Turner v. Pleasant Acres LLC
Decision Date | 18 March 2022 |
Docket Number | 123,552 |
Citation | 62 Kan.App.2d 122,506 P.3d 963 |
Parties | Kendall TURNER, Appellee/Cross-appellant, v. PLEASANT ACRES LLC, Respondent, and Kansas Workers Compensation Fund, Appellant/Cross-appellee. |
Court | Kansas Court of Appeals |
Timothy A. Emerson, of Wallace Saunders Chtd., of Wichita, for appellant/cross-appellee Kansas Workers Compensation Fund.
Randy S. Stalcup, of Law Office of Randy S. Stalcup, of Andover, for appellee/cross-appellant.
Before Bruns, P.J., Malone, J., and Richard Walker, S.J.
In this workers compensation action, Kendall Turner sustained a work-related injury when he was involved in a head-on collision while driving a truck hauling grain for Pleasant Acres LLC. Unfortunately, the other driver was killed in the accident. Turner subsequently filed both a workers compensation claim and a lawsuit in the United States District Court for the District of Kansas against his employer's uninsured motorist carrier seeking to recover for injuries arising out of the accident. Ultimately, Turner received an award in his workers compensation action and also received a settlement in his federal lawsuit. Because Turner's employer did not have workers compensation insurance at the time of the accident, the Kansas Workers Compensation Fund (the Fund) is responsible for paying the award under K.S.A. 2020 Supp. 44-532a.
In its petition for judicial review, the Fund contends that the Kansas Workers Compensation Appeals Board (the Board) erred in finding that Turner is permanently and totally disabled, in finding that Turner is entitled to receive future medical benefits upon proper application, and in finding that the Fund does not have a subrogation lien under K.S.A. 44-504 for any duplicative recovery received by Turner in the settlement of his federal lawsuit. In response, Turner asks this court to affirm the Board's award. In addition, he has filed a cross-petition for judicial review in which he contends that the Board erred by permitting the independent medical examiner appointed by the administrative law judge to amend his initial opinion regarding Turner's permanent partial impairment rating opinion.
In light of our review of the record as a whole, we find that the Board's award is supported by substantial competent evidence. Likewise, we find that the Board's determination that Turner is entitled to future medical expenses upon proper application is supported by substantial competent evidence. We also find that the Board did not err by allowing the independent medical examiner to amend his initial opinion regarding Turner's permanent partial impairment rating. Even so, we find that the Board did err as a matter of law in finding that the Fund is not entitled to a subrogation lien under K.S.A. 44-504 for any duplicative recovery received in the settlement of his federal lawsuit for injuries arising out of the same accident that is the subject of this workers compensation action. Thus, we affirm in part, reverse in part, and remand this matter to the Board with directions.
While hauling grain for Pleasant Acres LLC on the afternoon of December 12, 2016, Turner was involved in an accident in Kiowa County while driving on Highway 54 on his way to Bucklin. According to Turner, a vehicle heading eastbound crossed the center line and struck the tractor-trailer he was driving head-on. As a result of the accident, the driver of the other vehicle was pronounced dead. Turner was evaluated by paramedics for injuries at the scene of the accident and went to the emergency room at Great Bend Regional Hospital the next day.
An MRI revealed that Turner had a 20% compression fracture
at the 12th thoracic (T12) vertebra. He was treated by Dr. Vivek Sharma, an orthopedic surgeon, who placed him in a back brace. Turner also reported pain in his lumbar spine, left hip, and his left leg. To help address his pain, Turner's primary care physician prescribed narcotic pain medication.
Approximately 25 years before the accident that is the subject of this appeal, Turner had suffered a previous back injury while working for a different employer. Evidently, Turner fell from a 15-foot stock tank and injured his lower back. He also suffered from a pinched nerve
that caused pain from his right shin to his right ankle. At the time of his first deposition, Turner recalled being treated by multiple health care providers at the time of his injury and bringing a workers compensation claim. Still, he could not remember whether he had received an impairment rating.
On December 30, 2016, Turner filed a workers compensation claim against Pleasant Acres LLC. At the time of the accident, Pleasant Acres LLC did not have workers compensation insurance coverage. As a result, Turner provided notice to implead the Fund under K.S.A. 2016 Supp. 44-532a(a), which provides that "the injured worker may apply to the director for an award of the compensation benefits, including medical compensation, to which such injured worker is entitled, to be paid from the workers compensation fund."
Dr. David Hufford—who was appointed as an independent medical examiner by the administrative law judge initially assigned to Turner's claim—examined Turner and confirmed that he had suffered a T12 compression fracture
as well as residual lumbar and right sacroiliac pain as a result of the accident. For that reason, Dr. Hufford referred Turner to a neurosurgeon—Dr. Matthew Henry—for further evaluation. On January 19, 2018, Dr. Henry performed a kyphoplasty
to help relieve the pain caused by the T12 compression fracture. After the surgery, Turner reported that the pain in his thoracic spine had improved but he reported that the pain in his lower back continued to make it hard to sit, stand, stoop, and sleep.
Unbeknownst to the Fund, Turner also filed a lawsuit in the United States District Court for the District of Kansas against Continental Western Insurance Company on June 7, 2018. Kendall Turner v. Continental Western Insurance Company , 2018-CV-02305 (D. Kan. 2018). It is undisputed that Continental Western Insurance Company carried the uninsured motorist coverage on the truck that Turner was driving on behalf of his employer on December 12, 2016. In his complaint, Turner alleged that the other driver—who died as a result of injuries suffered in the accident—"negligently and carelessly drove his vehicle over the left of center, thereby proximately causing an accident and severe injuries and damages to [Turner]."
Turner also alleged in his complaint that the decedent was "negligent, reckless, wanton and careless" in at least 12 ways, including but not limited to failing to maintain his vehicle in the appropriate lane, driving left of center, inattentive operation of a motor vehicle, and failing to take evasive action. As a result of the decedent's conduct, Turner claimed that he "received injuries to his spine
and back" and had suffered damages including "pain and suffering, mental anguish, loss of time, loss of enjoyment of life, medical expenses, economic loss, permanent disfigurement, and permanent disability." Thus, Turner prayed for a judgment against the uninsured motorist carrier to recover the damages caused by the decedent.
The parties to the federal lawsuit executed a "Settlement Agreement and Release" on December 17, 2018. The settlement provides that in exchange for the payment of $230,000 by Continental Western Insurance Company, Turner agreed to release all claims arising out of the injuries, damages, and losses sustained by him in the accident on December 12, 2016. The claims released included—among other things—"all past, present and future damages or benefits for wage loss benefits, essential services, medical bills or benefits, rehabilitation benefits, counseling, pain and suffering, emotional distress, permanent impairment or disfigurement, and any and all other damages" arising out of the accident. However, the settlement agreement does not include an itemization of how much was paid for each element of damage.
Meanwhile in the workers compensation action, Turner retained Dr. Daniel Zimmerman—an internal medicine physician—as an expert witness. In a report dated June 14, 2018, Dr. Zimmerman rendered the following opinion:
"[Turner] sustained a T12 compression fracture
but also sustained injuries affecting the lumbosacral spine which is noted by inference in the emergency department triage report dated December 13, 2016 at which time it was reported that he on that date was complaining of lower and upper back pain.
"The treatment that [Turner] has received was for the compression fracture
at T12. He has had little treatment for the persistent pain and discomfort as a consequence of the lumbar spine injury.
Dr. Zimmerman opined that the accident was the prevailing factor causing Turner's thoracic compression fracture
as well as the symptomatic lumbar disc narrowing of the lumbar spine. Dr. Zimmerman further opined that Turner had not reached maximum medical improvement and would benefit from future medical treatment. In Dr. Zimmerman's opinion, Turner has a 9% permanent partial impairment of function based on the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (6th ed. 2008).
In addition, Dr. Zimmerman rendered the following opinion regarding Turner's permanent work restrictions:
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