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Vol. XXXVI, No. 5

May 2013

Journal of the Kansas Association for Justice

Getting the Facts from Peer Review — A Reminder Daniel A. Singer & David R. Morantz

An Introduction to Title Insurance, Liability and Damages Edward L. Robinson

The “Golden Rule” and “Conscience of Community” — Revisited John W. Johnson

Giving Back to the Community and Changing the Image of Trial Lawyers Don Keenan



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Journal of the Kansas Association for Justice  1

Board of Editors

Co-cHAIR & LEAD COLUMN James R. Howell 7701 E. Kellogg, Ste. 415 Wichita, KS 67207 316-683-9080 co-chair & TRIAL TACTICS David Morantz 2600 Grand Blvd., Ste. 550 Kansas City, MO 64105 816-474-0004 Consumer Law Edward L. Robinson 500 N. Market Wichita, KS 67214 316-262-9393 Criminal Law Daniel E. Monnat 200 W. Douglas, Ste 830 Wichita, KS 67202 316-264-2800 EVIDENCE & CIVIL PROCEDURE Derek S. Casey 2959 N. Rock Road, Ste 300 Wichita, KS 67226 316-630-8100 FAMILY LAW Douglas C. Cranmer 300 W. Douglas, Ste. 430 Wichita, KS 67202 316-264-9137 INSURANCE LAW N. Russell Hazlewood 218 North Mosley Wichita KS 67202 316-266-4058 MEDICAL-LEGAL Daniel B. Giroux 7701 E. Kellogg, Ste. 415 Wichita, KS 67207 316-683-9080 NEGOTIATIONS, SETTLEMENTS & TRIAL APPROACHES Patrick R. Nichols 5200 W. Bob Billings Pkwy., Ste. 302 Lawrence, KS 66049 785-865-3700 Product Liability Patrick A. Hamilton 13420 Santa Fe Trail Drive Lenexa, KS 66215 913-888-7100 PROFESSIONAL NEGLIGENCE John W. Johnson 300 N. Mead, Ste. 200 Wichita, KS 67202-2722 316-262-2671 Settlements & Verdicts Robin Maxon 117 Redbud Lane Topeka, KS 66606 785-354-1599 WORKERS COMPENSATION REVIEW Joseph Seiwert 2628 S. Oliver, Ste. 104 Wichita, KS 67210 316-686-6113 Managing Editor Emily Wilson KsAJ Staff Executive Director Charlotte A. Krebs, MA, CAE Public Policy Director Callie Denton, JD Financial Operations Director Dereka Pedersen, CPA Member Services Manager Mary Kate Haworth, BSBA, BA Communications Manager Emily Wilson, BA

Vol. XXXVI, No. 5  May 2013

Lead Column . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Getting the Facts from Peer Review — A Reminder By Daniel A. Singer & David R. Morantz

Consumer Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 An Introduction to Title Insurance, Liability and Damages By Edward L. Robinson

Professional Negligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 The “Golden Rule” and “Conscience of Community” — Revisited By John W. Johnson

Special to the Journal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Giving Back to the Community and Changing the Image of Trial Lawyers By Don Keenan

Also in this Issue… From the President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Jeffery L. Carmichael

Workers Compensation Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Preserving the Independence of Kansas Courts . . . . . . . . . . . . . . . . . . 28 KsAJ Membership Committee: Working to Grow . . . . . . . . . . . . . . . . 30 Worth Noting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Settlements & Verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 2013 KsAJ Awards: Call for Nominations . . . . . . . . . . . . . . . . . . . . . . . 34 Back at the Station: News from KsAJ Staff at Fire Station No. 2. . . . . 36 Charlotte A. Krebs, MA, CAE

© Kansas Association for Justice. The Journal of the Kansas Association for Justice is published six times a year by the Kansas Association for Justice. Subscriptions are included in the Kansas Association for Justice’s membership dues. Non-member subscription rate is $150 per year. POSTMASTER: Send address corrections to Journal, 719 SW Van Buren St., Suite 222, Topeka, KS 66603-3715. Telephone (785) 232-7756. Fax (785) 232-7730. Email:

2  Journal of the Kansas Association for Justice

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Sustaining Members In tribute to our bedrock Sustaining Members, thanks to this edition’s random selection... Steven J. Borel

Samuel K. Cullan

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Ellen S. Goldman

Sally G. Kelsey

David Skeens

Deborah A. Huth

Rodney C. Olsen

Journal of the Kansas Association for Justice  3


From the President JUSTICE

Jeffery L. Carmichael

Throughout the 2013 Session, I have made it priority to contact my state legislators. Doing so has shown me the importance of building and maintaining relationships with policymakers. The Legislature impacts our day-to-day lives in many ways, not to mention our ability to obtain justice for our clients. We know that taking the first step toward anything can sometimes be a daunting task. The first time a child rides a bike without training wheels — will he or she fall? The first time a student answers a question in a large lecture hall — will their answer be correct? The first time we contact our legislators — what type of response will we get? For me, the response was very positive. As HB 2019 neared final vote in March, I felt a duty to share with my representative my perspective of how the bill would affect the Court of Appeals and my clients. I contacted the Legislative Hotline and was transferred to my representative’s office. With the demands of the ongoing session, I was not surprised to have to leave a voicemail. I was surprised when I received a callback only a few minutes later and when my representative, Steve Huebert, R-Valley Center, was on a break at the Statehouse. We visited for a few minutes about the bill, and it was clear that Representative Huebert was interested in hearing what I had to say. He took the time to listen to my comments and was appreciative and respectful of my point of view — even though we politely disagreed on the issue.

As we concluded our call, I let him know that I understood he had a difficult decision to make and wished him well in doing so. Although enactment of HB 2019 was not what I hoped, it was still important to me as a constituent to share my point of view. In addition to phone conversations, I've also found email to be an incredibly helpful tool when communicating with my legislators. I have emailed my senator a few times and am now on her email distribution list, which keeps me engaged with what she is working on at the Statehouse. My experience is likely one of many that emphasize how important it is to build relationships with our legislators. In today's society, we have the tools that enhance communication and education — from our tablets and smart phones to email and social media. As constituents, we can educate our legislators on justice issues, and we can learn more about the legislative process by working with them. But the tools alone will not get the job done. We need to know who our legislators are and how to reach them in order to make our

voices heard. Even though we may not always see eye to eye on an issue, it is important to make the contact and serve as a resource regardless of whether that is as a proponent or opponent. In addition to building relationships at the Statehouse, we need your help in growing our network of engaged members. The Membership Committee is working on initiatives to increase membership, which you can read more about later in this issue. Please help the Committee in their efforts by recommending and contacting those individuals whom you believe would value membership in our professional association. Tell them about why you joined and the benefits that have the greatest impact on your law practice. Invite them to a CLE and explain how our educational resources essentially make KsAJ the “largest law firm in the state.” We need individuals who are interested in the civil justice system in order to sustain the future of our organization. Thank you for your ongoing support, and please let me know if you have questions on any of KsAJ's initiatives. p

I'm a great believer that any tool that enhances communication has profound effects in terms of how people can learn from each other, and how they can achieve the kind of freedoms that they're interested in. ~ Bill Gates

4  Journal of the Kansas Association for Justice

u Lead column

Getting the Facts from Peer Review — A Reminder By Daniel A. Singer and David R. Morantz

Daniel A. Singer is an associate at Shamberg, Johnson & Bergman in Kansas City, Mo. He is a graduate of Duke University School of Law, where he was an articles editor for Law and Contemporary Problems. He has focused his practice on medical negligence, automobile/trucking accidents, and other tort actions. Singer is admitted to practice in Kansas and Missouri. He obtained his undergraduate degree in political science from the University of Kansas. David R. Morantz is an associate at Shamberg, Johnson & Bergman in Kansas City, Mo. He is a graduate of The University of Kansas School of Law, where he was an articles editor on the Kansas Law Review. Morantz has focused his practice on medical negligence, products liability and other tort actions. He serves as the Trial Tactics Editor for the KsAJ Journal Board of Editors. Morantz is admitted to practice in Kansas and Missouri. He is a member of KsAJ and the Earl E. O’Connor American Inn of Court. Morantz has also worked as a newspaper reporter for The Associated Press and for the Omaha World-Herald.

Peer review documents often provide a gold mine of evidence in medical negligence cases. However, many practitioners do not actively seek such documents in discovery despite Kansas case law that makes the documents discoverable. Hospitals investigate many incidents resulting in bad outcomes to patients. As part of such investigations, witness statements are taken, reports are compiled and a myriad of other documents are collected and created. In Kansas, these investigations are typically done under the banner of “peer review.” Kansas statute creates a privilege for the peer review process. However, Kansas case law severely restricts the scope of the privilege, leaving many documents generated in the process open to discovery. This article outlines the statutory framework and case law controlling peer review records. It also serves as a reminder to practitioners to seek production of peer review materials. The Kansas peer review statute, K.S.A. 65-4915(b), provides, in relevant part, that the reports, statements, memoranda, proceedings, findings and other records submitted to or generated by peer review committees or officers shall be privileged and shall not be subject to discovery.

Read literally, this statute sweepingly precludes discovery of an entire universe of documents. In fact, under a literal

interpretation of K.S.A 65-4915(b), otherwise discoverable material would become privileged on the sole basis of being shown to a peer review officer; even medical records submitted to peer review committees would be privileged. In light of the problems associated with a literal reading of the peer review statute, the Kansas Supreme Court has interpreted the statute in a less draconian manner. In Adams v. St. Francis Regional Medical Center,1 the court determined that the peer review statute must be read so as to render its application consistent with the patientplaintiff’s due process right to pursue his or her medical negligence case. As the court explained, [i]f a document was to be privileged solely by the virtue of it being reviewed by a peer review officer or committee and the information in those records could not be discovered or admitted into evidence at trial, it would intolerably thwart legitimate discovery and tend to eliminate medical malpractice cases… Such an interpretation could raise significant constitutional implications.

To read the peer review privilege literally would mean “virtually all medical and hospital records would be protected as privileged simply by sending them to the peer review committee for review.”2 The balance struck by the Adams court was to protect from discovery a peer review committee’s decision-making process, reasoning and conclusions

Journal of the Kansas Association for Justice  5

while allowing discovery of “documents containing factual accounts and witnesses’ names.” Although the court recognized the importance of open and honest peer review, the [S]ubstantive interest in preserving the confidentiality of the information [relating to peer review] must give way to assure all the facts will be available for a fair determination of the issues.

Courts in subsequent cases have followed the Kansas Supreme Court’s interpretation of K.S.A. 65-4915(b). In Solien v. Manor Care of Overland Park, KS, LLC.,3 Judge David Hauber ruled that “Only those records which actually evaluate information and contain mental impressions related to such factual information” are protected by the peer review privilege. In a recent Riley County case, Broce v. Serk,4 Judge Meryl Wilson precluded discovery of documents containing “impressions and opinions,” but allowed discovery of “facts” — even when “generated by [a peer review officer] for his use in peer review.” Pursuant to Adams, where documents contain both privileged and non-privileged information, it is the trial court’s responsibility to review, in camera, documents purportedly subject to the peer review privilege and “craft a protective order which will permit the plaintiffs access to the relevant facts.” This procedure was followed in both the Solien and Broce cases referenced above. A request for peer review documents can begin with an interrogatory question about whether the incident in question was reviewed and with requests for production seeking such documents. If a non-party hospital conducted a peer review, a business records subpoena pursuant to K.S.A. 60-245a can be pursued. Of note, under the language of K.S.A. 65-4915, the institution that conducted the peer review is the holder of the privilege and the proper entity to assert the privilege. K.S.A. 65-4915(b) states:

The peer review officer or committee creating or initially receiving the record is the holder of the privilege established by this section. This privilege may by claimed by the legal entity creating the peer review committee or officer, or by the commissioner of insurance for any records or proceedings of the board of governors.

Defendants other than the institution that conducted the peer review should not be permitted to assert the privilege. In the context of a business records subpoena, the peer review institution can assert the privilege after being served with the subpoena. If a peer review institution asserts a privilege under K.S.A. 65-4915, that institution is subject to the same requirements as other privileges. Under Kansas law, a party claiming a privilege has the burden of proof of showing: 1.

That the privilege applies; and


The facts necessary to invoke the privilege.5

This burden is met by making a clear showing that the asserted privilege applies, usually by describing in detail the documents or information to be protected and by providing reasons for the objection in a privilege log.6 In short, Kansas courts are, in accordance with Adams, permitting discovery of “facts” submitted to or generated by peer review committees. Judges in multiple districts have agreed that a

literal interpretation of the peer review statute would render it unconstitutional. Thus, practitioners should not shy away from requesting peer review materials, notwithstanding the plain language of K.S.A. 65-4915(b). p


1 264 Kan. 144, 955 P.2d 1169 (1998). 2 Id. at 171, (quoting Hill v. Sandhu, 129 F.R.D. 548, 550-51 (D. Kan. 1990) (finding that documents provided to the peer review committee were not privileged because they did not delve into the mind of the committee)); see also Balk v. Dunlap, 163 F.R.D. 360, 363 (D. Kan. 1995) (“peer review and risk management privileges generally apply only to documents generated by or which reflect the work of the committees which generate the protected information”). 3 No. 09CV2225, 2010 WL 1399067 (Kan. Dist. Ct, Johnson County, April 7, 2010) (discovery order). 4 No. 11 CV 233 (Kan. Dist. Ct., Riley County, April 29, 2013) (discovery order). 5 See, e.g., State v. Berberich, 267 Kan. 215, 224, 978 P.2d 902, 909 (Kan. 2000). 6 See, e.g., Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 425, 997 P.2d 681, 693 (Kan. 2000).

6  Journal of the Kansas Association for Justice

u Consumer law

An Introduction to Title Insurance, Liability and Damages By Edward L. Robinson

Edward L. Robinson is an attorney and member of the law firm of Joseph, Hollander & Craft, LLC. He practices in the areas of real estate, environmental, construction, business, consumer protection and fraud litigation. Robinson graduated magna cum laude from Wichita State University and with honors from the Washburn University School of Law, where he served on the Board of Editors of the Washburn Law Journal. He currently serves as the Consumer Law editor for the KsAJ Journal Board of Editors. Robinson is also a member of the Wichita and Kansas bar associations and the American Association for Justice.

Title insurance has become a fundamental part of most real estate transactions, both commercial and residential. Sellers, buyers and lenders rely on it to ensure items of record are disclosed, to ensure the buyer is receiving proper title to the property, and to provide coverage if items are missed or competing claims of ownership arise. A full discussion of title insurance in Kansas could probably fill a book. As a result, this article is intended as an introduction to title insurance in Kansas, how title insurers can be liable if they fail to discharge their duties and obligations, and some of the damages available in such cases.

A Brief Background and History of Title and Title Insurance

The fundamental reasons for title insurance are as old as land ownership itself. In every real estate transaction, a buyer wants to receive valuable title to the land and know the restrictions or encumbrances on the land before closing. The means and methods of assuring this have changed over time and evolved to what we have today. Federal, state and local restrictions, along with easements for utilities and adjacent landowners, take away some of the absolute right of property ownership. As a result, real estate buyers generally bargain for “marketable” title. In Kansas, marketable title was originally defined as “one which appeared from the records of the county to be good and free from all incumbrances.”1 Numerous court decisions have ex-

pounded upon what constitutes an “incumbrance.” For the practitioner, it should be noted that Kansas’ definition and treatment of marketable title is dramatically different from some other jurisdictions, so careful attention must be paid before relying on any authority outside Kansas.2 In order to put others on notice of claims of ownership to real property, it was (and is) common for each county to have a central repository for recording such documents. In Kansas, each county has a Register of Deeds responsible for recording and maintaining these documents.3 For centuries, prospective buyers used attorneys to search these records and pass on the title to the property before closing. In Kansas this was called an “abstract” or “abstract of title.” This system worked well, but not perfectly, and these imperfections eventually changed how title searches were performed and buyers were protected. This shift began in Pennsylvania in the 1860s following the case of Watson v. Muirhead.4 Watson, the buyer, hired Muirhead, a conveyancer,5 to determine whether a parcel was free of encumbrances.6 Muirhead had learned of a judgment lien on the property but, based on another attorney’s statement that the judgment lien did not bind the property, Muirhead did not disclose its existence to Watson.7 Watson bought the land but lost it shortly thereafter when the sheriff seized and sold the land to satisfy the lien.8 Watson sued Muirhead for negligence, claiming Muirhead should have

Journal of the Kansas Association for Justice  7

disclosed his knowledge of the judgment lien.9 Affirming a defense verdict in favor of Muirhead, the Pennsylvania Supreme Court ruled he was not necessarily negligent in relying on the other attorney’s statements, and that “an attorney ought not to be liable in case of a reasonable doubt.”10 The response to the decision in Watson gave birth to the title insurance industry. In 1874, the Pennsylvania legislature enacted a law allowing corporations to examine and search titles.11 Kansas followed suit in 1923.12 Today, title insurance companies are an integral part of real estate transactions in Kansas. They are commonly used for issuing title commitments and title insurance policies, and real estate closings routinely occur in their offices. Aside from oil and gas transactions, attorneys are no longer commonly used for abstracts or title opinions.

Basic Title Insurance Mechanics and Procedure

The typical real estate transaction involves a title company issuing a “title commitment” after a real estate contract has been signed, but before closing.13 The title company receives the purchase contract and then reviews the recorded documents affecting the real property at issue. It then issues a written commitment, which is its promise or agreement to cause a title insurance policy to be issued (by itself or through an underwriter) if the requirements of the commitment are fulfilled. The title commitment has three main parts. The first is the “Requirements” section. It lists every issue that must be satisfied before the title insurance policy will be issued, such as paying the premium, recording all necessary documents such as mortgage releases to divest the current owner of ownership, and eliminating any known title issues such as judgment liens. The second part is the “Exceptions from Coverage” section. It lists all the matters that will not be covered, which generally encompasses any matter not of public record and all recorded documents listed in the commitment. The

third part is the “Conditions” section, which has liability limitations and other matters. If all the prerequisites of the title commitment are met, the title company or its underwriter will issue a title insurance policy consistent with the title commitment. The coverage limit of the insurance is generally the purchase price of the property. The title insurance policy will insure against various “Covered Risks,” including unmarketable title; not insure against any item listed in the “Exclusions from Coverage;” and have many other conditions and details for making claims under the policy. The title company that issues the title commitment will not necessarily be the company that issues the title insurance policy. For example, a local title company may issue the title commitment, but a regional or national underwriter may issue the title insurance policy. Knowing if these companies are the same or different is critical to understanding liability and damages in title cases. Title companies do not always perform a full search of the recorded documents in preparing a title commitment. For example, if a title company had previously issued a title commitment for a certain parcel of land and that same land is being sold again, the title company may only look to see if there are any new recorded documents since the previous title commitment was issued, and assume the previous title work was correct. If the previous commitment happens to be wrong, there are potential issues of liability. Title companies also do not always perform a full search of the recorded documents for a particular legal description. For example, a buyer contracts to purchase 15 acres of land, and a title commitment is issued for that legal description. Before closing, the buyer decides he only wants 10 of those acres, with no new land outside the original metes and bounds. Under those circumstances, a title company may not conduct a new search of the recorded documents, but must rely on the information disclosed in the original commitment. This practice is

known as “down dating,” and does not necessarily raise issues of liability if the original commitment was correct.

Liability and Damages of Title Companies and Underwriters

Title claims commonly arise when a property buyer learns of an issue affecting his property that he did not know about when he purchased it. When these situations arise, there are two possible avenues: breach of contract and negligence. Breach of Contract A breach of contract action arises if a valid claim is made for coverage under the title insurance policy and that claim is denied. If the issue with the property falls under one of the “Covered Risks” and is not otherwise excluded, coverage should exist up to the policy limits. In these cases, the claim is against the company that issued the title insurance policy, not necessarily the title company. An example of such a case is if the title to the property is unmarketable because of some condition on the property. Kansas has well-developed case law on what makes a title marketable. According to the Kansas Supreme Court, a marketable title is [O]ne which is free from reasonable doubt; and under this rule a title is doubtful and therefore unmarketable if it exposes the party holding it to the hazard of litigation.14

More specifically: The defect of title of which the purchaser complains must be of a substantial character; one from which he may suffer injury. Mere immaterial defects which do not diminish in quantity, quality, or value the property contracted for, constitute no ground upon which he may reject the title. Facts must be known at the time which fairly raise a reasonable doubt as to the title; a mere possibility or conjecture that such a state of facts may be developed at some future time is not sufficient.15

8  Journal of the Kansas Association for Justice

Put in simpler terms, a purchaser of land, expecting to receive marketable title, can simply require a title such as prudent men, well advised as to the facts and their legal bearings, would be willing to accept. The doubts must be such as will affect the market value of the estate. They must not be made up for the occasion, based on captious, frivolous, and astute niceties; they must be such as would induce a prudent man to hesitate in accepting a title affected by them.16

Examples of unmarketable title are existing violations of ordinances;17 construction of improvements that encroach upon setback lines;18 and easements that substantially reduce property value.19 Kansas’ treatment of marketable title should not be confused with several other states, which limit marketable title to competing interests of ownership.20 A level below marketable title is another potential issue: land whose title is marketable but has a “defect, lien or encumbrance” on the property. In other words, title to land may be marketable but have a defect, lien or encumbrance that triggers coverage.21 If the title insurer denies a valid claim, the property owner/insured may recover damages up to the limits of the policy, along with attorney fees pursuant to the fee-shifting statutes for direct actions against insurers.22 The types of damages available would be limited to those ordinarily recoverable for breach of contract. Negligence A negligence action arises if the title company breaches a duty of care in preparing the title commitment and causes damage to the property owner. Although attorneys are not as involved as they used to be in researching titles and issuing opinions, their legal duty as abstractor or conveyancer is imposed upon the title companies that perform such work. In Ford v. Guaranty Abstract & Title Company23 the Kansas Supreme Court stated:

Where a title insurer presents a buyer with both a preliminary title report and a policy of title insurance two distinct responsibilities are assumed; in rendering the first service, the insurer serves as an abstractor of title and must list all matters of public record regarding the subject property in its preliminary report. When a title insurer breaches its duty to abstract title accurately it may be liable in tort for all the damages proximately caused by such breach.24

If a property owner has a claim against the title company for failing to find and disclose a document or information that causes damages, he may have a claim for negligence against the title company even if the claim would otherwise be excluded from coverage by the title insurance policy. Such a claim would not be subject to the policy limits of the insurance or the fee-shifting provisions of Kansas law for actions against insurers.25 The damages would include those ordinarily recoverable for negligence, although in Kansas the starting point for such damages is the cost of giving the buyer the benefit of his bargain.26 If the same company prepared the Title Commitment and Title Insurance Policies, the property owner/insured may have to elect his remedy.27 Such an election may not be required if the companies are different.


Title insurance has become ubiquitous in most real estate transactions, with the vast majority of these transactions closing without incident. However, when a transaction goes awry, it is important to understand the role and duties of title companies and title insurers. Understanding the basic function of title commitments and title insurance policies; Kansas’ treatment of marketable title; and the dual liability for preparation of title commitments and issuance of title insurance policies provides a solid foundation for the practitioner handling such claims. p


1 Durham v. Hadley, 47 Kan. 73, 81-82, 27 P. 105 (1891). 2 See n.18, infra. 3 K.S.A. 58-2221. 4 57 Pa. 161, 1868 Pa. LEXIS 81. 5 A “conveyance” is “one whose business it is to prepare deeds, mortgages, examine titles to real estate, and perform other functions relating to the transfer of real property.” Black’s Law Dictionary 301 (5th ed. 1979). 6 Id. at *1. 7 Id. at *2-3. 8 Id. at *1. 9 Id. 10 Id. at 167. 11 Act of April 29, 1874, P.L. 84. 12 Art. 18 §17-1801 and Art. 20 §17-2002(7) R.S. of Kan. 1923; L.A. Pelkey, The Law of Title Insurance, 12 Marquette L. Rev. 38 (1927) (discussing when different states enacted similar statutes). 13 If the purchase contract is silent on whether marketable title will be conveyed, such a term may be implied as a matter of law. Anderson v. Overland Park Credit Union, 231 Kan. 97, 126, 643 P.2d 120 (1982). 14 Scott v. Kirkham, 165 Kan. 140, 145, 193 P.2d 185 (1948). 15 Id. at 146. 16 Id. at 147; see also Peatling v. Baird, 168 Kan. 528, 532, 213 P.2d 1015 (1950); Lohmeyer v. Bower, 170 Kan. 442, 452, 227 P.2d 102 (1951); J & S Bldg. Co. v. Columbian Title & Trust Co., 1 Kan. App. 2d 228, 240, 563 P.2d 1086 (1977). 17 Lohmeyer, 170 Kan. at 453. 18 Workman v. Shawnee Fed. Sav. & Loan Ass’n, No. 61,447, 1988 Kan. App. LEXIS 431, at *5 (June 17, 1988). 19 Hanna v. Hayes, 1986 Kan. LEXIS 276, at *13. 20 See, e.g., Haw River Land & Timber Co., Inc. v. Lawyers Title Ins. Corp., 152 F.3d 275, 278 (4th Cir. 1998) (Title refers to the legal ownership of a property interest so that one having title to a property interest can withstand the assertion of others claiming a right to that ownership. But title to property does not characterize the property itself as valuable, merchantable, or even usable”); Bear Fritz Land Co. v. Kachemak Bay Title Agency, Inc., 920 P.2d 759, 762-63 (Alaska 1996) (noting that in Alaska title marketability relates “to defects affecting the legally recognized right and incidents of ownership”).

Journal of the Kansas Association for Justice  9

21 Stewart Title Guar. Co. v. Greenlands Realty L.L.C., 58 F. Supp. 2d 370, 382 (D. N.J. 1999) (noting that “defect” is something less than “unmarketability,” and “if ‘defect’ was synonymous with ‘unmarketability,’ there would be no reason for the policy to list both terms”); see also Vestin Mortg., Inc. v. First Am. Title Ins. Co., 101 P.3d 398, 403 (Utah App. 2004) (“we also recognize that ‘defect’ may be defined as something less

than a ‘lien’ or ‘encumbrance.’ The fact that [special improvement district] and notice did not amount to a ‘defect,’ ‘lien,’ or ‘encumbrance,’ does not mean that all three terms are given the same meaning.”). 22 K.S.A. 40-256. 23 220 Kan. 244, 553 P.2d 254 (1976). 24 Id. at 266; see also Bender v. Kan. Secured Title & Abstract Co., Inc., 34 Kan. App. 2d 399, 409-411, 119 P.3d 670 (2005); Southwind

Exploration, LLC v. St. Abstract Co., Inc., 2009 Kan. App. LEXIS 717, at *9-12 (June 22, 2009). 25 K.S.A. 40-256. 26 Epp v. Hinton, 91 Kan. 513, 138 P.576 (1914); Hoffman v. Haug, 242 Kan. 867, 872, 752 P.2d 124 (1988). 27 Ford, 220 Kan. at 258-59.

Volunteer Chairs Requested It’s time for changing of the guard… After many years of dedicated and effective service as Chair of the KsAJ Journal Board of Editors, Jim Howell has decided to move on to other leadership responsibilities in the Wichita area. Jim's contributions will be honored appropriately in the near future — please stay tuned! Meanwhile, the search is on for those candidates who are interested in serving as the prestigious volunteer Chair of the KsAJ Journal Board of Editors. Key points of the "job description" are shown below. If you would like to be considered, your letter of interest and CV should be sent to Emily Wilson by June 14, 2013: or c/o KsAJ, 719 SW Van Buren, Ste. 222, Topeka, KS 66603.

KsAJ owes a debt of thanks to retiring chair Derek S. Casey of Wichita. Derek has been active with the Amicus Curiae Committee since 1992 and has served as its Chair since 2009. In 2012, he moved to the firm of Triplett, Woolf & Garretson and has resigned as Chair of the Amicus Committee so that he has more time and energy to focus on his new workload and career direction. KsAJ’s leadership will be honoring Derek for his service — more details to come. For those interested in serving as Chair of the KsAJ Amicus Curiae Committee, key points in the “job description” are shown here. To be considered, your letter of interest and CV should be sent to Charlotte Krebs by June 14, 2013: or c/o KsAJ, 719 SW Van Buren, Ste. 222, Topeka, KS 66603.

Focus: Volunteer Chair will assist with development of KsAJ's flagship publication, the Journal of the Kansas Association for Justice. This leadership role offers one the opportunity to showcase and grow his/her writing and analytical skills, as well as professional credentials, among jurists and litigators in the Kansas legal community.

Focus: The Chair of the Amicus Curiae Committee assembles, directs and facilitates the activities of a panel of volunteer members which evaluates requests for Amicus briefs and, when appropriate, develops such briefs on behalf of KsAJ.

Candidates should have interest in writing and communicating with Kansas practitioners about key trends in Kansas law or notable cases. It is recommended that candidates have experience with law journal, legal review publications, or other journalistic endeavors. Candidates should be prepared to accept an initial commitment of at least 3-5 years, after which the term may be extended if mutually agreeable.

The Journal is one of the key benefits of KsAJ membership and is recognized among the Kansas bar for its excellence. As such, the Chair is responsible for convening the Journal Board of Editors and directing the content of the publication to feature articles that educate and inform Kansas practitioners about issues affecting KsAJ members' practices.

Candidates should demonstrate successful experience in analysis of legal issues, understanding of policy priorities championed by KsAJ and extensive experience in brief preparation and/or editing. Prior experience with the Amicus Curiae Committee helpful. Due to the complexity of relationships and processes in this position, applicants should be prepared to accept an initial appointment of 3-5 years, after which the term may be extended if mutually agreeable.

The KsAJ Journal is distributed to all KsAJ members, all Kansas Supreme Court justices, Appellate Court judges and District Court judges, as well as District Court Magistrates, work comp ALJs, and regional law libraries. The Journal is also circulated to each state TLA, which often gains inquiries/ requests for republication of Journal articles across the nation.

The workload of this committee varies over time. The group must be prepared to evaluate all requests and agree to provide briefs consistent with KsAJ policy priorities and committee resources. The retiring chair reports there are usually 3 to 5 requests per year, many of which are declined because they present issues of fact, not law, or raise issues previously determined. Typically the panel completes 1 or 2 briefs a year which are generally less than 10 pages and take about 5-12 hours to research, write and file.

Editor is largely supported by the Managing Editor (KsAJ Manager of Communications) to coordinate bimonthly production schedule, manage administrative tasks, provide continuous quality improvement (i.e. online format and planned design facelift) and finalize the editing and design of each publication.

This is a volunteer position with no compensation. The primary benefit of participation is the opportunity to hone brief writing skills. This service is greatly respected and appreciated by your colleagues within KsAJ. The cost to print, bind and ship the briefs is usually paid by the firm or attorney who prepares the brief.

Although the committee has functioned largely without staff support from KsAJ headquarters, current staff is willing to provide support if it would be helpful to ensure seamless operations of the committee.

For more information on either position, please contact staff at (785) 232-7756.

10  Journal of the Kansas Association for Justice

u Professional Negligence

The “Golden Rule” and “Conscience of Community” — Revisited By John W. Johnson

John W. Johnson is Of Counsel with Morris, Laing, Evans, Brock & Kennedy, Chtd., in Wichita, Kan. He handles primarily complex civil litigation matters, including commercial litigation, medical malpractice, aviation accidents, products liability, and motor vehicle and truck accidents. Johnson is the Professional Negligence editor for the KsAJ Journal, a past president of KsAJ, and an Eagles member of the KsAJ Board of Governors.

All trial lawyers, through their formal education, mentoring and experience in the court room have come to find the “Golden Rule” invites the jury to place themselves in the shoes of the affected party to suggest they render a verdict based upon their own passion and bias. The “Conscience of the Community” concept further allays itself to the passion and bias of the jury not from a personal viewpoint, but rather from the collective of the community as a whole. As a general rule, such arguments are deemed improper, grounds for objection and in some instances, significant foundation for reversal. In examining the case law and how these concepts are applied, it appears the “Golden Rule” and “Conscience of the Community” precepts are not set in stone but, like most rules, have their variances and exceptions. This discussion will be a primer on these so-called extra evidentiary arguments and will delve into the justification and exceptions to their usage.

Golden Rule

In Kansas, the “Golden Rule” simply stated is: [S]uggestion by counsel that jurors should place themselves in the position of a party, a victim, or the victim’s family members… “The reason the Golden Rule arguments are not permitted is because they encourage the jury to depart from neutrality and to decide the case on

improper basis of personal interest and bias.”1

Other jurisdictions have addressed the “Golden Rule” argument in criminal matters as asking the jury to view the crime through the eyes of the victim, People v. Jackson, 45 Cal. 4th 662, 88 Cal. Rptr. 3d. 558, 199 P.3d 1098 (2009), Cert Denied, 129 S.Ct. 2829, 174 L Ed. 2d 557 (2009); suggesting the jurors imagine the victim’s final pain, terror, and defenselessness, Daily v. State, 998 So. 2d 545 (FLA. 2008), Cert Denied, 2009 WL 700116 (U.S. 2009) asking the jury to view the crime from the focus of the victim, inviting the jury to make a determination of guilt or innocence on basis of sympathy and distract their attention from the actual issues of the case.2 A civil version of the prohibition was set forth in Walters v. Hitchcock, 237 Kan 31, 697 P.2d, 847 (1985). Walters is a medical malpractice case wherein the defendant physician was accused of negligently removing a portion of the plaintiff’s esophagus when doing a resection of her thyroid gland. As a result of the procedure, the plaintiff’s esophagus was permanently sewn shut and she required feeding through a stomach tube. In closing, plaintiff’s counsel made the statement to the jury: Who would sell their esophagus for $4 million dollars? I would not sell mine.3

Journal of the Kansas Association for Justice  11

An objection was made describing counsel’s statement as a “Golden Rule” argument. In taking notice of the “Golden Rule,” the Court referred to 75 Am. Jur. 2d Trial, § 282 as authority for such arguments being improper.4 Analyzing the issue, the Court looked at the two separate statements contained in the argument. The statement “Who would sell their esophagus for $4 million dollars?” was determined not to be “Golden Rule” and was a fair argument relative to claimed damages.5 However, the quote “I would not sell mine” went beyond acceptable commentary.6 Interestingly, there was no discussion as to why specifically it was improper other than the previous reference to Am. Jur. 2d. Even more interesting, the Court held the comment was not a reversible error because a timely objection was made and a jury admonition was not requested, nor was one given.7 The comment in Walters is a small variance to the “Golden Rule” wherein the statement does not suggest placing the jurors in the shoes of the plaintiff but rather the attorney expressing his own opinion. The Court, criticized this argument by stating: This term relates to arguments of counsel that jurors should place themselves in the position of the plaintiff. Such arguments are usually improper and may constitute reversible error.8

With the State v. McHenry and the Walters v. Hitchcock courts referring to Am. Jur. commentary on the “Golden Rule,” it should be noted that the Am. Jur. states: To be impermissible, a “Golden Rule” argument in a civil matter must strike at the sensitive area of financial responsibility and must hypothetically request the jury to consider how much they would wish to receive in a similar situation. In other words, the “Golden Rule” argument is prohibited only where it is used to inflame the jury and encourage an increased damages award. Remarks not di-

rected at damages are not impermissible. Thus, a “Golden Rule” argument is appropriate when used to ask the jury to assess the reasonableness of a party’s action by relying on their own common sense and life experiences.9 (Emphasis added)

This is in keeping with PIK 4.102.20, which states: You must decide whether the testimony of each witness is believable and what weight to give that testimony. In making these decisions, you have a right to use your common knowledge and experience.

Calling upon jurors to use their “common knowledge and experience” is essentially inherent within the “Golden Rule.” Using it for liability argument would appear to be appropriate. Other states have considered the issue: • Alabama has stated that: … a bare invitation for the jurors to put themselves in the place of a litigant, without an appeal to the juror’s passions and feelings, is not considered to be improper.

• See Walker v. Asbestos Abatement Company, 639 So. 2d, 513 (1994); Argument asking jurors to use their own experiences in everyday life to make a determination on when an injury began to hurt was not improper. • See Smith v. Petit, 778, S.W. 2d, 616 (1989); Suggesting “Golden Rule” applies only to damages and not liability. • See Shaffer v. Ward, 510 So. 2d, 602 (1987); Citing 75 Am. Jur. 2d trial “remarks not directed at damages are not impermissible under the “Golden Rule.” • See Naimat v. Shelbyville Bottling Company, 240 Ga. App. 693, 524 S.E. 749 (1999); Idaho Court stating,

We hold that the “Golden Rule” argument is only appropriate when used to ask the jury to assess the reasonableness of a party’s actions by relying upon their own common sense and life experiences. The “Golden Rule” argument is never appropriate when used to influence the damage award.10

In 2003, the United States District Court for the Southern District of New York addressed the “Golden Rule” issue by defining it as telling the jurors that by placing themselves in the position of the plaintiff they could render a verdict they would wish to receive themselves. However, the Court specifically went on to say the application of the “Golden Rule” is limited to damages only. Particularly, the Court allowed the argument requesting the jury to focus on the plaintiff’s injury, but precluded any request to base an award on how the jury would evaluate their own injury.11 Lastly, in 2001 the Utah Court in Green v. Louder, 426, Utah Adv. Rep. 25, 29 P.3d 638 (2001) made the following declaration: … The use of golden rule arguments is improper only “with respect to damages.” In addition, the use of golden rule arguments is not improper when urged on the issue of ultimate liability.12 (Citations omitted)

Counsel should be cautious during trial when confronted with the “Golden Rule” argument. It can be used by both the plaintiff and the defense and as we know there are variances and exceptions to the general rule. Kansas has not specifically looked at issues utilizing a “Golden Rule” argument when it comes to liability and issues other than damages. However, it would seem the general trend of authority lends itself to prohibiting such an argument for damages only.

Conscience Of The Community The promulgation the jury is the “Conscience of the Community” has

12  Journal of the Kansas Association for Justice

been the subject of many criminal appellate decisions. However, this concept was recognized in 1978 by Justice Prager when he made the following comment: We believe the better rule should be one based not on distrust of juries, but rather one which recognizes that jurors collectively represent the conscience of the community and will do their best to follow the law as contained in the instructions of the Court.13

While there can be no argument that both civil trial and criminal trial juries are indeed the “Conscience of the Community,” it has been deemed to be improper to advance that precept during closing argument.14 The prohibition against a prosecutor in a criminal trial using community standards to impassion a jury to reach a guilty verdict has been found improper on numerous occasions. • See State v. Kelly, 209 Kan. 699, 498 P.2d 87 (1972); the Court found improper the comment: And if you want to live in a community where a person can kill another person…in the manner that this was conducted and excuse it because he has had a few drinks, that’s up to you.

• See State v. Jordon, 250 Kan. 180, 193,

825 P.2d 157 (1992); “What you decide will be what our community stands for.”

• State v. Green, 254 Kan. 669, 867 P.2d 368, 378 (1994); “Jurors should not allow defendant’s conduct to be tolerated in their community.” • State v. Ruff, 252 Kan. 625, 847 P.2d 1258 (1993); “What you [the jurors] decide will be what our community stands for;” found to be harmless error because counsel did not move for a mistrial.

• State v. Green, 254 Kan. 669, 867 P.2d 366 (1994); State v. Witten, 45 Kan. App. 2nd 544, 251 P.3d 74 (2011) and State v. Finley, 268 Kan. 557, 998 P.2d 95 (2000).

From the civil perspective, the “Conscience of the Community” argument has less discussion in the appellate courts. Fortification of the prohibition is found in Masson v. Kansas City Power and Light Co., 7 Kan. App. 2d 344, Rev. denied 231 Kan. 801 (1982). Masson involved two consolidated cases, which dealt with condemnation proceedings for a high voltage power line. One of the themes for land owners was the fear as to the adverse effects of living under a high powered electrical transmission line. In his final argument, counsel for the land owners stated: The case is over now and I have about two minutes and I will sit down and you will get to do [sic] into round six. He doesn’t get to go with you, this man who has had that place for seventy [sic] years of his life and he and his family for forty, and after your verdict hopefully this evening Mr. White and Mr. Murray can go to a new case, and Mr. Forbes can go to a new case, and Mr. Forbes can go back to Kansas City Power and Light, and I will try another lawsuit, and the twelve of you are going twelve different ways in life, but you will have done that one American duty and sent a message to a utility that you are going to put up with [that] kind of treatment of your citizens, you have got a chance to be heard that an individual never has.15

While the Trial Court sustained an objection but overruled a motion for mistrial, no admonition was given. The argument was deemed, without question, improper.16 The Court went on to state that a condemnation trial was about the intrinsic value of land taken and that passions and fears have no room in the evidentiary setting and deliberations of the jury.

A basic premise in the objection to the “Conscience of the Community” argument is that it not only plays to the passions and bias of the jury but it also sends a message the jury should substitute the evaluation of the evidence with what they believe the community would want them to do as opposed to their own individual evaluation. However, Am. Jur. points out exceptions to the rule in citing cases wherein the “Conscience of the Community” or “send a message” arguments are proper. 75A. Am. Jur. 2d §474, see Com. v. Lawrence, 404 Mass. 378, 536 N.E. 2d 571 (1981) where a prosecutor properly referred to the jury as the “Conscience of the Community” in deciding whether or not a killing had occurred with extreme atrocity or cruelty indicating the jury would be speaking as the representative of the community’s conscience; Rodriguez v. State, 649 S.W. 2d 329 (1983), jury’s decision will send a message to the community; State v. Jones, 336 N.C. 229, 443 S.E. 2d 48 (1994), no error in comparing the jury as the “voice of the people.” There is a lack of appellate decisions in Kansas concerning “Conscience of the Community” arguments in civil cases. However, looking at some specific criminal law cases, guidance can be gleaned from remarks of the Court concerning standards relating to the community in closing arguments. The case of State v. Finley, 268 Kan. 557, 998 P.2d 95 (2000) is helpful on this issue. The defendant was charged with murder in the manufacture of methamphetamine. The remarks by counsel that were the focus of a reversal in the conviction are as follows: You know, they say all the time that our police department enforces our laws in this country, that’s not true. It’s you guys. We have people in Topeka that make our laws, we have people in my office that prosecute them, but you all have the job of enforcing them. You all can find that he committed these crimes and hold him responsible for them. We cannot

Journal of the Kansas Association for Justice  13

tolerate this kind of drug use in our community, especially when a person dies. You have to find him guilty. Thank you.

Even though no objection was made to the argument, the plain error rule was applied and the Court found the defendant was entitled to a new trial. What is interesting about this case is even though the Court indicated the remarks by counsel were clearly improper, it highlighted that the remarks were not confined to the evidence. The Court drew particular attention to the statement concerning it was the jury who enforced the laws and specifically: “This kind of drug use in our community” could not be tolerated, especially when a person dies. The Court found those remarks were outside the evidence. This gives credence to the idea that if the “Conscience of the Community” arguments are used for purposes directly attributable to the evidence it may not be objectionable. Looking at this concept from the civil perspective, it would seem the “Conscience of the Community” is objectionable only when it is used extraneous to the evidence admitted. PIK 4th defines negligence as: [T]he lack of reasonable care. It is the failure of a person to do something that a reasonable person would do, or doing something that a reasonable person would not do, under the same circumstances.17

In deciding whether or not a defendant exercised reasonable care, a juror takes into account not only their own common knowledge and experiences, but also what a reasonable person would do. As Justice Prager indicated, the jury is indeed the “Conscience of the Community.” As such, the jury may be asked to follow the reasonable man standard in evaluating the evidence. In examining this issue closely, counsel should be able to craft “Conscience of the Community”

arguments so as not to appeal to the passions and prejudices of the jury, but rather allow it to focus on the direct examination of the evidence. For example, what is the objectionable nature of the ensuing statement: Ladies and gentlemen, we have established in your selection to hear this case that you are the conscience of this community. In that regard, it is your duty to fairly and accurately, as reasonable people, evaluate the evidence before you make a just decision.

You are urged to consider that just using the phrase “Conscience of the Community” is not improper per se, but rather the context in which it is used. If the pretext is to suggest the jurors forego their responsibility to make decisions based on the evidence, you have gone too far. However, using the phrase to instill the obligation to follow the evidence would appear to be proper. Nothing has been said about voir dire. The opinions researched for this article have dealt with closing argument. However, trial counsel is granted wide latitude in conducting voir dire to craft questions to ferret out bias. “Golden Rule” and “Conscience of the Community” themes certainly would be useful in discussing how jurors may feel in making decisions in a civil personal injury case.


This discussion about closing arguments and the issues associated with “Golden Rule” and “Conscience of the Community” themes is meant to provide a reinvestigation as to the boundaries of what may be proper and improper. Having been involved in numerous civil jury trials over my career, I simplemindedly accepted prohibitions on these arguments without question. However, we, as trial attorneys, need to continue to review and reevaluate those precepts that we sometimes apply without question. p


1 State v. McHenry, 276 Kan 513, 78 P.3d, 403 (2003). 2 COM. v. Bizanowicz, 459, Mass. 400, 945 N.E. 2d 356 (2011). 3 Id at 849. 4 Walters at 849. 5 Id at 849. 6 Id at 849. 7 Id at 849. 8 Id. at 849.

9 75 Am. Jur. 2d Trial §547, pg. 184. 10 Lopez v. Langer, 114 Idaho 873, 761 P.2d 1225 (1988).

11 Marcoux v. Farm Serv and Supplies, Inc., 290 F. Supp. 2d 457 (S.D. N.Y. 2003). 12 Id at 648.

13 Thomas v. Board of Tp. Trustees of Salem Tp., Sedgwick County, 224 Kan. 539, 551, 582 P.2d 271 (1978). 14 75A. Am. Jur. 2nd §474. 15 Id at 348. 16 Id at 348. 17 PIK 4th, 103.01

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14  Journal of the Kansas Association for Justice

KANSAS ASSOCIATION Giving Back to theFOR Community and Changing the Image of Trial Lawyers


By Don Keenan

Each and every trial lawyer can play a part in changing the public/jurors’ perception of us through much needed community projects. Major Truth No. 1: The image of trial lawyers, both to the public and to the jury panels, is toxic. We know from the Reptile that the “code” for the plaintiff’s trial lawyer is “liar.” Right after liar comes more preconceptions, such as “ambulance chaser,” “manipulator,” “bully,” “egotist,” “narcissist,” etc. We teach a lot of authentic techniques to change our image once in the courtroom, starting with voir dire and opening statement, and continuing throughout the case. However, let us visit the second major truth. Major Truth No. 2: You begin to change the code/perception of the trial lawyer in the community, well before the courtroom. I firmly believe that within the heart of virtually all plaintiffs’ lawyers is compassion and genuine care for other people. Thus, we do not need to change our mindset. We just need to funnel our activities to match what is already inside us. Major Truth No. 3: Writing a check to a nonprofit does not cut it. Let me explain why this is absolutely true as shown through many focus groups done at the request of trial lawyers wishing to understand the average person’s reaction to the content of their website. Many trial lawyers list with pride the number of charities to which they give money and, in fact, list just how much money they donate right on their website. The trial lawyers are shocked when I report the following general comments by focus group participants: “The only reason that fat cat lawyer is giving money is to get the tax deduction,” and “Trial lawyers don’t care about charities, they only care about how much tax they’re going to pay. That’s the motivation for giving the money, not charity.” There is another common element and that is the trial lawyers who list on their websites the boards on which they serve. Once

again, the trial lawyers are shocked when I tell them the focus group comments: “The only reason that lawyer is serving on those boards is to get more cases,” and “Being on the board for the Head Injury Foundation, Cerebral Palsy Association and even the Boy Scouts and United Way organizations just gives that lawyer access to tons of new cases and that’s why he/she is serving on it.” The negative preconceptions don’t stop there. One of the focus group folks will always say, “That trial lawyer thinks we’re stupid and that this over-pandering is going to work on me, but we all know the real reason they give money to charities and serve on boards, and my feelings about trial lawyers goes down further because of it.” I have done these focus groups in virtually every geographical area of the country with the same negative comments. We shoot ourselves in the foot by listing that stuff on our websites thinking it is somehow going to change our image. Clearly, it only backfires. Major Truth No. 4: Actions speaks louder than words. The lawyer who actually takes his or her money and puts it directly into a charitable activity has the opposite perception as those check writers and board servers. These same negative focus group participants flip their opinion on trial lawyers when they see them actually participating in a project. Say the project is a safety prevention project. The comments go in a positive direction and sound something like this: “By doing a safety project and preventing injuries and death, this trial lawyer is actually decreasing the amount of business he/ she is going to get, so obviously he/she is doing it for the right reasons.” It does not have to be a safety project to get the warm and fuzzies from the general public and jurors; it can be any community project. Major Truth No 5: It is easier to do community projects than you think. I was once a check writer. At the end of the year, I would always write checks to some of the biggest charities; then in the

Journal of the Kansas Association for Justice  15

early 1990s (when the Internet began to boom), I realized that 2013 commencing with these columns. Over the coming year, I the web gave me access to find out how these charities were intend to give trial lawyers a salad bar of the available handsusing my money. To say I was shocked and appalled would on activities that can be done in the community through these be an understatement. I saw that normally, after they paid columns. I invite you to stay tuned and see what hits your heart overhead, fundraising costs and high salaries, approximately and what you can do. 10 cents out of every dollar I gave actually went to the intended purpose of the charity. UMBERELLA TRUTH: It was not me but my secretary (back when we had Each and every trial lawyer can play a part in changing the secretaries) who told me that we could use that money to public/jurors’ perception of us through much needed commudo community projects ourselves, without putting such an nity projects. p embarrassing amount back into the intended project. So for a couple of years we did exactly that, putting money back into specific projects that I will share in future columns this year. Then in 1992, I decided to form my own 501(c)(3) nonprofit corporation, the Keenan’s Kids Foundation (www. keenanskidsfoundation .com). We made it very clear that the foundation was not a grant-giving foundation (that is, writing checks to other foundations). Instead, we took every dime deposited into the foundation and funded our own projects — some big that most law firms would not be able to do, and some small that even the sole For more than 50 years, Fire Station practitioner could do very No. 2 served the Topeka community easily. as the city’s first freestanding Two years ago, the fire station and Fire Department headquarters. Today, the historic National Association of site serves the community in a new Trial Lawyers Executives capacity, providing unique event (NATLE) invited me to space and office suites just steps present at their annual away from the Statehouse. convention in Denver to The newly renovated facility outline all of the projects provides modern conveniences we have done and how with historic charm in a prime downtown location. Whether we might be able to help you’re looking for a place to host lawyers around the country a wedding reception or plan a duplicate. They asked me meeting, the Legacy of Justice Foundation has just the space for whether or not I would be BOOK YOUR EVENT TODAY! your next business event or social willing to write a series of KSAJ MEMBERS RECEIVE A 20% DISCOUNT ON RENTAL FEES. function! columns to be reprinted in trial lawyer publications. Topeka’s Historic Fire Station No. 2 719 SW Van Buren | Topeka, KS 66603 Phone: (785) 232-7756 | Fax: (785) 232-7730 | Email: While it has been a long time coming, here we are in

topeka’s historic fire station no. 2

Meeting & Event Space

16  Journal of the Kansas Association for Justice


JUSTICE Workers Compensation Review Decision Review Committee Editor: Joseph Seiwert Appeals Board Decisions: Kathleen J. Cossairt Jan Fisher Timothy E. Power Mitchell W. Rice James R. Shetlar John W. Stapleton, Jr. Judge Bradley Avery: Michael C. Helbert Judge Nelsonna Potts Barnes: Roger A. Riedmiller Judge John Clark: David H. Farris Judge Pamela Fuller: Tom Fields C. Albert Herdoiza Judge Kenneth Hursh: Steven R. Jarrett Judge Thomas Klein: Dennis L. Phelps Judge Bruce Moore: Scott M. Price Judge Rebecca Sanders: Roger D. Fincher Judge William G. Belden: Stephanie J. Wilson

Appeals Board Decisions Kathleen J. Cossairt

„„ Evidence „„ Part-Time Employee and Permanent Total Disability In Daily v. Sirloin Stockade and Kansas Restaurant & Hospitality Ass’n Self-Insured Fund, No. 1,048,006, ALJ Moore found that claimant had a 25% functional disability to the whole body. He found claimant failed to sustain her burden of proof that she was permanently and totally disabled as a result of the accident on April 6, 2009. However, Judge Moore found claimant was entitled to a 75.35% work disability based on a 100% wage loss and a 50.7% task loss. The claimant appealed. The only issue for the Board was whether claimant was permanently and totally disabled. It is significant to note that claimant only worked part-time. Therefore, the Board found that her burden was to prove that she is “essentially and realistically unemployable” and incapable of finding part-time employment. See Lyons v. IBP, Inc., 33 Kan. App. 2d 369, 378, 102 P.3d 1169 (2004); Wardlow, 19 Kan. App. 2d at 113. The Board affirmed the ALJ’s finding of no permanent total disability and stated: Karen Terrill, claimant’s vocational expert, testified claimant is essentially and realistically unemployable as a result of her injuries. Ms. Terrill relied primarily on the restrictions placed upon the claimant by Dr. Tomecek.

Dr. Tomecek’s restrictions are found in a treatment update report written April 1, 2011. Dr. Tomecek did not testify. Dr. Tomecek’s report containing the restrictions was not stipulated into the record. ALJ Klein ordered an independent medical examination with Dr. Tomecek on March 12, 2010, with direction for Dr. Tomecek to treat the claimant if treatment was needed. On April 19, 2010, Dr. Tomecek prepared a comprehensive report that was filed with the Division on April 28, 2010. Pursuant to K.S.A. 2011 Supp. 44-516(a), the ALJ may request an examination and “[t]he report of any such health care provider shall be considered by the administrative law judge in making the final determination.” The comprehensive report requested by and prepared for the ALJ is a part of the record. The report containing the restrictions placed on claimant by Dr. Tomecek was a follow-up report resulting from treatment provided to claimant and was not the report requested pursuant to K.S.A. 2011 Supp. 44-516(a). The Board finds that only the initial report of the examination ordered by the ALJ may be considered as a part of the record without the requirement of additional foundation. Any other report made by Dr. Tomecek resulting from his treatment after the initial examination requires supporting testimony. Dr. Tomecek was never

Journal of the Kansas Association for Justice  17

deposed and no stipulation was made by the parties allowing his treatment reports to be made part of the record. Because Dr. Tomecek’s restriction report is not in evidence, Ms. Terrill’s opinions based upon Dr. Tomecek’s restrictions can be given no weight.

„„ Prevailing Factor „„ Activities of Daily Living In Seim v. U.S.D. 305 and Travelers Indemnity Co. of America, No. 1,059,244, ALJ Moore apparently found that claimant suffered an accidental injury on Oct. 24, 2011, when she stood up from cleaning the floor and felt a sensation in her back. Since Dec. 4, 2009, claimant worked as a paraprofessional in the Early Head Start Program for respondent. After reporting the accident, claimant was referred to James J. Shafer, M.D., of Comcare, P.A. X-rays taken on Oct. 27, 2011, and an MRI scan taken on Nov. 1, 2011, showed degenerative changes in claimant’s thoracic and lumbar spines and in her hips. The degenerative findings at several levels in claimant’s back are significant and lengthy, and will not be listed herein. It is clear claimant suffered degeneration on several levels including several medical conditions. However, the Board found and stated: Respondent argues claimant suffers from several preexisting, degenerative conditions in her thoracic spine. This makes her susceptible to the thoracic myelopathy diagnosed by the examining health care providers. Dr. Stein agreed with respondent’s position, finding claimant’s ongoing problems were the result of preexisting stenosis. Dr. Fluter agreed with claimant’s position, finding a causal/contributory relationship between claimant’s work accidents and her ongoing need for medical treatment. Due to the conflict in medical opinions, the ALJ elected to refer claimant for an independent medical evaluation with Dr. Bernhardt. In essence, Dr. Bernhardt agreed and disagreed with both experts. He determined claimant’s thoracic myelopathy and spinal sur-

geries were the result of the accidents at work. But, he also determined that claimant’s ongoing problems are the result of claimant’s many degenerative conditions in her back. This Board Member agrees. It is clear this claimant suffered from long standing degeneration in her thoracic, cervical and lumbar spines. These problems impacted her complaints, but were not solely responsible for claimant’s need for treatment. Claimant’s job injuries also impacted her need for treatment, specifically the surgeries on her lumbar and thoracic spines.

Citing Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 257 P.3d 255, (2011), the Board affirmed the ALJ and found: This claimant was not engaged in a normal activity of day-to-day living when she was on the floor assisting the young children dress after their afternoon nap. When the phone rang, she arose to answer, as was part of her normal job responsibility. While sitting, kneeling and standing are, at times, a normal part of one’s day, in this context, they were clearly connected to claimant’s job as a paraprofessional. This Board Member finds claimant suffered injury by accident on Oct. 24, 2011, which arose out of and in the course of her employment with respondent. Those accidents are the prevailing factor causing the injuries and medical condition identified as thoracic myelopathy, leading to the thoracic and lumbar spine surgeries. The Nunc Pro Tunc Order dated Oct. 18, 2012, is affirmed. p

Appeals Board Decisions Jan Fisher

„„ Scheduled vs. Whole Body Injury In Robbins v. Shawnee County, No. 1,044,921, the Board was asked to determine whether an injury to the ilioinguinal nerve constituted a scheduled injury or a body as a whole injury. Mr. Robbins sustained an injury on Aug. 8,

2008, while climbing up the side of his truck to retrieve a bag. He slipped, fell, and landed on his right foot and leg. Mr. Robbins testified that he had right back pain and pain down his leg. The claimant had surgery on his right foot as well as various low back injections. He developed an ilioinguinal hernia while lifting a box during the functional capacity evaluation. Much of this Award concerns whether the low back constituted a new permanent impairment of function in light of his preexisting problems. Ultimately, the ALJ and the Board found his low back impairment to be all preexisting. The case does highlight the difficulty of looking at a prior rating derived under a different version of the AMA Guides and comparing it to the 4th Edition of the Guides. There was also a question as to whether the ilioinguinal nerve injury constituted an impairment to the right lower extremity or to the body as a whole. Dr. Carabetta conducted a court-ordered IME. The claimant complained of low back pain with occasional right sciatica, right foot pain and right groin pain. Dr. Carabetta, among other things, diagnosed right ilioinguinal neuritis. He provided a 21% impairment to the right

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lower extremity based on finding a 15% rating involving claimant’s tarsal tunnel, plantar fascia, ankle and hindfoot and a 7% rating for irritation of the ilioinguinal nerve. Dr. Carabetta’s report noted that such impairment concerned the groin region. During his testimony, the following exchange took place: Q. Okay. You did rate 7% for the inguinal nerve entrapment? A.

That is correct.

Q. Where is the situs of that entrapment at, Doctor? A. That is assumed to be in the area of the groin as the scar tissue forms around that nerve as it crosses in front of the pelvis in the area of the ligament in that area. Q. So the entrapment is in his abdominal area? A. It is actually at the very top of the hip. The inguinal ligament crosses that area and creates a boundary. It’s beyond the abdomen and right in the groin.

Despite the fact that Dr. Carabetta rated this to the lower extremity, the Board found it to be a body as a whole impairment. This was based on the Court of Appeals decision of Lozano v. Excel Corporation, 32 Kan. App.2d 191, 81 P.3d 447 (2003). In that case, the Court of Appeals indicated that “the nerve injuries are not the same injury as the hernia injury and are not governed by K.S.A. 44-510d(a)(22).” The Board noted that in determining whether the claimant’s ilioinguinal nerve injury resulted in a scheduled or nonscheduled disability, the situs of the resulting disability — not the situs of the trauma — determines the workers compensation benefits available. Dr. Carabetta testified the claimant’s ilioinguinal nerve entrapment was at the hip, groin and pelvis. His report indicated that the claimant had

intermittent burning and aching in his right groin, sometimes lasting a week, several times a year. The situs of the injury and the location of the claimant’s complaints are the same. While Dr. Carabetta limited the claimant’s ilioinguinal nerve impairment to the right leg, the Court of Appeals decision in Lozano compels a finding that this impairment is to the body as a whole. A groin, hip or pelvis injury is not covered by the schedule. It doesn’t matter that the physician limited the impairment to the lower extremity. The lower extremity impairment of 7% is converted to a 3% impairment of function to the body as a whole. „„ Attorney Fees In Amador v. National Beef Packing Company, No. 1,037,021, the claimant requested penalties and attorney fees pursuant to K.S.A. 44-512a or K.S.A. 44-536. Much of the case discusses the appropriate timing and specification needed for a K.S.A. 44-512a(b) letter. The respondent was required to pay claimant 10 weeks of permanent partial disability payments in a lump sum on Jan. 13, 2012, the date the respondent appealed the Board’s Order to the Kansas Court of Appeals. However, the claimant had filed her demand for compensation on Jan. 3, 2012, which was before the 10 weeks of permanent partial disability payments were due and owing. The claimant’s demand for compensation contained no particulars regarding what disability payments were unpaid or past due. That is because as of Jan. 3, 2012, no disability compensation payments were unpaid or past due. Accordingly, the Board found that the claimant’s demand for compensation did not comply with the requirements of K.S.A. 44-512a(b). Therefore, claimant was not entitled to any penalties. The Board also looked at the issue of attorney fees. ALJ Fuller denied claimant’s request for attorney fees and found that K.S.A. 44-512a(b) allows attorney fees in District Court actions to collect past-due disability and medical compensation. As such, she denied attorney fees.

However, Judge Fuller did not consider K.S.A. 44-536(g), which clearly states that the director may authorize attorney fees to be paid by the respondent when the services of an attorney are used by claimant in an unsuccessful attempt to gain additional compensation. In other words, because the penalties were denied, there was an unsuccessful attempt to gain compensation. Therefore, attorney fees could be awarded under K.S.A. 44-536(g). The matter was remanded to the ALJ to determine what, if any, attorney fees should be awarded. It’s unclear whether K.S.A. 44-536(g) would be available if penalties had been awarded. In other words, are penalties a form of compensation or is this limited to indemnity benefits? p

Appeals Board Decisions James R. Shetlar

„„ Prevailing Factor King v. Sealy Corporation & Arch Insurance Company, No. 1,059,645, is an appeal by respondent from a Preliminary Hearing. The claimant was a truck driver who handled mattresses. He would pull the mattresses and box springs to the back of the trailer where they would be unloaded. Claimant testified that the mattresses and box springs would weigh as much as 200 pounds. On the date of his accident, Oct. 19, 2011, he estimated that he handled 110 to 120 mattresses and box springs that day. He had no mechanical device to assist him. Claimant had no pain or symptoms on Oct. 19. When he awoke on Oct. 20, claimant had no grip in his right hand and had pain shooting down his right arm that started at the base of his neck, symptoms which claimant had never encountered before. Claimant saw Dr. Roman Enriquez on Oct. 21 and told him his symptoms were due to work. Dr. Enriquez referred him to a pain management doctor (Dr. Griffith) and later referred him to a neurosurgeon. Both of those doctors indicated that he reported a history of

Journal of the Kansas Association for Justice  19

symptoms the following day. An MRI was performed with a diagnosis of disk herniation at C6-7 with radiculopathy. Both Dr. Griffith, the pain doctor, and Dr. Reintjes, claimant’s authorized treating physician, thought it was reasonable to file a workers compensation injury. The defense sent him to be evaluated by Dr. Payne, who opined that no incident, event or accident specific to the workplace would have caused the symptoms. Dr. Payne opined that the prevailing factor for claimant’s current symptoms was preexisting diskogenic cervical disease. Claimant was also sent to Dr. William Hopkins on April 23, 2012, who opined that the prevailing factor was his work activity on Oct. 19, 2011. Dr. Hopkins reported claimant had pops and snaps in his right arm and shoulder, but didn't pay attention to them until he woke up the next day with neck pain, pain in right shoulder and pain in his arm. Judge Duncan Whittier found that the only mention of claimant experiencing symptoms on Oct. 19 appeared to be in Dr. Hopkins’ notes of his exam of April 23, 2012 — some six months after the accident. Judge Whittier noted that in the Preliminary Hearing on Oct. 26, 2012, the claimant repeatedly denied having experienced any symptoms on Oct. 19, 2011. Then, the judge found, … experiencing symptoms upon wakening the morning after the accident shift ended does not constitute being produced “at the time” of the injury.

The Court then found that claimant failed to prove that he sustained an accident on Oct. 19, 2011, as it is defined by statute and referred to K.S.A 2011 Supp. 44-508, which states: an accident shall be identified by time and place of occurrence, produced at the time symptoms of an injury, and occur during a single work shift.

„„ New Law „„ Review of Preliminary Hearing Order

Rybeck v. Husky Hogs, LLC & Kansas Livestock Assoc. Risk Mgt., No. 1,059,545, concerned claimant’s request for review of Preliminary Hearing Order entered by Judge Moore. In the case, Judge Moore ruled the claimant sustained aggravation of preexisting conditions, but failed to prove his work-related accident was the prevailing factor in causing his injuries, medical conditions or disabilities. Judge Moore ruled the claimant failed to prove any change to the physical structure of the body as a result of the accident. On Oct. 3, 2011, claimant was assisting a driver on top of a trailer. The driver fell approximately six to 11 feet. Claimant tried to catch the driver and break his fall, but the claimant was struck and knocked down. Claimant alleged injuries to his left shoulder, neck and low back. He had a long history of back problems. On Nov. 3, 2011, claimant went to Norton County Hospital for complaints of the left shoulder. He told the doctor he had a history of back trouble and stated that a doctor had placed him on pain medication. On Nov. 30, claimant returned to Norton County Hospital with continued left shoulder pain. He also reported some low back and neck pain. Dr. Crockett evaluated the claimant on Dec. 15 and found that he had an underlying partial tear in his shoulder area. During the same time period, the claimant was complaining of low back pain with pain radiating in his leg. He was subsequently seen by Dr. Mahalek. An MRI was performed on March 5, 2011, which noted an unstable segment at L4-5 of his spine. Dr. Mahalek recommended surgery. In addition, an MRI-arthogram was done on his shoulder and found a suspected tear. Judge Moore ordered an IME by Dr. Vito Carabetta, who did find a change in his left upper trapezius muscle region. He also concluded that the incident on Nov. 3, 2011, was the prevailing factor with regards to the developments of complaints in that area. Dr. Carabetta also found the prevailing factor to his low back pain was his preexisting condition. A Board member noted that the

Appeals Board had found accidental injuries resulting in a new physical finding or a change of physical structure of the body are compensable, despite claimant also having an aggravation of a preexisting condition. The Board member then went on to cite several decisions stating whether an accident was compensable or not under the prevailing factor standard. In looking at proof of structural change, the Board member found that the new statute talks about personal injury or injury as is a lesion or change in the physical structure of the body, causing damage or harm thereto. The Board member found that the upper left trapezius is compensable and remanded to Judge Moore. „„ Prevailing Factor In Onnen v. Windsor Place & First Financial Liberty Insurance Corp., No. 1,058,990, the respondent requested review of a Preliminary Hearing Order entered by Judge Moore. Claimant had an accident on June 25, 2011. Judge Moore appointed Dr. John Ciccarelli to perform an IME and address whether claimant's accidental injury was the prevailing factor in causing claimant’s current complaint, presenting condition or need for treatment, if any. Dr. Ciccarelli opined that claimant’s intermittent episodes in the past regarding back issues and strains, as well as occasional radicular symptoms, all seemed to return back to the baseline. Dr. Ciccarelli noted that the claimant did not have any ongoing or active back treatment prior to the accident on June 25, 2011. Dr. Ciccarelli noted: I feel that she does have some underlying lumbar strain coupled with some underlying degenerative changes that were likely aggravated from her work injury.

Following Dr. Ciccarelli’s report, Judge Moore ordered that claimant was entitled to medical treatment. Board member John Carpinelli noted that the record of the Preliminary Hearing was sparse. Carpinelli noted that

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Dr. Ciccarelli need not specifically use the term “prevailing factor.” Dr. Ciccarelli identified a lumbar strain that occurred years after claimant last received medical treatment for a lumbar condition. Dr. Ciccarelli stated, She has really not been involved in any ongoing active treatment prior to her injury of June 25, 2011, that I can see from records and she does not report any as well.

Judge Moore may have viewed such statement as Dr. Ciccarelli discounting claimant’s prior low back condition as being a prevailing or primary factor in claimant’s symptoms and, further, that the work accident was the main culprit in claimant’s current medical condition, and need for medical treatment and disability. The Board member agreed. „„ Heart Attack Amendment — Application In Grove v. Agreliant Genetics & North River Insurance Co., No. 1,053,249, respondent requested review of the Award by ALJ Pamela Fuller. The claimant was a district sales manager who traveled extensively. The evidence presented is that the claimant’s truck crossed the center line of a road and collided head on with a semi-truck. The accident reconstruction reports show that claimant did not break or take any evasive action prior to collision. Claimant's widow testified that claimant was in good health and in a good mood the day of accident. She did admit that claimant had congestive heart failure and suffered from sleep apnea. Dr. Noordhoek performed the autopsy and found the cause of death to be “loss of vehicular control due to, or as a consequence of, probable cardiac arrhythmia and other heart conditions.” The Board stated, Dr. Noordhoek opined that if he were to be more specific, he would have filled out the death certificate to say that coronary artery disease was a significant condition that contributed to claimant’s death.

Also, Dr. Noordhoek noted claimant’s heart to be abnormally large in the autopsy and that it had been scarred from prior heart attack. Dr. Noordhoek testified that given the size of the heart and the complex natural scarring of the heart, it is likely that claimant had an arrhythmia, which resulted in loss of consciousness. He testified that blunt trauma would be enough to kill claimant. Dr. Michael Farrar, a board certified cardiologist, was asked to perform a document review. Dr. Farrar opined that the most likely reason for claimant’s cardiac death was his underlying heart problem. Dr. Farrar stated that claimant’s heart weighed 795 grams when a normal heart weighs 250-350 grams. Claimant’s attorney hired Dr. Roger Evans, a board certified internal medicine and cardiology specialist, to conduct a document review. Dr. Evans testified that he believed claimant's cause of death was blunt force trauma, which crushed his chest and ruptured his brain and skull. He also testified that no evidence shows claimant was experiencing a heart attack at the time he drifted to the center lane. The Board noted that the medical records supported a finding that claimant was suffering some type of heart problem while he was driving and that the application of heart amendment to this fact situation does not appear appropriate. There is no indication that claimant was exerting himself beyond his normal work and there was no evidence of external force. The Board noted that the opinions of Dr. Noordhoek and Dr. Evans were more persuasive than Dr. Farrar, whose opinions were that in the few seconds just prior to impact, claimant may have been unconscious, but still alive, and the death was a result of significant blunt force trauma to claimant’s body. The Board cited the Bennett v. Wichita Fence Co., 16 Kan. App. 2d 458(1992) where Bennett, while driving a company truck, suffered a seizure, blacked out and hit a tree. The Court stated,

…where an injury results from the occurrence of some preexisting idiopathic condition and some hazard of employment, compensation is generally allowed.

The court affirmed Judge Fuller’s award with one Board member filing a Dissent. „„ Truck Driver „„ Independent Contractor „„ Employee/Statutory Employee Galvan v. S & S Trucking, Crowley Mairtime Corp. & Uninsured Standard Fire Insurance and/or Workers Compensation Fund, No. 1,060,043. Claimant requested review of Preliminary Hearing Order by Judge Fuller. Judge Fuller found that claimant failed to prove that an employer/employee relationship existed and ruled that claimant was an owner/operator of a motor vehicle that was leased or contracted to a licensed motor carrier, identified as Crowley, thus not an employee. Claimant is a truck driver. S & S was a licensed motor carrier. S & S was owned by Angel Salas. Crowley, a broker, arranged for S & S to deliver milk for the Dairy Farmers of America, Inc. Claimant hauled loads exclusively for S & S. Claimant desired to buy a semi-truck. However, due to financing issues, Mr. Salas purchased the truck. The truck title was in his name and claimant was buying the truck from Mr. Salas, who deducted monthly truck payments from claimant’s paycheck and paid the balance. Mr. Salas charged claimant 9% for securing the load and deducted money for fuel, taxes, tags and insurance on the truck. Mr. Salas made sure claimant had money to cover gas, repairs and maintenance. Mr. Salas would contact claimant about the next job route and delivery. Claimant received personal checks or cash, but neither a 1099 form nor a W-2. Mr. Salas did not take out unemployment taxes. Crowley would pay Mr. Salas and then Mr. Salas would pay claimant. At time of accident, S & S did not have workers compensation coverage and

Journal of the Kansas Association for Justice  21

claimant did not have an occupational accident insurance policy. The Board then noted a primary test by the court and outlined 20 different factors of employer’s right of control vs. independent contractor. The Board noted that S & S had the right to terminate the service of drivers. The right to terminate a worker demonstrates control. S & S needed drivers to be able to function as a business. Claimant worked exclusively for S & S before this accident. The Board concluded that claimant was an employee of S & S on the date of accident. Another issue in this case is whether claimant was a statutory employee of Crowley under K.S.A. 44-503. There was no proof on the record that Crowley was in the trade or business of trucking. There is no proof that Crowley hired the truckers. Thus, the Board found that Crowley was not claimant's statutory employee. The Board found that S & S was claimant's employer. Since S & S had no workers compensation insurance, was no longer functioning in business and lacked financial ability to pay benefits, the Board found that pursuant to K.S.A 44-532a the Fund is responsible for claimant’s benefits. p

Appeals Board Decisions John W. Stapleton, Jr.

„„ Prevailing Factor „„ Preliminary Hearing Order In Bonner v. Creekstone Farms Premium Beef and Liberty Insurance Corp., No. 1,059,138, claimant was injured at work on June 29, 2011, when a hydraulic cylinder fell and struck him on the head. Judge Barnes found that claimant was injured and ruled the prevailing factor for claimant’s current symptoms and the need for medical treatment was the work-related accident. The judge ordered medical treatment and ordered respondent to pay medical bills and expenses. Respondent sought review of Judge Barnes’ Preliminary Hearing Order and raised the following issues:

1. Whether Judge Barnes erred in finding that claimant proved personal injury by accident arising out of and in the course of employment concerning a diagnosis provided by a doctor which included post-concussive syndrome, vestibular disorder, myofascial pain syndrome, and other injuries; 2. Whether Judge Barnes exceeded her authority by ordering payment of TTD benefits if claimant was terminated for cause; 3. Whether Judge Barnes’ Preliminary Hearing Order was untimely due to the financial detriment of respondent; 4. Whether Judge Barnes exceeded her jurisdiction by ordering payment for medical bills related to claimant’s preexisting condition and unrelated to his work; 5. Whether Judge Barnes exceeded her jurisdiction by ordering medical treatment identified by the doctor that was not contained in the initial medical records and reports from authorized physicians; 6. Whether Judge Barnes exceeded her jurisdiction by ordering medical treatment not reasonably necessary to cure and relieve claimant from the effects of his injury; and

7. Whether claimant provided timely notice of the various injuries identified by the doctor as requiring medical treatment. The Board found that claimant had a compensable accident. However, the medical records did not corroborate claimant’s allegations of post-concussive syndrome, vestibular disorder, bilateral shoulder, and neck and thoracic area pain with signs and symptoms of radiculopathy. Further, the Board held that the accident could have resulted in a concussion, but medical records did not support a finding that claimant sustained a concussion. The Board also found that there was not a diagnosis of vestibular disorder. It held that other diagnoses identified by Dr. Murati did not arise out of claimant’s employment accident. Based upon the entirety of the evidence, the Board reversed Judge Barnes’ orders for medical treatment and TTD insofar as those injuries flowed from Dr. Murati’s diagnoses, which were not supported by the bulk of the medical evidence. The Board concluded that the claimant failed to prove by a preponderance of the evidence that he suffered personal injury involving the diagnoses made by Dr. Murati. „„ New Physical Finding „„ Preexisting Condition In Gilpin v. Lanier Trucking Co. and Sparta Insurance Co., No. 1,059,754,

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22  Journal of the Kansas Association for Justice

claimant injured his back in a work-related accident that occurred on June 16, 2011. Prior to the accident, claimant had a preexisting but asymptomatic condition at L4-5. Dr. Ciccarelli evaluated claimant at which time claimant denied any preexisting back pain or leg issues. Dr. Ciccarelli stated that claimant’s preexisting back condition had become symptomatic following the work injury and that the preexisting back injury was the prevailing factor in requiring treatment for the onset of symptoms. The issue in this case was whether claimant’s injury is compensable because it aggravated, accelerated or exacerbated a preexisting condition, or rendered a preexisting condition symptomatic. The Board found that accidental injuries resulting in a new physical finding or a change in the physical structures of the body are compensable, despite the claimant also having an aggravation of a preexisting condition. Further, the Board found that claimant’s preexisting, yet stable and asymptomatic back condition was not solely rendered symptomatic, but rather the structure of the asymptomatic condition had changed, which resulted in the low back pain and bilateral leg symptoms. „„ Reasonable and Proper Guard „„ Workplace Safety Van Le v. Exacta Aerospace Inc. and Accident Fund National Ins. Co., No. 1,060,178. While working for respondent on March 14, 2012, claimant was injured after he discovered some machine parts he needed were located on the top shelf of a shelving unit, which claimant had to climb to get what he needed. He climbed to get what he needed and the shelving broke. Claimant fell to the ground and was injured. At issue in this case was whether claimant recklessly violated respondent’s safety regulations when he sustained his injury. Claimant argued he did not knowingly violate his employer’s safety rules and that his conduct was not reckless. Claimant testified that a supervisor told him he could climb up to the top of

the shelves and that he did not know of any rules against climbing. Claimant’s supervisor testified claimant had been verbally told that when he needed to get something off a high shelf, he needed to get a forklift driver to get it. Claimant testified that on the day of the accident all forklift drivers were busy and he knew if they were busy he could get the item off the top shelf. The Board held that because the ALJ found claimant’s testimony was credible and persuasive, the Board could give deference to the ALJ’s determination regarding claimant’s honesty and claimant’s behavior in retrieving the item from the top shelf was not a willful failure to use reasonable and proper guard, nor the result of a reckless violation of a workplace safety rule. „„ Going and Coming Rule Gerding v. Dart Cherokee Basin Operating Company and American Zurich Insurance Co., No. 1,041,659. Claimant was killed in a work-related traffic accident. Claimant was employed as an operator, which required him to travel to compressor sites for natural gas sales and to perform maintenance. The issues in this case were: 1. Whether claimant’s death arose out of and in the course of his employment, whether his employment was an exception to the going and coming rule as travel was an intrinsic part of the job. 2. Whether claimant’s blood sample was admissible. 3. Whether claimant was impaired at the time of the accident and, if impaired, whether the presumption of impairment can be overcome by medical evidence that claimant was not impaired. 4. If claimant was impaired at the time of the accident, did the impairment contribute to his death? The Board found that there was ample evidence that travel was an intrinsic part

of claimant’s job, thus the going and coming rule is applicable to the facts of this case. Since post-mortem blood testing revealed a presumption that claimant was impaired at the time of the accident, and claimant raised objections to the drug testing procedure and outcome, including no probable cause, and the testing was not done by an approved laboratory, the requirements of K.S.A. 44-501(d)(3) were not met. Respondent had to meet one or more of the circumstances set out in the statute to establish probable cause, which it could not do. The Board also found that the testing of claimant’s blood was not done as a result of respondent’s drug testing policy, nor in the normal course of medical treatment, since claimant was already dead at the time his blood was tested. p

Decisions of Judge Barnes Roger A. Riedmiller

„„ Post-Award Medical, „„ Hourly Attorney Fee Rate In Creed v. U.S.D. 353, No. 1,053,541, the claimant filed a Post-Award Request for medical treatment and took the deposition of Dr. Fluter. The respondent took the deposition of Dr. Fevurly. ALJ Barnes found that claimant sustained his burden of proof and was entitled to additional medical care per the medical opinion of Dr. Fluter over the opinion of Dr. Fevurly. Furthermore, the claimant requested an hourly attorney rate of pay of $200 per hour for a total of 20.1 hours. However, Judge Barnes awarded a fee based upon reasonable and customary charges in that particular locality for the services of claimant’s attorney at $150 per hour. „„ Post-Award Request: Unrelated Cardiology Work-up Prior to Work-Related Surgery „„ Court Order to Insurance Carrier to Approve Authorized Physicians Prescriptions Jones v. Via Christi Health, Inc., No.

Journal of the Kansas Association for Justice  23

1,008,376. In this interesting case, the claimant filed a post-award request for a stress cardiogram bill of $5,460, which was required to be performed prior to claimant having a surgery that was clearly work accident injury-related. The Judge found that testing is routinely performed prior to many procedures including: MRI tests, CT scans, EMG tests, and X-rays. Such tests will not cure or relieve an employee of the effects of the injury, but are conducted to aid physicians in their diagnosis and treatment of the patient and their injuries, which were brought about as a result of the work accident. Therefore, the Court found that the stress echocardiogram is a medical testing procedure conducted to assist the physician in determining whether the claimant was “cleared” for a surgical operation and, thus, should be authorized. Another interesting aspect of this case is the fact that the claimant complained about the respondent’s insurance carrier delaying claimant’s receipt of pharmaceuticals prescribed by the authorized treating physician. The Court ordered that respondent and its insurance carrier should approve the authorized physician’s prescriptions within a timeframe of three days. It will be interesting to see how that order will be enforced and what type of penalties, if any, will be assessed with failure to comply with this order. „„ Hot Tub Services, Supplies and Electricity Authorization „„ Post-Award Fees of $175 per hour Thorne v. Cedar View Nursing Home, No. 233,404. In this very old workers compensation claim dating back to 1998, the Court found that during the litigation of a post-award request by claimant, the Court had ordered the respondent to provide a hot tub spa for the claimant on Jan. 21, 2010. Then, in the most recent activity for a post-award medical filed on July 9, 2012, and Oct. 23, 2012, claimant was requesting services, supplies and electricity for the hot tub spa, which was provided to them by the respondent. The Court specifically ordered that respondent was re-

quired to guarantee payment to Sandy’s Pools and Spas for hot tub repairs. Furthermore, from proper presentation of proper documentation, respondent was required to reimburse claimant for actual operating cost of the hot tub spa, including the monthly electricity charges for said spa. Lastly, the claimant requested attorney fees in the amount of $175 per hour, which were approved by the Court. p

Decisions of Judge Belden Stephanie J. Wilson

„„ Prevailing Factor „„ Future Medical Bryant v. U.S.D. 223, No. 1,058,558 (Jan. 2013) is a textbook example of prevailing factor in action in a knee case. Claimant is a 57-year-old custodian. He was being treated by a rheumotologist for osteoarthritis of both knees for a few years prior to suffering an injury at work. While throwing a chair into a dumpster at work, claimant injured his left knee. An MRI showed a medial meniscus tear for which he had surgery paid for by the workers compensation carrier. There was no dispute that the prevailing factor for the medical meniscus tear was the result of the workplace accidental injury. The question was whether his preexisting arthritis was compensable as well and whether the knee replacement he would later need was covered by the claim. The ALJ found that only the medial meniscus tear was compensable and that it should be separately distinguished from the preexisting arthritis. The Judge disregarded the testimony of Dr. Zimmerman, claimant’s expert, because [O]n cross examination, Dr. Zimmerman admitted he did not have the treatment records of Dr. Koenig [the rheumatologist who had been treating him prior to the accident for arthritis], did not ask claimant about preexisting knee symptoms and did not have any

record of prior left knee symptoms... Dr. Zimmerman thought the workrelated accident was the prevailing factor in claimant’s injury, impairment and the need for medical treatment... Dr. Zimmerman also stated, however, the impairment rating was based on both the acute meniscus tear and the aggravation for the preexisting condition, and the need for additional treatment was related to the aggravation of the preexisting condition...

The ALJ concluded: In this case, claimant sustained a compensable injury to the left knee consisting of a medial meniscus tear requiring an arthroscopy by Dr. Stechschulte. This diagnosis was confirmed by Dr. Zimmerman, Dr. Shah and Dr. Samuelson. Claimant’s compensable injuries do not include claimant’s preexisting arthritic condition or an aggravation of the preexisting condition. Dr. Koenig, claimant’s personal rheumatologist, confirmed claimant suffered from symptomatic osteoarthritis of the left knee unrelated to the June 23, 2011, accident. Dr. Koenig thought it was possible the work-related accident aggravated the arthritic left knee, but an injury is not compensable if it aggravates a preexisting condition. Dr. Shah and Dr. Samuelson also confirmed claimant's osteoarthritis preexisted the accident. Even Dr. Zimmerman, despite lacking Dr. Koenig's treatment records and an accurate history of claimant’s knee symptomology, stated the accident aggravated claimant’s preexisting degenerative condition. Because an aggravation of a preexisting condition is not compensable, the aggravation of claimant’s preexisting osteoarthritis of the left knee is not compensable. Claimant’s entitlement to permanent partial disability benefits is limited

24  Journal of the Kansas Association for Justice

to the impairment he proves to be related to the medial meniscus tear. Dr. Zimmerman and Dr. Samuelson provided opinions of claimant’s permanent impairment of function based on the AMA Guides. Dr. Zimmerman's rating of 30% of the knee is based on loss of range of motion, atrophy and weakness. Dr. Zimmerman did not have access to claimant’s prior treatment records and was not aware of claimant’s prior left knee symptoms, and Dr. Zimmerman based his rating on both the acute medial meniscus tear and the aggravation of the degenerative condition without apportionment. Although he did not provide a rating, Dr. Shah stated claimant’s presentation and symptoms were consistent with the residual effects of arthritis, not the meniscus tear. Dr. Samuelson, the Court-appointed examining physician and orthopedic surgeon, had a better understanding of claimant’s preexisting condition, and rated the impairment from the compensable meniscus tear at 2% of the knee based on the AMA Guides. Based on Dr. Samuelson’s superior qualifications and understanding of claimant’s medical history, coupled with Dr. Samuelson’s rating being the only rating in the record rating the impairment from the compensable injury, the Court finds the opinions of Dr. Samuelson more credible. The Court finds claimant’s permanent impairment of function from the compensable work-related injury is 2% of the left leg at the 200-week level, and concludes claimant should receive an award of permanent partial disability compensation based on this impairment.

The ALJ further concluded that claimant failed to meet his burden of proving the need for additional medical treatment. „„ Old Law Case „„ Unauthorized Medical

„„ Termination for Cause Fergus v. Almi Management Co., No. 1,049,934 (Feb. 2013), is an old law work disability case. The claimant injured his back while shoveling snow. He was placed on light duty and worked for a few weeks but was “terminated by respondent for refusing to work and for insubordination.” Respondent argued claimant wasn’t eligible for work disability because he was terminated for cause. The ALJ held, This argument must fail because it calls for a nexus between the work-related injury and the wage loss, which is not contained in the plain language of K.S.A. 44-510e(a). See Bergstrom, 289 Kan. at 609-10. Moreover, the Court of Appeals has allowed an award of work disability to stand where the wage loss was caused by termination for cause. See Butler v. Cessna Aircraft Co., Unpublished No. 103,965, 2011 WL 2205238 (Kan. App. June 3, 2011).

Claimant hired Dr. Stuckmeyer as his expert. However, Dr. Stuckmeyer’s first examination, which resulted in an opinion of additional medical and was not used for an impairment rating, was ordered to be reimbursed to the claimant under unauthorized medical up to the statutory limit of $500. „„ Old Law Case „„ Review and Modification „„ Permanent Total Disability Anderson v. Insulite Glass Co., No. 1,049,211 (Feb. 2013), is an old law case that settled on March 3, 2011. At the time of the settlement, claimant had sustained bilateral upper extremity injuries, which were symptomatic. Claimant’s expert, Dr. Poppa, had claimant on work restrictions. After the settlement, claimant resumed authorized treatment, which included cubital tunnel release with nerve transposition surgery to the left elbow. Claimant then underwent an additional left elbow surgery. Due to the additional surgeries, Dr. Poppa opined that claimant was

not capable of full-time employment. Claimant retained Mary Titterington as a vocational expert who also determined claimant was unemployable. No expert opined claimant was capable of working. It appears respondent argued he was unemployable due to other reasons, such as a 24-year history of incarceration, receipt of Social Security retirement benefits, unemployment benefits, and a hospitalization for depression and alcohol abuse. Based on the uncontradicted medical evidence, the claimant was awarded permanent total disability. „„ Old Injury Case „„ Preexisting Impairment Anderson v. Turner Construction, No. 1,057,135 (Feb. 2013), is an old law case with a question of preexisting DJD to a knee. The differing opinions regarding preexisting impairment were between Dr. Stechshulte, the treating doctor, and Dr. Jones, the IME doctor. Dr. Stechschulte couldn’t explain his rating of 6% (of a 15-20% rating, which would include preexisting impairment) under the Guides. Dr. Jones apparently was able to do that. The ALJ sided with Dr. Jones because he was a neutral doctor and because his rating examination was “more detailed” than Dr. Stechschulte’s. p

Decisions of Judge Hursh Steven R. Jarrett

„„ Review and Modification Rueda v. Costco, No. 1,043,377, involved a request for review and modification of an existing Award under fairly complicated facts. The claimant’s award was for functional impairment, entered in 2010 for a low back injury. Claimant had apparently returned to work at a comparable wage. In this action, claimant sought to review and modify the award alleging a reduction in wages that would bring into play work disability. The situation was complicated by the fact that the claimant had suffered a second low back injury while working for the same respondent in 2011. As a result, claimant started receiving TTD

Journal of the Kansas Association for Justice  25

payments in May 2012. Those benefits were still being received at the time of the hearing on review and modification of the prior Award. Claimant argued that she was entitled to work disability under the prior award, despite the ongoing TTD from the second injury citing a Worker’s Compensation Board decision, Ratcliff v. Par Electrical, No. 1,050,846 (2012). In that decision, the Board allowed work disability even though the employee was laid off and receiving TTD as a result of a subsequent injury to a different body part. Respondent argued against this result suggesting that it would amount to a double recovery. Judge Hursh determined that the Ratcliff decision did not apply since it involved injuries to different parts of the body. In this situation, where both injuries were to the low back, the judge determined that the Act does not intend for an employee to receive both TTD benefits and permanent partial benefits at the same time for an injury to the same part of the body. He noted that logic dictates disability to a single part of the body at a given time can be either temporary or permanent, but not both. Judge Hursh modified the prior award to grant work disability for the period of time in which the claimant’s wages had been reduced through the granting of TTD benefits under the subsequent injury. p

Decisions of Judge Moore Scott M. Price

„„ Nature and Extent of Disability Ward v. Allen County Hospital and Ace American Insurance Co., No. 1,053,194. In this case, the claimant was injured when she caught a falling patient while working as an emergency room nurse. The respondent and insurance carrier denied that she was injured or that it was in the course of her employment. However, respondent and insurance carrier offered no evidence to support their position. One of the issues in the case was the extent of claimant’s permanent

functional impairment to the body as a whole. Dr. Prostic testified that she had a 25% impairment to the body as a whole. Dr. Stein, respondent’s doctor, also rated claimant at 25% impairment of function to the body as a whole, but subtracted 15% of that for a preexisting impairment from a 2003 surgical procedure. Judge Moore found that the 10% impairment was the appropriate impairment in this case. Claimant was awarded work disability due to the ratings of Dr. Prostic and Dr. Stein. Dr. Prostic reviewed the Hardin Task List for a task loss of 53%. Dr. Stein reviewed the Steve Benjamin Task List for a task loss of 50%. Judge Moore found that the claimant had suffered a 51.5% task loss. He also found that the respondent could not obtain a reduction for the amount of functional impairment determined to be preexisting. Judge Moore found that the claimant had no permanent partial general disability prior to her work accident so her work disability award should not be reduced by her preexisting functional impairment. p

write English. She came to the United States 14 years ago on a tourist visa and remained in the country. She does not have legal status to be in the in the United States. Legal work is being done to get her children’s status changed so they can stay in the United States legally, but nothing is being done to get her legal status changed. Dr. Fevurly assigned a 5% impairment to the body as a whole. Dr. Prostic, at the request of claimant’s attorney, opined that she had a 10% impairment to the body. He believed that she was unable to complete six out of the 13 tasks for a 46% task loss. In spite of her illegal status, Judge Sanders stated that the Fernandez case, which she noted was presently at the Kansas Supreme Court awaiting a decision, found that if the claimant’s post-injury wage is greater than 10%, then she is entitled to a permanent partial disability award based on her actual wage loss and task loss. Therefore, Judge Sanders awarded the claimant a 100% wage loss and a 34.5% task loss, for a combined 67.25% general disability award.

Decisions of Judge Sanders

„„ Post-Award Medical In Revels v. Goodyear Tire & Rubber Co., No. 1,050,182, Revels sought PostAward Medical Treatment for his right knee. He had originally been injured on June 5, 2010, had arthroscopic surgery on Sept. 10, 2010, and on March 30, 2012, settled his two workers compensation claims involving both his right and left knees. On June 4, 2012, claimant developed some pain and swelling in his right knee while performing his regular job duties. Claimant had a hearing on Aug. 2, 2012, for treatment for the right knee. Judge Sanders reviewed the facts of this case and ordered medical treatment for the claimant with Dr. Peter Lepse. She believed his current symptoms of right knee swelling, aching and sharp pain were related to his initial injury. She also ordered claimant’s counsel to submit an affidavit of time and expenses related to this post-award matter, and gave the respondent 10 days after receipt

Roger D. Fincher

„„ Nature and Extent of Disability „„ Scheduled Injury vs. Whole Body Work Disability „„ Illegal Immigrant Status In Delgadillo v. Kellermeyer Building Services, No. 1,051,898, claimant was employed by respondent doing housekeeping duties at a K-Mart Store. On Aug. 28, 2009, she was waxing the floors with a mop when she hurt her right hip and the right side of her lower back. At the time of the regular hearing, she had pain in her right hip and in her low back on the right side. On Sept. 29, 2011, claimant was terminated from her employment and has not worked since that time. She stated her reason for not working since September 2011 as being that she was suffering from depression. Claimant has a 6th grade level education and is unable to read or

26  Journal of the Kansas Association for Justice

of the affidavit to respond with any objections. „„ Nature of Extent „„ Scheduled Injury vs. Whole Body „„ Existence of Psychological Impairment Groce v. Stonewood Builders, No. 1,056,314 is an old law claim in which the claimant began having symptoms in his hands, elbows, shoulders and neck after he began to work for the respondent. In 2011, the claimant had surgery on both hands, which was performed by Dr. Maguire. The surgeries helped the pain in his hands but he still had pain in his elbows, hands, shoulders and neck. Claimant was ultimately unable to return to work for the respondent and was rated by various physicians. Dr. Rosenthal limited his impairment to his upper extremities, although she acknowledged that she did not get into any other physical complaints to his other body parts. Dr. Koprivica rated the claimant as having 35% impairment to the body as a whole including impairment for his cervical region. Dr. James Jackson, a psychologist, saw claimant and believed that the claimant had a 25% psychological impairment. Dr. Ted Moeller, a clinical psychologist, saw the claimant at the request of the respondent and believed he had no impairment due to psychological injury. He did believe the claimant met the diagnostic criteria for malingering. The ALJ averaged the task loss opinions and found a 65% task loss. She found that the claimant did have a body as a whole injury and adopted Dr. Koprivica’s 35% rating. She found Dr. Moeller’s testimony more credible than the expert hired by the claimant and awarded no psychological disability. Judge Sanders awarded an 80.75% work disability. „„ Nature and Extent of Disability „„ Scheduled Injury vs. Whole Body „„ Work Disability In Turner v. State of Kansas, No. 1,059,833, claimant was injured on Oct. 18, 2010, when she tripped over a tile that was sticking up at work. She fell

onto her left shoulder and she was sent for treatment with Dr. Mead and Dr. Wallace. On May 4, 2011, claimant had surgery on her left shoulder with Dr. Wallace. At the time of the regular hearing, she stated she had pain in her neck, proceeding down into her left arm and into the fingers of the left hand. She stated the neck symptoms began a few days after the accident but had not received any treatment of her neck. The ALJ stated that the first complaint of neck problems was on a note from Dr. Wallace dated Jan. 27, 2012. In that note, Dr. Wallace stated that, according to the claimant, her neck symptoms began in October 2011. At the time of the Regular Hearing, claimant was treating her neck symptoms with a TENS unit and Voltram, which was prescribed to her after she injured her low back on May 12, 2012. Claimant stated that she was unable to sleep due to left shoulder and back pain. Claimant’s last day of work was May 18, 2012, at which time she was receiving Social Security disability benefits. The claimant’s lawyer sent her to Dr. Poppa, who rendered an opinion that she had a left shoulder and neck impairment. Dr. Prostic saw her at the request of the respondent. He believed she had an injury related to her left shoulder and stated in his review of her medical records that she did not report any neck difficulties until approximately 2012, and did not believe the neck was related to the shoulder problems. He rated only her shoulder. After extensive testimony in regards to task loss and wage loss, the ALJ found that the claimant suffered only a scheduled injury and limited her to a 16% impairment to the left shoulder. „„ Nature and Extent of Disability In Wilson v. Glory Days, Inc., No. 1,035,327, claimant was employed with respondent as an assistant manager. On May 31, 2007, claimant slipped on a wet floor and hurt her back. Claimant initially sought treatment on her own with Dr. Rhoades, a chiropractor. She saw him from June 18, 2007 to July 16, 2007.

The claimant obtained treatment by Dr. Sankoorikal through the Workers Compensation Fund from Nov. 23, 2009 to Feb. 21, 2011. He diagnosed her with chronic low back pain and treated her with medications and physical therapy. Claimant last worked for respondent on June 4, 2007. Since that time she has held intermittent employment and has worked various jobs up to Jan. 10, 2012. Ultimately, the claimant was seen by vocational experts for task list analysis and her case was tried in front of the ALJ, who awarded her a 100% wage loss after Jan. 5, 2012. Judge Sanders awarded 100% wage loss and a 38.5% task loss subsequent to that date. Dr. Sankoorikal apparently gave the only opinion on task loss by commenting on the task lists prepared by both Dick Santner and Bud Langston. „„ Nature and Extent of Disability „„ Interest Pursuant to K.S.A. 44-512 b(a) Maldonado v. City of Topeka, No. 1,051,938. On Dec. 10, 2009, claimant was employed with respondent as an equipment operator. He was operating a road grader and while exiting the same, his foot slipped causing him to fall backwards onto the ground landing on his left side. He felt immediate pain and hurt his left hip and back. Claimant initially had injections, and later a laminectomy and discectomy performed by Dr. Michael Smith on April 28, 2010. Claimant did not return to his regular job as an equipment operator but took another job with respondent as a customer care coordinator. At the time of the Regular Hearing, claimant was still having pain down his left side into his leg, and was given permanent work restrictions. Dr. Donald Mead rated the respondent as having a 5% impairment of the body. However, during the deposition, he apparently concluded that he should have rated his permanent impairment at 12% to the body due to his surgery. Dr. Fevurly also saw the claimant at the request of the respondent. He rated the claimant at 14% to the body as a whole. The respondent also sought out Dr.

Journal of the Kansas Association for Justice  27

Phillip Baker to rate the claimant, who advised that the claimant had an 11% rating due to multiple levels involved and a 12% rating of the body utilizing the range of motion model. He combined those two ratings, which resulted in a total rating of 22% to the body as a whole. Dr. Peter Bieri examined the claimant at the request of claimant’s attorney. His rating combined the range of motion model of 8% to the body as a whole with the residuals of a two level decompression, for a 19% impairment to the body as a whole. Judge Sanders found and concluded that the claimant had 20% impairment to the body as a whole. She stated that this is confirmed by Dr. Baker’s report, which found the claimant to have 22% impairment to the body as a whole. Judge Sanders did find that because there were no defenses raised to the compensability of this case and there is no defense raised that the claimant had no permanent impairment, the respondent should have paid permanent partial disability of 5% prior to enter-

ing the award. Therefore, Judge Sanders awarded interest on the 5% amount from the date of the rating of Sept. 29, 2011. „„ Nature and Extent of Disability „„ Whole Body vs. Scheduled Injury Asbury v. Manhattan Home Care, No. 1,050,203. Claimant is employed as a traveling nurse and uses her own car to travel to clients’ homes to provide services. On April 15, 2009, while she was getting gas for her car, she went inside to pay for gas and upon walking back to her car, claimant fell in a pothole causing the her to land on the concrete on her left side, hurting her left knee, left shoulder, left hip and left side of her head. She stated that she compensated a lot of the time by using her right hip. Claimant had a recommendation for surgery on her left shoulder, but declined the same. At the time of the Regular Hearing she had complaints with the left shoulder and right hip, had trouble walking, used a cane and had pain on her right hip all the time. She also had problems

moving her left shoulder and had pain when turning her neck to the left. She began voicing complaints about her right hip on Sept. 16, 2009. Dr. Murati examined the claimant on April 10, 2012 at the request of claimant’s attorney. Dr. Murati rated her as having a whole person impairment. Dr. Bieri saw her on Aug. 28, 2012 at the request of the ALJ. Dr. Bieri found that she had a 19% impairment to the left upper extremity, but did not attribute any other impairments to her work-related injury. The ALJ found that the claimant has had consistent complaints that the painful right hip was due to her favoring her left side. While Judge Sanders found that claimant’s left hip and low back problems did not have any permanent impairment, she did award a 3% impairment for the body as a whole for the right hip condition, stating that both the 18% impairment and 19% impairment to the left shoulder convert to a body as a whole impairment of 11%, giving claimant a total permanent impairment of 14% to the body as a whole. p

INTERESTS: Traveling with my family this summer to Jamaica and the Cayman Islands. HOW I BECAME INTERESTED PLAINTIFF’S PRACTICE: While working at a Kansas City-area plaintiff’s firm, my interest and experience in plaintiff’s practice blossomed. Now, my practice focuses exclusively on personal injury insurance-related litigation. WHAT MOTIVATES ME: Achieving justice for my clients who otherwise may not have been helped. Even more, it's satisfying to hold insurance companies to the standards to which they should be held. WHY I JOINED KSAJ: When moving to both a new firm and a Kansas-focused practice, I knew that KsAJ would educate me on trends in Kansas and better connect me with my colleagues. HOW KSAJ BENEFITS MY PRACTICE: The listserves have helped keep me informed and up-to-date on the law and trends in Kansas. By staying connected and informed, I am better able to assist my clients. KsAJ is a resource where legal research alone is not enough. Any attorney who litigates or is in a small firm would benefit from being in touch with other like-minded practitioners.


Kana Lydick, Lawrence

Sustaining Member Practicing since 2007 Attorney at Stevens & Brand Admitted to Practice in Kansas and Missouri Washburn University School of Law ‘07

28  Journal of the Kansas Association for Justice



Preserving the Independence of Kansas Courts By Emily Wilson

A national organization known as Justice at Stake (JAS) is working to protect fair courts across the country and in Kansas.

Kansas is just one of many states facing attacks on the independence of its state courts. Justice at Stake (JAS), a national organization that focuses exclusively on keeping courts fair and impartial, has been an advocate for merit selection in Kansas and other states. JAS has led a partnership of over 50 justice-related organizations through its commitment, research and public education initiatives that support an independent judiciary in courts across the nation. Since 2000, JAS has achieved victories at the Supreme Court and statehouses through their efforts to “reduce special interest pressure, protect courts and judges from partisan attacks, inform Americans about their rights and the courts, promote diversity on the bench, and strengthen court funding.” Last fall, Debra Erenberg, JAS Director of State Affairs, came to the Midwest to meet with organizations that support Kansas’ merit selection process.

She met with KsAJ representatives Callie Denton, Director of Public Policy, and Jennifer Crow, Government Affairs Consultant. “We talked about the history of merit selection in Kansas and the impending debate over the merit selection process for the appellate courts,” Denton said. As a result of Erenberg’s visit to the Midwest, Justice at Stake became engaged in the fight in Kansas and its ramifications for fair courts issues nationwide. “We were excited about JAS’ interest in the debate in Kansas,” Denton said. Just prior to the start of the 2013 Session, Justice at Stake conducted a poll on Kansans’ knowledge and views of merit selection. The JAS poll found that 61% of Kansas voters oppose amending the state Constitution to change the way in which Kansas Supreme Court justices are selected. Their polling demonstrates that Kansans do not want changes to

Janis McMillen, League of Women Voters, informs the convening about the fight for merit selection in Kansas. Eighteen states were represented at the forum in February.

Journal of the Kansas Association for Justice  29

the merit selection process, nor do they want politics in their courts. In a press release, JAS stated that “By a nearly three-to-one margin, Kansans oppose abandoning their current system and replacing it with a proposed model that would allow the Governor to choose judges without first having candidates screened and recommended by a panel.” The JAS polling was crucial in communicating to policymakers and opinion leaders the views of their constituents. In addition to partnering with the states on fair courts issues, Justice at Stake has been engaged with the Piper Fund, a charitable nonprofit whose mission is to “engage and mobilize a powerful movement to address the problem of special interest influence in our political system.” The Piper Fund has “initiated strategies to build and broaden the field of organizations working on money in politics issues” in the United States. In recent years, the Piper Fund has awarded over $4 million in grants

“to support state level organizations working to reform the way political campaigns are funded, and to national organizations working to grow and diversify the movement for reform.” Together, JAS and Piper hosted the February 2013 “Broadening the Movement: A Fair Courts Convening” session in Washington, D.C. in February. KsAJ and other Kansas supporters of merit selection participated. The convening was an eye opening session and provided a forum to develop an action plan for judicial selection issues in Kansas. At the convening, representatives from 18 states met to discuss the challenges they face in their own states, how to build coalitions of supporters, tips for conducting statewide campaigns, and the use of effective messaging on judicial selection and fair courts issues. “We all left with tools and strategies to utilize in our own statewide campaigns,” Denton noted. KsAJ will continue to collaborate with Justice at Stake and other supporters of merit selection

to protect the current nominating commission process for the Supreme Court. “We are not alone in the fight,” Denton said. For more information about KsAJ’s efforts to preserve the independence of the judiciary, please contact Callie Denton at or 785232-7756. To learn more about Justice at Stake or the Piper Fund, visit www. or piper. p

Callie Denton, KsAJ Director of Public Policy, at the Fair Courts Convening in February.

KsAJ Member Meetings June 14, 2013


Location: KsAJ Headquarters 719 SW Van Buren Topeka, KS

10 a.m.

Public Affairs Committee

10 a.m.

Membership Committee

11 a.m.

Legislative Committee

11 a.m.

Education Committee


Light luncheon


CJ PAC Executive Committee

1:15 p.m.

KsAJ Board of Governors

2:30 p.m.

Legacy of Justice Foundation Board

30  Journal of the Kansas Association for Justice


JUSTICEWorking to Grow KsAJ Membership Committee: By Emily Wilson

It’s been several years of reorganizing, reenergizing and reengaging. Now KsAJ is working to GROW. For over 60 years, the Kansas Association for Justice has served Kansas trial lawyers as the premier plaintiffs specialty bar. KsAJ has educated policymakers on civil justice issues and been a professional and collegial resource. Membership numbers have fluctuated, but one thing remains constant: steadfast and engaged members who seek to preserve the civil justice system and achieve better outcomes for their clients.

In 2013, growing KsAJ’s membership is a top priority. “KsAJ is holding steady with 450 dedicated members from across the state representing a wide range of practice areas,” Mary Kate Haworth, Manager of Member Services, said. “In order to sustain the organization, we must expand our reach.” In April, the Membership Committee held a brainstorming session on how to identify Kansas attorneys who benefit from our programming but who have not yet joined. Now the committee has set out to “divide and conquer.”

KsAJ’s Membership Chair Kathy Kirk, Lawrence, and fellow committee members have developed a plan to reach out to current members in seven regions of the state to help identify solid prospects for membership recruitment. Who do you know who should be on the team? The Membership Committee is beginning to contact KsAJ members in those areas. “We want to visit with members who have been active in both KsAJ and their communities about who should be on the team,” Kirk said. “We need to

Divide and Conquer. Kansas has been divided into seven membership regions in order to more effectively target the best trial lawyers who do not yet belong to KsAJ, but should!

Journal of the Kansas Association for Justice  31

identify non-members in each region and emphasize to them what a great investment KsAJ is.” Prospective members can learn a lot about the value of the organization by visiting with KsAJ members who believe in the work of the association and the issues it supports. Current KsAJ members must educate their colleagues about KsAJ. “People need to know that membership in KsAJ can help them grow and expand their practices, professional circle and law practice skills,” KsAJ Eagle Member Lee Cross, Westwood, said. “Joining KsAJ has increased my network,” he said. “If I have a question, I know there are folks I can call on for help.” In addition to his professional network, Cross stated that KsAJ plays a huge role in his practice and in his community involvement. “It’s been a great professional help to me,” he said. “KsAJ has meant so much to me on so many levels. It was a kick start to me in January [during his campaign for Johnson County Community College Board of Trustees]. When I first went into practice, people took me aside and said ‘you need to do this’ [join KsAJ]. The first firm I worked for belonged to KsAJ, so I became a member. When I went out on my own — in the first month that I opened up — I found the money to join.” Cross is not the only member who got his start at KsAJ through the urging of a senior colleague. Many longtime KsAJ members recount their experiences of being led to KsAJ by a respected Kansas trial lawyer and they haven’t look back. “We are seeking new members to sustain the organization,” Kirk said. “We know the value of membership,” Kirk said. “But non-members may not. We must communicate that to them.” KsAJ members are connected to the largest network of litigators in the state. “One of the reasons to join and become active in KsAJ is so that you know who to go to,” Cross said. “KsAJ makes me feel like I am not a solo practitioner.”

By the Numbers. The percentage of KsAJ members in each of the seven regions.

Call to Action

Now is the time to reach out. We need all members to assist in growing membership in order to sustain the association for future generations of Kansas trial lawyers. Start with those in your firm who are not members. Talk to them about why you joined, the benefits that have impacted your practice, and the value you see in your professional organization. Share the Journal with them and invite them to a CLE, committee meeting, or Meet & Greet to introduce them to attorneys you’ve met through KsAJ. “The number one way to recruit new members is through member-tomember connections, and working through the regional divisions will promote just that,” KsAJ Executive Director Charlotte Krebs said. “Membership recruitment must be ‘job one.’ The more KsAJ members can share their enthusiasm about our public policy advocacy, the quality of our CLE and our Journal — it all drives interest in membership,” Krebs said. “Colleagueto-colleague word-of-mouth is most

important in attracting new members to KsAJ.” Please help the Membership Committee by reaching out to your colleagues and encouraging them to join KsAJ. Then contact KsAJ staff so the Membership Committee can follow up on your lead. With your help we will strengthen and grow your professional association. p

Membership Resources Contact KsAJ for these and other resources to use in recruiting new members to the association: Brochures CLE Information KsAJ Journal Regional Member Lists Talking Points …and More!

32  Journal of the Kansas Association for Justice

Worth Noting

Member Updates  Jeff Carmichael, Wichita, was invited to speak on behalf of KsAJ at the Civil Practice Committee meeting of the Wichita Bar Association. His presentation discussed the association’s mission, reviewed benefits of KsAJ membership and answered questions about the association.  G. Lee Cross, Westwood, was elected to the Johnson County Community College Board of Trustees. His term will begin July 1, 2013.  Christopher Stucky, Kansas City, reported a change of firm: Dunn and Davison, LLC, 1100 Walnut St., Ste. 2900 Kansas City, MO 64106.

We Want to Hear From You! Help KsAJ keep its records updated by sharing your membership changes with staff at:; 719 SW Van Buren, Suite 222, Topeka, KS 66603;

Welcome New Members! Bryce Benedict, Topeka Peter E. Goss, Kansas City Joseph R. Hillebrand, St. Louis Tom McLean, Shawnee



(785) 232-7756 — phone; (785) 232-7730 — fax. p

KsAJ Student Awards Amy Ahrens Earns Raymond Spring Award The Kansas Association for Justice established an award in remembrance of Raymond Spring, ‘59, professor and former dean of the Washburn University School of Law. This award is given to the WU Law Clinic intern who has demonstrated the highest commitment to providing legal services to clients in need. Amy Ahrens is the 2013 recipient. While in clinic, Ahrens represented clients in a variety of domestic and criminal cases. In one case, Ahrens worked long hours on a post-conviction petition that remained pending beyond her clinic semester. She desired to see the case through, so she volunteered her time in the clinic during the holiday break and spring semester in order to fulfill her professional responsibility to her client. Professor Aliza Organick, Ahrens’ supervising attorney, remembers her as “dependable, hardworking and, overall, a terrific student.” Ahrens currently represents clients through her general practice office in Tonganoxie, Kan. p Brianna Harris Awarded Paul E. Wilson Advocacy Award In commemoration of Paul Wilson’s dedication to providing legal services to a population with no voice, the Paul E.

Wilson Advocacy Award is presented to the Paul E. Wilson Defender Project student intern who has demonstrated a sincere commitment to the ideals upon which Paul Wilson founded the Project. The award is given to the KU Law student who demonstrates not only outstanding advocacy for a client’s legal claim, but compassion and respect for the client as an individual. The Recipient of the Paul Wilson Advocacy Award for 2013 is Brianna Harris. As a Project for Innocence student intern during the 2011-2012 academic year, Harris provided exceptional representation for all of her clients, but her work for two of her clients stands out. Harris assisted a federal inmate in resolving detainers, which then made him eligible for additional programming and earlier release. She also wrote a direct appeal for a client accused and convicted of rape. Harris cared deeply, not only for the people she represented, but also that the process afforded to her clients is just and fair, and that all persons involved with the criminal justice system be with treated with dignity and respect. It is precisely these qualities that Paul Wilson strove to impart upon his students. p

KsAJ Speakers Bureau KsAJ’s Speakers Bureau continues to ramp up its programming by visiting with community groups across the state.

Journal of the Kansas Association for Justice  33

Thank you to Lee Cross and Tim Pickell, Westwood, for educating members of the public on the importance of the right to trial by jury and an independent judiciary in Kansas. Cross presented to the Shawnee Mission Rotary on March 20. Pickell presented to the Overland Park Kiwanis on April 25 and the Olathe Rotary on May 1. Coming up, Terry Campbell, Lawrence, will be speaking to the Lawrence Central Rotary on June 12. Thank you all for working to communicate the justice message! p

Online CLE Offering KsAJ is now partnering with TrialSmith to offer live online webinars for both members and non-members. New topics are announced on a monthly basis. The process is simple and easy to use, and the CLE is timely and informative. View the current offerings at https://

For more information on KsAJ’s CLE program, please contact Mary Kate in Member Services at mkhaworth@ or (785) 232-7756. p

Settlements & Verdicts Weatherbee v. Daulton Case No.: No lawsuit filed Jurisdiction/Court: Franklin County District Court Plaintiff's Attorney: Timothy V. Pickell, Westwood, and Gary Jordan, Ottawa Defense Attorney: None — dealt with directly with Farmers Insurance Co. Claims Specialist Settlement Amount: $100,000 (policy limits) Specials: Medical: $78,000 (Reduced to $12,600 per Martinez case) Injury: Cervical sprain with herniated disc, requiring cervical fusion surgery Medical Specialists: Dr. Tausif Rehman, neurosurgeon

Case Description: Plaintiff, age 47 (who was already on Social Security disability for a bad low back) was a front-seat passenger in a Ford Explorer that, while stopped on US 69 Highway to turn left onto a county road, was rear-ended by an Oldsmobile Bravada. While the Martinez decision “reduced” the actual medical expenses to only $12,600, the policy limits were still obtained. p Want to see your cases published in the KsAJ Journal? Tell us about your good results! Submit materials for Settlements & Verdicts by mail or email to: Robin Maxon, c/o KsAJ, 719 SW Van Buren, Suite 222, Topeka, KS 66603, info@ksaj. org. Fax: (785) 232-7730. When submitting settlement or verdict information for a case that is yet to be final, please be careful to keep us advised of additional developments so that we can exercise discretion in a timely fashion as to what should be published. p

34  Journal of the Kansas Association for Justice


2013 KsAJ Awards: JUSTICE Call for Nominations

The Kansas Association for Justice needs your help in identifying exceptional candidates to be considered for KsAJ Awards at our annual meeting Dec. 5-7, 2013. To nominate your favorite “standout” for recognition, all you need do is complete the Awards Checklist and send it along with your Letter of Nomination describing the effort or achievements to be recognized. What have they done? Over what period of time? What was the result or impact of their efforts? The 2013 Awards Committee will consider your nominee for the appropriate honor. If you have a specific award in mind, you can note that. Full information on each award and a list of all prior recipients can be found on the website at In brief, KsAJ’s award system now includes the following honors, which will be awarded only as qualified candidates are presented for recognition: • The Lynn R. Johnson JUSTICE Award — Ongoing criteria for this prestigious award have not yet been finalized. For now, nominations for the Johnson JUSTICE Award can be made only at the discretion of KsAJ's Executive Committee. • The Arthur C. Hodgson Award, which honors an individual member who has been exceptionally active and effective in leadership for the association and/ or the foundation over a significant period of time, likely 10 years or more. The award is named in honor and memory of an early association leader who worked tirelessly in support of his profession and his colleagues. • The Thomas E. Sullivan Award, which honors a KsAJ member in practice 10 years or less who has demonstrated significant promise and commitment as a developing leader for KsAJ while actively working for clients. The award is named in honor and memory of an early association leader who had a passion for mentoring young attorneys.

• The Distinguished Service Award, which honors an individual or organization/entity; members or nonmembers; attorneys or non-attorneys; including media professionals and those in government or government relations; for deeds and service which significantly advance justice, the goals of the legal profession or the mission of the association. • The Humanitarian Award, which recognizes member individuals or firms who show selfless devotion or commitment of time, energies and/or resources to the service or welfare of the community. • The Consumer Champion Award, which recognizes individuals, firms or organizations; members or non-members; attorneys or non-attorneys; making noteworthy contributions to the preservation, enhancement or advancement of the legal rights or interests of Kansans with ramifications beyond an individual case, including pro bono efforts. p

Who would you like to see honored by KsAJ in 2013? Submit your nominations (checklist and letter of nomination) by June 15. If you have questions, feel free to contact Charlotte Krebs at (785) 2327756 or We want to make the process “user friendly” and your comments can help us meet that goal.

Journal of the Kansas Association for Justice  35

2013 KsAJ Award Nominations Checklist *To accompany your Letter of Nomination


Please complete this checklist and forward it with your letter of nomination to Charlotte Krebs, executive director, at This information will ensure that the Awards Committee considers your nominee for the appropriate award(s). Nominating materials are due by June 15 each year for awards being presented at the Annual Meeting in December of that same year or at other times/locations as may be determined as needed. Your Nominee: Nominee’s Street Address: City:





Is your nominee (to the best of your knowledge check all that apply): ☐ an individual ☐ a group of individuals ☐ an entity, organization or law firm ☐ an attorney – OR – ☐ a non-attorney – OR – ☐ a combination of attorneys and non-attorneys IF an attorney: ☐ within first 10 years of practice? ☐ 10+ years in practice

☐ a KsAJ member ☐ a former KsAJ member ☐ a combination of members and non-members In the case of member(s) or former member(s) please check if they have: ☐ served actively on KsAJ committees ☐ served on the Legacy of Justice Foundation Board ☐ served as an officer of KsAJ ☐ served as an officer of the LoJ Foundation Board ☐ served as KsAJ President ☐ Other: ☐ an organization (or an individual associated with an organization) which champions values similar to KsAJ and which may be a KsAJ coalition partner ☐ involved with the media ☐ involved in government or government relations Please list other pertinent information about your nominee(s) which you would like the Awards Committee to know: This checklist should accompany your LETTER OF NOMINATION, which must describe the effort or achievements to be recognized (What have they done? Over what period of time? What was the result or impact of their efforts?) A thoughtful paragraph or two may be sufficient – we will be in touch if there are questions. If you have a specific award in mind please let us know. Thank you! YOUR Name: YOUR Phone:

Your Email:

Date submitted:

Date Received:

36  Journal of the Kansas Association for Justice



News from KsAJ Staff at Fire Station No. 2 Charlotte A. Krebs, MA, CAE

YOU Hold the Future in Your Hands… Wanted: Engaged members of KsAJ invested in strengthening the organization. Must believe in KsAJ's mission and be willing to make a small effort to ensure that it remains strong into the future in order to: • • • •

Champion the cause of justice Ensure effective advocacy for plaintiff’s rights Protect the independence of the judiciary, and Advocate for the right to trial by jury.

WE NEED YOU to recommend one or more bright trial lawyers in your area who should be members of KsAJ. Benefits to new members include: • Discounted dues to begin with so they can test the value of membership • Pride in joining the “largest and best law firm in Kansas” • CLE custom-designed for plaintiff’s attorneys • A focused and practical professional Journal six times a year • An All Member Listserve plus specialty listserves for which they qualify. • The opportunity to network with YOU and other experienced trial attorneys • The satisfaction of belonging to an organization which takes principled stands before the legislature and the public to advance the cause of Justice and protect the rights of Kansans.

Benefits to you include: • Bringing in new colleague(s) • Keeping member dues reasonable by growing our membership population, and • Helping to ensure a strong future for KsAJ and justice in Kansas! WE CAN HELP YOU! Do you have someone special in mind…but don’t know if they are currently a member? Do you want membership “talking points” and brochures to use when you visit with them? Would you like staff to follow through with your candidate after you’ve talked with them? For these and/ or any other reasons, feel free to call KsAJ staff at (785) 232-7756 or email

Thank you!

Welcome to the Revolution April 12-13, 2013 | The Westin-Kansas City at Crown Center

A members-only Reptile CLE with David Ball & Don Keenan Brought to you by the Kansas Association for Justice and the Missouri Association of Trial Attorneys

KsAJ Deposition Seminar THANK YOU to Shamberg, Johnson & Bergman for hosting the 2nd Annual KsAJ Deposition Seminar in Overland Park on April 26!

Kansas Association for Justice 719 SW Van Buren Street, Suite 222 Topeka, KS 66603-3715


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KsAJ Journal May 2013  
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