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Lake v. Jessee Trucking

Court of Appeals of Kansas

December 27, 2013

Glenn C. Lake, Appellant,
v.
Jessee Trucking and Continental Western Group, Appellees.

Corrected Opinion: January 7, 2014

SYLLABUS

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 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 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.

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 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.

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.

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.

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 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 ...


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