first examine the conflicting
testimony regarding ROM and then discuss the rating given by Dr. Murati.

ROM ratings

Cessna attacks the credibility of Dr. Murati's ROM rating, and Evans attacks the
credibility of Dr. Fevurly, based on his apparent lack of respect for the judicial process.
When asked if he would like to see the order where a judge disqualified him for not being
impartial, Dr. Fevurly responded, "What does that Judge know."

Three doctors tested Evans' ROM. Dr. Murati found the greatest loss of ROM. The
table below shows the results reported by the doctors. According to Dr. Prohaska, a 1%
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difference in ROM equates to a 10-degree variation in result. Thus, the maximum
difference of 30 degrees equates to a 3% difference in the measurement.

Examining
Physician
Date of
Exam
Degrees of
Forward Flexion
R/L
Degrees of
Abduction
R/L
Dr. Prohaska July 2012
Later visits
175/175
/165
175/165
/165
Dr. Murati December 2013 145/150 145/150
Dr. Fevurly December 2014 180/180 180/180

We find that the ROM results do vary, but not significantly. Given that the exams
were about a year apart, and that Dr. Prohaska noted Evans' range of motion was reduced
at his "later visits," the variance in the doctors' measurements does not undermine the
sufficiency of that evidence.

Dr. Murati's SPSD rating

Cessna next challenges Dr. Murati's ratings. Dr. Murati assigned the following
ratings for the shoulder injuries:

Left: ROM = 8 % upper extremity impairment
SPSD = 10% upper extremity impairment
Total = 10 % whole body impairment

Right: ROM = 7% upper extremity impairment
Total = 4 % whole body impairment

Both shoulders total: 14% whole body impairment.

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Dr. Murati assigned a 10% left upper extremity impairment for a condition he
identified as left shoulder "status post subacromial decompression" (SPSD). Dr. Murati
was the only physician to rate this, but the ALJ did not question the credibility of Dr.
Murati's finding of SPSD. Treatments provided by Dr. Prohaska may or may not have
been related to that condition. Dr. Prohaska diagnosed bilateral shoulder injury and
coracoid traumatic impingement, then performed a "coracoid decompression" surgical
procedure on Evans and treated Evans with a "subacromial injection."

Conversely, Dr. Prohaska assigned 2% upper extremity impairment for each
shoulder for loss of ROM, equating to 2% whole body impairment. Dr. Fevurly also rated
2% impairment per shoulder because of the pain, explaining that he was "getting soft in
[his] old age."

The ALJ Board's whole body impairment of 8% from the shoulder injury reflects
the middle ground between Dr. Murati's rating of 14% and Dr. Prohaska's and Dr.
Fevurly's ratings of 2%. Given the record as a whole, we find sufficient evidence to
support the Board's findings. To rule otherwise, we would have to reweigh the evidence.

(C) The Lumbar Spine Injury/Radiculopathy

The ALJ summarized the testimony of five physicians and found that "the only
credible rating is Dr. Murati's [because it] is clear from the very beginning of the case,
claimant had evidence of radiculopathy." The ALJ found that "the results of that surgery
[by Dr. Dickerson] speak for themselves," implying that the success of the surgery in
relieving Evans' pain indicated that Evans did have radiculopathy prior to the surgery.
Thus, in accordance with the AMA, the ALJ found a 10% whole body impairment from
the lumbar spine injury.

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The Board adopted the 10% rating, as opposed to the 5% rating assigned by the
other physicians. The difference in the impairment ratings is because Dr. Murati placed
the injury in Lumbosacral DRE Category III of the AMA, whereas the others placed it in
Category II. Category II, Minor Impairment, refers to injuries where the patient
complains of radicular pain but there is "no objective sign of radiculopathy." Category
III, Radiculopathy, requires the patient to have "significant signs of radiculopathy, such
as loss of relevant reflex(es) or measured unilateral atrophy . . . . The impairment may be
verified by electrodiagnostic findings." The two primary types of electrodiagnostic tests
are electromyography (EMG) and nerve conduction studies (NCS). Both were performed
on Evans.

A narrow grey area exists between "no objective evidence" and some undefined
level of objective evidence that raises the level to "significant signs of radiculopathy."
The emphasized "no" in the AMA suggests that even a small amount of credible
objective evidence of radiculopathy, coupled with significant subjective symptoms,
would support rating an injury as Category III.

The record is replete with Evans' subjective reports of radiculopathy, so his
condition clearly met the Category II standards, as the parties agree. Evans argues that a
claimant's own testimony is sufficient to prove his condition, citing Hanson v. Logan
U.S.D. 326, 28 Kan. App. 2d 92, 95, 11 P.3d 1184 (2000). By definition, Category II
applies where the patient complains of radicular pain but there is "no objective sign of
radiculopathy." But, as noted above, Category III requires some objective evidence and
therefore cannot be proven solely by Evans' testimony.

The seeming conflict between the medical records stating Evans had radiculopathy
and the results of diagnostic testing was explained by Dr. Stein, the physician appointed
by the court to provide an IME. He stated there is distinction between typical medical
usage of the term radiculopathy and the legal meaning of the term. He indicated that a
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physician referring to pain as radiculopathy does not mean that a patient has
radiculopathy as required by the AMA. He testified that a person having a normal EMG
result could actually have "some impingement on a nerve root and extremity pain" but the
"nerve root has not been damaged yet to the point that it shows up. On the other hand, if
you are doing a legal situation, the 4th Edition of the AMA requires some findings of
nerve root damage before it will raise the individual to the level of radiculopathy."

The objective evidence in this case consists of the initial MRI, a CT/myelogram, a
discogram, and clinical observations. We discuss these below.

The initial MRI and CT/myelogram

Based on the initial MRI in 2011 and Evans' symptoms, Dr. Estivo diagnosed
radiculopathy. Dr. John Jensen, the physician who administered epidural injections on
Dr. Estivo's order, recorded that his own "diagnostic impression" was radiculopathy.
Thus the doctors agreed that the initial MRI showed signs supporting radiculopathy.

The interpretations of the CT/myelogram were not so uniform. Drs. Dickerson and
Stein interpreted the CT/myelogram to show possible nerve root compression. Dr. Stein
stated that he agreed with Dr. Dickerson that "there is some suggestion on the post
myelogram CT scan of abnormality at the left L5-S1. This might simply be a poor
diffusion of contrast into the left S1 nerve root or there could be some nerve root
compression."

Dr. Estivo, however, said the CT/myelogram showed no compression existed. In
fact, he removed his diagnosis of radiculopathy after the CT/myelogram and NCS/EMG
showed no objective evidence of nerve root impingement. Therefore, he placed the injury
in Category II and assigned a 5% whole body impairment for the lumbar spine.
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Dr. Dickerson read the CT/myelogram and stated, "[o]n further inspection, he does
have actual compression of the exiting S1 nerve root on the left." Cessna argues that the
Board erred in considering Dr. Dickerson's opinion, citing three reasons why it did not
constitute "competent medical evidence" as required by K.S.A. 2016 Supp. 44-
510e(a)(2)(C). Cessna first argues that Dr. Dickerson's opinion is not competent evidence
because his 2012 and 2014 examinations differ considerably. But we are not persuaded,
as a person's medical condition can progress over the course of 2 years. Second, Cessna
argues that Dr. Dickerson did not have Evans' prior medical records. But this does not
cause us to discount Dr. Dickerson's own reports from 2012 and 2014. Third, Cessna
argues that Dr. Dickerson's recommendation of surgery was incompetent because he
relied on the discogram results. But we are not examining whether surgery was the right
remedy; instead, we are examining only whether objective evidence of radiculopathy
supports a rating of 10%. We credit Dr. Dickerson's testimony as to the latter.

Discogram

The final diagnostic test was a discogram performed at Dr. Stein's suggestion. It
showed that Evans had pain at the L5-S1 level as well as at two other levels. Although
the validity of discograms as a basis for making a surgical recommendation was severely
undercut, we consider the discogram to be some objective evidence of radiculopathy
because the physicians did not attack the fact that the discogram revealed Evans had pain
"similar to the patient's initial pain," albeit at two additional disc locations.

Clinical observations

Direct physical examination may be another type of objective evidence. Dr. Stein
did not find any evidence in his examination of Evans that would "document
radiculopathy at the level required by the AMA Guides." On examination about a year
later, Dr. Dickerson found that the "left ankle jerk reflex" was decreased, yet also found
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the reflexes were normal bilaterally. The straight leg raise test for radiculopathy was
negative for both the right and the left leg. Dr. Dickerson thus noted his clinical
observation of radiculopathy by finding slightly decreased reflexes in the left heel.

Although the record contains some countervailing evidence to support an award
for 5% whole body impairment under Category II, we do not find the agency's decision
has been so undermined that it is insufficient to support the agency's conclusion.
Accordingly, we affirm the finding of a 10% whole body impairment under Category III.

No basis for reversal of the Board's impairment findings for Evans' neck, shoulder,
or spine injuries has been shown.

II. Did the board err in limiting Cessna's liability for costs of surgery to $500?

Evans' cross-appeal argues that the Board erred in limiting Cessna's liability for
the costs of surgery on his back to $500, pursuant to K.S.A. 2016 Supp. 44-510h(b)(1).
The Board ruled that "even though the medical treatment may have been reasonable and
necessary, and somewhat successful in relieving some of the claimant's symptoms, the
failure by claimant to obtain authorization is fatal to this issue."

We review the Board's interpretation and application of the law de novo, owing no
deference to the Board's interpretation. Douglas v. Ad Astra Information Systems, 296
Kan. 552, 559, 293 P.3d 723 (2013). "[T]he legislature is presumed to have expressed its
intent through the language of the statutory scheme, and when a statute is plain and
unambiguous, the court must give effect to the legislative intention as expressed in the
statutory language." Fernandez v. McDonald's, 296 Kan. 472, 478, 292 P.3d 311 (2013).
However, where the plain statutory language reveals an ambiguity, the court may apply
canons of statutory construction, such as in pari materia—construing various provisions
of the Workers Compensation Act to reconcile and bring them into a workable harmony
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where possible. 296 Kan. at 479 (citing Redd v. Kansas Truck Center, 291 Kan. 176, 195,
239 P.3d 66 [2010]).

Evans argues that Cessna is liable for the cost of the unauthorized treatment
because it unreasonably refused to provide him adequate care. Evans primarily relies on
two statutes. The first states the general duty of the employer to "provide . . . such
medical, surgical, and hospital treatment . . . as may be reasonably necessary to cure and
relieve the employee from the effects of the injury." K.S.A. 2016 Supp. 44-510h(a).
Evans argues that Cessna failed to meet its duty and, thus, he was authorized by K.S.A.
2016 Supp. 44-510j(h) to obtain medical treatment on his own and hold Cessna liable for
the cost. That statute provides that "[i]f the employer has knowledge of the injury and
refuses or neglects to reasonably provide the services . . . required by this act, the
employee may provide the same for such employee, and the employer shall be liable for
such expenses." K.S.A. 2016 Supp. 44-510j(h). The terms of that statute were met in
Saylor v. Westar Energy, Inc., 292 Kan. 610, 621-22, 256 P.3d 828 (2011),where the
employer possessed knowledge of the employee's work-related injury but provided no
medical care.

Cessna argues that it does not fall under K.S.A. 2016 Supp. 44-510j(h) because it
provided reasonable medical care, distinguishing it from Saylor. It argues that K.S.A.
2016 Supp. 44-510h(b)(2) applies, limiting its liability for unauthorized medical care to
$500. We agree.

The record reflects that Cessna provided Evans with adequate health care. Cessna
provided Evans with a physician after learning of his injury, and that physician, Dr.
Estivo, treated him until he was at maximum medical improvement, then released him.
Dr. Estivo, did not believe surgery was necessary. When Dr. Dickerson indicated
otherwise, the court ordered an IME with Dr. Stein, who ultimately reached the same
conclusion as Dr. Estivo—that Evans was not a surgical candidate and had reached
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maximum medical improvement. Dr. Prohaska reached that same conclusion. But Evans
never filed an application pursuant to K.S.A. 2016 Supp. 44-510h(b)(1) alleging any
physician's treatment was unsatisfactory. Under that statute, "if the director finds, upon
application of an injured employee, that the services of the health care provider furnished
by the employer and rendered on behalf of the injured employee are not satisfactory, the
director may authorize the appointment of some other health care provider." Instead,
nearly 2 years after Dr. Estivo treated him and 1 year after Dr. Stein saw him, Evans
unilaterally sought surgery on his back from Dr. Dickerson.

K.S.A. 2016 Supp. 44-510h(a) establishes an employer's general duty to provide
medical care for an injured employee. Notably, the statute contains no provision requiring
an employer or an employer's insurance carrier to pay for any medical expenses incurred
solely at the employee's discretion. Thompson v. Hasty Awards, Inc., No. 106,359, 2012
WL 1970241, at *9 (Kan. App. 2012) (unpublished opinion). To the contrary, K.S.A.
2016 Supp. 44-510h(b)(2) states: "Without application or approval, an employee may
consult a health care provider of the employee's choice for the purpose of examination,
diagnosis or treatment, but the employer shall only be liable for the fees and charges of
such health care provider up to a total amount of $500."

Evans does not contend that he was not required to obtain prior authorization from
Cessna, or that he actually obtained such authorization. And "the Act clearly provides
that when an employee does not obtain the appropriate authorization to use a particular
health care provider, the maximum liability of the employer is $500." Mohamed v. Tyson
Fresh Meats, Inc., No. 112436, 2015 WL 4094333, at *2 (Kan. App.) (unpublished
opinion), rev. denied 303 Kan. 1078 (2015) (citing K.S.A. 2008 Supp. 44-510h[b][2]).

"When a workers compensation statute is plain and unambiguous, this court must
give effect to its express language rather than determine what the law should or should
not be. The court will not speculate on legislative intent and will not read the statute to
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add something not readily found in it." Bergstrom v. Spears Manufacturing Co., 289 Kan.
605, 607-08, 214 P.3d 676 (2009).

Evans had an open workers compensation case in which to request a hearing for
further evaluation or treatment, and he had ample opportunity to do so between Dr.
Stein's IME in October 2013 and Dr. Dickerson's recommendation for surgery in June
2014. Yet another month passed between Dr. Dickerson's recommendation for surgery
and the performance of the surgery in July 2014. Still, Evans made no attempt to obtain
authorization prior to the surgery. As the Board found, under these circumstances, Evans'
failure to avail himself of the statutory option to make a new application for authorization
of the surgery precludes his recovery of more than $500.

We appreciate that Evans was experiencing pain and sought the treatment he
believed was necessary and which did provide some relief, according to his testimony.
However, he proceeded outside the clearly established rules for obtaining coverage under
the Workers Compensation Act, so he cannot receive reimbursement for the unauthorized
expenses.

Affirmed.