Wolters v. City of St. Francis

1

NOT DESIGNATED FOR PUBLICATION

No. 112,947

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

PHILIP J. WOLTERS,
Appellant,

v.

CITY OF ST. FRANCIS

and

KANSAS MUNICIPAL INSURANCE TRUST,
Appellees.


MEMORANDUM OPINION

Appeal from Workers Compensation Board. Opinion filed February 12, 2016. Affirmed.

Shirla R. McQueen, of Sharp McQueen, P.A., of Liberal, for appellant.

William L. Townsely and Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of
Wichita, for appellees.

Before BRUNS, P.J., MCANANY, J., and JOHNSON, S.J.

Per Curiam: Philip J. Wolters appeals the decision of the Workers Compensation
Board (Board) modifying the award entered by the Administrative Law Judge (ALJ). In
the present appeal, Wolters contends that the Board's decision was based on errors of law
and on factual findings that were not supported by substantial competent evidence.
Because we find no legal error and find that there is substantial evidence in the record on
appeal to support the Board's findings of fact, we affirm.
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FACTS

Wolters began working as a police officer for the City of St. Francis on December
27, 2007. In the early morning hours of February 2, 2008, Wolters—while acting in the
scope of his employment—went to check pump gages at the city water plant.
Unfortunately, as Wolters was exiting the building after checking the gages, he slipped
and fell on ice that had accumulated on the sidewalk. When he fell, Wolters twisted his
right ankle and landed on his hands and knees. Because it was near the end of Wolters'
shift, he went to back to his office, turned in his activity log sheets, and went home.

When Wolters woke up later that morning, his right ankle was swollen. Moreover,
he had streaks from his ankle to his toes. He called the Police Chief Deb Farland, and she
took him to the Cheyenne County Clinic. At the clinic, Wolters saw a physician assistant,
Tyler Raile, and had x-rays taken of his right ankle. In addition, a splint was placed on his
ankle. According to Wolters, Raile asked him what his most debilitating injury was and
he told him that it was his right ankle. Raile's notes, however, do not mention that
Wolters made any other complaints. Specifically, there is no mention of a left knee
injury. Subsequently, during the workers compensation proceeding, Raile would testify
that he did not restrict Wolters from reporting all of his complaints, and—if Wolters had
made him aware of other injuries—Raile would have recorded them in his notes.

On February 3, 2008, Wolters completed an employer's report of accident. In the
report, Wolters stated that he twisted his ankle and fell on ice at 2:16 a.m. In the section
of the report asking him to describe in detail the nature and extent of his injury and the
part of body involved, Wolters wrote "'sprain to ankle.'" Later, during the workers
compensation proceedings, Wolters would testify that he listed his ankle as his only
injury upon Chief Farland's suggestion that he do so.

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As a result of the slip and fall, Wolters was off work for 3 days. According to
Wolters, he was told there was no option for light duty and that he needed to return to
work. About a week after the fall, Wolters was given a release to go back to full duty.
Although Wolters' right ankle continued to be painful, he continued performing his usual
job duties.

At some point that is unclear from the record, Wolters' left knee began hurting. He
evidently told Chief Farland about the pain. According to Wolters, Chief Farland once
again told him that there was no light duty and that he would have to keep working in
order to be paid.

Although there is no record of the appointment, Wolters claims that he saw Dr.
Mary Beth Miller at the Cheyenne County Clinic for blood pressure and neck pain issues
in March 2008. Furthermore, Wolters claims that he mentioned to Dr. Miller that he had
left knee pain and was advised to take ibuprofen.

There is a record of Wolters' visit to Dr. Miller on October 3, 2008, for issues with
his left knee. Dr. Miller would subsequently testify in the workers compensation
proceedings that this was the first time she saw Wolters as a patient. According to her
notes, Dr. Miller saw Wolters for a blood pressure check, for a cough as well as for ankle,
knee, neck, and back pain. Specifically, Dr. Miller's records indicate that Wolters
reported that he twisted his right ankle in February 2008 and that he had had a cough for
6 months. In addition, her notes reflect that he stated that his left knee had been giving
him trouble for the previous 3 weeks. In particular, he said that his left knee was popping
and that it was difficult for him to go up and down stairs. Although she saw that he had
full range of motion with extension and flexion, no gross edema or evidence of acute
injury, and no pain upon palpitation, Dr. Miller referred Wolters to Dr. Mekki M. Saba,
an orthopedic surgeon in Colby.

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Wolters saw Dr. Saba on October 6, 2008. Notes from Dr. Saba's consultation
reflect:

"'The patient stated to me after he had the initial injury in February and had
treatment for the right ankle with the brace, he did not feel any problem with the left
knee. He continued to work with the left knee until 6-08 and he felt pain on the outer side
of the left knee on bending the knee, especially on going up and down the stairs.

. . . .

"'Second, he developed pain on the outer aspect of the left knee in June which is
almost five months after the initial injury. It could well be related to the original injury.
Clinically, we suspect there is a tear of the anterior horn of the latera[l] meniscus.'"

In June 2009, Wolters evidently saw Dr. Daniel Pflieger in Greeley, Colorado,
because his knee "went out" while he was at work. On July 20, 2009, Wolters saw Dr.
Miller again because he had reinjured his right ankle. Dr. Miller's notes do not mention
Wolters' left knee or back on that visit. However, she saw him for left knee and right
ankle pain on August 26, 2009. According to Dr. Miller's notes, Wolters told her that he
fell on February 2, 2008, onto both hands and knees and that at the time of his fall, his
ankle hurt the most. He stated that his knee started hurting in March 2008. Later, at her
deposition in the workers compensation proceedings, Dr. Miller stated it was impossible
for her to say whether Wolters' left knee injury occurred during his initial fall or at a
different time.

Wolters stated that in September 2009, at the referral of Dr. Pflieger, he evidently
saw a Dr. Sanderford, another orthopedic surgeon. Dr. Sanderford reviewed Wolters'
MRI and concluded that he had no cartilage in an area of his left knee. According to
Wolters, Dr. Sanderford recommended that he take time off work and gave him a Synvisc
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injection. Dr. Sanderford also x-rayed Wolters' right ankle, which Wolters stated was still
hurting.

In October 2009, Dr. Sanderford performed surgery on Wolters' left knee. Before
this surgery, Wolters continued performing his regular job duties, with the exception of
the 3 days following the fall in February 2008. He apparently went back to work at some
point until he had another surgery to replace his left kneecap and the end of his fibula on
August 18, 2010. During this surgery, Wolters underwent a femoral nerve block that
ended up damaging his femoral nerve. According to Wolters, the nerve damage caused
weakness in his left quadriceps as well as pain in his left leg.

Wolters never returned to work as a police officer after this second surgery.
Evidently, he was unable to perform the physical requirements of work and was
subsequently terminated. At some point following his second surgery, Wolters also began
experiencing back pain that progressively worsened. It appears that he later worked at
Cabela's in Nebraska for about 2 months in the summer of 2013. However, due to pain,
he voluntarily terminated his employment.

On March 9, 2011, Wolters filed an application for hearing with the division of
workers compensation. In the application, he stated that he was injured as a result of a fall
in the course of employment. Specifically, he indicated that he suffered injuries to his
"left lower extremity, right ankle and low back." On June 6, 2011, Wolters was evaluated
at the request of his attorney by Dr. Gareth E. Shemesh in Denver, Colorado. Wolters
told Dr. Shemesh that when he fell on February 2, 2008, his right ankle gave out and he
landed on his left knee. Wolters stated he had "'immediate onset of pain, swelling, and
difficulty using his left knee.'"

Dr. Shemesh opined that Wolters had suffered a twisting/contusion injury to his
left knee as a result of the fall, with subsequent development of traumatic degenerative
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arthritis of the left knee. Dr. Shemesh gave Wolters a 15% whole person functional
impairment rating but did not access any right ankle permanent functional impairment.
Dr. Shemesh also opined that within a reasonable degree of medical probability, Wolters'
left knee problems developed as a direct result of the fall on February 2, 2008.

On October 11, 2012, Wolters' deposition was taken. At that time, Wolters
testified that he still had numbness and loss of strength in his quadriceps as well as sharp
pain around his left knee joint. On a scale of 1-10, Wolters described his pain as a
constant 3. However, he testified that his pain escalated to a 10 when pressure was placed
on his knee. He stated that wearing pants made him feel like he had a sunburn. He also
testified that he had pain in both hips and a sharp pain at the belt level of his lower back.
In addition, he testified that his right ankle was better but that he still had intermittent
pain and weakness.

On September 16, 2011, the ALJ ordered an independent evaluation of Wolters to
be performed by Dr. Terrence Pratt. The evaluation was conducted on December 27,
2011. At the evaluation, Wolters told Dr. Pratt that after the slip and fall in February
2008, he had discomfort in his wrists, left knee, and right ankle. He also told Dr. Pratt
that he reported all his symptoms to a nurse practitioner but was told to concentrate on
the most significant area of involvement, which was in his right ankle. Dr. Pratt opined
that Wolters' right ankle and left knee injuries were a direct result of the fall, with the
femoral nerve problems being a complication arising from his treatment. According to
Dr. Pratt, Wolters had reached maximum medical improvement, had a 37% impairment
to the left lower extremity, and had a 15% whole person impairment. Moreover, in a
report dated January 11, 2012, Dr. Pratt rendered the opinion that Wolters had "left knee
involvement in relationship to the February 2008 event."

On October 12, 2012, an ALJ held a preliminary hearing, at which Wolters
testified in support of continued medical treatment. After the preliminary hearing, the
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ALJ ordered another independent medical examination to be performed by Dr. Timothy
J. Birney. Wolters was evaluated by Dr. Birney on November 12, 2012. In his report, Dr.
Birney stated that Wolters had reported to him an immediate onset of right ankle and left
knee pain after his fall on February 2, 2008. Further, in Dr. Birney's opinion, Wolters had
not yet reached maximum medical improvement. Instead, Dr. Birney believed that
additional evaluation was necessary and ordered an MRI.

Dr. Birney saw Wolters again on January 25, 2013. At that time, based on a
review of Wolters' MRI, Dr. Birney determined that Wolters had reached maximum
medical improvement. Dr. Birney believed that Wolters' chronic low back pain was the
result of a gait abnormality caused by a combination of an abnormal painful sensation in
the left thigh and ongoing left knee pain. Wolters told Dr. Birney that his low back pain
developed after the femoral nerve block. Dr. Birney testified that his opinion was based
on the subjective history related to him by Wolters—which included that he injured his
left knee on February 2, 2008, and that he had no history of preexisting back pain.

On June 7, 2013, the ALJ ordered another independent medical examination to be
conducted by Dr. Pratt. Based on his examination of Wolters on July 30, 2013. Dr. Pratt
opined that Wolters should avoid lifting more than 30 pounds as well as avoid pushing
and pulling more than 50 pounds. He further opined that Wolters should not perform
activities where he had to climb, squat, crawl, or run as well as prolonged standing or
walking or frequent bending or twisting.

In his report, Dr. Pratt stated:

"Permanent partial impairment in relationship to his lumbosacral involvement
with current discomfort and limited range of motion, utilizing Fourth Edition of the
Guides, he has DRE category II involvement utilizing page 3/102 and 5% impairment of
the whole person. There is no significant evidence of lumbosacral radiculopathy.
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"For his right ankle involvement, he does not have any significant findings with
0% permanency of the whole person. His left lower extremity involvement, knee and
peripheral nerve injury continues to result in 15% permanent partial impairment of the
whole person.

"Total permanency utilizing the Combined Values Chart 19% of the whole
person."

Once again, Dr. Pratt's opinions were based on his understanding that when
Wolters fell on February 2, 2008, he had immediate pain in his left knee. In fact, during
cross-examination at his deposition, Dr. Pratt recognized that his ability to conclude that
the left knee symptoms were related to the fall on February 2, 2008, would be impacted if
Wolters had not initially had knee symptoms and had not reported those symptoms
having begun until later in 2008. Dr. Pratt noted that his opinion on causation hinged on
Wolters' report that he injured his left knee on February 2, 2008. He also stated that his
opinions would be affected if Wolters had preexisting low back pain.

Dr. David Ebelke evaluated Wolters on July 29, 2013, at the City's request. Dr.
Ebelke is an orthopedic physician who only treats the spine. He noted that Wolters'
medical records showed that his first complaint of low back pain was in October 2008
and that Wolters had denied having any prior history of back problems. Dr. Ebelke did
not believe that Wolters' low back pain was work related, and he stated that there was no
medical evidence of a significant or serious back problem. He determined there was no
impairment rating for Wolters' back.

The ALJ held a regular hearing on March 7, 2014, at which Wolters once again
testified. At the hearing, the parties stipulated to the admission of medical records from
Dr. Pamela Guthrie and Dr. Hans Coester from 1999. The records revealed that Dr.
Guthrie saw Wolters on May 4, 1999, for complaints of having low back pain for
approximately the past 8 months. At that time, Wolters complained of having periods of
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severe pain causing him to not be able to straighten up, which lasted 15-30 minutes
before resolving. The record further reflected that Wolters had indicated that he had been
a bull rider as a youth and had the potential for multiple injuries. The remaining entries
on Dr. Guthrie's records and the record from Dr. Coester documented Wolters'
complaints of neck pain and problems with his upper spinal discs in July 1999.

On April 23, 2014, the ALJ filed a stipulated order, stating that the parties agreed
to extend Wolters' "terminal date" to May 27, 2014, and that they would pay Wolters
temporary total disability of $456.25 per week until the terminal date. The parties also
stipulated to how much Wolters had been paid in benefits and to how much he was
making.

On May 5, 2014, Wolters was evaluated by Dr. David Clymer at the City's request.
Wolters told Dr. Clymer that he fell on February 2, 2008, twisted his ankle, and landed on
his hands and knees. Moreover, he told Dr. Clymer that he remembered skinning his left
knee. According to Dr. Clymer, the history Wolters gave regarding his left knee injury
was significantly different that the version contained in Dr. Miller's records or in the
records of the physician's assistant who originally treated him. Dr. Clymer opined that
Wolters did not have a permanent right ankle impairment or a significant left knee injury
resulting from the fall in February 2008. Although Dr. Clymer reviewed an MRI from
October 2008 and agreed that there was some patellar tendinitis, he found the rest of the
findings to be normal. Specifically, he noted that he saw no bony fractures, meniscus
tears, cartilage tears, or ligament injuries. Ultimately, he opined that Wolters had a 25%
permanent functional impairment to the left lower extremity, which constituted a 10%
whole person functional impairment.

In a decision filed on June 12, 2014, the ALJ determined that Wolters sustained
personal injury by accident arising out of and in the course of his employment on
February 2, 2008. The ALJ further found that Wolters suffered permanent injury to his
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left knee and low back as a result of the fall. Accordingly, the ALJ awarded Wolters
41.98 weeks of temporary total disability compensation followed by 73.72 weeks of
permanent partial disability compensation for a 19% permanent partial impairment to the
body as a whole and subsequent periods of work disability ending with an 87.5% work
disability.

On June 19, 2014, the City and its insurance carrier filed a request for review by
the Board. The City filed its appellate brief on August 1, 2014, and Wolters stood on his
submission letter to the ALJ. Thereafter, on October 14, 2014, the Board heard oral
arguments and issued a comprehensive 14-page order on November 25, 2014.

In its order, the Board considered each of Wolters' claimed injuries to determine
whether he met his burden to establish his right to workers compensation. As to his right
ankle, the Board affirmed the ALJ's finding that Wolters suffered no permanent right
ankle injury. The Board, however, disagreed with the ALJ's finding that Wolters
sustained a work-related left knee injury. The Board found the testimony of the
physician's assistant who initially treated Wolters to be credible. Moreover, the Board
noted that Wolters listed only a right ankle injury on the report of accident.

The Board also noted that Wolters worked every day performing his regular job
duties without restrictions until he complained of left knee pain to Dr. Miller on October
3, 2008. Furthermore, it noted that Wolters had stated at that time that his left knee had
only been hurting for the last 3 weeks. The Board found that this evidence corroborated
the physician assistant's testimony that Wolters did not complain of a left knee injury on
his initial visit to the Cheyenne County Clinic following his fall. Moreover, the Board
found that Wolters had told Dr. Saba that after his initial injury in February 2008, he was
treated for his right ankle injury with a brace and that he did not have problems with his
left knee until 4 to 5 months after the accident. The Board also noted that Dr. Clymer
found only patellar tendinitis when reviewing Wolters' October 13, 2008, MRI.
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The Board determined that Dr. Shemesh, Dr. Clymer, and Dr. Pratt all based their
opinions on subjective medical histories given by Wolters that were different from the
history he had given following the fall in February 2008. In particular, the Board found
that Dr. Shemesh based his opinion on Wolters' report that he injured his left knee during
his initial fall, including an immediate onset of pain, swelling, and difficulty using his left
knee, which was different from Wolters' own testimony about his immediate injuries. The
Board also found that Dr. Clymer specifically testified that the history Wolters gave him
was different from the version in Dr. Miller's records. And although Dr. Clymer believed
that the problems in Wolters' left knee could have been caused by a traumatic injury, he
admitted that such problems were usually was caused by wear, tear, and degeneration.

In addition, the Board noted that Dr. Pratt testified that filling out an accident
report without mentioning a left knee injury was inconsistent with Wolters' history, and
Dr. Pratt's causation opinion hinged entirely on Wolters' report that he injured his left
knee on February 2, 2008. Finally, the Board found that the ALJ erroneously relied on
photographs showing injury and bruising to Wolters' left knee. The Board noted that only
one photograph showed any form of left knee injury—an abrasion—and it was not
relevant because it was taken on February 13, 2007.

The Board concluded that because Wolters' left knee injury was not work related,
his back injury—which allegedly resulted from an antalgic gait caused by problems with
his knee—was also not work related. The Board also relied on Dr. Ebelke's opinion that
Wolters had benign, non-work-related low back pain as well as the opinions of Drs.
Shemesh, Ebelke, and Clymer that Wolters had no permanent functional impairment of
his back. The Board also found Wolters' failure to report that he had previously sought
medical treatment for low back pain in 1999 to be significant.

The Board, therefore, held that: (1) Wolters did not sustain a permanent
functional impairment of his right ankle; (2) Wolters did not prove by a preponderance of
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the evidence that he sustained work-related left knee or low back injuries; and (3)
Wolters was not entitled to any temporary total disability benefits for the alleged left knee
and low back injuries. Accordingly, the Board modified the ALJ's award, finding Wolters
was entitled to payment of all authorized medical bills associated with his right ankle and
any future medical treatment for his right ankle upon application and approval by the
Director. The Board also awarded unauthorized medical up to $500 but found that
Wolters was not entitled to permanent partial disability or temporary total disability
payments for his left knee or low back.

Subsequently, Wolters timely filed a petition for review with this court.

ANALYSIS

Final orders of the Board are subject to review under the Kansas Judicial Review
Act (KJRA), K.S.A. 77-601 et seq. K.S.A. 2014 Supp. 44-556(a). The standard of
judicial review under the KJRA varies, depending upon the issue raised. See K.S.A. 2014
Supp. 77-621. Wolters raises two issues on appeal: (1) he argues that the Board
erroneously interpreted or applied the law; and (2) he argues that the Board's action was
based on a determination of fact that is unsupported by substantial competent evidence in
light of the record as a whole. See K.S.A. 2014 Supp. 77-621(c)(4) and (c)(7).

When an appellant alleges the Board erroneously applied the law, we exercise de
novo review. See Craig v. Val Energy, Inc., 47 Kan. App. 2d 164, 166, 274 P.3d 650
(2012), rev. denied 297 Kan. 1244 (2013); K.S.A. 2014 Supp. 77-621(c)(4) (stating that
appellate court has authority to grant relief if agency has erroneously interpreted or
applied the law). Additionally, we have unlimited review of issues involving the
interpretation of a statute. See Ft. Hays St. Univ. v. University Ch., Am. Ass'n. of Univ.
Profs., 290 Kan. 446, 457, 228 P.3d 403 (2010).

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In workers compensation cases, the statute in effect at the time of the claimant's
injury governs the rights and obligations of the parties. See Bryant v. Midwest Staff
Solutions, Inc., 292 Kan. 585, 588, 257 P.3d 255 (2011). Accordingly, we must apply the
statutes that were in effect on February 2, 2008. But the KJRA provisions in effect at the
time of the agency action control the standard of review, so we apply the provisions of
the KJRA in effect on November 25, 2014. K.S.A. 2014 Supp. 77-621(a)(2); Redd v.
Kansas Truck Center, 291 Kan. 176, 183, 239 P.3d 66 (2010).

Wolters' first argument is that the Board misinterpreted and/or misapplied K.S.A.
44-520 because the statute only requires an employee to give the employer notice of the
accident within 10 days; it does not require the employee to specify the injuries arising
out of that accident. As effective on February 2, 2008, K.S.A. 44-520 stated:

"[P]roceedings for compensation under the workers compensation act shall not be
maintainable unless notice of the accident, stating the time and place and particulars
thereof, and the name and address of the person injured, is given to the employer within
10 days after the date of the accident, except that actual knowledge of the accident by the
employer or the employer's duly authorized agent shall render the giving of such notice
unnecessary. The ten-day notice provided in this section shall not bar any proceeding for
compensation under the workers compensation act if the claimant shows that a failure to
notify under this section was due to just cause . . . ."

We find that Wolters' argument that the Board misapplied this statue to be
unpersuasive because the Board did not reject Wolters' claim for failure to provide notice
of the accident. Instead, the Board relied on the absence within the notice of any mention
of a left knee injury as one factor in weighing the conflicting evidence presented to it
regarding when this injury was actually suffered. Thus, the Board did not misinterpret or
misapply K.S.A. 44-520.

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Next, Wolters argues that the Board violated K.S.A. 44-557(b) by considering
Form A-1, Employer's Report of Accident. We find that this statute is not applicable to
this case, nor did the Board violate it. See Bearce v. United Methodist Homes, No.
97,879, 2007 WL 4105377 (Kan. App. 2007) (unpublished opinion) (finding K.S.A. 44-
557[b] inapplicable because the claimant did not die). Regardless, Wolters withdraws this
argument in his reply brief.

The rest of Wolters' argument goes to the sufficiency of the evidence supporting
the Board's decision. Nevertheless, Wolters argues in his reply brief that the Board
misinterpreted and misapplied the law regarding the secondary injury rule because a
review of the record as a whole shows that there was sufficient evidence to support its
application to his back injury. However, a review of the record reveals that the Board did
not misinterpret the secondary injury rule but simply found that it did not apply to the
facts of this case. We, conclude, therefore that Wolters has not shown that the Board
erroneously interpreted or applied the law.

Turning to the issue of whether there is sufficient competent evidence to support
the Board's factual findings, we must review the record as a whole to determine whether
the findings are supported by substantial evidence. See K.S.A. 2014 Supp. 77-621(c)(7).
In undertaking this analysis, we note:

"'[I]n light of the record as a whole' means that the adequacy of the evidence in the record
before the court to support a particular finding of fact shall be judged in light of all the
relevant evidence in the record cited by any party that detracts from such finding as well
as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and
amendments thereto, cited by any party that supports such finding, including any
determinations of veracity by the presiding officer who personally observed the
demeanor of the witness and the agency's explanation of why the relevant evidence in the
record supports its material findings of fact. In reviewing the evidence in light of the
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record as a whole, the court shall not reweigh the evidence or engage in de novo review."
K.S.A. 2014 Supp. 77-621(d).

It is important to note that we do not weigh the evidence except to determine
whether the evidence supporting the Board's decision has been so undermined by
conflicting evidence that we no longer have confidence that the evidence is substantial.
Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 363, 212 P.3d
239 (2009). The term "substantial evidence" is not statutorily defined. Nevertheless, the
Kansas Supreme Court has found that it refers to evidence possessing something of
substance and relevant consequence, which induces the conclusion that the award was
proper and furnishes a basis of fact from which the issue raised easily could be resolved.
Saylor v. Westar Energy, Inc., 292 Kan. 610, 614, 256 P.3d 828 (2011).

Claimants in a worker's compensation case have the burden of proof to establish
their right to an award of compensation under the Workers Compensation Act and to
prove the various conditions on which their right depends. K.S.A. 2007 Supp. 44-501(a).
"'Burden of proof' means the burden of a party to persuade the trier of facts by a
preponderance of the credible evidence that such party's position on an issue is more
probably true than not true on the basis of the whole record." K.S.A. 2007 Supp. 44-
508(g). Once a claimant has met the burden of proving a right to compensation, the
employer has the burden of proving relief from that liability based on any statutory
defense or exception. Foos v. Terminix, 277 Kan. 687, 693, 89 P.3d 546 (2004).

We note that although Wolters argues that the Board's decision is unsupported by
substantial competent evidence because his initial report should not have been considered
as evidence, he abandons this argument in his reply brief. Instead, Wolters contends that
the record viewed as a whole refutes the Board's findings of fact. On appeal, he
emphasizes the fact that although the City initially declined to pay his medical bills from
Dr. Miller, it eventually determined that he made a timely notice of the injury and that his
16

claim was compensable. But he cites only his own testimony from the hearing before the
ALJ to support this allegation, and he does not state how this initial payout is based on
the same legal theory necessary to meet his burden of proving that he suffered a work-
related injury.

The City argues that it had the right to voluntarily pay Wolters' medical bills
without waiving its ability to eventually have someone determine whether the claims
were actually compensable. See K.S.A. 44-534a (stating that benefits paid by the
employer or insurance carrier voluntarily are to be reimbursed if the compensation was in
excess of the amount of compensation the employee is entitled). In his reply brief,
Wolters takes his argument a step further by maintaining that the City authorized medical
treatment that actually made his condition worse. Specifically, he argues that the City
must be found liable for the injury to his femoral nerve that evidently occurred during the
surgery on his left knee. Wolters, however, cites no authority to support these
contentions, so they are deemed abandoned. See State v. Tague, 296 Kan. 993, 1001, 298
P.3d 273 (2013) (stating that failure to support a point with pertinent authority or show
why it is sound despite a lack of supporting authority is akin to failing to brief the issue).
Furthermore, Wolters claims that the Board's decision was erroneous because there is no
other explanation offered for his left knee injury. However, Dr. Clymer's opinion was that
although the problems in Wolters' knee could have been caused by a traumatic injury,
such injuries were usually caused by wear, tear, and degeneration.

This case required the Board to weigh conflicting evidence regarding when
Wolters first began to have left knee pain and whether his knee injury was caused by his
fall on February 2, 2008. The Board's finding that Wolters did not tell the physician
assistant he saw the day of the fall that his knee was in pain is supported by substantial
competent evidence. It is only Wolters' own testimony that contains evidence of knee
pain prior to October 2008. It was not until after he had filed his application for hearing
17

with the division of workers compensation that he began telling physicians that he had
had immediate problems with his knee beginning on February 2, 2008.

Accordingly, we find that a review of the record as a whole reveals that although a
reasonable person may have ruled in Wolters' favor, it is not significant enough to
undermine our confidence that the Board's findings were supported by substantial
evidence. The Board viewed all of this evidence and made a reasonable determination.
Although disputed, there is evidence in the record to support a finding that Wolters had
initially told health care providers that he had injured his ankle during the fall. There is
also evidence to support a finding that his left knee did not start causing him trouble until
approximately 8 months after his fall. Thus, we conclude that the Board's determination
that Wolters' left knee injury was not caused by the fall in February 2008 is supported by
substantial competent evidence, and we will not replace our judgment for that of the
Board. Furthermore, because the Board determined that the left knee injury was not
compensable, it was reasonable to conclude that his back problems were also not caused
by the fall.

Viewing the record as a whole, we conclude that there is substantial competent
evidence in the record to support the Board's findings and conclusions.

Affirmed.