Henson v. Davis
| Decision Date | 16 October 2015 |
| Docket Number | No. 112,292.,112,292. |
| Citation | 54 Kan.App.2d 668,402 P.3d 1161 |
| Parties | Andrew HENSON, Appellee, and Belger Cartage Service, Inc., Appellant, v. Ronald DAVIS, M.D., Appellee. |
| Court | Kansas Court of Appeals |
Patrick J. Murphy and Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Wichita, for appellant.
Blake A. Shuart, of Hutton & Hutton Law Firm, L.L.C., of Wichita, for appellee Andrew Henson.
Before Malone, C.J., Leben, J., and Hebert, S.J.
Andrew Henson was badly injured at work when he was pinned between a printing press and a large crate. Accordingly, his employer, Belger Cartage Service, Inc., had to pay for his medical treatment and provide disability compensation under the Workers Compensation Act.
Henson believed the first doctor who treated him committed medical malpractice, and he sued the doctor. A jury agreed with Henson and awarded substantial damages.
After trial, Belger Cartage asked that the district court give it credit in the amount of the remainder of the lawsuit recovery against future medical expenses it might otherwise be required to pay for Henson's continued treatment. The district court denied that request, and Belger Cartage has appealed to this court. Based on our Supreme Court's ruling in Wishon v. Cossman , 268 Kan. 99, Syl. ¶ 2, 991 P.2d 415 (1999), we conclude that the district court ruled correctly.
Henson did not seek recovery in his medical-malpractice case for any future medical expenses, so the jury did not award him any. Yet Belger Cartage seeks a credit against those very expenses through its lien rights under K.S.A. 44-504(b). Our Supreme Court said in Wishon that an employer's interest under K.S.A. 44-504(b) applies "only to the extent that the worker's recovery duplicates compensation and medical expenses paid by the employer under the Workers Compensation Act." 268 Kan. 99, Syl. ¶ 2, 991 P.2d 415. Because Henson did not get any money in the lawsuit for future medical expenses and medical expenses are the only future costs Belger Cartage might have to pay, Belger Cartage is not entitled to any credit based on the malpractice recovery.
To answer the limited question at issue in this appeal, we need only sketch an outline of the background facts in the case.
Henson had been helping load a printing press while a coworker was driving a forklift to move a large crate. The forklift driver went too fast, causing the crate to slide in Henson's direction and pinning him against the printing press. Henson was knocked out and woke up lying on the ground struggling to breathe. Coworkers loaded him into a pickup truck to take him to a hospital emergency room, but a Belger Cartage manager redirected them to a nearby clinic. A doctor at that clinic treated Henson that day and for several days afterward, returning Henson to work. See Henson v. Belger Cartage Service, Inc. , 2011 WL 5341314, at *2–3 ( .
Later, Henson was hospitalized, underwent surgery, and had a pacemaker implanted. Although he went back to work, he was restricted to lifting no more than 15 pounds; Henson was eventually laid off and did not work again.
Henson recovered damages for his injuries in two proceedings. The first was a workers-compensation case to determine what his employer should pay for his on-the-job injuries. In that case, Belger Cartage paid Henson $125,000 in disability benefits; it also paid medical expenses costing $192,000. The second case was a medical-malpractice case for negligence, as Henson believed the negligence of the initial treating doctor had caused him harm. There, Henson recovered $735,900, a portion of which represented loss-of-consortium damages. Loss-of-consortium damages were awarded to compensate Henson's wife for the loss of household services from Henson, and they are not compensable under the Workers Compensation Act. See K.S.A. 2014 Supp. 23-2605 ; Fisher v. State Farm Mut. Auto. Ins. Co. , 264 Kan. 111, 123, 955 P.2d 622 (1998). Henson did not ask the jury to award any damages for future medical expenses.
After the jury verdict in Henson's favor in the medical-malpractice case, Belger Cartage asked to have a lien against the recovery for payments it had already made. Belger Cartage recognized that it had no potential lien or credit against the loss-of-consortium damages. In addition, its potential lien amount was reduced to cover a portion of the attorney fees and costs incurred in the lawsuit. See K.S.A. 44-504(b). After subtracting the loss-of-consortium damages and a portion of the attorney fees and costs, the district court awarded Belger Cartage $216,385.90 from the recovery to reimburse it for the amounts it had already paid in disability benefits and medical expenses. That award fully reimbursed Belger Cartage for everything it had paid to that date.
Belger Cartage also asked for a credit against any future medical expenses it might have to pay. The district court denied that request, which prompted this appeal.
Both parties agree that Belger Cartage may yet have to provide medical care made necessary by Henson's on-the-job injury. Our question on appeal is a narrow one: Is Belger Cartage entitled to a credit against these potential future medical expenses?
We have already noted the two points that we find decisive in answering this question: (1) Henson didn't recover a dime for future medical expenses in his lawsuit; and (2) an employer has no right to a credit against sums it pays that don't duplicate money recovered in the underlying lawsuit. The first point is uncontested; the second was clearly set out by our Supreme Court in Wishon : " K.S.A. 44-504(b) grants employers subrogation liens on tort recoveries by injured workers only to the extent that the worker's recovery duplicates compensation and medical expenses paid by the employer under the Workers Compensation Act." 268 Kan. 99, Syl. ¶ 2, 991 P.2d 415.
Of course, we are required to follow the decisions of our Supreme Court—unless that court has given "some indication that [it] intended to depart from its prior position." State v. Hall , 298 Kan. 978, 983, 319 P.3d 506 (2014). That's where Belger Cartage has staked its claim on appeal. Its contentions boil down to this: (1) since Wishon , our Supreme Court has changed its method of statutory interpretation and now will ignore a statute's purpose when its language is unambiguous; (2) K.S.A. 44-504(b) unambiguously grants it a credit; and (3) we therefore must apply the unambiguous statutory language rather than the previous directive from Wishon .
Let's start with Belger Cartage's first claim—that our Supreme Court's post- Wishon statutory-interpretation decisions indicate that Wishon is no longer good law. In support of its argument, Belger Cartage cites Bergstrom v. Spears Manufacturing Co. , 289 Kan. 605, 214 P.3d 676 (2009), and Casco v. Armour Swift–Eckrich , 283 Kan. 508, 154 P.3d 494 (2007).
In Bergstrom , the court overruled a series of Kansas Court of Appeals decisions that had held that an employee could not obtain work-disability benefits unless the employee put forth a good-faith effort to seek new employment. The statutory provision on work-disability payments said nothing about good-faith efforts to seek employment, and the court refused to "read the statute to add something not readily found in it." 289 Kan. at 608, 214 P.3d 676.
In Casco , the court overruled one of its own past cases, Honn v. Elliott , 132 Kan. 454, 295 P. 719 (1931), which involved how to calculate a worker's disability when the employee suffered a "parallel injury," such as to both hands or both feet. Honn had allowed a general-disability award in these cases, rather than the award set for a particular injury. But the Casco court found no statutory language that would support that result, 283 Kan. at 524–27, 154 P.3d 494, and emphasized that "[a] statute should not be read to add that which is not contained in the language of the statute." 283 Kan. at 521, 154 P.3d 494.
To be sure, the Bergstrom and Casco cases indicate that our Supreme Court has focused more closely on statutory language than intent when interpreting the Workers Compensation Act, and the court in each case expressed an unwillingness to read terms into that Act that weren't there. We note, though, that Wishon , a 1999 decision, is not much older than Casco (2007) and Bergstrom (2009). And the court has restated the basic position of Wishon —that a major purpose of K.S.A. 44-504(b) was " ‘to prevent double recoveries by injured workers' "—as recently as 2007, in an opinion filed several months after Casco . See Edwards v. Anderson Engineering, Inc. , 284 Kan. 892, 896–97, 166 P.3d 1047 (2007) (quoting PMA Group v. Trotter , 281 Kan. 1344, 1348–49, 135 P.3d 1244 [2006] ). If we are to depart from Wishon , we must see some indication that the Kansas Supreme Court intends to do so. Hall , 298 Kan. at 983, 319 P.3d 506.
Earlier this year, in State v. James , 301 Kan. 898, 349 P.3d 457 (2015), our Supreme Court summarized its statutory-interpretation rules. The court noted that plain language "is typically determinative of legislative intent" but that statutes also must be construed to avoid unreasonable or absurd results:
301 Kan. at...
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