Opinion
112,109.
05-08-2015
William MILLER, Appellant, v. JACKSON COUNTY and Kansas Workers Risk Cooperative for Counties, Appellees.
Roger D. Fincher, of Bryan, Lykins, Hejtmanek & Fincher, P.A. of Topeka, for appellant. Ronald J. Laskowski, of The Law Office of Ronald J. Laskowski, of Topeka, for appellee.
Roger D. Fincher, of Bryan, Lykins, Hejtmanek & Fincher, P.A. of Topeka, for appellant.
Ronald J. Laskowski, of The Law Office of Ronald J. Laskowski, of Topeka, for appellee.
Before HILL, P.J., STANDRIDGE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
William Miller appeals from the Workers Compensation Board's (Board) decision finding that he suffered only a 5 percent permanent partial impairment in each of two fingers injured in a workplace accident and that he was not entitled to future medical expenses. First, he argues that the Board's decision regarding his impairment ratings was not supported by substantial competent evidence. Second, he argues that uncontroverted evidence established that he would likely require medical treatment in the future. Finally, Miller argues for the first time on appeal that K.S.A.2014 Supp. 44–551 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and § 18 of the Kansas Constitution Bill of Rights.
In 2011, Miller worked as a guard at the Jackson County Jail. On October 30, 2011, he crushed the middle and ring fingers on his left hand between a door and a steel cabinet. He first sought treatment at an emergency room in Holton, and the doctor there referred him to Dr. Neal Lintecum. Lintecum was a board certified orthopedic surgeon with a subspecialty in hand surgery.
Miller's first appointment with Lintecum was on November 7, 2011. Lintecum performed a physical examination of the injuries and found that Miller had bleeding underneath his fingernails on his middle and ring fingers. But his fingers also had good alignment, good blood supply, and his tendon and nerve functions were intact. Lintecum drained blood from the injured fingers and put them in splints. On November 28, 2011, Miller started physical therapy.
Lintecum's last appointment with Miller was on March 7, 2012. On that date, Miller still had some redness around the ring fingernail, but he had no drainage and no signs of infection. They discussed another appointment to ensure one of the nails was growing properly, but Lintecum did not see Miller again after March 7. Other than the possible follow-up appointment to check on the nail, Lintecum did not believe there was any obvious need for future medical care. In May 2012, Lintecum noted that Miller did not suffer any permanent partial impairment resulting from his accident pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed. 1995) (AMA Guides).
On August 16, 2012, Miller completed an application for hearing and submitted it to the Kansas Department of Labor's Division of Workers Compensation. At the request of Miller's attorney, Dr. Daniel Zimmerman examined Miller on September 6, 2012. Dr. Zimmerman concluded that Miller suffered a 63 percent permanent impairment of his left middle finger and a 65 percent permanent impairment of his left ring finger. He based these ratings on Miller's complaints of severe pain, severe sensory changes, and range of motion changes. Zimmerman determined Miller had achieved maximum medical improvement at the time of his examination. However, Zimmerman also testified that Miller could benefit from future medical care. Miller's pain was currently being treated with Aleve but it also could be treated with a nonsteroidal anti-inflammatory medication such as Celebrex, Mobic, or local anesthetic injections, all of which would require physician supervision.
The Administrative Law Judge (ALJ) later appointed Dr. Edward Prostic as an independent medical examiner and ordered him to rate Miller's alleged impairments. Prostic completed his examination on May 22, 2013. He found Miller was able to make a fist and open his hand completely. Based on these observations, Prostic concluded Miller had full range of motion in his fingers. Like Zimmerman, Prostic also found significant sensory loss in Miller's two injured fingers. Unlike Zimmerman, however, Prostic did not attribute the sensory loss to the accident at work. Instead, Prostic believed Miller suffered from carpal tunnel syndrome. Prostic testified that the carpal tunnel syndrome was much more likely to be caused by Miller's activities on his farm such as using a chainsaw, his weight, and his possible diabetes than by the crush injuries to the tips of his fingers. When asked if he thought the work injury could have contributed to Miller's carpal tunnel symptoms, Prostic responded that the only problem he would expect Miller to have in the future as a result of his work injury is some continued soreness in the fingertips with active use.
As the result of his examination, Prostic found Miller suffered a 5 percent permanent impairment in each of his two injured fingers. His report stated that the impairment rating he provided was in accordance with the AMA Guides. But when asked at his deposition how he came up with that figure, Prostic said that the 5 percent permanent impairment rating did not come from the AMA Guides. More specifically, Prostic explained that Miller did not qualify as suffering from any permanent impairment according to the AMA Guides because Miller had a full range of motion and because the sensory abnormality he did suffer from was caused by something other than the accident at work. Prostic clarified that the impairment rating was based only on the residual soreness Miller reported that he continued to have in his fingertips.
The ALJ found that Miller suffered a 5 percent permanent impairment to each of his two injured fingers. In reaching this conclusion, the ALJ found the testimony of Drs. Prostic and Lintecum more credible than that of Dr. Zimmerman. The ALJ also found that many of Miller's complaints were the result of carpal tunnel syndrome ; thus, there was insufficient evidence to find that Miller's work accident was a prevailing factor in these complaints. Finally, the ALJ denied Miller's request to leave future medical treatment open because there was insufficient evidence to find that it was probably more true than not that future medical treatment would be required.
Miller appealed the ALJ's award to the Board. The Board affirmed the ALJ's award in all respects. Specifically, it found that the ALJ properly adopted Prostic's impairment ratings. Noting that Zimmerman was the only physician to suggest Miller might require future medical treatment, the Board found Zimmerman's opinion was outweighed by the testimony of Prostic and Lintecum. Thus, the Board ruled that Miller was not entitled to future medical treatment.
Analysis
Impairment rating
Miller argues the Board's finding that he suffered a 5 percent permanent impairment to each of his two injured fingers is not supported by substantial competent evidence. This court reviews decisions by the Board under the Kansas Judicial Review Act (KJRA), K.S.A.2014 Supp. 77–601 et seq. K.S.A.2014 Supp. 44–556(a). Under the KJRA, this court must review the record as a whole to determine whether the Board's factual determinations are supported by substantial evidence. See K.S.A.2014 Supp. 77–621(c)(7). This analysis requires this 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. Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014). “Substantial evidence” is evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, or furnishing a basis of fact from which the issue raised could be easily resolved. Ward v. Allen County Hospital, 50 Kan.App.2d 280, 285, 324 P.3d 1122 (2014). This court does not “weigh conflicting evidence except to determine whether the evidence supporting the Board's decision has been so undermined by conflicting evidence that we no longer have confidence in the substantial nature of the evidence.” Messner v. Continental Plastic Containers, 48 Kan.App.2d 731, 750, 298 P.3d 371, rev. denied 297 Kan. 1246 (2013).
Miller asserts the Board erred by relying on Prostic's impairment ratings because Zimmerman's impairment rating most accurately reflected the full nature and extent of Miller's injuries. He asserts the Board should not have rejected the testimony of Zimmerman because his opinion was “well-reasoned” and “based upon the proper testing and the proper use of the [AMA Guides].” Miller also notes that unlike Prostic and Lintecum, Zimmerman specifically identified the sections of the AMA Guides upon which his ratings were based. Finally, he argues that all of his lingering symptoms were caused by the crush injury to his fingers rather than carpal tunnel syndrome.
Miller's arguments on appeal merely call upon this court to reweigh the evidence, reevaluate the credibility of the physician witnesses in this case, and explicitly override the credibility determination made by the ALJ. That is not this court's function. This court only reviews the record as a whole to determine if the Board's decision is supported by substantial evidence. K.S.A.2014 Supp. 77–621(c)(7). In accordance with that standard of review, we find that substantial evidence exists to support the Board's findings.
Prostic observed Miller display a full range of motion in his hand. Prostic also testified that it was far more likely that Miller's sensory loss was caused by carpal tunnel syndrome brought on by his farm work and weight than by a crush injury to the tips of two fingers. Finally, Prostic specifically said during his deposition that the impairment rating he assigned to Miller was based solely on residual pain from the crush injury. Prostic's opinion was bolstered by Lintecum's testimony that it would be unusual for a fingertip injury to cause carpal tunnel syndrome. Lintecum also concluded that Miller suffered no permanent impairment whatsoever from his injury.
Although Zimmerman expressed a markedly different opinion about the nature and extent of Miller's impairment than either Prostic or Lintecum, the ALJ specifically found that Zimmerman's opinion was less credible than Prostic's or Lintecum's. Given this credibility determination, Zimmerman's opinion does not undermine this court's confidence in the substantial nature of the evidence supporting the Board's findings. Although the record does contain conflicting evidence as to the nature and severity of Miller's medical symptoms, we affirm the Board's decision to award Miller a 5 percent permanent impairment in each of his two crushed fingers.
Future medical expenses
Miller also argues the Board erred by refusing to leave future medical care open for him. This question is subject to the same substantial evidence standard discussed above. K.S.A.2014 Supp. 44–556(a) ; K.S.A.2014 Supp. 77–621(c)(7).
K.S.A.2014 Supp. 44–510h(e) establishes apresumption that the employer's obligation to provide medical treatment shall terminate upon the employee reaching maximum medical improvement. That presumption can be overcome with medical evidence that it is more probably true than not that additional medical treatment will be necessary after the employee reaches maximum medical improvement. K .S.A.2014 Supp. 44–510h(e). Here, Zimmerman testified that Miller reached maximum medical improvement relating to the injuries to his fingers. The Board found that Miller did not overcome the presumption established by K.S.A.2014 Supp. 44–510h(e) and therefore declined to award future medical treatment to Miller.
On appeal, Miller claims that uncontroverted evidence established that it was more probable than not that he would require medical treatment in the future. Uncontradicted evidence cannot be ignored unless it is improbable, unreasonable, or untrustworthy, and such evidence must be considered conclusive. Lake v. Jessee Trucking, 49 Kan.App.2d 820, 844, 316 P.3d 796 (2013), rev. denied 301 Kan. –––– (January 15, 2015). Zimmerman testified that it was more probable than not that Miller would need additional medical treatment in the future. Specifically, he stated that Miller's pain possibly could require a nonsteroidal anti-inflammatory medication such as Celebrex or Mobic. He also suggested that Miller could possibly need injections of a local anesthetic. In his brief, Miller argues that neither Prostic nor Lintecum offered any opinion regarding whether it was more probably true than not that Miller would require medical treatment in the future. As such, he argues Zimmerman's opinion is uncontroverted and therefore conclusive.
But the record on appeal clearly reveals that Zimmerman's opinion regarding Miller's future need for medical treatment was not uncontradicted. Lintecum testified that, at the time of Miller's last appointment, there was no obvious need for future medical care. Prostic did not address future medical care directly but stated that the only future problem he expected from Miller's injury was some continued soreness in the fingertips with active use. Consequently, Zimmerman's testimony is not conclusive on the matter. In addition, the Board specifically found Zimmerman's testimony less credible than Lintecum's or Prostic's. Therefore, substantial evidence supports the Board's decision denying Miller's request to leave future medical treatment open. The Board's decision denying an award of future medical treatment is affirmed.
Due process
Miller argues that K.S.A.2014 Supp. 44–551 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and § 18 of the Kansas Constitution Bill of Rights. But Miller did not challenge the constitutionality of K.S.A.2014 Supp. 44–551 at any point during the administrative proceedings below. Generally, constitutional issues cannot be raised for the first time on appeal. State v. Bowen, 299 Kan. 339, 355, 323 P.3d 853 (2014). However, decisions by the Board are appealed directly to this court. K.S.A.2014 Supp. 44–556(a). This is significant because no state agency has the authority to declare a law unconstitutional. Kansas Bldg. Industry Work. Comp. Fund v. State, 49 Kan.App.2d 354, 381, 310 P.3d 404 (2013), rev. granted 298 Kan. –––– (December 27, 2013). Therefore, Miller could not have obtained any relief based on his constitutional argument even if he had raised it below.
Nevertheless, our Supreme Court has noted that the wise course of action for a party faced with administrative action and wishing to preserve a constitutional issue for judicial review would be to raise the issue before the administrative body despite its lack of authority to decide that issue. See Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 633–34, 176 P.3d 938 (2008). The appeal in Martin arose from an administrative driver's license suspension by the Kansas Department of Revenue. But there is no apparent reason the same reasoning would not apply in the context of a workers compensation appeal.
Given that the issue was not raised below, Miller violated Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) by failing to explain in his brief why the issue is properly before this court. In the past, this rule has not been strictly enforced, but our Supreme Court recently warned litigants that they should take care to comply with Rule 6.02(a)(5) or risk a ruling that an issue is improperly briefed and deemed waived or abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). Williams was filed on March 7, 2014. Miller's brief in this case was filed over 5 months later on August 29, 2014. Because Miller did not raise the issue below, failed to abide by Supreme Court Rule 6.02(a)(5), and failed to heed the Supreme Court's warning in Williams, this issue could be deemed waived or abandoned.
Even if Miller had not waived the issue, however, Miller's argument fails. This court may consider an issue for the first time on appeal if it involves only a question of law arising on proved or admitted facts and is finally determinative of the case. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). Here, Miller claims that the current method for selecting ALJ's under K.S.A.2014 Supp. 44–551 denies him an adequate remedy for the abrogation of his right to sue his employer for work-related injuries. The constitutionality of a statute is a question of law over which appellate courts exercise unlimited review. State v. Seward, 289 Kan. 715, 718, 217 P.3d 443 (2009), disapproved on other grounds by State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015). Miller claims that the defects in K.S.A.2014 Supp. 44–551 render the entire Workers Compensation Act unconstitutional, so this question is finally determinative of the case.
However, before reaching the merits of Miller's argument, we must address the issue of standing. Standing is a component of subject matter jurisdiction and may be raised at any time and on an appellate court's own motion. Ternes v. Galichia, 297 Kan. 918, 921, 305 P.3d 617 (2013). Miller argues at different times in his brief that K.S.A.2014 Supp. 44–551 is unconstitutional both on its face and as applied to him. The following general rules regarding standing apply to cases such as this:
“ ‘A party has standing to challenge constitutionality of a statute only insofar as it has an adverse impact on his [or her] own rights. As a general rule, if there is no constitutional defect in the application of statute to a litigant, he [or she] does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.’ “ Cross v. Kansas Dept. of Revenue, 279 Kan. 501, 508, 110 P.3d 438 (2005).
The burden is on the party seeking judicial review to demonstrate he or she has standing. Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 908, 249 P.3d 434 (2011).
The portion of K.S.A.2014 Supp. 44–551 Miller claims is unconstitutional establishes the procedure for selecting workers compensation ALJ's. Under the statute, when an ALJ vacancy occurs, a 7–member nominating commission nominates a qualified individual and submits that person's name to the Secretary of Labor. The Secretary may then either accept and appoint the nominee or reject the nomination and ask the commission to submit another name. K.S.A.2014 Supp. 44–551(i). Each of the following people or organizations suggest one member to be appointed to the nominating commission by the governor: (1) the Kansas Secretary of Labor, (2) the Kansas Chamber of Commerce, (3) the National Federation of Independent Business, (4) the Kansas AFLCIO, (5) the Kansas State Council of the Society for Human Resource Management, and (6) the Kansas Self–Insurers Association. The final member is also selected by the Secretary of Labor, but the person must be from an employee organization as defined in K.S.A. 75–4322 or a professional employees' organization as defined in K.S.A. 72–5413. K.S.A.2014 Supp. 44–551(e). Prior to June 1, 2013, the nominating committee was composed of only two members, one of which was from the Kansas AFL–CIO and the other was from the Kansas Chamber of Commerce and Industry. See K.S.A.2012 Supp. 44–551(e).
Miller argues that recent changes to K.S.A.2014 Supp. 44–551 make the Workers Compensation Act so one-sided that it is no longer an adequate substitute remedy for the common-law right to sue an employer. Consequently, he alleges that his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and § 18 of the Kansas Constitution Bill of Rights were violated because the remedy for his injuries is unreasonable.
Conspicuously lacking from his argument, however, is an explanation of how the process for selecting ALJ's adversely impacted his own rights. He complains the current process has devastating consequences on the integrity of the workers compensation system and alleges that his workers compensation remedy is now unreasonable. But he fails to allege or establish any connection whatsoever between the ALJ selection process and the outcome of his administrative hearing. It is unclear from the record in this case whether the ALJ that presided over Miller's case was even selected under the new statutory scheme. For these reasons, Miller failed in his burden to establish standing to challenge the constitutionality of K.S.A.2014 Supp. 44–551, and this issue is dismissed.
Affirmed.