Boutwell v. Domino's Pizza
Case Date: 05/15/1998
Court: Court of Appeals
Docket No: 77775
25 Kan. App. 2d 110 No. 77,775 GERALD BOUTWELL, Appellee, v. DOMINO'S PIZZA, Respondent, and KANSAS WORKERS COMPENSATION FUND, Appellant. Petition for review denied 265 Kan. 884 (1998). SYLLABUS BY THE COURT 1. Traumatic neurosis is covered under the Workers Compensation Act if it results from a covered physical injury and meets the other requirements of the Act. 2. Traumatic neurosis caused by an emotional, nonphysical trauma on the job is not covered in Kansas by the Workers Compensation Act. 3. Under the Workers Compensation Act, traumatic neurosis is to be treated like any other health problem. If a subsequent covered industrial accident aggravates, accelerates, or intensifies the disease or affliction, the worker is not to be denied compensation just because it is a preexisting condition. Appeal from the Workers Compensation Board. Opinion filed May 15, 1998. Affirmed. Michael T. Harris, of Patterson & VanZandt, L.C., of Wichita, and Francis Hesse, of Redmond, Redmond & Nazar, of Wichita, for the appellee. Steven L. Foulston, of Law Office of Steven L. Foulston, P.A., of Wichita, for the appellant. Before PIERRON, P.J., LEWIS, J., and ROBERT J. SCHMISSEUR, District Judge, assigned. PIERRON, J.: The Workers Compensation Fund (Fund) appeals from an award finding Gerald Boutwell permanently and totally disabled. Boutwell had a history of schizoaffective disorder. From 1979 to 1989, he held a variety of jobs, including salvage yard worker, hospital orderly, backhoe operator, and carpenter. Boutwell saw Dr. J. Luis Ibarra beginning in 1979 for his mental disorders. Dr. Ibarra treated him with psychotherapy and psychotropic medications. Boutwell had severe ongoing psychiatric problems, resulting in an involuntary commitment and other hospitalizations. Following Dr. Ibarra's retirement, Boutwell was treated by Dr. Poly Tan. Boutwell began working for Domino's Pizza in March 1989. While delivering a pizza to an apartment complex, he was attacked in an attempted robbery and received nine knife stab wounds. The attack resulted in injuries to his knees, the loss of a kidney, and the removal of part of his colon. On October 13, 1989, Boutwell applied for workers compensation. He subsequently impled the Workers Compensation Fund (Fund). The Fund then brought a civil action against Domino's seeking reimbursement, and that action was eventually settled. In 1996, the administrative law judge (ALJ) entered an award finding the attack had aggravated Boutwell's mental condition, resulting in permanent and total disability. The Workers Compensation Board (Board) adopted the ALJ's findings and conclusions and affirmed the award. The Fund timely appeals. The Board found Boutwell suffered post-traumatic stress disorder and was therefore eligible for compensation. The Fund argues on appeal that the evidence does not support this conclusion, either as a matter of fact or as a matter of law. This court will uphold the Board's finding if it is supported by substantial competent evidence, which is evidence possessing something of substance and relevant consequence and carrying fitness to induce conviction that the award is proper, or furnishing substantial basis of fact from which the issue can be reasonably resolved. Depew v. NCR Engineering & Manufacturing, 263 Kan. 15, 26, 947 P.2d 1 (1997). The evidence in the record amply supports the Board's factual conclusions. Following the attack, Boutwell complained of inability to sleep. He reported he experienced greater anxiety about being among people and experienced greater anger. He reported increased depression and spontaneous crying. He stated he was no longer able to compete, tolerate other people, or concentrate on a job with sufficient ability to hold regular employment. Dr. Ibarra, now retired, was a licensed psychiatrist with extensive experience in psychiatric practice. Although Dr. Ibarra is not board-certified in psychiatry, he was a licensed practicing psychiatrist and had been qualified as an expert in several trials. He met with Boutwell a number of times both before and after the attack. Dr. Ibarra testified Boutwell's mental state began to deteriorate after the attack. He began to manifest anger in ways he had not done before. Dr. Ibarra attributed the mental deterioration to the distress resulting from the assault. Dr. Ibarra noted that Boutwell had difficulty discussing the assault and appeared to be in denial about its effects on him. He testified the anxiety resulting from the assault precluded Boutwell from employment. Dr. Ibarra testified that while Boutwell had been marginally employable before the attack, he no longer had the ability to work. Dr. Ibarra increased Boutwell's diagnosed disability from at least 50% to 100% based on his ongoing observations. Dr. Ibarra testified Boutwell suffered from post-traumatic stress disorder. Dr. Tan also provided evidence of psychological disability. The Fund offered witnesses who testified by deposition that Boutwell suffered no lasting psychological effects from the attack. Dr. Neil Roach testified Boutwell had become emotionally stronger as a result of the attack. He claimed Boutwell had a "greater sense of omnipotence" as a result of the attack and was better able to resolve his anger. Although Dr. Roach saw signs of delusional and disorganized thinking, he observed little negative impact from the stabbing. In fact, Dr. Roach concluded that Boutwell was more stable and psychologically better off after the stabbing. He saw no evidence of post-traumatic stress disorder. Dr. Roach's analysis was based on written tests and one consultation with Boutwell. Dr. George Dyck testified that testing showed the attack had exacerbated Boutwell's withdrawal and suspiciousness but did not cause the onset of the symptomatology. He found no evidence of post-traumatic stress disorder. Dr. Dyck believed Boutwell would have had a marginal ability to maintain employment even without the attack. He expressly disagreed with Dr. Ibarra's conclusions and his basis for those conclusions. The appellate court cannot pass on the credibility of witnesses or weigh conflicting evidence. City of Wichita v. Rice, 20 Kan. App. 2d 370, 373, 889 P.2d 789 (1995). It is the function of the administrative hearing body to determine the weight or credibility of the testimony of witnesses. See Swezey v. State Department of Social & Rehabilitation Services, 1 Kan. App. 2d 94, 98, 562 P.2d 117 (1977). Although the ALJ could have elected to believe Dr. Dyck or Dr. Roach, he accepted the testimony of the two treating physicians, Dr. Ibarra and Dr. Tan. Given the severity of the attack and the preexisting condition, this decision appears reasonable. With our standard of review, it is very difficult to see how the Fund could possibly expect a reversal on this ground. The Board also found the attack aggravated Boutwell's preexisting schizophrenia. The Fund argues that the evidence does not support this conclusion and, taking a position of greater persuasiveness, that the law does not permit compensation for aggravation of a preexisting psychiatric condition. Again, this court will not reweigh the evidence. The Board's conclusion that the attack aggravated Boutwell's psychological problems appears reasonable and is supported by substantial credible evidence with which we will not burden the record by repeating. Of far greater difficulty is the question of whether an aggravation of a mental condition is compensable under our Workers Compensation Act. The history of this issue in the appellate courts of Kansas is long and somewhat puzzling. Hayes v. Garvey Drilling Co., 188 Kan. 179, 360 P.2d 889 (1961), initially involved an injury which occurred when Hayes stepped backwards onto some pump belts and was thrown to the ground, causing serious injuries to his left leg, back, and chest, as well as other injuries. Sometime after the commissioner made an unappealed finding that Hayes had suffered a 25.4% permanent partial general disability, Hayes filed an application for review and modification in which he alleged he was totally disabled due to psychiatric problems. He prayed for an order increasing the original award to one of total disability. Following a hearing on the request, the commissioner found "'that the anxiety tension state for which review and modification is sought, pre-dated the accidental injury suffered by claimant June 6, 1957, and that the application to review and modify the existing award should be denied.'" 188 Kan. at 180. The district court reversed on appeal, saying:
The Supreme Court noted:
Finally, the Supreme Court said:
From these statements it appears that Hayes clearly stands for the proposition that a preexisting mental condition which is aggravated by a work-related physical injury is compensable under the Workers Compensation Act if it has an impact on the ability to work. In Jacobs v. Goodyear Tire & Rubber Co., 196 Kan. 613, 412 P.2d 986 (1966), the court was presented with an employee who was caught between the alleged conflicting demands of his employer, who wanted a maximum number of tires built, and fellow employees, who wanted the production standard to be lower than that desired by management. Jacobs claimed the psychological stress this caused him led to a compensable psychiatric illness. There was no physical injury involved. The Jacobs court stated:
In Berger v. Hahner, Foreman & Cale, Inc., 211 Kan. 541, 506 P.2d 1175 (1973), Marvin Berger, while on a construction site, was struck in the right eye by a 2 x 4 board which eventually caused him to lose useful vision in that eye. Psychiatrists testified that crippling psychiatric problems had been generated by Berger's reaction to this injury and its impact, along with other preexisting conditions, on his ability to work. The ALJ and the trial court denied compensation for the psychiatric problems, as they believed the eye difficulty was a scheduled injury and there was no other injury "to a nonscheduled portion of the anatomy to support the general disability." 211 Kan. at 543. The Supreme Court reversed:
The court in Rund v. Cessna Aircraft Co., 213 Kan. 812, 518 P.2d 518 (1974), found that Mable Rund was apparently injured in a work-related accident. The determination of her physical injury caused the court no difficulty. It was the alleged aggravation of a psychosexual problem which lead to a 4-3 split on the court, with the majority denying coverage based on that complaint. The majority stated:
The Rund court reviewed Jacobs and noted:
The Rund court then stated: "Berger stands for the proposition that traumatic neurosis following physical injury, and shown to be directly traceable to such injury, is compensable under the Workmen's Compensation Act." 213 Kan. at 827. The court then turned to Mrs. Rund's problems:
In Buck v. Beech Aircraft Corporation, 215 Kan. 157, 523 P.2d 697 (1974), the court cited general rules concerning when mental problems arising out of a compensable work-related injury might also be compensable, but agreed with the trial court that no connection between the physical and mental problems had been proven. a mental problem which arose out of a worker's mental difficulties caused by a grisly fatal accident to another worker. The court, citing the requirements that there be a physical injury to the claimant, such as there was in Hayes, denied coverage. Another step in our analytical journey is provided by Love v. McDonald's Restaurant, 13 Kan. App. 2d 397, 771 P.2d 557, rev. denied 245 Kan. 784 (1989). In Love, an employee with no previous history of mental problems apparently started to have traumatic neurosis because of a job related fall/injury. The claim on the neurosis was denied under Ruse v. State, 10 Kan. App. 2d 508, 708 P. 2d 216 (1984), because it failed to meet the fourth element of the Ruse test for traumatic neurosis coverage: that there is a causal connection between the work claimant performed and the neurosis. The Ruse court apparently drew this from its reading of Rund, finding
Love overruled Ruse on this fourth element:
Earlier in his opinion in Love, Judge Elliott noted:
Of course, Love dealt with a mental condition that did not preexist the injury. But whether there should be a broad reading of the question generated by the Rund decision, whether there was a causal connection between the work performed and the neurosis, was squarely presented and found to be no longer viable due to later (and more specific and earlier) decisions. Review of Love by the Supreme Court was requested and denied. In Gleason v. Samaritan Home, 260 Kan. 970, 926 P.2d 1349 (1996), the Supreme Court was presented with a claimant who, while working at a nursing home, was struck by a patient. The court found on the issue of psychological injuries:
In other words, claimant had failed to establish a link between her physical injury and her psychological injury, if there was one. The Rund/Ruse/Love "causal connection" question apparently was not implicated. From our analysis, we draw the following conclusions: 1. Traumatic neurosis is covered under the Workers Compensation Act if it results from a covered physical injury and meets the other requirements of the Act. 2. Traumatic neurosis caused by an emotional, nonphysical trauma on the job is not covered in Kansas by the Workers Compensation Act. 3. As stated in Hayes, 188 Kan. at 184, under the Workers Compensation Act, traumatic neurosis is to be treated like any other health problem. If a subsequent covered industrial accident aggravates, accelerates, or intensifies the disease or affliction, the worker is not to be denied compensation just because it is a preexisting condition. The peculiar facts in Rund may well have justified a finding that the claimant's aggravated psycho-sexual problem was unrelated to any inability to work. However, the attempt to equate dicta on that issue with an unstated reversal of the Hayes ruling on the compensability of certain aggravated mental problems is wrong. Affirmed. |