Cramer v. Presbyterian Manors

1

NOT DESIGNATED FOR PUBLICATION

No. 119,581

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MARY PHILLENE CRAMER,
Appellant,

v.

PRESBYTERIAN MANORS and SENTRY CASUALTY CO.,
Appellees.


MEMORANDUM OPINION

Appeal from Workers Compensation Board. Opinion filed September 20, 2019. Affirmed.

Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for appellant.

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

Before LEBEN, P.J., BUSER and STANDRIDGE, JJ.

BUSER, J.: Mary Phillene Cramer appeals the Kansas Workers Compensation
Appeals Board's (Board) order awarding her permanent partial disability benefits for a
7.5% functional impairment and denying her claim for work disability benefits. Cramer
contends the Board made two errors. First, she claims the Board erred by denying her
compensation for the aggravation of her degenerative disc disease caused by a work
accident. Second, Cramer asserts the Board erred when it found that her percentages of
functional impairment and wage loss were below the threshold levels required in order to
receive work disability benefits.

2

Upon our review we find no reversible error and, therefore, we affirm the Board's
rulings.

FACTUAL AND PROCEDURAL BACKGROUND

Cramer, who was born in 1954, began working for Presbyterian Manors in August
2014 as a laundry service assistant. Her employment required loading 50-pound or 30-
pound capacity washers. She worked about 33 hours per week earning an average weekly
wage of $382.37.

On December 2, 2015, while performing her job duties, Cramer experienced a
sudden and excruciating pain in her back. The pain started on the left side of her back and
went down her left leg to her ankle. Cramer reported the injury to Presbyterian Manors.
Six days later, she sought treatment with her family physician, Dr. Timothy Penner. She
also was treated by Dr. John H. Gilbert, an orthopedist. Dr. Gilbert administered three
epidural steroid injections which did not relieve Cramer's back pain.

Dr. Douglas Burton, an orthopedic spine surgeon at the University of Kansas
Hospital, also evaluated Cramer and became her treating physician. Dr. Burton diagnosed
Cramer with a back strain and referred left leg pain, but he did not believe that surgery
was appropriate. Instead, Dr. Burton recommended physical therapy. After Dr. Burton
concluded that Cramer had reached maximum medical improvement, he referred her for a
functional capacity assessment (FCA).

The FCA report determined that Cramer met the material handling demands for a
"[l]ight demand vocation." The report stated that Cramer could safely lift 14.34 pounds
occasionally and carry up to 12.5 pounds occasionally. Cramer was unable to tolerate
sustained standing, walking, kneeling, or full squatting.

3

Dr. Burton released Cramer from his care in October 2016. At that time, he did not
believe that her left leg pain was due to a herniated disc that would cause radiculopathy.
Moreover, on M.R.I. Dr. Burton did not observe substantial narrowing around the nerve
that would cause radiculopathy. Dr. Burton confirmed that Cramer had degenerative discs
in her spine.

Based on the Sixth Edition of the American Medical Association (AMA) Guides
to the Evaluation of Permanent Impairment, Dr. Burton opined that Cramer had sustained
a 2% whole person impairment from her work injury. Dr. Burton also concluded that, if
he were to use the Fourth Edition of the AMA Guides, Cramer's condition would qualify
for a 5% impairment rating. Dr. Burton clarified that the 2% impairment rating was based
on diagnosing Cramer's injury as a "soft tissue injury"—a category that includes strains.
The soft tissue injury was superimposed on Cramer's degenerative conditions aggravated
by the work injury. But Dr. Burton agreed that degenerative disc disease is not ratable
under the Sixth Edition of the AMA Guides.

Dr. Burton recommended work restrictions of a 15 pound limit for occasional
lifting and 10 pound limit for frequent lifting. No other work restrictions were
recommended. Dr. Burton opined that Cramer was capable of obtaining substantial
employment within the work restrictions he imposed.

Cramer provided Presbyterian Manors with Dr. Burton's work restrictions.
However, Presbyterian Manors could not provide Cramer with any work that
accommodated the restrictions. As a result, Cramer applied for and received Social
Security Disability benefits.

Dr. Anne Rosenthal, an orthopedic surgeon, examined Cramer in December 2016
to evaluate her back pain. Dr. Rosenthal specialized in treating hands and upper
extremities, but she had diagnosed back injuries. Dr. Rosenthal diagnosed Cramer with
4

an L4-L5 herniated disc and left L5 radiculopathy as a result of her work injury. Dr.
Rosenthal also confirmed that Cramer had preexisting multi-level degenerative disc
disease affecting other areas of her back. Dr. Rosenthal referred Cramer to Dr. Florin
Nicolae, a pain management physician for treatment which ultimately alleviated Cramer's
leg pain.

Dr. Rosenthal obtained Cramer's pain management records from Dr. Nicolae.
These records showed that Dr. Nicolae treated multiple discs in Cramer's back.
Specifically, Cramer received injections at discs located at L1-L2, L3-L4, L4-L5, and L5-
S1. Although Dr. Rosenthal opined that the work injury only caused the L4-L5 herniated
disc, she explained that Dr. Nicolae provided the other injections to "cure or relieve the
effects of the injury." Based on Dr. Nicolae's treatment records, Dr. Rosenthal concluded
that Cramer had multiple level radiculopathy. As a result, Dr. Rosenthal rated Cramer at a
25% whole person impairment under the Sixth Edition of the AMA Guides.

Dr. Rosenthal conceded that the work injury was only a prevailing factor in
causing the L4-L5 herniated disc. She did not believe the work injury caused permanent
damage to other areas of Cramer's spine. In recalculating Cramer's whole person
impairment resulting from only the L4-L5 herniated disc injury sustained at work, Dr.
Rosenthal opined that Cramer had sustained a 13% whole person impairment.

Dr. Rosenthal found that Dr. Burton's lifting restrictions were appropriate. She
also suggested restrictions of occasional walking, standing, bending, kneeling, and
squatting. Despite the back injury, Dr. Rosenthal believed that Cramer was capable of
working 40 hours per week if an employer accommodated her work restrictions.

Karen Terrill, a vocational rehabilitation consultant retained by Cramer, opined on
Cramer's ability to obtain substantial and gainful employment. According to Terrill,
Cramer had a high school education. Prior to her employment with Presbyterian Manors,
5

Cramer performed housekeeping duties at a medical center, worked as an advertising
assistant, and for 11 years was program director and a classroom teacher for a Head Start
program.

Based on Cramer's work history and Dr. Burton's restrictions, Terrill determined
that Cramer had lost the ability to perform 12 of 33 work tasks she had performed
previously. This resulted in a task loss of 37%.

After reviewing Dr. Burton's work restrictions and the FCA report, Terrill
considered Cramer's wage loss. Terrill first noted that "Cramer was not working at the
time of the interview; she currently has a 100% loss of wages." As a result, she concluded
that no presumption arose that Cramer was capable of earning her actual average post-
injury weekly wage. Terrill determined that Cramer was now only able to perform a light
level of work with no readily transferable job skills. Terrill concluded: "When
considering her age, education, geographical location, and limitations, realistically there
are no jobs available to her. She would have no earning capability."

Steve Benjamin, a vocational rehabilitation consultant retained by Presbyterian
Manors, also evaluated Cramer's postinjury employability and loss of earnings capability.
In his evaluation, Benjamin reviewed medical reports from Dr. Burton, Dr. Nicolae, and
Dr. Rosenthal. Benjamin was not provided the FCA report. After considering Cramer's
work restrictions, education, employment history, and the labor market, Benjamin
determined that Cramer could perform substantial, gainful employment. For example,
Benjamin believed that Cramer could work as a customer service representative, a hotel
clerk, a general office clerk, or a sales clerk.

Benjamin opined that Cramer could reenter the labor market and earn about
$356.30 per week. Comparing this figure to Cramer's preinjury wage, Benjamin found
6

that Cramer sustained a weekly wage loss of 8.3% after her work injury. Benjamin based
his opinion, in part, on Cramer's weight restrictions.

After reviewing the evidence presented during the workers compensation
proceedings, the administrative law judge (ALJ) first considered the nature and extent of
Cramer's work injury. In particular, the ALJ reviewed the opinions of Cramer's functional
impairment made by Dr. Rosenthal and Dr. Burton. In evaluating Dr. Rosenthal's
opinion, the ALJ noted that she rated Cramer at a 13% impairment attributable to the
work injury. The ALJ explained that Dr. Rosenthal "attempted to rate other levels of the
spine, based on Dr. Nicolae's treatment records, but acknowledged those other levels
were degenerative in nature and not caused by the work injury." As a result, the ALJ
adopted Dr. Burton's opinion and found that Cramer suffered a 2% whole body
impairment from the work injury.

The ALJ next determined that Cramer was ineligible for permanent partial general
disability compensation beyond her functional impairment because her 2% whole body
impairment rating was statutorily insufficient to qualify. Relying on Benjamin's
conclusions, the ALJ also found that Cramer did not sustain a wage loss of at least 10%
to qualify for permanent partial disability compensation. Ultimately, the ALJ awarded
$12,196.89 for Cramer's 2% whole body impairment rating.

Cramer appealed the ALJ's decision to the Board. First, Cramer asserted the Board
should consider Dr. Rosenthal's opinion that Cramer sustained a 25% whole body
impairment. According to Cramer: "The rating of 25% is correct in that it considers not
only the herniated disc at L4-5—where the prevailing factor is the work accident—but
also other levels of the lumbar spine which were aggravated by the work accident."
Second, Cramer argued the Board should not rely on Benjamin's opinion because he only
considered Dr. Burton's weight restrictions and no other limitations identified in the FCA
report.
7

Upon its review, the Board modified the ALJ's ruling, increasing Cramer's whole
person functional impairment award to 7.5%, but it otherwise affirmed the ALJ's rulings.
When considering Cramer's functional impairment rating, the Board examined both Dr.
Burton's and Dr. Rosenthal's expert opinions. The Board found neither opinion overly
persuasive. As a result, the Board averaged both opinions and found that Cramer suffered
a 7.5% whole body impairment.

Because the Board determined that Cramer suffered a 7.5% impairment rating, it
concluded that she was limited to her functional impairment and did not qualify for work
disability benefits. The Board concluded: "Even if the Board were to assess a higher
functional impairment, claimant would not qualify for a work disability as Mr. Benjamin
found claimant had the ability to earn at least 90 percent of her pre-injury average weekly
wage." The Board increased Cramer's award to $17,520.85 for her 7.5% impairment
rating.

Cramer appeals.

THE AWARD OF PERMANENT PARTIAL
DISABILITY FOR A LUMBAR STRAIN/HERNIATED DISC

Cramer first contends the Board erred as a matter of law when awarding
permanent partial disability by considering "only those component parts of an overall
injury that individually meet the prevailing factor standard of causation." Cramer argues
she "is entitled to an [a]ward based on all impairments that result—or flow—from the
accidental injury," including her aggravated degenerative disc disease which is separate
from the lumbar strain/herniated disc injury. For its part, Presbyterian Manors responds
that Cramer raises "no viable issue as to any 'prevailing factor' determination by the
Board."

8

We begin with a brief summary of our standards of review and relevant Kansas
law. Our court reviews decisions by the Board under the Kansas Judicial Review Act
(KJRA). K.S.A. 2018 Supp. 44-556(a). The standard of review varies depending on the
issue raised. See K.S.A. 2018 Supp. 77-621 (defining and limiting the scope of review of
administrative decisions under KJRA). In the proceedings below, the claimant has the
burden of proving a right to compensation under the Workers Compensation Act. Moore
v. Venture Corporation, 51 Kan. App. 2d 132, 137, 343 P.3d 114 (2015). On appeal to
our court, the party claiming error has the burden to show it. See K.S.A. 2018 Supp. 77-
621(a)(1).

When reviewing whether the Board erroneously applied the law to undisputed
facts, we exercise de novo review. Nuessen v. Sutherlands, 51 Kan. App. 2d 616, 618,
352 P.3d 587 (2015). Additionally, appellate courts exercise unlimited review of
questions involving the interpretation or construction of a statute, owing no deference to
the agency's or the Board's interpretation or construction. Fernandez v. McDonald's, 296
Kan. 472, 475, 292 P.3d 311 (2013); Le v. Armour Eckrich Meats, 52 Kan. App. 2d 189,
193, 364 P.3d 571 (2015).

The most fundamental rule of statutory construction is to give effect to the intent
of the Legislature. State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d
282 (2016). Our court first attempts to determine legislative intent by looking to the
words of the statute, giving common words their ordinary meanings. Ullery v. Othick,
304 Kan. 405, 409, 372 P.3d 1135 (2016). Our Supreme Court has instructed:

"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
add something not readily found in it." Bergstrom v. Spears Manufacturing Co., 289 Kan.
605, 607-08, 214 P.3d 676 (2009).

9

In this case, the parties agreed that Cramer sustained an injury by accident on
December 2, 2015, but they dispute the severity of that injury. Dr. Burton opined that
Cramer sustained a lumbar strain from the work accident, while Dr. Rosenthal believed
the accident caused a herniated disc at the L4-L5 level of Cramer's spine. Both Dr.
Burton and Dr. Rosenthal agreed, however, that Cramer had degenerative disc disease
which preexisted the work accident.

A brief survey of pertinent workers compensation law is in order. Under Kansas'
Workers Compensation Act (the Act), an injury is defined as "any lesion or change in the
physical structure of the body, causing damage or harm thereto." K.S.A. 2018 Supp. 44-
508(f). "An injury is not compensable solely because it aggravates, accelerates or
exacerbates a preexisting condition or renders a preexisting condition symptomatic."
K.S.A. 2018 Supp. 44-508(f)(2). But accidental injuries that result in new physical
findings, or changes in the physical structure of the body, are compensable despite the
claimant also aggravating a preexisting condition. Le, 52 Kan. App. 2d 189, Syl. ¶ 5.

An employee's injury is "compensable only if it arises out of and in the course of
employment." K.S.A. 2018 Supp. 44-508(f)(2). An injury by accident arises out of
employment only if the work accident is the "prevailing factor causing the injury,
medical condition, and resulting disability or impairment." K.S.A. 2018 Supp. 44-
508(f)(2)(B)(ii). The prevailing factor is the "primary factor, in relation to any other
factor." K.S.A. 2018 Supp. 44-508(g). Accordingly, an injury is recoverable only if the
work accident—and not the preexisting condition—is the primary factor in causing the
injury and resulting impairment. K.S.A. 2018 Supp. 44-508(d) ("The accident must be the
prevailing factor in causing the injury."); Buchanan v. JM Staffing, 52 Kan. App. 2d 943,
949, 379 P.3d 428 (2016).

Cramer had experienced brief episodes of lower back pain before the work
accident. Dr. Burton believed that as a result of the accident, Cramer sustained a lumbar
10

strain superimposed on her preexisting degenerative disc disease. But Dr. Burton could
not say whether any aggravation of Cramer's degenerative disc disease resulted in a
structural change to her body. For her part, Dr. Rosenthal determined the work injury was
the prevailing factor in causing Cramer's herniated disc at the L4-L5 level. She testified
that the work injury did not cause permanent damage to the other discs in Cramer's spine.
However, Dr. Rosenthal explained that treatment was needed at the other disc levels to
relieve the effects of the L4-L5 herniated disc, which she described as the "initial injury."

Cramer's aggravated degenerative disc disease apart from her lumbar
strain/herniated disc is not compensable under the Act. The evidence shows the work
accident was not the primary factor in causing Cramer's aggravated degenerative disc
disease apart from the new physical findings. Because the work accident was not the
prevailing factor in causing any injury or impairment from this aggravation, the
aggravation of Cramer's degenerative disc disease is not compensable.

Cramer asserts the impairment from her aggravated disc disease should have been
considered in awarding permanent partial disability even though the accident was not the
prevailing factor in causing this aggravation. Cramer relies on the language in K.S.A.
2018 Supp. 44-510e(a)(2)(B) to argue that "all impairment that flows from the injury
should be awarded."

At the outset, it is undisputed that Cramer's lumbar strain/herniated disc is a
compensable injury caused by an accident that arose out of her employment. The accident
was the prevailing factor in causing the lumbar strain/herniated disc and this injury was a
change in the physical structure of her body. Accordingly, Cramer was entitled to some
compensation.

The Act calculates compensation differently depending on the nature of the
claimant's disability. Claimants suffering from a permanent total disability are treated
11

differently under the Act from those who have a permanent partial disability. Casco v.
Armour Swift-Eckrich, 283 Kan. 508, 522, 154 P.3d 494 (2007). And claimants, like
Cramer, who sustain an injury that is not included in the schedule of disabilities are
eligible to receive a "permanent partial general disability" award calculated in accordance
with K.S.A. 44-510e. K.S.A. 2018 Supp. 44-510e(a).

To recover permanent partial general disability, a claimant must prove that he or
she is "disabled in a manner which is partial in character and permanent in quality."
K.S.A. 2018 Supp. 44-510e(a)(2)(A). Under K.S.A. 2018 Supp. 44-510e(a)(2)(B), the
extent of permanent partial general disability is the "percentage of functional impairment
the employee sustained on account of the injury." Relying on this language, Cramer
argues: "As long as the accidental injury resulted in the primary reason or primary factor
leading to the impairment or disability, compensability is shown. Thereafter, all
impairments or disabilities which are 'on account of the injury' are considered under
K.S.A. 44-510e."

Kansas law recognizes that injured employees are entitled to "compensation for all
of the natural consequences arising out of an injury, including any new and distinct
injuries that are the direct and natural result of the primary injury." 283 Kan. at 515. This
is known as the secondary-injury rule. When expert medical testimony links the causation
of the second injury to the primary injury, the second injury is considered compensable as
the natural and probable consequence of the primary injury. 283 Kan. at 516. But "all
injuries, including secondary injuries, must be caused primarily by the work accident."
Buchanan, 52 Kan. App. 2d at 951.

Cramer's reliance on K.S.A. 2018 Supp. 44-510e(a)(2)(B) is misplaced. First, to be
compensable, the natural and probable consequences that arise or flow from the injury
must still be caused primarily by the work accident. While Dr. Rosenthal suggested that
Cramer's aggravated degenerative disc disease arose from the L4-L5 herniated disc, she
12

also found this secondary injury was not caused primarily by the work accident. As a
result, the aggravated degenerative disc disease was not compensable as an impairment
flowing from the lumbar strain/herniated disc. Next, recovery for permanent partial
general disability is limited to disabilities which are permanent in quality. But other than
the L4-L5 herniated disc, Dr. Rosenthal believed the work injury caused no permanent
damage to Cramer's spine.

Finally, in the 2011 amendments to the Act, which added the prevailing factor test
and eliminated compensation for an injury that solely aggravates a preexisting condition,
the Legislature also amended K.S.A. 44-501. L. 2011 ch. 55, § 3. Before the 2011
amendments, K.S.A. 2010 Supp. 44-501(c) explained that an employee may recover for
aggravated preexisting conditions "to the extent that the work-related injury causes
increased disability." The 2011 amendments eliminated this language, however, and now
provide only that an award for permanent partial impairment must be reduced by the
amount of functional impairment found to be preexisting. K.S.A. 2018 Supp. 44-501(e).
These revisions support the view that the Legislature intended to limit recovery for
aggravated preexisting conditions to those primarily caused by the work accident.

Cramer next asserts the reasoning in Le suggests that any disability or impairment
from an aggravated preexisting condition is recoverable if it results from an injury that is
not solely an aggravation of a preexisting condition. In essence, Cramer argues that the
entirety of her chronic pain is recoverable if it results from both the new injury and any
aggravated preexisting condition. We disagree with Cramer's reading of Le.

In Le, the claimant—who had preexisting, asymptomatic osteoporosis—fell at
work and sustained a vertebral fracture. After the fracture healed, Le continued to suffer
pain that prevented her return to work. Two of three doctors testified that Le's debilitating
pain was caused by the fracture and not preexisting osteoporosis. The third doctor—Dr.
Ciccarelli—opined that Le was unable to work because of preexisting osteoporosis,
13

unrelated to the fracture. Dr. Ciccarelli opined that Le sustained a 20% functional
impairment with 5% from her osteoporosis thus, leaving her with a 15% permanent
partial impairment rating. 52 Kan. App. 2d at 192. But the ALJ discounted this opinion
and determined that Le was permanently and totally disabled.

The Board adopted Dr. Ciccarelli's opinion, however, and ruled that Le suffered a
15% permanent partial impairment. The Board found that Le's inability to return to work
was caused by preexisting osteoporosis and not the fracture. 52 Kan. App. 2d at 193. Le
appealed to our court.

In Le, we held that Dr. Ciccarelli's testimony did not provide substantial evidence
to support the Board's decision that Le's chronic pain, which kept her from working, was
due to preexisting osteoporosis and not the fracture. 52 Kan. App. 2d at 200. In reaching
this conclusion, our court noted that Le suffered chronic pain only after the work accident
and resulting fracture. Our court found: "When viewing the record as a whole, the
evidence undermines Dr. Ciccarelli's conclusion that Le's ongoing pain which prevents
her from working is attributed solely to her preexisting osteoporosis and is not a
consequence of the injury she sustained at work." 52 Kan. App. 2d at 200. As a result,
our court reversed and reinstated the ALJ's finding that Le was permanently and totally
disabled. 52 Kan. App. 2d at 200.

Contrary to Cramer's argument, the Le opinion does not require compensation for
aggravated preexisting conditions not primarily caused by a work accident when a new
injury is present. Instead, the Le court found that the evidence undermined Dr.
Ciccarelli's testimony that Le was disabled solely by her aggravated osteoporosis. The
remaining testimony suggested Le was permanently and totally disabled because her
work-related fracture caused the entirety of her debilitating pain. Importantly, no
evidence in Le suggested that her impairing pain was caused by a combination of the
fracture and aggravated osteoporosis.
14

Unlike Le, on appeal Cramer does not argue that substantial evidence failed to
support the Board's decision. And this case does not involve competing expert opinions
suggesting that one of two afflictions—either the new injury or aggravated preexisting
condition—caused the entirety of the claimant's impairment. Instead, no evidence shows
that the work accident was the prevailing factor in causing Cramer's impairment from her
aggravated degenerative disc disease. Le does not support Cramer's legal argument.

Additionally, Cramer's argument conflicts with K.S.A. 2018 Supp. 44-508(f). An
injury is recoverable only if the work accident is the primary factor in causing the injury
and resulting disability or impairment. K.S.A. 2018 Supp. 44-508(f)(2)(B)(ii). And an
injury is statutorily restricted to a lesion or change in the body's physical structure. Here,
the only recoverable injury is Cramer's lumbar strain/herniated disc. While this injury
may have also caused pain by aggravating the preexisting disc disease in other areas of
Cramer's spine, the work accident was not the primary factor in causing that resulting
impairment. As a result, any impairment from Cramer's aggravated degenerative disc
disease separate from her lumbar strain/herniated disc is not recoverable.

Finally, Cramer cites to the Missouri Court of Appeals decision in Tillotson v. St.
Joseph Medical Center, 347 S.W.3d 511 (Mo. Ct. App. 2011) to support her argument
that she is entitled to compensation for all impairments that flow from the work accident
including the aggravated degenerative disc disease.

At the outset, the workers compensation laws of Kansas and Missouri are not
identical and, as a result, provide minimal precedent. Moreover, Tillotson does not
support Cramer's argument. The Tillotson court observed that the case highlighted the
"material distinction between determining whether a compensable injury has occurred
and determining the medical treatment required to be provided to treat a compensable
injury." 347 S.W.3d at 517. Unlike Tillotson, the issue here does not require determining
the medical treatment needed to treat a compensable injury. Rather, this appeal involves
15

whether Cramer's aggravated degenerative disc disease is compensable as a permanent
partial general disability. As a result, Cramer needed to prove the work accident was the
prevailing factor in causing any impairment from her aggravated degenerative disc
disease for that disability to be compensable.

Because Cramer's work accident was not the prevailing factor in causing an injury
or resulting impairment from her aggravated degenerative disc disease, it is not
compensable. We hold the Board did not err in limiting Cramer's permanent partial
disability award to her lumbar strain/herniated disc.

DENIAL OF WORK DISABILITY BENEFITS

Cramer next contends the Board erred as a matter of law when determining that
she was not entitled to compensation for work disability benefits beyond her functional
impairment. Cramer's argument is two-fold. First, Cramer claims the Board failed to
consider whether her overall functional impairment—including any preexisting
impairment—was at least 10%. Second, Cramer alleges the Board erred when
determining her capability to earn postinjury wages because it failed to consider her true
physical capabilities.

Our court exercises de novo review when considering whether the Board
erroneously applied the law to undisputed facts. Nuessen, 51 Kan. App. 2d at 618. And
appellate courts exercise unlimited review over questions involving the interpretation or
construction of a statute, owing no deference to the agency's or the Board's interpretation
or construction. Fernandez, 296 Kan. at 475.

As previously discussed, K.S.A. 2018 Supp. 44-510e sets out the compensation
available for permanent partial general disabilities when a claimant sustains
nonscheduled injuries. An award for work disability benefits beyond a claimant's
16

functional impairment is available only if the claimant meets certain requirements. In
particular, K.S.A. 2018 Supp. 44-510e(a)(2)(C) provides:

"An employee may be eligible to receive permanent partial general disability
compensation in excess of the percentage of functional impairment ('work disability') if:
(i) The percentage of functional impairment determined to be caused solely by
the injury exceeds 7 1/2% to the body as a whole or the overall functional impairment is
equal to or exceeds 10% to the body as a whole in cases where there is preexisting
functional impairment; and
(ii) the employee sustained a post-injury wage loss, as defined in subsection
(a)(2)(E) of K.S.A. 44-510e, and amendments thereto, of at least 10% which is directly
attributable to the work injury and not to other causes or factors."

In short, to obtain work disability benefits, the claimant must first meet the
impairment threshold by establishing either (1) a functional impairment rating from the
current injury of more than 7.5% to the body as a whole or (2) an overall functional
impairment rating of at least 10% if there is preexisting functional impairment. Second,
the claimant must additionally establish a wage loss of at least 10%.

Cramer asserts the Board erred when it found that she did not meet the threshold
levels for either functional impairment or wage loss which are necessary in order to
obtain work disability benefits under K.S.A. 2018 Supp. 44-510e(a)(2)(C)(i)-(ii). We will
first consider the functional impairment threshold level.

The Board determined that Cramer suffered a 7.5% functional impairment to the
body as a whole from the injuries sustained on December 2, 2015. This percentage was
based on the impairment from Cramer's lumbar strain/herniated disc. The Board found
that "[u]nder K.S.A. 2015 Supp. 44-510e(a)(2)(C)(i), claimant is limited to her functional
impairment with no permanent partial general disability."

17

With the previous issue on appeal adversely determined against her, Cramer
concedes that her functional impairment rating from the current injury did not exceed
7.5%. But Cramer asserts the Board erred when it considered whether her overall
functional impairment was at least 10% because the Board never factored in her
aggravated degenerative disc disease. Cramer argues that the Board should have
considered the aggravation as a preexisting impairment.

A claimant satisfies the impairment threshold to obtain work disability if the
percentage of the "overall functional impairment is equal to or exceeds 10% to the body
as a whole in cases where there is preexisting functional impairment." K.S.A. 2018 Supp.
44-510e(a)(2)(C)(i). However, as Cramer recognizes, this 10% overall functional
impairment threshold may not apply because she potentially did not have a preexisting
functional impairment.

Important to the resolution of this issue, Kansas law distinguishes between a
preexisting condition and a preexisting functional impairment. A functional impairment
is "the loss of a portion of the total physiological capabilities of the human body." K.S.A.
2018 Supp. 44-508(u). A claimant may have a preexisting condition with no preexisting
functional impairment. As our court has explained: "A person with preexisting
asymptomatic arthritis is not impaired; he or she simply has a preexisting condition.
While a person with preexisting symptomatic arthritis (e.g., pain, limited mobility) is
impaired." Franzel v. State, No. 106,193, 2012 WL 603301, at *8 (Kan. App. 2012)
(unpublished opinion).

Cramer had preexisting degenerative disc disease prior to the work accident. But,
other than a few occasionally brief periods of back pain, there was no evidence that she
exhibited impairment of function from this preexisting condition. As acknowledged by
Cramer on appeal, "[t]here is no evidence that this was an impairing condition before the
work accident."
18

We are persuaded the evidence shows that Cramer's preexisting condition did not
constitute a preexisting functional impairment. Given that Cramer's functional
impairment rating from the current injury was not more than 7.5% and the overall
functional impairment rating of 10% was not applicable because Cramer did not have a
preexisting functional impairment, the first requirement of K.S.A. 2018 Supp. 44-
510e(a)(2)(C)(i) was not satisfied. As a result, the Board did not err in denying Cramer
work disability benefits.

Having found that Cramer failed to satisfy the impairment threshold for work
disability benefits, a resolution of whether the Board erred when determining Cramer's
capability to earn postinjury wages would have no legal impact on Cramer. Even if
Cramer's position is correct, this court cannot provide her with any meaningful relief
because she is precluded from receiving work disability benefits under K.S.A. 2018
Supp. 44-510e(a)(2)(C)(i) despite whether she satisfied K.S.A. 2018 Supp. 44-
510e(a)(2)(C)(ii). As a result, this issue is moot. State v. Montgomery, 295 Kan. 837,
840-41, 286 P.3d 866 (2012) (A controversy becomes moot when judicial resolution of
an issue presented would no longer affect the legal rights or alter the legal relationship of
the parties.).

Affirmed.