Solis v. Brookover Ranch Feedyard, Inc., 82,298.

• Decision Date: 10 March 2000
• Docket Number: No. 82,298.,82,298.
• Citation: 268 Kan. 750,999 P.2d 921
• Parties: JUVENTINO SOLIS, Appellee, v. BROOKOVER RANCH FEEDYARD, INC., Respondent, and UNITED STATES FIDELITY & GUARANTY COMPANY/THE HARTFORD, Appellant, and KANSAS LIVESTOCK ASSOCIATION INSURANCE, Appellee.
• Court: Kansas Supreme Court

268 Kan. 750

999 P.2d 921

JUVENTINO SOLIS, Appellee, v. BROOKOVER RANCH FEEDYARD, INC., Respondent, and UNITED STATES FIDELITY & GUARANTY COMPANY/THE HARTFORD, Appellant, and KANSAS LIVESTOCK ASSOCIATION INSURANCE, Appellee.

No. 82,298.

Supreme Court of Kansas.

Opinion filed March 10, 2000.

Billy E. Newman, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, argued the cause and was on the brief for appellant United States Fidelity & Guaranty Company/The Hartford.

Robert A. Levy, of Law Office of Robert A. Levy, of Garden City, argued the cause and was on the brief for appellee Juventino Solis.

Stephen M. Kerwick, of Foulston & Siefkin, L.L.P., of Wichita, argued the cause, and D. Shane Bangerter, of the same firm, of Dodge City, was with him on the brief for appellee Kansas Livestock Association.

The opinion of the court was delivered by

DAVIS, J.:

Claimant Juventino Solis, in this workers compensation appeal, sought the cost for repairs to a prosthesis which had been provided by the employer based upon a work-related injury. United States Fidelity & Guaranty Company/The Hartford (Hartford) denied responsibility claiming the employer's new insurance carrier, Kansas Livestock Association (KLA), would be responsible because the damage resulted from a new accident. The Workers Compensation Board (Board) concluded that ongoing repairs resulting from normal wear and tear did not constitute a new accident and were the responsibility of Hartford. We affirm.

Facts

The facts are not in dispute. The parties stipulated that Juventino Solis, an employee at Brookover Ranch Feedyard (Brookover), on August 31, 1993, caught his left hand in a flaker machine while working at the feed mill. All fingers on his left hand had to be amputated. Hartford was the workers compensation insurance carrier for Brookover at the time of the accident. Solis was provided with a hard rubber clip prosthesis and a PVC plastic glove. However, the clip prosthesis caused problems with Solis' remnant hand, and the PVC glove proved to be flimsy and required monthly replacement. As a result, Solis was fitted with a new clip prosthesis and a silicon glove.

Originally, the clip prosthesis was designed for work and simply provided an opposition post for the remaining thumb. The silicon glove provided cosmetic restoration and was to serve during normal daily living activities. However, in practice, it became clear that the silicon glove was more efficient for use in work situations than the clip. The socket forces within the clip caused discomfort and the silicon hand allowed Solis to better hold and stabilize objects.

Highly summarized, the facts are that the claimant found it necessary to use the silicon glove at work, which increased wear and tear. As the incidents of repair increased, Hartford eventually refused to pay for the repairs, contending that financial responsibility rested with Brookover's new workers compensation carrier, KLA. Hartford claimed that the damage to the glove resulted from repetitive micro-trauma injuries to the glove, resulting in a new accident for which a new claim must be filed against Brookover and KLA.

After denying Hartford's procedural arguments relating to jurisdiction, the Board determined that no new accident occurred and that Hartford was responsible for repairs resulting from normal wear and tear. The ultimate issue presented to this court involves the question of whether the Board erred in determining that Hartford was responsible for the repair of Solis' prosthetic glove. Hartford also advances a procedural argument before the Board. The procedural history of Solis' case is complicated, but when the history is considered in its entirety, Hartford's procedural argument evaporates. Additional facts necessary to resolve both issues are set forth in the opinion.

Alleged Procedural Deficiency

Hartford argues that the Board's decision in this case should be overturned because the decision is based in part on the arguments of KLA. According to Hartford, KLA was not a proper party, and the Board, therefore, had no jurisdiction to receive or consider the arguments made by KLA.

In order to properly understand Hartford's argument, it is necessary to review the procedural history of this case. The injury in this case occurred August 31, 1993. Solis' initial claim was docketed as Docket No. 190,678. At that time, questions arose as to the financial responsibility for repairs to the glove. On April 2, 1997, a preliminary hearing in Docket No. 190,678 was held to determine financial responsibility for ongoing repairs. The administrative law judge ruled that Hartford was not responsible for repairs because damage to the glove was caused by a new accident for which a new claim would have to be filed. The Board affirmed that preliminary finding. Docket No. 190,678 remained open.

In accordance with the decision of the administrative law judge, Solis also filed a new claim, Docket No. 220,773, alleging that the damage to the glove constituted a new accident which now involved Brookover's new carrier, KLA. KLA authorized repair of the glove prosthesis but denied that a new accident had occurred. In this new claim, Solis requested that he be provided with a new glove to wear while the other glove was repaired. The administrative law judge denied the request for the new glove and on review, the Board held that it could not determine the medical necessity of an additional glove in review of a preliminary finding and dismissed the appeal for lack of jurisdiction on May 30, 1997. On January 6, 1998, Docket No. 190,678 and No. 220,773 were consolidated for hearing before the Assistant Director of Workers Compensation. The Assistant Director entered an order which awarded compensation to Solis and also (1) essentially overturned the preliminary findings in Docket No. 190,678 by finding that Hartford was responsible for repairs to the glove and for providing Solis with two functioning gloves and (2) affirmed the preliminary finding in Docket No. 220,773 that the damage to the glove was not a second injury and KLA was not responsible.

Hartford appealed the finding in Docket No. 190,678 to the Board. Before the Board, Hartford argued that KLA was no longer a proper party to the proceeding because KLA had been absolved of any liability by the Assistant Director's decision pertaining to Docket No. 220,773 from which no appeal was taken. The Board disagreed and permitted KLA to remain as a party. Hartford alleges that this ruling was in error.

According to Hartford, once the Assistant Director had determined that KLA was not responsible for repairs and the claimant did not appeal from that decision, Docket No. 220,773 ended. Hartford argues that at that point, the only issue before the Board concerned Docket No. 190,678 to which KLA was not a party. Thus, Hartford contends the Board's consideration of any arguments made by KLA was erroneous and mandates reversal of the Board's decision.

This argument is without merit. It is undisputed that Docket No. 190,678 and No. 220,773 were consolidated. Although only Hartford petitioned the Board for review, K.S.A. 44-551(b)(1) does not limit the Board's scope of review to issues raised in the written request for review. Rather, once a party files a written request for review of the administrative law judge's decision, the Board has the authority to address every issue decided by the administrative law judge. Woodward v. Beech Aircraft Corp., 24 Kan. App.2d 510, 516, 949 P.2d 1149 (1997). See Helms v. Tollie Freightways, Inc., 20 Kan. App.2d 548, 553, 889 P.2d 1151 (1995). Because the two cases were never severed, the Board had jurisdiction to address any of the issues raised in the consolidated cases, and KLA was a proper party. Further, it is clear that in addition to being consolidated, Docket No. 190,678 and No. 220,773 were inextricably intertwined. The damage to the glove and the duty to make repairs were either the responsibility of Hartford or KLA. The Assistant Director's finding in Docket No. 190,678, that Hartford was liable for repairs, necessarily led to the finding in Docket No. 220,773 that KLA was not liable. Were the Board to find that the Assistant Director had erred in holding Hartford liable, the Board would also necessarily have found that the Assistant Director had erred in absolving KLA of liability. Thus, Hartford's argument that KLA was not a proper party and had no stake in the proceedings is without merit.

Financial Responsibility for Repairs

The question of whether the Board erred in determining that Hartford was responsible for the repair of Solis' prosthetic glove is the main issue on appeal. Hartford contends that because the glove was damaged as the result of Solis' work activities, the damage constituted a distinct and separate accident making KLA liable for repairs.

Analysis of this issue requires the interpretations of a statute and an administrative regulation. Interpretation of a statute is a question of law, and this court's review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). It is a fundamental rule of statutory construction that the intent of the legislature governs if that intent can be ascertained. Where a statute is plain and...