Opinion
No. 108,583.
2013-06-7
James L. LEMMONS, Appellant, v. RYDER INTEGRATED LOGISTICS, INC., Appellee.
Appeal from Workers Compensation Board. Robert R. Lee, of Wilson, Lee, Gurney & Hess, of Wichita, and John L. Carmichael, of Conlee, Schmidt & Emerson, LLP, of Wichita, for appellant. Randall W. Schroer, of Morrow, Willnauer, Klosterman & Church, L.L.C., of Kansas City, Missouri, for appellee.
Appeal from Workers Compensation Board.
Robert R. Lee, of Wilson, Lee, Gurney & Hess, of Wichita, and John L. Carmichael, of Conlee, Schmidt & Emerson, LLP, of Wichita, for appellant. Randall W. Schroer, of Morrow, Willnauer, Klosterman & Church, L.L.C., of Kansas City, Missouri, for appellee.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
James L. Lemmons was hurt on the job in 2007. Then, while he was at home in May 2008, he suffered a body spasm and went to the emergency room for treatment. In due course, Lemmons received his workers compensation award for his permanent and total disability in October 2009. After that, Lemmons applied for post-award medical benefits asking that his employer's insurer pay the 2008 emergency room bill. Both the administrative law judge and the Workers Compensation Board denied his application because the expenses were incurred more than 6 months prior to his application for post-award benefits. Lemmons asks us to overturn the Board's decision. We will not because we agree with the Board's interpretation of K.S.A.2007 Supp. 44–510k, the statute that limits such benefits to those received 6 months before the filing of the application. We affirm.
The facts are not disputed.
Lemmons suffered a workplace injury to his spine in July 2007 that rendered him permanently and totally disabled. In May 2008—after the first of two surgeries performed on Lemmons' spine—Lemmons suffered a whole-body spasm while at home. Lemmons' wife called an ambulance, and Lemmons was transported to the hospital emergency room. This event occurred in the early stages of Lemmons' ordeal, while his wife was still insecure about how to deal with Lemmons' problems. On that night, Lemmons stayed in the hospital overnight so doctors could get his pain under control and determine the cause.
In 2010, Lemmons continued to experience spasms. The spasms last anywhere from 15 minutes to 2 hours and occur approximately two times per month. When a spasm occurs, Lemmons has severe neck pain that runs into his arms and legs and down his back. If pressure is placed on Lemmons' neck, he loses all movement from the neck down. Lemmons is unable to speak during a spasm. However, Lemmons' wife, who provides full-time care for Lemmons, is now able to adequately handle the spasms.
In September 2009, an ALJ in the Division of Workers Compensation entered an award in Lemmons' case (followed by an award nunc pro tunc filed in October 2009).
More than a year later, in December 2010, Lemmons applied for post-award medical benefits requesting that his employer be held responsible for the May 2008 emergency room bill—which amounted to $9,959.78. Lemmons' employer, Ryder Integrated Logistics, Inc., responded that the bill was not the proper subject of an application for post-award medical benefits because (1) the bill had not been offered at the regular hearing or as an exhibit prior to Lemmons' 2009 award; (2) the emergency treatment was not authorized by Ryder; and (3) the treatment was rendered more than 6 months prior to Lemmons' application for post-award benefits. Lemmons countered that the emergency room services were reasonable and necessary to treat the effects of his injury, the bill had not yet been presented because no one knew it existed, and the 6–month rule was inapplicable to his case.
The ALJ denied Lemmons' request for post-award medical benefits, ruling Ryder was not liable for the emergency room bill. Although the ALJ determined Ryder “authorized” the emergency room expense (in that it “represented a reasonable and necessary” expense incurred to treat the effects of Lemmons' work injury), the ALJ held it lacked jurisdiction to consider the expense because it was incurred more than 6 months prior to Lemmons' post-award application.
After an appeal by Lemmons, the Board reversed the ALJ's determination that the May 2008 emergency room expense was authorized. Additionally, the Board found no authority in the law that would require Ryder to pay a medical expense where Lemmons failed to submit evidence of the expense or “make an issue of” it prior to an award in the case. The Board agreed with the ALJ that under K.S.A.2007 Supp. 44–510k, the Board lacked authority to require Ryder to pay a medical expense incurred more than 6 months prior to Lemmons' application for post-award benefits. In reaching this conclusion, the Board relied upon this court's language in Roles v. Boeing Co., 43 Kan.App.2d 619, 230 P.3d 771 (2010), rev. granted March 1, 2011.
Our review of this question of law is unlimited.
Lemmons asks us to interpret and apply a workers compensation statute-K.S.A.2007 Supp. 44–510k. This is a question of law over which this court conducts a de novo review. See Hall v. Knoll Building Maintenance, Inc., 48 Kan.App.2d 145, 149–50, 285 P.3d 383 (2012). When reviewing a workers compensation statute, this court gives no significant deference to the interpretation given to it by the ALJ or by the Board. Instead, the court independently interprets statutes by ascertaining the intent of the legislature. 48 Kan.App.2d at 150.
The controlling statute is clear.
Post-award medical benefits in this case were governed by K.S.A.2007 Supp. 44–510k:
“(a)(1) At any time after the entry of an award for compensation, the employee may make application for a hearing ... for the furnishing of medical treatment....
“(b) ... The administrative law judge shall have authority to award medical treatment relating back to the entry of the underlying award, but in no event shall such medical treatment relate back more than six months following the filing of such application for post-award medical treatment....” (Emphasis added.)
In Roles, the case the Board relied upon, this court held the Board erred in awarding an employee post-award medical benefits where the expenses at issue were incurred more than 6 months prior to the employee's application for compensation. The Roles court said: “K.S.A.2009 Supp. 44–510k(b) makes it clear that an ALJ is without authority to award a claimant benefits for medical treatment incurred more than 6 months prior to an application for post-award medical compensation.” 43 Kan.App.2d at 638.
The Roles court ultimately found unpersuasive the one case in which the Board permitted a claimant to recover post-award medical benefits for expenses incurred more than 6 months prior to the application. 43 Kan.App.2d at 638. In that case—Meeks v. Essex Group, Docket No. 170,265, 2002 WL 1491810, at *5 fn. 2 (Kan.Work.Comp.App.Bd.2002)—the Board did not apply the 6–month limitation of 44–510k(b) because the treatment was authorized by the treating physician. In refusing to apply the rationale applied in Meeks, the Roles court noted K.S.A.2012 Supp. 44–510k(b) “includes no explicit exception for medical expenses ordered or performed by the authorized physician.” 43 Kan.App.2d at 638.
Instead, the Roles court found favor with other cases where the Board has limited its award to expenses incurred within the 6 months prior to the filing of an application for post-award benefits. See Thomas v. Thomas Sign Company, Docket No. 1,1001,120, 2005 WL 831901, at *4 (Kan.Work.Comp.App.Bd.2005) (denying a claimant's reimbursement for post-award medical expenses for surgery because the surgery occurred more than 6 months before the claimant filed the application for post-award medical); Eichem v. Stoneybrook Retirement Community, Docket No. 236,960, 2002 WL 1838736, at *5 (Kan.Work.Comp.App.Bd.2002) (ordering respondent to pay claimant a post-award medical award for all medical expenses incurred within 6 months of the claimant's application for post-award medical); Newton v. Swan Manor, Inc., Docket No. 213,225, 2002 WL 1838729, at *5–6 (Kan.Work.Comp.App.Bd.2002) (limiting claimant's post-award medical award to medical expenses incurred within 6 months of the claimant's application for post-award medical compensation). We find the Roles court's reasoning persuasive.
Lemmons' emergency room treatment was rendered in May 2008. Lemmons filed his application for post-award medical benefits in December 2010—more than 2 years later. Because the May 2008 bill was incurred more than 6 months prior to Lemmons' application for benefits, the Board was indeed barred from considering the bill and from ordering Ryder to pay it. The Board did not err in determining it lacked jurisdiction to consider the emergency room bill. Because the Board had no jurisdiction, we need not review its ruling on whether the expenses were authorized by Ryder.
Affirmed.