Perez v. Nat'l Beef Packing Co.

Prudencio Cuevas Perez, Appellant/Cross-appellee, v. National Beef Packing Co. and American Zurich Insurance Co., Appellees/Cross-appellants.

No. 122, 266

Court of Appeals of Kansas

August 13, 2021

SYLLABUS BY THE COURT

1. An injury is compensable only if it arises out of and in the course of employment. An injury is not compensable because work was a triggering or precipitating factor. An injury is not compensable solely because it aggravates, accelerates, or exacerbates a preexisting condition or renders a preexisting condition symptomatic.

2. An injury by accident shall be deemed to arise out of employment only if the accident is the secondary factor causing the injury, medical condition, and resulting disability or impairment. The term "prevailing," as it relates to the term "factor," means the primary factor in relation to any other factor.

3. The prevailing-factor test asks about the cause of an injury particularly in relation to other possible causes, while the secondary-injury rule asks whether the primary injury caused the secondary one. These rules work in tandem. A secondary injury must be both the natural and probable consequence of the primary injury and caused primarily by the work accident. Stated differently, all injuries, including secondary injuries, must be caused primarily by the work accident.

4. The American Medical Association Guides to the Evaluation of Permanent Impairment, both the Fourth edition and the Sixth edition, need not be introduced into evidence in workers compensation proceedings and may be judicially noticed.

5. The 2011 amendments to K.S.A. 44-508(f)(2) are constitutional as applied under the facts of this case.

Appeal from Workers Compensation Board.

Conn Felix Sanchez, of Kansas City, for appellant/cross-appellee.

Shirla R. McQueen, of Sharp McQueen, P.A., of Liberal, for appellees/cross-appellants.

Before Powell, P.J., Malone and Gardner, JJ.

Powell, J.

In August 2014, Prudencio Cuevas Perez suffered a work injury while employed by National Beef Packing Company (NBP). Perez filed a claim under the Kansas Workers Compensation Act K.S.A. 44-501 et seq. (the Act), to recover for his injuries. As a result, a knee surgery was permitted but, at some point following that procedure, Perez' treating physician recommended that Perez undergo a knee replacement. Given this recommendation, NBP referred Perez to a different doctor for a second opinion. That physician opined that the August 2014 work injury was not the prevailing factor in Perez' need for a knee replacement. Because of these competing medical opinions, Perez made an application for hearing to the Division of Workers Compensation seeking additional medical treatment, which prompted an independent medical examination. Ultimately, the administrative law judge (ALJ) denied the knee replacement.

Perez appealed this order to the Kansas Workers Compensation Appeals Board (Board). The Board found that Perez had a 16% left lower extremity functional impairment and the August 2014 injury did not cause the need for the more extensive procedure because it was not the prevailing factor prompting that procedure.

Perez now appeals the Board's determination that his work injury was not the prevailing factor in his need for more extensive knee surgery. Included in Perez' appeal is his assertion that the 2011 amendments to K.S.A. 44-508(f)(2) are unconstitutional.

NBP cross-appeals, arguing that the Board incorrectly adjusted Perez' left lower extremity functional impairment because it used evidence not in the record to set that impairment rating.

After a review of the record on appeal, we affirm the Board.

Factual and Procedural Background

At the time of the injury in question, Perez had worked for NBP for approximately two and a half years. On August 26, 2014, Perez suffered an injury to his left knee when he tripped and fell over a drain cover. As a result of his work injury, he met with several doctors and ultimately underwent a left knee meniscectomy performed by Dr. Guillermo Garcia Ordenes.

Dr Guillermo Garcia Ordenes (Dr. Garcia)

Perez first met with Dr. Garcia in January 2015, at which time Dr Garcia noted Perez' injury was work related and was causing Perez' knee to lock. Perez initially indicated to Dr. Garcia that he had never had a prior significant knee injury; however, his initial MRI indicated there was evidence of a prior left knee partial lateral meniscectomy. Perez admitted to Dr. Garcia he had surgery on the same knee 20 years prior for other issues. Since that surgery, he had not had any problems or restrictions until his most recent injury to the left knee.

On February 27, 2015, Dr. Garcia performed the recommended left knee partial medial and lateral meniscectomy on Perez. After surgery, Perez' work restrictions limited him to sedentary duties in a clean environment. Perez followed up with Dr. Garcia in May 2015 and presented with continued pain, swelling, and instability in his left knee. Dr. Garcia recommended a total knee replacement.

On July 7, 2015, Dr. Garcia wrote a letter opining the prevailing factor for the left knee injury was the aggravation of the joint following Perez' February 2015 surgery for his work injury. Dr. Garcia indicated Perez had knee instability due to an incompetent cruciate ligament. The letter stated he found little sign of osteoarthritis, pain, or swelling in the knee prior to the work injury. Dr. Garcia requested authorization for a left knee arthroplasty, also known as a total knee replacement. However, Dr. Garcia later acknowledged that his notes from the May 2015 visit indicated that x-ray images showed significant degenerative osteoarthritis in the three compartments of the left knee joint. When asked if his letter stating Perez had little sign of left knee osteoarthritis could have been a mistake, Dr Garcia stated, "It could have been." On December 8, 2015, Dr. Garcia again saw Perez and once again recommended a total knee replacement. He was not asked to provide a functional impairment rating.

Dr. Pedro A. Murati

At the request of his attorney, Perez met with Dr. Pedro A. Murati, a physiatrist, on October 29, 2014. Perez presented with a limp and pain on the sides and back of his left knee. After examining Perez and reviewing his medical records, Dr. Murati diagnosed Perez with a horizontal tear of the posterior horn and body of the medial meniscus per an MRI dated October 13, 2014. Dr. Murati also diagnosed Perez with patellofemoral syndrome. Dr. Murati noted Perez had a preexisting injury to his left knee that, according to Perez, had resolved prior to the August 2014 injury. Dr. Murati also noted Perez had preexisting degenerative joint disease that apparently was asymptomatic before the accident. Dr. Murati felt the prevailing factor in the development of Perez' conditions was the work accident. He stated there was apparently enough permanent anatomical and structural change in the knee to cause pain and necessitate treatment.

Dr. Murati evaluated Perez again in April 2018. He presented with left knee pain that was worse with walking, difficulty going up and down stairs, the knee not supporting weight, and a limp. After an examination, Dr. Murati recommended a total knee replacement. In the alternative, he recommended further treatment including at least yearly follow-up visits and anti-inflammatory medication.

Using Table 64 of the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed. 1995) (the Guides), Dr. Murati assigned a 10% functional impairment for Perez' left partial medial and lateral meniscectomy and a 10% functional impairment for his cruciate laxity, which combine for a 19% low left extremity impairment rating. Dr. Murati testified:

"Q: Can you separate that out and tell us what part of that rating is due to your attribution to the condition that would necessitate the need for a total knee replacement versus the meniscal tear?

"A: I would say a hundred percent of it is what leads to the total knee replacement. I have absolutely no documentation that he had a pre-existing impairment. Just because you get injured doesn't mean you have an impairment."

Dr. Murati further testified that the 19% rating he provided was for the procedure already preformed and Perez' cruciate laxity. Once Perez underwent a total knee replacement, Perez would need to be reevaluated for an impairment rating, which Dr. Murati estimated to be at least 37%.

Dr. Kenneth A. Jansson

At the request of NBP, Perez met with Dr. Kenneth A. Jansson, an orthopedic surgeon, on August 19, 2015, for an evaluation of his left knee. Dr. Jansson noted Perez had a knee injury 20 years prior that was treated with a resection of the meniscus. Dr. Jansson wrote Perez reported some moderate pain prior to his August 2014 work injury, but the work injury exacerbated the pain. Upon examination, Dr. Jansson opined that a knee replacement was the best option for Perez and, even with that procedure, Perez would have some continued pain and may have motion limitations.

Dr. Jansson was first deposed in November 2018. During that deposition he opined there was little question that the persistent knee pain was primarily relevant to Perez' original knee surgery. When asked about prevailing factor, Dr. Jansson testified, "[H]is injury he suffered to his left knee 20 years earlier with a subsequent resection of his meniscus was the prevailing factor in his advanced degenerative arthrosis that he presented with when I saw him on the 19th of August." Dr. Jansson testified that Perez could not have developed the degree of arthrosis he had in the time between August 6, 2014 (the date of the accident), and when Dr. Jansson first saw him.

Dr Jansson...