Bustamante v. National Beef Packing Co.

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NOT DESIGNATED FOR PUBLICATION

No. 114,361

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

VICTORINA BUSTAMANTE,
Appellant,

v.


NATIONAL BEEF PACKING CO., and
AMERICAN ZURICH INS. CO.,
Appellees.

MEMORANDUM OPINION

Appeal from Workers Compensation Board. Opinion filed April 8, 2016. Affirmed.

Conn Felix Sanchez, of Kansas City, for appellant.

D. Shane Bangerter and Aaron Kite, of Rebein Bangerter PA, of Dodge City, for appellees.

Before MALONE, C.J., MCANANY and POWELL, JJ.

Per Curiam: Victorina Bustamante appeals from the Workers Compensation
Appeals Board's (Board) decision in which the Board denied her claim for benefits
because she failed to establish her low back condition arose out of and in the course of
her employment. On appeal, Bustamante contends the Board improperly considered
certain medical opinion evidence. Without such evidence, Bustamante asserts the Board's
factual finding that her low back condition did not arise out of and in the course of her
employment was not supported by substantial evidence when viewed in light of the
record as a whole.


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Bustamante was born in Mexico. She came to the United States in 2002. She
cannot read, write, or speak English. An interpreter translated for her at the hearings, at
her deposition, at her various medical examinations, and at her vocational evaluation.

In December 2008, Bustamante began working for National Beef Packing Co.
(National Beef) at their packing plant in Dodge City. Her position as a bagger required
that she continuously pack bags with 8 to 10 pounds of fajita meat and throw the bags
onto a conveyor belt.

The Accident

The record contains conflicting evidence concerning the date of Bustamante's
alleged injury. At the preliminary hearing on December 11, 2013, Bustamante testified
the accident occurred on August 26, 2010. At her deposition on February 12, 2013,
Bustamante testified the accident occurred in December 2010. She also testified that a
second accident occurred in August 2011, where a coworker dropped a box of bags that
hit her right hip and low back. At the regular hearing on November 5, 2014, Bustamante
confirmed that the first accident occurred on August 26, 2010.

In any event, the circumstances of the Bustamante's accident are not disputed.
Bustamante and a coworker were pushing gondola carts filled with beef products when
one of the carts struck Bustamante in the low back. According to Bustamante, she had
never experienced any back problems before this accident. The company nurse treated
her with ice, Biofreeze, and I-Prin. She had no further immediate treatment. Bustamante
continued to work full time after the accident and did not have any immediate work
restrictions arising from this accident.

In September 2011, Bustamante sought the treatment of her personal physician,
Dr. Aurora Arribas. Bustamante later testified that Dr. Arribas told her that her low back
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pain was likely from arthritis. She said she began taking calcium and vitamin D
supplements recommended by Dr. Arribas.

At the order of Dr. Arribas, Bustamante went on leave from National Beef on
November 14, 2011. She continued taking the vitamin and mineral supplements, and Dr.
Arribas eventually released her to full-time duty in September 2012. But Bustamante
could not pass National Beef's hiring requirements and she was fired on October 11,
2012. She has remained unemployed since her termination.

Dr. Murati

At the request of Bustamante's attorney, Dr. Pedro Murati evaluated Bustamante
on December 10, 2012, and again on March 19, 2014. On both dates, Bustamante
complained of occasional numbness and tingling in her right foot, occasional sharp pain
in her low back, and pain in her right leg originating in her low back. She said she could
not sit, stand, lie down, or lift heavy items without increased low back pain.

Bustamante told Dr. Murati that she suffered two low back injuries before the
current accident. She said she was treated by National Beef's nurse for both injuries, and
the injuries resolved without further treatment. Dr. Murati found tenderness in her low
back, especially on the right side. He also found three physical markers of radiculopathy.

Dr. Murati diagnosed Bustamante as having low back pain with signs of
radiculopathy and right sacroiliac joint dysfunction. He concluded these conditions were
more probably than not caused by the gondola cart accident.

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Dr. Hufford

At the request of the administrative law judge (ALJ), on June 18, 2013, Dr. David
Hufford reviewed Bustamante's medical records and conducted an independent medical
examination of her. Bustamante complained to Dr. Hufford of low back pain radiating
down her right leg to her ankle and the dorsum of her foot. She also complained of right
knee pain, which was unrelated to the accident and for which she had seen Dr. Guerillmo
Garcia.

Bustamante told Dr. Hufford the gondola cart accident occurred in January 2010.
He did not recall her telling him about an accident on August 26, 2010. He described
Bustamante as "a less than reliable historian."

Dr. Hufford opined that Bustamante's low back pain was caused by chronic
degenerative lumbar spine disease and possibly osteopenia/osteoporosis. He concluded
that Bustamante suffered a back contusion in the gondola cart accident, which resolved
and was now asymptomatic. Further, the gondola cart accident did not accelerate any
preexisting medical condition and any repetitive activities involved in Bustamante's work
and did not aggravate her degenerative disc disease and facet arthropathy in the lumbar
spine. He did not set any firm work restrictions based on the injury.

Vocational Consultant

Paul Hardin, a vocational consultant, interviewed Bustamante at the request of her
attorney and completed a task performance capacity assessment based on the interview
and a review of Dr. Murati's medical evaluation. Hardin concluded Bustamante suffered a
100% loss, rendering her "unable to obtain or perform substantial, gainful employment."

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ALJ's Decision

On January 26, 2015, the ALJ found that Bustamante failed to prove by a
preponderance of credible evidence that her low back condition resulted from her work-
related accident and, therefore, denied her requested award of compensation. The ALJ
concluded: "[Bustamante] did sustain a work injury of a back contusion which resolved.
Her residual and continuing symptoms are of a personal nature."

Board's Decision

Bustamante sought review by the Board. She relied on Dr. Murati's conclusion that
she had ongoing problems caused by the gondola cart accident. She claimed that Dr.
Murati's findings were uncontroverted and should not have been disregarded absent a
showing that they were improbable or untrustworthy. Bustamante argued that there was
no evidence that her injury was a personal condition, as there was no evidence of any
intervening accident or other possible source of her complaints. Finally, she contended
the Board should not rely on Dr. Arribas' findings because Dr. Arribas did not testify.

The Board affirmed the ALJ's decision, finding that Bustamante suffered a work-
related back contusion which resolved over time and any residual and continuing
symptoms were of a personal nature. The Board gave more weight to the opinions of Dr.
Hufford than to those of Dr. Murati because "Dr. Hufford's opinions [were] consistent
with both [Bustamante]'s testimony that it was her understanding Dr. Arribas thought her
low back problems were due to arthritis and Dr. Murati's acknowledgement of
[Bustamante]'s history of prior low back injuries and documentation of degenerative
lumber spine disease."

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Analysis

Bustamante appealed to us. She makes two arguments: (1) the Board erred in
relying on the medical reports of Drs. Hufford and Murati and the findings of Dr.
Arribas; and (2) there was insufficient evidence to support the Board's decision.

In accordance with K.S.A. 2015 Supp. 44-556(a) we review the Board's decision
under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601, et seq. See Herrera-
Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 361-62, 212 P.3d 239
(2009). Bustamante had the burden of proving to the Board her right to compensation.
See Messner v. Continental Plastic Containers, 48 Kan. App. 2d 731, 751, 298 P.3d 371,
rev. denied 297 Kan. 1246 (2013). On appeal, the party claiming error has the burden to
show error. K.S.A. 2015 Supp. 77-621(a)(1).

The only contested issue before us is whether Bustamante's low back condition
arose out of her employment. This is a fact issue. See K.S.A. 2015 Supp. 77-621(c)(7);
Sumner v. Meier's Ready Mix, Inc., 282 Kan. 283, 293, 144 P.3d 668 (2006). In resolving
this issue, we examine the Board's factual findings in light of the record as a whole to
determine whether those findings are supported by substantial evidence. See K.S.A. 2015
Supp. 77-621(c)(7). Substantial evidence is "evidence possessing something of substance
and relevant consequence to induce the conclusion that the award was proper, furnishing
a basis of fact from which the issue raised could be easily resolved." Redd v. Kansas
Truck Center, 291 Kan. 176, 183-84, 239 P.3d 66 (2010). In considering the record as a
whole, we (1) review the evidence both supporting and contradicting the Board's
findings, (2) examine any credibility determinations, and (3) review the Board's
explanation as to why the evidence supports its findings. See K.S.A. 2015 Supp. 77-
621(d); Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014). We do
not reweigh the evidence or engage in de novo review, except to "determine whether the
evidence supporting the [Board]'s decision has been so undermined by cross-examination
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or other evidence that it is insufficient to support the [Board]'s conclusion." Herrera-
Gallegos, 42 Kan. App. 2d at 363.

 Dr. Hufford's Medical Opinion

Bustamante claims Dr. Hufford's findings were based on the wrong legal standard
and contradicted by his deposition testimony. She also claims the credibility of Dr.
Hufford's opinion was undermined because he "guessed" the date of her injury.

On June 18, 2013, following the independent medical evaluation, Dr. Hufford
submitted a report of his findings to the ALJ. The parties jointly requested that Dr.
Hufford clarify his findings, asking Dr. Hufford to explain whether the gondola cart
accident was a prevailing factor causing Bustamante's low back condition. The letter did
not identify a date of accident.

At his deposition, Dr. Hufford clarified and explained his findings. The date of
May 15, 2011, referred to in the questioning, is significant because that was when H.B.
2134, which referred to causation in a workers compensation case in terms of the
"prevailing factor" causing an injury, became law. K.S.A. 2015 Supp. 44-508(f)(2)(B)(ii).
Before that, the test was whether it was more probable than not that the accident caused
the claimant's injury. K.S.A. 2010 Supp. 44-508(g). Dr. Hufford testified:

"Q. Now, apart from the prevailing factor would you believe it is more probable than
not that her current back complaints are related to a work-related accident prior
to May 15, 2011?
"A. No, I did not believe it was clear to me that her ongoing low back pain was
exclusively and solely due to that one single work injury that was incurred. There
were notations of her having back pain associated with urinary tract infection in
the summer of 2010. . . . And it was not clear to me in the conduct of this
examination that her back pain was because of a single work accident nor that I
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believed that that work accident aggravated or accelerated any condition in her
lumbar spine. I could not draw a linear—
"Q. From the joint letter which is Deposition Exhibit 4, does that provide you any
guidance as to when the date of accident is?
"A. No, it doesn't indicate that that was that specific date. I am again referring to the
fact that when I began the examination I believe I asked her what the injury was
and that was what initiated my conversation and my analysis. But I don't think
whether or not a date of accident named in there changes the overall nature and
character of what my opinion is.
"Q. . . .[P]rior to May 15, 2011 if you had an accident and you aggravate your back, it
is a compensable claim. Now, going to this case, you don't have or you just
choose a date of accident; is that correct?
"A. No, I don't mean to imply that I am basing everything about my opinion solely
and exclusively on one specific date of accident. . . . First of all, the joint letter
talks about both her low back and her right knee. It does not give a date of
accident for either condition. Her right knee complaints, although there is in the
record notation of prior right knee pain, seemed to have been reported after May
15, 2011 which obviously is a critical date for the prevailing factor law.
"So as I tried to do my analysis, my recollection of doing this was that
we were really dealing with two separate and possibly parallel situations.
Number one, her low back which preceded May 15, 2011 and a right knee which
came after May 15, 2011. So to me there were two separate and distinct parts to
this question and I tried to keep those somewhat separate in my way of thinking
in my analysis. The bottom line is that, yes, she did have an injury to her low
back that did occur in one specific acute tissue trauma. There is evidence that she
has degenerative disc disease in her lumbar spine as noted in several places in the
notes. It is true that we talk[ed] about aggravation of a degenerative condition
and rendering it symptomatic in the fashion that was in place before May 15,
2011.
"If you are going to ask me whether or not her injury of December 29,
2009 contributed one iota to her back pain, my answer is, yes, it may possibly
have. But I do not think that that is necessarily the primary factory as
distinguished from the prevailing factor for her complaints of low back pain
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which also have other potential causes including osteopenia of the lumber spine
which is documented on scanning for osteoporosis." (Emphasis added.)

Bustamante contends that because of the statements in the last paragraph quoted
above, Dr. Hufford's findings with regard to her low back condition were not supported
by substantial evidence. She contends that Dr. Hufford incorrectly applied the prevailing
factor test even though the gondola cart accident allegedly occurred before May 15, 2011.

But Bustamante's contention is not supported by a reasonable interpretation of Dr.
Hufford's deposition testimony as set forth above. It is clear that Dr. Hufford was aware
of the May 15, 2011, watershed in terms of determining causation. He understood that
Bustamante's low back injury was before May 15, 2011, and he evaluated her case
accordingly. Moreover, Dr. Hufford explained that he compensated for any lack of clarity
about Bustamante's date of injury, stating he "tried to cover all of those contingencies in
my report and analysis." At one point Dr. Hufford stated, "I do not think [the gondola cart
accident was] necessarily the primary factory as distinguished from the prevailing factor
for her complaints of low back pain." But this confusion of terms does not undermine the
substance of his testimony when viewed as a whole that in evaluating Bustamante's case,
he did so with the understanding her accident occurred before the new law became
effective.

Bustamante also claims Dr. Hufford's findings are not supported by substantial
evidence because he testified it was possible Bustamante's low back condition was a
result of a work-related accident occurring on August 26, 2010. But this argument is
unpersuasive given the circumstances. Bustamante told Dr. Hufford the gondola cart
accident occurred in January 2010. She explained to him the accident and the manner of
her injury. Dr. Hufford also noted the medical records provided to him indicated the
gondola cart accident occurred on December 29, 2009. When Bustamante's counsel asked
Dr. Hufford whether Bustamante's injury could have been a result of an accident
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occurring on August 26, 2010, Dr. Hufford was under the impression the gondola cart
accident did not occur on that date. The veracity of Dr. Hufford's opinion was not
undermined by this response. Besides, both dates are before the statutory change on May
15, 2011.

Bustamante also claims Dr. Hufford's findings were undermined by him guessing
the date of Bustamante's injury. This argument is not supported by the record. Dr.
Hufford determined Bustamante's injury date was December 29, 2009, based on the
records provided to him before Bustamante's independent medical evaluation.

 Evidentiary Error

Bustamante claims the Board erred in relying on the medical findings of Dr.
Arribas. She argues that any evidence of Dr. Arribas' findings should not have been
considered by the Board because Dr. Arribas did not testify and his medical records were
not admitted into evidence.

K.S.A. 44-519 provides in relevant part:

"[N]o report of any examination of any employee by a health care provider, as provided
for in the workers compensation act . . . shall be competent evidence in any proceeding
for the determining or collection of compensation unless supported by the testimony of
such health care provider, if this testimony is admissible, and shall not be competent
evidence in any case where testimony of such health care provider is not admissible."

In Boeing Military Airplane Co. v. Enloe, 13 Kan. App. 2d 128, 130, 764 P.2d 462
(1988), rev. denied 244 Kan. 736 (1989), this court discussed whether a doctor may
consult an absent, nontestifying doctor's medical records in rendering an opinion. The
court held that the testifying doctor could refer to the medical records of a nontestifying
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doctor for the purpose of forming the testifying doctor's medical opinion, and the
testifying doctor's opinions so formed were competent evidence under K.S.A. 44-519.

The court explained: "K.S.A. 44-519 does not limit the information a testifying
physician or surgeon may consider in rendering his or her opinion as to the condition of
an injured employee." 13 Kan. App. 2d at 130. The statute "does not prevent a testifying
physician from considering medical evidence generated by other absent physicians as
long as the testifying physician is expressing his or her own opinion rather than the
opinion of the absent physician." 13 Kan. App. 2d 128, Syl. ¶ 3.

In contrast, Roberts v. J.C. Penney Co., 263 Kan. 270, 272, 949 P.2d 613 (1997),
distinguishes a vocational expert who is not permitted to testify about opinions based, in
part, on the medical records of a physician who did not testify and whose records were
not introduced into evidence, from the circumstances in Boeing in which a testifying
doctor was entitled to rely on the medical records of a nontestifying doctor in forming
medical opinions.

Here, Dr. Hufford's medical opinions and recommendations were based on his
physical examination of Bustamante, her medical history, and several medical reports of
her treating physicians. Although his opinion relied, in part, on medical reports of Dr.
Arribas, who did not testify and whose records were not admitted into evidence, Dr.
Hufford's testimony expressed his own opinion and not that of Dr. Arribas. Dr. Hufford's
medical opinion was competent evidence.

Besides, K.S.A. 44-519 does not prohibit the Board from considering
Bustamante's own testimony concerning Dr. Arribas' treatment. At the regular hearing,
Bustamante testified that she sought treatment from Dr. Arribas after the gondola cart
accident. She recalled Dr. Arribas saying that her low back pain was likely due to
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arthritis. She also testified she began taking calcium and vitamin D supplements at Dr.
Arribas' direction.

In any event, it does not appear the Board relied on Dr. Arribas' medical reports in
rendering its decision. The Board's decision was based on Dr. Hufford's opinion that
Bustamante's low back pain was the result of chronic and degenerative lumbar spine
disease and possibly osteopenia/osteoporosis. While the Board noted that Bustamante
sought treatment from Dr. Arribas, it did not rely on evidence expressed in Dr. Arribas'
medical reports in reaching its decision. Instead, the Board found Dr. Hufford's opinion
more credible than that of Dr. Murati.

We are not persuaded by Bustamante's claims of evidentiary errors by the Board.

Substantial Evidence

Bustamante contends she met her burden of proving, by a preponderance of
credible evidence, that she suffered a work-related injury that resulted in permanent
impairment. As previously discussed, the pre-May 15, 2011, statutory scheme applied to
Bustamante's injury. See Bryant v. Midwest Staff Solution, Inc., 292 Kan. 585, 588-89,
257 P.3d 255 (2011).

National Beef concedes the gondola cart accident occurred in the course of her
employment. The only remaining issue is whether Bustamante's low back condition arose
out of her employment. "'An 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.'" Rinke v. Bank of America, 282 Kan. 746, 752, 148 P.3d 553 (2006).

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With respect to Bustamante's pre-May 15, 2011, back injury, it "is compensable if
it only aggravates or accelerates an existing disease or intensifies the condition." Bryant,
292 Kan. at 589; see K.S.A. 2010 Supp. 44-501(c) ("The employee shall not be entitled
to recover for the aggravation of a preexisting condition, except to the extent that the
work-related injury causes increased disability."). "[T]he test is not whether the job-
related activity or injury caused the condition but whether the job-related activity or
injury aggravated or accelerated the condition." Hanson v. Logan U.S.D. 326, 28 Kan.
App. 2d 92, 95, 11 P.3d 1184 (2000), rev. denied 270 Kan. 898 (2001).

First, Bustamante contends her low back condition was a direct result of the
gondola cart accident. But the record contains credible testimony that Bustamante's low
back condition was the result of chronic degenerative lumbar spine disease and possibly
osteopenia/osteoporosis. Dr. Hufford opined that Bustamante suffered a low back
contusion in the accident, which resolved and became asymptomatic after treatment. Dr.
Hufford's opinion was supported, in part, by findings of Dr. Murati, who acknowledged
that Bustamante's MRI showed degenerative lumbar spine disease. Furthermore,
Bustamante continued to work at full capacity after the accident. Her first complaint of
low back pain did not occur until 1 year after the alleged August 26, 2011, accident,
which indicates the low back condition was likely caused by something other than the
gondola cart accident.

Second, Bustamante claims the gondola cart accident aggravated a preexisting low
back condition. Dr. Hufford specifically found the gondola cart accident did not
aggravate Bustamante's low back condition. The Board found Dr. Hufford's testimony
more persuasive than the contrary opinion of Dr. Murati. We do not reassess the
credibility of the conflicting opinions expressed by Drs. Hufford and Murati. That was a
matter for the Board.

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Third, Bustamante claims her job duties of bending, twisting, and repetitive
throwing of 8 to 10 pound bags of meat aggravated her preexisting low back condition.
Dr. Murati discussed whether the gondola cart accident aggravated Bustamante's low
back condition. But Dr. Hufford specifically found Bustamante did not aggravate a
preexisting low back condition through a repetitive activity connected with her
employment. The credibility of the competing doctors on this issue was a matter for the
Board to resolve, not us.

The Board found that Bustamante failed to prove a causal connection between her
low back condition and the gondola cart accident. Substantial evidence exists in the
record, when viewed in light of the record as a whole, to support the Board's finding.

Affirmed.