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Martinez v. Excel Corp.11/26/2003
Affirmed.
Excel Corporation appeals from an award by the Workers Compensation Board (Board) to Bernardo Martinez for work-related injuries. Excel argues that the Board erred in determining that Martinez' refusal to undergo carpal tunnel surgery was reasonable within the meaning of K.A.R. 51-9-5. The issue before this court is whether there was substantial competent evidence to support the Board's decision. Because expert testimony revealed that there were significant risks, as well as uncertainty about the ultimate result of the surgery, we find that there was substantial competent evidence to support the Board's decision. Accordingly, we affirm the Board's ruling.
Bernardo Martinez suffered injuries to his back, shoulders, arms, hands, and legs while working as a trimmer at Excel Corporation. Dr. J. Raymundo Villanueva treated these injuries with medication, physical therapy, and local injections. A nerve conduction velocity test revealed that Martinez had severe bilateral carpal tunnel syndrome and bilateral Guyon's syndrome. After Martinez' condition failed to improve, Dr. Villanueva recommended carpal tunnel release surgery. Martinez declined the surgery.
Martinez requested a hearing with the Division of Workers Compensation to determine the amount of compensation for his injuries. After hearing testimony from Martinez and reviewing deposition testimony from several expert witnesses, the administrative law judge (ALJ) awarded compensation based on a 25.5% disability rating. The award represented an average of two impairment ratingsone rating was an estimate of Martinez' injuries if he would have undergone the carpal tunnel surgery, and the other rating was based upon his present condition without the surgery. The judge reasoned that Martinez could later request the surgery and possibly reduce his disability substantially and, therefore, should not receive compensation based upon the highest impairment rating.
Both Martinez and Excel appealed this decision to the Board. The Board increased the award based upon a 39.5% impairment rating. This award was an average of the impairment ratings of the two expert witnesses, Dr. Villanueva and Dr. Pedro Murati, for Martinez' present condition. These impairment ratings were determined according to the American Medical Association, Guides to the Evaluation of Permanent Impairment (AMA Guides), as required by K.S.A. 44-510e. The Board noted that, according to the AMA Guides, a patient's decision to not undergo surgery should neither increase nor decrease his or her impairment rating. The Board concluded that Martinez' "present functional impairment rating should be based upon his actual present physical condition rather than based upon speculation of what it might be in the event he underwent multiple surgeries and achieved successful results."
The Board also considered K.A.R. 51-9-5, which provides that:
"An unreasonable refusal of the employee to submit to medical or surgical treatment, when the danger to life would be small and the probabilities of a permanent cure great, may result in denial or termination of compensation beyond the period of time that the injured worker would have been disabled had the worker submitted to medical or surgical treatment, but only after a hearing as to the reasonableness of such refusal."
The Board determined that it was reasonable for Martinez to decline the surgery and, therefore, refused to deny benefits under this regulation. It looked to several significant factors, including the fact that there were several attendant risks, there was a question whether the surgery would result in a permanent cure, Martinez knew other people who suffered
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