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McKINNEY v. GENERAL MOTORS CORP.8/9/1996
General Motors Corporation (GM) appeals from the order of the Workers Compensation Board (Board) which affirmed the administrative law judge's (ALJ) award to Jerry R. McKinney. GM argues that the Board erred in admitting the independent medical examiner's report as evidence without requiring testimony from the doctor concerning the report. Alternatively, GM argues that if the evidence is sufficient to support the award, the evidence is sufficient to support an assessment of liability against the Kansas Workers Compensation Fund (Fund).
McKinney was employed by GM and was injured when a container of chemicals fell from a forklift onto his right lower leg and foot.
Approximately 3 weeks after the accident, McKinney began to complain of right hip and lower back pain. Although McKinney received steroid injections which relieved his back pain for several months, by October 1993 McKinney had constant pain in his lower back on the right side.
At a prehearing settlement conference, the parties could not reach an agreement as to McKinney's functional impairment rating. The ALJ appointed Dr. Roger W. Hood to perform an independent medical examination of McKinney and to prepare a report. At the regular hearing, the ALJ informed the parties that they would be free to cross-examine Dr. Hood about his report, which none of the parties did.
Based on the evidence in the record, the ALJ found that McKinney possessed an 18 percent "permanent partial disability to the body as a whole." The ALJ also found:
"Although the medical report of Dr. Hood would indicate that the claimant possessed pre-existing impairment of both the right leg and low back, the respondent has not proved by a preponderance of credible evidence that it had knowledge of such impairment, or that it considered the claimant to be a handicapped employee prior to April 28, 1992. K.S.A. 44-566(b) and K.S.A. 44-567. Therefore,
the Kansas Workers Compensation Fund should be relieved of all liability in this matter."
The Board adopted the ALJ's findings of fact and conclusions of law.
GM argues that a medical report is not competent evidence in a proceeding to determine compensation unless the report is supported by the admissible testimony of the health care provider who prepared the report. See K.S.A. 44-519. McKinney responds that K.S.A. 44-510e(a) allows the ALJ to appoint a neutral health care provider to evaluate the claimant and to prepare a report as to the claimant's functional disability. This report must then be considered by the ALJ regardless of whether there is supporting testimony.
The parties agree that this court's scope of review in workers compensation cases is to determine whether the award is supported by substantial evidence. See Miner v. M. Bruenger & Co., 17 Kan. App. 2d 185, 188, 836 P.2d 19 (1992).
The issue argued by the parties, however, requires this court to interpret and reconcile two statutes. Interpretation of a statute is a question of law over which this court has unlimited review. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
K.S.A. 44-519 provides:
"No report of any examination of any employee by a health care provider, as provided for in the workers compensation act and no certificate issued or given by the health care provider making such examination, shall be competent evidence in any proceeding for the determining or collection of compensation unless supported by the testimony of such health care provider, if this testimony is admissible, and shall not be competent evidence in any case where testimon
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