NOT DESIGNATED FOR PUBLICATION
No. 122,572
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
KEVIN R. PILE,
Appellee/Cross-Appellant,
v.
TEXTRON AVIATION, INC., and AMERICAN ZURICH INSURANCE COMPANY,
Appellants/Cross-Appellees.
MEMORANDUM OPINION
Appeal from Workers Compensation Appeals Board. Opinion filed July 23, 2021. Affirmed.
P. Kelly Donley and Brock J. Baxter, of McDonald Tinker PA, of Wichita, for appellants/cross-
appellees.
Michael L. Snider, of Snider & Seiwert, L.L.C., of Wichita, for appellee/cross-appellant.
Before POWELL, P.J., BRUNS, J., and STEVE LEBEN, Court of Appeals Judge Retired,
assigned.
PER CURIAM: Kevin R. Pile sustained a work-related injury as a result of
repetitive trauma arising out of his employment at Textron Aviation, Inc. (Textron). Pile
filed for workers compensation benefits and received an award from an Administrative
Law Judge (ALJ). However, the majority of the Workers Compensation Board of
Appeals (Board) modified the ALJ's decision and awarded additional benefits.
Thereafter, Textron filed a petition for judicial review in this court.
1
In its petition for judicial review, Textron and its workers compensation insurance
carrier contend that there is not substantial evidence in the record to support the Board's
decision to award benefits in excess of those ordered by the ALJ. In Pile's cross-petition,
he contends that the use of the American Medical Association (AMA) Guides to the
Evaluation of Permanent Impairment, Sixth Edition is unconstitutional as an inadequate
remedy of law under section 18 of the Kansas Constitution Bill of Rights. Because we
find substantial evidence in the record on appeal to support the Board's award and
because the Kansas Supreme Court has previously found the use of the Sixth Edition of
the AMA Guides to be constitutional, we affirm.
FACTS
Pile works for Textron in the company's composite tooling department. As part of
his job duties, Pile used power tools on a regular basis. These tools included a hand-held
grinder and an oscillating orbital sander. In June 2015, Pile noticed pain and tingling in
his right hand radiating up his arm. He also complained on occasion of less severe
symptoms in his left hand.
Pile underwent a nerve conduction study which revealed "bilateral carpal tunnel
syndrome, mild on the left and moderate in severity on the right." Subsequently, Dr.
David Gwyn performed right carpal tunnel release surgery on Pile and provided
conservative treatment to Pile's left extremity. On May 11, 2016, Dr. Gwyn rendered the
opinion that Pile had reached maximum medical improvement. Using the Sixth Edition of
the AMA Guides, Dr. Gwyn further opined that Pile had a 3% right upper extremity
impairment and no left upper extremity impairment.
Evidently, the carpal tunnel release surgery had mixed results, and Pile continued
to have symptoms of discomfort. As a result, Textron sent Pile to Dr. Chris Fevurly who
examined him on June 7, 2017. Following the examination, Dr. Fevurly opined that Pile
2
had not reached maximum medical improvement in his right upper extremity and referred
him to Dr. Mark Melhorn. Between September and November 2017, Dr. Melhorn
examined Pile on several occasions.
In October 2017, Dr. Melhorn reported that he found "[e]vidence of mild to
moderate bilateral carpal tunnel syndrome." Dr. Melhorn also found that Pile "does
continue to have [carpal tunnel] symptoms right and left." Nevertheless, Pile decided not
to undergo another right carpal tunnel surgical release procedure. Dr. Melhorn found that
Pile had reached maximum medical improvement and, using the Sixth Edition of the
AMA Guides, he found Pile had a 2% right upper extremity impairment and no
impairment of his left upper extremity.
After being released from Dr. Melhorn's treatment, Pile's workers compensation
attorney referred him to Dr. Pedro Murati. Over the next several months, Dr. Murati
examined Pile on two occasions. On December 12, 2017, Dr. Murati diagnosed Pile with
carpal tunnel syndrome and chronic regional pain syndrome in the right upper extremity
but did not render a diagnosis related to his left upper extremity. Later, Dr. Murati
examined Pile again and found symptoms of carpal tunnel syndrome in both his right and
the left upper extremities. Eventually, Dr. Murati rendered the opinion that Pile had an
8% right upper extremity impairment and an 8% left upper extremity impairment using
the Sixth Edition of the AMA Guides while noting that his impairment rating would be
higher if the Fourth Edition of the AMA Guides were used.
Due to the conflicting impairment ratings given by the physicians who examined
Pile, the ALJ ordered that Dr. Jarron Tilghman perform a neutral evaluation and issue an
impairment rating. Between March and September of 2018, Dr. Tilghman reviewed Pile's
prior medical records and examined him twice. Dr. Tilghman did not note any complaints
from Pile regarding his left hand or arm during either examination. However, Dr.
3
Tilghman did note that the results of previous testing had "revealed mild carpal tunnel
syndrome on the left and moderate carpal tunnel syndrome on the right."
Dr. Tilghman diagnosed Pile with pain, neuralgia, neuritis, and capal tunnel
syndrome in his right upper extremity. On September 22, 2018, he rendered the opinion
that Pile had a 5% right upper extremity impairment using the Sixth Edition of the AMA
Guides. He also recognized that the impairment rating would be higher under the Fourth
Edition of the AMA Guides. Dr. Tilghman offered no opinion regarding Pile's left upper
extremity.
On October 15, 2018, the ALJ held a hearing in which the parties stipulated that
Pile's injuries were the result of his work duties at Textron. In addition, Pile testified
regarding his symptoms in both his right and left upper extremities. In reaching his
decision, the ALJ also took into consideration the deposition testimony of Lori Halsey,
R.N., Dr Murati, and Dr. Melhorn.
The ALJ issued an award on August 7, 2019. In his decision, the ALJ adopted Dr.
Tilghman's opinion that Pile "suffered a 5% impairment of the right upper extremity
under the 6th edition of the guides" and awarded permanent partial disability
compensation benefits in the amount of $5,940. The ALJ found that "Dr. Tilghman noted
a previous diagnosis in the records of mild carpal tunnel syndrome on the left side but did
not rate that condition." As a result, the ALJ did not make an award for the left upper
extremity. Pile timely appealed the ALJ's award to the Board.
On February 4, 2020, the Board issued its order modifying the ALJ's award.
Specifically, the majority of the Board members found that Pile had a 7% impairment of
the right upper extremity and a 4% impairment of the left upper extremity under the Sixth
Edition of the AMA Guides. The majority also concluded that Pile had a 6% whole body
functional impairment. Consequently, the Board awarded Pile $14,790.60 in permanent
4
partial disability workers compensation benefits. Thereafter, Textron filed a petition for
review in this court, and Pile filed a cross-petition.
ANALYSIS
Substantial Competent Evidence
In its petition for judicial review, Textron contends that the award of the Board
is not supported by substantial competent evidence. In particular, it argues that the
majority's decision regarding Pile's functional impairment of his upper left extremity
was inappropriate. Instead, it suggests that the Board should have followed the ALJ's
decision by "adopting the neutral examiner's opinion" regarding Pile's impairment
rating.
We review the Board's decision under the provisions of the Kansas Judicial
Review Act (KJRA), K.S.A. 77-601 et seq. Under the KJRA, the party challenging the
Board's action—in this case Textron—bears the burden of showing the Board's action
was invalid. See K.S.A. 77-621(a). Here, we must review the record to determine
whether the decision of the Board is supported by evidence that is substantial when
viewed in light of the record as a whole. K.S.A. 77-621(c)(7). Moreover, "[t]he
determination of whether the Board's findings of fact are supported by substantial
competent evidence is a question of law." Estate of Graber v. Dillon Companies, 309
Kan. 509, 513-14, 439 P.3d 291 (2019).
The term, "in light of the record as a whole" is defined under the KJRA to mean:
"[T]hat the adequacy of the evidence in the record before the court to support a particular
finding of facts shall be judged in light of all the relevant evidence in the record cited by
any party that detracts from such finding as well as all of the relevant evidence in the
record . . . cited by any party that supports such finding, including any determinations of
5
veracity by the presiding officer who personally observed the demeanor of the witness
and the agency's explanation of why the relevant evidence in the record supports its
material findings of fact. In reviewing the evidence in light of the record as a whole, the
court shall not reweigh the evidence or engage in de novo review." K.S.A. 77-621(d).
A review of the order issued by the Board reveals that both the majority and the
minority carefully reviewed the conflicting evidence. In particular, we note that the
majority considered and discussed at length the various opinions offered by the medical
experts regarding Pile's impairment. In doing so, the majority concluded that Pile
suffered impairment in both his right and left upper extremities. At the same time, the
majority recognized that Pile's "right upper extremity symptoms are much more severe
than his left upper extremity symptoms."
To demonstrate the thoroughness of the review by the Board, we quote the
following analysis from the majority's opinion:
"The Board finds claimant sustained a left CTS injury by repetitive trauma that
arose out of and in the course of his employment. Specifically, the Board concludes
claimant's repetitive work activity was the prevailing factor causing his injury, need for
medical treatment and resulting disability. Dr. Melhorn's notes of October 26, 2017,
indicated claimant reported symptoms of left CTS. Moreover, r. Murati diagnosed
claimant with left CTS.
"From the judge's orders appointing Dr. Tilghman to evaluate claimant, it is
uncertain if Dr. Tilghman was asked to evaluate claimant's left upper extremity. The
doctor was largely silent on whether claimant had left CTS, other than to state the nerve
conduction tests revealed CTS. Dr. Tilghman was also silent on whether claimant had a
left upper extremity functional impairment, which is different than stating claimant had
no left upper extremity functional impairment rating.
"Although Dr. Gwyn opined claimant had no permanent left upper extremity
functional impairment, the Board gives it little weight. The judge only briefly mentioned
6
Dr. Gwyn in the Award and did not consider Dr. Gwyn's rating. The parties, in their
briefs and at oral argument, did not ask the Board to consider Dr. Gwyn's ratings. Dr.
Gwyn stated claimant had no left upper extremity impairment but provided little
explanation as to how he arrived at his opinion, even though he treated claimant's left
upper extremity conservatively. "The next issue is whether claimant has a right upper
extremity causalgia, or CRPS II. Drs. Murati and Fevurly diagnosed claimant with this
malady. However, Dr. Murati later indicated that claimant had no functional impairment
for right upper extremity CRPS. Thus, the majority of the doctors who evaluated the
claimant opined he either did not have right upper extremity CRPS II or he had no
functional impairment for that condition. Consequently, the Board finds claimant
sustained no right upper extremity functional impairment for CRPS II.
"Determining claimant's left and right upper extremity functional impairment is a
difficult and daunting task, due to divergent opinions of the experts. Dr. Murati's 8
percent left upper extremity rating is excessive, if one looks at Table 15-13, which is the
table Dr. Murati used to evaluate claimant. An 8 percent places claimant in Grade
Modifer 3. Grade Modifer 3 requires a test finding that claimant has axon loss, a history
of constant symptoms and atrophy or weakness. Claimant did not report having constant
symptoms and nerve conduction testing showed a conduction delay.
"Dr. Melhorn's opinion that claimant had no left upper extremity functional
impairment is based on the premise that claimant had no left CTS, a premise which the
Board has rejected. In order for claimant to be in Grade Modifier 0 of Table 15-23, he
would have a normal nerve conduction test result, have a history of mild intermittent
symptoms and have normal physical findings. Therefore, the Board chooses to average
the ratings of Drs. Murati and Melhorn and find claimant sustained a 4 percent functional
impairment to the left upper extremity for left CTS.
"With respect to claimant's right upper extremity, the Board notes the 2 percent
functional impairment rating of Dr. Melhorn places claimant in Grade Modifier 1. A
person in Grade Modifier 1 has a nerve conduction test finding of conduction delay, a
history of mild intermittent symptoms and normal physical findings.
7
"Dr. Tilghman's 5 percent rating places claimant in Grade Modifier 2. A person
in Grade Modifier 2 has test findings of motor conduction block, a history of significant
intermittent symptoms and physical findings of decreased sensation.
"Dr. Murati's 8 percent right upper extremity rating places claimant in Grade
Modifier 3. As indicated above, for a person to be in Grade Modifier 3, they must have
test results of axon loss, a history of constant symptoms and physical findings of atrophy
or weakness.
"The evidence is that claimant does not neatly fit into any of the grade modifiers.
Claimant's nerve conduction results of conduction delay would place him in Grade
Modifier 1; his history of ongoing symptoms would place him in Grade Modifier 2 or 3
and his physical findings would place him in Grade Modifier 2 or 3. The Board finds the
evidence is that claimant is either in Grade Modifier 2 or 3. Therefore, the Board will
average the 5 percent rating of Dr. Tilghman with Dr. Murati's 8 percent rating for a 6.5
percent right upper extremity functional impairment for right CTS. The Board also notes
that claimant's left CTS is mild to moderate and his right CTS is moderate to severe.
Claimant's right upper extremity symptoms are much more severe than his left upper
extremity symptoms.
"Using Table 15-11 of the Guides (6th ed.), claimant's 4 percent left upper
extremity functional impairment converts to a 2 percent whole person functional
impairment and his 6.5 percent (rounded to 7 percent) right upper extremity functional
impairment converts to a 4 percent whole person functional impairment. Then, using the
Combined Values Chart, claimant has a 6 percent whole person functional impairment."
Although reasonable minds could differ on how to weigh the evidence presented
in this workers compensation action, we find that there is substantial competent evidence
in the record—when viewed in light of the record as a whole—to support the Board's
majority decision.
The majority recognized that "Dr. Gwyn opined that claimant had no permanent
left upper extremity functional impairment." But it also noted that Dr. Gwyn had
8
previously diagnosed Pile with "bilateral carpal tunnel syndrome" and had treated his left
upper extremity in a conservative manner. In addition, the majority further discounted Dr.
Gwyn's opinion regarding left upper extremity impairment because "[t]he parties, in their
briefs and at oral argument, did not ask the Board to consider [his] ratings." The majority
further found that Dr. Gwyn "provided little explanation as to how he arrived at his
opinion, even though he treated claimant's left upper extremity conservatively."
Textron also argues that the majority erred in rejecting Dr. Melhorn's finding of no
carpal tunnel syndrome in Pile's upper left extremity. It should be noted, however, that
the majority did not reject Dr. Melhorn's opinion outright, but ultimately determined that
his opinion of 0% left upper extremity impairment should be averaged with Dr. Murati's
opinion of 8% left upper extremity impairment. By averaging the two, the majority
determined that a 4% impairment rating of the left upper extremity was warranted. We
find this approach to be reasonable given the significant conflict between the opinions
rendered by the medical experts.
Regarding Dr. Murati's opinion, Textron argues that the majority should have
afforded it no weight because he did not diagnose left carpal tunnel syndrome after his
first examination of Pile. However, the record reflects that Dr. Murati added a diagnosis
of a left upper extremity impairment after a subsequent examination. Specifically, we
note that Dr. Murati testified in his deposition as follows:
"A: Now, as you see, even though nerve conduction study called for bilateral, in the end
carpal tunnel syndrome is a clinical diagnosis.
"Q: Yes.
"A: Just because a study says you have it doesn't mean you really have it. That's why in
my clinical report on that date I did not believe he had clinical left carpal tunnel
syndrome.
9
"Q: Okay.
"A: But on the subsequent report I did say yes because it had more time to develop.
"Q: All right.
"A: And naturally so since he's favoring the right upper extremity.
"Q: Okay. And how would that likely affect his use of his left upper extremity . . .
"A: Well, just like if you have a car with electrical problems, it's going to give you some
problems, but let's just say the engine is bad, too. Then you're going to have probably
twice or more the trouble. It's not a good thing. Now you have two extremities involved.
"Q: Okay. So what I'm trying to get at is do you have an opinion to a reasonable medical
probability as to whether the subsequent development of left carpal tunnel syndrome
symptoms is causally related to the combination of his work activity and his treatment for
his right carpal tunnel syndrome?
"A: Yes, I do.
"Q: Does that indicate to you and can you tell us, do you have an opinion to a reasonable
professional certainty as to whether the prevailing factor causing these three separate
conditions, right carpal tunnel syndrome, right complex regional pain syndrome, and left
carpal tunnel syndrome, have as their prevailing factor the work activity that Mr. Pile was
doing, assuming he continued working with that condition after the development of
surgery and right carpal tunnel syndrome with chronic regional pain syndrome.
"A: It all started with the right hand and then went to the left.
"Q: Okay.
"A: It's all as a result of the repetitive traumas he sustained while working at Textron."
10
In addition, Dr. Murati's notes from his first examination of Pile list subjective
complaints of "tingling" in his left hand and pain in his left wrist. As Dr. Murati
explained in his deposition, his failure to provide an assessment of Pile's left upper
extremity in his initial report was due to an "oversight," and this is why he subsequently
amended his report to include the diagnosis. Once again, it is not our role to reweigh the
conflicting evidence, and we find that the majority's findings about Dr. Murati's opinion
to be supported by substantial competent evidence.
Finally, Textron argues that the majority's assessment of 8% right upper extremity
impairment is too high. Evidently, Textron would have us disregard other evidence in the
record and simply look to the opinions expressed by Dr. Tilghman and Dr. Melhorn. Yet
again, our role is not to reweigh the evidence or replace our judgment for that of the
Board. As a result, we decline Textron's invitation for us to replace our judgment for that
of the Board regarding Pile's right upper extremity impairment.
Constitutionality of K.S.A. 2020 Supp. 44-510e(a)(2)(B)
Pile contends that K.S.A. 2020 Supp. 44-510e(a)(2)(B) is unconstitutional. As the
parties are aware, the current version of the statue requires the use of the Sixth Edition of
the AMA Guides to evaluate permanent impairment under the Kansas Workers
Compensation Act for any injuries occurring on or after January 1, 2015. Here, it is
undisputed that Pile sustained a work-related injury due to repetitive trauma beginning on
June 6, 2015. As a result, the Board used the Sixth Edition of the AMA Guides in
rendering the award in this workers compensation action.
Determining a statute's constitutionality is a question of law over which we have
unlimited review. We are to presume statutes are constitutional and resolve all doubts in
favor of a statute's validity. We are also to interpret statutes in a way that makes them
constitutional if there is any reasonable construction that would maintain the Kansas
11
Legislature's intent. In other words, before striking down a statute as unconstitutional, the
violation must be clear. See Solomon v. State, 303 Kan. 512, 523, 364 P.3d 536 (2015).
The current version of K.S.A. 2020 Supp. 44-510e(a)(2)(B)—as amended in
2013—provides as follows:
"The extent of permanent partial general disability shall be the percentage of functional
impairment the employee sustained on account of the injury as established by competent
medical evidence and based on the fourth edition of the American medical association
guides to the evaluation of permanent impairment, if the impairment is contained therein,
until January 1, 2015, but for injuries occurring on and after January 1, 2015, based on
the sixth edition of the American medical association guides to the evaluation of
permanent impairment, if the impairment is contained therein."
In his brief, Pile argues that "the adoption of the Sixth Edition of the American
Medical Association Guides to the Evaluation of Permanent Impairment (6th ed. 2008)
[should] be deemed unconstitutional as there is no longer an adequate substitute remedy
for injured workers." Although Pile does not identify a specific constitutional provision
that he claims has been violated, it appears that he is arguing a violation of section 18 of
the Kansas Constitution Bill of Rights. This constitutional provision states that "[a]ll
persons, for injuries suffered in person, reputation or property, shall have remedy by due
course of law, and justice administered without delay."
Pile bases his argument on Johnson v. U.S. Food Service, 56 Kan. App. 2d 232,
257, 427 P.3d 996 (2018), in which a panel of this court held that with "the adoption of
the Sixth Edition of the AMA Guides, the Act has been emasculated to the point that it is
no longer an adequate quid pro quo for injured workers who suffer a permanent
impairment as a result of an injury occurring on or after January 1, 2015." However, in
Johnson v. U.S. Food Service, 312 Kan. 597, 478 P.3d 776, 780 (2021) (Johnson II), the
12
Kansas Supreme Court reversed the panel's decision and found that K.S.A. 2020 Supp.
44-510e(a)(2)(B) does not violate section 18 of the Kansas Constitution Bill of Rights.
In Johnson II, our Supreme Court explained:
"We hold that the language added in 2013 does not change the essential legal standard for
determining functional impairment. K.S.A. 2019 Supp. 44-510e(a)(2)(B) still requires
that ratings be 'established by competent medical evidence.' The 2013 amendments
merely reflect an update to the most recent set of guidelines—which serve as a starting
point for any medical opinion. K.S.A. 2019 Supp. 44-510e(a)(2)(B) has never dictated
that the functional impairment is set by guides. This has not changed. The key fact—
percentage of functional impairment—must always be proved by competent medical
evidence." 312 Kan. at 603.
Of course, as an intermediate appellate court, we are to follow the precedent
established by the Kansas Supreme Court absent some indication that it is departing from
its previous position. McCullough v. Wilson, 308 Kan. 1025, 1032, 426 P.3d 494 (2018)
("The doctrine of stare decisis recognizes that 'once a point of law has been established
by a court, that point of law will generally be followed by the same court and all courts of
lower rank in subsequent cases where the same legal issue is raised.'"). Significantly, Pile
raises no argument that was not raised—and ultimately rejected—in Johnson II. Because
the Johnson II decision was handed down by our Supreme Court only a few months ago,
we have no indication that it is departing from its position regarding the constitutionality
of K.S.A. 2020 Supp. 44-510e(a)(2)(B). Thus, we reject Piles' argument that the Board
erred in using the Sixth Edition of the AMA Guides in this action.
CONCLUSION
In sum, we conclude that the Board's award is supported by evidence that is
substantial in light of the record as a whole. While reasonable persons may differ
regarding the weight to be afforded to the conflicting medical opinions contained in the
13
record, it is not our role to reweigh the evidence. We also conclude that Pile has failed to
establish that K.S.A. 2020 Supp. 44-510e(a)(2)(B) is unconstitutional. Thus, we affirm
the award entered by the Board.
Affirmed.
14