Buchanan v. JM Staffing, LLC

No. 114,502
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JESSI L. BUCHANAN,
Appellant,
v.
JM STAFFING, LLC, and
COMMERCE & INDUSTRY INSURANCE CO.,
Appellees.
SYLLABUS BY THE COURT
1.
Decisions of the Workers Compensation Board are reviewed under the Kansas
Judicial Review Act. We review the Board's factual findings to determine whether they
are supported by substantial evidence.
2.
Substantial evidence is evidence that a reasonable person would accept as
sufficient to support a conclusion. We review the Board's findings based on the record as
a whole, including both evidence that supports its findings and evidence that detracts
from its findings. While we do not reweigh the evidence, we do consider whether the
evidence supporting the agency's decision has been so undermined by cross-examination
or other evidence that it is insufficient to support the agency's conclusion.
3.
Under K.S.A. 2015 Supp. 44-508(f)(2)(B), the accident must be the prevailing
factor in causing the worker's injury. That means that the accident must be the primary
cause of the injury.
4.
Kansas caselaw has long provided that injured employees are entitled to
compensation for any secondary injuries that are the natural and probable result of the
primary injury; this is known as the secondary-injury rule. The amendments made to the
Workers Compensation Act in 2011, which added the prevailing-factor requirement, did
not eliminate the secondary-injury rule. After the addition of the prevailing-factor
requirement, a secondary injury must be both the natural and probable consequence of the
primary injury and caused primarily by the work accident to be compensable.
5.
On the facts of this case, the Board's decision was not supported by substantial
evidence; the admitted evidence showed that the claimant's hip and back injuries were the
natural and probable consequence of her primary injury and were primarily caused by her
work accident.
Appeal from Workers Compensation Board. Opinion filed August 26, 2016. Reversed and
remanded with directions.
Jeff K. Cooper, of Topeka, for appellant.
Jodi J. Fox and Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., of Kansas
City, for appellees.
Before LEBEN, P.J., STANDRIDGE and ARNOLD-BURGER, JJ.
LEBEN, J.: In late May 2011, Jessi L. Buchanan was working on an assembly line
when she tripped and fell, severely fracturing two of the three major bones in her ankle.
After surgery, her ankle healed poorly, and she was left with lingering ankle pain,
stiffness, swelling, and loss of range of motion, all of which cause her to limp and walk
2
with a cane. She claims that her ankle fracture and resulting limp have caused injuries to
her hip and back. But an administrative law judge and the Kansas Workers Compensation
Board disagreed (although two of the five Board members dissented), finding that
Buchanan's accident wasn't the primary cause of her hip and back injuries and awarding
her compensation only for the ankle injury. Buchanan appeals, arguing that the accident
was the primary cause of her hip and back injuries.
The Board relied mostly on the testimony of the court-appointed medical expert,
Dr. Pat Do, because he was a neutral party. But because Dr. Do didn't examine
Buchanan's hip or back, there really is no substantial evidence to support Dr. Do's
opinion testimony about what did—or didn't—cause Buchanan's back and hip pain.
Additionally, the Board unnecessarily discredited the testimony of Buchanan herself.
Thus, we find that the Board's factual conclusion that Buchanan's accident wasn't the
primary cause of her hip and back injuries isn't supported by substantial evidence, and we
reverse and remand the Board's decision.
FACTUAL AND PROCEDURAL BACKGROUND
May 22, 2011, was Buchanan's first day of work on the assembly line at Reser's, a
job she obtained through JM Staffing. Reser's had put cardboard on the floor to soak up
water, and Buchanan tripped on the cardboard and fell, fracturing two of the bones in her
right ankle. She had surgery the same day, and Dr. Kurt Knappenberger repaired the
fracture with screws and a plate. There's no question in this case about the ankle fracture
itself or whether it was the result of a work accident—the dispute is about Buchanan's hip
and back injuries that she claims resulted from her ankle fracture.
Dr. Knappenberger treated Buchanan for 8 months following the surgery. His
records show that for the first 2 months, Buchanan didn't put any weight on her ankle; he
didn't instruct her to begin trying to walk on it until her July 22, 2011, appointment. One
3
month later, at Buchanan's next appointment, Dr. Knappenberger's physician's assistant
noted that Buchanan was limping and had decreased mobility, swelling, and stiffness.
The physician's assistant prescribed physical therapy at this appointment.
Dr. Knappenberger continued prescribing physical therapy through his last appointment
with Buchanan in January 2012. His records show that Buchanan's physical therapist
called on May 21, 2012, to request that he authorize additional appointments, so it
appears that Buchanan was participating in physical therapy as late as 1 year after her
injury and surgery.
Dr. Knappenberger's records show that as of January 2012, he believed Buchanan
wouldn't recover any further and that her stiffness and loss of range of motion would
likely be permanent, but the records don't mention any complaints of hip or back pain. At
his deposition in March 2014, Dr. Knappenberger testified that this lingering stiffness and
loss of range of motion are common following ankle fractures and that Buchanan's ankle
fracture was on the more extreme end of the spectrum. He also noted that the stiffness
and loss of range of motion would cause Buchanan to limp. Buchanan testified that Dr.
Knappenberger had told her there was nothing else he could do for her ankle and
recommended that she apply for disability.
As of January 2012, Dr. Knappenberger noted that Buchanan shouldn't work at all.
In October 2012, he assigned her a 13% impairment rating for the injury to her right
ankle based on the last time he saw her, but he noted that "this rating could change if the
examination is any different than my examination of her ankle 10 months ago." His
October 2012 report doesn't mention work restrictions at all, either to modify January's
complete restriction or to impose new or different restrictions.
Dr. Pedro Murati, Buchanan's medical expert, examined Buchanan in December
2012; he examined her legs, feet, hips, and back. Dr. Murati testified that Buchanan had
reported that her right hip and low back began hurting about 4 months after her surgery (2
4
months after she began trying to walk) and that she hadn't had any hip or back pain
before her ankle injury. He stated that Buchanan's ankle fracture had been severe and that
breaking both the inside and outside bones at the top of the ankle can make a full
recovery very difficult. Dr. Murati testified that Buchanan's ankle fracture had caused her
to limp and to use a cane to walk. He diagnosed Buchanan with low back pain with signs
of radiculopathy, right sacroiliac joint dysfunction, and right trochanteric bursitis. Dr.
Murati testified that Buchanan's right hip and low back injuries were caused by her limp
and wouldn't improve as long as she continued to limp.
Dr. Do examined Buchanan in April 2014 at the request of the administrative law
judge presiding over Buchanan's workers-compensation claim. Although Buchanan told
Dr. Do about her hip and back pain, he only examined her right ankle. He noted that her
range of motion was moderately restricted, that she had damage to the cartilage in her
ankle, and that her arthritis, night pain, and trouble walking were consistent with this type
of severe ankle injury. He testified that it was appropriate for Buchanan to use a cane to
walk. In Dr. Do's opinion, Buchanan should limit standing and walking to no more than
33% of her day. According to Dr. Do, Buchanan's hip and back pain could have been
caused by any number of things, including aging, wear and tear, and her limp, and he
couldn't say within a degree of medical certainty which of these was the primary cause.
Dr. Do also testified that because he wasn't sure Buchanan's hip and back pain would be
permanent, he couldn't give an opinion about the prevailing cause of those injuries.
Two experienced vocational experts also testified: Karen Crist Terrill for
Buchanan and Steve Benjamin for JM Staffing. Terrill relied primarily on Dr. Murati's
report, which included work restrictions based on all of Buchanan's injuries: ankle, hip,
and back. (She also relied on Dr. Knappenberger's report and a report from a Dr. Hufford,
whose report isn't included in the record.) Based on these reports and on Buchanan's work
history, Terrill concluded that Buchanan wasn't able to engage in any substantial gainful
employment. On the other hand, Benjamin relied primarily on Dr. Do's restrictions,
5
which were based only on Buchanan's ankle injury, to conclude that there were some jobs
that Buchanan could still do. Benjamin's report confirmed, however, that if he relied on
Dr. Murati's broader restrictions, Buchanan wouldn't be able to find work. Benjamin also
noted that his assessment of the work Buchanan would be able to do didn't account for
her use of a cane.
Buchanan testified before administrative law judge Rebecca Sanders in January
2014. Buchanan has a high-school diploma and training as a welder. She described her
work accident and testified that her hip and back pain developed as a result of her ankle
fracture. She denied having any hip or back pain before the ankle fracture. She noted that
she hadn't worked since the accident and that she receives Social Security disability
benefits. Buchanan testified that she has trouble sleeping, has a hard time getting in and
out of the bath, loses her balance when she bends over, can only stand up for 15 minutes
at a time, has to elevate her leg when she sits down, can't bend over to pick up a basket of
laundry, and has to lean against the counter to do the dishes.
For reasons not clear in our record, a different administrative law judge (Jerry
Shelor, who didn't see Buchanan testify) made the initial ruling in the case. He awarded
Buchanan temporary total disability and future medical treatment for her right ankle but
found that her hip and back injuries weren't compensable because her work accident
wasn't the prevailing factor in causing them. The judge relied on Dr. Do's conclusions
because Dr. Do was a neutral, court-appointed expert.
Three members of the Kansas Workers Compensation Board affirmed the award
over the dissent of the other two members. The majority found that Buchanan wasn't
completely credible and accepted Dr. Do's testimony because he was a neutral expert.
The dissent, on the other hand, argued that Dr. Do had misunderstood the prevailing-
factor analysis and found Dr. Murati's opinion more persuasive because he had actually
examined Buchanan's hip and back.
6
Buchanan has appealed to our court.
ANALYSIS
Buchanan argues that the Board wrongly determined that her work accident wasn't
the prevailing factor in causing her hip and back injuries.
We review the Board's order under the Kansas Judicial Review Act, K.S.A. 77-
601 et seq. K.S.A. 2015 Supp. 44-556(a). We may grant relief only if, among other
reasons not relevant here, the Board has wrongly interpreted or applied the law or if the
Board's findings aren't supported by substantial evidence. K.S.A. 2015 Supp. 77-
621(c)(4), (7). We have unlimited review over questions involving the interpretation of a
statute, owing no deference to the Board's interpretation. Ft. Hays St. Univ. v. University
Ch., Am. Ass'n of Univ. Profs., 290 Kan. 446, 457, 228 P.3d 403 (2010). Substantial
evidence is evidence that a reasonable person would accept as sufficient to support a
conclusion. Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360,
363, 212 P.3d 239 (2009). We review the Board's factual findings based on the record as
a whole, including both evidence that supports its findings and evidence that detracts
from its findings. K.S.A. 2015 Supp. 77-621(d). While we do not reweigh the evidence or
engage in unlimited review, we do consider "whether the evidence supporting the
agency's decision has been so undermined by cross-examination or other evidence that it
is insufficient to support the agency's conclusion." Herrera-Gallegos, 42 Kan. App. 2d at
363.
Throughout its brief, JM Staffing states that the Board's determination—that
Buchanan didn't prove that her hip and back injuries are compensable—is a negative
finding that we can disturb only if the Board arbitrarily disregarded undisputed evidence
or relied on some extrinsic consideration such as bias, passion, or prejudice. In support of
7
its position, JM Staffing cites a 2008 Kansas Supreme Court decision, Hall v. Dillon
Companies, Inc., 286 Kan. 777, Syl. ¶ 3, 189 P.3d 508 (2008), but doesn't mention the
2009 statutory change to K.S.A. 77-621 that eliminated the negative-findings standard.
See K.S.A. 2015 Supp. 77-621(c)(7), (d) (requiring that the reviewing court consider all
the evidence, including evidence that "detracts from" the agency's findings). JM Staffing
also leaves out the several opinions our court has issued since 2009 noting this change.
E.g., Wimp v. American Highway Technology, 51 Kan. App. 2d 1073, 1076-77, 360 P.3d
1100 (2015); Olds-Carter v. Lakeshore Farms, Inc., 45 Kan. App. 2d 390, 395, 250 P.3d
825 (2011); Herrera-Gallegos, 42 Kan. App. 2d at 362. In our review, we must consider
all of the evidence in the record and decide whether it's sufficient to support the Board's
conclusions. See K.S.A. 2015 Supp. 77-621(d).
Changes to the Workers Compensation Act are also important in this appeal. Since
May 15, 2011, the Act has provided that an injury caused by an accident only "arise[s]
out of employment" if there is a "causal connection between the conditions under which
the work is required to be performed and the resulting accident" and "the accident is the
prevailing factor causing the injury, medical condition, and resulting disability or
impairment." (Emphasis added.) K.S.A. 2015 Supp. 44-508(f)(2)(B); L. 2011, ch. 55, sec.
5. The addition of the prevailing-factor test is one part of a set of larger changes to the
law: employees can no longer recover for injuries that are solely aggravations or
accelerations of preexisting conditions. See Le v. Armour Eckrich Meats, 52 Kan. App.
2d 189, 193-94, 364 P.3d 571 (2015). Because a "prevailing factor" is "the primary
factor, in relation to any other factor," the new test is especially relevant when an
employee suffered a work accident but also had some preexisting condition. K.S.A. 2015
Supp. 44-508(g); see, e.g., Le, 52 Kan. App. 2d at 200 (considering whether chronic pain
following a back fracture was caused by preexisting osteoporosis or the work accident
that caused the fracture). An employee can only recover if the accident, and not the
preexisting condition, was the primary cause of injury. See Le, 52 Kan. App. 2d at 198-
200; K.S.A. 2015 Supp. 44-508(f), (g).
8
Here, Buchanan's initial ankle fracture is undisputedly a compensable injury
caused by an accident arising out of her employment: she was at work, where cardboard
had been placed on the floor to soak up water, and she tripped on the cardboard,
fracturing her ankle. The fall was caused by work conditions (the cardboard) and was the
prevailing factor in her ankle fracture (in fact, the only factor, since she had no
preexisting ankle injuries).
Additionally, since at least 1972, Kansas caselaw has provided that injured
employees are also entitled to compensation for any secondary injuries that are the
natural and probable result of the primary injury: this is known as the secondary-injury
rule. E.g., Casco v. Armour Swift-Eckrich, 283 Kan. 508, 515-16, 154 P.3d 494 (2007);
Jackson v. Stevens Well Service, 208 Kan. 637, 643, 493 P.2d 264 (1972). No Kansas
court has yet addressed how or whether the secondary-injury rule has been changed by
2011 statutory amendments, but nothing in the prevailing-factor test is incompatible with
the secondary-injury rule. Both deal with causation in slightly different ways: 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. Compare K.S.A. 2015 Supp. 44-508(g) with Casco, 283 Kan. at 515-
16.
While we are not bound by its interpretation, the Board has taken the position that
the 2011 amendments didn't change the secondary-injury rule but added the prevailing-
factor analysis: a secondary injury must be both the natural and probable consequence of
the primary injury and caused primarily by the work accident. E.g., Dawe v. The Arnold
Group, No. 1,067,719, 2014 WL 2616674, at *4 (Kansas Workers Compensation Board
2014) (applying prevailing-factor analysis and secondary-injury rule, finding that neck
injury caused by compensating for an accidental shoulder injury was the natural and
probable consequence of the shoulder injury and the work accident was the prevailing
9
factor); Griffie v. Watson Services, No. 1,064,916, 2014 WL 889875, at *6-7 (Kansas
Workers Compensation Board 2014) (applying prevailing-factor analysis and secondary-
injury rule, finding that left shoulder injury was caused by a genetic defect, not by
compensating for right shoulder injury that had been caused by work accident); Finton v.
Peninsula Gaming Partners, No. 1,064,118, 2013 WL 4779986, at *3-4 (Kansas Workers
Compensation Board 2013) (applying prevailing-factor analysis and secondary-injury
rule, finding that work accident was prevailing factor in a head injury that resulted from
fainting after cutting finger at work and seeing blood). Because we view the secondary-
injury rule and the prevailing-factor analysis as compatible and because the legislature
didn't mention the secondary-injury rule in the 2011 amendments, we agree with the
Board: all injuries, including secondary injuries, must be caused primarily by the work
accident. See State v. Quested, 302 Kan. 262, 283, 352 P.3d 553 (2015) ("[C]ourts
generally presume that the legislature acts with full knowledge of existing law.").
So if Buchanan's hip and back problems are compensable, they must (1) have been
caused primarily by the work accident that caused the ankle fracture and (2) be the
natural and probable consequence of the ankle fracture.
With these criteria in place, let's turn to the evidence. There was absolutely no
evidence that Buchanan had any problems with her hip or back before the May 2011
ankle injury. Dr. Do suggested that Buchanan's hip and back pain may have been due to
aging or "wear and tear," but that opinion is just speculation: he didn't examine her hip or
back and said he had no reason to think she had any preexisting hip or back conditions,
either from Buchanan herself or from her medical records. He ultimately testified that he
simply couldn't say whether her hip and back pain was caused by the ankle fracture. Dr.
Murati, on the other hand, examined Buchanan's hip and back and testified that the
injuries to these areas were caused by the ankle fracture. Buchanan herself denied any
preexisting hip or back problems, and the medical records don't show any either.
10
What does the evidence show about the cause of Buchanan's back and hip
problems? Significantly, there's no real question that Buchanan's ankle fracture caused
her to have a limp. Two months after surgery, Dr. Knappenberger told Buchanan that she
should start trying to put weight on her right ankle. Dr. Knappenberger's records show
that at her next appointment, after 1 month of weight bearing, Buchanan was limping and
had decreased mobility, stiffness, and swelling in her ankle. Two months later, in October
2011, Buchanan was still limping and complaining of pain in her ankle. Dr.
Knappenberger testified that Buchanan's limp could be inferred from the stiffness of her
ankle; in other words, her decreased range of motion caused her to limp. Buchanan's
stiffness, pain, and limp were still present in January 2012, at her last appointment with
Dr. Knappenberger, and he noted that the stiffness and limping would likely be
permanent: "The problem is not changing in character. The pain is aggravated by walking
and standing. There are no relieving factors. Associated symptoms include difficulty
going to sleep, feeling of instability, lack of joint motion, limping, night pain, stiffness
and tenderness." (Emphasis added.) Dr. Knappenberger also noted: "It is clear that there
will be permanent stiffness and loss of [range of motion]."
Both Dr. Murati and Dr. Do also noted that Buchanan had a limp and used a cane
to walk, although Dr. Do's testimony on this point is not completely clear. Dr. Murati
examined Buchanan in December 2012, about a year and a half after her injury. He noted
that she had a "severe antalgic gait," also known as a limp, and that her use of a cane was
appropriate. Dr. Do examined Buchanan in April 2014, 3 years after her injury. When
asked if Buchanan had an altered gait, Dr. Do stated: "In my exam section I did not note
that she had an altered gait." But Dr. Do's report does say that Buchanan was using a cane
to walk, and he testified that her use of a cane was appropriate. Dr. Do also noted that she
had moderate range-of-motion deficits, which Dr. Knappenberger had testified would
cause a limp. All of this evidence, taken together, establishes that Buchanan has a limp
that is likely to be permanent, caused by the stiffness and loss of range of motion that
resulted from her ankle fracture.
11
Next, there was strong evidence that Buchanan's limp caused her hip and back
pain: Dr. Murati, the only doctor involved in this case who actually examined Buchanan's
hip and back, testified that Buchanan's hip and back pain was caused by her undisputed
limp. Buchanan told Dr. Murati that her hip and back began hurting about 4 months after
her surgery, or 2 months after she began bearing weight on her injured ankle—in other
words, 2 months after she began limping. Dr. Murati diagnosed the hip and back injuries
as low back pain with signs of radiculopathy, right sacroiliac joint dysfunction, and right
trochanteric bursitis, all caused by the limp, which was a result of the stiffness and
swelling in her right ankle. Dr. Knappenberger's testimony supports the proposition that
stiffness and swelling in the ankle would cause a limp. Dr. Murati testified that as long as
Buchanan was limping, her back wouldn't heal. And Dr. Knappenberger indicated that
the symptoms causing Buchanan's limp were likely to be permanent.
Buchanan also testified that her hip and back pain are connected to her ankle
injury. She said she hadn't had problems with her right leg or ankle, her hip, or her back
before the accident at Reser's. She testified that her leg problems had caused the problems
in her hip and back:
"Q. What do you believe caused your back and your hip to become problematic?
....
"A. . . . I believe it's because of my leg that twisted my—my leg got twisted and
it messed my hip up some how some way, and my leg is kind of turning in. It doesn't
work right. In other words, I just kind of feel like my leg got twisted and messed my hip
up.
"Q. What about your back?
"A. That's what causes my back to hurt.
"Q. Your hip causes your back to hurt?
"A. Yes, the whole thing, yeah."
12
Despite this testimony and the medical evidence supporting it, the Board
concluded that Buchanan's hip and back problems were not primarily caused by the
work-related accident. The Board based its conclusion on two key pieces of evidence.
First, Dr. Do, the court-appointed doctor, had said in his written report that the ankle
injury didn't cause the hip and back pain "from a prevailing factor standpoint." Second,
the Board discounted Buchanan's testimony on this point because it found no evidence
that treatment was prescribed for her hip or back pain, and the Board concluded that her
testimony wasn't credible because she contradicted herself about when her hip and back
pain began: "Claimant testified her back and hip symptoms began when her accident
occurred, but claimant told Dr. Murati her hip and back pain began around four months
following her accident." We do not believe this evidence constitutes sufficient,
substantial evidence to support the Board's conclusion that Buchanan's hip and back
injuries were not caused by the work-related ankle injury.
Dr. Do's conclusion does not stand up in light of his testimony that he didn't
examine Buchanan's hip or back and his ultimate testimony that he couldn't give an
opinion on causation under the prevailing-factor analysis. Asked what the prevailing
factor would be if Buchanan had had no hip or back problems before the ankle injury and
had been limping and using a cane since May 2011, Dr. Do said he "really can't say
within a reasonable degree of medical probability one way or the other per se." Similarly,
having said that in his view a claimant must have "permanent structural change" or "at
least a permanent aggravation" to pass the prevailing-factor test, Dr. Do agreed that he
could not give an opinion on the prevailing-factor question because he didn't know
whether Buchanan had any permanent damage to her back or hips. Dr. Do's testimony
does not provide substantial evidence to support the Board's conclusion.
The Board's problem with Buchanan's testimony seems picayune when placed in
context. Dr. Murati reported that Buchanan told him when he saw her in December 2012
that her hip and back pain began about 4 months after the accident; the Board accepted
13
that testimony. Then the Board concluded that Buchanan had told a completely different
story when she gave this testimony in January 2014:
"Q. Tell us about problems with your right ankle, why you use a cane.
"A. The pain and the swelling. My foot won't pivot. It's messed my hip up. My
hip hurts ever since I've had the accident. I've had a lot of pain to my hip and lower
back." (Emphasis added.)
From that 2014 testimony, the Board concluded that Buchanan had been so inconsistent
in her testimony about when she began to have hip and back pain that her testimony
should be dismissed as unbelievable.
In context, Buchanan was asked—nearly 3 years after the accident—to explain
why she used a cane. In response, she said that her hip had been hurting "ever since . . .
the accident." The Board interpreted this answer to be a statement that her hip and back
pain began at the exact same time as the ankle injury. But she wasn't responding to a
question about when her back and hip began hurting. And nearly 3 years after the
accident, a person could easily say that her hip had been hurting since the accident
without even thinking about the relatively brief time (2 months) after surgery when she
wasn't allowed to put any weight on her leg. That same person could easily overlook the
following month or 2 when, after beginning to walk, others observed her limping and
showing signs of decreased mobility, stiffness, and swelling—all preceding the hip and
back pain she had consistently reported from 4 months after the accident and surgery
(September 2011) until her 2014 testimony. In context, without a specific question about
exactly when the hip and back pain began, a witness could quite easily say that she'd had
it since the accident and surgery. Her response was an explanation about why she used a
cane—something she attributed to the back and hip pain caused by the accident—not a
detailed chronology of events. The Board's decision to disregard her testimony as wholly
unreliable is not supported by substantial evidence.
14
In sum, then, the Board could not rely on Dr. Do's testimony to determine whether
Buchanan's hip and back pain was caused by the ankle injury and could not altogether
disregard Buchanan's testimony, especially on points that were corroborated by others,
such as her consistent limp and the decreased mobility, stiffness, and swelling. While it's
true that the records don't show any specific treatment for her hip and back pain (although
Buchanan testified that physical therapists addressed it), there's also no evidence from
any doctor that any treatment would have been useful.
We recognize that we do not make credibility determinations, but we are required
to review the credibility determinations made by the Board as we determine whether
substantial evidence supports the Board's decision. See K.S.A. 2015 Supp. 77-621(c)(7),
(d). Here, given that Dr. Do did not examine Buchanan's hip or back and that Buchanan's
testimony cannot be disregarded for an overall lack of credibility based on the testimony
cited by the Board, we are left with Dr. Murati's causation opinion and substantial
evidence supporting it. There's no suggestion in the record on appeal that Buchanan's
pain isn't real, and there was evidence that her ankle stiffness and limp are likely to be
permanent and that her back won't heal as long as she's limping. Dr. Murati's diagnosis of
low back and hip conditions, because it's based on an actual examination of Buchanan's
back and hip, deserves more weight than Dr. Do's opinion. Neutrality isn't the only
marker of credibility; an expert's conclusions, to be reliable, should be based on more
than speculation. See K.S.A. 2015 Supp. 77-621(d).
The Board said that the work accident wasn't the prevailing factor in causing the
hip and back injuries—in other words, that it wasn't the primary cause, in relation to other
causes. See K.S.A. 2015 Supp. 44-508(g). But there was no evidence of other causes.
There was only Dr. Do's unfounded supposition that her hip and back injuries might have
been caused by aging or wear and tear rather than by her limp. The Board's actual
conclusion, based as it was on Dr. Do's testimony, seems to have been that Buchanan's
15
hip and back simply weren't injured. But there was plenty of evidence from Buchanan
herself and from Dr. Murati that she suffers from significant pain in her right hip and low
back. See Hanson v. Logan U.S.D. 326, 28 Kan. App. 2d 92, 95, 11 P.3d 1184 (2000) (a
claimant's testimony, standing alone, is sufficient to prove her condition), rev. denied 270
Kan. 898 (2001).
We should also note that the evidence shows that Buchanan's hip and back injuries
were the natural and probable result of her ankle injury. See Chinn v. Gay & Taylor, Inc.,
219 Kan. 196, 197-98, 201, 547 P.2d 751 (1976) (injury to claimant's knee caused change
in posture and gait, which resulted in a disability in claimant's back).
Dr. Knappenberger's records show that he thought, as of 8 months after surgery, that
Buchanan's stiffness and loss of range of motion were likely to be permanent. He testified
that these symptoms would cause her to limp. Dr. Murati testified that Buchanan's limp
caused the hip and back pain, which wouldn't heal as long as she continued to limp.
There was no evidence of any other accident—and no evidence of any preexisting
condition—that could have caused the hip and back pain.
Finally, JM Staffing argues that Buchanan isn't entitled to future medical expenses
for either her ankle injury or for her hip and back pain. The Board awarded Buchanan
future medical expenses for her ankle, based on Dr. Murati's recommendations, and JM
Staffing abandoned its argument against that award when it failed to file a cross-appeal.
State v. Novotny, 297 Kan. 1174, 1181, 307 P.3d 1278 (2013); see K.S.A. 2015 Supp. 60-
2103(h) (to obtain appellate review of adverse rulings, appellee must file notice of cross-
appeal). JM Staffing could argue that Buchanan isn't entitled to future medical expenses
for her hip and back, but that argument fails because we have found that Buchanan's hip
and back pain were caused by the work accident and are compensable.
16
We reverse and remand to the Board for an award consistent with our conclusions
that the ankle fracture was the prevailing cause of Buchanan's hip and back pain and that
the hip and back pain is the natural and probable consequence of the ankle fracture.
17