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Base v. Raytheon Aircraft Co.

Court of Appeals of Kansas

July 3, 2014

DONALD D. BASE, JR., Appellant,

Appeal from Workers Compensation Board.


1. In a workers compensation case, the decision of the administrative law judge and the Workers Compensation Board to exclude the testimony and report of an independent medical examiner as a sanction for counsel's violation of a no-contact order is reviewed by an appellate court to determine whether the agency action is unreasonable, arbitrary, or capricious.

2. Under the facts herein, the administrative law judge and the Workers Compensation Board did not act unreasonably, arbitrarily, or capriciously in excluding the report and deposition testimony of two independent medical examiners as a sanction for claimant's counsel's violation of the administrative law judge's no-contact order.

Scott J. Mann, of Mann Law Offices, L.L.C., of Hutchinson, for appellant.

Clifford K. Stubbs and Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellees.

Before MALONE, C.J., BRUNS, J., and HEBERT, S.J.


Page 541

Malone, C.J.

Donald D. Base, Jr., appeals the denial of his workers compensation claim. Base alleged that his lower back was injured in a " series of events, repetitive use, cumulative traumas or microtraumas" as a maintenance worker at Raytheon Aircraft Company (Raytheon). The administrative law judge (ALJ) denied Base's claim for payment of medical expenses he incurred for surgical treatment, finding that he failed to prove that he suffered personal injury in a series of accidents or that his back surgery was causally related to his work duties. Upon review, the Workers Compensation Board (Board) affirmed the ALJ's denial, finding that Base failed to prove that his initial injury arose out of and in the course of his employment or that the aggravation, acceleration, or intensification of his condition stemmed from his job. Base raises two arguments on appeal: (1) the Board erred in excluding Dr. Paul Stein's medical testimony and report in violation of K.S.A. 2013 Supp. 77-621(c)(5); and (2) the Board erred in excluding Dr. John Estivo's medical testimony in violation of K.S.A. 2013 Supp. 77-621(c)(5). For the reasons set forth herein, we affirm the Board's decision.

Factual and Procedural Background

Base's workers compensation claim

Base began working in Raytheon's maintenance department in 1974 at the age of 18. His job duties required him to perform many physical tasks, including moving office furniture, painting, ladder work, and removing 55-gallon drums of scrap material. After 37 years of employment, Base was laid off in

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March 2012 when Raytheon closed its plant in Salina, Kansas.

In 2004, Base developed low back pain and bilateral leg pain, which was worse on the right side. He rated the pain at 5 or 6 on a scale of 1 to 10. Base sought treatment for his symptoms from his family physician, Dr. Mark Krehbiel, in October 2004. Dr. Krehbiel referred Base to Dr. William D. Kossow. Dr. Kossow ordered an EMG conduction study of Base's lumbar spine, which was performed in October 2004, and an MRI study of Base's lumbar spine, which was performed in November 2004. The latter test revealed a herniated and bulging disc with an annular tear in Base's lower back. Base underwent physical therapy for his back and received chiropractic treatment intermittently beginning in 2004.

In January 2005, Base had a surgical consultation with Dr. Ali Manguoglu. He complained of low back pain radiating down both legs, worse on the right side. Base began receiving periodic epidural steroid injections to treat his back pain; he had five or six injections throughout 2005. Base had a second surgical consultation in late January 2005, this time with Dr. Theo Mellion. Dr. Mellion recommended a posterior interbody fusion and stabilization surgery to treat Base's low back problems. However, Base declined surgery, opting to continue receiving epidural steroid injections and taking pain medication prescribed by Dr. Krehbiel.

Base visited Dr. Krehbiel in August 2005, complaining of low back pain radiating down to his right buttock and right leg. He returned to Dr. Krehbiel in April 2006, this time reporting low back pain that radiated down both legs. Base said he was hardly able to get around or work and described himself as being miserable with pain. He said that he could not sleep, sit, or stand. He walked bent over and with a limp because of the pain present in his low back and bilateral lower extremities. Dr. Krehbiel ordered a second MRI study of Base's lumbar spine. He also recommended that Base seek a second opinion regarding treatment options, but he did not seek a second opinion. Base was back again in May 2006, reporting to Dr. Krehbiel that he had constant charley horse cramps in his buttocks and both legs. After receiving treatment from Dr. Manguoglu and Dr. Krehbiel, Base testified that his back improved in 2006. Throughout this entire period, Base continued working full-time at Raytheon without restrictions.

On January 11, 2007, Base was moving a filing cabinet onto a dolly as part of his maintenance duties when he felt something in his back " snap." He reported the incident to his employer, and an internal medical report was prepared. Following the January 2007 incident, Base testified that his low back symptoms and his pain level increased significantly. Raytheon sent Base to Dr. Pat Do for examination and treatment recommendations. On March 30, 2007, Base met with Dr. Do, complaining of low back pain and bilateral lower extremity pain. Base told Dr. Do about the January 2007 incident with the filing cabinet and his history of low back and bilateral radicular pain dating back to 2004. Base said that his current pain was similar to what he had previously experienced. After conducting a physical examination and a review of Base's medical records, Dr. Do could not identify any change in the physical or anatomical structures of Base's body as a direct result of the January 2007 incident. He diagnosed Base with low back pain and bilateral lower extremity radicular pain, right greater than left. Dr. Do concluded that Base " had just a temporary aggravation of a pre-existing condition." Base continued to take pain medication and sought the same treatment from Dr. Krehbiel he had been receiving prior to January 2007.

Base filed a series of applications for hearing with the Division of Workers Compensation, alleging an injury to his back and " all other portions of the body affected" as a result of repetitive bending, twisting, and lifting during the performance of his job duties. In his initial application of July 20, 2007, Base alleged an accident date on or about January 11, 2007. On July 27, 2007, he amended the accident date to a series through January 17, 2007.

At the February 12, 2008, preliminary hearing, Base requested medical treatment for his lower back as recommended by Dr. Michael H. Munhall. Raytheon acknowledged

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the singular January 11, 2007, incident involving the filing cabinet, but it denied a series through January 17, 2007. Base testified about his prior history of back pain but said that his condition " got better" during 2006. But he said that after the January 2007 incident, his back pain worsened. Base acknowledged that the treatment he was seeking was the same treatment he had been receiving prior to the January 2007 incident. The ALJ entered an order appointing Dr. Paul Stein as a neutral physician to perform an independent medical examination (IME) of Base. The ALJ asked Dr. Stein to make a diagnosis and recommendations for treatment and address the issues of Base's ability to work, temporary work restrictions, and medical causation--specifically, whether Base's current complaints were causally related to the January 2007 incident or performance of his work duties. The ALJ took Base's request for medical treatment under advisement pending receipt of the IME report from Dr. Stein.

Dr. Stein examined Base on March 12, 2008. Base complained of pain in his lower back around the beltline and below, which radiated predominately into the right lower extremity. Dr. Stein was of the opinion that Base " appear[ed] to have sustained an aggravation of preexisting lumbar degenerative disk [ sic ] disease which has been symptomatic at least as recently as May of 2006 and possibly thereafter." Dr. Stein added that it was difficult to know to what extent Base's January 2007 incident at work represented a true aggravation or acceleration of the underlying pathology. " Assuming the accuracy of Mr. Base's report of the work incident, it would represent at least a temporary aggravation but I do not know if any truly structural change has occurred." Dr. Stein recommended x-rays of Base's lumbar spine and advised that comparison of these new images with Base's prior MRI images from April 2006 would be helpful.

On April 24, 2008, the ALJ authorized Dr. Stein to refer Base for the recommended MRI scan and requested that Dr. Stein thereafter supplement his recommendations for treatment. New MRI and x-ray studies of Base's lumbar spine were performed on May 14, 2008. Dr. Stein compared them with Base's MRI scans from November 15, 2004, and April 18, 2006. He issued a follow-up report, concluding: " I do not see progression of the disk [ sic ] protrusion at L4-L5 or progression of slippage at L5-S1 such as to document a significant recent aggravation of the preexisting pathology. Any recent aggravation should be considered temporary without definitive structural change." Dr. Stein's treatment recommendations included epidural steroid injections and physical therapy with intermittent lumbar traction. On July 1, 2008, the ALJ entered an order finding that Base was entitled to conservative medical care.

On November 25, 2008, Base filed another application for preliminary hearing, again in regard to the series of accidents through January 17, 2007. Attached to the application was a November 24, 2008, letter written by Dr. Kossow. Dr. Kossow wrote that Base had completed a physical therapy program and had two lumbar epidural steroid injections. Dr. Kossow stated that Base had complied with the treatment suggested by the IME physician, but his symptoms had not improved. " His back pain is worse than it was 2 months ago. He continues to have radicular pain into both legs, right worse than left, and the right leg continues to have numbness and tingling." Base's physical examination was unchanged from his previous exams. Dr. Kossow recommended that Base consider surgical intervention and consult a neurosurgeon.

On December 14, 2010, the ALJ filed an order again appointing Dr. Stein to perform an IME of Base. Dr. Stein reexamined Base on January 31, 2011, and prepared a report dated February 11, 2011. He noted that Base complained of greater pain than he had during his prior examination, which he attributed to heavy work activity. Dr. Stein stated that Base's report was " understandable as any individual with a bad back would likely have more pain with heavy activity." However, Dr. Stein noted that multiple MRI scans had not shown evidence of a significant alteration in pathology. " Therefore, there is no evidence of a structural injury to lower back from activity on or after 1/17/07 as

Page 544

compared to before." Dr. Stein recommended conservative management and possible surgical intervention, which were no different than the treatment recommendations prior to January 2007.

Following MRI and x-ray scans of Base's lumbar spine performed in February 2011, Dr. Stein issued another IME report dated March 10, 2011. Dr. Stein stated that the latest diagnostic tests showed certain abnormalities. He concluded:

" This pathology is of longstanding [ sic ]. There is no evidence of structural alteration from work activity. With this type of pathology, especially being symptomatic previously, it is not uncommon that physical activity would increase the pain. This increase in the level of discomfort is not, however, a structural injury or an acceleration of the pathological process. The studies reviewed today do not alter the opinions noted in my report of 1/31/11. . . . [T]he need for surgery subsequent to January of 2007 is no different than it would have been prior to that time."

Based on Dr. Stein's 2011 IME reports, the ALJ entered a March 23, 2011, order denying Base's preliminary hearing request for additional treatment. The ALJ found: " Claimant's current conditions and need for surgery are the products of the natural progression of pre-existing degenerative disc disease, and are not attributable to the lifting ...

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