Stark v. Atwood Good Samaritan Center

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NOT DESIGNATED FOR PUBLICATION

No. 113,075

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ARDIS J. STARK,
Appellant/Cross-appellee,

v.

ATWOOD GOOD SAMARITAN CENTER and
SENTRY MUTUAL INSURANCE COMPANY,
Appellees/Cross-appellants.


MEMORANDUM OPINION

Appeal from Worker Compensation Board. Opinion filed July 29, 2016. Affirmed.

Melinda G. Young, of Bretz & Young, of Hutchinson, for appellant/cross-appellee.

Brandon A. Lawson, of Evans & Dixon, LLC, of Kansas City, Missouri, for appellees/cross-
appellants.

Before BUSER, P.J., HILL, J., and WALKER, S.J.

Per Curiam: Ardis J. Stark appeals the Workers Compensation Board's (Board)
denial of permanent total disability and work disability benefits for an injury that
occurred when she caught a falling resident at work. Atwood Good Samaritan Center
(Good Samaritan) and Sentry Mutual Insurance Company cross-appeal the Board's award
of future medical treatment for her permanent partial disability. Because we find
substantial competent evidence supports the Board's decisions, we affirm its findings.


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FACTS

Stark worked as a certified nursing assistant (CNA) for Good Samaritan. Her
duties included walking with residents with a gait belt, pushing residents in wheelchairs,
helping residents get dressed, assisting with the lifting or transferring of residents,
perineal care, dental care, helping with nutrition, passing towels, and mopping and
cleaning. She worked at least 32 hours a week. She had a 20-pound lifting restriction
because of a lower back condition.

Stark underwent a cervical fusion in June 2011 because of nonwork related
symptoms. She had been experiencing headaches, eye problems, and numbness in her
arms and other extremities. An MRI showed herniated discs at four different points in her
neck and an annular tear. Dr. Badejo performed surgery on two of those points. Stark
returned to work after a couple of weeks, but there were significant restrictions on her
activities. She started doing only very light duty a few hours a day, but by September
2011, she returned to her regular hours. Stark could not to push, pull, or lift anything over
5 pounds. She was able to put towels on a cart and push them around, but she could not
push wheelchairs. She was going to physical therapy as part of her postoperative care.

On September 30, 2011, Good Samaritan was shorthanded and Stark was asked to
answer a call light. She walked into the resident's room and saw the resident start falling
backwards. Stark caught the resident so the resident did not fall. Stark yelled for help and
other staff came and took the resident. Stark felt numb all over, had spasms in her
shoulders and arms, and felt a stabbing pain. She said that she had never had muscle
spasms like that before. Stark went to the emergency room and was given two muscle
relaxers so an X-ray could be taken.

At a regular hearing before the administrative law judge (ALJ), Good Samaritan
stipulated that Stark got hurt at work but denied that any permanent injury resulted from
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that incident. Stark testified that, after the work incident, she had pain in areas that she
had not had pain in before—her arms, upper back, and shoulder area that was "totally
different than the surgery pain." She had muscle spasms and shooting pains that would go
down her back. She testified that she saw Dr. Badejo twice after her work incident and, in
November 2011, he released her from his care because the issues she was having were
not connected to the surgery he had performed. She continued physical therapy. She took
Flexeril, a muscle relaxant, and aspirin for the pain, and wore a TENS unit—an electrical
stimulation device used to strengthen muscle tissue and diminish pain.

A couple of days after the work injury, Stark returned to work as a CNA
performing very light tasks such as helping people eat and clerical work. Her hours were
gradually cut down. She was no longer able to assist residents with nutrition because of
the positions she would need to have her arms in and the length of time. In December
2012, she was moved to the activities department and was still working there at the time
of the regular hearing. In January 2014, she worked 5 hours, in February she worked 5
hours, and in March she worked 2 hours. She no longer received health benefits because
of the reduced hours she worked.

Stark testified that she has difficulty fixing her hair, making her bed, vacuuming,
sweeping, and pushing a grocery cart. She could only drive 30 minutes at a time. She also
had trouble lifting. Before the work incident, she was getting back to the point where she
could do those things again after her surgery, for the most part. She still had a lifting
restriction because of a lower back condition. Stark testified that she had trouble with any
activity involving her arms and shoulders, even resting her arm on a chair for a length of
time. She did not have those problems before the work incident. Stark had numbness in
both shoulders prior to the work incident which she believed was going away as a result
of the surgery. After the incident, she was in a lot of pain and experienced spasms in her
shoulders. She used a cane for walking.

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With regard to her mental health, Stark testified she was taking an antidepressant
prior to the work incident, since 2004 when her husband died. She received two or three
sessions of therapy in 2004. After the work incident, she felt new anger and frustration.
She had to rely on her daughter to drive her places. She felt guilty when she had to go to
a doctor's appointment. She lived in a rural area; it was 30 minutes to the next town. She
could not garden anymore. She was very limited in what she could do and enjoy.

Dr. Pedro Murati evaluated Stark in July 2012 at the request of Stark's attorney.
He diagnosed her with a preexisting cervical fusion, myofascial pain syndrome of both
shoulder girdles extending into the cervical and thoracic paraspinals, and bilateral
shoulder sprains. He testified that the diagnoses, except for the neck fusion, were a
"direct result" of the work-related injury. As a result of the work injury, the doctor found
she sustained a sprain to her neck and upper back, each a 5% impairment, for a total
combination of 10% whole person impairment. Dr. Murati testified that Stark was
"essentially and realistically unemployable." He recommended that she apply for Social
Security disability. He recommended work restrictions because of a combination of both
her work injury and her preexisting cervical fusion. He recommended no climbing
ladders, no crawling, no heavy grasping, no above chest-level/shoulder-level work, and
no lifting/carrying or pushing/pulling over 10 pounds.

Dr. Robert Barnett, a clinical psychologist, performed a psychological evaluation
of Stark in November 2013 at the request of Stark's attorney. He diagnosed her with
moderate dysthymic disorder (a form of depression) and mild anxiety disorder. He
believed the causes were her injury, loss of employment, and loss of function. He
assessed a moderate, 30% impairment using the American Medical Association Guides to
the Evaluation of Permanent Impairment (2d ed. 1994) (AMA Guides). Dr. Barnett
admitted that the later editions of the AMA Guides did not include impairment ratings for
mental health disorders because the AMA decided there were no precise measures of
impairment for mental disorders and the impairment ratings were removed from the
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AMA Guides. He suggested that Stark seek treatment from a psychiatrist and supportive
therapy from a mental health counselor, licensed psychologist, or licensed clinical social
worker, stating that there was room for improvement.

Dr. Preston Koprivica examined Stark in January 2014 at the request of Stark's
attorney. He testified that even though Stark had a prior impairment in the cervical
region, her work accident was the "direct, proximate, and prevailing factor" in the new
injury to the cervical regional. He characterized the new injury as "a chronic
cervicothoracic strain or sprain injury or soft tissue injury with the development of
regional myofascial pain in the cervicothoracic region." He testified that her shoulder
girdle pain was a secondary manifestation of the myofascial pain. The MRI of her
shoulders showed tendinitis but no rotator cuff tear.

Dr. Koprivica initially thought there could be some psychological contribution to
the presentation of physical impairment and wanted validation from a mental health
expert. Assuming her presentation was validated, then she was limited from activities
above chest level and limited to sedentary below chest level physical activities. He
testified that assuming validation, she was essentially totally disabled and could not
sustain work. Dr. Koprivica reviewed Dr. Barnett's mental health evaluation and
determined that it did validate Stark's physical presentation—there was no evidence of
malingering. He felt there was "significant impairment attributable to the September 30th,
2011, accident." With the validation from Dr. Barnett, Dr. Koprivica opined that Stark
was "permanently totally disabled based on the impairment following the September 30,
2011, injury."

Dr. Koprivica testified that, based on the work injury in isolation, Stark had a 5%
whole person impairment. In addition, she had a 25% whole person impairment
attributable to her prior fusion. Taking into account Dr. Barnett's finding of a 30%
psychological impairment, Dr. Koprivica testified that Stark had a 35% whole person
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impairment attributable to the work injury. He found her permanently totally disabled
based on the work injury. Dr. Koprivica testified that he relied on the truthfulness of
Stark's explanations for how her pain was different after the work injury than before—
more widespread pain, new pain, and new spasms as a result of the work incident. The
spasms were documented objectively. He testified she could only do 1 of the 13 tasks on
her task list, a 92% task loss. The work restrictions were based on both her preexisting
fusion and the work injury. Dr. Koprivica also testified that Stark would benefit from
future pain management because of her work injury.

Dr. Barnett performed a wage and task loss assessment of Stark in February 2014.
Dr. Barnett testified:

"Based on her age, where she's living, her physical restrictions, it's hard for me to
imagine how she could be employed at all. I think probably—this is just speculation, but
I think probably they're trying to be nice to her at the Good Samaritan Home and give her
something that she can do."

Dr. Steven Hendler performed a physical evaluation of Stark at the request of
Good Samaritan. He testified that Stark had degenerative disc disease of the cervical
spine that predated the work injury and pain associated with a general medical condition
and psychological factors, such as depression, both prior to and after the work incident.
His findings also included the following: Stark sustained a left trapezial strain injury at
work on September 30, 2011; she was having symptoms in the left trapezius prior to
September 30; and she sustained a temporary aggravation of her preexisting injury due to
the work incident. Dr. Hendler testified that the work injury was not the prevailing factor
causing any of her medical injuries. He further testified that she sustained no permanent
impairment as a result of the accident at work. "The fact that the symptoms were present
before the second event indicates in this case it's much more likely to have come from the
postoperative state following her surgery as opposed to the work injury." A decreased
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range of motion is "much more common following cervical fusion than it is following a
trapezial strain." He testified her increase in symptoms over time from an injury that
would not be expected to produce them and her history of depression suggested
somatization. He would place her on no work restrictions because of the work injury
alone.

Dr. Hendler concluded that her strain injury that occurred at work on September
30, 2011, was fully treated by mid-November 2011 based on Dr. Badejo's notes. But, Dr.
Hendler did not have Dr. Badejo's reports from March 2012 or December 2013. Stark's
physical therapy report from October 2011 stated that her pain was a 1 or 2 out of 10. Dr.
Hendler did not review Stark's October 2013 cervical spine MRI, but he reviewed Dr.
Koprivica's report that mentioned it. Regardless, he indicated he would not be able to tell
from the MRI if any of changes were solely the result of her work injury.

Dr. Patrick Hughes, a psychiatrist, evaluated Stark in April 2014 at Good
Samaritan's request. He testified that Stark "did not report any meaningful psychiatric
distress at the time I evaluated her and she certainly didn't display any. She was perfectly
normal in all aspects of her interactions with me." Dr. Hughes believed Stark did not
sustain any psychological or psychiatric injury as a result of her work injury. Dr. Hughes
testified Stark did not have any ongoing psychiatric disability, permanent or otherwise.
He felt she needed no psychiatric treatment. "Stark simply reports the typical, predictable,
and normal human responses of frustration and occasional anger that most humans with
chronic physical pain experience, as well as the understandable normal worries about her
financial state, given her limited employment status currently."

Dr. Hughes also testified that he reviewed Dr. Barnett's report and did not find
anything in it that would medically support his diagnoses. He testified that there was no
medical literature or evidence to support a late diagnosis of dysthymic disorder. That
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diagnosis was based on lifelong chronic depression symptoms beginning in early
adulthood at the latest.

Terry Cordray, a vocational rehabilitation counselor, conducted a vocational
interview of Stark in April 2014 at Good Samaritan's request. He testified that Stark had
not sustained any wage loss after her work injury. Based on Dr. Koprivica's physical
restrictions, she would not be able to return to her job as a CNA where she earned
$9/hour, but she could return to a prior job as a communications dispatcher for Rawlins
County earning $10.50/hour. He stated that she also had the education and skill level to
do other office clerical jobs with similar wages in her home area because she had an
associate's degree, previous office clerical experience, and computer skills. "She's not
only employable, she's placeable." Cordray did not, however, do a job search in the area.
He did not believe Stark's age (65) would impede her ability to find employment.
Cordray did acknowledge that Stark was currently working for Good Samaritan for 5
hours a month at $9/hour. He testified that was not substantial gainful employment.

The ALJ found Stark suffered no permanent impairment as a result of her injury
on September 30, 2011. The ALJ stated:

"The claimant admitted that prior to her neck surgery, she had some problems with her
upper extremities. The surgery helped with her complaints but didn't totally resolve them.
Dr. Hendler conducted the most recent physical examination. He determined that the
claimant did not have any medical injury that the work accident was the prevailing factor
and that she didn't have any permanent impairment as a result of the work accident. He
stated that the claimant's symptoms were present before her work accident and it is much
more likely to have come from the postoperative state. That the claimant is someone who
is potentially at increased likelihood of have ongoing subjective symptomatology. He
found that the claimant's strain injury was fully address[ed] and treated by mid November
of 2011 based on the claimant seeing Dr. Badejo on November 18th and Dr. Badejo
noting that there was no tenderness on palpating cervical and trapezius muscles. Any
psychological conditions or impairments predated the claimant's work accident and she
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didn't suffer any permanent functional disability as a result of that accident. After review
of all the evidence presented, it is found that the claimant did not suffer any permanent
impairment and she is not permanently totally disabled as a result of her work injury."

The ALJ also denied Stark's request for future medical treatment.

Upon review, the Board modified the ALJ's award. The Board adopted Dr.
Koprivica's finding that Stark had a 5% function impairment on account of her September
30, 2011, injury at work. The Board found, though, that Stark did not have any permanent
impairment because of a traumatic neurosis.

The Board further found that Stark was not entitled to work disability because she
did not prove "at least a 10% whole body functional impairment caused solely by her
work injury, as required by K.S.A. 2011 Supp. 44-510e(a)(2)(C)(i). Additionally,
claimant did not prove what task loss her work injury caused, as opposed to task
performing ability she lost due to her prior neck surgery." The Board found that the bulk
of Stark's work restrictions were due to her fusion and not to her strain.

The Board found Stark was not permanently and totally disabled. The order stated:
"While she works about five hours per month, which is not substantial and gainful
employment, such fact is not dispositive in proving she is unable to engage in substantial
and gainful employment on account of her injury." The Board concluded Stark proved
entitlement to permanent partial disability benefits based on a 5% impairment of function
and to future medical treatment. But, she was not entitled to work disability or benefits
based on permanent total disability.

One Board member dissented, finding Stark permanently and totally disabled. The
Board member opined that Stark's reduction in work hours "only occurred after and
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because of her work injury . . . ." The Board member also found that Stark's age would
hamper her ability to find work within her restrictions around the Atwood labor market.

Stark timely appealed the Board's impairment rating and its denial of her disability
claims. Good Samaritan cross-appealed the Board's award of coverage for future medical
treatment.

ANALYSIS

As her primary complaint on appeal, Stark contends that overwhelming evidence
supports a finding that she is permanently and totally disabled rather than permanently
and partially disabled.

An appellate court reviews a challenge to the Board's factual findings in light of
the record as a whole to determine whether the findings are supported by the appropriate
standard of proof by substantial evidence. See K.S.A. 2015 Supp. 77-621(c)(7). This
requires the appellate court to (1) review evidence both supporting and contradicting the
agency's findings; (2) examine the presiding officer's credibility determination, if any;
and (3) review the agency's explanation as to why the evidence supports its findings. The
court does not reweigh evidence or engage in de novo review. K.S.A. 2015 Supp. 77-
621(d); Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014).
"Substantial evidence" refers to 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. Ward v. Allen County Hospital,
50 Kan. App. 2d 280, 285, 324 P.3d 1122 (2014).

A permanent total disability exists "when the employee, on account of the injury,
has been rendered completely and permanently incapable of engaging in any type of
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substantial and gainful employment. Expert evidence shall be required to prove
permanent total disability." K.S.A. 2011 Supp. 44-510c(a)(2).

Stark first contends that the Board failed to consider the totality of the
circumstances as required by Wardlow v. ANR Freight Systems, 19 Kan. App. 2d 110,
114, 872 P.2d 299 (1993). The Wardlow court found there was substantial evidence to
support a finding that a claimant was permanently and totally disabled based on the
totality of the circumstances including the claimant's serious and permanent injuries,
experts' opinions, the limited physical chores the claimant could perform, the claimant's
age, the claimant's lack of training, the claimant's driving and transportation problems,
the claimant's past history of physical labor jobs, the claimant's constant pain, and the
claimant constantly having to change body positions. 19 Kan. App. 2d at 114-15.
Evidence that the claimant could perform part-time, sedentary-type work did not
invalidate the factual determination that he was permanently and totally disabled. 19 Kan.
App. 2d at 115.

Good Samaritan contends that the analysis of Wardlow no longer applies, citing
strict constructionism and Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214
P.3d 676 (2009). The Bergstrom court did not discuss the holding of Wardlow. In
Bergstrom, the Supreme Court disapproved of prior cases that imposed a requirement that
claimants make a good-faith effort to seek out and accept alternate employment in order
to claim work disability. 289 Kan. at 607-10. The court stated the prior cases "were
decided contrary to the principle that an appellate court must give effect only to express
statutory language, rather than speculating what the law should or should not be, and that
we will not add something to a statute not readily found in it." 289 Kan. at 610.

The Wardlow court held:

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"Our Supreme Court has stated that 'when a workers' compensation statute is
subject to more than one interpretation, it must be construed in favor of the worker if
such construction is compatible with legislative intent.' [Citations omitted.] The trial
court's finding that Wardlow is permanently and totally disabled because he is essentially
and realistically unemployable is compatible with legislative intent." 19 Kan. App. 2d at
113.

In Lyons v. IBP, Inc., 33 Kan. App. 2d 369, 376-78, 102 P.3d 1169 (2004), this court held
that the ultimate holding in Wardlow did not depend on application of a claimant-
favorable construction rule. The Wardlow court held that whether a claimant is
permanently and totally disabled is a factual finding. Lyons, 33 Kan. App. 2d at 377.
"'Wardlow still provides precedential guidance regarding what factors should be
considered in the factual determination of what constitutes permanent and total
disability.'" Lyons, 33 Kan. App. 2d at 378. Our court continues to cite Wardlow
favorably. See, e.g., Huffman v. DeElliotte Co., No. 112,759, 2015 WL 3875402, at *3
(Kan. App. 2015) (unpublished opinion).

Stark contends the Board ignored several factors that support a finding of
permanent total disability: her age, where she lives, physical restrictions, inability to
perform basic household chores, inability to drive longer than 30 minutes to travel
outside of the small town of Atwood, pain that she did not suffer prior to the work
accident, including pain while resting her arm on a chair for any length of time, and
psychological condition.

The Board did not specifically analyze each Wardlow factor in its order. But, the
Board did state that it was "keenly aware of Wardlow, and the necessity of considering all
factors when determining if claimant is permanently and totally disabled."

Stark's age and small town location are certainly not favorable for finding a job.
But, the Board cited the testimony of the vocational rehabilitation counselor. The Board
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stated: "Mr. Cordray opined claimant was employable and placeable in the open labor
market." Cordray testified that, although Stark could not return to her job as a CNA based
on the physical restrictions set by Dr. Koprivica, he believed she could return to a
previous job as a communications dispatcher for Rawlins County. He testified that he
believed she was employable despite her age and location because she had an associate's
degree, computer skills, previous clerical skills, and a tax preparation background that
made her more qualified than other applicants.

This court cannot reweigh the evidence, but we must consider the evidence
contradicting the Board's findings. Williams, 299 Kan. at 795. Dr. Koprivica testified that
Stark would not be able to perform the tasks necessary for a dispatcher. He found her
permanently totally disabled. Dr. Murati also testified that Stark was "essentially and
realistically unemployable." Dr. Barnett testified that "[b]ased on her age, where she's
living, her physical restrictions, it's hard for me to imagine how she could be employed at
all." The Board's reliance on Cordray's opinion in the face of the others is questionable,
but it appears that the Board's denial of permanent total disability was based primarily on
Stark's preexisting condition.

With regard to Stark's physical restrictions and pain, the Board noted that neither
of Stark's hired experts could "parse out what restrictions claimant needed for her
September 30, 2011 cervicothoracic strain versus the cervical spine fusion she had in
June 2011." The Board found that Stark did not prove the limitation of her arms and the
positions needed to assume to care for residents was the result of work injury, stating that
"it is much more likely the bulk of claimant's restrictions and the reason for her reduction
of hours was due to her spinal fusion and not to her cervicothoracic strain."

The Board also noted that "[w]hile she works about five hours per month, which is
not substantial and gainful employment, such fact is not dispositive in proving she is
unable to engage in substantial and gainful employment on account of her injury. Rather,
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Dr. Hendler indicated claimant required no work restrictions on account of her work
injury . . . ." (Emphasis added.)

The Wardlow court did not say how to analyze a preexisting injury when
determining whether a claimant is permanently totally disabled because the claimant in
Wardlow did not have a preexisting injury. 19 Kan. App. 2d 110. To determine whether
the claimant was "'incapable of engaging in any type of substantial and gainful
employment,'" the court used a take-the-claimant-as-he-comes kind of approach with
respect to the claimant's age, education, training, and prior work experience. See 19 Kan.
App. 2d at 114-15. A panel of this court noted that "[e]vidence a claimant is capable of
engaging in employment would prove the claimant's actual capability, not a hypothetical
capability which might exist under different circumstances of health, age, education, or
other factors." Perkins v. Prestige Cabinets, No. 107,233, 2013 WL 646486, at *4 (Kan.
App.) (unpublished opinion), rev. denied 297 Kan. 1246 (2013). In Perkins, the
claimant's preexisting head injury from a traffic accident was considered together with
his work injury in determining the claimant was permanently and totally disabled. But,
the court noted that the claimant was able to work with her head injury before the work-
related injury. 2013 WL 646486, at *5.

The statute requires that the claimant's permanent incapability to work must be "on
account of the injury." A "[p]ermanent total disability exists when the employee, on
account of the injury, has been rendered completely and permanently incapable of
engaging in any type of substantial and gainful employment." (Emphasis added.) K.S.A.
2011 Supp. 44-510c(a)(2). The parties cite no cases interpreting "on account of the
injury" in this statute. K.S.A. 2011 Supp. 44-501(e) states that an award of compensation
for permanent total disability shall be reduced by the amount of functional impairment
determined to be preexisting.

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This court's decision in Le v. Armour Eckrich Meats, 52 Kan. App. 2d 189, 200,
364 P.3d 571 (2015), suggests the inquiry is whether the work injury was the prevailing
factor causing the claimant's resulting disability or impairment. A work accident must be
the "prevailing factor causing the injury, medical condition, and resulting disability or
impairment." K.S.A. 2011 Supp. 44-508(f)(2)(B)(ii). "'Prevailing' . . . means 'the primary
factor, in relation to any other factor.'" K.S.A. 2011 Supp. 44-508(g). "An injury is not
compensable solely because it aggravates, accelerates or exacerbates a preexisting
condition or renders a preexisting condition symptomatic." (Emphasis added.) K.S.A.
2011 Supp. 44-508(f)(2). In Le, this court reversed the Board's decision denying a
claimant permanent total disability benefits. The claimant suffered a vertebral fracture in
a work accident. The Board found the claimant's preexisting osteoporosis was the
prevailing factor in the claimant's inability to return to work. The Board limited her
award to permanent partial general disability. The court reversed because a review of the
record as a whole revealed that, prior to the work accident, the claimant did not suffer
chronic pain that prevented her from working. Thus the court remanded for the Board to
reinstate the ALJ's award of permanent total disability benefits. 52 Kan. App. 2d at 199-
200.

The claimant in Le was able to work full time without limitations despite her
osteoporosis before the accident. Here, there was substantial evidence to support the
Board's finding that "the bulk of" Stark's physical limitations were due to her fusion and
not the work injury. Neither Dr. Murati nor Dr. Koprivica could distinguish which work
restrictions were recommended based on Stark's cervical fusion versus her work injury.
Dr. Koprivica did opine that Stark was "permanently totally disabled based on the
impairment following the September 30, 2011, injury." Dr. Hendler testified that her
symptoms were "much more likely" to have come from her postoperative state following
her cervical fusion than her work injury. He testified that he would place her on no work
restrictions "with respect to the injuries sustained on September 30, 2011." He
characterized her work injury as a temporary aggravation of her preexisting injury.
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Stark contends that even though the experts could not testify which work
restrictions were caused by her work accident, it was clear that her pain and ability to
carry out normal functions changed drastically after the accident because she had
returned to 32-hour work weeks before the accident and her pain was new and different
afterwards. This may be a case of unfortunate timing for Stark. If she had caught a falling
resident years after her surgery, maybe the outcome would have been different. But she
had just returned to working her regular hours the same month the accident occurred.
And, she was still limited in the activities she could perform from her neck surgery. She
could not push, pull, or lift anything over 5 pounds. She did experience new spasms after
the accident. But, expert evidence is required to prove permanent total disability. K.S.A.
2011 Supp. 44-510c(a)(2). Stark's experts could not testify to what degree her inability to
return to work was caused by the accident.

The Board further determined Stark had no permanent impairment of her mental
health. The Board stated:

"Regarding traumatic neurosis, claimant testified things are 'really tough' and the
evidence shows she is sad, angry and frustrated as a result of her September 30, 2011
accidental injury. The mental health experts testified claimant's primary care physician
increased her dose of citalopram following her accidental injury. Dr. Barnett opined she
had dysthymic disorder and a resulting 30% whole person impairment. Dr. Hughes
observed no meaningful psychiatric distress. He noted she behaved perfectly normal in
their interaction. Dr. Hughes stated claimant had no rateable psychiatric injury or
disability.
"The burden of proof rests with claimant. Claimant was prescribed a higher dose
of citalopram some time after her accidental injury, but there is no showing she ever
requested or was treated for a work injury-related mental disorder, such as having
counseling, and it does not appear she was evaluated by any mental health experts except
those retained by the parties. We do not even know if the increase in citalopram was
occasioned by claimant's accidental injury. Claimant's testimony, the facts of the case,
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and the differing mental health expert opinions do not convince the Board that claimant
proved she has permanent impairment as a result of a traumatic neurosis."

The Board's determination that Stark had no permanent mental health impairment
was supported by substantial competent evidence. Dr. Hughes testified that Stark does
not have any ongoing psychiatric disability, permanent or otherwise. "Stark simply
reports the typical, predictable, and normal human responses of frustration and occasional
anger that most humans with chronic physical pain experience, as well as the
understandable normal worries about her financial state, given her limited employment
status currently."

Stark next contends that the Board's shifting reliance on Dr. Hendler's opinion
undermines its decision. With regard to Stark's functional impairment, the Board stated:

"Both physicians hired by claimant found either cervicothoracic spasms or
trigger points, whereas Dr. Hendler did not. The Board places no great significance in the
fact that Dr. Hendler was the last physician to evaluate claimant. Of these opinions, the
Board adopts Dr. Koprivica's 5% impairment rating as most accurately reflecting
claimant's functional impairment on account of her September 30, 2011 accidental injury.
Dr. Koprivica noted claimant's 5% rating was above and beyond the impairment
associated with her cervical spine fusion."

With regard to whether Stark was permanently and totally disabled, the Board noted that
Dr. Koprivica "could not parse out what restrictions claimant needed for her September
30, 2011 cervicothoracic strain versus the cervical spine fusion she had in June 2011."
The Board further stated "Dr. Hendler indicated claimant required no work restrictions on
account of her work injury . . . ."

The Board's decision is consistent. The Board concluded that Stark did not prove
she was unable to engage in substantial and gainful employment on account of her work
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injury. The only expert that could parse out which restrictions were on account of her
work injury testified that none of the restrictions were on account of work injury.

Stark finally contends that the Board's reliance on Cordray's opinion regarding
Stark's capability to earn a wage contradicts Kansas law. K.S.A. 2011 Supp. 44-
510e(a)(2)(E) defines "wage loss" and states: "Where the employee is engaged in post-
injury employment for wages, there shall be a rebuttable presumption that the average
weekly wage an injured worker is actually earning constitutes the post-injury average
weekly wage that the employee is capable of earning. The presumption may be overcome
by competent evidence." Good Samaritan contends that the definition of wage loss for
work disability calculations has nothing to do with the determination of whether a
claimant has a permanent total disability.

Good Samaritan is correct that the presumption in K.S.A. 2011 Supp. 44-
510e(a)(2)(E) is not part of the determination of whether a claimant has a permanent total
disability under K.S.A. 2011 Supp. 44-510c(a)(2) under the plain language of the statute.
Under K.S.A. 2011 Supp. 44-510e(a)(2), an injured employee's "wage loss" is used to
determine the amount of the work disability award for permanent partial general
disabilities. The greater the wage loss, the larger the award. See Locke v. Barnds Brothers
Inc., No. 112,029, 2015 WL 2137207, at *2 (Kan. App. 2015) (unpublished opinion).

In her second major area of complaint with the Board's findings, Stark contends
that she was eligible to receive work disability benefits under K.S.A. 2011 Supp. 44-
510e(a)(2)(C)(i)-(ii) and therefore the Board erred in denying them.

Kansas law provides:

"(C) An employee may be eligible to receive permanent partial general disability
compensation in excess of the percentage of functional impairment ('work disability') if:
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(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." K.S.A. 2011 Supp. 44-
510e(a)(2)(C)(i)-(ii).

The Board found Stark had a 5% functional impairment on account of her work
injury and a 25% preexisting functional impairment, for an overall functional impairment
of 30%. The Board stated:

"Insofar as claimant had a 25% preexisting impairment from her neck surgery,
she is not entitled to a work disability because she did not prove at least a 10% whole
body functional impairment caused solely by her work injury, as required by K.S.A. 2011
Supp. 44-510e(a)(2)(C)(i). Additionally, claimant did not prove what task loss her work
injury caused, as opposed to task performing ability she lost due to her prior neck
surgery."

The Board erred in stating that Stark needed to show her impairment exceed 10% solely
based on her work injury. The plain language of the statute says the "overall functional
impairment" must be equal to or exceed 10% and applies "in cases where there is a
preexisting functional impairment." K.S.A. 2011 Supp. 44-510e(a)(2)(C)(i). Thus Stark
surpassed the 10% functional impairment required by subsection (i).

However, subsection (ii) requires that the employee sustained a postinjury wage
loss "at least 10% which is directly attributable to the work injury and not to other causes
or factors." K.S.A. 2011 Supp. 44-510e(a)(2)(C)(ii). The Board found that Stark failed to
prove what task loss was caused by her work injury. Indeed, the testimony did not
quantify a percentage of wage loss that was "directly attributable" to the work injury and
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not to Stark's neck fusion. Thus, the Board did not err by denying Stark work disability
benefits.

In short, we believe the Board's findings on all matters challenged by Stark are
supported in the record by substantial competent evidence and ultimately reflect a proper
interpretation of the law. Because of this, we are duty bound to uphold its findings.

One last area pointed to by Stark requires discussion. Immediately prior to oral
arguments in this case, Stark's counsel submitted a Notice of Additional Authority
pursuant to Supreme Court Rule 6.09(b)(1) (2015 Kan. Ct. R. Annot. 53). Stark contends
that House Bill 2617, passed by the Kansas Legislature during its 2016 session, was a
direct response to, and presumably corrective legislation for, the decision of the Board in
this case. But Stark's counsel is incorrect. The changes proposed to K.S.A. 2015 Supp.
44-510e were removed from the bill by the House-Senate conference committee and are
not included in the final enrolled copy of House Bill 2617 signed into law by the
governor on May 17, 2016. See L. 2016, ch. 98, secs. 1-6. Therefore, this argument lacks
merit.

Good Samaritan contends on cross-appeal that the Board did not make the
necessary finding to support its award of future medical treatment. Under K.S.A. 2011
Supp. 44-525(a), "[n]o award shall include the right to future medical treatment, unless it
is proved by the claimant that it is more probable than not that future medical treatment,
as defined in subsection (e) of K.S.A. 44-510h, and amendments thereto, will be required
as a result of the work-related injury."

The Board concluded that Stark was entitled to future medical treatment for her
5% impairment of function. The Board did not discuss future medical treatment in its
analysis. But, the Board did state in its findings of fact that "[a]s far as future medical
treatment, Dr. Koprivica believed claimant would benefit from future pain management."
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In his report, Dr. Koprivica stated that "[i]t is more probably true than not that Ms. Stark
is going to have current and ongoing life-long treatment needs." Therefore, there was
substantial competent evidence to support the award of future medical treatment.

Affirmed.