Jackson v. Johnson County

No. 126,441
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
KIMBERLY JACKSON,
Appellant,
v.
JOHNSON COUNTY and BOARD OF JOHNSON COUNTY COMMISSIONERS,
Appellees.
SYLLABUS BY THE COURT
1.
In determining whether a motion to modify a workers compensation award will be
granted under K.S.A. 44-528(a), the Administrative Law Judge (ALJ) must make a
threshold discretionary determination of whether good cause exists to review the award.
It is only if the ALJ finds that good cause supports review that the matter will proceed to
a final determination on modification of the award or reinstatement of a prior award.
2.
Determining whether good cause exists to review a workers compensation award
under K.S.A. 44-528(a) is different from the discretionary decision to modify the award
or reinstate an award. As part of this threshold inquiry, the ALJ should consider the entire
record and what is reasonable under the totality of the circumstances.
Appeal from Workers Compensation Appeals Board. Submitted without oral argument. Opinion
filed June 21, 2024. Affirmed.
Daniel L. Smith, of Ankerholz and Smith, of Overland Park, for appellant.
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Frederick J. Greenbaum and Aaron J. Greenbaum, of McAnany, Van Cleave, & Phillips P.A., of
Kansas City, for appellees.
Before ARNOLD-BURGER, C.J., ATCHESON, J., and TIMOTHY G. LAHEY, S.J.
ARNOLD-BURGER, C.J.: Kimberly Jackson appeals the Workers Compensation
Appeals Board (Board) decision denying her request for modification of her workers
compensation award. She sought modification on the grounds that her award was
inadequate and that her permanent disability and impairment had increased.
The Administrative Law Judge and the Workers Compensation Appeals Board
found Jackson had failed to show "good cause" as a threshold requirement under K.S.A.
44-528(a) for modification of her award and denied the request for that reason. Jackson
has appealed.
Because we find that a finding of good cause is required before the ALJ can
modify a prior award and the Board did not abuse its discretion in finding under these
facts there was no good cause to review the award, we affirm the Board's decision.
FACTUAL AND PROCEDURAL HISTORY
Because our decision rests primarily on the interpretation of a statute and the
procedural posture of this case, a detailed recitation of the facts surrounding Jackson's
injury and various medical findings is not necessary. Jackson was injured while she was
an employee of Johnson County. Johnson County contended that Jackson's injuries were
covered by the Kansas Workers Compensation Act, K.S.A. 44-501 et seq., (Act) and paid
her accordingly. Jackson asked the Division of Workers Compensation (Division) to find
that her injury was not compensable under the Act because, she asserted, a colleague
injured her on purpose during Jackson's unpaid lunch hour. After failing to present any
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medical evidence, challenge the disability award, or appeal it, she sought to later modify
the award by challenging its adequacy.
The facts will be established as they relate to each issue examined.
ANALYSIS
I. A CLAIM WITH THE DIRECTOR OF WORKERS COMPENSATION IS MADE WHEN
THERE IS A DISPUTE ABOUT BENEFITS
When an employee suffers personal injury arising out of and in the course of
employment, the employer must pay compensation to the employee in accordance with
and subject to the Act. This includes, for example, medical bills and resultant wage loss.
Not every work-related injury goes to a hearing before an ALJ. It is only when the
employer or insurance company and the employee disagree upon anything related to
workers compensation benefits that an application is filed with the director of workers
compensation (Director) for a determination of compensation or benefits. K.S.A. 44-
534(a). The burden of proof is on the claimant to establish the claimant's right to an
award of compensation and to prove the conditions on which the claimant's right
depends. K.S.A. 44-501b(c).
Once a request for a determination is filed with the Director, it is assigned to an
ALJ for a hearing. The ALJ is required to "hear all evidence in relation thereto and to
make findings concerning the amount of compensation, if any due to the worker." K.S.A.
44-534(a). There is also a statute of limitations for filing a request for determination or
claim. The claim must be on file "within three years of the date of the accident or within
two years of the date of the last payment of compensation, whichever is later." K.S.A. 44-
534(b).
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II. JACKSON FILED A CLAIM WITH THE DIRECTOR CLAIMING HER INJURY WAS TO THE
"BODY AS A WHOLE"
Jackson's injury occurred on August 11, 2016. She applied for a hearing, as
described above, on February 10, 2017. In filling out the form, she stated that her foot
and ankle were injured by assault and that her injury was of the "Body as a whole."
Nothing on the face of her claim suggested she was asking the Director to decide whether
she should be covered by the Act at all.
A preliminary hearing was held on March 8, 2017. At that hearing the ALJ stated
that "Claimant alleges that she met with personal injury from an accident arising out of
and in the course of her employment" and that she was only seeking a change in the
authorized health care provider. The ALJ granted the request.
Another preliminary hearing was held over a year later, on May 23, 2018. At this
hearing Jackson claimed for the first time that her injury was not compensable under the
Act. She claimed the injury was caused by an assault during her unpaid lunch hour.
Jackson also asserted that she still needed additional medical treatment, but not within the
workers compensation system. After reviewing the record provided by the parties, the
ALJ declined to rule on whether the claim was compensable under the Act. He found that
the issue could be addressed at the regular hearing, but the preliminary hearing, as
outlined in K.S.A. 44-534a(a), is limited to the issues of the furnishing of medical
treatment and the payment of temporary total or temporary partial disability
compensation. There was no dispute that Johnson County had paid Jackson 16.57 weeks
of temporary total disability compensation which it even voluntarily supplemented. So
Jackson saw no reduction in her monthly income. There is also no dispute that all medical
expenses were paid up to that time, so there was nothing to resolve by preliminary
hearing.
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III. JACKSON ASSERTS THAT HER INJURIES ARE NOT COVERED BY THE ACT AND
ABANDONS ANY CLAIM OF BENEFITS RELATED TO HER INJURIES
The "[r]egular" or final hearing was held on January 29, 2019. At the start of the
hearing, the ALJ stated that the issues to be decided were whether the incident was the
prevailing factor in Jackson's injuries and whether Jackson's injuries were compensable
under the Act. This was the only hearing scheduled on Jackson's claim and there was no
stipulation or even request that it be bifurcated. This was the only opportunity for Jackson
to bring forward any dispute about benefits to be paid. And, as already stated, she bore
the burden of proof to establish her right to an award of compensation and to prove the
conditions on which her right depends. K.S.A. 44-501b(c).
Yet, Jackson's counsel stated that it was unnecessary for the ALJ to make a
prevailing factor determination because Jackson was "not seeking any benefits" and was
simply asking the ALJ "to find that the case is not compensable." Jackson's counsel also
stated that the ALJ need not determine the nature and extent of Jackson's disability. For
these reasons, Jackson's attorney said, "medical evidence [was] irrelevant to any of the
issues before the court." This appears to be a concession that Jackson had no
disagreements with Johnson County over benefits, only over whether her injuries fell
under the Act.
Accordingly, the only evidence the ALJ considered at the hearing—because
Jackson presented none—was a deposition of Jackson taken in May 2018. In her
deposition, Jackson described the August 2016 workplace incident and the later problems
with her foot, ankle, knee, and lower back—including several surgeries. Jackson also
testified that she sustained a mental injury because of the incident. She described feeling
a lot of anxiety and experiencing panic attacks and regularly seeing a counselor. Jackson
stipulated that she was not seeking temporary disability benefits (she had received them),
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stipulated that her medical expenses had been paid, and that she was not seeking any
future medical treatment.
The ALJ found that Jackson's injuries were compensable under the Act and
awarded no permanent disability benefits or future medicals because Jackson did not
request any.
IV. DECISIONS OF THE ALJ MAY BE APPEALED TO THE BOARD AND JACKSON DID SO
The Board was established by statute to sit as an appellate tribunal over decisions
by the ALJ under the Act. The Board has jurisdiction to review all decisions, findings,
orders, and awards of compensation by the ALJ. And, just as this court does, the Board
reviews questions of law and fact by simply reviewing the record before the ALJ. K.S.A.
44-555c(a).
Jackson appealed the ALJ ruling to the Board, but only asked the Board to review
whether the injury arose out of and in the course of her employment. She also asked the
Board to find that limiting her ability to sue violated her due process rights. By only
appealing one issue, Jackson abandoned any claim related to the ALJ's award regarding
benefits or any claim to a disability determination different from the one awarded by the
ALJ. See Garcia v. Tyson Fresh Meats, Inc., 61 Kan. App. 2d 520, 525, 506 P.3d 283(2022) ("A party has an obligation to advance a substantive argument in support of their
position and buttress it with pertinent authority or risk a ruling that the issue is waived or
abandoned.").
The Board agreed with the ALJ and held that Jackson's injury arose out of her
employment. It also found that it could not consider constitutional issues. Jackson did not
appeal the Board's decision.
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V. JACKSON MOVED TO MODIFY THE ALJ AWARD, WHICH WAS DENIED BY BOTH
THE ALJ AND THE BOARD
Modification of a workers compensation award is governed by K.S.A. 44-528(a),
which provides that any award may be reviewed by the ALJ "for good cause shown"
upon application of the employee. Once reviewed, and after a hearing, the ALJ may
modify the award. The statute seeks to recognize that a worker's situation may change
after an award is ordered. The worker may get considerably better, justifying a
modification on behalf of the employer or may get considerably worse, justifying
modification on the part of the employee. "'The statute was enacted to meet such [a]
situation and its provisions safeguard the welfare of the workman as well as the
employer.'" Gile v. Associated Co., Inc. 223 Kan. 739, 740, 576 P.2d 663 (1978).
A few months after the Board denied her appeal from the ALJ's decision, Jackson
filed a request for modification and review of the award under K.S.A. 44-528(a). She
sought modification on the grounds that her award was inadequate and that her
permanent disability and impairment had increased. Jackson presented evidence that she
suffered a 25% permanent physical disability and a 50% permanent psychological
disability. A hearing was held on the motion, and both Jackson and Johnson County
submitted additional medical testimony and Jackson testified in person.
The ALJ found that Jackson failed to establish good cause to modify her original
award. The ALJ rejected Jackson's argument that good cause is shown whenever an
award is inadequate and permanent disability and impairment have increased. Instead, as
a matter of statutory interpretation, the ALJ concluded that the good cause requirement
was separate and distinct from the other criteria listed in the statute (such as adequacy or
increased impairment) and that the good cause determination was a threshold
determination left to the court's discretion. The ALJ concluded there was no good cause
under the facts presented that would warrant a modification of the award.
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The Board agreed with the ALJ incorporating much of the ALJ's reasoning and
found, after a thorough analysis, that Jackson had not established good cause to modify
the award. Jackson filed this appeal.
VI. GOOD CAUSE IS A THRESHOLD INQUIRY FOR MODIFICATION OF AN AWARD UNDER
K.S.A. 44-528(a)
Jackson argues that the Board erred in interpreting K.S.A. 44-528(a) as containing
a threshold review for good cause before proceeding to a modification determination.
Resolution of this issue requires statutory interpretation. Interpretation of the Act presents
a question of law subject to unlimited review. EagleMed v. Travelers Insurance, 315
Kan. 411, 420, 509 P.3d 471 (2022).
The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. An appellate court must first attempt
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, and it
should avoid reading something into the statute that is not readily found in its words.
Where there is no ambiguity, the court need not resort to statutory construction. Only if
the statute's language is ambiguous does the court use canons of construction or
legislative history to construe the Legislature's intent. Johnson v. U.S. Food Service, 312
Kan. 597, 600-01, 478 P.3d 776 (2021).
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A. The plain language of the statute reveals a legislative intent to create a
threshold determination of good cause before granting a hearing on a motion
to modify an award.
The statute informs us that any award "may be reviewed" by the ALJ "for good
cause shown" upon application of the employee. The statute then explains the review
process.
"In connection with such review, the [ALJ] may appoint one or two health care providers
to examine the employee and report to the [ALJ]. The [ALJ] shall hear all competent
evidence offered and if the [ALJ] finds that the award has been obtained by fraud or
undue influence, that the award was made without authority or as a result of serious
misconduct, that the award is excessive or inadequate or that the functional impairment or
work disability of the employee has increased or diminished, the [ALJ] may modify such
award, or reinstate a prior award." K.S.A. 44-528(a).
Jackson argues that good cause exists any time one of the factors listed in the third
sentence of the statute exists. In her case, that would include her assertions that the award
was inadequate and that her impairment increased. In other words, as long as Jackson
pleads that the award was inadequate or her impairment has increased, she has a right to
proceed to a hearing and a ruling on modification. We disagree.
We start with the plain language of the statute. Examination reveals that it uses
different modal auxiliary verbs in each sentence—a difference that aids us in determining
legislative intent. See Webster's New World College Dictionary 939 (5th ed. 2018)
(modal auxiliary is "an auxiliary verb that is used with another verb to indicate its mood,
as can, could, may, might, must, shall, should, will, and would").
In the first sentence, the statute says that the ALJ "may" review an award for good
cause. K.S.A. 44-528(a). "The word 'may' in a statute typically signals that the decision is
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a discretionary one, not an entitlement." Caporale v. Kansas Behavioral Sciences
Regulatory Bd., 50 Kan. App. 2d 1155, 1159, 338 P.3d 593 (2014).
The statute then provides that "[i]n connection with such review" the ALJ can
appoint health care workers to examine the employee and report to the ALJ. K.S.A. 44-
528(a). This sentence would be a follow up to the discretionary action by the ALJ in the
first sentence. So if the ALJ decides to review the award, then the ALJ is allowed to
appoint health care workers to examine the employee.
In the third sentence, the statute says the ALJ "shall hear all competent evidence
offered." K.S.A. 44-528(a). The word shall is generally interpreted as mandatory. See
City of Atchison v. Laurie, 63 Kan. App. 2d 310, 318, 528 P.3d 1007 (2023) (listing
factors to consider when determining whether the use of the word "shall" is mandatory or
directory). Only if the ALJ finds, as it applies here, that the initial award was inadequate
or that the claimant's disability increased does the statute provide that the ALJ "may"
modify the award. K.S.A. 44-528(a).
In summary, the ALJ may review an award and the ALJ may then modify an
award. But it may only exercise its discretion to modify an award if it finds (as it relates
to these facts), after a mandatory review of all the evidence, that the award was
inadequate, or the impairment has increased.
To interpret the statute as Jackson suggests—requiring the ALJ must review an
award when there is merely a claim that it is, for example, inadequate—renders the first
sentence meaningless. There would be no purpose for the first sentence and the
interpretation would be the same if it were completely omitted. To reach the
interpretation used by Jackson, the statute need only provide the circumstances upon
which an award can be modified at the discretion of the ALJ. "The court should avoid
interpreting a statute in such a way that part of it becomes surplusage." State v. Van Hoet,
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277 Kan. 815, 826-27, 89 P.3d 606 (2004); see Bicknell v. Kansas Dept. of Revenue, 315
Kan. 451, 479, 509 P.3d 1211 (2022).
In sum, the Legislature's decision to use "may" in some places and "shall" in
others in K.S.A. 44-528(a) is significant. The use of both "may" and "shall" in the same
statute is an indicator that the Legislature intended the word "may" to carry its ordinary
meaning—a discretionary decision, not an entitlement. See Caporale, 50 Kan. App. 2d at
1160. Moreover, to interpret the statute in the way suggested by Jackson renders the first
sentence meaningless or mere surplusage.
This leads us to conclude that the plain language of the statute reveals a legislative
intent that the ALJ make a threshold inquiry as to whether there is good cause to review
the case for possible modification. Granted, a claimant may submit evidence to the ALJ
that the award was inadequate or based on fraud as a path to the finding of good cause to
review the claim, but merely making the claim does not mandate that the ALJ review the
award and set it for an evidentiary hearing. There may be other factors that demand
consideration that are included in this discretionary determination of good cause. Those
will be discussed later in this opinion.
B. This interpretation also aligns with the Act as a whole.
The legislative decision to set a threshold good cause inquiry for modification of a
final award also makes sense in terms of the Act as a whole. The Act provides "a
comprehensive set of statutes that define the rights of employees to compensation for
work-place injuries and the procedures they must follow to obtain compensation."
Cincinnati Insurance Co. v. Karns, 52 Kan. App. 2d 846, 849, 379 P.3d 399 (2016). To
that extent, the Act is a self-contained legislative scheme. While employers must pay
compensation to employees whose injuries are covered by the Act, the employee has the
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burden of proof in "establish[ing] the claimant's right to an award of compensation and to
prove the various conditions on which the claimant's right depends." K.S.A. 44-501b(c).
Under this scheme, the payment of a compensation award is a final judgment that
cannot later be modified or dissolved by judicial fiat. Acosta v. National Beef Packing
Co., 273 Kan. 385, 394, 44 P.3d 330 (2002). The good cause requirement serves as a
gatekeeper to protect the finality of judgments and discourage the piecemeal
determination of claims. See Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788 (1977)
("The time consumed and wasted by piecemeal litigation impedes the dispatch of
business in the courts.").
This is further supported by the statutory appeal process. The Act not only
provides an employee or employer the right to file a claim if there is a disagreement over
benefits, but it also provides them with the opportunity for a comprehensive hearing and
review of medical records. And if a party is dissatisfied with an ALJ's determination of
the worker's benefits, they may appeal to the Board. K.S.A. 44-551(l)(1). If a party is
dissatisfied with the Board's decision, they may appeal to this court. K.S.A. 44-556. This
procedure would be meaningless if a claimant could simply use the modification process
to replace an appeal. Requiring the ALJ to make a threshold determination of good cause
ensures that the claim is not one that could have been raised at the time of the regular
hearing or the subject of a timely appeal, even if the allegation is one of the listed bases
for modification.
For these reasons, the Board did not err in its interpretation of K.S.A. 44-528(a)'s
good cause requirement. Jackson was required to show good cause for review and
modification before the Board considered whether her initial award was inadequate or
that her impairment increased.
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VII. THE BOARD DID NOT ABUSE ITS DISCRETION IN DENYING JACKSON'S
MODIFICATION REQUEST
After finding that good cause is a threshold inquiry, we must address whether the
Board erred in finding that Jackson did not establish good cause to proceed to a hearing
on her claim.
Because the good cause inquiry is discretionary, we review the Board's decision
for an abuse of discretion. Decisions by the Board are reviewed under the Kansas Judicial
Review Act, which provides that relief shall be granted if an agency's discretionary
decision is "unreasonable, arbitrary or capricious." K.S.A. 77-621(c)(8).
A. What is good cause?
Good cause is a phrase common in the Kansas statutes. It is usually not given any
further definition, although at times what constitutes good cause is set out in detail in a
statute. See K.S.A. 16-1306 (what constitutes good cause to cancel outdoor power
equipment agreements). The phrase suggests a desire to give a court flexibility in
decision making. Black's Law Dictionary defines "good cause" as simply "[a] legally
sufficient reason." Black's Law Dictionary 274 (11th ed. 2019). The United States
Supreme Court has noted that the term "cause" is a broad and general standard and a
more specific definition would be impracticable given the "infinite variety of factual
situations [that] might reasonably justify" a judicial action based on cause. Arnett v.
Kennedy, 416 U.S. 134, 161, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974). The Tenth Circuit
has defined cause by what it is not. "A discharge for cause is one which is not arbitrary or
capricious, nor is it unjustified or discriminatory." Weir v. Anaconda Co., 773 F.2d 1073,
1080 (10th Cir. 1985).
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The Board considered the definition of good cause adopted in other types of cases
and adopted a standard of review for good cause that "considered the entire record and all
circumstances, including fairness, the interest of justice, reasonableness, good faith and
the ALJ's discretion in the first instance" before finding that Jackson failed to establish
good cause. We find no fault with the Board's approach to defining good cause.
B. The Board found that Jackson failed to establish good cause for the ALJ or the
Board to review her motion to modify her workers compensation award.
The Board independently and through its incorporation and affirmance of the
ALJ's decision then determined whether Jackson had established good cause for the ALJ
to review her award.
But first, the Board noted that Jackson presented no argument before it as to why
good cause existed to review her appeal. Likewise, on appeal, Jackson devotes only one
sentence regarding the Board's discretionary decision: "The failure of the Board's order
to modify the 2019 award and grant compensation benefits to claimant for permanent
disability for the injuries for the 2016 assault constitutes an abuse of discretion." She
makes no effort to argue how the Board or the ALJ erred in its rejection of a finding of
good cause if it is, in fact, a threshold determination. Generally, we declare issues that are
not adequately briefed to be waived or abandoned. In re Marriage of Williams, 307 Kan.
960, 977, 417 P.3d 1033 (2018). And we continue that practice here. The Board held that
Jackson was "using the review and modification proceeding to do what she should have
done in the regular hearing. The review and modification process is not meant to be a
'redo' or a second regular hearing." This finding is supported by the evidence.
Through the regular hearing process, Jackson not only had the opportunity to
present evidence on permanency, but she was required to do so. K.S.A. 44-523(b)
(claimant must submit all evidence in support of their claim no later than 30 days after
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the regular hearing unless a continuance is granted). Jackson knew that her claim was
potentially covered by the Act, and she had the burden of proof if it was. But she took a
strategic risk and chose not to present any evidence of benefits due. If she felt the Board
misunderstood her request and that she was entitled to the benefits she now alleges are
due, she could have appealed the Board's decision to this court.
An ill-conceived or poorly executed litigation strategy yielding unsatisfactory
results does not amount to good cause to modify a workers compensation award under
K.S.A. 44-528(a). The law typically imputes a lawyer's strategic decisions—good or
bad—and their attendant consequences to the client. See Link v. Wabash Railroad Co.,
370 U.S. 626, 633-34, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); Meyer v. Meyer, 209 Kan.
31, 39, 495 P.2d 942 (1972); Myers v. Kansas Bd. of Healing Arts, No. 121,767, 2020
WL 6815540, at *33 (Kan. App. 2020) (unpublished opinion) (Atcheson, J., concurring).
To allow what amounts to a do-over here would both deviate from that rule and stray far
from the purpose of K.S.A. 44-528(a) as a check on the vagaries of medical
prognostication. And that is enough to affirm the Board.
CONCLUSION
In sum, we find that determining whether good cause exists to review a workers
compensation award under K.S.A. 44-528(a) is different from the discretionary decision
to modify the award or reinstate an award. As part of this threshold inquiry, the ALJ
should consider the entire record and what is reasonable under the totality of the
circumstances. Under these facts, and in the absence of any argument related to whether
good cause existed, we find that the Board did not abuse its discretion in denying
Jackson's request to modify the award.
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The decision of the Board denying Jackson's request for modification of her 2019
workers compensation award is affirmed.
Affirmed.
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