Garcia v. Tyson Fresh Meats, Inc.
| Decision Date | 28 January 2022 |
| Docket Number | 123,430 |
| Citation | 61 Kan.App.2d 520,506 P.3d 283 |
| Parties | Guadalupe GARCIA, Appellant, v. TYSON FRESH MEATS, INC., Appellee. |
| Court | Kansas Court of Appeals |
Stanley R. Ausemus, of Stanley R. Ausemus, Chartered, of Emporia, for appellant.
Gregory D. Worth, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellee.
Before Atcheson, P.J., Bruns and Isherwood, JJ.
Guadalupe Garcia appeals from the decision of the Kansas Workers Compensation Board (Board) finding that the injury she sustained during her employment resulted in only a 3% impairment to her body as a whole. Because the Board relied on a medical opinion that appears to have been exclusively based on the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (6th ed. 2008) to establish Garcia's functional impairment rating, rather than on a comprehensive view of competent medical evidence, we reverse the Board's decision and remand for a reexamination of her impairment rating and such other relief as may be appropriate.
A medical opinion confined to the Sixth Edition typically would not conform to the Kansas Supreme Court's recent reading of K.S.A. 2020 Supp. 44-510e(a)(2)(B), governing permanent impairment ratings, in Johnson v. U.S. Food Service , 312 Kan. 597, 603, 478 P.3d 776 (2021) ( Johnson II ). Although the Board did not have the benefit of Johnson II when it ruled, the court's determination applies to unresolved workers compensation cases, including Garcia's. The Board's decision, therefore, amounts to an erroneous interpretation of the law subject to review and correction under the Kansas Judicial Review Act (KJRA). K.S.A. 77-621(c)(4).
Garcia filed an application for a hearing with the Kansas Division of Workers Compensation in June 2017. She claimed a date of injury of January 12, 2017, and each working day thereafter.
At the time Garcia filed her application, K.S.A. 2016 Supp. 44-510e(a)(2)(B) provided that the extent of permanent partial general disability for injuries occurring on and after January 1, 2015, should be "based on the sixth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein." The Fourth Edition of the AMA Guides is the version applicable to injuries occurring prior to January 1, 2015. K.S.A. 2020 Supp. 44-510e(a)(2)(B).
Garcia was evaluated by three doctors, each of whom was specifically requested to provide a rating for Garcia's whole-body impairment under both the Fourth and Sixth Editions of the AMA Guides. Dr. John Estivo, D.O., rated Garcia at 5% under the Fourth Edition and 3% under the Sixth Edition.
Dr. George Fluter, M.D., rated Garcia at 18% under the Fourth Edition and 19% under the Sixth Edition, and Dr. Terrence Pratt, M.D., rated Garcia at 8% under the Fourth Edition and 2% under the Sixth Edition.
In August 2018, a panel of this court ruled that use of the Sixth Edition of the AMA Guides for measuring permanent impairment of injured workers was unconstitutional and found that the Fourth Edition of the AMA Guides should be used in evaluating an injured worker's permanent impairment. Johnson v. U.S. Food Service , 56 Kan. App. 2d 232, Syl. ¶ 7, 427 P.3d 996 (2018) ( Johnson I ). That decision was appealed to the Kansas Supreme Court which granted review in February 2019.
As a result of this court's decision in Johnson I , Garcia requested that her regular hearing, scheduled for November 2019, be continued until the Kansas Supreme Court issued its decision on the appeal. The administrative law judge (ALJ) denied the motion, noting that June 2020 marked the expiration of the three-year time deadline for proceeding to a regular hearing as established by K.S.A. 2020 Supp. 44-523(f). Garcia filed a motion for reconsideration of her request for continuance in May 2020. The ALJ denied the motion, reasoning that absent agreement of the parties he needed to issue an award within the time frame established by K.S.A. 2020 Supp. 44-523(c).
The ALJ issued a decision in June 2020. He acknowledged this court's decision in Johnson I , and Garcia's argument that the Fourth Edition of the AMA Guides should apply. However, he concluded that the Johnson I decision was not binding precedent because the Kansas Supreme Court granted a petition for review. See Kansas Supreme Court Rule 8.03(k) (2020 Kan. S. Ct. R. 54).
On the merits, the ALJ considered the impairment ratings provided by Doctors Estivo, Pratt, and Fluter under the Sixth Edition of the AMA Guides. He concluded that Dr. Estivo's assessment of a 3% impairment was most persuasive based on the doctor's heightened familiarity with Garcia's claim (he examined her multiple times), as well as the overall credibility of his report and findings. The ALJ also found that because Garcia only had 3% impairment to her body as a whole, she was not eligible for work disability compensation. See K.S.A. 2020 Supp. 44-510e(a)(2)(C)(i) (). The ALJ did authorize Garcia to apply for future medical care benefits.
Garcia sought review by the Workers Compensation Appeals Board. She also moved to stay those proceedings until the Kansas Supreme Court issued its opinion in Johnson II .
The Board entered a written order in November 2020. First, it held that the matter could not be stayed as Garcia requested absent an agreement between the parties because K.S.A. 2020 Supp. 44-551(l)(1) required it to issue an order within 30 days of the appeal being fully submitted. The Board also held that it lacked the authority to enter a ruling on the constitutionality of the Guides. Third, the Board affirmed the ALJ's finding that Garcia suffered a 3% functional impairment to her body as a whole under the Sixth Edition of the Guides. Finally, the Board reversed the ALJ's award of future medical benefits.
Garcia now brings the matter before us and requests that we review and analyze the propriety of the decisions entered by the Board, with the exception of its reversal of her award of future medical benefits. The latter issue was not appealed and, therefore, the Board's decision on that matter will not be reviewed or disturbed.
Garcia filed her brief in this appeal before the Kansas Supreme Court issued its decision in Johnson II . She raises four issues. First, she challenges the constitutionality of the 2013 amendment to K.S.A. 2020 Supp. 44-510e, which requires the use of the Sixth Edition of the Guides during the assessment of impairment for work injuries. Second, she argues that the ALJ and Board both erred by not continuing her case until the Kansas Supreme Court decided Johnson II . Third, she argues that the ALJ and Board erred in relying on the Sixth Edition of the Guides. Finally, she argues that the ALJ and Board erred in refusing to find that she suffered a work loss.
As we have indicated, we review a workers compensation award under the KJRA, K.S.A. 77-601 et seq., and may reverse an agency decision only in limited circumstances. See K.S.A. 77-621(c). If the Board materially misapplies the law, we may step in to correct that error. When analyzing whether the Workers Compensation Board erroneously applied the law to undisputed facts, appellate courts exercise de novo review. See Mera-Hernandez v. U.S.D. 233 , 305 Kan. 1182, 1185, 390 P.3d 875 (2017). The controlling issue here is one of statutory construction, as filtered through the Johnson II decision, and, thus, presents a question of law. We owe no particular deference to the Board's legal analyses or determinations. Estate of Graber v. Dillon Companies , 309 Kan. 509, Syl. ¶ 2, 439 P.3d 291 (2019).
Garcia's first argument is that the amendment to K.S.A. 2020 Supp. 44-510e, requiring use of the Sixth Edition of the Guides as part of the analysis to assess the extent of permanent partial general disability for injuries sustained after January 1, 2015, is unconstitutional. As noted above, the Kansas Supreme Court rejected this argument in Johnson II . We are duty bound to follow Kansas Supreme Court precedent unless there is some indication of a departure from its previous position. State v. Rodriguez , 305 Kan. 1139, 1144, 390 P.3d 903 (2017). The court has issued no such signal related to its ruling in Johnson . As a result, we must reject Garcia's argument that use of the Sixth Edition of the Guides is unconstitutional.
Garcia next asserts that the ALJ and the Board erred when they refused her request to continue this case until such time as the Kansas Supreme Court issued its decision in Johnson II . Garcia offers us only a single sentence on this point, stating that "[i]t goes without saying" that the ALJ "had the duty and obligation to continue the case until such time as the Supreme Court ruled on the case of Johnson ... since the Court of Appeals had already ruled the use of the 6th Edition of the AMA Guides is unconstitutional." This argument falls far short of what is required to secure the relief Garcia seeks.
First, an issue on appeal before this court cannot "go[ ] without saying." 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. Garcia did not supply a standard of review, provide us with any...
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State v. Spilman
...we are bound by those decisions. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017); Garcia v. Tyson Fresh Meats, Inc., 61 Kan.App.2d 520, 524, 506 P.3d 283 (2022). Finally, even if we were to adopt Spilman's argument and had the authority to do so, we would still be required to a......
- In re Cullins