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No. 101,933 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STEVEN M. CONROW, Appellee, v. GLOBE ENGINEERING CO., INC., and FEDERATED MUTUAL INS. CO., Appellants,

SYLLABUS BY THE COURT 1. In reviewing cases arising from state agencies, under the Kansas Judicial Review Act, courts must examine all of the evidence that detracts from as well as that which supports an agency's findings. We will not reweigh the evidence, nor will we perform a de novo review.

2. Entertaining questions on appeal that are not first raised before a state agency violates the doctrine of operative construction.

3. State agencies that have special expertise must be given every opportunity to interpret the statutes that pertain to enforcement of their specialty. Therefore, it is inappropriate to address an argument concerning a statutory interpretation on appeal that has not first been raised before the agency. 1

Appeal from Workers Compensation Board. Opinion filed May 28, 2010. Affirmed.

Vincent A. Burnett and Dallas L. Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellants.

John L. Carmichael, of Conlee, Schmidt & Emerson, LLP, of Wichita, for appellee.

Before HILL, P.J., PIERRON, J., and BUKATY, S.J.

HILL, J.: In this appeal, we affirm the Workers Compensation Board's award of permanent total disability benefits to Steven M. Conrow. Conrow's former employer, Globe Engineering Co., Inc., and its insurer argue against the award, contending the evidence is insufficient to support the Board's finding that Conrow was unemployable. Looking at the record as a whole, including the evidence that detracts from the Board's findings, we hold that substantial competent evidence supports the Board's conclusion that Conrow was realistically unemployable since he can no longer work with his hands and arms. We do not consider the employer's contention that Conrow was not entitled to benefits because he did not have both arms amputated because Globe did not raise that issue before the Board.

Conrow's work history is steady. Beginning in 1979, Conrow worked for Globe in the "burn shop" where he used vibrating tools. After a few years he began to experience numbness in his hands and shoulders. His fingers started to hurt and tingle. Conrow continued to work for Globe until his discharge in November 2005. After that, Conrow worked at G&D Metals.

Immediately following his discharge from Globe, Conrow sought workers compensation benefits in November 2005. Conrow claimed he suffered injury or disease 2

due to the repetitive use of the vibrating tools. The administrative law judge agreed, holding Conrow was entitled to compensation for scheduled injuries to his left and right forearms and his left and right arms. Later, this award was affirmed by the Board in 2007.

But Conrow's condition worsened. Conrow suffers from a congenital defect of his joints known as arthrogryposis. He then sought a review and modification of his workers compensation award. This time Conrow argued he suffers from a permanent total disability since he lost his job at G&D Metals because he was no longer physically capable of performing his assigned tasks. Further, he alleged that despite an active job search, he was never offered a job.

Despite vigorous opposition by Globe, the administrative law judge concluded that Conrow was realistically unemployable "and therefore permanently and totally disabled." Globe appealed the matter, and the Board upheld the award. The Board decided that Conrow was entitled to permanent total disability benefits for three reasons.

First, Conrow had proved a change of condition or circumstance to the extent that a modification of his award was permitted. Second, Conrow proved he had suffered injuries to both upper extremities which results in a presumption of permanent total disability. Third, Globe never rebutted this presumption of total disability. Simply put, Conrow was "essentially and realistically unemployable." It is from this award that Globe appeals.

We recite our standard of review. With the statutory changes made in 2009, our standard of review on cases arising from agencies when considering questions that must be decided "in light of the record as a whole" has been modified. See K.S.A. 2009 Supp. 77-621(c)(7), (d). Under the Kansas Judicial Review Act, this court must now take into account all of the relevant evidence 3

that detracts from a finding as well as the evidence that supports a finding when deciding if a finding is supported by substantial competent evidence. See K.S.A. 2009 Supp. 77621(d); Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, Syl.

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