O'Neal v. City of Hutchinson
| Decision Date | 19 November 2021 |
| Docket Number | No. 122,934,122,934 |
| Citation | 499 P.3d 511 (Table) |
| Parties | Patrick O'NEAL, Appellee, v. CITY OF HUTCHINSON, Appellant. |
| Court | Kansas Court of Appeals |
William L. Townsley III and T. Chet Compton, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellant.
Melinda G. Young, of Bretz & Young, LLC, of Hutchinson, for appellee.
Before Malone, P.J., Powell and Cline, JJ.
Patrick O'Neal, who at the time was employed by the City of Hutchinson as a firefighter, filed a workers compensation claim alleging bilateral hearing loss and tinnitus stemming from a fire truck's air horn going off inside the fire station. The City's medical expert, Dr. Robert Epp, testified that O'Neal’s hearing loss was due to repeated exposure to loud noises over the course of O'Neal’s career. This prompted O'Neal to file a new claim alleging repetitive trauma from his employment as a firefighter as the cause of his hearing loss before his first claim had been resolved. Ultimately, the Kansas Workers Compensation Appeals Board (the Board) reversed O'Neal’s single accident claim award but affirmed in part and modified in part the award for his repetitive trauma claim. The City now appeals the Board's award, principally arguing that the doctrine of res judicata, which prohibits a party from relitigating a claim which could have been brought in a prior proceeding, barred O'Neal’s repetitive trauma claim. For reasons we more fully explain below, res judicata did not bar O'Neal’s repetitive trauma claim as O'Neal lacked any evidence to bring his repetitive trauma claim at the time he was litigating his single accident claim. O'Neal initiated his second claim immediately upon learning the evidence establishing his repetitive trauma claim. Thus, we affirm the Board.
O'Neal worked for the City's fire department from May 1994 until September 2017 and originally filed a claim for hearing loss based on a single accident—a fire truck's air horn going off inside the fire station on February 23, 2009, as O'Neal walked in front of it. O'Neal alleged permanent hearing loss and tinnitus. Dr. Peter Bieri examined O'Neal and, at a deposition on April 11, 2016, testified that O'Neal’s hearing loss was from the fire truck incident as O'Neal described it to him.
Dr. Robert Epp also examined O'Neal on May 10, 2016. During his deposition, Dr. Epp testified it was more likely than not that O'Neal’s hearing loss was due to repeated exposure to loud noises over the course of O'Neal’s career as a firefighter.
The Administrative Law Judge (ALJ) found O'Neal had sustained a 2% impairment, but, on appeal by the City, the Board held O'Neal had failed to show the February 23, 2009 accident caused his permanent hearing loss and reversed the award. O'Neal v. City of Hutchinson , No. 1,054,014, 2017 WL 1330450, at *5 ( .
On July 11, 2016, while his first claim was still pending, O'Neal filed a new workers compensation claim for permanent hearing loss and tinnitus due to repetitive exposure to loud noises at work. The parties stipulated to the admission of Dr. Epp's testimony from the first case. Also, because of Dr. Bieri's unexpected death, the parties agreed to admit his deposition from the first case. Dr. Epp's deposition was also taken a second time, in which he reiterated his testimony that O'Neal’s injury was from repetitive exposure at work.
On December 13, 2019, the ALJ entered an Award finding O'Neal sustained a 2% impairment to his body as a whole from the repetitive trauma. The City appealed to the Board, arguing O'Neal’s claim was barred by res judicata, the City never received proper notice, and O'Neal did not provide evidence that he was entitled to a compensation award. The Board entered an order affirming the ALJ's award in part and modifying in part. The Board found O'Neal sustained 0% permanent impairment but awarded him compensation for unauthorized and future medical treatment.
The City seeks judicial review of the Board's order.
The City has petitioned for judicial review of the Board's order under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. See K.S.A. 2019 Supp. 44-556(a) (). We may grant relief when reviewing the Board's actions only if we determine it violated one or more of the provisions listed in K.S.A. 77-621(c). See Board of Cherokee County Comm'rs v. Kansas Racing & Gaming Comm'n , 306 Kan. 298, 318, 393 P.3d 601 (2017). The City invokes three of those provisions.
First, the City alleges the Board erroneously interpreted or applied the law. See K.S.A. 77-621(c)(4). Whether this is so is a legal question subject to our de novo review without deference to the Board's interpretation or application of the law. Mera-Hernandez v. U.S.D. 233 , 305 Kan. 1182, 1185, 390 P.3d 875 (2017).
Second, the City alleges the Board's action is based upon a determination of fact, made or implied by it, "that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review ...." See K.S.A. 77-621(c)(7). " ‘Substantial evidence’ in a workers compensation case is evidence that possesses something of substance and relevant consequence and carries with it fitness to induce the conclusion that the award is proper, or furnishes a substantial basis of fact from which the issue raised can be reasonably resolved." Myers v. Lincoln Center OB/GYN, P.A. , 39 Kan. App. 2d 372, 375, 180 P.3d 584 (2008).
K.S.A. 77-621(d).
Even with evidence supporting the Board's decision, we "must consider ‘whether the evidence supporting the [Board's] decision has been so undermined by cross-examination or other evidence that it is insufficient to support’ " the Board's decision. Romkes v. Univ. of Kansas , 49 Kan. App. 2d 871, 889, 317 P.3d 124 (2014).
Third, the City alleges the Board's action is "otherwise unreasonable, arbitrary or capricious." See K.S.A. 77-621(c)(8). An action is " ‘arbitrary and capricious’ if it is unreasonable or ‘without foundation in fact.’ " Chesbro v. Board of Douglas County Comm'rs , 39 Kan. App. 2d 954, 970, 186 P.3d 829 (2008). An action is unreasonable if Wheatland Electric Coop. v. Polansky , 46 Kan. App. 2d 746, 757, 265 P.3d 1194 (2011). Factors to consider include whether: (1) the Board relied on factors the Legislature did not intend it to consider; (2) the Board "entirely failed to consider an important aspect" of the issue; (3) the Board's explanation of its action conflicts with the evidence in front of it; and (4) the Board's "explanation is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." 46 Kan. App. 2d at 757.
As the party asserting the invalidity of the Board's action, the City bears the burden to prove the Board's actions were invalid at the time they were taken because of the " ‘strong presumption of regularity in administrative proceedings.’ " Board of Cherokee County Comm'rs , 306 Kan. at 321 ; see K.S.A. 77-621(a)(1) (burden of proof); K.S.A. 77-621(a)(2) ().
The City's primary argument on appeal is that res judicata bars O'Neal’s repetitive trauma claim. The City claims O'Neal’s repetitive trauma claim is for bilateral hearing loss and tinnitus, the same injuries alleged in his first workers compensation claim, and that the Board erred by overlooking the fact that O'Neal could have raised his repetitive trauma claim in his first claim. The City also argues the Board erred by finding the first proceeding was not a final judgment on the merits.
O'Neal responds with the assertion that the two claims are different because his single accident claim was based on one event on the day of the accident, while his repetitive trauma claim is based on his continued work as a firefighter for the City over the course of many years. O'Neal also argues there was no final determination on the merits because the Board never made a determination based on repetitive trauma or the compensability of O'Neal’s injury.
Res judicata (also called claim preclusion) is "a common-law rule of equity grounded in both notions of justice and in sound public policy, each of which demands that a party not be vexed with litigation twice on the same cause." Cain v. Jacox , 302 Kan. 431, 434, 354 P.3d 1196 (2015) ; see In re Tax Application of Fleet , 293 Kan. 768, 777, 272 P.3d 583 (2012) (). Res judicata applies to administrative proceedings when the agency acted in a judicial capacity and the first administrative proceeding provided procedural protections similar to court proceedings. 293 Kan. at 779. Res judicata's applicability is a...
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