Jennings v. T Rowe Pipe ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,149
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
COREY JENNINGS,
Appellant/Cross-appellee,
v.
T ROWE PIPE LLC,
Appellee,
and
KANSAS WORKERS COMPENSATION FUND,
Appellee/Cross-appellant.
MEMORANDUM OPINION
Appeal from Workers Compensation Appeals Board. Opinion filed November 6, 2020. Affirmed.
Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for appellant/cross-appellee.
E. L. Lee Kinch, of Wichita, for appellee/cross-appellant.
Before BRUNS, P.J., WARNER, J., and BURGESS, S.J.
PER CURIAM: Corey Jennings appeals from the award of benefits by the Workers
Compensation Board (Board). Although the Administrative Law Judge (ALJ) denied
Jennings' claim, the Board modified the ALJ's decision and found that Jennings suffered
a temporary hip injury—but not a fracture—arising out of an incident occurring in the
course of his employment on March 22, 2015. As a result, the Board awarded Jennings
$400 in unauthorized medical expenses. Thereafter, Jennings appealed and the Kansas
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Workers Compensation Fund (Fund) filed a cross-appeal. Finding that there is substantial
competent evidence in the record to support the Board's award, we affirm.
FACTS
Jennings—who was born in 1979—resides in Arkansas City. In December 2014,
he began working for T Rowe Pipe, LLC. The limited liability company performed
custom fabrication for industrial pipe and was registered in Oklahoma. However, it
appears that T Rowe Pipe, LLC, is no longer doing business and it is not participating in
this appeal. Under K.S.A. 2019 Supp. 44-532a, if an employer cannot be located and
required to pay workers compensation, the injured worker may apply for an award of
workers compensation benefits to be paid from the workers compensation fund. Since
Jennings was unable to locate T Rowe Pipe, the Fund became the party responsible for
the award of workers compensation benefits.
Around 2007 or 2008, Jennings was diagnosed with sarcoidosis, which is an
inflammatory disease that can affect the bones and multiple organs in the body. His
health care providers prescribed Prednisone—which is a high-dose steroid—to treat the
sarcoidosis. Although high-dose steroids are not a cure for sarcoidosis, they are
prescribed in an attempt to decrease the rate of progression of the disease. Unfortunately,
high-dose steroids are known to potentially lead to avascular necrosis or damage to bone
tissue due to lack of blood supply. Another side effect of the long-term use of high-dose
steroids is the possibility of developing subchondral or stress fractures that occur on the
weight bearing surface of a bone.
On March 22, 2015, while working in the paint and sandblast department of T
Rowe Pipe, Jennings was assigned to a project in Roger Mills County, Oklahoma. While
operating a "jeeper" machine—which is rolled along buried pipe to identify dents or
nicks that may need repair—Jennings had to go into a trench and lie down in a confined
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area to test a pipe that was about 3 inches above the bottom of the trench. Jennings
reported that after he was finished and sat up, he "heard a loud pop" and "felt pain on his
left side." He further explained, "[a]fter about 10 minutes, [a] couple of co-workers
helped me up out of the trench into a 36-inch pipe . . . where I sat down and waited for
the pain to go away so that I could get back to work."
After four hours, the pain did not go away and Jennings was taken to the
emergency room at Roger Mills Memorial Hospital in Cheyenne, Oklahoma. According
to the hospital records, Jennings reported: "Was on the ground today and heard a pop—
pain has been getting worse since. Now—4 hours later cannot bear [weight] on left hip
area. Hip aching for 3 months usually take 800 mg Ibuprofen & pain gets better.
[History] of sarcoidosis . . . ." The hospital records further stated: "[Complains of] left
hip pain, gradual onset over the past month usually responds partially to Ibuprofen 800,
but now has progressed to the point he cannot bear weight." In addition, the hospital
records noted a history of: "Sarcoidosis diagnosed [approximately] 7 years ago usually
takes Prednisone 80g daily, has been out for [about] 1 month."
An x-ray of Jennings' hip taken at the hospital did not show any abnormality.
However, he was given a shot of Toradol for pain and a steroid injection to reduce the
swelling. Upon discharge, Jennings was diagnosed with left hip pain and sarcoidosis. A
doctor renewed his prescription for Prednisone and directed Jennings to see his primary
care physician for refills. He was also directed to consult an orthopedic surgeon if his hip
pain persisted. However, Jennings did not seek medical attention for hip pain again until
nearly 10 months later. Although he saw a physician for pain and swelling in his right
wrist—which turned out to be caused by a small fracture—on August 29, 2015, the
medical records do not indicate that Jennings complained about hip pain, nor was a
history of a hip injury noted.
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Jennings returned to work the day after the incident at work. Although he
apparently spent the day sitting in a truck, he was ultimately assigned to light duty and
drove a forklift for about a week before being laid off because the company was
downsizing. After being laid off, Jennings applied for and received unemployment
benefits. In August 2015, he was hired by the South Central Kansas Medical Center to
perform floor maintenance. According to Jennings, he continued to experience pain in his
left hip and had a limp.
On January 5, 2016, Jennings sought medical care from Dr. Eric Thomson, who is
a family practitioner. He complained of left leg numbness and tingling as well as
occasional swelling. Dr. Thomson noted "sarcoidosis, greater than three years" and
ordered a left lower extremity venous doppler examination. The results of the test, which
was performed on January 7, 2016, were negative for a deep venous thrombosis.
A few weeks later, Jennings went to see a chiropractor, Dr. Doug Swanson, for
treatment. The notes from the visit state in part: "lower back and leg pain. Onset:
gradual. Cause of symptoms: unknown." Jennings reported his pain as "burning, sharp
throbbing, tingling, [and] deep." Dr. Swanson's records do not mention the work incident
on March 22, 2015. Dr. Swanson's assessment of Jennings' condition was "Lumbago with
sciatica"—which is pain radiating from the back down the leg—on the left side. Jennings
received chiropractic treatments on five occasions from January 22, 2016, to February 8,
2016.
Subsequently, Dr. Thomson referred Jennings to Dr. Damion Walker, an
orthopedic surgeon specializing in hip surgery. Dr. Walker ordered x-rays of Jennings'
left hip that were taken on February 15, 2016. According to the medical record, the x-rays
revealed a "'[m]arked flattening and sclerotic change involving the left femoral head. This
may be due to prior osteonecrosis versus congenital abnormality.'" Osteonecrosis is the
death of bone tissue due to a lack of blood supply. Dr. Walker examined Jennings the
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following day. At that time, Jennings reported having hip pain associated with a work
injury that occurred on March 22, 2015. Interestingly, the work incident is described as a
fall while climbing out of a ditch. Regardless, Dr. Walker's diagnosis was osteonecrosis
due to previous trauma.
In his records, Dr. Walker noted: "left hip/groin pain, post-traumatic avascular
necrosis left femoral head with secondary osteoarthritis, degenerative joint disease." He
also noted that his review of the x-rays "demonstrates essentially the top half of the
femoral head to be entirely absent or flattened." Yet, Dr. Walker could not determine
"whether [Jennings] had an actual femoral head fracture or whether this extreme
flattening is a result of avascular necrosis." Ultimately, Dr. Walker recommended a total
hip replacement and instructed Jennings not to return to work.
On March 15, 2016, Jennings filed a workers compensation claim against T Rowe
Pipe claiming that he had fractured the neck of his left femur at work. In his deposition,
Jennings disputed the accuracy of the emergency room records from the day of the work
incident. Specifically, he testified that the notations in the medical record—one by a
nurse and the other by a physician or physician's assistant—that Jennings had suffered
hip pain over three months that had gradually progressed over the past month were
incorrect. Rather, Jennings claimed that he did not have any problems with his left hip
prior to being injured at work on March 22, 2015. He also suggested that the emergency
room personnel misunderstood him when he told them that he had a prior left knee injury.
Jennings' attorney sent him for an evaluation by Dr. C. Reiff Brown, a board-
certified orthopedic surgeon who graduated from medical school in 1957. Dr. Brown
retired from the clinical practice of medicine in 2000 and now confines his practice to
performing medical examinations as a consultant. In his deposition, he acknowledged
that the x-rays taken at the hospital on March 22, 2015, appeared normal with the
exception of "some decrease in the amount of calcium that was present in the bone."
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Nevertheless, Dr. Brown opined that the work injury "caused a fracture of [Jennings']
already softened bone because of the sarcoidosis."
Dr. Brown surmised that the sound Jennings heard when he sat up in the ditch was
a nondisplaced fracture of the proximal femur. Dr. Brown testified that in his opinion
Jennings' injury on March 22, 2015, resulted in osteonecrosis and that the accident was
the prevailing factor in causing the fracture. After evaluating Jennings again on
September 2, 2016, Dr. Brown continued to render the opinion that there was a causal
connection between the work incident and the fracture. However, he did agree that high-
dose steroids—such as Prednisone—can cause avascular necrosis and cause the death of
bone tissue.
Also at the request of his attorney, Jennings was examined by Dr. George Fluter, a
physical medicine and rehabilitation physician, on January 15, 2018. According to Dr.
Fluter, Jennings jumped 5 feet into a trench to repair a pipe when he heard a snap at the
left hip or leg and could not move. However, when the discrepancy between his notes and
Jennings' preliminary hearing account of his injury was pointed out, Dr. Fluter claimed it
did not make any difference in his conclusions. Dr. Fluter also acknowledged that he was
told that the emergency room x-rays showed the hip had cracked, which was again a
discrepancy from the actual hospital records.
After reviewing the x-rays taken on March 22, 2015, Dr. Fluter agreed that they
showed Jennings' hip to be within normal limits. Although Dr. Fluter recognized that the
chronic use of Prednisone is a risk factor for developing osteonecrosis, it was his opinion
that the work incident caused a new injury. In particular, Dr. Fluter opined that Jennings
fractured his femoral head on March 22, 2015, and that the fracture led to the avascular
necrosis. Dr. Fluter also opined that the work injury was the prevailing factor for
Jennings' fracture.
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Specifically, Dr. Fluter testified:
"The initial x-rays did not show a fracture. It wasn't until about ten or 11 months later that
the, I don't know if it was a CAT scan or x-rays that were done that showed changes. So I
think something happened between the initial [in]citing event . . . in March of 2015, the
snap occurred. He sought medical care for it. X-rays didn't show any fracture at that time,
but I think a fracture occurred at that time, it was just not detected at the x-ray because
again, you don't always detect acute fracture. . . And that by the time, 11 months later roll
around and he has the x-rays done, it shows progression of the condition to the point of
having avascular necrosis. Otherwise, it just happened . . . out of nowhere. And I feel
under the circumstances that whatever the specific circumstances of that pop occurring,
that represented the time of the injury when the fracture occurred."
The ALJ appointed Dr. Pat Do, a board-certified orthopedic surgeon, to perform
an independent medical examination of Jennings. In particular, the ALJ requested that
Dr. Do address the following issues: (1) diagnosis; (2) recommendations for treatment;
(3) the claimant's ability to work and, as appropriate, temporary work restrictions; (4)
whether claimant's alleged accident or repetitive trauma was the prevailing factor in
causing the claimant's injury, and the need for treatment or resulting impairment or
disability, if any; and (5) other issues as specified in the joint letter from the attorneys. On
August 3, 2016, Dr. Do examined Jennings and issued his independent medical report,
which was received by the ALJ two days after the examination.
With respect to Jennings' medical history, Dr. Do reported:
"[Jennings] is currently 36 years old and a very accurate historian and very pleasant
gentlemen whom describes specifically a no-fall and no-impact injury but, 'guess just
rolled wrong' and that he, while leaning forward, heard 'a loud snap' in his left hip.
"He has been on high-dose prednisone which is [a] high-dose steroid very well-known to
cause avascular necrosis and subtle subchondral fractures that are a known consequence
of high-dose steroids. He states he has been on this since 2007 or 2008, he is not sure. He
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also tells me that Dr. Gilroy up in the Kansas City area at KU Medical School also
informed him of the risk of osteonecrosis and subchondral fractures and osteoporosis
with high-dose steroids. Unfortunately, he has to take these high-dose steroids because of
his sarcoidosis.
"Again, there was no fall on the left hip, no injury, he just 'rolled wrong.'"
Dr. Do found that the x-rays taken on March 22, 2015, showed "a normal-looking
left hip." In contrast, he found that the x-rays taken on February 16, 2016, showed
"marked flattening of sclerotic changes of the left femoral head." Consequently, Dr. Do
rendered the opinion that Jennings had a "[l]eft hip osteonecrosis—at this point in time,
probably stage IV." Moreover, although Dr. Do did not find that the work injury caused
the osteonecrosis, he did agree that Jennings should undergo a total hip replacement in
light of his medical condition.
In his deposition, Dr. Do reiterated the history, diagnosis, and opinions set forth in
his written report. He defined osteonecrosis as "essentially dead bone" and explained that
stage IV osteonecrosis means that the cartilage is worn out and that Jennings has
developed a marked deformity—with bone rubbing on bone—in his hip joint. Regarding
the issue of causation, Dr. Do testified within a reasonable degree of medical probability
as follows:
"Within a reasonable degree of medical probability, his described work incident
of 'rolling wrong' is not the causative factor in is current need for treatment [of] his left
hip nor any kind of resulting impairment. If his rolling wrong caused any kind of fracture
of his hip, he would have had ongoing pain ever since that date; however, if you get his
history, he actually had good days and bad days, and it was not until more recently that it
got pretty progressive and severe. A femoral neck fracture would have left him unable to
bear weight from the get-go, if you will, on 03/22/2015."
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Additionally, Dr. Do reported that the "rolling and twisting" of Jennings' hip on
March 22, 2015, did not cause "any kind of new physical finding or any kind of change in
physical structure that was not already present in his left hip." When asked his opinion
regarding the prevailing factor in causing Jennings' medical condition, Dr. Do testified
that the problem developed over time and "his work incident . . . is not the prevailing
factor in his current need for treatment of his hip or any kind of resulting impairment."
Dr. Do explained:
"Usually for avascular necrosis you can have [. . .] traumatic causes or non-
traumatic causes. [A] [t]raumatic caus[e] usually in a young person would be pretty
severe where it would have to cut off the actual blood vessel to the actual hip, particularly
with a high-energy injury like an automobile accident. Non-traumatic causes would be
blood disorders. Some association with the use of steroids. Idiopathic, meaning you don't
know why. Alcohol use, as well as some autoimmune disorders can cause—or not cause,
but contribute to developing osteonecrosis."
In Dr. Do's opinion, the prevailing or primary factor causing Jennings' hip fracture
was his long-term use of anti-inflammatory medication—specifically Prednisone—that
led to avascular necrosis and osteonecrosis—not the incident on March 22, 2015. At the
Fund's request, Dr. Do saw Jennings again on May 23, 2018. Dr. Do was also provided
with additional documents to review, including medical records from Jennings'
examination by Dr. Walker, Dr. Brown's report, and Dr. Fluter's report. After examining
Jennings again and reviewing the additional documents, Dr. Do continued to opine that
the incident of March 22, 2015, did not cause the medical condition that required a hip
replacement.
In his second report, Dr. Do stated:
"I see from Dr. Fluter that he felt that corticosteroid or prednisone is a risk factor
for development of osteonecrosis of the left hip but that the event of March of 2015 was
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not an aggravation or acceleration of a pre-existing condition. I certainly understand both
of those view points and I do not think any one of us is more right or wrong than another.
My understanding of prevailing factor is defined as 'primary factor in relation to any
other factor' is how I came about my causation opinion. With the mechanism of action
whether by my interpretation of what Mr. Jennings told me or by the interpretation given
to him to Dr. Fluter or Dr. Brown is not extensive enough to be the primary factor in
relation to any other factor. This is my opinion within a reasonable degree of medical
probability. I do not think his describe[d] work injury was the primary factor. I think it
did not change the natural history of him being on chronic steroids leading to avascular
necrosis in this kind of scenario."
Dr. Do was deposed for a second time on July 11, 2018, and admitted that he did
not have a complete understanding of all of the legal terms used in workers compensation
law. However, he testified:
"[F]rom a medical standpoint, . . . I believe we see avascular necrosis a lot, a
little bit higher in African-Americans, higher in folks with chronic prednisone or steroid
use which Mr. Jennings had. Taking all those things into account and his mechanism of
injury, it is my belief that the primary factor would be his chronic steroid use and his
higher risk being African-American for the avascular necrosis than it was, for instance,
what Dr. Fluter mentioned in his report, the muscular effort. So in my opinion, based off
my medical understanding only, that his work-related accident wouldn't be. But, I don't
know the law, so—"
On cross-examination, although Dr. Do acknowledged he found no apparent
preexisting hip impairment, he found Jennings' medical history as well as his description
of the work injury to be significant in determining the medical causation. In particular,
Dr. Do noted that Jennings did not report a fall or other traumatic injury occurring on
March 22, 2015. According to Dr. Do, it would a take severe trauma to cause the type of
fracture that would cut off the blood supply to the femoral head resulting in acute
osteonecrosis. Consequently, Dr. Do reaffirmed his opinion that Jennings' current
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medical condition and need for a hip replacement "is not casually related to his work
injury under prevailing factor."
Administrative Law Judge Gary K. Jones held a hearing on Jennings' claim on
December 12, 2018. Although Jennings and the Fund participated in the hearing, no one
appeared on behalf of T Rowe Pipe. At the hearing, the ALJ asked questions of both
parties. In addition, he considered various deposition transcripts and exhibits offered into
evidence. The ALJ also considered several stipulations agreed to by the parties.
On March 20, 2019, the ALJ issued a 13-page decision in which he concluded that
"the alleged accident is not the prevailing factor for the claimant's injury, medical
condition and resulting disability." Accordingly, the ALJ denied Jennings' request for
workers compensation benefits. In reaching this decision, the ALJ reasoned:
"First, the Court finds that the Claimant had a preexisting condition. His hip bone
was weakened by years of use of high-dose cortisone to control his sarcoidosis. The
Court finds Dr. Do's report on this persuasive. Dr. Brown also opined that the Claimant
had soft bones as a result of years of steroid use.
"The Court also concludes that this condition was symptomatic before March 22,
2015, as shown by the Roger Mills Memorial Hospital records of March 22, 2015. The
Roger Mills Memorial Hospital records report in two places that the Claimant had prior
hip pain. The records are written in two different handwritings and are signed or initialed
by two different people. There is some variation between the two reports of preexisting
problems which indicates one reporter did not just copy the other. The Claimant's
explanation that his knee hurt but not his hip is not credible.
"Was there a physical change in the Claimant's body on March 22, 2015? The
Court finds Dr. Do's opinion more persuasive than that of the Drs. Brown or Fluter and
concludes there was no change in the physical structure of the Claimant's body. Dr. Do
performed his IME at the request of the Court, and his opinion is more neutral. He is an
actively practicing orthopedic surgeon. Dr. Brown relied on a cell phone picture of the x-
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ray, but Dr. Do had the x-ray films. Dr. Fluter relied on an incorrect description of the
mechanism of injury."
The ALJ also found it to be significant that there was no acute injury shown on the
x-rays taken at Roger Mills Memorial Hospital on March 22, 2015. Moreover, the ALJ
noted that the hospital records indicated that Jennings had reported pain in his hip for
months. In addition, the hospital records indicated that Jennings was told to follow up
with an orthopedic surgeon if his pain did not get better. However, the ALJ found that
Jennings continued working following the incident and did not seek medical treatment
again until January 2016.
On March 29, 2019, Jennings filed a timely application for review to the Board.
After hearing oral argument on September 12, 2019, the Board entered a 14-page
unanimous order on October 31, 2019. In the order, the Board agreed with the ALJ that
Jennings "did not sustain a fracture of his left hip when he rolled over and attempted to sit
up on March 22, 2015." Although the Board recognized that Jennings argued that the
emergency room nurse on the day of the incident misinterpreted his remarks regarding
his medical history, it found that this argument was not persuasive.
Nevertheless, the Board modified the ALJ's award and ordered the Fund to
reimburse Jennings for unauthorized medical expenses in the amount of $400. In doing
so, the Board explained that even though Jennings did not fracture his femoral head on
March 22, 2015, he did temporarily injure his hip that caused swelling. The Board
explained that Jennings was able to return to work, eventually developed osteonecrosis—
likely due to his long-term use of Prednisone—and later fractured his femoral head.
Thereafter, Jennings filed a timely petition for judicial review to this court.
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ANALYSIS
Issues Presented and Standard of Review
On appeal, Jennings raises two issues. First, whether the Board erred as a matter of
law by relying on medical testimony that allegedly applied an incorrect causation
standard. Second, whether the Board erred as a matter of law when it concluded that
Jennings' injury was only temporary in nature. Likewise, in its cross-appeal, the Fund
raises the issue of whether there is substantial evidence in the record to support the
Board's conclusion that Jennings suffered a temporary injury.
As provided for in the Workers Compensation Act (the Act), K.S.A. 2019 Supp.
44-501 et seq., we review the Board's order under the Kansas Judicial Review Act,
K.S.A. 77-601 et seq. K.S.A. 2019 Supp. 44-556(a). The claimant—in this case
Jennings—has the burden of proof to establish the right to an award of compensation
under the Act. K.S.A. 2019 Supp. 44-501b(c); see Moore v. Venture Corp., 51 Kan. App.
2d 132, 137, 343 P.3d 114 (2015). If a claimant meets his burden, the employer—in this
case the Fund standing in the shoes of the employer—has the burden of proving relief
from that liability based upon any statutory defense or exception. See Messner v.
Continental Plastic Containers, 48 Kan. App. 2d 731, 751, 298 P.3d 371 (2013). On
appeal to this court, the party claiming error has the burden to establish that error. K.S.A.
77-621(a)(1); see Roles v. The Boeing Co., 43 Kan. App. 2d 619, 624, 230 P.3d 771(2010).
Our review of questions involving the interpretation or construction of a statute is
unlimited and we owe no deference to the Board on this issue. Fernandez v. McDonald's,
296 Kan. 472, 475, 292 P.3d 311 (2013). However, "the ultimate question of whether an
accident arises out of and in the course of employment is a question of fact." Estate of
Graber v. Dillon Companies, 309 Kan. 509, 513, 439 P.3d 291 (2019). Furthermore, we
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are to review a challenge to the Board's factual findings in light of the record as a whole
to determine whether those findings are supported by substantial evidence. K.S.A. 77-
621(c)(7).
In other words, we must determine the adequacy of the evidence in the record
"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 . . . including any
determinations of veracity by the presiding officer who personally observed the
demeanor of the witness and the [Board's] explanation of why the relevant evidence in
the record supports its material findings of fact." K.S.A. 77-621(d).
Likewise, 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.' [Citation omitted.]"
Rogers v. ALT-A & M JV, 52 Kan. App. 2d 213, 216, 364 P.3d 1206 (2015). In reviewing
the evidence in light of the record as a whole, we are not to reweigh the evidence or
engage in de novo review. Atkins v. Webcon, 308 Kan. 92, 96, 419 P.3d 1 (2018).
Nevertheless, the ultimate determination of whether the Board's findings are supported by
substantial competent evidence is a question of law. 308 Kan. 95.
In other words, after reviewing all of the evidence in the record, our role is to
determine whether the evidence in support of the Board's decision "has been so
undermined by cross-examination or other evidence that it is insufficient to support its
decision." Moore, 51 Kan. App. 2d at 138. However, in doing so, we are not to reweigh
the evidence or engage in de novo review. K.S.A. 77-621(d). Accordingly, based on these
standards of review, we should not disturb the Board's findings of fact if they are
supported by substantial competent evidence.
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Prevailing Factor Causing Hip Fracture
Under the Workers Compensation Act, employers are liable to pay compensation
benefits if "an employee suffers personal injury by accident, repetitive trauma or
occupational disease arising out of and in the course of employment." K.S.A. 2019 Supp.
44-501b(b). Personal injury means "any lesion or change in the physical structure of the
body, causing damage or harm thereto." K.S.A. 2019 Supp. 44-508(f)(1). Accidental
injuries resulting in a new physical finding—or a change in the physical structure of the
body—are compensable even if the claimant has sustained an aggravation to a preexisting
condition as long as the preexisting condition was the primary cause of the injury.
Buchanan v. JM Staffing, 52 Kan. App. 2d 943, 949, 379 P.3d 428 (2016).
The phrases "arising out of" and "in the course of" have separate and distinct
meanings. A claimant must show that each condition exists before an injury is
compensable. Here, there is no dispute that if Jennings was injured on March 22, 2015, it
was in the course of performing services for his employer. Instead, the issue is whether
the alleged injury arose out of Jennings' employment. To arise out of one's employment, a
claimant must establish a causal connection between the accidental injury and the nature,
conditions, obligations, and incidence of employment. K.S.A. 2019 Supp. 44-
508(f)(2)(B)(i).
K.S.A. 2019 Supp. 44-508(f)(2)(B) provides:
"An injury by accident shall be deemed to arise out of employment only if:
"(i) There is a causal connection between the conditions under which the work is
required to be performed and the resulting accident; and
"(ii) the accident is the prevailing factor causing the injury, medical condition
and resulting disability or impairment." (Emphases added.)
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K.S.A. 2019 Supp. 44-508(g) defines "prevailing factor" as "the primary factor, in
relation to any other factor." Accordingly, an injury is recoverable only if the work
accident—and not a preexisting condition—is the primary factor in causing the injury and
resulting impairment. See K.S.A. 2019 Supp. 44-508(d); Buchanan, 52 Kan. App. 2d at
949; Cramer v. Presbyterian Manors, No. 119,581, 2019 WL 4558050, at *5 (Kan. App.
2019) (unpublished opinion) (work accident was not the primary factor causing
claimant's aggravated disc disease apart from the new physical findings). In this action,
neither the ALJ nor the Board found the incident at Jennings' work on March 22, 2015, to
be the prevailing or primary factor in causing the fractured femoral head that resulted in
his need for hip replacement surgery.
Ultimately, the Board concluded in this action:
"The . . . claimant sustained a left hip injury on March 22, 2015, arising out of
and in the course of his employment, but that said hip injury was temporary in nature.
The Board finds claimant did not fracture his hip on March 22. Claimant returned to work
and eventually developed osteonecrosis, likely from his use of Prednisone, and later
fractured his femoral head."
Based on our review of the entire record, we find that this conclusion is based on
substantial competent evidence. In reaching its conclusion, the Board pointed to the
following evidence:
• The x-ray of Jennings' left hip taken at the hospital on March 22, 2015, did
not show a fracture or any abnormality. In contrast, the Board noted that the
x-rays taken nearly a year later showed a fracture.
• The medical history given by Jennings to the emergency room personnel on
March 22, 2015, revealed:
o a diagnosis of sarcoidosis about seven years before the emergency
room visit;
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o long term use of Prednisone to treat the sarcoidosis;
o aching in the left hip for three months with use of Ibuprofen to
reduce pain; and
o progression of hip pain to the point that Jennings could not bear
weight.
• Although Jennings was instructed upon discharge from the emergency
room to see an orthopedic surgeon if he continued to have hip pain, he did
not seek additional medical treatment for his hip pain until nearly 10
months later.
• Jennings was able to return to light duty with T Rowe Pipe and
subsequently worked for a different employer until February 2016.
We note that Jennings disputes the notations made by the health care providers
regarding his prior history of left hip pain. However, the Board did not find his testimony
to be persuasive. Specifically, the Board found that the emergency room records stated
"in two places that [Jennings] had prior hip pain." The Board also found that the history
of prior hip pain was "written in two different handwritings and are signed or initialed by
two different people" and that "[t]here is some variation between the two reports of
preexisting problems which indicates one reporter did not just copy the other."
Of course, it is not our role to reweigh the evidence or to engage in de novo
review. See Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014).
Instead, the ALJ and the Board were the finders of fact in this action and had the
authority to weigh the conflicting evidence to determine what they found to be
persuasive. Here, the findings of the ALJ and the Board regarding Jennings' preexisting
hip pain is clearly supported by the record. In addition, we find the Board's explanation
regarding why it believed the notations in the emergency room records to be more
persuasive than Jennings' testimony on this question to be reasonable.
17
In reaching its decision in this action, the Board also found the opinions expressed
by Dr. Do to be more persuasive than the opinions offered by the other two physicians
who rendered opinions in this workers compensation action. First, the Board noted that
unlike the other two physicians, Dr. Do was originally appointed by the ALJ to perform
an independent medical examination. Second, the Board noted that Dr. Do actively
practices orthopedic medicine and reviewed the actual x-ray films before rendering his
opinion. Third, the Board noted that one of the other physicians had only reviewed a cell
phone picture of the x-rays. Fourth, the Board noted that one of the other physicians had
relied on an incorrect description of the mechanism of injury in initially rendering his
opinion and found it to be "problematic" that he "did not change his opinion after he
learned the true mechanism of injury" and "did not have Dr. Walker's records" when he
evaluated Jennings.
In concluding that Jennings did not fracture his left hip on March 22, 2015, the
Board found Dr. Do's testimony to be persuasive. The Board pointed to Dr. Do's
testimony that the mechanism of injury—rolling over and attempting to sit up in a
ditch—"would not be sufficient to cause a fracture even in someone whose bones were
soft from sarcoidosis treatment." The Board also pointed to Dr. Do's testimony that
Jennings "would not have been able to bear weight on his left leg if he fractured his hip"
and that he would not have reported to have "good days and bad days" had he suffered a
fracture at work.
Although Jennings argues that Dr. Do applied an incorrect causation standard, we
do not find this to be an accurate description of his deposition testimony. As the Board
noted, Dr. Do is a board-certified orthopedic surgeon who continues to actively practice
clinical medicine and was appointed by the ALJ to perform an independent medical
examination. Dr. Do candidly testified that he is not an expert in the law and, as a
physician, he appropriately rendered his causation opinions within a reasonable degree of
probability.
18
In addition, Dr. Do testified that his understanding of the term "prevailing factor"
as used in workers compensation actions means the "primary factor in relation to any
other factor." We find this understanding to be consistent with the provisions of K.S.A.
2019 Supp. 44-508(g). Further, it is not essential that a medical expert completely
understand the legal principles of workers compensation. Rather, the primary role of a
medical expert is to render opinions within a reasonable degree of medical probability
based on the evidence. In turn, it is the role of the ALJ and the Board to weigh conflicting
evidence—including the opinions of medical experts—to reach a legal conclusion
regarding the prevailing or primary factor. See K.S.A. 2019 Supp. 44-508(g) ("In
determining what constitutes the 'prevailing factor' in a given case, the administrative law
judge shall consider all relevant evidence submitted by the parties").
In reaching this conclusion, the Board considered our decision in Le v. Armour
Eckrich Meats, 52 Kan. App. 2d 189, 364 P.3d 571 (2015). In doing so, the Board found
it to be distinguishable from this action. As the Board recognized, both Le and this case
involve claimants with preexisting conditions. However, the mechanism of injury was
substantially different. In Le, the claimant suffered a traumatic fall onto a concrete floor
at her place of employment and it was undisputed that she sustained a vertebral fracture.
In contrast, Jennings was lying in a ditch when he rolled over and attempted to sit up, and
the issue of whether he sustained a hip fracture is disputed.
Like the Board, we recognize that not all injuries are caused by a fall or other
traumatic force. See Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 586, 257 P.3d
255 (2011) (claimant was injured when he reached for a tool belt as he bent down).
However, as indicated above, there is substantial evidence in the record—including the
medical records and expert testimony—that supports the Board's conclusion in this action
that the incident at work on March 22, 2015, was not the prevailing factor or primary
cause of Jennings' hip fracture. Although Dr. Do's opinions were challenged on cross-
examination, the record reveals that he gave reasonable responses based on his expertise
19
as a board-certified orthopedic surgeon that the prevailing or primary cause of Jennings'
hip fracture was the long-term use of steroids taken to treat his sarcoidosis.
Consequently, based on our review of the entire record, we do not find that "the
Board's decision has been so undermined by cross-examination or other evidence that a
reasonable person would not accept it as support of the Board's factual findings." Wimp v.
American Highway Technology, 51 Kan. App. 2d 1073, 1076, 360 P.3d 1100 (2015).
Rather, we find that there is substantial competent evidence in the record to support the
Board's findings of fact. Likewise, we find no error of law. Thus, we affirm the Board's
decision that the work incident on March 22, 2015, was not the prevailing factor in
causing the fracture to Jennings' femoral head.
Finding of Temporary Injury
Both Jennings and the Fund challenge the Board's finding of a temporary injury.
Jennings primarily relies upon his previous argument that the work incident on March 22,
2015, was the prevailing factor in causing the fracture of his femoral head. However, the
Fund suggests that the Board should not have reached the issue of a temporary injury
because "the Board identified the critical question as 'whether claimant fractured his left
femoral head on March 22, 2015, when he rolled over and attempted to sit up.'"
An award under the Workers Compensation Act depends on the nature of the
claimant's impairment. See Casco v. Armour Swift-Eckrich, 283 Kan. 508, 522, 154 P.3d
494 (2007). Here, the Board found that the work incident was not the prevailing cause of
the fracture to Jennings' femoral head. Nevertheless, the Board modified the ALJ's award
by finding that Jennings "sustained a left hip injury on March 22, 2015, arising out of and
in the course of his employment, but that said hip injury was temporary in nature." As a
result, the Board awarded Jennings $400 in unauthorized medical expenses.
20
In light of our review of the entire record, we find that there is substantial evidence
to support the Board's finding that Jennings suffered a temporary injury on March 22,
2015. In particular, there is evidence that Jennings heard a pop when he turned over in the
ditch and felt pain. He was taken to the emergency room and reported that he could not
bear weight on his left leg. Although an x-ray of Jennings' hip did not show any
abnormality, he was given a shot of Toradol for pain and a steroid injection to help
reduce the swelling. As noted above, he was instructed to see an orthopedic surgeon if his
hip pain persisted, but he did not seek medical attention for hip pain again until nearly 10
months later. Thus, the Board did not err in finding that Jennings suffered from a
temporary injury.
Affirmed.
21