Shoemaker v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,014

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DELOIS GAYLE SHOEMAKER,
Appellant,

v.

STATE OF KANSAS

and

STATE SELF INSURANCE FUND,
Appellees.


MEMORANDUM OPINION

Appeal from Workers Compensation Board. Opinion filed September 22, 2017. Affirmed.

Roger A. Riedmiller, of Riedmiller, Andersen & Scott, LLC, of Wichita, for appellant.

Jeffery R. Brewer, of Jeffery R. Brewer, P.A., of Wichita, for appellee.

Before ARNOLD-BURGER, C.J., GARDNER, J., and STUTZMAN, S.J.

PER CURIAM: In order to recover permanent partial work disability, a claimant
must prove that he or she is "disabled in a manner which is partial in character and
permanent in quality" from an injury "arising out of and in the course of
employment . . . ." K.S.A. 44-501(a); K.S.A. 44-510e(a). DeLois Gayle Shoemaker
appeals an order denying her request for permanent partial work disability, challenging
the sufficiency of the evidence. But, the order was supported by substantial competent
evidence, including the results of two independent medical evaluations, which showed
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that she did not suffer a permanent disability. At most, she suffered a temporary
aggravation of a preexisting condition. Thus, the order of the Workers Compensation
Appeals Board (Board) is affirmed.

FACTUAL AND PROCEDURAL HISTORY

Shoemaker was employed at Larned Juvenile Correctional Facility. In 2007, she
filed a workers compensation action alleging several injuries. The first incident occurred
when Shoemaker was moving cabinets at work to clean. Another incident arose when
Shoemaker had to "clean up ankle deep water for eight hours." In the final incident, a
chair fell out from beneath her. Shoemaker alleged that these accidents caused injury to
her shoulders, neck, back, and arms and that they permanently worsened her preexisting
conditions.

While Shoemaker only complained of these three incidents in her application for a
hearing, she testified that there had been quite a number of injurious accidents during her
employment at Larned. These included slipping on water (multiple incidents), slipping on
humidity, tripping, working in 50 degree temperatures, moving cabinets, and practicing
physical restraint techniques. In May 2006, the State paid Shoemaker a $10,000
settlement on several workers compensation claims she had filed based on those prior
incidents. Those incidents caused injuries similar to those of which Shoemaker is alleging
in the present case. Shoemaker also filed several workers compensation claims against
previous employers.

Shoemaker underwent several independent medical examinations. Each of her
examining doctors reviewed her medical history and conducted a physical examination.
Shoemaker reported a history of chronic pain. Since 2001, she has had numerous medical
consultations for, among other things, pain in her back, feet, knees, shoulders, and neck.
In 2005, Shoemaker presented to Dr. Lee Dorey with multiple injuries to her spine, knee,
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foot, and ring finger. Dr. Dorey concluded that Shoemaker suffered a 13% permanent
partial impairment to her whole body. Dr. Dorey gave Shoemaker several work
restrictions. A rheumatologist diagnosed Shoemaker with fibromyalgia in 2007,
indicating that she had most likely had fibromyalgia for at least three years.

The administrative law judge (ALJ) ordered Shoemaker to receive an independent
medical evaluation from Dr. Pat D. Do in August 2007. Shoemaker told Dr. Do that her
present pain level was at a 10, on a scale from 0 (no pain) to 10 (excruciating pain).
However, Dr. Do did not note any physical distress or discomfort during his physical
examination of Shoemaker. Dr. Do concluded that Shoemaker was "suffering from a
temporary aggravation of a pre-existing condition." He did not think it would be possible
to eliminate all of Shoemaker's reported pain due to her preexisting conditions, but he did
think it was possible to "get her back to her baseline of where she was prior to the
injury."

The ALJ referred Shoemaker to Dr. Paul S. Stein for another independent medical
examination in July 2010. Dr. Stein noted that Shoemaker had mild tenderness along her
spine in locations specific to fibromyalgia but not enough tenderness "to make a
definitive diagnosis." He concluded that Shoemaker "has had widespread pain essentially
throughout the body for many years with multiple episodes of apparent exacerbation."
Numerous MRI scans and a CT scan showed "only age and weight related mild
degenerative change with no diagnostic findings to explain the symptoms." Dr. Stein
thought that Shoemaker's symptoms satisfied the factors for chronic pain syndrome,
"which simply means that it is a person complaining of widespread pain without an
objective physical basis that could be found." He "believe[d] she believes she has the
pain; and, therefore, she has the pain."

When asked if Shoemaker suffered permanent aggravation of her pain from her
workplace injuries, Dr. Stein replied: "[W]hat I would have to say is on the purely
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subjective basis, she feels that that is the case. I have no objective evidence that that is the
case." Dr. Stein assessed Shoemaker under the fourth edition of the American Medical
Association Guides (AMA Guides) and concluded that she had 0% permanent
impairment of function. Dr. Stein came to this conclusion because the AMA Guides state
that "[a]n individual who complains of constant pain but who has no objectively validated
limitations in daily activities has no impairment." Chronic pain syndrome is not rated on
a percentage basis by the AMA Guides. Shoemaker's attorney asked Dr. Stein to rate
Shoemaker's functional impairment without reference to the AMA Guides, considering
only Shoemaker's complaints. Dr. Stein replied:

"[W]hat I would be able to say is that she is severely impaired or believes she is severely
impaired. I can't put a percentage on it because I have no framework personally. But I
would say if we were comparing it to let's say some of the objective spinal categories in
the guides I would have to put it up as high as 30 or 40 percent or more."

Dr. Stein added that, considering only Shoemaker's complaints, she would suffer a 73.6%
reduction in her ability to perform work tasks. However, he was unable to apportion his
analysis to determine how much, if at all, Shoemaker's most recent workplace injuries
contributed to her perceived impairment and task loss. While Dr. Stein could not
determine whether Shoemaker's workplace injuries contributed to her condition, he
averred that "[Shoemaker] feels that her pain is much worse now based upon those
incidents." For that reason, Dr. Stein agreed that the incidents contributed to Shoemaker's
diagnosis of chronic pain syndrome. But, he could not say that the incidents caused a
permanent aggravation. Rather, he said that "what I would have to say is on the purely
subjective basis, [Shoemaker] feels that that is the case. I have no objective evidence that
that is the case." Dr. Stein did not place any permanent work restrictions on Shoemaker
because he had "no objective evidence of pathology on which to require medical
restrictions."

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Dr. George G. Fluter examined Shoemaker at the request of Shoemaker's attorney
in June 2007, May 2009, and March 2010. Dr. Fluter performs about 12 to 15
independent medical evaluations per week, "essentially all" of which are at the request of
claimants' attorneys. Dr. Fluter did not think that Shoemaker fit the diagnostic criteria for
fibromyalgia but did think that she had a history of chronic persistent pain. He concluded
that there was "a causal/contributory relationship between Ms. Shoemaker's current
condition and work-related activities." He added that "[a]lthough Ms. Shoemaker has a
history of prior injuries affecting the neck and shoulders, these conditions appear to have
been exacerbated/aggravated by work activities."

After his 2010 examination, Dr. Fluter calculated an 18% total permanent partial
impairment to Shoemaker's body: 8% for mild knee range of motion deficits, 6% for
trochanteric bursitis and abnormal gait, and 4% for aggravation of underlying myofascial
pain in her spine. He also recommended several restrictions: restrict lifting, carrying,
pushing, and pulling to 20 pounds occasionally and 10 pounds frequently, avoid holding
the head and neck in awkward or extreme positions, limit overhead activities, and restrict
bending, stooping, twisting, squatting, kneeling, crawling, and climbing to an occasional
basis. Dr. Fluter's testimony differed from his medical examination report. He testified
that he assigned a 19% total permanent partial impairment to Shoemaker—10% for
impairment to Shoemaker's spine and 9% for impairment to Shoemaker's shoulders.

In May 2013, Dr. Marc A. Quillen performed a psychological evaluation of
Shoemaker at the ALJ's request. Dr. Quillen thought that Shoemaker's history
"indicate[d] the presence of a recurrent major depression which ha[d] been assessed as
severe in the past, but which [was] presently in the moderate range." Dr. Quillen
concluded that while Shoemaker's workplace injuries may have exacerbated her
depression, "this exacerbation is not etiologically linked to the work injuries." Dr. Quillen
said that "[p]sychologically, it would be to Ms. Shoemaker's benefit to work" and that her
psychological condition did not limit her abilities in that respect.
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The ALJ found that Shoemaker "met her burden to prove that she met with
personal injury by accident arising out of her employment with Respondent . . . ." But,
the ALJ held that Shoemaker failed to "meet her burden to prove that she sustained any
permanent impairment or disability" as a result of her accidents. The ALJ relied on the
opinions of Dr. Stein and Dr. Quillen. The ALJ believed that "Dr. Stein and Dr. Quillen
offer a more credible opinion than Dr. Fluter, an admitted Claimant's expert, who was
hired by Claimant to render his opinion." The ALJ also noted that Dr. Do's opinion
supported those of Dr. Stein and Dr. Quillen. The ALJ awarded Shoemaker medical
expenses but did not award her anything for temporary total disability or permanent
partial disability. Shoemaker filed a request for review with the Board. The Board found
no error in the ALJ's decision.

Shoemaker filed a petition for judicial review.

ANALYSIS

There was substantial evidence to support the Board’s finding.

Shoemaker's first argument is that there is not substantial evidence to support the
Board's finding that she did not sustain a permanent impairment of function. She argues
that the Board placed too much weight on Dr. Stein's testimony that Shoemaker had 0%
impairment under the AMA Guides. She asserts that the Board failed to consider Dr.
Stein's opinion that her functional impairment, without reference to the AMA Guides, is
between 30 and 40%.

An appellate court reviews a challenge to the Board's factual findings in light of
the record as a whole to determine whether the findings are supported to the appropriate
standard of proof by substantial evidence. See K.S.A. 2016 Supp. 77-621(c)(7).
"Substantial evidence" refers to evidence possessing something of substance and relevant
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consequence to induce the conclusion that the award was proper, furnishing a basis of
fact from which the issue raised could be easily resolved. Rogers v. ALT-A&M JV, 52
Kan. App. 2d 213, 216, 364 P.3d 1206 (2015).

Compensation for permanent partial general disabilities is discussed in K.S.A. 44-
510e, which provides:

"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. In any
event, the extent of permanent partial general disability shall not be less than the
percentage of functional impairment. Functional impairment means the extent, expressed
as a percentage, of the loss of a portion of the total physiological capabilities of the
human body as established by competent medical evidence and based on the fourth
edition of the American Medical Association Guides to the Evaluation of Permanent
Impairment, if the impairment is contained therein." (Emphasis added.)

Shoemaker's argument focuses on the language "if the impairment is contained therein."
The AMA Guides do not provide a way to evaluate chronic pain syndrome on a
percentage basis. So, Shoemaker argues that "Dr. Stein's opinion as to functional
impairment being between 30% and 40%" should have been considered by the Board.
She cites Goodell v. Tyson Fresh Meats, 43 Kan. App. 2d 717, 235 P.3d 484 (2009), in
support. So we will examine the facts and holding of Goodell.

In Goodell, Nicole Goodell sustained an injury to her left foot while she was
working at Tyson Fresh Meats, Inc. Goodell alleged that the left foot injury led to injury
in her right foot and lower back. Dr. Stan Bowling treated Goodell's left foot and
concluded that she suffered a permanent partial impairment rating of 10% in the left foot.
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He did not provide treatment for back pain. Dr. Sergio Delgado also evaluated Goodell
and concluded that she suffered a 10% impairment in the left foot. Dr. Delgado also
found a 2% impairment in Goodell's right foot and a 3% impairment in Goodell's lower
back as a result of her altered gait. Dr. Peter Bieri also found a 10% impairment in
Goodell's left foot. However, he concluded that "'[w]hile the claimant has subjective
complaints involving the low back, hips, and right foot, at the time of this evaluation she
fails to meet the criteria for additional permanent impairment directly attributable to the
injury in question.'" 43 Kan. App. 2d at 720.

The ALJ awarded a 10% left lower extremity impairment to Goodell. Goodell
appealed to the Board, which modified her award to include an award for a 3%
impairment to Goodell's lower back, as recommended by Dr. Delgado. A majority of
Board members felt that Goodell's lower back injury was a direct and natural
consequence of her original left foot injury. The Board relied on statements from Dr.
Delgado and Dr. Bowling that "'it is common for a lower extremity injury to lead to an
altered gait'" which in turn could cause back injury. 43 Kan. App. 2d at 725. Tyson
appealed.

One of Tyson's arguments on appeal was that "the Board erroneously relied on Dr.
Delgado's permanent partial impairment rating of 3% to the body as a whole for
Goodell's lower back condition because the AMA Guides to Evaluation of Permanent
Impairment do not include impairment ratings for this condition." 43 Kan. App. 2d at
726. The Court of Appeals rejected this argument, holding that "[t]he lack of an
impairment rating listed in the AMA Guides does not require a finding of zero
impairment. K.S.A. 44-510e(a) specifically contemplates the existence of impairment
ratings not 'contained therein.'" 43 Kan. App. 2d at 727. The court found that Dr.
Delgado's opinion was supported by the evidence because he testified that he would not
have assigned impairment to Goodell's lower back or right foot "'[i]f she had not had that
injury which was objectively certified through her EMG . . . .'" 43 Kan. App. 2d at 727.
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Shoemaker relies on Goodell for the proposition that her chronic pain syndrome
can create functional impairment even though it is not rated by the AMA Guides.
Shoemaker asserts that "her case is almost identical in appropriate factual analysis to the
Goodell case" and that the Board should have found "Dr. Stein's opinion as to functional
impairment being between 30% and 40%" as persuasive.

There are several significant factual differences between the present case and
Goodell. The Goodell court found Dr. Delgado's opinion persuasive because it was
supported by objective evidence that Goodell's left foot had been injured, and because
multiple doctors testified that an injury to the foot (which may cause a change in gait)
could lead to injury in the lower back. 43 Kan. App. 2d at 725, 727. Here, Dr. Stein was
very clear that there is no objective evidence of injury. Another distinction is that
Goodell's back issues were directly attributable to her workplace foot injury. Even if the
Board were to accept Dr. Stein's response to a hypothetical situation in which he assigned
Shoemaker a 30 to 40% functional impairment rating, there is no evidence that the
functional impairment was directly attributable to Shoemaker's workplace injuries. Dr.
Stein could not opine as to whether Shoemaker's workplace injuries contributed to her
condition, and he also could not say that the incidents caused a permanent aggravation of
her condition. Finally, Dr. Stein was not truly assigning a functional impairment rating of
30 to 40%. Rather, he was responding to a hypothetical in which he was asked to rate
Shoemaker's impairment based on her own subjective complaints. He thought that
Shoemaker thought she was suffering from 30 to 40% impairment. This is different than
Dr. Delgado's opinion because Dr. Delgado's opinion was based on the totality of the
results of his independent medical evaluation.

The Board did consider Dr. Stein's testimony that Shoemaker believed she
suffered 30 to 40% impairment. The Board quoted this portion of Dr. Stein's testimony in
its order. The Board found that Dr. Stein's medical opinion, based on all of the evidence
and supported by the opinions of Drs. Do and Quillen, deserved more weight than Dr.
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Stein's response to a hypothetical question. It was reasonable for the Board to make this
conclusion. This court cannot reweigh the evidence. K.S.A. 2016 Supp. 77-621(d). After
our review of the record as a whole, we conclude that the Board's factual findings were
supported by substantial evidence.

Shoemaker is not entitled to an award for work disability if she has not sustained
permanent impairment of function.

Shoemaker also argues that she is entitled to an award for work disability even if
she does not prove permanent impairment of function. Shoemaker's argument is based on
recent amendments to Kansas' workers compensation statutes. The most recent version of
the statute is clear that an employee's ability to recover for permanent partial general
disability is dependent on the employee's level of functional impairment. K.S.A. 2016
Supp. 44-510e(a)(2)(B) ("The extent of permanent partial general disability shall be the
percentage of functional impairment the employee sustained on account of the injury as
established by competent medical evidence . . . ."). However, the law in effect on the date
of the injury controls in workers compensation cases. Bryant v. Midwest Staff Solutions,
Inc., 292 Kan. 585, 588-89, 257 P.3d 255 (2011). The parties stipulated that Shoemaker's
injuries occurred in 2007 and 2008. At that time, Shoemaker argues that the statute did
not have a "pre-requisite, requirement, limitation, or statement about Claimant being
required to prove functional impairment before the Claimant is entitled to permanent
partial disability for work disability."

This court exercises unlimited review over issues of statutory interpretation.
Bryant, 292 Kan. at 587.

Shoemaker's argument seems to be that she is entitled to permanent partial work
disability even though she has not proven functional impairment. Shoemaker's focus on
functional impairment ignores the other requirements of the statute. At the time of
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Shoemaker's injuries, K.S.A. 44-510e(a) provided: "Permanent partial general disability
exists when the employee is disabled in a manner which is partial in character and
permanent in quality . . . ." Thus, regardless of whether Shoemaker was required to prove
functional impairment, she still had the burden of proving that she was permanently
disabled.

The Board found that Shoemaker failed to prove permanent impairment. The
Board's decision is supported by the opinion of Dr. Stein, who could not conclusively
determine whether Shoemaker's workplace injuries caused a permanent aggravation of
her chronic pain. Dr. Do also found that Shoemaker was suffering only from a temporary,
not a permanent, aggravation of a preexisting condition. Because Shoemaker failed to
prove that she suffered a permanent disability arising out of and in the course of
employment, the Board's decision was supported by substantial evidence.

Affirmed.