TWISS v. Liberty Mutual Insurance Co., Appellants. (2008)

AmeriCold Logistics and its insurance carrier, Liberty Mutual Insurance Company (collectively “AmeriCold”), appeal from the Kansas Workers Compensation Board's (Board) decision requiring AmeriCold to pay $7,775 in expenses for airlifting Kevin Stuart Twiss (Twiss) from St. Catherine Hospital in Garden City, to the burn center at St. Francis Hospital in Wichita.

Factual and procedural background

Twiss, an AmeriCold employee, received an electric shock while replacing a switch on a metal detector. He was taken to the emergency room at St. Catherine Hospital in Garden City and treated by Dr. Fady Jabre for an electrical burn. With Dr. Jabre's authorization, Twiss was airlifted to the burn center at St. Francis Hospital in Wichita.

AmeriCold subsequently claimed the cost of airlifting Twiss from Garden City to Wichita was not medically necessary and AmeriCold should not be responsible for payment of that cost

The administrative law judge (ALJ) found AmeriCold liable for the cost of the airlift. AmeriCold appealed to the Board, which affirmed the ALJ's order.

Discussion

On appeal, AmeriCold argues that the Board's decision that the airlift was reasonably necessary under K.S.A.2007 Supp. 44–510h(a) is not supported by substantial competent evidence. Twiss has not responded to AmeriCold's argument.

K.S.A.2007 Supp. 44–510h(a) requires an employer to provide medical services and treatment to an injured employee that “may be reasonably necessary to cure and relieve the employee from the effects of the injury.”

Our review of the Board's decision is limited to questions of law. K.S.A.2007 Supp. 44–556(a). Whether the Board's findings are supported by substantial competent evidence is a question of law. See Carr v. Unit No. 8169, 237 Kan. 660, 664–66, 703 P.2d 751 (1985) (employing substantial competent evidence standard to determine whether medical treatments received by claimant were reasonably necessary); see also Titterington v. Brooke Insurance, 277 Kan. 888, 894, 89 P.3d 643 (2004). Substantial evidence is evidence of substance and relevant consequence, carrying a fitness to induce conviction that the award is proper or furnishing a substantial basis of fact for reasonably resolving the issue. Casco v. Armour Swift–Eckrich, 283 Kan. 508, 514, 154 P.3d 494 (2007). We review the evidence in a light most favorable to the prevailing party without reweighing the evidence or redetermining the credibility of witnesses. 238 Kan. at 514–15, 713 P.2d 451.

Here, the evidence showed that Twiss was taken to St. Catherine's emergency room in Garden City, where he was treated by Dr. Jabre for an electrical burn. Dr. Jabre testified that based on Twiss' appearance, vital signs, and the low voltage of the electrical shock he received, Jabre initially felt Twiss could be treated adequately at St. Catherine. However, responding to a question concerning the seriousness of the burn, Dr. Jabre also stated: “We don't have the amperage to see how deep and how severe the burn can go inside the muscle and the veins.”

Further, after requests from Twiss, his family, the nursing coordinator, and the director of nursing that Twiss be transferred to the burn center for treatment, Jabre authorized Twiss' transfer by airlift to the burn center at St. Francis in Wichita for further evaluation. According to Dr. Jabre, he recommended the airlift because “[i]f you [are] going to transfer somebody with a burn to a burn center, it's better to be transferred by aircraft.”

Twiss testified that Dr. Jabre recommended that he go to the burn center at St. Francis for further evaluation, and Jabre willingly completed the documentation authorizing the airlift.

AmeriCold points out that its workers compensation physician, Dr. Terry Hunsberger, testified that Dr. Jabre contacted him on the day of Twiss' accident and told him that he felt Twiss should be hospitalized overnight at St. Catherine. Hunsberger agreed with Jabre's assessment, although he had not seen or examined Twiss. Hunsberger further testified he believed it was unnecessary to transport Twiss to another hospital because Dr. Jabre had advised him that Twiss was not suffering from cardiac arrhythmia or a severe neurological problem. In addition, Dr. Hunsberger stated he consulted with a cardiologist in Wichita, who told Hunsberger that it would probably be safe to keep Twiss at St. Catherine if he was not experiencing cardiac arrhythmia. Finally, Hunsberger testified he examined Twiss 6 days after the accident and found nothing that would have changed his assessment about the need to transfer Twiss to another hospital.

In finding the airlift to the burn center to be a reasonable medical expense, the Board viewed Dr. Jabre's authorization as evidence that he ultimately determined it was reasonable and necessary for Twiss to be further examined at the burn center despite his initial recommendation. Significantly, regarding Hunsberger's subsequent evaluation of Twiss, the Board noted it would not consider hindsight as evidence that the airlift was not a medically reasonable precaution.

While later examinations showed that Twiss did not suffer an internal burn from the electrical shock, as the Board pointed out, an employer and its insurance carrier may not rely upon hindsight to elude responsibility for reasonably necessary medical treatment. Further, we note that K.S.A.2007 Supp. 44–510h(a) does not require an employer to provide medical services and treatment only for services that are reasonably necessary or prove to be “reasonably necessary.” Rather, the statute requires payment for services that “may be reasonably necessary to cure and relieve the employee from the effects of the injury.” (Emphasis added.) K.S.A. Supp. 44–510(h).

We conclude substantial competent evidence supports the Board's determination that airlifting Twiss to Wichita was a reasonably necessary medical expense under K.S.A.2007 Supp. 44–510(h).

Affirmed.

PER CURIAM.