Van Horn v. Blue Sky Satellite Servs.
| Decision Date | 23 July 2021 |
| Docket Number | No. 122,888,122,888 |
| Citation | 491 P.3d 658 (Table) |
| Court | Kansas Court of Appeals |
| Parties | William VAN HORN, Appellant/Cross-appellee, v. BLUE SKY SATELLITE SERVICES, and Previsor Insurance Co., Appellees/Cross-appellants. |
Roger D. Fincher, of Fincher Law Office, of Topeka, for appellant/cross-appellee.
Bruce R. Levine, of Wiedner & McAuliffe, LTD., of Overland Park, for appellee/cross-appellants.
Before Arnold-Burger, C.J., Gardner and Isherwood, JJ.
William Van Horn appeals the decision of the Kansas Workers Compensation Appeals Board (the Board). He argues that provisions within the Kansas Workers Compensation Act (the Act), K.S.A. 2020 Supp. 44-510d(b)(23)-(24), are facially unconstitutional because they no longer provide an adequate substitute remedy for an injured worker's right to bring a common-law action for the recovery of damages. In 2013, the Act adopted the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (6th ed. 2008) as the guide for measuring the permanent impairment of injured workers. Van Horn contends that this edition reduces workers compensation awards to a level that fails to provide an adequate remedy for injured workers. He also argues a second claim of error which is intertwined with his first. Specifically, that any impairment rating arising from use of the Sixth Edition will not be supported by substantial competent evidence.
Blue Sky Satellite Services and Previsor Insurance Co. (Blue Sky) cross-appeal, arguing that Van Horn's injury is not the type of injury covered by the Act. It is their position that Van Horn sustained his injury during a normal activity which individuals engage in as part of their day-to-day living, rather than a task associated with his employment. They further contend that the Board erred in awarding future medical benefits, temporary total disability benefits, and past medical benefits for that injury.
Because the challenge Van Horn advanced against the specified provisions of the Act was not sufficiently briefed to enable appellate review of his two claims of error, and because he suffered a compensable, work-related injury, the decision of the Board is affirmed.
Van Horn worked for Blue Sky Satellite Services as a satellite dish installation technician. In that capacity, Van Horn installed satellite dishes and conducted service calls in the homes of customers, which required him to climb stairs and ladders, as well as onto roofs. Van Horn weighed around 256 pounds and was required to wear a tool belt which weighed between 30-45 pounds. On March 15, 2018, Van Horn was ascending stairs in a customer's home when he heard and felt a pop in his left knee followed by immediate exquisite pain. Van Horn called his employer to say that he could not complete the customer's service call, and Blue Sky directed him to go to an urgent care facility.
Following his urgent care visit, Van Horn saw an orthopedic surgeon. An MRI revealed a medial meniscus tear
, as well as degenerative changes in the knee. Dr. William Jones performed a partial medial meniscectomy with chondroplasty, in all three compartments of Van Horn's left knee, and also conducted a technique designed to simulate scar tissue formation. In his operative report, Dr. Jones noted arthritic changes throughout Van Horn's knee.
Van Horn did not work from the date of the accident on March 15, 2018, through June 21, 2018, when Dr. Jones released him to full duty with no restrictions. Once Dr. Jones released Van Horn, the doctor was of the opinion that Van Horn had achieved maximum medical improvement. Therefore, Jones did not schedule any other appointments for Van Horn and did not instruct him to return for a follow-up visit.
A hearing before an administrative law judge (ALJ) followed Van Horn's recuperation. During that hearing, Van Horn testified that he did not seek any further treatment and he had returned to his previous job, full-time, with no restrictions. Van Horn stated that his knee had not returned to what it was before the injury, but the surgery Dr. Jones performed resulted in an improvement from the injury. Van Horn also testified that he occasionally still experiences swelling in the left knee, accompanied by a degree of localized pain. Van Horn acknowledged that he had not suffered a loss of movement in his knee as a product of his injury.
Two medical experts provided testimony for the ALJ through depositions: Daniel D. Zimmerman, M.D., on behalf of Van Horn, and Thomas S. Samuelson, M.D., on behalf of Blue Sky. Dr. Zimmerman concluded that Van Horn sustained a permanent impairment to his left knee and rated his impairment twice, using the Fourth (4th ed. 1995) and Sixth Edition (6th ed. 2008) of the American Medical Association Guides to the Evaluation of Permanent Impairment. Dr. Zimmerman rated Van Horn's impairment at 20% under the Fourth Edition and 3% under the Sixth Edition.
Dr. Zimmerman practices internal medicine and is not a surgeon or an orthopedic doctor. He has also never performed or billed for the surgery that Van Horn underwent. But reviewing bills was part of his job as a district medical advisor for the Department of Labor for 28 years. He reviewed Van Horn's medical bills for roughly 10 minutes on the morning that he testified. He could not say whether Kansas was a medical fee schedule state and did not check Van Horn's medical bills against the fee schedule.
Dr. Zimmerman explained that his 3% rating under the Sixth Edition of the AMA Guides was arrived at by using the 2% default presumed rating for Van Horn's diagnosis and adding a 1% grade modifier. The modifier was intended to address grating and chondromalacia
, or cartilage damage, that he detected in Van Horn's knee during his examination, as well as the pain the patient exhibited during that visit. Dr. Zimmerman could only say that the chondromalacia was present when he examined Van Horn's knee. He did not know whether the accident caused the chondromalacia.
Dr. Zimmerman also testified that Van Horn could bend his knee to a normal position, but that extension was impaired, in that Van Horn was unable to fully straighten his leg. Dr. Zimmerman stated that Van Horn would need future medical treatment, including steroid injections, medication, and possibly viscosupplementation
. Additionally, he advised that Van Horn should adhere to permanent work restrictions.
Dr. Samuelson rated Van Horn's impairment at 2% under both AMA Guides. Dr. Samuelson is an orthopedic surgeon who performs knee operations several times a year, including the surgery Van Horn underwent. He testified that Van Horn's meniscus tear
was a complex tear, which is common when an arthritic process or degenerative changes are already present. Dr. Samuelson stated that he could not identify a specific injury. Rather, he questioned whether Van Horn's issue stemmed from simple fatigue of degenerative tissue. According to Dr. Samuelson, the meniscus pathology could have also been present before the injury and simply been aggravated along with arthritis. It was Dr. Samuelson's opinion that the exact source of Van Horn's pathology was difficult to determine without the occurrence of a specific event.
Dr. Samuelson testified that when he evaluated Van Horn on September 4, 2018, he did not detect any diminished range of motion in the left knee, and that the significant degenerative changes in Van Horn's knee were likely the source of his residual pain. According to Samuelson, when Van Horn had his surgery on May 1, 2018, the degenerative changes were already "fairly advanced," meaning the degeneration was "clearly pre-existing." Thus, it was Dr. Samuelson's opinion that the incident involving Van Horn's knee could have easily happened while walking at home or some other nonoccupational activity; it was not connected to his work activity. Dr. Samuelson did not believe future medical treatment relative to the incident would be necessary, but that further degenerative changes to Van Horn's knee could require additional treatment.
In December 2019, the ALJ ruled that Van Horn sustained personal injury by an accident, arising out of and in the course of his employment with Blue Sky. For this injury, the ALJ awarded benefits, including past medical expenses, temporary total disability (TTD) benefits, and permanent partial impairment of 3%, based on the Sixth Edition of the AMA Guides. The ALJ also ruled that if the Fourth Edition controlled, he would find that Van Horn suffered an 11% impairment of function. The ALJ denied future medical benefits, however, upon finding that Dr. Zimmerman's speculation regarding Van Horn's need for future medical treatment could not overcome the statutory presumption that Blue Sky's duty to provide medical care ended when Van Horn achieved maximum medical improvement.
In April 2020, the Board affirmed the ALJ's compensability determination but reversed the ALJ's decision on future medical treatment benefits and awarded future benefits to Van Horn.
Van Horn timely appeals. Blue Sky timely cross-appeals.
Van Horn argues that K.S.A. 2020 Supp. 44-510d(b)(23)-(24)'s use of the Sixth Edition of the AMA Guides is facially unconstitutional because that edition fails to provide an adequate substitute remedy for the right to seek recovery in a common-law tort action. Blue Sky responds that the constitutionality of the provisions is irrelevant because some evidence shows that Van Horn's impairment rating would be the same under both the Fourth and Sixth Editions of the AMA Guides.
A statute's constitutionality is a question of law subject to unlimited review. Solomon v. State , 303 Kan. 512, 523, 364 P.3d 536 (2015).
The issue before us is whether...
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