Weaver v. Unified Government of Wyandotte County

No. 125,592

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

WILLIAM WEAVER,
Appellant/Cross-appellee,

v.

UNIFIED GOVERNMENT OF WYANDOTTE COUNTY,
Appellee/Cross-appellant.

SYLLABUS BY THE COURT

1.
To determine a functional impairment rating for scheduled injuries under K.S.A.
44-510d(b)(23), the fact-finder should begin with the Sixth Edition of the American
Medical Association Guides to the Evaluation of Permanent Impairment as a starting
point and consider competent medical evidence to modify or confirm that rating,
accordingly.

2.
No reduction for preexisting impairment under K.S.A. 44-501(e) is appropriate
when the evidence shows that the claimant's impairment resulting from his or her current
injury is different from the impairments for which the claimant has previously been
compensated.

Appeal from Workers Compensation Appeals Board. Oral argument held August 15, 2023.
Opinion filed November 17, 2023. Affirmed in part, reversed in part, and remanded with directions.

Keith L. Mark, of Mark & Burkhead, of Mission, for appellant/cross-appellee.

Denise E. Tomasic, of Tomasic & Rehorn, of Kansas City, for appellee/cross-appellant.

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Before WARNER, P.J., GARDNER and HURST, JJ.

GARDNER, J.: William Weaver appeals from his workers compensation award.
The Workers Compensation Appeals Board (the Board) interpreted K.S.A. 44-
510d(b)(23) of the Workers Compensation Act, K.S.A. 44-501 et seq. (the Act), to
exclude the use of competent medical evidence when assessing an impairment rating for
scheduled injuries. The Board held that the relevant statute requires use of the American
Medical Association Guides to the Evaluation of Permanent Impairment (6th ed. 2008)
alone. Weaver counters, and Wyandotte County agrees, that the Sixth Edition of the
Guides is merely a starting point and that competent medical evidence may be considered
in calculating an impairment rating of a scheduled injury. We agree as well.

The Unified Government of Wyandotte County cross-appeals, arguing that
Weaver's award should have been reduced due to his preexisting impairment, in
accordance with K.S.A. 44-501(e). But we find no error here. We thus affirm in part,
reverse in part, and remand for further proceedings.

Weaver's Work Injury

In August 2018, Weaver was employed by Kansas City Water Pollution Control,
which is part of the Unified Government of Wyandotte County (Wyandotte County), as a
full-time plant maintenance mechanic. At the time of his relevant accident, he had
worked for Wyandotte County for over 30 years.

On August 20, 2018, while working, Weaver and coworkers were trying to remove
a wall made of cinder blocks and a steel beam. The beam was so heavy that machinery
was needed to lift it. While removing the wall, the steel beam shifted and wedged
Weaver's right hand between the beam and the wall. Because of the beam's weight,
Weaver could not remove his hand. His coworkers had to use the machine to move the

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beam so Weaver's hand could be extricated. Because of this accident, both sides of
Weaver's right hand were injured below his pinky and ring fingers, as well as his right
wrist and thumb. During and after the accident, Weaver experienced pain in his right hand
and wrist and timely reported the accident to his supervisors.

Because of this injury, Weaver said he had significant pain and considerable
swelling in his right hand, from the back to the front of his hand in the area below his
pinky and ring fingers, and in his right wrist and thumb. The injury led to a lack of
circulation and sensitivity to touch. As a result, Weaver has difficulty performing basic
self-hygiene activities such as brushing his teeth, brushing his hair, and washing his body.
Activities requiring pushing or pulling with his right hand increase his symptoms.
Prolonged activities also increase his pain. Weaver described his pain as a deep
throbbing, which limits his ability to hold and grasp objects. This struggle with his grip
and the pain makes tasks at work such as using power tools, a hammer, and other objects,
difficult. The thumb pain and decreased function impair his ability to perform his job
because it affects his use of tools and compromises his ability to push, pull, and climb,
and decreases his range of motion.

Weaver received medical treatment for his injuries then returned to his regular
work duties on September 15, 2018. At the time of his accident, Weaver's wages entitled
him to the maximum benefit rate of $645 a week.

Weaver's Prior Work-Related Injuries

Weaver had four work injuries to his right upper extremity before his current
(August 2018) injury to that same extremity:

1. March 2009, settled based on a 10% permanent partial impairment to Weaver's
right middle finger;

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 2. May 2011, settled based on a 12% permanent partial impairment to Weaver's
right wrist;
3. March 2016 (injury to his right elbow), settled based on a 10% permanent
partial impairment to his right arm; and
4. May 2016 (injury to his first and second fingers on his right hand), settled based
on a 10% permanent impairment to his right hand.

Weaver testified there was no overlap between his injuries or symptoms from his August
2018 accident and those from any prior injury.

Weaver's Medical Evaluations

When Weaver reported his injury to his supervisors, Wyandotte County directed
him to receive medical treatment with its selected clinic (State Avenue Health Care), and
then with its selected orthopedic specialist (Dr. J. B. Moore). Wyandotte County referred
Weaver to Dr. Bruce Toby, an orthopedic physician at the University of Kansas Hospital.
Weaver was also evaluated by Dr. Anne Rosenthal for treatment recommendations and by
Dr. Michael Poppa for an independent injury rating. Later, Weaver was also evaluated by
Dr. Vito Carabetta, who performed an independent medical evaluation (IME) of Weaver's
injuries, as ordered by the administrative law judge (ALJ).

Drs. Poppa, Toby, and Carabetta all testified that Weaver had sustained new
functional impairment because of his August 2018 work accident, over and above any
previous impairments. We discuss their evaluations below.

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 1. Dr. Poppa's Evaluation

Dr. Poppa, Weaver's chosen doctor, testified that Weaver sustained a permanent
partial impairment because of the August 2018 accident. Dr. Poppa determined that
Weaver had
• a 19% permanent partial impairment to the right upper extremity if he
applied only the Sixth Edition of the Guides; and
• a 28% permanent partial impairment to the right upper extremity if he
applied the Sixth Edition of the Guides and used all other competent
medical evidence.

When assessing these impairment ratings, Dr. Poppa considered all of Weaver's ongoing
symptoms and limitations.

Dr. Poppa determined that Weaver had
• a 30% combined overall impairment of the right upper extremity before his
August 2018 work related injury, using Weaver's prior settlements and the
Guides as a basis;
• after the August 2018 injury, Weaver had an overall combined impairment
from his prior and current injury of 43% permanent partial impairment of
his right upper extremity by using the Sixth Edition alone; and
• a 50% permanent partial impairment of his right upper extremity by
using the Sixth Edition as a starting point and then adding competent
medical evidence.

2. Dr. Toby's Evaluation

Dr. Toby, Wyandotte County's selected physician, testified that Weaver had

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 • a 3% impairment rating to his right upper extremity if he applied only the
Sixth Edition of the Guides; and
• a 6% impairment rating if he used the Sixth Edition as a starting point and
considered all the competent medical evidence.

3. Dr. Carabetta's Evaluation

Dr. Carabetta, the court-appointed physician who conducted an IME, found that
Weaver had
• a 30% combined overall impairment of the right upper extremity before the
August 2018 work related injury using Weaver's prior settlements and the
Guides as a basis;
• an 8% impairment rating to his right upper extremity using the Sixth
Edition of the Guides alone;
• a 10% impairment rating to his right upper extremity using the Fourth
Edition of the Guides alone; and
• after the August 2018 injury, an overall combined impairment from his
prior and current injury of 36% to 37% permanent partial impairment of his
right upper extremity, depending on if the 8% or 10% rating, respectively, is
imposed.

The ALJ's Award

The ALJ credited Dr. Carabetta's testimony, being persuaded by his neutral and
unbiased opinion. Crediting Dr. Carabetta's rating using the Sixth Edition, the ALJ found
that Weaver's August 2018 work-related injury resulted in a permanent partial impairment
of 8% to his right upper extremity. In doing so, the ALJ declined to consider any ratings
that were not based strictly on the Sixth Edition. The ALJ held that K.S.A.

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44-510d(b)(23) requires one to use only the Sixth Edition when determining the
impairment of function related to a scheduled injury, thus "competent medical evidence"
is not to be considered.

The ALJ also declined to reduce Weaver's benefits for preexisting functional
impairment under K.S.A. 44-501(e). Wyandotte County argued Weaver should not
receive any benefits for his current injury because of his preexisting 30% impairment.
But the ALJ disagreed, finding Wyandotte County "point[ed] to no expert medical
evidence to support this position." Rather, the ALJ found that all three physicians testified
that their impairment ratings did not include Weaver's preexisting impairment in their
assessed ratings. In other words, their ratings were in addition to or independent of his
preexisting impairment.

Accordingly, the ALJ awarded Weaver $10,320 in benefits; 16 weeks of
permanent partial disability compensation at $645 per week. It also found that Weaver
was not entitled to future medical treatment.

The Board's Decision

Neither party was content with the ALJ's decision. Wyandotte County sought
review of the ALJ's award by the Workers Compensation Appeals Board (the Board), and
Weaver did the same.

In a split decision, the Board, by a majority of three members, affirmed the ALJ's
award in part and reversed in part. The Board concluded that the ALJ had erred by
finding Weaver was not entitled to future medical treatment, but it affirmed the award in
all other respects. Two conclusions of the Board's holding are crucial to this appeal: its
application of K.S.A. 44-510d(b)(23) and K.S.A. 44-501(e).

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 K.S.A. 44-510d(b)(23)

The Board held that Weaver sustained an 8% permanent partial impairment to his
right upper extremity from his August 2018 work-related accident. As had the ALJ, the
Board found Dr. Carabetta's rating most persuasive because he was the court-appointed
neutral evaluator.

The Board read K.S.A. 44-510d(b)(23) (the statute used to determine Weaver's
impairment rating for a scheduled injury) as requiring that rating to be based solely on the
Sixth Edition, to the exclusion of "competent medical evidence." The Board relied on its
decision in Butler v. The Goodyear Tire and Rubber Co., No. AP-00-0456-096, 2021 WL
2287732, at *4-5 (Kan. Work. Comp. App. Bd. May 27, 2021), which pointed out the
differences in the plain language between the scheduled injury statute applicable here
(K.S.A. 44-510d[b][23]), which does not reference "competent medical evidence," and
the non-scheduled injury statute (K.S.A. 44-510e[a][2][B]), which requires use of
"competent medical evidence." In Butler, the Board held, based on the plain language of
K.S.A. 44-510d(b)(23), that only the Sixth Edition may be used to rate scheduled injuries.
Under that rationale, an impairment rating for a non-scheduled injury under K.S.A. 44-
510e(a)(2)(B) could be based on both the Guides and competent medical evidence, see
Johnson v. U.S. Food Service, 312 Kan. 597, 600, 478 P.3d 776 (2021), but an
impairment rating for a scheduled injury under K.S.A. 44-510d(b)(23) must be based
solely on the Guides.

Two Board members dissented. John Carpinelli disagreed with the Board's
interpretation of K.S.A. 44-510d(b)(23). He found use of "competent medical evidence"
was mandated in part by the Sixth Edition's use of terms such as "accuracy," "precision,"
and "skill," stating:

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 "Therefore, an impairment rating assessed using the Guides must also be based
on a physician's medical knowledge, skill, and abilities, in addition to validity, accuracy,
precision, consistency, objectivity, medical science, measurements, test results, and
medical records, not merely looking at the Guides and assigning a number."

His view is reflected in the Sixth Edition itself, which states: "The accurate use of the
Guides requires a fundamental understanding of anatomy, physiology, pathology, and
other appropriate clinical sciences along with a good understanding of the issues related
to impairment and disability assessment." AMA Guides Sixth Edition, p. 23. And he
found the disparate effect—that an impairment rating for a non-scheduled injury would
be based on both the Guides and competent medical evidence, but an impairment rating
for a scheduled injury must be determined solely on the Guides—absurd.

K.S.A. 44-501(e)

Wyandotte County argued that the ALJ had erred by not reducing Weaver's award
under K.S.A. 44-501(e), based on his preexisting impairments. The Board disagreed. The
majority held:

"Under K.S.A. 44-501(e), an award of compensation shall be reduced by the
amount of functional impairment determined to be preexisting. Under K.S.A. 44-
501(e)(2)(A), in order to apply the credit for preexisting impairment, the Board must
consider the percentage of functional impairment determined to be preexisting. Each
physician testified their assessment of impairment was over and above Claimant's prior
impairments. As such, no amount of the impairment awarded by the ALJ was
preexisting."

Board member William Belden disagreed with that analysis. He argued that the Board's
approach (that K.S.A. 44-501[e] did not apply because the medical evidence gave Weaver

9
a rating above and beyond his prior injuries) improperly ignored the plain language of the
statute.

Ultimately, the Board affirmed the award but remanded for the inclusion of future
medical expenses—an issue not raised on appeal. Again, neither party is content with the
Board's decision. Weaver timely petitioned for judicial review of the Board's order
affirming his award, and Wyandotte County timely cross-petitioned for judicial review of
the Board's decision relating to preexisting impairments.

I. K.S.A. 44-510d(b)(23) PERMITS CONSIDERATION OF COMPETENT MEDICAL
EVIDENCE AND THE SIXTH EDITION OF THE GUIDES WHEN ASSESSING A
FUNCTIONAL IMPAIRMENT RATING FOR A SCHEDULED INJURY.

We first consider Weaver's argument that the Board must determine a functional
impairment rating under K.S.A. 44-510d(b)(23) (scheduled injuries) by looking at
competent medical evidence about the claimant's condition and at the Sixth Edition of the
Guides, yet it failed to do so here. Wyandotte County agrees that the functional
impairment rating under K.S.A. 44-510d(b)(23) should consider both the Sixth Edition of
the Guides and competent medical evidence, but it contends that Dr. Carabetta, and thus
the Board by adopting his analysis, did so here.

But the Board held that K.S.A. 44-510d(b)(23) prohibits one from considering
competent medical evidence when assessing an impairment rating for a scheduled injury
under K.S.A. 44-510d(b)(23). The Board based its decision on the contrast between the
plain language of K.S.A. 44-510d(b)(23), which governs scheduled injuries, to K.S.A.
44-510e(a)(2)(B), which governs whole body/nonscheduled injuries. The latter refers to
"competent medical evidence," while the former does not.

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 K.S.A. 44-510e(a)(2)(B), which governs whole body/nonscheduled injuries, states:

"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." (Emphasis
added.) K.S.A. 44-510e(a)(2)(B).

The Board found that the plain language of K.S.A. 44-510d(b)(23) requires the
functional impairment for a scheduled member to be determined solely by using the Sixth
Edition, as it says so and omits any reference to "competent medical evidence":

"Loss of or loss of use of a scheduled member shall be based upon permanent
impairment of function to the scheduled member as determined using 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, shall be determined by using the sixth edition of the American
medical association guides to the evaluation of permanent impairment, if the impairment
is contained therein." (Emphasis added.) K.S.A. 44-510d(b)(23).

Both parties agree that the Board's interpretation of K.S.A. 44-510d(b)(23) was
erroneous. K.S.A. 44-556(a) directs that final orders of the Workers Compensation Board
are subject to review under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et
seq., as amended. The standard of review varies depending on the issue raised. See
K.S.A. 77-621(c)(4) (permitting relief if the agency has erroneously interpreted or
applied the law). Because this issue presents a question of statutory interpretation, we
review it de novo. See Johnson, 312 Kan. at 600.

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 The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be determined. An appellate court first tries to
ascertain legislative intent through the statutory language enacted, giving common words
their ordinary meanings. When a statute is plain and unambiguous, an appellate court
should not speculate about the legislative intent behind that clear language. Montgomery
v. Saleh, 311 Kan. 649, 654-55, 466 P.3d 902 (2020). Where there is no ambiguity, the
court need not resort to statutory construction. Only if the statute's language or text is
unclear or ambiguous does the court use canons of construction or legislative history to
construe the Legislature's intent. In re M.M., 312 Kan. 872, 874, 482 P.3d 583 (2021).

A. Statutory Text

We begin with the text of the statutes, set out above. We have no quarrel with the
Board's reliance on the plain language of the two statutes, or its finding that the two
statutes use different language.

K.S.A. 44-510e(a)(2)(B) requires functional impairment to be "established by
competent medical evidence" and "based on the sixth edition" of the Guides," while
K.S.A. 44-510d(b)(23) states that impairment of function "shall be determined by using
the sixth edition" of the Guides and includes no reference to competent medical evidence.
And although non-scheduled injuries are in part "based on" the Guides (K.S.A. 44-
510e[a][2][B]), scheduled injuries "shall be determined" by using the Guides, K.S.A. 44-
510d(b)(23). We agree with the Board that the language is distinctively different.
Although the phrase "based on" typically signifies a starting place or a guideline,
Johnson, 312 Kan. at 602, "determined by" seems more restrictive. And in interpreting
parallel statutes, we have noted that the language in one statute may illustrate that the
Legislature knows how to state something omitted in another statute. See State v. Nambo,
295 Kan. 1, 4-5, 281 P.3d 525 (2012). That is where our analysis begins.

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 But unlike the Board, we do not stop there. As always, we must read the statute in
its proper context. To do that, we rely on the doctrine of in pari materia. Appellate courts
must consider various provisions of an act in pari materia with a view of reconciling and
bringing the provisions into workable harmony if possible. Miller v. Board of Wabaunsee
County Comm'rs, 305 Kan. 1056, 1066, 390 P.3d 504 (2017). We must construe statutes
to avoid unreasonable or absurd results, and we presume the Legislature does not intend
to enact meaningless legislation. In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d
778 (2014).

Recently, the Kansas Supreme Court explained that to determine the plain
meaning of an unambiguous statute, we look not only to the statute's language, but also to
the specific context in which that language is used, as well as to the broader context of
the statute as a whole:

"But even when the language of the statute is clear, we must still consider various
provisions of an act in pari materia to reconcile and bring those provisions into workable
harmony, if possible. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 919, 349 P.3d 469
(2015); Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296
P.3d 1106 (2013). Thus, the doctrine of in pari materia has utility beyond those instances
where statutory ambiguity exists. It can be used as a tool to assess whether the statutory
language is plain and unambiguous in the first instance, and it can provide substance and
meaning to a court's plain language interpretation of a statute." Bruce v. Kelly, 316 Kan.
218, 224, 514 P.3d 1007 (2022).

We thus read the Act's statutory definitions together with the statute in question to
determine its plain meaning.

The Workers Compensation Act, K.S.A. 44-501 et seq., defines "functional
impairment" as

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 "the extent, expressed as a percentage, of the loss of a portion of the total physiological
capabilities of the human body as established by competent medical evidence and based
on the fourth edition of the American medical association guides to the evaluation of
impairment, if the impairment is contained therein." K.S.A. 44-508(u).

Although this statute refers to the Fourth Edition rather than the Sixth, the parties agree
that the Sixth applies to Weaver's injury. There is thus no dispute before us as to which
edition applies.

"Functional impairment," as defined in K.S.A. 44-508(u), is the logical equivalent
of "impairment of function," as used in K.S.A. 44-510d(b)(23). Using K.S.A. 44-508(u)'s
definition, our evaluation of functional impairment must be established by competent
medical evidence and be based on the relevant edition of the Guides. That definition
applies regardless of whether a worker has suffered a scheduled or non-scheduled injury.

The broader context of the Act also supports that conclusion. The ALJ, by
referring Weaver for an IME, tacitly found that two medical opinions based on competent
medical evidence disagreed as to the percentage of his functional impairment. See K.S.A.
44-516(b) ("If at least two medical opinions based on competent medical evidence
disagree as to the percentage of functional impairment, such matter may be referred by
the administrative law judge to an independent health care provider who shall be agreed
upon by the parties.").

The plain language of K.S.A. 44-510d(b)(23), read in context, thus counsels that
ratings for scheduled injuries may consider competent medical evidence and need not be
based solely on the relevant edition of the Guides. The Guides serve as a starting point,
yet not necessarily an ending point.

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B. Relevant Caselaw

No Kansas appellate case has examined this issue relating to scheduled injuries.
Yet we find guidance from two recent cases on the same issue in the context of non-
scheduled injuries. Recently, the Kansas Supreme Court considered the constitutionality
of K.S.A. 44-510e(a)(2)(B), which governs non-scheduled injuries. See Johnson, 312
Kan. 597. That appeal arose because the phrase "competent medical evidence" does not
appear in the portion of the statute referring to post-January 1, 2015 injuries, but does
appear in the portion of the statute referring to pre-2015 injuries.

K.S.A. 44-510e(a)(2)(B), regarding non-scheduled injuries, states:

"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."

Johnson alleged that this statute was unconstitutional because a worker's right to
an adequate remedy under section 18 of the Kansas Constitution Bill of Rights would be
denied if only the Sixth Edition were considered. The Court of Appeals agreed, holding
K.S.A. 2015 Supp. 44-510e(a)(2)(B) unconstitutional on its face. Johnson v. U.S. Food
Service, 56 Kan. App. 2d 232, 257, 427 P.3d 996 (2018), rev'd 312 Kan. 597, 478 P.3d
776 (2021). But the Kansas Supreme Court rejected that argument, found the statute
ambiguous, and applied the doctrine of constitutional avoidance.

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 The Johnson court observed that the 2013 changes to the Act did not alter the legal
requirement that functional impairment must always consider 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.

We are not dealing with that non-scheduled injury statute here because Weaver's is a
scheduled injury controlled by K.S.A. 44-510d(b)(23). Yet the same logic applies. The
definition for "functional impairment" in the Act has always required that it be
"established by competent medical evidence." See K.S.A. 44-508(u). So for scheduled
injuries as well as for non-scheduled injuries, the key fact—the percentage of functional
impairment—must always be proved by competent medical evidence.

Similarly, in Garcia v. Tyson Fresh Meats, Inc., 61 Kan. App. 2d 520, 506 P.3d
283 (2022), another panel of this court discussed the purpose of the Act's quid pro quo by
which workers forfeit their right to bring a tort case in return for an adequate set of
substitute benefits. To achieve that purpose, the impairment rating process must consider
all relevant information:

"A process which ensures that all relevant information is represented in the
impairment rating equation safeguards the injured worker's right to receive a 'viable and
sufficient substitute remedy' for the relinquishment of their ability to pursue a tort-based
claim. See Lemuz v. Fieser, 261 Kan. 936, 959, 933 P.2d 134 (1997)." Garcia, 61 Kan.
App. 2d at 530.

Weaver makes a facially valid argument that prohibiting consideration of relevant
competent medical evidence about his injury would violate his procedural due

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process rights. See K.S.A. 44-501b(c) ("The burden of proof shall be on the
claimant to establish the claimant's right to an award of compensation and to prove
the various conditions on which the claimant's right depends. In determining
whether the claimant has satisfied this burden of proof, the trier of fact shall
consider the whole record."). And under the rule of constitutional avoidance, it is
our "duty to construe a statute as constitutionally valid when [we are] faced with
more than one reasonable interpretation." Hoesli v. Triplett, Inc., 303 Kan. 358,
367, 361 P.3d 504 (2015).

In Garcia, the Board had adopted an impairment rating for a non-scheduled injury
based solely on the Sixth Edition without considering competent medical evidence. A
panel from this court remanded the case for reevaluation with the directive that ratings be
grounded in a comprehensive assessment of competent medical evidence, with the Sixth
Edition as a starting point. 61 Kan. App. 2d at 531-32. The panel ultimately concluded
that its analysis may require recalculation of Garcia's impairment rating and, in doing so,

"the evaluating physicians' starting point for Garcia's rating must be the Sixth Edition. If,
in a physicians' expert medical opinion, the Guides provide too narrow a view of Garcia's
ability to work and a similarly understated functional impairment, they may (and should)
augment their evaluations using those tests, exams, reports, or resources they determine
in their professional expertise will yield a more accurate result." 61 Kan. App. 2d at 533.

We recognize that Johnson and Garcia dealt with non-scheduled injuries, yet we
find the broad language and the logic of those cases apply to scheduled injuries as well.
We see no good reason one should use competent medical evidence for non-scheduled
injuries, but not for scheduled injuries. True, because we are dealing with a scheduled
injury, the statutory percentage rating of impairment has primary importance, since the
Legislature has translated the percentage into a fixed rate of permanent disability. See
Redd v. Kansas Truck Center, 291 Kan. 176, 196-97, 239 P.3d 66 (2010) (finding the
AMA Guides are a "general instruction manual" for physicians to provide some

17
objectivity for evaluating workers compensation injuries, but the Legislature did not
intend them to supplant the Act's use of scheduled benefits).

Still, Wyandotte County does not show us why reliance on the Guides should be
conclusive for scheduled injuries but not for non-scheduled injuries. Because both
statutes seek to determine the percentage of functional impairment sustained on account
of the work-related injury—a determination heavily dependent on medical evidence—
competent medical evidence may be considered for both scheduled and non-scheduled
injuries.

C. Competent Medical Evidence

Our conclusion that "competent medical evidence" may be considered under
K.S.A. 44-510d(b)(23) leads us to the parties' first true dispute on appeal: Was Weaver's
award based on such evidence? Wyandotte County contends that Dr. Carabetta's
testimony, which the Board found to be most credible, was based on a reasonable degree
of medical certainty so the Board's finding was necessarily based on competent medical
evidence. On the other hand, Weaver argues that Dr. Carabetta's rating was based solely
on the Sixth Edition rating of 8% and excluded other competent medical evidence.

The Act mentions yet does not define "competent medical evidence." But several
cases have discussed what constitutes such evidence. In Clayton v. University of Kansas
Hosp. Auth., 53 Kan. App. 2d 376, 382, 388 P.3d 187 (2017), the parties agreed "the term
'competent medical evidence' in the context of workers compensation would normally
mean an opinion asserted by a health care provider that is expressed in terms of
'reasonable degree of medical probability' or similar language." The Kansas Supreme
Court has similarly classified competent medical evidence, holding that the opinion of a
health care provider stated with a reasonable degree of medical certainty is sufficient
competent medical evidence of causation. See Webber v. Automotive Controls Corp., 272

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Kan. 700, 704-05, 35 P.3d 788 (2001); see also Mulder v. Menard, Inc., No. AP-00-0458-
678, 2021 WL 6275018, at *5 (Kan. Work. Comp. App. Bd. December 29, 2021)
(holding "'competent medical evidence' is the opinion of a physician given within a
'reasonable degree of medical probability'"). It is undisputed that Dr. Carabetta's
testimony was based on a reasonable degree of medical certainty.

But the amorphous definition above largely relates to the admissibility of expert
medical opinions and does not provide much, if any, practical guidance as to what
competent medical evidence is. See Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303,
307-08, 756 P.2d 416 (1988) (expert medical opinion requires at least professional
probability). Opinions, including medical expert opinions, must be based on facts. K.S.A.
2022 Supp. 60-456(b) (sufficient facts and reliable principles or methods). For more
practical guidance, we look to Garcia, 61 Kan. App. 2d at 531-32, which directed a
physician to use the Sixth Edition and, if applicable, to "incorporate[] whatever exams,
patient reports, tests, or research that their training and experience directs them to use so
they might arrive at a fair and comprehensive result."

We agree with the Garcia panel that an examining physician may find that the
relevant edition of the Guides alone provides, or fails to provide, a sufficient basis for the
physician's assessment:

"In some circumstances, an examining physician might conclude the Sixth Edition
provides a sufficient basis alone to make a medically competent assessment of a worker's
impairment rating. By the same token, however, in other circumstances, the Sixth Edition may be
insufficient, requiring the examining physician to consider other reliable sources to make a
professionally informed rating. And, as with other things in the workers compensation field,
medical experts may disagree on the universe of information underpinning 'competent medical
evidence' in a particular case." 61 Kan. App. 2d at 532.

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See generally W.A. Krueger Co. v. Industrial Comm'n of Arizona, 150 Ariz. 66, 67, 722
P.2d 234 (1986) (The Guides are not to be blindly applied regardless of a claimant's
actual physical condition. Rather, their purpose is to serve as a guideline in rating an
impairment and are valid when the stated percentage truly reflects the claimant's loss.);
Gomez v. Industrial Comm'n of Arizona, 148 Ariz. 565, 570, 716 P.2d 22 (1986) (the
Guides alone were sufficient when the physicians agreed they accurately measured the
employee's scheduled loss).

The parties disagree as to what Dr. Carabetta's testimony meant, so we set it out at
length:

"[WEAVER'S COUNSEL]: . . . So according to Johnson, you don't give a 4th
rating. You start with the 6th and then you come up with what you believe to be the most
accurate rating for the individual's impairment that he sustained—or he or she sustained
in the work accident. Fair statement?
"[DR. CARABETTA]: Fair statement. And the way I do it is I have to back it up
by something.
"[WEAVER'S COUNSEL]: Mm-hmm.
"[DR. CARABETTA]: I can't say, 'Hey, in the Bible somewhere it says,' and
then just make up something, because I guess you can piece words together, but it may
not be exactly accurate. So I view it as one where if I just think it should be higher, that's
not enough for me. I want some proof for myself. So I want to go and look at a past
edition or another book that gives additional information, such as the VA puts out, and
get some additional information and then apply it.
"[WEAVER'S COUNSEL]: Well, if in this particular case you used the AMA
Guides 6th Edition as a standard starting point, but you then take into consideration the
more important and decisive competent medical evidence as established in the Johnson
case—and that would include your own expertise, your own training, knowledge,
expertise, also considering the thoroughness of your clinical examination, your review of
medical records including any diagnostic studies, as well as Mr. Weaver's subjective
complaints, as well as reviewing any other manuals, treatise, medical journal articles, or
anything else available to you that would be in your toolbox as a practicing physiatrist at

20
 the level that you do it—what do you believe would be the appropriate level of
permanent impairment that Mr. Weaver sustained as a result of the August 20, 2018,
work accident in isolation?
"[Objection from Weaver's counsel]
"[DR. CARABETTA]: Okay. From my clinical perspective, I don't see a
significant difference between the 10 percent and the 8 percent. They're actually pretty
darn close—you could average them out to 9—and if you told me is 9 more correct, and
the answer is they're roughly about the same.
....
"They're pretty similar. I hope you can work that out, but the question I ask myself is is
there a major difference between them, and from my perspective, there is not. They're
both fairly close. 10 percent is just as accurate as the 8 percent."

While Dr. Carabetta discussed the accuracy of his Fourth Edition rating and the
Sixth Edition rating (a discussion we omit above), it is unclear whether he considered
anything other than the Guides when making his impairment rating. True, Dr. Carabetta
testified that it is his practice, when determining an impairment rating, to look beyond the
Guides, to back up the rating with additional information, and to apply that information.
But when asked whether he followed that practice when rating Weaver, Dr. Carabetta
dodged answering that question. He instead compared the Sixth and Fourth Editions of
the Guides, assessed their two ratings as "pretty darn close," and concluded that he did
not "see a significant difference between" them.

We cannot find based on this record that Dr. Carabetta started with the Sixth
Edition and then considered other competent medical evidence in determining an 8%
impairment. Nor can we find that Dr. Carabetta determined that the Sixth Edition alone
provided a sufficient basis for his medically competent assessment, so he decided he had
no need to consider other reliable sources in making a professionally informed rating. We
simply cannot tell from his testimony what he did or did not consider. The Board and the
ALJ interpreted Dr. Carabetta's testimony to mean that he did not look beyond the Sixth
Edition to consider other competent medical evidence and both relied on Dr. Carabetta's

21
impairment rating based on the Sixth Edition. The Board's award was thus erroneously
based on a functional impairment rating that considered solely the Sixth Edition of the
Guides.

Accordingly, we remand this case for reevaluation consistent with our holding that
to determine a functional impairment rating for scheduled injuries, the fact-finder begin
with the Sixth Edition as a starting point and consider competent medical evidence to
modify or confirm that rating.

II. DID THE BOARD CORRECTLY FIND K.S.A. 44-501(e) INAPPLICABLE WHEN
CALCULATING WEAVER'S AWARD?

On cross-appeal, Wyandotte County argues that the Board violated K.S.A. 44-
501(e) by failing to reduce Weaver's award by the dollar amount of Weaver's
conclusively established preexisting impairment. It argues that Weaver had prior work
injuries to the right upper extremity which were settled for a total of 30% permanent
partial impairment, so Weaver should not receive any permanent partial impairment
benefits for his current work injury to that same extremity. Weaver counters that the
statute requires reduction of benefits only for preexisting injuries to the exact same body
part, not for all body parts in the same general region, thus no reduction of benefits is
warranted.

Although we are remanding this case based on the first issue, we address this
second issue because it is likely to arise on remand. This issue presents an issue of
statutory interpretation, so our review is de novo. Johnson, 312 Kan. at 600.

It is undisputed that Weaver had these prior work injuries and impairments:

22
 Injury date Injured body part Impairment rating
March 2009 Right middle finger 10% impairment
May 2011 Right wrist below first 12% impairment
and second fingers
March 2016 Right elbow 10% impairment
May 2016 First and second 10% impairment
fingers of right hand

Weaver's current injury in August 2018 was to both sides of Weaver's right hand below
his pinky and ring fingers, and to his right wrist and thumb.

The pertinent statute reads:

"(e) An award of compensation for permanent partial impairment, work
disability, or permanent total disability shall be reduced by the amount of functional
impairment determined to be preexisting. . . .

"(1) Where workers compensation benefits have previously been awarded
through settlement or judicial or administrative determination in Kansas, the percentage
basis of the prior settlement or award shall conclusively establish the amount of
functional impairment determined to be preexisting." K.S.A. 44-501(e).

Both the ALJ and the Board found this statute inapplicable because no physician
found any of Weaver's current functional impairment to be preexisting. The ALJ stated
that the

"respective impairment ratings did not include any preexisting impairments to [Weaver's]
right upper extremity, but rather were reflective of only the permanent partial impairment
[Weaver] sustained as a result of the August 20, 2018, work injury alone. Given that none
of the expert physicians have included preexisting impairment in their ratings, it cannot

23
 be said that any of the current functional impairment can be deemed to be preexisting, as
is required under K.S.A. 44-501(e)(2)(A) for Respondent to obtain a credit."

Similarly, the Board held that each physician's impairment rating was "over
and above" Weaver's prior impairments:

"Under K.S.A. 44-501(e), an award of compensation shall be reduced by the
amount of functional impairment determined to be preexisting. Under K.S.A. 44-
501(e)(2)(A), in order to apply the credit for preexisting impairment, the Board must
consider the percentage of functional impairment determined to be preexisting. Each
physician testified their assessment of impairment was over and above Claimant's prior
impairments. As such, no amount of the impairment awarded by the ALJ was preexisting.
"Respondent is not entitled to a credit for preexisting impairment."

Dr. Carabetta determined that Weaver had a 30% combined overall impairment of
his right upper extremity before the August 2018 work related injury using Weaver's prior
settlements and the Guides as a basis. Because Weaver had previously been awarded
workers compensation benefits through settlement in Kansas, the percentage basis of his
prior settlements "conclusively establish[es] the amount of functional impairment
determined to be preexisting." K.S.A. 44-501(e)(1). The parties do not dispute that 30%
reflects the correct amount of Weaver's prior combined impairment of his right upper
extremity before his current work injury.

But Dr. Carabetta testified that Weaver's 8% impairment rating resulted from a
new functional impairment due to his August 2018 work accident. In other words,
Weaver's 8% impairment was over and above any impairments he had sustained in the
past. Dr. Carabetta testified that he took great care not to include impairment ratings that
would be associated with Weaver's prior injuries. His rating of 8% permanent impairment
was for Weaver's new and distinct injury and impairment from the August 2018 accident,

24
not from any preexisting impairment. The other physicians similarly stated their
impairment ratings as in addition to those Weaver had previously sustained.

Both parties agree that K.S.A. 44-501(e) requires a reduction of benefits, when
applicable, but they disagree as to what part of the body must be previously impaired.
Wyandotte County argues that because Dr. Carabetta found that Weaver had a 30%
combined overall impairment of his right upper extremity before the August 2018 work
related injury, Weaver's 8% award for impairment to his right upper extremity should be
reduced by 30%, as the plain language of the statute requires. To the contrary, Weaver
argues that K.S.A. 44-501(e) requires a reduction only for the preexisting functional
impairment caused by a prior injury of the exact same body part; and because the
physicians agreed that their impairment ratings were above and beyond any preexisting
impairment, no reduction should be made.

A. Weaver's interpretation is too narrow.

As discussed above, our goal is to determine the legislative intent of the statute. To
do so through the statutory language enacted, we give common words their ordinary
meanings. Montgomery, 311 Kan. at 654. Again, we determine legislative intent by
looking at the statutory language enacted, including the definitions provided within the
Act. See Bruce, 316 Kan. at 224. So we return to the definition of "functional
impairment":

"the extent, expressed as a percentage, of the loss of a portion of the total physiological
capabilities of the human body as established by competent medical evidence and based
on the fourth edition of the American medical association guides to the evaluation of
impairment, if the impairment is contained therein." K.S.A. 44-508(u).

25
 A functional impairment thus consists of "the loss of a portion of the total
physiological capabilities of the human body." The statute does not define functional
impairment as the loss of a portion of the human body but speaks more generally to some
loss of the body's "total physiological capabilities." This language recognizes that an
injury to one part of the body may functionally impair a different part of the body.
Similarly, it permits the conclusion that successive injuries to the same body part may
cause different impairments of that same body part.

Weaver's interpretation, which would limit a preexisting impairment to one based
on an injury to the same exact body part, is too narrow. This is because an injury to one's
right hand and a later injury to one's right finger may cause separate or overlapping
functional impairments, despite the separate anatomical situs of the injuries.
Yet Weaver would have us find that an injury to one part of the body can never share a
functional impairment with a different part of the body, injured separately. Without any
medical support for that general proposition, we decline to adopt it.

Workers compensation benefit determinations in Kansas are based on the location
of the impairment manifestation, not on the situs of the injury. "It is the situs of the
resulting disability, not the situs of the trauma, which determines the workers'
compensation benefits available in this state." Fogle v. Sedgwick County, 235 Kan. 386,
386, 680 P.2d 287 (1984). Thus, even though Fogle had injured a nerve root in his back,
he sustained no back disability; instead, the disability manifested itself in his arm,
warranting compensation under K.S.A. 44-510d for a scheduled disability. That same
principle controlled in Bryant v. Excel Corp., 239 Kan. 688, 692, 722 P.2d 579 (1986).
There, an injury to a nerve in the arm manifested itself by disability in both the arm and
shoulder, so Bryant was entitled to recover for an unscheduled injury under K.S.A. 44-
510e. See also Scheuerman v. Learjet, Inc., No. 109,400, 2014 WL 1795999, at *4 (Kan.
App. 2014) (unpublished opinion) (affirming award of whole-body injury for neck pain
caused by a shoulder injury and not a distinct injury to the neck). Although these cases

26
examined predecessor statutes, they illustrate the practical problems with Weaver's
definition that limits preexisting impairment to impairment from two successive
workplace injuries to the exact same body part.

B. Wyandotte County's interpretation is too broad.

But neither do we adopt Wyandotte County's interpretation, as it would lead to
unreasonable results. "Generally, courts should construe statutes to avoid unreasonable
results and should presume that the legislature does not intend to enact useless or
meaningless legislation." Milano's, Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 501,
293 P.3d 707 (2013); see State v. Eckert, 317 Kan. 21, 31, 522 P.3d 796 (2023) ("A court
'must construe a statute to avoid unreasonable or absurd results.' [Citation omitted.]").

Under Wyandotte County's proposed reading, Weaver's prior elbow injury would
reduce his current injury to his wrist, ring and pinky fingers, and thumb because all "right
upper extremity" awards are per se preexisting impairments to any current injury to that
same general area. That overly broad reading would require a reduction of benefits for a
new impairment even though it is unrelated to a preexisting impairment, just because the
impairments are in the same bodily extremity.

Although that interpretation may uphold any intent of the legislation to prevent
claimants from double recovery for an injury, it would bar claimants from receiving
benefits for unrelated injuries that happen in the same region of the body. And barring a
worker from receiving an award for a new and distinct work-related impairment smacks
of unfairness, seems to violate the legislative intent to permit recovery for injury from
workplace accidents, and may violate the worker's due process rights. See Pardo v.
United Parcel Service, 56 Kan. App. 2d 1, 20, 422 P.3d 1185 (2018) (finding K.S.A. 44-
510d[b][23] unconstitutional as applied when Pardo's award was zero for a second rotator
cuff injury because he got "nothing in exchange for the removal of his right under § 18 to

27
seek a common-law award from his employer, which flies directly in the face of the quid
pro quo foundation that makes the Act constitutional").

K.S.A. 44-510d(b)(23) states that "[l]oss of or loss of use of a scheduled member
shall be based upon permanent impairment of function to the scheduled member." The
Legislature could have chosen to reduce the permanent partial impairment award for
scheduled injuries by the amount of preexisting impairment to the same scheduled
member, or to the exact same body part, or to the same bodily extremity, or to the same
region of the same extremity, or otherwise, yet it did not do so. Instead, it merely said
that such an award "shall be reduced by the amount of functional impairment determined
to be preexisting." K.S.A. 44-501(e). In the absence of any specific anatomical
limitations in this statute, we decline to write any in. Montgomery, 311 Kan. at 654-55
(court should avoid reading something into the statute that is not readily found in its
words). We find it reasonable that the Legislature intended the use of medical expertise to
address the nuances involved in determining impairments of the human anatomy.

C. Preexisting functional impairment is a medical determination.

The determination whether a claimant's functional impairment, or any part of it, is
preexisting, is a medical determination. As Dr. Carabetta explained, a person's previous
injury to the same body part may or may not cause a preexisting impairment:

"Because you can break your wrist and be compensated for it, but you could break the
wrist again and suffer more deformity such that it doesn't move the same way and we can
say you had a wrist fracture before we compensated you, but it's actually further
damaged.
....
"But if they have an injury to the same hand but different parts of the hand, as we
have in the case of Mr. Weaver, each one has to be dealt with individually. But if the same
exact area has been traumatized and there is no difference in its mobility, its strength, et

28
 cetera, then that one is a wash. That one doesn't count. So I medically have to look at it
specifically in isolation."

The determination that a claimant has a preexisting impairment cannot simply be
made by finding that a claimant's prior awards all establish preexisting functional
impairment, regardless of the situs of the impairment resulting from the current injury. It
is merely the amount of functional impairment that is conclusively established by prior
awards, once the medical expert determines that the impairment caused by the current
injury existed before the current injury occurred so it is, in fact, preexisting. The
employer thus no longer bears the burden to establish the amount of preexisting
impairment to be deducted. Compare K.S.A. 44-501(e)(1) (When workers compensation
benefits have previously been awarded "the percentage basis of the prior settlement or
award shall conclusively establish the amount of functional impairment determined to be
preexisting.") with Ward v. Allen County Hospital, 50 Kan. App. 2d 280, 324 P.3d 1122
(2014) (finding that under K.S.A. 44-510e[a], once it is established that workers
compensation claimant's current injury is an aggravation of the preexisting injury,
employer has the burden of proving the amount of preexisting impairment to be deducted,
and this determination must be based upon the AMA Guides). Because Dr. Carabetta
determined that no functional impairment from Weaver's August 2018 injury was
preexisting, the amount of Weaver's prior awards is immaterial.

D. Relevant Caselaw

The Board has dealt with this issue before and has seemingly based its
determination of preexisting impairments on the location of the impairment's
manifestation, not on the situs of the injury. In Jackson v. Amsted Rail Co., No.
1,058,952, 2013 WL 5521839, at *6-7 (Kan. Work. Comp. App. Bd. September 12,
2013), the Board applied K.S.A. 44-501(e) to reduce the claimant's second injury award
by the present value of the first injury's impairment. Jackson had injured his right

29
shoulder twice during his course of employment. In 2003, he was awarded permanent
partial disability benefits based on an 18% impairment to the shoulder. He then reinjured
that same shoulder in 2011. Both injuries were labral tears of the right shoulder, although
the second also tore his rotator cuff. The Board upheld an award of permanent partial
disability benefits based on a 20% functional impairment to his right upper extremity at
the level of the shoulder, then reduced it at the current dollar value of his preexisting 18%
impairment rating. This case illustrates proper application of K.S.A. 44-501(e)—reducing
benefits when preexisting impairments are shown. Still, Wyandotte County fails to show
that Weaver's impairments caused by his current injury existed before his current injury.

In Keenan v. State, No. AP-00-0462-203, 2022 WL 1057711, at *6 (Kan. Work.
Comp. App. Bd. March 22, 2022), the Board found a 23% impairment to the body as a
whole for a 2019 accident for various injuries (not including carpal tunnel injury) to the
claimant's upper right extremity. Keenan had received a prior workers compensation
award for bilateral carpal tunnel injuries. Yet the Board made no reduction under K.S.A.
44-501(e) for preexisting impairments, reasoning:

"Claimant's award of compensation in her first claim was limited to bilateral
carpal tunnel injuries. The new claim is for new and distinct body parts for which
compensation has not been awarded. Therefore, there is no 'functional impairment
determined to be preexisting' as contemplated by the credit contained under K.S.A. 44-
501(e) for the newly injured body parts and the credit does not apply." 2022 WL
1057711, at *6.

This case cuts against Wyandotte County's assertion that all prior awards for right upper
extremity impairment are per se preexisting impairments under K.S.A. 44-501(e) to a
later impairment of the right upper extremity.

Weaver's case is more like Keenan than Jackson. Weaver's prior injuries were to
his right middle finger, right wrist below the first and second fingers, right elbow, and

30
right first and second fingers. Weaver's current injury was to his right hand and wrist
below his ring and pinky fingers, his right thumb, and his wrist below his thumb. No
physician testified that these injuries caused any overlapping impairment, or that
Weaver's right hand and wrist below his ring and pinky fingers, his right thumb, or his
wrist below his thumb were previously impaired. The record lacks any evidence that
Weaver's prior impairments had any relation to the impairments caused by his current
accident. Thus, Wyandotte County has not shown that any impairments from Weaver's
August 2018 injury were preexisting as that term is used in K.S.A. 44-501(e).

Wyandotte County relies on two other cases to argue the Board erred by not
reducing Weaver's benefits under K.S.A. 44-501(e): Payne v. Boeing Co., 39 Kan. App.
2d 353, 180 P.3d 590 (2008), abrogated by Ballard v. Dondlinger & Sons Const. Co., 51
Kan. App. 2d 855, 355 P.3d 707 (2015), and Ward v. Allen County Hospital, 50 Kan.
App. 2d 280, 324 P.3d 1122 (2014). Both cases applied K.S.A. 44-501(e) to reduce the
claimant's award by their preexisting impairment. But in those cases, as in Jackson and
Willoughby, the preexisting and later injuries were to the same body part, see Ward, 50
Kan. App. 2d at 282 (injuries to the same vertebra); Payne, 39 Kan. App. 2d at 355-56
(injuries to lower back), and no one contended that the impairments were unrelated or
different. Not so here. No reduction under K.S.A. 44-501(e) in Weaver's award is
supported by the evidence.

We find it unnecessary to adopt either party's desired wording. We find no
reversible error in the Board's analysis. The Board considered K.S.A. 44-501(e) and
made a reasoned decision that no reduction under the statute could be made because it
had no evidence of preexisting impairment. The physicians agreed that Weaver's current
impairment was different from the impairments for which he had previously been
compensated. The record includes no medical testimony to the contrary. Cf. Hanson v.
Logan U.S.D. 326, 28 Kan. App. 2d 92, 96, 11 P.3d 1184 (2000) (applying previous
"aggravation" statute, finding that because the record lacked any evidence of the amount

31
of preexisting disability or impairment, the Board had no choice but to deduct zero from
the total).

Affirmed in part, reversed in part, and remanded with directions.

32