Hoang v. Metal Fab, Inc.

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NOT DESIGNATED FOR PUBLICATION

No. 118,332


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

VIET HOANG,
Appellant,

v.

METAL FAB, INC.,
Appellee.


MEMORANDUM OPINION

Appeal from Workers Compensation Board. Opinion filed July 27, 2018. Appeal dismissed.

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

P. Kelly Donley and Dallas L. Rakestraw, of McDonald Tinker PA, of Wichita, for appellee.

Before GREEN, P.J., MCANANY and BRUNS, JJ.

PER CURIAM: Viet Hoang appeals the decision of the Workers Compensation
Board (Board), arguing that it erred when it denied compensation for a preexisting
condition. Hoang argues that the Board erred in two ways. First, he asserts that based on
a stipulation by Metal Fab, Inc. (Metal Fab), the Board had to conclude that his accident
was the prevailing factor for his injury, medical condition, and resulting disability or
impairment, which included his preexisting condition. Second, based on his interpretation
of the Workers Compensation Act (Act), Hoang argues that he did not need to establish
that his accident was the prevailing factor resulting in an aggravation of his preexisting
condition.
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Nevertheless, Hoang has raised both these arguments for the first time on appeal.
Issues not raised before the trial court cannot be raised on appeal. See Wolfe Electric, Inc.
v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). As a result, we dismiss.


On April 19, 1989, while Hoang was working for National Beef, Hoang lacerated
himself with a knife. The laceration extended across Hoang's right wrist. An emergency
room doctor initially treated Hoang's injury. About a month later, Hoang sought
additional medical attention for his laceration.

When Hoang sought additional medical attention, a doctor known only as Dr.
Gilbert treated him. Dr. Gilbert noted that Hoang lacked sensation and appropriate
trophic changes in his median nerve. Dr. Gilbert also determined that Hoang suffered
from neuroma-in-continuity, meaning the nerve endings of Hoang's median nerve were
not healing properly. Dr. Gilbert performed surgery to correct Hoang's neuroma-in-
continuity.

On October 20, 1989, Hoang first met with Dr. Garret Watts. Although not
entirely clear from the record on appeal, it seems Hoang became Dr. Watts' patient as part
of a workers compensation case against National Beef. Dr. Watts' notes are for National
Beef and its insurance carrier.

According to the notes from Dr. Watts' October 20, 1989 meeting, Hoang's
laceration went across "the central palmar region" of his right wrist. Hoang complained
of odd sensations, numbness, and temperature changes in his right hand and fingers. He
also complained about pain in his right hand, forearm, elbow, and shoulder. Yet, Dr.
Watts noted that Hoang had use of his right forearm, elbow, and shoulder. Dr. Watts
noted that Hoang's ulnar nerve did not appear damaged. The PDR Medical Dictionary
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states that both the ulnar and median nerve run from the neck and then through the
shoulder, arm, elbow, forearm, wrist, hand, and fingers; the ulnar nerve runs through the
ring finger and little finger while the median nerve runs through the index, middle, and
ring finger as well as the thumb. The nerves control these parts, and often the nerves
overlap each other. See PDR Medical Dictionary 1298, 1303 (3d ed. 2006).

Hoang continued under Dr. Watts' treatment from October 20, 1989, until June 7,
1990. During this time, Hoang attended occupational therapy. Although Hoang seemed to
recover physiologically, he still complained of pain in his "entire right upper extremity."
Moreover, an electromyography test revealed that Hoang had "severe distal medial nerve
dysfunction but with some distal nerve function."

Dr. Watts ultimately diagnosed Hoang with causalgia, which is also called
complex regional pain syndrome (CRPS) or reflex sympathetic dystrophy (RSD). The
PDR Medical Dictionary 1895 (3d ed. 2006), states that CRPS consists of "diffuse
persistent pain usually in an extremity often associated with vasomotor disturbances,
trophic changes, and limitation or immobility of joints." Dr. Watts' final notes to National
Beef and its insurance carrier were as follows:

"Diagnosis: As previously listed with moderate causalgia pain right arm.

"[C]onsideration of the patient's diagnoses and problems lead me to believe he has a
major causalgia of the right arm. According to the grading scheme in the AMA guide
[table 10][,] he has a grade V level of affectation of his right arm due to pain discomfort
and loss of sensation. This gives 85% of the maximum value of the median nerve below
the mid-forearm which is 61%. This equals 52% of the upper extremity which equals
31% of the whole person. I do not feel that any further therapy is indicated for the patient.
He may improve slowly as time goes by as there has been evidence of some re-
innervation of the median distribution. This may very well take several years before the
amount of improvement can be thoroughly evaluated. . . ."

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"Work restrictions would be light duty use of the right hand with negligible constant
lifting or grasping." (Emphasis added.)

It is undisputed that Hoang received Social Security benefits for "six or seven
years" because of his injury at National Beef. Moreover, Hoang did not work during this
six- or seven-year period. It is not entirely clear, however, why, or even if, Hoang
stopped receiving the Social Security benefits.

Nevertheless, in 1996 or 1997, Hoang took a job with Metal Fab. On August 8,
2013, Hoang fell and lacerated his right elbow while at work. Hoang's job was labor
intensive. The physical requirements included pulling, pushing, kneeling, walking,
bending, and lifting 50 pounds often and 60 or more pounds sometimes. Hoang had been
trying to join two large metal tubes with a hand lock when he injured himself. Metal Fab
employees immediately brought Hoang to a hospital emergency room where he received
stitches.

Five days later, Hoang sought the medical services of Dr. Patrick Do, who was an
authorized treating physician. Dr. Do performed surgery on Hoang's elbow to repair
damage to his ulnar nerve. After the surgery, Dr. Do authorized Hoang to return to work
but prohibited him from reaching over his head with his right arm. Dr. Do also ordered
that Hoang attend physical therapy.

On August 22, 2013, Hoang requested a preliminary hearing before an
administrative law judge (ALJ) regarding the "cut to [his] right upper extremity." Hoang
specifically requested payment for the "medical treatment to his right shoulder," as well
as "temporary total disability[,] temporary partial disability[,] and accommodated work."

Meanwhile, at his attorney's request, on September 26, 2013, Hoang met with Dr.
Pedro Murati. At their initial meeting, Dr. Murati diagnosed Hoang with CRPS in the
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right upper extremity. Dr. Murati opined that his work injury at Metal Fab was the
prevailing factor for his CRPS. Dr. Murati asserted that Hoang should undergo several
different treatments, including pain management treatment. Hoang then amended his
workers compensation claim to request payment for all treatments recommended by Dr.
Murati.

On December 12, 2013, Hoang went back to Dr. Do. Dr. Do recommended that
Hoang continue physical therapy, but Hoang asked Dr. Do to release him from treatment.
Therefore, Dr. Do listed Hoang at maximum medical improvement. Dr. Do determined
that Hoang suffered 24% permanent partial impairment of the right upper extremity,
which consisted of 12% for lack of elbow flexion, 4% for lack of elbow extension, 4%
for ulnar nerve sensory deficit, and 6% for ulnar nerve motor deficit, with permanent
work restrictions. Dr. Do's notes never mentioned CRPS.

Hoang then sought pain management treatment from Dr. Xavier Ng. At their
initial meeting on March 28, 2014, Dr. Ng found that Hoang's upper right extremity was
swollen with "hypersensitivity to the touch." As Dr. Ng's treatment continued, Hoang had
continued numbness, pain in the right hand, and signs of contracture.

While treating Hoang, Dr. Ng discovered that Hoang had previously been
diagnosed with CRPS in his right upper extremity by Dr. Watts as a result of his National
Beef injury. Up to this point, it seems that Hoang had not made any of his doctors aware
of his National Beef injury or his resulting CRPS.

At their October 2014 meeting, Dr. Ng. asked Hoang if he had ever experienced
similar symptoms in his right upper extremity before his work injury at Metal Fab. Hoang
told Dr. Ng that he had not. In November 2014, Dr. Ng concluded that there was a
"reasonable degree of probability that [Hoang's] current symptoms and complaints," were
the "result of his previous injury." Dr. Ng emphasized the "inconsistent[cy]" between the
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"[medical] history that [Hoang] had provided [him]" at the examination compared to
Hoang's "medical records" in making his finding.

Next, Hoang's attorney asked Dr. Murati whether he still believed that Hoang's
right upper extremity issues resulted from his injury at Metal Fab given Hoang's
preexisting CRPS. Dr. Murati concluded that because there was no evidence that Hoang
sought medical treatment for right upper extremity pain between 1990 and 2013, Hoang's
right upper extremity CRPS resolved before his 2013 injury at Metal Fab. Thus, Dr.
Murati concluded that Hoang's accident at Metal Fab was the prevailing factor for all of
Hoang's current right upper extremity issues.

Metal Fab responded by applying for a preliminary hearing to terminate Hoang's
ongoing pain management treatment based on Dr. Ng's finding that Hoang's "current
need for medical treatment relate[d] to a preexisting condition." Following a preliminary
hearing, the ALJ appointed Dr. Aly Gadalla as a neutral physician to perform an
independent medical examination of Hoang. The ALJ specifically ordered Dr. Gadalla to
offer his opinions on "diagnosis; treatment recommendations, if any; and causation,
including whether [Hoang's] alleged work accident [was] the prevailing factor in causing
[his] injury, need for treatment, or resulting impairment or disability, if any."

Dr. Gadalla reviewed all of Hoang's medical records. Dr. Gadalla noted the fact
that Dr. Watts stated that Hoang had a cut to the central palmar region of the right wrist;
Dr. Gadalla described this cut as an injury to the "central ulnar region of the right wrist."
Based on Hoang's medical examination and records, Dr. Gadalla concluded that Hoang's
"current complaints and diagnoses of right upper extremity pain [were] an exacerbation
of his preexisting injury in 1990 [for which] he had already received 31% whole person
impairment." Thus, he concluded that Hoang's current symptoms and complaints are most
likely a result of his previous injury that he sustained in 1990. Dr. Gadalla placed Hoang
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at maximum medical improvement for his Metal Fab related injury as of December 12,
2013; this was the same date as Hoang's last appointment with Dr. Do.

On March 13, 2015, the ALJ entered the following order:

"In light of the opinions of Dr. Gadalla, the court-ordered medical examiner, the
Court finds that Claimant's work injury is not the prevailing factor for his current ongoing
need for medical treatment. As a result, the pain management treatment being provided
by Dr. Ng is not related to the work accident and is no longer authorized by the Court.
Claimant's request for continued right upper extremity medical treatment is denied."

Because his pain management treatment was no longer covered, Hoang stopped seeing
Dr. Ng.

On April 8, 2015, Hoang again visited Dr. Murati at his attorney's request for a
new medical evaluation. At this exam, Dr. Murati diagnosed Hoang with damage to the
ulnar nerve, CRPS in the right upper extremity, and a cervical sprain. Dr. Murati's
cervical sprain diagnosis was the first time anyone had diagnosed Hoang with a cervical
sprain. He then recommended that Hoang continue with pain management and yearly
check-ups "on his right upper extremity." He repeated that he believed Hoang's current
symptoms were a direct result from the Metal Fab injury. He explained that there "have
been clear-cut obvious structural changes that [would have] prevent[ed Hoang] from
performing his vocation as described."

He lastly concluded that Hoang had these impairments: (1) a 16% right upper
extremity impairment based on the loss of motion in the right shoulder; (2) a 16% right
upper extremity impairment based on the loss of motion in the right elbow; (3) a 20%
impairment for the right upper extremity CRPS; and (4) a 10% upper extremity
impairment for damage to the ulnar nerve. Dr. Murati explained that "[t]hese right upper
extremity impairments combine for 50% right upper extremity impairment, which
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converts for 30% whole person impairment. Dr. Murati combined this 30% whole person
impairment with the 5% whole person impairment he assigned to Hoang's cervical sprain,
resulting in a total whole person impairment rating of 34%.

On June 15, 2015, the parties had a prehearing settlement conference. Because the
parties disputed the nature and extent of Hoang's impairment, the ALJ appointed Dr.
Terrance Pratt as a neutral physician to perform an independent medical examination of
Hoang. The ALJ asked Dr. Pratt to "offer opinions as to [Hoang's] permanent impairment
rating and need for future medical treatment, if any."

On October 15, 2015, Dr. Pratt reviewed all of Hoang's medical records and
examined Hoang. Dr. Pratt provided these opinions about the cause of Hoang's medical
conditions:

"For cervicothoracic complaints, those symptoms were documented, but only in Dr.
Murati's report. I did not note it documented in any of the other records or during his
treatment for the right upper extremity involvement. I could not relate that directly to his
report vocationally related event. . . . In relationship to the findings suggesting a [CRPS],
that was diagnosed in relationship to his involvement in 1989, or was preexisting the
reported event in 2013. It is probable that the event in 2013 was a trigger for recurrent
findings suggesting a [CRPS], but I would not consider that as the prevailing factor for
the involvement. He had statements in the past concerning permanency for the [CRPS]
as well as involvement of his median nerve. For the shoulder involvement, he was noted
in 1990 to have stiffness on his right shoulder. There was no report of a specific injury to
his right shoulder in relationship to the 2013 event. The limitations in range of motion of
the shoulder would relate to his [CRPS]. Similarly, distal upper extremity limitations in
range of motion would relate to his history of [CRPS] as well. Today, there were some
limitations in consistency of the examination when comparing range identified today with
prior assessments and also there was giveaway weakness diffusely for the upper
extremity on the right. Sensory to two-point discrimination, he could not state with
consistency the difference between one and two points for all of the fingers and thumb on
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the right today. He did have an elbow laceration with joint involvement and did have
involvement of his ulnar nerve in relationship to his vocationally related activities in
2013 as the prevailing factor. I would point out that elbow range was noted as full in
1989." (Emphasis added.)

Dr. Pratt then asserted that the following impairment ratings applied to Hoang:

"I would state that the residual involvement in relationship to the ulnar nerve involvement
at the elbow would be considered as moderate, or 30% of the upper extremity . . . For the
elbow with loss of range of motion, . . . 13% . . . . Other range was full. Combining the
permanency utilizing the Combined Values Chart, 30 and 13 combine for 39% of the
right upper extremity for the elbow on a functional basis."

After receiving Dr. Pratt's opinions, Hoang once again went to Dr. Murati. Upon
examining Hoang on January 19, 2016, Dr. Murati determined that Hoang had damage to
his left upper extremity as a result of his 2013 accident at Metal Fab; Dr. Murati opined
that Hoang was overusing his left shoulder because of the damage to his right upper
extremity. Following his 2013 accident at Metal Fab, Hoang returned to work at Metal
Fab but with a new job as a machine operator. Hoang used only his left arm to operate the
machine.

On January 15, 2016, Hoang amended his application for hearing to include the
left upper extremity and left shoulder injuries. Hoang also requested medical treatment
for the alleged injuries to his left upper extremity and left shoulder. Metal Fab responded
that all prior medical examinations supported that any of Hoang's ongoing pain was
related to his 1989 National Beef injury.

Eventually, the ALJ ordered Dr. Pratt to conduct a second independent medical
examination specifically related to Hoang's left upper extremity and left shoulder. Dr.
Pratt determined that any pain Hoang had in his left upper extremity and left shoulder had
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nothing to do with his 2013 work accident. Instead, it involved the repetitive nature of
Hoang's job which involved his left upper extremity. On August 8, 2016, the ALJ
adopted Dr. Pratt's opinion, denying Hoang's request for left upper extremity medical
treatment.

In relevant part, the ALJ concluded:

"Based upon the reports of the various physicians, it is clear that Claimant has
developed overuse injuries of his left upper extremity as a result of doing his repetitive
job duties with only his left arm because of his right upper extremity condition. At issue,
however, is the question of whether the right upper extremity condition that has caused
Claimant to overuse his left upper extremity at work is the result of his August 8, 2013,
work accident or his preexisting unrelated condition.
"Claimant told Dr. Pratt that his left upper extremity symptoms developed
gradually approximately a year after his August 8, 2013, work accident. By the time Dr.
Ng was providing Claimant treatment in October 2014, just slightly more than a year
after Claimant's work accident, Dr. Ng opined that Claimant's ongoing right upper
extremity symptoms were unrelated to his work accident and rather were the result of his
preexisting [CRPS]. This diagnosis and opinion was confirmed by the court-ordered
independent medical examination of Dr. Gadalla, who believed that Claimant's ongoing
right upper extremity symptoms were related to his preexisting [CRPS] rather than his
work accident.
"At the time Claimant first saw Dr. Pratt, he still had significant ongoing right
upper extremity complaints as well as a diagnosis of [CRPS]. At the time of his second
examination, Dr. Pratt opined that Claimant's left upper extremity symptoms were the
result of his 'right upper extremity involvement with a [CRPS].' Even Claimant's own
expert, Dr. Murati, believed that Claimant's left upper extremity complaints were 'an
obvious and probable consequence' of his [CRPS]. None of the physicians who examined
Claimant opined that his left upper extremity complaints were the result of his August 8,
2013, work accident.
"As discussed above and previously noted by the Court in prior orders,
Claimant's right upper extremity [CRPS] and ongoing complaints are not related to his
August 8, 2013, work accident and rather are related to a preexisting injury. The Court
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finds that Claimant's preexisting injury and ongoing complaints related to [CRPS] are the
prevailing factor in his development of overuse injuries to his left upper extremity. . . .
Claimant's request for left upper extremity medical treatment is denied."

Next, the parties proceeded to have a regular hearing. At the outset of this hearing,
Metal Fab stipulated that Hoang's personal injury arose out of and in the course of his
employment and that the accident was the prevailing factor causing Hoang's injury,
medical condition, and resulting disability or impairment. Yet, Hoang also alleged that
the parties disputed the nature and extent of his disability. Hoang then testified about both
his 1989 National Beef injury and his 2013 Metal Fab injury, as well as his CRPS.

After the regular hearing, Hoang and Metal Fab stipulated to the admission of his
medical records from Dr. Watts, Dr. Do, Dr. Murati, and Dr. Ng. In his submission letter,
Hoang's sole argument was that Dr. Murati's opinions about CRPS were more credible
than Dr. Ng's opinions because Dr. Murati's opinion considered "a much more detailed
history of [his] previous injury." Hoang alleged that he worked at Metal Fab with no
symptoms of CRPS in his right arm until his work accident in 2013. In its letter, citing
Dr. Ng's, Dr. Gadalla's, and Dr. Pratt's opinions, Metal Fab argued that "Dr. Muarti's
belief that Hoang's accident caused [Hoang's CRPS] does not hold water." Metal Fab also
argued that the ALJ should adopt Dr. Do's 24% impairment rating, or alternatively,
average the impairment rating of Dr. Do and Dr. Pratt, for a 31.5% impairment rating.

On March 8, 2017, the ALJ entered an award concluding permanent partial
impairment of 29% to the right upper extremity. In doing so, the ALJ made the following
findings:

"The Court finds that Dr. Murati's assessment of impairment related to Claimant's
right shoulder and cervical spine lacks credibility, because there are no documented
complaints of right shoulder cervical spine injury or treatment from any of Claimant's
treating physicians. Dr. Murati is the only physician who examined Claimant who
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believed that Claimant sustained injuries to his right shoulder or cervical spine as a result
of his August 8, 2013, work accident.
"The Court further finds that Dr. Murati's assessment of impairment related to
Claimant's RSD or [CRPS] diagnosis is also without merit, because Claimant has not met
his burden to prove that his [CRPS] arose out of and in the course and scope of his
employment with Respondent. Dr. Murati was the only physician to relate Claimant's
[CRPS] condition to his August 8, 2013, work accident. Contrary to Dr. Murati, Dr. Ng,
Dr. Gadalla, and Dr. Pratt all opined that Claimant's preexisting 1989 right upper
extremity injury and prior diagnosis of RSD/[CRPS] was the prevailing factor in his
current diagnosis of [CRPS]. Dr. Gadalla and Dr. Pratt, as Court-ordered independent
medical examiners, and Dr. Ng, as Claimant's authorized treating physician, offer more
credible causation opinions regarding Claimant's [CRPS] diagnosis than that of Dr.
Murati, who was retained by Claimant to offer his opinions.
"However, the Court finds that Dr. Murati's opinions regarding Claimant's
impairment related to his compensable August 8, 2013, work injury to his right elbow are
credible. Dr. Murati, like Dr. Do, assessed a total of 24% permanent partial impairment to
Claimant's upper extremity, consisting of 16% for loss of range of motion of the right
elbow and 10% for ulnar nerve repair. These two ratings combine to 24% permanent
partial impairment to the right upper extremity.
"Finally, Dr. Pratt, the Court-ordered independent medical examiner, assigned
Claimant 39% permanent partial impairment to the right upper extremity, consisting of
30% for moderate residual involvement in relationship to the ulnar nerve involvement at
the elbow, .5% for loss of range of motion of the elbow for extension, and 12.5% for loss
of range of motion of the elbow for flexion. Although Dr. Pratt's total impairment rating
is higher than that of Dr. Do and Dr. Murati, it is also based on range of motion deficits
and ulnar nerve involvement. The Court finds that Dr. Pratt's opinions regarding
Claimant's impairment of function are also credible.
"The Court finds the impairment rating opinions of Dr. Do, Dr. Murati [limited
as set forth above], and Dr. Pratt to be credible and thus affords them equal weight.
Averaging the 24% impairment of Dr. Do, the 24% impairment of Dr. Murati, and the
39% impairment of Dr. Pratt, the Court finds that Claimant sustained a total functional
permanent partial impairment of 29% to the right upper extremity."

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Therefore, the ALJ ruled that Hoang was "entitled to 3.14 weeks of temporary
total disability compensation, at the rate of $406.57 per week, in the amount of
$1,276.63, followed by 59.99 weeks of permanent partial disability compensation, at the
rate of $406.57 per week, in the amount of $24,390.13 for a 29% permanent partial
disability of the right arm, making a total award of $25,666.76." The ALJ ruled that
Hoang was also entitled to payment for any past medical expenses. Regarding future
medical treatment, the ALJ adopted Dr. Pratt's and Dr. Murati's finding that Hoang could
benefit from future therapeutic medical treatment. The ALJ ruled that "future medical
will be considered upon proper application."

Hoang appealed to the Board. In his brief, Hoang argued that Dr. Ng's, Dr.
Gadalla's, and Dr. Pratt's opinions about his preexisting CRPS causing his ongoing CRPS
were incorrect because none of their opinions "address how the previous CRPS had
caused the current CRPS." Instead, he argued that the doctors asserted that because there
was CRPS before, there was CRPS still. Hoang argued that "'permanent' conditions can
and do change." He argued that because he had not been experiencing pain, his CRPS
resulting from the 1989 National Beef injury healed, meaning his current CRPS was a
new injury.

Metal Fab responded by repeating its argument that Hoang had only a 24%
impairment rating based on Dr. Do's report. Alternatively, Metal Fab argued that the
Board should affirm the ALJ's ruling that Hoang has a 29% impairment of the right upper
extremity based on averaging the right elbow and ulnar nerve ratings of Dr. Do, Dr.
Murati, and Dr. Pratt. Metal Fab stressed that Dr. Murati was the only doctor who
attributed Hoang's CRPS to his 2013 injury at Metal Fab.

On September 7, 2017, the Board entered its order. The analysis of the Board's
majority, in its entirety, was as follows:

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"The Board adopts the judge's decision as its own. As a matter of determining
the nature and extent of disability, as based on the overwhelming weight of the medical
evidence, the judge correctly found only claimant's right elbow impairment to be a
consequence of his injurious work accident in 2013.
"Drs. Ng, Gadalla and Pratt agree claimant's CRPS is due to his preexisting
condition from 1989 and 1990. Dr. Pratt opined claimant's left upper extremity
complaints relate to overuse stemming from his non-compensable right-sided CRPS.
Therefore, claimant's left upper extremity impairment is not compensable.
"Of the medical evidence, only Dr. Murati supports the suggestion claimant's
CRPS, asserted neck impairment or shoulder impairment is related to his August 8, 2013
injury by accident. Based on the weight of the evidence, such opinions are not well-
founded.
"Only claimant's right upper extremity impairment and his corresponding need
for medical treatment related to his 2013 injury are compensable. Claimant greatly
downplayed the severity of his 1989 injury and preexisting impairment." (Emphasis
added.)

A single dissenting Board member stated that he "would find [that Hoang's] CRPS
was caused by his 2013 injury . . . ." The Board member objected to the majority Board's
"adverse credibility determination" against Hoang. Moreover, he asserted that "[w]ith his
new right elbow injury, claimant did not have what would be solely an aggravation of a
preexisting condition or the rendering symptomatic of a preexisting condition."

Hoang timely petitioned this court for judicial review.

Does Hoang Present Two New Legal Theories for the First Time on Appeal Which
Should be Considered?

On appeal, Hoang argues that the Board's decision affirming the ALJ's award as it
concerns his CRPS being noncompensable was incorrect for two reasons. First, he argues
that Metal Fab's stipulations before the regular hearing required the Board to conclude
15

that his ongoing CRPS resulted from his 2013 work accident at Metal Fab. Second, he
argues that the Board failed to follow the plain language of the Act when it concluded
that his accident was not the prevailing factor causing his CRPS.

On the other hand, Metal Fab contends that both of Hoang's arguments were not
raised below. Therefore, Metal Fab argues that this court should not consider these
arguments for the first time on appeal. We agree.

Stipulation Argument

Hoang's first argument involves Metal Fab's stipulations before the ALJ. At the
regular hearing, Metal Fab stipulated that Hoang's personal injury arose out of and in the
course of his employment and that the accident was the prevailing factor causing Hoang's
injury, medical condition, and resulting disability or impairment. On appeal, Hoang
argues that based on this stipulation, the ALJ and the Board had to conclude that his
ongoing CRPS resulted from his 2013 work injury. This is because the stipulation
established that his accident was the prevailing factor for his ongoing CRPS for which he
claimed he was impaired. Accordingly, Hoang argues that this court must reverse the
Board's order.

Metal Fab, however, asserts that Hoang's stipulation argument is not properly
before this court because Hoang did not raise this argument before the ALJ or the Board.
Metal Fab points out that in his claimant's submission letter to the ALJ and brief to the
Board, Hoang merely stated that the issues before the ALJ were "the nature and extent of
[his] impairment" and whether he should be "awarded future medical treatment." Metal
Fab contends that Hoang's current argument is both false and disingenuous.

In his reply brief, Hoang admits that he never argued that he was automatically
entitled to compensation because of Metal Fab's stipulations below. But Hoang asserts
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that he "could not anticipate that the ALJ would ignore the stipulation concerning the
prevailing factor. As such, it [was] impossible for [him] to identify the issue before the
ALJ."

Generally, this court will not consider issues raised for the first time on appeal.
Moreover, as Metal Fab points out in its letter of additional authority that in Jones v.
U.S.D. No. 259, 55 Kan. App. 2d 567, 574, 419 P.3d 62 (2018), a recent workers
compensation case, this court refused to consider the claimant's estoppel argument raised
for the first time on appeal. This general rule also applies in workers compensation
appeals when the claimant has failed to raise an argument at the administrative hearing.
Scheidt v. Teakwood Cabinet & Fixture, Inc., 42 Kan. App. 2d 259, 264, 211 P.3d 175
(2009). Indeed, K.S.A. 2017 Supp. 77-617 of the Kansas Judicial Review Act (KJRA)
states that for issues not raised at the agency level, an appellate court should only review
an appellant's argument in four limited circumstances.

But on appeal, Hoang has neglected to argue that any of the four limited
circumstances applies to his appeal. Additionally, a review of the procedural history of
this case establishes that Hoang's contention that it was impossible for him to raise his
argument below is incorrect.

For instance, K.A.R. 51-3-8(a) (2017 Supp.) lists a series of questions that the ALJ
should ask the parties in every case to determine what issues can be stipulated to and
what issues remain in dispute. In accordance with K.A.R. 51-3-8(a)(6), (11), at the
December 1, 2016 regular hearing, the ALJ asked Metal Fab these questions: "Does
respondent admit that claimant's alleged personal injury 'arose out of and in the course' of
claimant's employment?"; and (2) "Does respondent admit that the accident or repetitive
trauma was the prevailing factor causing the injury, the medical condition, and the
resulting disability or impairment?" Metal Fab's attorney answered affirmatively to both
questions.
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Nevertheless, K.A.R. 51-3-8(a)(16) states that the ALJ should ask both parties
"[w]hat was the nature and extent of the disability suffered as a result of the alleged
injury." K.A.R. 51-3-8(a)(20) states that the ALJ should ask whether "the parties [have]
agreed upon a functional impairment rating." Although the ALJ did not ask these specific
questions, the ALJ did ask the following question: "Is the nature and extent of disability
an issue?" Hoang's attorney responded that the nature and extent of Hoang's disability
was at issue.

After expressly conceding that a dispute existed as to the nature of Hoang's
disabillity, Hoang testified. Both his attorney and Metal Fab's attorney asked Hoang
questions about his 1989 injury, his 2013 injury, and the CRPS pain he experienced over
the last three decades.

Then, on January 26, 2017, in his submission letter to the ALJ, and later on April
27, 2017, in his brief to the Board, Hoang continued to dispute whether his 2013 work
injury caused his current CRPS. Yet, Hoang never alleged that he was necessarily entitled
to compensation for his CRPS because Metal Fab had stipulated that his 2013 work
accident was the prevailing factor for his ongoing CRPS.

Thus, in sum, Hoang knew about Metal Fab's stipulations as of the regular hearing,
which was more than a month before he filed his submission letter to the ALJ. In turn, he
could have argued that Metal Fab had stipulated to the fact that his 2013 work accident
was the prevailing factor for his ongoing CRPS at the actual regular hearing. Moreover,
he certainly could have raised this argument in his submission letter to the ALJ or on
appeal to the Board. Thus, Hoang could have raised the stipulation argument below.

In addition, K.A.R. 51-3-8(e) states that parties may withdraw admissions or
stipulations upon the ALJ's approval. In considering whether to allow the party to
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withdraw a stipulation, the ALJ must consider the "circumstances in each instance." A
party's ability to withdraw a stipulation upon the ALJ's approval lends support to the
position that if claimants intend to win their workers compensation claims based on
respondents' stipulations, claimants would need to offer for consideration the stipulations
to the ALJ. Simply put, because the regulations allow parties to move to withdraw their
stipulations, workers compensation cases should not turn on unintentional stipulations by
respondents without ALJs ever having an opportunity to consider the stipulations.

Next, despite Metal Fab's stipulation, it is readily apparent that both parties, the
ALJ, and the Board understood that whether Hoang's 2013 accident at Metal Fab was the
prevailing factor for his ongoing CRPS was still in dispute. This is evidenced by Hoang's
response to the ALJ's question. Hoang explicitly stated that the nature and extent of his
disability was still in dispute. Of note, in Le v. Armour Eckrich Meats, 52 Kan. App. 2d
189, 364 P.3d 571 (2014), a case Hoang relies on in his brief, this court recognized that
when parties debate whether a work accident or a preexisting condition was the
prevailing factor for a claimant's ongoing but aggravated preexisting condition, the
claimant's resulting disability or impairment was in dispute. 52 Kan. App. 2d at 200. As a
result, even though Metal Fab made its stipulation, Hoang explicitly told the ALJ that the
parties had not agreed on the nature and extent of his disability.

In turn, it is readily apparent that both parties understood that whether Hoang's
2013 work accident was the prevailing factor for Hoang's ongoing CRPS was still in
dispute. It is also readily apparent that the ALJ and the Board also believed that the
parties were still disputing whether Hoang's 2013 work accident was the prevailing factor
for Hoang's ongoing CRPS. But, then again, given Hoang's explicit statement and the
parties' arguments in their submission letters and briefs, what else were the ALJ and the
Board to believe?

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Once more, in workers compensation cases, the burden of proof always remains
on the claimant. K.S.A. 2017 Supp. 44-501b(c). More importantly, our Supreme Court
has explained that "[i]t would be wholly inappropriate to permit one who creates a
procedural problem at the agency level to gain advantage thereby on judicial review. This
is a logical extension of the well-established invited error rule." Catholic Housing
Services, Inc. v. State Dept. of SRS, 256 Kan. 470, 476, 886 P.2d 835 (1994). Here, the
problem with Hoang's argument is not only that he did not raise it below, but also that he
created a procedural problem that he now seeks to benefit from on appeal. Because he
failed to raise his argument below and because he has invited error, Hoang's argument
that Metal Fab's stipulation required the Board to find that his 2013 accident was the
prevailing factor for his ongoing CRPS is not properly before this court.

Prevailing Factor Argument

Next, Hoang argues that the Board's decision was errant because it misapplied the
prevailing factor test, contrary to the plain language of the Act. Metal Fab again argues
that Hoang did not raise this argument below. As a result, his argument is not properly
before this court. In his reply brief, Hoang admits that he is advancing a new
interpretation of the Act that he did not advance below. But Hoang counters that although
he may not have made the specific legal arguments below, the "issues" were before the
ALJ and Board.

Hoang is correct that the "issue" of what was the prevailing factor causing his
ongoing CRPS was before the ALJ and Board. Nevertheless, as Hoang has admitted, he
has a new twist to his argument on appeal. Under his current interpretation of the Act,
claimants do not have to establish that their work accident was the prevailing factor for
the aggravation, acceleration, or exacerbation of their preexisting condition or rendering
of their preexisting condition symptomatic. As a result, Hoang is no longer arguing that
the work accident was the prevailing factor for his ongoing preexisting condition. Instead,
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he now argues that he had no duty to prove his work accident was the prevailing factor
for his ongoing preexisting condition.

Again, this court does not generally review issues raised for the first time on
appeal. Like his stipulation argument, Hoang has not asserted that any specific exception
allows him to raise this argument for the first time on appeal. Additionally, Hoang did not
admit that he was raising either this argument or his stipulation argument for the first
time on appeal until his reply brief. As a result, Hoang violated Supreme Court Rule
6.02(a)(5) (2018 Kan. S. Ct. R. 34), which requires appellants to explain why issues not
raised below should be considered for the first time on appeal. Because he did not raise
this argument below, we will not consider Hoang's prevailing factor argument now.

Appeal dismissed.