Van Horn v. Blue Sky Satellite Svcs. ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,888
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
WILLIAM VAN HORN,
Appellant/Cross-appellee,
v.
BLUE SKY SATELLITE SERVICES,
and
PREVISOR INSURANCE CO.,
Appellees/Cross-appellants.
MEMORANDUM OPINION
Appeal from Workers Compensation Board. Opinion filed July 23, 2021. Affirmed.
Roger D. Fincher, of Fincher Law Office, of Topeka, for appellant/cross-appellee.
Bruce R. Levine, of Wiedner & McAuliffe, LTD., of Overland Park, for appellee/cross-appellants.
Before ARNOLD-BURGER, C.J., GARDNER and ISHERWOOD, JJ.
PER CURIAM: William Van Horn appeals the decision of the Kansas Workers
Compensation Appeals Board (the Board). He argues that provisions within the Kansas
Workers Compensation Act (the Act), specifically K.S.A. 2020 Supp. 44-510d(b)(23)-
(24), are facially unconstitutional because they no longer provide an adequate substitute
remedy for an injured worker's right to bring a common-law action for the recovery of
damages. In 2013, the Act adopted the Sixth Edition of the American Medical
Association (AMA) Guides to the Evaluation of Permanent Impairment (6th ed. 2008) as
1
the guide for measuring the permanent impairment of injured workers. Van Horn
contends that this edition reduces workers compensation awards to a level that fails to
provide an adequate remedy for injured workers. He also argues a second claim of error
which is intertwined with his first. Specifically, that any impairment rating arising from
use of the Sixth Edition will not be supported by substantial competent evidence.
Blue Sky Satellite Services and Previsor Insurance Co. (Blue Sky) cross-appeal,
arguing that Van Horn's injury is not the type of injury covered by the Act. It is their
position that Van Horn sustained his injury during a normal activity which individuals
engage in as part of their day-to-day living, rather than a task associated with his
employment. They further contend that the Board erred in awarding future medical
benefits, temporary total disability benefits, and past medical benefits for that injury.
Because the challenge Van Horn advanced against the specified provisions of the
Act was not sufficiently briefed to enable appellate review of his two claims of error, and
because he suffered a compensable, work-related injury, the decision of the Board is
affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Van Horn worked for Blue Sky Satellite Services as a satellite dish installation
technician. In that capacity, Van Horn installed satellite dishes and conducted service
calls in the homes of customers, which required him to climb stairs and ladders, as well
as onto roofs. Van Horn weighed around 256 pounds and was required to wear a tool belt
which weighed between 30-45 pounds. On March 15, 2018, Van Horn was ascending
stairs in a customer's home when he heard and felt a pop in his left knee followed by
immediate exquisite pain. Van Horn called his employer to say that he could not
complete the customer's service call, and Blue Sky directed him to go to an urgent care
facility.
2
Following his urgent care visit, Van Horn saw an orthopedic surgeon. An MRI
revealed a medial meniscus tear, as well as degenerative changes in the knee. Dr. William
Jones performed a partial medial meniscectomy with chondroplasty, in all three
compartments of Van Horn's left knee, and also conducted a technique designed to
simulate scar tissue formation. In his operative report, Dr. Jones noted arthritic changes
throughout Van Horn's knee.
Van Horn did not work from the date of the accident on March 15, 2018, through
June 21, 2018, when Dr. Jones released him to full duty with no restrictions. Once Dr.
Jones released Van Horn, the doctor was of the opinion that Van Horn had achieved
maximum medical improvement. Therefore, Jones did not schedule any other
appointments for Van Horn and did not instruct him to return for a follow-up visit.
A hearing before an administrative law judge (ALJ) followed Van Horn's
recuperation. During that hearing, Van Horn testified that he did not seek any further
treatment and he had returned to his previous job, full-time, with no restrictions. Van
Horn stated that his knee had not returned to what it was before the injury, but the surgery
Dr. Jones performed resulted in an improvement from the injury. Van Horn also testified
that he occasionally still experiences swelling in the left knee, accompanied by a degree
of localized pain. Van Horn acknowledged that he had not suffered a loss of movement in
his knee as a product of his injury.
Two medical experts provided testimony for the ALJ through depositions: Daniel
D. Zimmerman, M.D., on behalf of Van Horn, and Thomas S. Samuelson, M.D., on
behalf of Blue Sky. Dr. Zimmerman concluded that Van Horn sustained a permanent
impairment to his left knee and rated his impairment twice, using the Fourth (4th ed.
1995) and Sixth Edition (6th ed. 2008) of the American Medical Association Guides to
the Evaluation of Permanent Impairment. Dr. Zimmerman rated Van Horn's impairment
at 20% under the Fourth Edition and 3% under the Sixth Edition.
3
Dr. Zimmerman practices internal medicine and is not a surgeon or an orthopedic
doctor. He has also never performed or billed for the surgery that Van Horn underwent.
But reviewing bills was part of his job as a district medical advisor for the Department of
Labor for 28 years. He reviewed Van Horn's medical bills for roughly 10 minutes on the
morning that he testified. He could not say whether Kansas was a medical fee schedule
state and did not check Van Horn's medical bills against the fee schedule.
Dr. Zimmerman explained that his 3% rating under the Sixth Edition of the AMA
Guides was arrived at by using the 2% default presumed rating for Van Horn's diagnosis
and adding a 1% grade modifier. The modifier was intended to address grating and
chondromalacia, or cartilage damage, that he detected in Van Horn's knee during his
examination, as well as the pain the patient exhibited during that visit. Dr. Zimmerman
could only say that the chondromalacia was present when he examined Van Horn's knee.
He did not know whether the accident caused the chondromalacia.
Dr. Zimmerman also testified that Van Horn could bend his knee to a normal
position, but that extension was impaired, in that Van Horn was unable to fully straighten
his leg. Dr. Zimmerman stated that Van Horn would need future medical treatment,
including steroid injections, medication, and possibly viscosupplementation.
Additionally, he advised that Van Horn should adhere to permanent work restrictions.
Dr. Samuelson rated Van Horn's impairment at 2% under both AMA Guides. Dr.
Samuelson is an orthopedic surgeon who performs knee operations several times a year,
including the surgery Van Horn underwent. He testified that Van Horn's meniscus tear
was a complex tear, which is common when an arthritic process or degenerative changes
are already present. Dr. Samuelson stated that he could not identify a specific injury.
Rather, he questioned whether Van Horn's issue stemmed from simple fatigue of
degenerative tissue. According to Dr. Samuelson, the meniscus pathology could have also
been present before the injury and simply been aggravated along with arthritis. It was Dr.
4
Samuelson's opinion that the exact source of Van Horn's pathology was difficult to
determine without the occurrence of a specific event.
Dr. Samuelson testified that when he evaluated Van Horn on September 4, 2018,
he did not detect any diminished range of motion in the left knee, and that the significant
degenerative changes in Van Horn's knee were likely the source of his residual pain.
According to Samuelson, when Van Horn had his surgery on May 1, 2018, the
degenerative changes were already "fairly advanced," meaning the degeneration was
"clearly pre-existing." Thus, it was Dr. Samuelson's opinion that the incident involving
Van Horn's knee could have easily happened while walking at home or some other
nonoccupational activity; it was not connected to his work activity. Dr. Samuelson did
not believe future medical treatment relative to the incident would be necessary, but that
further degenerative changes to Van Horn's knee could require additional treatment.
In December 2019, the ALJ ruled that Van Horn sustained personal injury by an
accident, arising out of and in the course of his employment with Blue Sky. For this
injury, the ALJ awarded benefits, including past medical expenses, temporary total
disability (TTD) benefits, and permanent partial impairment of 3%, based on the Sixth
Edition of the AMA Guides. The ALJ also ruled that if the Fourth Edition controlled, he
would find that Van Horn suffered an 11% impairment of function. The ALJ denied
future medical benefits, however, upon finding that Dr. Zimmerman's speculation
regarding Van Horn's need for future medical treatment could not overcome the statutory
presumption that Blue Sky's duty to provide medical care ended when Van Horn
achieved maximum medical improvement.
In April 2020, the Board affirmed the ALJ's compensability determination but
reversed the ALJ's decision on future medical treatment benefits and awarded future
benefits to Van Horn.
5
Van Horn timely appeals. Blue Sky timely cross-appeals.
ANALYSIS
WHETHER K.S.A. 2020 SUPP. 44-510(b)(23)-(24) ARE FACIALLY UNCONSTITUTIONAL AS
A RESULT OF THEIR MANDATED USE OF THE SIXTH EDITION OF THE AMA GUIDES?
Van Horn argues that K.S.A. 2020 Supp. 44-510d(b)(23)-(24)'s use of the Sixth
Edition of the AMA Guides is facially unconstitutional because that edition fails to
provide an adequate substitute remedy for the right to seek recovery in a common-law
tort action. Blue Sky responds that the constitutionality of the provisions is irrelevant
because some evidence shows that Van Horn's impairment rating would be the same
under both the Fourth and Sixth Editions of the AMA Guides.
Standard Legal Principles
A statute's constitutionality is a question of law subject to unlimited review.
Solomon v. State, 303 Kan. 512, 523, 364 P.3d 536 (2015).
The issue before us is whether adopting the Sixth Edition of the AMA Guides
resulted in an unconstitutional infringement of the due process rights of workers such as
Van Horn. According to our Supreme Court in Injured Workers of Kansas v. Franklin,
262 Kan. 840, 854, 942 P.2d 591 (1997), the following two-step test should be utilized
when determining whether a due process violation exists:
"'If a remedy protected by due process is abrogated or restricted by the
legislature, "such change is constitutional if '[1] the change is reasonably necessary in the
public interest to promote the general welfare of the people of the state,' and [2] the
legislature provides an adequate substitute remedy" to replace the remedy which has been
restricted.'[Citations omitted.]"
6
Van Horn states that the first prong of the inquiry is satisfied and confines his
argument solely to the second step of the analysis. However, because Van Horn has failed
to sufficiently brief a claim of error under that second step, which would allow for
meaningful appellate review, we decline to reach the merits of this issue. The extent of
claimant's argument to this court essentially consists of little more than an assertion that
the 2011 amendments to the Act were not favorable to workers compensation claimants,
followed by a recitation of this court's ruling in Johnson v. U.S. Food Service, 56 Kan.
App. 2d 232, 427 P.3d 996 (2018), rev'd 312 Kan. 597, 478 P.3d 776 (2021), and a
request for us to simply find the conclusions discussed by our court in Johnson
persuasive, then adopt and apply the same in his case.
In Johnson, this court reviewed the history of workers compensation legislation,
which reflected a gradual erosion of the fair exchange between workers giving up the
right to bring a common-law tort action versus workers gaining the right to recover under
the Act. It ultimately held that use of the Sixth Edition of the AMA Guides was
unconstitutional as applied to Johnson because it provided an inadequate recovery for
injured workers within the context of K.S.A. 2015 Supp. 44-510e, a different section than
that challenged by Van Horn in this case. Thus, it is not possible for us to simply adopt
and apply Johnson to Van Horn's case.
Further, as noted above, our Supreme Court reversed our holding in Johnson.
Specifically, it determined that when this court issued its decision finding the statutory
provision deficient, it had overlooked a second criterion set out in the statute for
calculating functional impairment, specifically, competent medical evidence. Johnson,
312 Kan. 597, Syl. ¶ 2.
Despite our Supreme Court's opinion being issued over seven months after
claimant filed his brief and six months prior to our review of his case, Van Horn did not
file a letter with this court pursuant to Supreme Court Rule 6.09 (2021 Kan. S. Ct. R. 40)
7
to either acknowledge the decision or advance an argument to establish how his
constitutionality claim survived despite this adverse ruling. "'A litigant who fails to press
a point by supporting it with pertinent authority, or by showing why it is sound despite a
lack of supporting authority or in the face of contrary authority, forfeits the point,'" and it
is akin to failing to brief an issue. McCain Foods USA, Inc. v. Central Processors, Inc.,
275 Kan. 1, 15, 61 P.3d 68 (2002). Where a party to an appeal fails to brief an issue, that
issue is waived or abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan.
636, 643, 294 P.3d 287 (2013).
This court recognizes both the similarities and the distinguishing features between
the provisions challenged by Van Horn and the one discussed in Johnson. However, this
court is prohibited from fashioning arguments on behalf of the parties.
"'Failure to properly state the points relied on indicates a lack of understanding of
the appellate function and process. . . . It is not the function of the appellate court to serve
as advocate for any party to an appeal. That is the function of counsel. It would be unfair
to the parties if it were otherwise. That is the reason for the sometimes expressed
unwillingness of an appellate court to assume the role of counsel and advocate for a party
on appeal. When counsel fail in their duty by filing briefs which are not in conformity
with the applicable rules and do not sufficiently advise the court of the contentions
asserted and the merit thereof, the court is left with the dilemma of deciding that case
(and possibly establishing precedent for future cases) on the basis of inadequate briefing
and advocacy or undertaking additional research and briefing to supply the deficiency.
Courts should not be asked or expected to assume such a role. In addition to being
inherently unfair to the other party to the appeal, it is unfair to parties in other cases
awaiting disposition because it takes from them appellate time and resources which
should be devoted to expeditious resolution of their appeals.'" Hoskinson v. Heiman, No.
122,120, 2021 WL 2282688, at *3 (Kan. App. 2021) (unpublished opinion) (quoting
Thummel v. King, 570 S.W.2d 679, 686 [Mo. 1978]).
Van Horn's failure to adequately brief his constitutionality claim has resulted in an
abandonment of that issue.
8
WAS THE ALJ'S AWARD SUPPORTED BY SUBSTANTIAL COMPETENT EVIDENCE?
Van Horn raises a second claim of error and asserts that the ALJ's decision to
award benefits based on a 3% impairment rating was not supported by substantial
competent evidence. This argument is intertwined with his claim that the mandated use of
the Sixth Edition of the Guides is unconstitutional. Essentially, he argues that any rating
arising out of the Sixth Edition necessarily lacks the required evidentiary foundation. He
requests that we remand his case to the ALJ with instructions to adopt the Fourth Edition
of the AMA Guides. Because we were unable to address the merits of his
constitutionality claim, we are likewise unable to address this issue and grant the relief
requested.
DID THE ALJ AND THE BOARD ERR IN FINDING THAT VAN HORN SUSTAINED A
COMPENSABLE WORK-RELATED INJURY ARISING OUT OF AND IN THE COURSE OF HIS
EMPLOYMENT?
In their cross-appeal, Blue Sky argues that the ALJ and the Board erred in finding
that Van Horn sustained a compensable work-related injury arising out of and in the
course of his employment. Blue Sky asserts that injuries do not arise out of employment
if they result from a normal activity of day-to-day living, citing Johnson v. Johnson
County, 36 Kan. App. 2d 786, 790, 147 P.3d 1091 (2006), as support for that contention.
Under their argument, Van Horn ascending a flight of stairs at the time of the incident is
properly classified as simply a normal day-to-day activity. In response, Van Horn takes
the position that ascending stairs with a 30- to 40-pound tool belt is inherent to his job
duties, and because he was injured carrying out work duties, the finding that he sustained
a compensable injury should be affirmed.
9
Standard Legal Principles
Appellate courts review a challenge to the Board's factual findings in light of the
record as a whole to determine whether the findings are supported to the appropriate
standard of proof by substantial evidence. See K.S.A. 77-621(c)(7). "Substantial
evidence" refers to "'evidence possessing something of substance and relevant
consequence to induce the conclusion that the award was proper, furnishing a basis [of
fact] from which the issue raised could be easily resolved.'" Rogers v. ALT-A&M JV, 52
Kan. App. 2d 213, 216, 364 P.3d 1206 (2015). "This analysis requires the court to (1)
review evidence both supporting and contradicting the agency's findings; (2) examine the
presiding officer's credibility determination, if any; and (3) review the agency's
explanation as to why the evidence supports its findings. The court does not reweigh the
evidence or engage in de novo review. [Citations omitted.]" Williams v. Petromark
Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014).
Blue Sky argues that the Board's error occurred when it focused on the fact that
Van Horn was climbing stairs at the onset of symptoms, rather than asking whether the
act of climbing stairs was enough to cause this injury. In support of this contention, Blue
Sky directs us to Dr. Samuelson's testimony that the complex tear "likely occurred as a
result of weakened, degenerative tissue in the meniscus," and that Van Horn's injury was
not connected to any particular and notable twist, fall, or other traumatic injury. Blue Sky
contends that this testimony evidences the fact that Van Horn's "alleged work event was
nothing more than a triggering or precipitating factor that merely rendered Van Horn's
preexisting degenerative condition symptomatic."
Under the Act, employers are liable to pay compensation benefits if "an employee
suffers personal injury by accident, repetitive trauma or occupational disease arising out
of and in the course of employment." K.S.A. 2020 Supp. 44-501b(b). Personal injury
means "any lesion or change in the physical structure of the body, causing damage or
10
harm thereto." K.S.A. 2020 Supp. 44-508(f)(1). An injury does not arise "out of and in
the course of employment" if it was an injury that resulted from the normal activities of
day-to-day living. K.S.A. 2020 Supp. 44-508(f)(3)(A)(i). Further, the accident must be
the "prevailing factor" of the injury, meaning that employees cannot recover for injuries
that are solely aggravations or accelerations of preexisting conditions. K.S.A. 2020 Supp.
44-508(f)(2)(B); Buchanan v. JM Staffing, 52 Kan. App. 2d 943, 949, 379 P.3d 428(2016).
Blue Sky contends that Johnson v. Johnson County provides particularly
compelling authority in support of their position. In that case, the claimant injured her left
knee when she simultaneously turned in her chair and attempted to stand while reaching
for a file that was overhead. The Johnson court declined to find there was substantial
competent evidence to support the Board's conclusion that the claimant's act of standing
up was not merely a normal activity of daily living. In denying compensation, the
Johnson court cited the well-established rule that when an injury occurs at work, it is not
compensable unless it is "'fairly traceable to the employment,'" as contrasted with hazards
to which a worker "'would have been equally exposed apart from the employment.'" 36
Kan. App. 2d at 789. In arriving at its conclusion, the Johnson court cited Martin v.
U.S.D. No 233, 5 Kan. App. 2d 298, 615 P.2d 168 (1980), and Anderson v. Scarlett Auto
Interiors, 31 Kan. App. 2d 5, 61 P.3d 81 (2002).
In Martin, this court determined that a claimant did not suffer a compensable back
injury when exiting his vehicle upon arrival at work because "almost any everyday
activity would have a tendency to aggravate his condition . . . ." 5 Kan. App. 2d at 300.
By contrast, the claimant in Anderson was deemed to have suffered a compensable back
injury from entering a vehicle because his injury followed not only from his personal
degenerative conditions, but also from a hazard attendant to his employment.
Specifically, he got in and out of automobiles 20 to 30 times a day in the course of his
employment with Scarlett Auto Interiors. 31 Kan. App. 2d at 11.
11
The claimants in Johnson, Martin, and Anderson all had a medical history
specifically related to the injury at issue. The claimant in Johnson had a history of three
or four incidents of left knee pain. A treating physician testified that years of
degeneration and previous problems conveyed that "'it was just a matter of time'" before
the claimant injured her knee. 36 Kan. App. 2d at 788. Similarly, Martin's injury was not
compensable partly because he had experienced problems with his lower back for the 10
years preceding the injury. Martin, 5 Kan. App. at 298. But Anderson's back injury was
compensable despite the fact he had received treatment for low back pain as early as
1967 and the injury at issue happened in 1999. Anderson, 31 Kan. App. 2d at 6.
Here, Blue Sky does not point to any evidence showing that Van Horn voiced
previous complaints about his knee. Dr. Samuelson testified that the nature of the injury
showed that Van Horn likely had degenerative tissue before the injury. But nothing in the
record suggests that this tissue degeneration caused Van Horn any difficulty. In fact, Dr.
Samuelson's report on Van Horn affirmatively states that he had no previous difficulties.
Appellate courts determine whether the evidence in support of the Board's decision "has
been so undermined by cross-examination or other evidence that it is insufficient to
support its decision." Moore v. Venture Corp., 51 Kan. App. 2d 132, 138, 343 P.3d 114(2015). Here, the record supports, rather than undermines, the Board's decision because
Van Horn's lack of prior problems with his knee fortifies his case against any adverse
impact by Johnson, Martin, and even Anderson, and it establishes that the stairway
accident was the prevailing factor in his injury.
As for Blue Sky's argument that Van Horn's injury did not "arise out of" his
employment, Van Horn is like Anderson from that perspective, not Martin. Martin
arrived at work and simply exited his vehicle, a day-to-day activity. Anderson got in and
out of customer's vehicles 20 to 30 times a day, making it a function of his job. Here, Van
Horn's work required him to repeatedly climb ladders and stairs, with a heavy toolbelt
affixed to his waist, while installing satellite dishes and performing service calls for Blue
12
Sky. Van Horn only needed to show that it was more probably true than not that he was
climbing the stairs in the course of, or in furtherance of, his duties when he suffered the
meniscus tear. See Johnson v. Stormont Vail Healthcare, 57 Kan. App. 2d 44, 54, 445
P.3d 1183 (2019), rev. denied 311 Kan. 1046 (2020). He satisfied that burden. While Van
Horn could climb stairs at home, many activities, while done at home or on a daily basis,
can also be job-related activities, such is the case here. See Netherland v. Midwest
Homestead of Olathe Operations, No. 119,873, 2019 WL 4383374, at *11-12 (Kan. App.
2019) (unpublished opinion) (ruling that walking to clock out and then turning and
answering a coworker's question were job-related activities); Munoz v. Southwest
Medical Center, No. 121,024, 2020 WL 1313794, at *7 (Kan. App. 2020) (unpublished
opinion) (ruling that exiting an elevator was a job-related activity).
Substantial competent evidence supports the Board's conclusion that Van Horn's
activity, ascending stairs with the added weight of the tool belt, during a service call for
Blue Sky, was causally connected to his employment. The Board's decision is affirmed.
DID THE BOARD ERR IN HOLDING THAT VAN HORN WAS ENTITLED TO FUTURE MEDICAL
BENEFITS?
Blue Sky also argues that the Board made a factual error when it overruled the
ALJ's denial of future medical treatment benefits for Van Horn. Blue Sky asserts that the
Board arrived at its conclusion by virtue of a mischaracterization of Dr. Samuelson's
opinion and opted to instead rely on, what Blue Sky classifies as, Dr. Zimmerman's
unreliable opinion. Following careful review, we conclude the Board's decision to award
future medical benefits is supported by substantial competent evidence.
Blue Sky incorrectly argues that the Board construed Dr. Samuelson's testimony as
an opinion that Van Horn will never require treatment in the future. Blue Sky notes that,
in reality, the doctor asserted that Van Horn will likely need treatment in the future to
13
address degenerative and arthritic changes, however those issues are unrelated to the
alleged work injury. Blue Sky argues that this alleged mischaracterization constitutes a
fundamental error, which requires this court to overturn the Board's award of future
benefits. We are not persuaded by Blue Sky's argument.
The relevant statements from Dr. Samuelson's deposition are as follows:
"Q. Okay. And what was your opinion whether the incident Mr. Van Horn
described to you on March 15, 2018 was the prevailing factor in causing any injury you
could identify?
"A. Well, he didn't really have an injury, so that the concern is, did his problem
develop from just fatigue of degenerative tissue.
....
"A. . . . My statement there was that there was not a specific event or injury that
appeared to result in the problem. You know, nothing that would have caused a twisting
or traumatic injury to the knee resulting in a tear.
....
"Q. Okay. Specifically you've mentioned a couple times that he didn't have an
injury. Can you tell me what you meant by that? You said he didn't have an accident, or
he didn't have an injury, or what are you saying?
"A. Well, he didn't have a fall or twisting injury or an impact to his knee. He was
just walking.
....
"Q. And what do you suggest if he has pain related to doing bending, stooping or
climbing? . . .
14
....
"A. Okay. As far as treatment, my recommended approach is to start with anti-
inflammatory pills; work on an exercise program, a conditioning program; you know,
work on a weight-loss program, if that's an issue. And then if those things don't help, then
injections to the knee can be performed."
Additionally, Dr. Samuelson's report stated the following:
"Due to the fact that there was no specific event or injury, it is my opinion that
the incident that occurred could easily have happened while walking at home or with
some other nonoccupational activity. Since there was no clear injury or accident that
occurred as a result of his work activity, treatment for this degenerative process was
appropriately performed under his personal insurance and not his workman's
compensation insurance. I cannot state that the simple act of climbing the stairs was the
prevailing factor for the degenerative meniscus tear. The aggravation of the knee that
may or may not have resulted in a degenerative meniscus tear could easily have occurred
at home or some other nonoccupational setting.
"In view of the fact that this does not appear to be a workman's compensation
event, I do not feel that there is any permanent partial impairment to the knee. He does
not have any restrictions to his knee and there is no reason to consider the need for a
permanent restriction.
"Due to the underlying degenerative changes in the knee, additional treatment in
the future may be necessary, although at this point he should continue to improve if he
continues with a home exercise program, anti-inflammatory medications and a weight
loss program. Ultimately, the degenerative changes will continue to progress and more
aggressive anti-inflammatory treatments, with oral pills and possible injections, can be
considered in the future." (Emphasis added.)
The Board's response to Dr. Samuelson's opinion consisted of the following:
15
"Dr. Samuelson did not believe future medical treatment would be required for the work
injury, as opposed to treatment for preexisting degenerative arthritis. . . .
....
"Dr. Samuelson's opinion that no treatment will ever be needed in the future is
rejected. Part of Dr. Samuelson's opinion is based on Van Horn not even having sustained
a work injury, a premise the Board rejects."
The Board fairly summarized Dr. Samuelson's opinion as being that "no treatment
will ever be needed in the future" in connection with the work injury. Like Dr.
Zimmerman, Dr. Samuelson agreed that Van Horn will need future treatment, but he
attributed future treatment to degenerative changes rather than the work injury. The
language in the Board's decision does not support Blue Sky's contention that the Board
mischaracterized or misunderstood Dr. Samuelson's opinion.
Blue Sky also attacks Dr. Zimmerman's opinion as "difficult to take seriously" and
a "copy/paste methodology" insufficient to meet Van Horn's burden under K.S.A. 2020
Supp. 44-510h(e). The relevant language from that provision states as follows:
"It is presumed that the employer's obligation to provide the services of a
healthcare provider . . . shall terminate upon the employee reaching maximum medical
improvement. Such presumption may be overcome with medical evidence that it is more
probably true than not that additional medical treatment will be necessary after such time
as the employee reaches maximum medical improvement."
Blue Sky asks this court to rule that Dr. Zimmerman's testimony did not overcome
the statutory presumption because, essentially, Dr. Zimmerman's opinion is not credible.
Blue Sky's argument fails for two reasons. First, this court does not reweigh the evidence
or evaluate the credibility of witnesses. Casco v. Armour Swift-Eckrich, 283 Kan. 508,
514-15, 154 P.3d 494 (2007). Second, Dr. Samuelson also agreed that it is more probably
16
true than not that additional medical treatment will be necessary in the future, although he
does not attribute that need for treatment to the work injury. But, again, that is because he
does not believe that Van Horn's knee injury stems from a work-related incident. Thus, in
truth, both physicians considered it more likely true than not that Van Horn will need
further treatment. It was properly determined that Van Horn sustained a work-related
injury, which allowed the Board to credit Dr. Zimmerman's opinion that the work injury
connects causally to the future medical treatment.
DID THE APPEALS BOARD ERR IN ITS AWARD OF TEMPORARY TOTAL DISABILITY
BENEFITS?
Blue Sky advances the added argument that the Board erred in awarding Van Horn
temporary total disability (TTD) benefits. This argument also arises out of their
contention that Van Horn did not suffer a compensable injury. Blue Sky concedes that, if
Van Horn's injury is seen as compensable, then he is entitled to $595.74 per week from
March 15, 2018, until June 21, 2018, which is $8,425.87 in total.
Because we have already concluded that the Board properly determined Van Horn
suffered a compensable, work-related injury, it is unnecessary to delve into the merits of
this argument. The Board properly awarded TTD benefits to Van Horn.
DID THE APPEALS BOARD ERR IN AWARDING PAST MEDICAL BENEFITS?
In its final claim of error, Blue Sky argues that the medical bills submitted by Van
Horn constitute unauthorized treatment and therefore recovery should be limited to $500,
per K.S.A. 2020 Supp. 44-510h(b)(2). Blue Sky also contends that several entries in the
medical bills relate to injuries and treatments other than the knee injury. Van Horn
responds that Blue Sky is liable for expenses under K.S.A. 2020 Supp. 44-510j(h)
because Blue Sky knew about the injury and refused or neglected to reasonably provide
17
the services of a health care provider. Following careful review, we conclude the Board
properly awarded past medical benefits and affirm that decision.
K.S.A. 2020 Supp. 44-510h(a) states:
"It shall be the duty of the employer to provide the services of a health care
provider, and such medical, surgical and hospital treatment, including nursing, medicines,
medical and surgical supplies, ambulance, crutches, apparatus and transportation to and
from the home of the injured employee to a place outside the community in which such
employee resides, and within such community if the director, in the director's discretion,
so orders, including transportation expenses computed in accordance with subsection (a)
of K.S.A. 44-515 and amendments thereto, as may be reasonably necessary to cure and
relieve the employee from the effects of the injury."
K.S.A. 2020 Supp. 44-510h(b)(2) states:
"Without application or approval, an employee may consult a health care
provider of the employee's choice for the purpose of examination, diagnosis or treatment,
but the employer shall only be liable for the fees and charges of such health care provider
up to a total amount of $500. The amount allowed for such examination, diagnosis or
treatment shall not be used to obtain a functional impairment rating. Any medical opinion
obtained in violation of this prohibition shall not be admissible in any claim proceedings
under the workers compensation act."
K.S.A. 2020 Supp. 44-510j(h) states, in part:
"If the employer has knowledge of the injury and refuses or neglects to reasonably
provide the services of a health care provider required by this act, the employee may
provide the same for such employee, and the employer shall be liable for such expenses
subject to the regulations adopted by the director."
18
First, K.S.A. 2020 Supp. 44-510h(a) gives the employer a duty to provide health
care services. Then, K.S.A. 2020 Supp. 44-510j(h) provides the employee with a remedy
if the employer fails to carry out that duty. Van Horn contacted Blue Sky immediately
from the client's home shortly after his injury occurred, and Blue Sky directed him to go
to urgent care. Blue Sky does not assert it was unaware of Van Horn’s injury.
Instead, Blue Sky argues, without citation, that Van Horn should have applied for
a preliminary hearing under K.S.A. 2020 Supp. 44-534a to seek an order for
authorization of treatment. Blue Sky contends that because Van Horn did not apply for
such a hearing, this court should treat his expenses as unauthorized expenses under
K.S.A. 2020 Supp. 44-510h(b)(2).
The controlling precedent on this issue was set forth by our Supreme Court in
Saylor v. Westar Energy, Inc., 292 Kan. 610, 256 P.3d 828 (2011). In that case, Saylor
had knee replacement surgery and then served a notice of intent and written claim on
Westar. Westar argued that it should not be required to pay all of Saylor's medical bills
because it did not authorize Saylor's treatment. Westar argued, as Blue Sky does here,
that if an employee wants benefits that the employer has not voluntarily provided, then
the worker must adhere to the procedures set forth under K.S.A. 44-534a(a). The Saylor
court rejected this argument and stated the following: "[T]he statute clearly conveys the
message that if Westar knew that its employee was suffering from a work-related injury
and refused or neglected to provide medical services to address that injury, the employee
was permitted to provide his or her own doctor at Westar's expense." 292 Kan. at 623.
Here, Blue Sky would presumably assert that it knew of the injury, it simply did
not believe it to be work-related, making its case distinguishable from Saylor. But Blue
Sky does not cite Saylor to argue a different result. Nor does Blue Sky cite any other
caselaw to support the idea that an injured employee is required to wait until an ALJ has
ordered authorization of treatment before he or she may seek treatment for an injury.
19
Failure to support a point with pertinent authority is akin to failing to brief an issue. In re
Adoption of T.M.M.H., 307 Kan. 902, 912, 416 P.3d 999 (2018).
Furthermore, the record shows that Van Horn did in fact apply for a preliminary
hearing. Twice. Van Horn called Blue Sky immediately following his injury on March
15, 2018, and Blue Sky directed him to go to urgent care. On April 4, Van Horn's
attorney sent Blue Sky the notice required before applying for a preliminary hearing and
on May 1, Van Horn underwent knee surgery. On May 7, Van Horn submitted the
requisite form to the Division of Workers Compensation in order to apply for a
preliminary hearing under K.S.A. 44-534a. Van Horn filed a second such form over one
month later, on June 19.
Van Horn already waited a month and a half for his knee surgery. Blue Sky cites
no authority to support the contention that K.S.A. 2020 Supp. 44-510h(b)(2) required him
to wait even longer, i.e., until an ALJ ordered authorization of treatment, to avoid the
$500 cap on unauthorized expenses. Blue Sky refused or neglected to provide health care
services as contemplated by K.S.A. 2020 Supp. 510j(h). As such, the Board's decision to
award past medical benefits is affirmed.
Affirmed.
20