Page 1

Vol. XXXVII, No. 1

September 2013

Journal of the Kansas Association for Justice

Sentinel Event Alerts — Setting the Stage James R. Howell

A Reflection of the Thomas County Murder Trials (Three-Part Compilation) Larry Caldwell

Pounding The Rules In The Closing Argument Gary D. Fox

KANSAS ASSOCIATION FOR

JUSTICE

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Journal of the Kansas Association for Justice  1

Board of Editors

cHAIR & LEAD COLUMN (outgoing) James R. Howell 7701 E. Kellogg, Ste. 415 Wichita, KS 67207 316-683-9080 Chair & Lead column (incoming) Edward L. Robinson 500 N. Market Wichita, KS 67214 316-262-9393 Consumer law Tai Vokins 142 N. Cherry Street Olathe, KS 66061 913-254-7600 Criminal Law Daniel E. Monnat 200 W. Douglas, Ste. 830 Wichita, KS 67202 316-264-2800 Employment Law Sean McGivern 200 West Douglas, Ste. 1010 Wichita, KS 67202 316-267-1562 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 NEGOTIATIONS, SETTLEMENTS & TRIAL APPROACHES Patrick R. Nichols 5200 W. Bob Billings Pkwy., Ste. 302 Lawrence, KS 66049 785-865-3700 Product Liability Will Wohlford 300 N. Mead, Ste. 200 Wichita, KS 67202-2722 316-262-2671 PROFESSIONAL NEGLIGENCE Daniel B. Giroux 7701 E. Kellogg, Ste. 415 Wichita, KS 67207 316-683-9080 Settlements & Verdicts Robin Maxon 117 Redbud Lane Topeka, KS 66606 785-354-1599 TRIAL TACTICS David Morantz 2600 Grand Blvd., Ste. 550 Kansas City, MO 64105 816-474-0004 WORKERS COMPENSATION REVIEW Joseph Seiwert 2628 S. Oliver, Ste. 104 Wichita, KS 67210 316-686-6113

Vol. XXXVII, No. 1  September 2013

Lead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Sentinel Event Alerts — Setting the Stage By James R. Howell

Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A Reflection of the Thomas County Murder Trials (Three-Part Compilation) By Larry Caldwell

Trial Tactics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Pounding The Rules In The Closing Argument

By Gary D. Fox

Also in this Issue… From the President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Dale E. Bennett

Settlements & Verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Shamberg Project Grants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 2013 Annual Meeting & CLE Seminar Brochure . . . . . . . . . . . . . . . . . 23 Workers Compensation Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Worth Noting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Back at the Station: News from KsAJ Staff at Fire Station No. 2. . . . . 51 Charlotte A. Krebs, MA, CAE

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

© 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: info@ksaj.org..


2  Journal of the Kansas Association for Justice

.,

....,.7 -• •

KsAJ EAglEs, govErnors II & sustAining 21 MEMbErs Sh

.,

....,.7 -• •

KsAJ EAglEs, govErnors II & sustAining 21 MEMbErs Sh

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Journal of the Kansas Association for Justice  3

KANSAS ASSOCIATION FOR

From the President JUSTICE

Dale E. Bennett

As I begin my term as KsAJ President, I look forward to reconnecting with friends and meeting new colleagues! I have been a member of this association since I opened my plaintiffs’ practice in 1989. Prior to that I worked for the opposing side, working on defense of workers comp and personal injury cases. When I was just a young attorney in Kansas City, Kan., one of our KsAJ stalwarts (then KTLA), John E. Shamberg, would visit with me and tell me, “You’re on the wrong side.” He spoke to me about his work as a trial lawyer and how it made a difference in the lives of his clients. He also helped me understand the benefits and importance of joining this association — legislative advocacy, collegiality, networking, practice resources, continuing education, etc. Through his guidance and that of other earlier members, you might say I finally came to my senses. It’s hard to believe that over 20 years have passed since then, and I am thrilled to be starting my term in leadership. The theme of this program year must be membership in order for us to grow and sustain the organization for future generations of Kansas trial lawyers. I like to approach this idea with the thought in mind that we’re all essentially part of the Membership Committee. Each of us must do our part to recruit new members. Mentoring or simply visiting with prospective members as John Shamberg did with me is what will get them hooked.

The most effective and valuable way to do so is through one-on-one, personal communication with prospective members. These may be your colleagues who have not yet joined, law school classmates, the young plaintiffs’ lawyer just starting out, or any practitioner who supports the association’s mission of championing individual and corporate responsibility and accountability, the right to trial by jury, the independence of the judiciary, and high standards of ethics. The 2013-14 program year will focus on initiatives to help increase membership, communicate the justice message to community members, judges and the Legislature, and promote exceptional continuing legal education opportunities. • Continuing in his third year as Education Chair, Matt Birch, Kansas City, and his committee will work to produce highquality, practice-focused seminars while continuing to seek outside educational opportunities of benefit to members, including web-based programs.

• Our new Membership Chair, Lee Cross, Westwood, and his committee members are coordinating Quarterly Phonathons for recruitment. You’ll likely be hearing from him often this year as we seek prospects or assistance with the membership drive. Please share with him the names of your colleagues who would benefit from joining KsAJ. • The Legislative Committee will be chaired once more by Mike Fleming, Overland Park, with the assistance of new cochair David Morantz, Kansas City. Downsizing to a smaller committee, Mike and Dave will be reaching out to members in specific practice areas for bill analysis and recommendations as the 2014 Session begins. • The duty of Public Affairs Chair has been passed to committee member Tim Pickell, Westwood, who will work with his committee and the growing “sub-committee” of members who seek to educate

The theme of this program year must be membership in order for us to grow and sustain the organization for future generations of Kansas trial lawyers.


4  Journal of the Kansas Association for Justice

KsAJ Membership Application Please return application to the Kansas Association for Justice headquarters: 719 SW Van Buren, Suite 222, Topeka, KS 66603. Submit by email to info@ksaj.org or fax at (785) 232.7730.

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Journal of the Kansas Association for Justice  5

Kansans about the importance of a strong civil justice system and an impartial and independent judiciary through KsAJ’s Speakers Bureau.

In addition to these initiatives, there will be some changes happening within the structure of the organization. • Longtime Journal Board of Editors Chair Jim Howell, Wichita, will be passing the reins over to Ed Robinson, Wichita, as the new Chair. Jim has chaired the Journal Board of Editors since September 2005, shaping the publication into a vehicle to educate and inform trial practitioners about recent case law or statutory changes affecting their practices. This issue of the Journal will be Howell’s last issue as Chair, transitioning to Ed for the November issue. Thank you, Jim,

for your nine years of service to KsAJ as Journal Board Chair! • Amicus Curiae Chair Derek Casey, Wichita, recently resigned from his post, which he has held since 2009. The Amicus Curiae Chair evaluates requests for Amicus briefs and, when appropriate, develops such briefs on behalf of KsAJ. Will Wohlford, Wichita, has since volunteered for the role and was appointed Chair of KsAJ’s Amicus Curiae Committeein August. Derek, thank you for your dedication to assembling, directing and facilitating the efforts of this volunteer-driven committee! • Our fearless leader, Charlotte Krebs, will be retiring as Executive Director at the end of September. Charlotte has helped bring new life and clarity to the association

over the last three years. Charlotte, we thank you for your service to KsAJ. The Executive Committee continues to develop the plan for transition in executive leadership, which you can read more about in the Back at the Station column on page 51. As you can see, we have a growing to-do list for this year and your help is necessary to accomplish these tasks. There is great opportunity presented before us and we all must step up to participate in order for KsAJ to continue to thrive. I hope to be a resource to all members this year. I welcome any comments, questions or suggestions for ways to improve the size and diversity of our professional association. Thank you for this opportunity to serve as your 201314 KsAJ President. I look forward to working with you all this year! p

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6  Journal of the Kansas Association for Justice

u lead

Sentinel Event Alerts — Setting the Stage By James R. Howell

Jim Howell is a partner in the law firm of Prochaska, Giroux & Howell, Wichita, Kan. His practice emphasis is in the litigation of cases involving medical malpractice, serious personal injury and wrongful death. He graduated with honors from Wichita State University with a B.A. degree in business and economics and received a J.D. degree from Washburn University School of Law. He is a frequent lecturer and has taught business law at local colleges. He is also a member of the Kansas and American bar associations, and the American Association for Justice. Howell has chaired the KsAJ Board of Editors for nine years and will be retiring as Board of Editors Chair in September 2013.

Introduction

Mary Moore, 38 years young, married and mother of two small children, had walking pneumonia. After work, she went to the Emergency Room at a large tertiary hospital. The ER physician diagnosed her condition and admitted her to the Intensive Care Unit. Due to her severe pneumonia, Mary’s blood oxygen level was critically low. She was placed on a ventilator to help her breathe and increase her blood oxygen level. In order to prevent her from pulling out the tube connecting her to the ventilator, she was given a drug to paralyze her body. She was placed on a bed with a special mattress that inflated and deflated in different areas at different times to force repositioning of her body on the bed, preventing fluids from collecting in her lungs in one position making matters worse. The ventilator tube was routed such that it became pinched in the bed rail. The motion of the mattress caused it to pull away and disconnect from the ventilator. Locked in her body, with no ability to move or yell out, Mary could not breathe — she was suffocating. One minute passed, five minutes passed, 10 minutes passed. Her heart stopped. Mary’s nurse stepped in the room and saw the tube had disconnected. She called a code. They shocked Mary six times. Her pulse returned, but the damage to her brain was irreversible. Mary lapsed into a permanent vegetative state. Ironically, two years earlier, the hospital was warned this could happen. They were told they needed to take action to prevent these events. An instruction sheet came with the warning. Was this preventable?

Background

Formed in 1951, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO; Joint Commission) was created to improve health care by evaluating hospitals and giving them tools to provide the highest quality of safe and effective care. The Joint Commission is the nation’s largest standards-setting and accrediting body in heath care, evaluating and accrediting more than 19,000 health care organizations and programs in the United States. In support of its mission to improve the safety and quality of


Journal of the Kansas Association for Justice  7

health care and maintain accreditation, the Joint Commission requires hospitals to investigate “sentinel events” that occur in their facilities, which lead to serious injury and death of their patients. The Joint Commission defines a “sentinel event” as an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof. “Serious physical injury” includes loss of limb or function. “Or the risk thereof” includes any untoward event for which a recurrence would carry a significant chance of serious adverse consequences to a patient. Sentinel events signal the need for the hospital’s immediate investigation and action. One of the key purposes of such action is for the hospital to understand the factors that contributed to the event (e.g. underlying causes, latent conditions and active failures in the defense systems, or organizational culture) and then take action to reduce the probability of such an event happening in the future. Accredited hospitals are expected to “identify” and “respond” appropriately to all sentinel events occurring in the hospital, or associated with services that the hospital provides or provides for. Appropriate “response” includes conducting a timely, thorough and credible analysis of the “root cause” of the sentinel event; developing an “action plan” to implement improvements to reduce the risk of recurrence (loss of limb, function or death); and monitoring the effectiveness of those improvements. This “root cause” analysis can be simple or complex. The analysis includes review of events from special causes (clinical processes) to common causes (organizational processes and systems). Based on its analysis, the hospital then implements potential improvements to decrease the likelihood of such events in the future. The “action plan” is the end product of the root cause analysis. It identifies the strategies that the hospital intends to implement in order to reduce the risk of similar sentinel events occurring in the future. The plan includes responsibility for implementation, oversight, pilot testing as appropriate, timelines, and strategies for measuring the effectiveness of the actions. Most states do not require hospitals to report sentinel events to the Joint Commission. But the Joint Commission can learn of these sentinel events by other means, such as from a patient, a state agency, a family member, a hospital employee, a surveyor performing on-site survey for continued accreditation, or the media. If not required, hospitals are nonetheless encouraged to report sentinel events for a number of reasons. For example, by self-reporting, the hospital gains access to the Joint Commission staff for consultation when developing the root cause analysis and action plan. So, why is all this important? What about Mary? The importance lies in the fact that the Joint Commission collects and analyzes data from the review of sentinel events, root cause analyses, action plans and follow-up activities contained in the reports. This data and information is then added to the Joint Commission’s Sentinel Event Database. The aggre-

gate data relating to root causes and risk-reduction strategies for sentinel events that occur with significant frequency are tabulated to form the basis for “Sentinel Event Alerts,” a type of error-prevention advice distributed to hospitals. Although many hospitals do not have to report sentinel events, all accredited hospitals must act in response to Sentinel Event Alerts. These may be the smoking gun in your case. Let’s see how they applied in Mary’s case. By January 2002, the Joint Commission had reviewed 23 sentinel event reports involving deaths or illness related to the use of mechanical ventilation with patients. Of the 23 cases, 65 percent involved the malfunction or misuse of an alarm or an inadequate alarm; 52 percent involved tubing disconnect; and 26 percent involved dislodged airway tubing. A small number of reports identified incorrect tubing connections or wrong ventilator settings. Nineteen events resulted in death and four in coma. None of the reports identified ventilator malfunctions. The majority of the cases occurred in hospital intensive care units. After reviewing these reports, on Feb. 26, 2002, the Joint Commission issued Sentinel Event Alert No. 25, “Preventing Ventilator-Related Deaths and Injuries.” The Alert identified the following contributing causes from the root cause analysis: Staffing

Inadequate orientation/training process Insufficient staffing levels

87% 35%

Communication Breakdown Among staff members 70% With patient/family 9% Incomplete Patient Assessment

Room design limits observation of patient Delayed or no response to alarm Monitor change not recognized

30% 22% 13%

Equipment Alarm off or set incorrectly 22% No alarm for certain disconnects 22% Alarm not audible in all areas 22% No testing of alarms 13% Restraint failure 13% Distraction Environmental noise 22% Cultural Hierarchy/intimidation 13%


8  Journal of the Kansas Association for Justice

Under risk reduction strategies, the Alert noted that the Food and Drug Administration and the American Association of Respiratory Care had published guidelines for testing and evaluating ventilators. After quoting the Executive Director, the Alert noted the AARC recommended: 1. Professionals responsible for application, adjustment and monitoring of ventilators, alarm systems and airways possess relevant education and have undergone validated competency;

4. Establish new processes for alarm testing and verification of alarm settings; 5. Establish new or redesigned alarm response procedures; 6. Redesign rooms or units to improve observation of patients and ventilators; and, 7. Improve and expand preventative maintenance on ventilators.

2. Systems be in place to check ventilator and monitoring system performance before and during clinical use;

The Joint Commission then listed its recommendations to help prevent ventilator-related deaths and injuries:

3. All devices and systems be maintained according to manufacturers specifications;

1. Review orientation and training programs for job-specific, ventilator safety-related content and include a competency assessment process;

4. A tracking system be in place to identify, analyze and remedy all ventilator-related incidents that lead to serious injury or death;

2. Review staffing process to ensure effective staffing for ventilator patients at all times;

5. Protocols for the application and discontinuance of mechanical ventilators be in place;

3. Implement regular preventative maintenance and testing on alarm systems;

6. A mechanism be in place to track outcomes of all ventilator accidents; and,

4. Ensure that alarms are sufficiently audible with respect to distances and competing noise within the unit;

7. Organized periodic ventilator-related continuing education be accessible to those professionals responsible for the many components of care directed to ventilator patients.

5. Initiate interdisciplinary team training for staff caring for ventilator patients; and,

Consistent with the AARC recommendations, the Joint Commission identified the following risk-reduction strategies for hospitals using mechanical ventilators: 1. Improve and expand staff orientation and training on ventilators; 2. Upgrade alarms and monitoring systems on ventilators; 3. Institute team training;

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6. Direct observation of ventilator-dependent patients be preferred in order to avoid over dependence on alarms. What are hospitals supposed to do with this information? Implement it. During their on-site survey of accredited hospitals, the Joint Commission surveyors must assess the hospital’s familiarity with the information and ensure the hospitals: 1. Review and consider relevant information from each Sentinel Event Alert for purposes of its services; 2. Consider information in the Alert when designing or redesigning relevant processes; 3. Evaluate its systems in light of information in the Alert; 4. Consider standard-specific concerns; and, 5. Implement relevant suggestions or reasonable alternatives — or provide a reasonable explanation for not implementing relevant changes. But what about Mary? Why didn’t anyone respond when her ventilator disconnected and she lay there, paralyzed and suffocating?


Journal of the Kansas Association for Justice  9

In Mary’s case, a nurse had turned down the alarms on the ventilator. The disconnect alarm and low pulse alarm could not be heard outside her room. The hospital had no policy or protocol finalized to guide the staff on who was allowed to adjust alarms; how to set alarms; how to monitor alarms; the routing of tubing; alarm checks; etc. The hospital had given no training on the subject — during orientation or otherwise. Turning down alarms in that ICU was commonplace. The door to Mary’s room was barely open, so no one could see that the ventilator tube was disconnected. The hospital had given no training on routing ventilator tubing, securing them or periodically checking them. When Mary’s ventilator disconnected, it began buzzing. But there were 26 critically ill patients and four nurses. The charge nurse knew of the staffing, but did not request more staff; she was busy taking care of patients. Every nurse was focused on his or her assigned patients, so there was no time to watch anyone else’s patients. They would have to fend for themselves. That was the way it was in that ICU — an accepted practice. No one was watching the monitors at the nurse’s station: everyone was taking care of patients. Mary’s nurse was taking care of nine other critically ill patients. When the ventilator disconnected, the nurse was changing an IV on another patient. Another nurse walked by Mary’s room and heard a faint alarm. She said it sounded like an IV had run out and was alarming, but was not sure. She was too busy to check, and Mary wasn’t her patient. She saw Mary’s nurse walking down the hallway with an IV bag in hand. She told Mary’s nurse something was alarming in Mary’s room. Mary’s nurse finished starting a new IV on her other patient before going to Mary’s room to see what was going on. So, what happened to Mary? Unfortunately, two years after Sentinel Event Alert No. 25 had been sent to Mary’s hospital, Mary became the subject of a new sentinel event. Too little, too late? The Joint Commission had distributed Alert No. 25 to hospitals to prevent what happened to Mary. No one could disagree. Stacks of the hospital’s documents showed it knew about Alert No. 25. Interdisciplinary meetings had been held. Emails abounded. Policies and protocols had been drafted and redrafted. The problem? The recommendations in Alert No. 25 might just as well have not been written. The hospital dropped the ball after the Joint Commission Surveyor confirmed they were addressing the Alert and left.

Conclusion

All attorneys with hospital negligence cases should visit the JCAHO website at www.jointcommission.org and review the Sentinel Event Alerts that have been issued over the years. You may be surprised by what you find. Just knowing the process will help formulate discovery to see what you might find on a sentinel event that occurred in your client’s case. If there happens to be an Alert that touches on the “sentinel event” in your case, all the better. Imagine how it helped in Mary’s case. p

From al l of us at KsAJ Thank you to

James R. Howell KsAJ Journal Board of Editors Chair September 2005- September 2013

Since September 2005, Jim Howell has devoted his time, talent and energy to his effective service as Chair of the KsAJ Journal Board of Editors. Jim was responsible not only for commissioning articles from each of the 12 department editors, but also for authoring or commissioning a Lead column for each issue of KsAJ's flagship publication. Under his leadership, the Journal has become a well-respected, scholarly Journal among the Kansas bar to educate, inform and warn Kansas trial practitioners about key trends in Kansas law, notable cases, and the impacts of legislation on their clients and practices. On behalf of KsAJ Members, Journal Board of Editors and staff, KsAJ formally expresses its gratitude to Jim Howell for his ongoing commitment and dedication in serving as Chair of the Journal Board of Editors and Lead Columnist from September 2005- September 2013.

Thank You, Jim !


10  Journal of the Kansas Association for Justice

u criminal law

A Reflection of the Thomas County Murder Trials (Three-Part Compilation) By Larry Caldwell

KsAJ Journal Managing Editor's Note: This Journal article features a compilation of three newspaper articles, which originally appeared in The Hutchinson News from May 12-14, 2013. These articles discuss the challenges and struggles of representing some of the state's most notorious criminals. Hutchinson News Editor's note: In December 1984, Daniel Remeta, Lisa Dunn and Mark Walter left Traverse City, Mich., and headed for Florida. In the early months of 1985, the trio worked their way through Texas and Arkansas, leaving behind a wave of criminal activity and at least two people dead and another severely injured. Arriving in Kansas, they picked up hitchhiker Jim Hunter and continued the killing spree. Three of the suspects were arrested a short time later, following a shootout during which Walter was killed. Jerry Fairbanks, the defense attorney for Remeta, and Jake Brooks, who defended Dunn, recently spoke about their experiences during one of the most heinous and publicized murder trials in Kansas history. In Monday's story, Brooks recounted the events leading to the trial, and the events as they unfolded in the courtroom. On Tuesday, Brooks recounted his efforts to defend an accused murderer in a small western Kansas county. And in today's final installment, Fairbanks talks about his experiences working with a man described as "pure evil."

Monday's Article — May 12, 2013 Attorney Reflects on Multistate Shooting Spree, Client's Long Legal Road

It was a murder trial that took top billing in the court of public opinion. The Thomas County trial would be broadcast live — gavel to gavel — across the Kansas landscape, a first for Kansans. Scott City attorney Jake Brooks, tasked with defending Lisa Dunn against a murder charge, would pay trusted friends to tune in with a listening ear so he could call and get their thoughts on the day’s events. Jerry Fairbanks, Goodland, was picked to defend the suspected ringleader of the group, Daniel Remeta, a theatrical client who fashioned himself the “second coming of Charles Manson.” In 1985, the two attorneys found themselves embroiled in one of Kansas’ most infamous murder cases — a case that involved three defendants, one dead assailant, a wounded sheriff’s officer and a string of murder and violence that reached across the country and became known as the I-70 shootings. After the smoke cleared and numerous court appearances later, Remeta was executed in Florida in 1998 for the murders. He was 40 years old. Dunn eventually won an acquittal after years of appeals. Jim Hunter, a hitchhiker the trio picked up on the road before the Kansas killings, also won an appeal and

acquittal — just days before dying of a heart attack. Roughly 28 years after the murders and the subsequent criminal trials, the attorneys who defended some of the state’s most notorious criminals gathered recently and recalled the challenges and struggles of the biggest trial of their careers. Road trip Dunn met Remeta in Traverse City, Mich., in December 1984 and moved in with him a month later. She, Remeta and Dunn’s friend, Mark Walter, would embark on a trip to Florida that same month. It marked the beginning of a two-and-a-half week crime spree that ended in Kansas on Feb. 13, 1985. “Lisa was sharp,” Brooks said of Dunn, but Remeta fooled her. He’d already been in “terrible, terrible trouble” and spent the majority of his life locked up. Dunn had “done really, really well in school, except for the last year or two of high school.” “Obviously Mr. Remeta was the bad guy,” Brooks said. “I think he was proud of being the bad guy.” Brooks suspected Remeta had a plan when they left Florida, a plan his companions were unaware of. The three traveled from Florida through Texas, Arkansas and Oklahoma to Kansas. Remeta convinced the others to take a .357-caliber Magnum pistol, owned by Dunn’s father. And it was Remeta who kept the gun, which he affectionately called “Susie,” in his possession at all times.


Journal of the Kansas Association for Justice  11

“Susie” was used to kill a Florida store clerk and shoot another clerk in Wascom, Texas. The latter clerk lived to tell her story despite being shot five times. In Arkansas, Linda Marvin, who also worked in a convenience store, was shot and killed in the town of Mulberry. Then it was on to Kansas. Larry McFarland, the restaurant manager, was robbed, shot and killed. Thomas County Undersheriff Ben Albright received the dispatch about the Grainfield murder. He stopped a car matching the description and was shot twice, but lived. In an apparent effort to change cars, the suspects stopped at Levant’s Bartlett Elevator and shot and wounded manager Maurice Christie. Two workers, Rick Schroeder and Glenn Moore, were kidnapped in a pickup the trio stole and then shot to death on a dirt road north of the elevator. A short time later, Remeta, Dunn and Hunter would surrender at a farmhouse in southern Rawlins County following a shootout. Walter was shot and died at the scene. The Trial “They searched for people to represent Lisa,” Brooks recalled. “Most of them did their best to find an excuse. I don’t blame them. It would not be good for their practices.” By the time of Dunn’s trial, Brooks had tried four murder cases that, he said, “made me a fairly likely suspect for the job.” Brooks tried to move the trial out of Thomas County, but a change of venue was denied. Brooks then planned to introduce a psychological defense, even though the judge had warned against it. The judge denied a request to fund an expert witness for the defense. At trial, Brooks tried to show Remeta was controlling and Dunn feared for her safety and the safety of her family. Dunn testified Remeta threatened to kill her and talked about daily threats Remeta made. “I tried the case with the idea that she would be found guilty,” Brooks admitted.

And she was, on all counts, and was sentenced to four life terms, two terms of 15 to life, and one term of 5 to 15 years, all to run consecutively. But Brooks had established his grounds for an appeal, which later would be heard in the Kansas Supreme Court. Brooks counted on Ake v. Oklahoma, which notes that an indigent criminal defendant must be provided a fair opportunity to present a defense. And the U.S. Supreme Court has recognized that a defendant’s mental condition is of critical importance. “I became a witness in the second trial,” he said, “to show all the efforts I made.” Jessica Kunes, deputy appellate defender, argued the cause for Dunn, and Perry Murray, former county attorney and special prosecutor, represented the state. The conviction was again upheld. In 1991, the case was heard in the U.S District Court in Topeka, and Dunn was granted a new trial that began in September 1992 in Topeka. After nearly eight years in prison, Dunn was found innocent on all seven counts. According to TruTV’s crime library, Dunn returned home to Traverse City, Mich., and took a job at a center for abused women. However, plagued with emotional problems and substance abuse, she stole $8,000 from her employer and fled to Florida. In 1998, she pleaded guilty to embezzlement and received a year in jail and five years probation.

Tuesday's Article — May 13, 2013 Scott City Lawyer Recalls Challenges of Defending Woman In Crime-Spree Trial

In 1985, Scott City attorney Jake Brooks found himself in the middle of one of Kansas’ most infamous criminal cases — defending a woman charged in a three-state, multiple-murder crime spree. Lisa Dunn, Daniel Remeta and Jim Hunter were accused of killing Kansas residents Glenn Moore and Rick Schroeder execution-style near the small town of Levant — just two of six murders committed during the two-week bloodbath. A fourth suspect, hitchhiker Mark Walter, was shot and killed during a police shootout in Rawlins County, north of Colby. Unlikely Suspect As an experienced lawyer who’d handled several previous murder cases, Brooks found himself appointed to the case. “She was obviously scared to death," said Brooks as he described the first time he met Dunn in a Thomas County cell. She was “in jail...repentant...wishes the heck she had never met Daniel Remeta... wishes the heck she had never seen the state of Kansas or any other states inbetween here and there.” “Really a nice gal when I talked to her,” Brooks said. “I mean, you would have never expected her to even be close to what she was involved in...except for the [prison] uniform she was wearing.


12  Journal of the Kansas Association for Justice

She was very cooperative with me. I never had any concern that she might be violent or mean, nasty...nothing at all. She seemed younger than 18 years of age to me. If I would have met her and not known her circumstances or her age, I would have guessed she was more like 16 and maybe younger. She seemed like a little girl.” Brooks recalled Lisa as a “sharp” girl who had done really well in school, except for the last year or two of high school. But she also had a rebellious streak, which opened the door for Daniel Remeta to enter her life. “I don’t think she had any idea what he was or who he was,” Brooks said. “I think he fooled her.” Brooks believed Remeta had control of the group from the start, with a plan to “do bad things.” Courtroom Decisions All three defendants were charged with two counts of felony murder, two counts of aggravated kidnapping, one count of aggravated robbery, one count of aggravated battery of a law enforcement officer, and one count of aggravated battery. Brooks first tried to get a change of venue. “The community had been badly hurt and then you pick 12 people to stand in judgment of that,” he said. “This is not a community where people live here a year and they’re gone. Those folks were there. They know everybody that was involved — well, except for the defendants, obviously. They knew the witnesses, they knew the victims, they knew the places this occurred like the back of their hand.” The judge, however, thought the people of Thomas County had a right to try the defendants. Another challenge Brooks faced was whether to put Remeta, who’d already pleaded guilty, on the stand in Dunn’s defense, unsure of what he’d say. Eventually he decided to let Remeta testify. Brooks recalled a conversation with Remeta prior to making the decision to put him on the stand. “He was calm, very calm, and would

talk about things that didn’t have anything to do with what we were talking about,” Brooks said. “‘I want to know what you’re going to testify to. ...I want to know what happened out there?’” Remeta responded: “What do you want me to say? I never killed anybody that didn't deserve it.” Adding to the courtroom drama was the way Remeta was shackled. “They had him chained up like you wouldn't believe,” Brooks said. “He had chains on his arms, chains on his legs, he had chains everywhere. The judge was continually concerned he would go berserk in the courtroom, that he would jump over the stand and strangle somebody.” “Danny fashioned himself as though he was the second coming of [Charles] Manson,” Brooks recalled. “He controlled the judge, he controlled the courtroom, he controlled Jake Brooks, he controlled the prosecutors. If you watched what he did, we were all reacting to what Danny was doing. He wanted to be the star of the show.” Uneasy Defense On the stand, Remeta took the blame for everything. Prosecutors countered that Remeta loved Dunn and would do anything to keep her out of trouble. He wasn’t a “stupid man,” Brooks said. “He was a crude man, obviously violent if you put a gun in his hand. ...But he knew damn good and well he wasn’t going to be behind no white picket fence raising children. He knew it was over [with Dunn.]” “Lisa didn’t shoot anybody and she didn’t tell him to shoot anybody,” Brooks said. “Danny shot who he wanted to shoot.” “My defense really had to do with the psychological defense,” Brooks said. “The obvious argument is she had no intent to do anything wrong to anyone or hurt anyone. She was there but did not assist in the crimes that Mr. Remeta committed.” Brooks’ plan was to use the Stockholm defense — a victim who becomes sympathetic with and assists their captor —

or a battered spouse syndrome type of defense, but he knew it would be a tough sell. “Right out of the box I wanted money for an expert witness and Judge (Keith) Willoughby said that wasn’t going to happen.” Brooks recalled. “Which was the mistake I was looking for, if you want to know the truth.” Brooks attempted to show that Dunn was just there, but didn’t have anything to do with the slayings. He needed to show Remeta as controlling, and that his client feared for her safety and the safety of her family. “I think she [Lisa] knew good and well she would not be leaving because if she did she would be the subject of Mr. Remeta’s violence,” Brooks said. “There was no doubt about that.” Dunn testified Remeta threatened to kill her if she left him. She recalled one instance when he held a gun to her head and played Russian roulette. The trial transcripts show that Remeta stated that Dunn would never be able to leave him. Dunn also testified about the daily threats Remeta made, one time asking her if she wanted to “taste that gun barrel again?” The Verdict Brooks recalled that the trial was hard on his client, and the jury. During deliberations, Brooks remembers the jury being out for a long time. He warned Dunn’s parents that she would be found guilty. “I believe the jury was out 12 hours.” Brooks said. Dunn was found guilty on all counts. Though the verdict wasn’t a surprise to Brooks, he knew that the first trial established the groundwork for an appeal. Specifically, Brooks counted on case law — Ake v. Oklahoma — which requires that indigent criminal defendants must be given a fair opportunity to present a defense. Since the U.S. Supreme Court had recognized that a defendant’s mental condition is of importance in a defense, the state is required to provide access to psychiatric assistance in evaluating and preparing a defense.


Journal of the Kansas Association for Justice  13

“I became a witness in the second trial to show all the efforts I made,” Brooks said. Nevertheless, Brooks and his team lost the second trial. “We needed to get in front of a federal court,” he said. In 1991, the case was heard in the U.S. District Court in Topeka and Dunn won the right to a new trial. In September 1992, after nearly eight years in prison, Dunn was found not guilty on all seven counts. Even though he still does some criminal work from his office in Scott City, Brooks admitted that he has turned down two murder cases in the past 10 years. “I will never try another homicide case because the state has adopted capital punishment,” Brooks said. “I’m just not going to do that...worrying about whether someone is going to get sentenced to 25, 30, 40, 50 years is one thing, versus worrying about whether

they’re going to be put to death. I’m just not interested, not interested at all,” he said.

Wednesday's Article — May 14, 2013 Defense Attorney Knew Remeta's 'Evil' Firsthand, Says Client Craved Attention

Goodland attorney Jerry Fairbanks will tell you that Daniel Remeta was “pure evil,” and he still believes that nearly 28 years after representing the killer in one of Kansas’ most infamous murder cases. Remeta was one of three suspects accused in a three-state killing spree that left six people dead and three wounded. The suspects were captured in rural western Kansas after the execution-style killing of two men in Thomas County. A fourth suspect was killed during a shootout with police. Fairbanks’ involvement began with a phone call from Thomas County Judge

A Message of Gratitude to

Richard Ress in February 1985. “The judge appointed me,” Fairbanks recalled. “He said, ‘Jerry, I have one left and I can’t appoint anyone in Thomas County.’” Fairbanks wasn’t sure whether the judge was just asking or insisting, but he found himself tasked with defending Remeta. “I drove to Hays and I met him in the jail,” Fairbanks said. “He pretty much had me convinced that he didn’t do anything. It was all [Jim] Hunter and Lisa Dunn. Not so much Lisa, but the fella that got shot... [Mark] Walter,” he said. “He pretty much had me believing that.” But Fairbanks’ eyes were opened after a meeting with Dunn’s attorney, Jake Brooks, and Hunter’s lawyer, Bobby Lewis, several days after they each talked with their clients. “Your guy is the bad guy,” the attorneys told Fairbanks. Fairbanks’ next meeting with Remeta

Derek Casey Amicus Curiae Chair, 2009-2013

KsAJ's Amicus Curiae Committee has a longstanding history of taking positions on behalf of members and their clients' interests in noteworthy cases over the years. The committee evaluates requests for Amicus briefs, and when appropriate, develops briefs on behalf of KsAJ. The role of Chair requires analytical knowledge and understanding of legal issues, policy priorities and individual editing and preparation of each brief. The function of this committee is one of the most important benefits of membership in KsAJ. The work of this committee is invaluable in every case and demonstrates KsAJ’s increased reach as a voice for its members and their clients. For his volunteer efforts as Chair of the Amicus Curiae Committee from 2009-2013, the members and staff of KsAJ express their sincerest thanks and gratitude to retiring Chair Derek S. Casey.

Thank You, Derek!


14  Journal of the Kansas Association for Justice

was in Colby and took on a slightly different tone. “I sat down and really talked with him, and that was probably the first time he had kind of laughed and said, ‘Well, you know, Lisa really had nothing to do with all this,’” Fairbanks recalled. However, Remeta continued to maintain that Walter, his former roommate, was in the middle of it and Hunter, a hitchhiker they picked up in Kansas, was the bad guy. “His No. 1 thing was to protect Lisa Dunn,” Fairbanks said. “Right, wrong, or indifferent I think he had been horrible to her and I know he had threatened her and her family. I always felt she was as much a victim as anybody else.”

Join a KsAJ Section Listserve! Available listserves include: All Member Auto Litigation Consumer Advocacy Criminal Law Family Law Medical Malpractice New Lawyers Women's Caucus Workers Compensation Contact Mary Kate in Member Services (mkhaworth@ksaj.org) to learn more about these listserve opportunities!

Fairbanks considered all the suspects victims of Remeta in some manner. “I believe Hunter was in the wrong car at the wrong time all along,” Fairbanks said. “I think Hunter figured out what he had gotten into when they killed the man in Grainfield.” Dunn, Walter and Remeta were about 60 miles south of Kansas City, Mo., when they picked up the hitchhiking Hunter and headed to Colorado. Defending Remeta One of Fairbanks’ obstacles was his client’s constant need for attention. “He talked to a lot of people,” Fairbanks said. “I suggested to him many times to never talk to anyone without me being present.” But his client talked to anyone who would listen. “He liked the attention. This was his 15 minutes of fame. He would give investigators just enough to let them know he had committed the crime. But he would never tell them where the bodies were,” Fairbanks said. “He wanted to be the star and give them just enough information to keep them coming back.” Fairbanks recalled Remeta becoming angry when the attorney insisted on being advised before his client spoke to anyone. “I said at some point you are going to make a statement that’s going to cook your goose.” Fairbanks also struggled to control his client in the courtroom. During the preliminary hearing in Thomas County, television cameras recorded the testimony of Undersheriff Ben Albright. “He’s [Albright] testifying that Hunter shot him, and Danny looked at me and said, ‘The dumb SOB doesn’t even know who shot him.’” Remeta ignored Fairbanks’ efforts to silence him. “I shot the dumb SOB and he should be dead, but I ran out of bullets,” Fairbanks recalled him saying. As the testimony continued, Remeta only grew more agitated. “I need to tell him that I shot him,”

Remeta told his attorney. “I shot all of them.” Shortly before the lunch break, Fairbanks recalled, Remeta said he was going to plead guilty because “they don’t have a clue what’s going on.” After lunch, Fairbanks told Brooks, Lewis and the judge what Remeta planned to do. “I need to have some time to talk with him before we start up again and I need the court reporter,” Fairbanks said. For the next two hours, Fairbanks, along with court reporter Marilyn Bailey, explained what would happen if Remeta pleaded guilty. “Arkansas wants you, Michigan wants you, Texas wants you, Florida wants you, and we don’t have the death penalty in Kansas,” he said. “The others do.” “I want to go to Florida, where they have Old Sparky,” Remeta said of that state’s electric chair. “I want to be executed....I want to be electrocuted.” “And I told him that’s exactly what’s going to happen,” Fairbanks said. Remeta returned to the courtroom and pleaded guilty, but that wasn’t the end of it. Remeta said he wanted to settle the Gove County case, where Stuckey’s restaurant manager Larry McFarland was killed, and make a deal with prosecutors. In exchange for a guilty plea in all the shootings, Remeta wanted Dunn released. “Danny, that’s not going to happen,” Fairbanks recalled saying. Fairbanks was appointed to represent Remeta in the Gove County slaying, and Remeta insisted on pleading guilty right away. “So once that happened, my involvement in the case was over,” Fairbanks said. ’Scary as Hell’ “Danny was different than anybody I had ever dealt with,” Fairbanks remembers. “If there ever was a quoteunquote evil person...it was Daniel Remeta. You just understood that. And he wanted you to understand that.” Fairbanks recalled sitting in a Goodland jail cell with Remeta. The


Journal of the Kansas Association for Justice  15

man looked at the attorney and told him something startling. “Jerry, I kinda like you, but if I ever have the chance to get out of here and you’re the only thing standing between me and the exit...you’re dead,” Fairbanks recalled Remeta saying. Fairbanks told Remeta he appreciated his frankness but added that he wouldn’t be sitting in the cell with him again. “The guy was scary....He really was,” Fairbanks said. Yet Fairbanks doesn’t believe Remeta planned to do bad things. He was spontaneous. “I don’t think he ever planned to kill somebody; I think he just did it,” Fairbanks said. “After all the reports and stuff, his troubles started when he was 11 years old. ...He tried to shoot a police officer with a shotgun.” When Remeta was in prison at a young age, he stared a riot, Fairbanks said. He swallowed grounded-up glass on purpose to get sent to the prison infirmary and caused a riot trying to escape.

“It was the nature vs. nurture theory — this one was nature. He was born with some kind of disconnect. I think something happened, something went off in his mind and he would get mad at somebody, and instead of saying I wish you wouldn't do that...he killed them.” Despite Remeta’s earlier claims that he wanted to be executed, the convicted murder later changed his mind — prompting a call to Fairbanks from the Florida attorney general. “That can ruin your day,” Fairbanks said. Remeta, in an effort to avoid execution, claimed ineffective counsel during his trial in Kansas. When the Florida attorney general reviewed Fairbanks’ file on Remeta and the transcripts from the hearings, it was clear Remeta’s claims lacked merit. “You nailed him to the wall,” the attorney general told Fairbanks a few weeks later. “He did this voluntarily, with an understanding of what he was doing.” A Florida district court denied the

appeal and sent the case to federal circuit court, which upheld the district court ruling. “They executed him,” Fairbanks said. “It wasn’t long. Well, it took a couple of years because he kept sending us Christmas cards. My wife didn’t think that was a good thing.” Throughout the ordeal, Fairbanks credits the people of Thomas County for their support. “[They] have just been wonderful to me,” Fairbanks said. “There was no backlash in any way, shape or form.” “Is it something I would want to go through again? Probably not,” Fairbanks said. “It’s just one of those things that happens in life. ...It’s just a horrible part of our history that we would like to forget.” p Articles reprinted with permission. Stories originally published May 12-14, 2013, in The Hutchinson News.

HOW I BEGAN IN PLAINTIFF’S PRACTICE: After graduating from law school, I returned to my hometown, Manhattan, to work alongside my father whose practice was primarily focused on plaintiffs work. I’ve had the opportunity to work in a number of areas of law, including general practice, Criminal Defense, Family Law, Personal Injury and Wrongful Death. WHAT MOTIVATES ME: When you can work your way through all points in a case and at the end of it all feel like you completed good, honest work for an injured person — I haven’t found many better feelings than that. I am inspired to do the absolute best I can to get the best results for my clients. HOW KSAJ BENEFITS MY PRACTICE: The KsAJ CLEs that I’ve attended are some of the best offered in Kansas. I believe they’re extremely helpful to young attorneys like myself. The listserves offer more frequent, instantaneous help and are a neat way for younger attorneys to get to know some of the other members around the state. WHY I JOINED KSAJ: It’s important to have a supportive network of people that do the same thing, which is why membership is an invaluable tool for attorneys of any level. KsAJ members are willing to help out their fellow plaintiffs’ attorneys. OUTSIDE OF MY LAW PRACTICE: I’m an avid but mediocre golfer, a K-State and Mizzou (alma mater) fan in a family full of K-Staters. My wife, who is also a Mizzou grad, is on faculty at K-State.

JOIN KsAJ

Craig Olsen, Manhattan

4th Year | New to Bar Member Practicing since 2009 Attorney at Morrison, Frost, Olsen, Irvine & Schartz, LLP Admitted to Practice in all Kansas courts, including the U.S. District Court of Kansas University of Missouri-Kansas City School of Law ‘09


16  Journal of the Kansas Association for Justice

u Trial Tactics

Pounding The Rules In The Closing Argument By Gary D. Fox

Gary D. Fox is a partner in the Miami law firm of Stewart Tilghman Fox Bianchi & Cain, P.A. He is a member of the Inner Circle of Advocates, International Society of Barristers (Fellow), AAJ (past chair, Professional Negligence section; Board of Trustees of the National College of Advocacy). Fox is a past president of the Florida and Miami chapters of ABOTA, which collectively named him Trial Lawyer of the Year in 2013. He is Board Certified as a civil trial lawyer by both the Florida Bar and the National Board of Trial Advocacy. Fox has been recognized by The Best Lawyers in America and “Super Lawyers” by Law & Politics.

KsAJ Journal Managing Editor's Note: Mr. Fox will be presenting on closing arguments during KsAJ's Annual Meeting & CLE Seminar at Crown Center, Dec. 5-7, 2013. Plan to attend his session to learn more about this topic. For more information on the 2013 Annual Meeting & CLE Seminar at Crown Center, see color brochure on pages 23-30 of this issue of the Journal. A full listing of presenters confirmed as of Aug. 15, 2013, social events and award recipients can be found in the brochure. You may also visit www.ksaj.org/annualmeeting for more information. We hope to see you there! For the liability part of the closing, the rules of good medical practice (a/k/a the rules of safe medical practice; the standards of good medical practice; the standards of safe medical practice) as explained by your expert (and, hopefully, agreed to by the defendant, the defendant’s experts or both) should be kept front and center. The argument must be focused on: (1)

Undisputed facts,

(2) Undisputed principles of law and/or (3) Facts or concepts that may be in conflict but which the jury will likely resolve in your favor.

PRESENTER KsAJ’s 2013 Annual Meeting & CLE Seminar

It should be chock-full of common sense. Close to the beginning of the argument discuss the verdict form and the specific findings the jury must make in order to return a verdict for the patient. If your jurisdiction uses a verdict form that begins with the question, “Was there negligence on the part of the defendant that was a legal cause of injury to the plaintiff?” break the question down into its component parts and

explain that the first issue the jury must address is negligence and the second issue is causation. Each element of the principal instructions must be clearly discussed and applied to the facts of the case so the jury understands why the defendant’s negligence was a legal cause of the injury. The point must be emphasized in closing that the doctor rarely creates the condition that produces injury. More often than not, it is the health care provider’s failure to appropriately treat the condition or injury that gives rise to the case. In cancer cases, for example, the defense is usually premised on the fact that the patient died of cancer and the doctor did not cause the cancer. The jury should understand that at one level the cancer case can be analogized to a situation in which a doctor fails to properly treat a broken leg. While the doctor did not break the leg, he nonetheless has a responsibility to treat it properly. By the same token, while the doctor did not cause the cancer, he is responsible for treating it appropriately. Make sure the jury understands that, if multiple acts of negligence have been advanced, it need not find that each act caused or contributed to the injury. If


Journal of the Kansas Association for Justice  17

the jury finds that only one act caused or contributed to the injury, the patient is entitled to a verdict. Stress the fact that, while doctors and other health care providers are not required to be perfect, they, like the rest of us, are required to act reasonably and use reasonable care in their profession. Remind the jury that no one is contending that the health care provider intentionally injured the patient. Rather, it is like the driver who runs the stop sign. She does not do it intentionally, but does it through carelessness and when one is injured as a result, the law requires the driver to pay. If, for example, the doctor caused an identical injury to the plaintiff by running a stop sign, no one would question her legal obligation to provide fair compensation. The fact that her carelessness occurred in the operating room, rather than on a public street, does not change the underlying principles involved. Counsel must be prepared to address, directly or indirectly, the following typical arguments raised by the defense: (a)

It did not make any difference,

(b)

The doctor did his or her best,

(c) It is just a difference of opinion between experts, not malpractice, (d)

The use of statistics,

(e) The recognized complication defense, (f) It was an “emergency,” the doctor performed admirably and the plaintiff should be thankful that he was not more seriously injured, (g)

Admitted liability defenses,

(h)

The “greed” defense, and

(i) The preexisting medical condition defense.

If medical literature was used to impeach the defendants or their experts,

it should be discussed in argument and used to rebut the defense contention that the case simply boils down to a difference of opinion between the plaintiff and defense experts. Discuss how the defendants responded to the plaintiff’s condition. Were they remorseful about the result? Did they learn anything as a result of their experience with this patient? Would they do the same thing all over again? Were any changes made in their policies, procedures or practices as a result of their experience with this patient? Emphasize how little effort was required on the part of the defendant to have done the right thing and how easy it would have been to avoid the injury. List on a chart all of the opportunities the various defendants had to do the right thing. List separately all of the different things that the defendants failed to do. In cases involving the failure to utilize tests, stress the fact that medical science developed the tests for the particular situation involved. Explain that the defense’s attempt to justify its failure to diagnose and treat are nothing more than lame “excuses” and that there is no legitimate excuse for the health care provider’s failure to take responsibility for its actions. Capitalize on the concepts and principles the jurors understood and accepted before they walked into the courtroom. One example is that while doctors don’t have to be perfect, they should be expected to try their hardest and do their best. Drive home the concept that the standard of care is designed to prevent the very injuries that the patient suffered. Identify and address the issues in your case that the jury will have the most difficulty accepting. Structure the closing so that the liability, causation and damages issues are crystal clear. Clarity translates to credibility. Be the guide the jury can rely upon to explain and clarify its tasks. Hammer home the danger to the community of the jury giving its seal of approval to the negligent conduct of the defendant. Remind the jury that conduct

that gets rewarded gets repeated. Most importantly, structure the argument to make it easy for the jury to decide the case in favor of the patient. p

2013-14 KsAJ Member Meetings Fall Meetings Friday, September 13, 2013 KsAJ Headquarters in Topeka Winter Meetings & Annual Meeting Thursday, December 5, 2013 (elections) The Westin Crown Center in Kansas City Spring Meetings Friday, March 7, 2014 Location TBA Summer Meetings Friday, June 6, 2014 (installation of officers) KsAJ Headquarters in Topeka


18  Journal of the Kansas Association for Justice

KANSAS ASSOCIATION FOR

JUSTICE Settlements & Verdicts By Robin Maxon

Plaintiff v. Emergency Physician, Pediatrician and Hospital Settlement: $4 million Plaintiff’s Attorney: Bradley J. Prochaska, Wichita Case Description The plaintiff, a 4-month-old boy, presented to the ER. His CBC showed a very elevated band count suggesting a severe, ongoing bacterial infection. The ER physician discussed the child’s evaluation over the phone with the child’s pediatrician. The pediatrician asked the ER physician if he thought the patient had meningitis. The ER doctor stated that he did not think the boy looked that ill. The boy was admitted to the hospital for dehydration and an ear infection. Approximately 10 hours into his hospital admission, the child was seen by the pediatrician, who immediately recognized that the boy now had meningitis with resultant brain damage. The child’s conditioned worsened while under the care of two nurses. In his medical chart, no nurse notes were recorded from either of the two nurses. However, one nurse did testify that the notes she wrote were now missing from the chart. Plaintiff suspected there was understaffing of nurses and requested the nurse staffing records, where it was learned that the staffing records were missing. In this case, the plaintiff claimed that the two physicians should have suspected a severe bacterial infection and given an antibiotic. Plaintiff claimed that

the two nurses failed to check on their patient, failed to notice that the plaintiff’s conditioned was deteriorating, and failed to notify the physician of plaintiff’s worsening condition. In addition, plaintiff also claimed that the pediatric unit was understaffed. p Davidson v. Gooden et al. (Tort claim) & Am. Fam. Ins. Co. (UIM claim) Case No.: No lawsuit filed Jurisdiction/Court: Jackson County Circuit Court, Kansas City, Mo. Plaintiff’s Attorney: Timothy V. Pickell, Westwood Defense Attorney: None — dealt directly with claims specialist for Farmers’ Ins. Co. (liability claim), and later, Am. Fam. Ins. Co. (UIM claim) Settlement Amount: $200,000 (combined policy limits) — initial $100,000 from Farmers’ (liability carrier) and later $100,000 from American Family (UIM) Specials: $145,000 (medical; reduced to $52,000 paid by Medicare) Case Description Plaintiff sustained a head injury including two skull fractures with serious concussion; fracture of the big toe on left foot; soft tissue injuries to both knees; and abrasions and burns on feet. Claimant did have significant preexisiting degenerative disc and joint disease issues. Medical specialists for the case included triage and staff doctors at Overland Park Regional Medical Center, and

therapists and doctors at the Mid-American Rehabilitation Hospital. Plaintiff, age 80, suffered the described injuries during the early morning hours of Oct. 22, 2012. At that time, a Dodge Caravan, occupied by several drunk persons and driven by a significantly drunk individual, left a residential street; careened through the yard of a home; side-swiped a tree; briefly returned to and crossed the same residential street; careened over the curb into plaintiff’s yard and driveway; smashed into plaintiff’s parked card; and finally, crashed into the southeast corner of plaintiff’s home and garage, impacting a number of full oxygen tanks. The Caravan caught on fire, at which point the oxygen tanks ignited, causing a large explosion that threw the plaintiff into the air, making a hard landing onto the floor inside his kitchen, seriously injuring him. Obtaining the initial $100,000 policy limits from Farmers, the liability carrier, was not difficult. However, American Family initially denied UIM coverage under its policy with plaintiff, which provided an offset (a dollar-fordollar credit) for any liability monies previously collected. p Simmons v. Blue Water Construction, Inc. Forum: U.S. District Court, Wichita, Kan. Plaintiff’s Attorneys: Craig Shultz, Wichita, and Patrick Turner, Wichita Verdict: $340,254.67


Journal of the Kansas Association for Justice  19

Claim Type: Auto Accident, soft tissue injury Case Description Plaintiff was a passenger in a car which was struck from behind by a vehicle owned by the defendant, Blue Water Construction Company, and driven by one of its employees. As a result of the collision, plaintiff, an independent Certified Registered Nurse Anesthetist, sustained a neck injury impacting certain nerves serving her right shoulder and arm. This injury at times impacted the plaintiff’s ability to work due to pain,

muscle spasms, and weakness in her right arm that would present without notice. Medical examinations revealed no fractures. Plaintiff’s medical bills totaled just under $15,000, and liability was not contested. At trial, plaintiff’s treating neurologist testified that her injury was clearly the result of the accident and was a permanent injury for which she will have to deal with for the rest of her life. Evidence was also presented for income loss to date along with future income loss. The jury returned a verdict for $340,254.67, awarding plaintiff in full

her medical expenses, along with her economic loss to date of $55,621. Although the jury was not convinced plaintiff would incur any future economic loss and awarded no money, they were convinced that plaintiff’s injury was permanent and caused her daily pain, awarding her $125,000 in non-economic loss to date along with an additional $145,000 for future economic loss. The court ultimately reduced the judgment by $20,000 due to the statutory cap on non-economic damages pursuant to K.S.A. 60-19a02. p

Want to see your cases published in the KsAJ Journal? Tell us about your good results!

Submit materials for Settlements & Verdicts to Robin Maxon, c/o KsAJ, 719 SW Van Buren, Ste. 222, Topeka, KS 66603, info@ksaj.org. Fax: (785) 232-7730. Please keep us advised of additional developments regarding cases yet to be finalized so that staff may exercise discretion as to what should be published.


20  Journal of the Kansas Association for Justice

The Legacy of Justice Foundation is grateful to its

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Journal of the Kansas Association for Justice  21

KANSAS ASSOCIATION FOR

JUSTICE Shamberg Project Grants The Legacy of Justice Foundation Board announced the 2013 recipients of its Shamberg Project Grants in July 2013. Each issue of the KsAJ Journal will highlight a current grant recipient and the projects for which the Shamberg Grant is assisting. The purpose of Shamberg Project Grant program is to further the mission of the Legacy of Justice Foundation by supporting projects of non-profit organizations which: contribute to preserving and enhancing the civil justice system or advocacy for the criminal defense bar; protect and promote the independence of the judiciary; promote education and other activities to continually raise the standard of client representation by the plaintiff’s bar; enhance understanding of the civil justice system, the 7th amendment to the U.S. Constitution, and/or the rights of Kansans; provide scholarships to worthy students at law schools in Kansas; build community supports and services for vulnerable populations to help insulate them against the possibility of catastrophic injury or loss due to the actions of others; and/or such other purposes as may from time to time be approved by the LoJ Foundation Board of Directors. For a full listing of the 2013 recipients and an archive of past recipients, please visit www.legacyofjustice.org and choose the link to Shamberg Project Grants.

LEGACY OF JUSTICE ~J3"o"'t</a'w1.

The Legacy of Justice Foundation Board announced the recipients of its 2013 Shamberg Project Grants in July. The Kansas Coalition Against Sexual & Domestic Violence (shown above) was named as one of the 2013 recipients. Photo courtesy of the Kansas Coalition Against Sexual & Domestic Violence. In July, Legacy of Justice Foundation named the Kansas Coalition Against Sexual & Domestic Violence (KCSDV) a recipient of its 2013 Shamberg Project Grants for the purpose of revising and updating its resource materials for sexual assault survivors in Kansas. With support from the Legacy of Justice Foundation, the KCSDV “Know Your Rights” publication is being updated for victims of sexual assault and those assisting them. Prior to this booklet, there was no publication in Kansas that explained legal rights to sexual assault victims. The booklet is an essential tool for helping survivors and professionals assisting them in understanding their legal rights. The Purpose of the KCSDV is the prevention and elimination of sexual and domestic violence through a statewide network of programs

providing support and safety for all victims of sexual and domestic violence and stalking, with primary focus on women and their children; direct services; public awareness and education; advocacy for victims; comprehensive prevention; and, social change efforts. The Shamberg Project Grant funds will assist sexual assault survivors with knowledge and understanding of their rights under Kansas law, allowing for informed decisions on the proceedings in the aftermath of an assault. p

<tKansas Coalition against sexual &

domestic violence


22â&#x20AC;&#x192; Journal of the Kansas Association for Justice

K ansas Association for Justice 2013 Award Recipeints Arthur C. Hodgson Award

Recognizes consistent, exemplary and sustained participation in leadership for the association and/or the foundation.

Stephen G. Dickerson, Overland Park Thomas E. Sullivan Award

Recognizes significant promise and commitment as a developing leader for the association and/or foundation.

David R. Mor antz, K ansas City Distinguished Service Award

Recognizes deeds and service which significantly advance justice, the goals of the legal profession or the mission of the association.

F. James (Jim) Robinson jr., Wichita Humanitarian Award

Recognizes selfless devotion or commitment of time, energies and/or resources to the service or welfare of the community.

The law firm of Bartimus, Frickleton, Robertson & Gorny, PC, Leawood 2013 Awards Committee

Dale Bennett, Chair; Jeff Carmichael, Kathy Kirk and Pat Neustrom

SAVE THE DATE: KsAJ Awards presentation

Recognition in honor of the 2013 Award Recipients and their accomplishments will be held at the Fabulous Friday Feast during the Annual Meeting & CLE Seminar at Crown Center. Friday, December 6, 2013 6-10 p.m. Faultless Event Space | Kansas City's Premier Event Venue 1009 West 8th Street, Kansas City, MO 64101 Ticketed Event: $125 per person/$225 per couple RSVP online at www.ksaj.org/annualmeeting.


Journal of the Kansas Association for Justice  31

KANSAS ASSOCIATION FOR

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 William G. Belden: Stephanie J. Wilson 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

Appellate Court Decisions Joseph Seiwert

Only unpublished cases from the Court of Appeals are new since the last review. In Sterpenig v. State of Kansas, No. 108,884 (May 24, 2013), the Court addressed the $50,000 maximum compensation benefits payable based on the limit contained in K.S.A. 44510f(a)(4), the so-called “Fletcher Bell amendment.” In Lemmons v. Ryder Integrated Logistics Inc., No. 108,583 (June 7, 2013), the Court addressed a post-award payment of medical bills. Perkins v. Prestige Cabinets, No. 107,233 (Feb. 15, 2013), addressed the credit for preexisting impairment under K.S.A. 44-501(c). „„ Statutory Caps on Award This is a cautionary tale. In Sterpenig v. State of Kansas, No. 108,884 (May 24, 2013), claimant’s case was litigated to an award. Claimant had suffered two scheduled knee injuries, with the right knee worth about $71,000 and the left knee worth $78,000. The date of accident was in August 2007. So far, so good, and obviously better than either permanent total disability of $125,000 or a $100,000 work disability. Claimant had surgery to each knee. Between them, she was off of work for a total of 12.71 weeks in which she received temporary total disability. From the decision, it is not clear how the parties handled these 12.71 weeks,

but the decision attributes the payment of temporary total disability to the left knee. Claimant also apparently conceded that the record did not show that any temporary total disability was paid on the right knee. Respondent appealed, asserting the $50,000 functional impairment cap of K.S.A. 44-510f(a)(3) applied to each of the scheduled injuries. The Court rejected this argument to the left knee, citing Roberts v. Midwest Mineral, Inc., 41 Kan. App. 2d 603, 204 P.3d 1177 (2009), rev. denied 290 Kan. 1095 (2010). In Roberts, claimant had suffered a scheduled injury but had also been paid temporary total disability while recovering from his injury. If claimant receives both permanent partial disability and temporary total disability, the $50,000 functional impairment cap does not apply. Respondent contended that Roberts was wrongly decided, and the caps should apply to both cases regardless of the payment of temporary total disability. This was rejected by the Court. As to the right knee, however, the Court found that the $50,000 functional impairment cap applied because there had been no temporary total disability paid on that case, or at least the record did not demonstrate payment of temporary total disability in that case. Roberts had held that the functional impairment cap applied only when the award is limited to permanent partial disability. If there is any temporary total disability paid, then the cap does not apply. The Roberts Court had concluded that:


32  Journal of the Kansas Association for Justice

K.S.A. 44-510f(a)(4) is limited to those few cases in which a claimant does not suffer an injury that causes the claimant to lose at least a week’s time from work, but rather causes a “functional impairment only.” If there is an injury which prevents the claimant from working for at least a week, then the claimant is also entitled to [temporary total disability] payments under K.S.A. 44-510c(b)(1), in which case the $100,000 compensation cap in K.S.A. 44-510f(a)(3) applies. Roberts at 611. (Emphasis added)

Roberts limits the $50,000 cap to those cases where only a functional impairment is awarded and no temporary total disability is awarded. Apparently, the award of medical benefits in addition to permanent partial disability does not invoke this exception, though the Court does not address that point. A petition for review remains pending. The better practice, with the advantage of hindsight, is if there are cases with two scheduled injuries, then temporary total disability should be apportioned to both cases to avoid the cap. Few scheduled injury cases result with functional impairments severe enough to exceed the cap, but nevertheless this simple step will avoid the problem. „„ Post-Award Medical Bills In Lemmons v. Ryder Integrated Logistics Inc., No. 108,583 (June 7, 2013), the Court addressed a post-award motion for payment of medical bills that had been incurred before the entry of the award. Claimant and counsel were unaware of the bill at the time of the award and therefore did not present that bill for payment. Permanent total disability had been awarded in October 2009. In December 2010, claimant became aware of an unpaid emergency room medical bill from May 2008 and sought payment. Respondent objected on three bases: the bill was incurred before the award and had not been presented at

regular hearing; the treatment was unauthorized; and the treatment had been provided more than six months before the post-award motion, and K.S.A. 44-510k limited post-award medical benefits to six months before the filing of the motion. The Court found that the six month limit applied and denied payment of the emergency room bill. The cautionary take-away may be to inquire as to outstanding bills before the regular hearing. Usually one can count on one’s client to bring any bills to one’s attention, but obviously that is not a given. In settlement hearings this is not usually an issue as the settlement typically includes a provision that all authorized and related medical expenses will be paid, which may avoid this problem, or at least provide a basis for avoiding the six-month limitation. Arguably, instead of filing a post-award motion for payment of the bill, the preliminary hearing procedure could be used to avoid the six-month limit. In Siler v. Shawnee Mission School District, U.S.D. 512, 45 Kan. App. 2d 586, 251 P.3d 92 (2011), the Court endorsed use of the preliminary hearing statute for seeking post-award medical treatment. The preliminary hearing statute offers several advantages over proceeding under the post-award medical application statute, K.S.A. 44510k. The primary advantage would be to allow medical evidence in the form of a medical report rather than requiring the deposition of a medical provider. This would significantly reduce the costs of trying to obtain future medical treatment over the requirement of K.S.A. 44-510k that post-award medical hearings comply with the statute concerning regular hearing procedures, K.S.A. 44-523. Not only does this latter statute require medical testimony rather than hearsay reports, but it also requires setting terminal dates for the submission of evidence, which frequently delays getting medical treatment for claimants and makes for an unwieldy, delayed

resolution of a problem that often requires immediate solution. It is not clear that using the preliminary hearing procedure would allow for the award of attorney fees, as specifically allowed by K.S.A. 44-510k. K.S.A. 44-536 may still allow for an award of attorney fees since nothing in that statute limits its application to K.S.A. 44-523a or K.S.A. 44-510k. This latter statute specifically references attorney fees under K.S.A. 44-536, whereas the preliminary hearing statute does not. Arguably, attorney fees are available under either the preliminary hearing or post-award medical statutes. Curiously, this decision fails to mention K.S.A. 44-510k at all, and states that K.S.A. 44-534a is the only statute that allows for post-award medical treatment. The failure to even mention K.S.A. 44-510k is at best, puzzling. More puzzling is the endorsement of K.S.A. 44-534a as the sole method of seeking post-award medical treatment, when clearly K.S.A. 44-510k allows for postaward medical treatment. No petition for review was filed. „„ Credit for Preexisting Functional Impairment Perkins v. Prestige Cabinets, No. 107,233 (Feb. 15, 2013), addressed the credit for preexisting impairment under K.S.A. 44-501(c). In Perkins, claimant was awarded permanent total disability by the Board for bilateral carpal tunnel syndrome. She had a 45% preexisting functional impairment rating for a head injury from an auto collision several years prior to her work injury. The Board found that the combination of her preexisting cognitive impairment with the limits imposed by her carpal tunnel syndrome rendered her permanently and totally disabled. Respondent sought a credit for the preexisting head injury. However, the Court noted that the Workers Compensation Act does not prescribe any particular standard of health. K.S.A. 44-501(c) only allows a credit if there is an aggravation of a preexisting condition. Since this case did not involve the aggravation of


Journal of the Kansas Association for Justice  33

claimant’s preexisting head injury, there was no credit. Somewhat ominously, however, in dicta the Court noted that “an argument may be made” that under the 2011 amendment to K.S.A. 44-501, an award may be reduced for a preexisting, but unrelated injury. Since this case did not involve the 2011 amendment, the Court did not reach this issue. A petition for review remains pending. „„ Petitions for Review Hernandez v. State of Kansas and State Self-Insurance Fund, No. 107,745 (Oct. 12, 2012), addresses the procedure for obtaining an award of attorney fees on post-award motions that come before the appellate courts. A petition for review is pending. Messner v. Continental Plastics Containers, No. 107,035 (March 29, 2013), addressing work disability after the functional impairment has already paid out, is still pending a petition for review. Williams v. Petromark Drilling, L.L.C., No. 108,125 (June 7, 2013), addressing the “going and coming rule,” is also pending a petition for review. p

Appeals Board Decisions Kathleen J. Cossairt

„„ Board’s Findings Are Not Res Judicata/Law of the Case Ferrer v. Wal-Mart Stores, Inc., and Illinois National Insurance Company, No.  1,051,046. The history of this Board decision is as follows: In a prior award dated Nov. 7, 2011, Judge Clark found claimant’s date of injury to be in 2003 and that she failed to prove she suffered any permanent aggravation for an injury date of June 8, 2010. No benefits were awarded. Claimant appealed. On March 19, 2012, the Board ruled that claimant suffered personal injury by a series of accidents while employed with respondent through 2009. The Board reversed Judge

Clark’s award and remanded the matter. On remand, Judge Clark concluded in his Feb. 11, 2013 award that claimant’s legal date of accident for a series of accidents was June 8, 2010. Judge Clark awarded claimant a 96.85% work disability by averaging a 93.75% task loss and a 100% wage loss. Respondent appealed. (Footnotes omitted)

Claimant estimated that she fell off a ladder onto her back on or about April 5, 2003. She had a spinal contusion and may have had some permanent restrictions of not lifting anything heavy. She returned to work and had problems off and on, and her back gradually got worse. She was never pain free after that fall. There were no other specific back injuries at work. However, she did continue heavy lifting at work and would complain about back pain. Then, in March 2009, the pain was so bad she could not get out of bed. She made an appointment on her own with Dr. Do for Feb. 24, 2009. Claimant testified that he thought her problems might be work related. Claimant was referred to Dr. Whitaker, who scheduled surgery for April 8, 2010. Claimant requested a leave of absence and marked “Own Serious Health Condition” instead of “Workers Compensation” as the reason. Her last day worked was April 6, 2010. On June 7, 2010, claimant filed her Application for Hearing alleging that she fell off a ladder and injured her back on March 29, 2010. On June 23, 2010, she filed an Amended Application alleging an April 8, 2003, accident and a series of accidents with a statutory date of accident of June 8, 2010. At the first hearing: Dr. Murati testified that claimant’s back injury, within reasonable medical probability, was a direct result of her repetitive work activities for respondent. He found claimant to be at maximum medical

improvement and assigned temporary light duty restrictions. … Dr. Do testified that repetitive activities will cause pain and anything you do in life can cause a temporary aggravation of the type of injury claimant suffered in 2003. Dr. Do agreed that it would not be inconceivable that claimant’s work activities of lifting “crates” of oil, tires and televisions on a regular basis could cause a permanent aggravation, but he could not say with any medical certainty or probability that such activities caused a permanent aggravation. He acknowledged that claimant did not require surgery until after 2009. Dr. Do agreed that claimant’s lack of medical treatment from 2003 until early-2009 would tend to support her claim for a series of repetitive injuries. After Judge Clark initially denied compensability, the Board reversed and remanded the case, finding that claimant suffered personal injury by a series of accidents with respondent through 2009. Thereafter, in a Sept. 5, 2012 conference, respondent requested that Judge Clark allow it to take two additional depositions. Judge Clark issued a Sept. 6, 2012 order extending respondent’s terminal date to Nov. 5, 2012.

The two additional depositions were of Dr. Do and Kathy Ankrom, respondent’s personnel director. Dr. Do stated in part: As a general statement, say you have a fairly significant back injury falling off the ladder, say it’s always continued to hurt and anatomically changed and never been better. You could have activities that could temporarily aggravate it. You could have it lying in bed, waking up, you could have those activities working at Wal-Mart, you could have those activities cleaning your kitchen or walking around the mall. So there are a lot of different activities that


34  Journal of the Kansas Association for Justice

would probably aggravate it. And as a general statement I would say temporarily aggravate it. You can have subsequent injuries that could change the anatomy, for instance, if you were involved in a pretty big car accident or have something fairly significant, it could permanently aggravate it. Waking up in bed in 2009 probably wouldn’t cause a permanent aggravation. So that’s how I would interpret temporary versus permanent.

The majority (three of five) of Board

Members (John Carpinelli, Gary Terrill and Gary Korte) found in this June 2013 decision that: 1. Judge Clark Properly Allowed Respondent’s Additional Evidence. Claimant argues Judge Clark erred by allowing respondent to obtain additional evidence after the Board remanded this matter to him for further proceedings. Under K.S.A. 2009 Supp. 44-523(b), an administrative law judge may extend terminal dates for good cause. Judge Clark presumably reopened the claim to receive additional evidence based on good cause. Under K.S.A. 2009 Supp. 44-551, administrative law judges have broad powers regarding depositions, hearings and investigations before them. The Board will not disturb Judge Clark’s handling of his docket and terminal dates. The Board considers as evidence the transcripts and exhibits associated with Dr. Do’s second deposition on Oct. 3, 2012, and Kathy Ankrom’s Oct. 29, 2012 deposition. 2. The Board Has Authority to Reconsider its Prior Ruling. At oral argument, claimant asserted that the Board’s prior decision that she suffered a series of accidental injuries constituted

the “law of the case” and could not be revisited in this appeal. The law of the case doctrine has long been applied in Kansas and is generally described in 5 Am. Jur. 2d, Appellate Review, § 605, in the following manner: The doctrine of the law of the case is not an inexorable command, or a constitutional requirement, but is, rather, a discretionary policy which expresses the practice of the courts generally to refuse to reopen a matter already decided, without limiting their power to do so. This rule of practice promotes the finality and efficiency of the judicial process. The law of the case is applied to avoid indefinite relitigation of the same issues, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision of the matter at issue, and to assure the obedience of lower courts to the decisions of appellate courts. The Kansas Supreme Court stated in Connell: The doctrine of law of the case, as applied to the effect of previous rulings on later action of the trial court, is a salutary and utilitarian rule to be applied to pretrial orders, but it is not to be considered as a limitation on the power of a trial court to do justice or correct prior rulings which are clearly erroneous. A trial court has inherent power to review its own proceedings to correct errors or prevent injustices. The power to reconsider a ruling in a case resides in the trial court until a final judgment or decree is issued. The Board provides de novo review of all administrative law judge actions and has the power

and responsibility to review, and if necessary, correct its own prior rulings on issues brought before it. “[T]he law of the case rule is not inflexibly applied to require a court to blindly reiterate a ruling that is clearly erroneous….” The Board does not share the dissenting Board Members’ concern that a final award is being relitigated or that the parties might have detrimentally relied on the Board’s prior order. The Board’s prior decision was not final and it was not an award. If it were a final award, there would have been no need to remand the matter to Judge Clark. If the prior Board order was final, one or both parties could have sought judicial review, but neither party appealed the Board’s prior order to the Court of Appeals. Rather than the issue having been foreclosed, it was apparent that respondent was still challenging whether claimant suffered a series of injuries when the second deposition of Dr. Do was taken, along with that of Ms. Ankrom. The parties, in their briefs, set forth arguments for and against whether claimant sustained a compensable series of accidental injuries. Neither party indicated in their briefs that the Board was bound by its prior order. Also, the infusion of additional evidence requires the Board to reconsider the case. The Board is not restricted to follow its prior order if the prior order was incorrect either factually, legally or both. The Board finds it was proper for respondent to again argue issues regarding compensability, including whether claimant proved a series of accidental injuries with an accident date of June 8, 2010. (Footnotes omitted) (Emphasis added)


Journal of the Kansas Association for Justice  35

The majority found that claimant’s injury was the result of her 2003 accident or her own serious medical condition and not from repetitive job duties. Therefore, she did not file a timely application for hearing and the other issues of notice, written claim, etc. were moot. Two Board members (Tom Arnold and Seth Valerius) dissented: The undersigned Board Members dissent from the majority’s finding that the Board may reconsider whether claimant sustained a personal injury by accident arising out of and in the course of her employment with respondent. In its order of March 19, 2012, the Board listed the sole issue as whether the ALJ erred in concluding that claimant failed to sustain her burden of proof that she suffered personal injury by accident arising out of and in the course of her employment at respondent through a series of accidents ending on June 8, 2010. Other issues such as timely notice, timely written claim, nature and extent of claimant’s disability and whether claimant was entitled to repayment of medical expenses she paid were not decided by the ALJ or the Board. The Board determined the ALJ erred and remanded the claim for further proceedings stating, “The denial of the benefits by the ALJ is reversed. This matter is remanded to the ALJ for a determination of the remaining issues before the court.” After the remand, the ALJ and the parties relied on the Board’s ruling that claimant sustained a personal injury by accident arising out of and in the course of her employment and proceeded accordingly. The parties may have proceeded differently on remand, including taking the depositions of additional witnesses or presenting additional evidence, had they known the Board was going to reconsider whether claimant’s injury was work related. That part of the Board’s Nov. 7, 2011 award finding that claimant sustained

a back injury resulting from a series of repetitive work activities was a final, not an interlocutory, decision. The issue whether claimant sustained a personal injury by accident arising out of and in the course of her employment should not be revisited, as it is res judicata. In Scheidt, Kansas Court of Appeals stated: A workers compensation award is in most respects like a court judgment and subject to res judicata: issues necessarily decided in determining the award may not be relitigated unless specifically provided for by statute. See Randall v. Pepsi-Cola Bottling Co., Inc., 212 Kan. 392, 396, 510 P.2d 1190 (1973); Bazil v. Detroit Diesel Central Remanufacturing, 2008 WL 5401467, at *5 (Kan.App.2008) (unpublished opinion). The undersigned Board Members do not disagree with the majority’s finding that claimant failed to sustain her burden of proof that she sustained a series of injuries by accident arising out of and in the course of her employment with respondent. However, the undersigned Board Members are of the opinion that such specific issue was previously decided by the Board and was not remanded to the ALJ. While the Board membership has changed significantly in recent years and only one Board Member who participated in the prior Board decision is participating in the instant decision, the majority is, in essence, reversing a previous ruling. The Board should not engage in secondguessing itself. Reconsidering an issue, where there is no clear indication the majority erred in fact or law, promotes judicial inefficiency. As was previously stated by the dissent in Holtke, the majority’s ruling is an invitation to parties in future cases to re-litigate issues already decided. The undersigned Board Members fear that is an invita-

tion many parties will eagerly accept. (Footnotes omitted) (Emphasis added)

„„ Additional Comments Perhaps to prevent further such issues, it is interesting to note that in its award in Anderson v. United Parcel Service, Inc.; No. 1,038,811, the Board stated: WHEREFORE, it is the finding, decision and order of the Board that the award of Administrative Law Judge Thomas Klein dated Feb. 15, 2013, is reversed and this case is remanded to the ALJ with directions to address the issues of how he assessed weight to the medical evidence, the presumption of permanent total disability, and whether respondent produced evidence sufficient to rebut the presumption. The record is closed and shall not be reopened to include new evidence. The Board does not retain jurisdiction in this matter. (Emphasis added)

Also, in its award in Southard v. Sun Valley, Inc., No. 1,053,906, the Board stated: WHEREFORE, it is the finding, decision and order of the Board that the award of Administrative Law Judge Thomas Klein dated Feb. 4, 2013, is reversed with regard to the award of TTD in connection with respondent’s request for an extension of its submission date and remanded to the ALJ with the instruction to determine all issues presented to the ALJ, based upon the entire record. This order is not intended to allow the parties to present additional evidence, only to allow that their due process rights are properly protected in this litigation. (Emphasis added) p

Appeals Board Decisions Jan Fisher

„„ Failure to Use a Guard or Safety Device


36  Journal of the Kansas Association for Justice

In Baldwin v. Professional Lawn Care Services, No. 1,024,450, the ALJ denied workers compensation benefits based on the determination that the claimant willfully failed to use safety equipment provided by the respondent as required by K.S.A. 2005 Supp. 44-501(d)(1). The claimant appealed to the Board. On July 1, 2005, claimant fell from a 40-foot ladder while trimming a tree for the respondent. Claimant suffered a severe brain injury. Other than safety glasses, the claimant was not using safety equipment provided by the respondent when he fell. Claimant asserts that his claim is compensable because: 1. He did not willfully fail to use proper guard and protections provided by the respondent; 2. He lacked the necessary training to understand how to use the safety devices; and 3. The respondent did not rigidly enforce safety rules such that it could not avail itself of the protection of K.S.A. 44-501(d)(1). Claimant had worked for the respondent for approximately three and a half weeks at the time of the accident. The first one-half of claimant’s work with the respondent was on the ground crew; i.e., dragging brush, picking up debris, etc. The last one-half of the work for the respondent, claimant was pruning, trimming and removing trees. The claimant had never previously worked as a tree trimmer. Claimant was provided some on-the-job training. In addition, the respondent loaned him a copy of “The Tree Climbers Companion” — a training manual for professional tree climbers. The claimant did testify that Mr. Braton — the respondent’s owner — did discuss with him the importance of using safety gear when climbing a tree. K.S.A. 2005 Supp. 44-501(d)(1) states:

If the injury to the employee results... from the employee’s willful failure to use a guard or protection against accident required pursuant to any statute and provided for the employee, or a reasonable and proper guard and protection voluntarily furnished the employee by the employer, any compensation in respect to that injury shall be disallowed.

K.A.R. 51-20-1 states: The director rules that, where the rules regarding safety have generally been disregarded by the employees and not rigidly enforced by the employer, violation of such rule will not prejudice an injured employee’s right to compensation.

The Board ruled that this case presented an extremely close question. Clearly the claimant decided not to use the safety equipment furnished by the respondent and he fell from the ladder. However, in order to deny benefits for failing to use a proper guard or protection voluntarily provided by the employer and for the employee’s use, the Court of Appeals in Carter v. Koch Engineering, 12 Kan. App.2d 74, 85, 735 P.2d 247, rev. denied 241 Kan. 838 (1987) set up a substantial burden of proof for the employer. It stated: The meaning of the word “willful,” as used in the statute includes the element of intractableness, the headstrong disposition to act by the rule of contradiction.... “Governed by will without yielding to reason, obstinate; perverse; stubborn; as, a willful man or horse.”

This burden placed on the employer with respect to this defense is substantial. The violation alone of instructions from the employer is not enough to render the employee’s actions “willful” as a matter of law under K.S.A. 44-501(d). See Hoover v. Ehrsam Company, 218 Kan. 662, 544 P.2d 1366 (1976).

Nevertheless, in this case, the Board did find that the burden of proof of showing a willful failure to use a guard or safety device was fulfilled in this case. The Board stated: After a thorough review of all of the facts, the Board concludes that claimant’s case is not compensable. Respondent provided claimant with a safety harness and lanyard for his protection. Claimant was taught how to use the safety equipment, he knew how to use such safety equipment, and knew he was supposed to use the safety equipment. At both the 2005 preliminary hearing and the 2012 regular hearing, claimant testified that he knew he was to use safety equipment, but decided not to do so. Claimant disregarded respondent’s requests that he use safety equipment. In lieu of following respondent’s admonishments, claimant chose not to use safety equipment. Claimant had no right to disregard his employer’s directives and substitute his own rationale for eschewing safety equipment. If claimant had used the safety harness and lanyard, he likely would not have fallen to the ground and been injured.

„„ Idiopathic Fall In Hurtado v. I & A Painting and Remodeling, No. 1,058,894, the Board — as a preliminary hearing matter — considered a subsection of K.S.A. 44-508(d), which indicates that the words “arising out of and in the course of employment” as used in the Kansas Workers Compensation Act shall not be construed to include an accident or injury which arose either directly or indirectly from an idiopathic cause. The claimant sustained personal injury on Nov. 11, 2011, when Hurtado, who suffers from epilepsy, fell off a ladder. The ALJ found the claimant’s preexisting seizure disorder caused the fall from the ladder. The claimant appealed to the Board; arguing that although he had a preexisting seizure disorder, he was working on a ladder


Journal of the Kansas Association for Justice  37

at the time of his fall, which was an employment hazard associated with the job and put him at an increased risk of injury. Claimant argued that the claim was compensable under the concurrence rule contained in Bennett v. Wichita Fence Company, 16 Kan. App.3d 458, 460, 824 P.2d 1001, rev. denied 250 Kan. 804 (1992). This concurrence rule indicates that when an injury results from the concurrence of some preexisting idiopathic condition and some hazard of employment, compensation is generally allowed. The Board, however, found this argument unpersuasive. It indicated that, had the injury occurred prior to the 2011 legislative changes to K.S.A. 2011 Supp. 44-508, the claim clearly would have been compensable under the concurrence rule. However, the concurrence rule is no longer law for injuries occurring after May 15, 2011. The Board member stated first that, following Bennett, a seizure as the cause of an accident is a personal/idiopathic cause. The Court of Appeals in Bissen v. Hy-Vee Food Stores, 102 P.3d 1205 (Kansas Court of Appeals) also notes that the terms “personal condition” and “idiopathic” are used interchangeably. The Board member found that climbing a ladder knowing that you suffer from epileptic seizures is certainly a personal risk. The Board member, therefore, found that the accidental injury in this case was caused directly or indirectly by an idiopathic cause and a risk personal to the claimant. Further, that the prevailing factor in causing the injury was the personal condition — not a risk of employment. „„ Prevailing Factor The Board once again looked at the definition of prevailing factor in Priest v. Foot Locker Retail, Inc., No. 1,062,248. At the time of the preliminary hearing, claimant was 53 years old. She worked for the respondent as a materials handler II — a job that primarily required her to load and unload trucks.

Claimant’s job duties routinely involved lifting boxes weighing 60 to 65 pounds. The claimant worked for the respondent for approximately six years when she suffered an alleged accidental injury on Sept. 2, 2011. The claimant testified that she’d had no problems — or medical treatment for her neck — prior to Sept. 2, 2011. On that date, she was unloading a truck with very heavy boxes. As she did this, she noticed that her neck gradually started to hurt. As she continued to work, her neck pain gradually worsened. Claimant underwent a cervical MRI, which revealed degenerative disc disease with disc bulging at multiple levels and mild affect — or flattening — of the anterior spinal cord, neuroforaminal narrowing at C4-5, C5-6 and C6-7 and hypertrophic bony ridging at the same three levels. This contributed to the claimant’s central canal and foraminal stenosis. Surgery was recommended. Respondent referred claimant to Dr. Stephen Reinjtes, a neurosurgeon, for an IME. Dr. Reintjes diagnosed bilateral foraminal stenosis at C5-6 and C6-7. He, likewise, recommended a C5-6 and C6-7 foraminotomy. Dr. Reintjes opined that the claimant’s work event of Sept. 2, 2011, was the prevailing factor in causing her disability. Dr. Reintjes explained that the foraminal stenosis preexisted the work injury of Sept. 2, 2011, but the work injury caused the foraminal stenosis to result in C7 radiculopathy. Therefore, the work event is the prevailing factor in causing the disability. Dr. Zhengyu Hu examined the claimant. Likewise, Dr. Hu diagnosed left cervical radicular symptoms suggestive of possible cervical radiculopathy. Dr. Hu recommended an EMG study. This study was performed in June 2012 and revealed chronic left C5, C6 and C7 radiculopathy, and mild median nerve entrapment of the left wrist. Respondent did not agree with Dr. Reintjes’ conclusion so they asked for an IME with Dr. Paul Stein. Dr. Stein evaluated the claimant and diagnosed nerve root irritation in the cervical spine

on the left due to an aggravation of a preexisting degenerative disc disease. In his report dated July 29, 2012, Dr. Stein opined: In this case it would be my opinion that the prevailing factor is the degenerative change, and that the work activity was likely an important but secondary factor. Given the chronic nature of the EMG changes and the extent of the degenerative changes, symptomatology was likely to occur at some time absent the work activity. The work activity was a triggering and accelerating factor.

Finally, in November 2012, claimant was examined by Dr. Edward Prostic, who opined that the work-related accident was the prevailing factor in causing the injury, the medical condition and the need for medical treatment. The Board member deciding this case reiterated that the Appeals Board has found accidental injuries resulting in new physical findings or a change in the physical structure of the body are compensable despite claimant also having a preexisting condition. Several prior decisions tend to show compensability where there is a demonstrated physical injury above and beyond a sole aggravation of the preexisting condition. The Board member found that, although Dr. Prostic and Dr. Reintjes indicated that the claimant’s lifting incident was the prevailing factor causing the injury or disability, a careful review of all medical records and reports proved that the claimant had significant degenerative disease in the cervical spine, which was made symptomatic by the claimant’s accident. Dr. Prostic provided no rationale for his prevailing cause opinion. Nor did Dr. Prostic specify any lesion or change in the physical structure of the body that claimant’s lifting at work caused beyond aggravating a preexisting disease and making it symptomatic. Dr. Reintjes’ opinion uses the phrase “prevailing factor” but it appears to


38  Journal of the Kansas Association for Justice

conclude that the claimant’s foraminal stenosis preexisted the accident and that the lifting caused the preexisting stenosis to result in C7 radiculopathy. The Board member construed Dr. Reintjes’ explanation to essentially say that the claimant’s preexisting condition was triggered, aggravated, accelerated or made symptomatic by the lifting event. The Board member found that Dr. Stein’s opinion was persuasive under the circumstances of the claim. In his opinion, claimant’s lifting accident was an important, but secondary factor in causing claimant’s injury. In concluding the preexisting condition was a prevailing factor in causing the injury, Dr. Stein underscored the results of the EMG, which demonstrated chronic — not acute — radiculopathy. Thus, the Board member found that the claimant’s accident was not the prevailing factor in causing the injury nor was the accident the prevailing factor causing the medical condition or the current level of disability or impairment. „„ Future Medical Treatment In Smith v. Sugar Creek Packing Company, No. 1,057,323, the parties stipulated that the claimant had a 6% functional impairment to the body as a whole. The ALJ found the claimant did not prove more probably than not that future medical care was necessary as defined by K.S.A. 2011 Supp. 44-510h(e). Accordingly, the ALJ denied claimant’s request for future medical care. Claimant appealed to the Board. Claimant sustained personal injury by accident on July 7, 2011, while putting away rolls of microwave belting. She developed pain in her neck and back after unbanding the rolls from the pallets, carrying the rolls through a pair of double doors and up a flight of stairs to a landing. An MRI of the claimant’s lumbar spine was done, which showed no diagnostic abnormality. She was later seen by Dr. Hendler who diagnosed her as having myofascial pain. Dr. Hendler opined that it was more probable than not that no additional or future

treatment was necessary in relation to claimant’s workers compensation injury. Dr. Edward Prostic also saw the claimant and concluded that the claimant had strains and sprains of her spine, and evidence of rotator cuff tenopathy of her left shoulder. He stated that it was reasonable and probable that claimant would require future treatment. He recommended treatment of anti-inflammatory medications by mouth, aerobic conditioning exercises and rotator cuff strengthening exercises. The Board found that Dr. Prostic’s notation did not indicate whether the claimant required prescription antiinflammatory medications. There was no indication regarding whether exercises required a referral to a therapist. His report was interpreted by the ALJ to mean over-the-counter antiinflammatory medication and exercises that could be performed at home. K.S.A. 2011 Supp. 44-510h(e) states that medical treatment does not include home exercise programs or over-thecounter medications. As such, the claimant was not entitled to an order for medical treatment. p

Appeals Board Decisions Mitchell W. Rice

„„ Arising Out of Employment „„ Smoking Break on Employer Premises In LaTurner v. Quaker Hill Nursing, LLC, No. 1,059,381, the ALJ found at preliminary hearing that claimant’s accident arouse out of and in the course of her employment and ordered treatment. Respondent appealed arguing that there was no causal connection between the conditions under which the claimant’s work was required to be performed and the accident, and therefore, under the New Act, the claim was not compensable. Claimant was injured while on her lunch break. She ate lunch in the break room inside respondent’s facility, and then exited a door leading to the designated smoking patio, and fell on

ice, injuring her lumbar spine. The incident was reported immediately. The claim was denied by respondent, contending that claimant was simply walking to take a smoke break and there was no connection to claimant’s work. The ALJ found the claim compensable and the Board reversed. As this was an appeal from a preliminary order, only one member of the Board decided this case, Gary Terrill. The Board considered the language in K.S.A. 2011 Supp. 44508(f) (3) (A), which states: (3)(A) The words “arising out of and in the course of employment” as used in the workers compensation act shall not be construed to include: (i) Injury which occurred as a result of the natural aging process or by the normal activities of day-to-day living; (ii) accident or injury which arose out of a neutral risk with no particular employment or personal character; (iii) accident or injury which arose out of a risk personal to the worker; or (iv) accident or injury which arose either directly or indirectly from idiopathic causes.

The Board focused on the fact that claimant was on her way to a smoking break and the activity of smoking was not a requirement or incident of her job, but rather was related to her desire to smoke. Claimant was required to clock out for lunch breaks and was free to leave the employer’s premises during lunch. The Board found that it was claimant’s urge to smoke that caused her to walk onto the patio area and that desire did not arise out of the nature, conditions, obligations, or incidents of her employment. Instead, according to the Board, the risk of injury arose out of, at best, a neutral risk. Simply put, the Board denied this case finding that the act of falling on the ice


Journal of the Kansas Association for Justice  39

on the employer’s premises while on the way to a smoke break did not arise out of claimant’s employment as there was not a causal connection between the conditions under which claimant’s work was to be performed and the accident. „„ Arising Out of Employment In Habig v. City of Topeka, No. 1,059,916, the Board examined the “arising out of employment” requirement in the case of a Topeka firefighter who was injured while lifting weights while on duty at the fire station. Claimant was working his normal 24-hour shift when he was injured performing a work out that involved “dead lifts.” While doing a dead lift using approximately 185 pounds of weights, claimant felt a pop in his back and his legs started to become numb. The accident was reported immediately. The ALJ denied the claim finding that claimant had failed to sustain his burden of proof that his injury arose out of his employment. The Board affirmed. The Board began its analysis by stating that the injury clearly occurred in the course of employment because it happened during claimant’s regular work shift and on the premises where respondent required him to be. The Board focused on the issue of whether the activity claimant was engaged in, lifting weights, was a task related to his normal job duties or that respondent specifically instructed him to perform. After citing Bergstrom for strict construction, the Board’s analysis focused on whether claimant was engaged in a recreational activity at the time of his injury. In affirming the denial of benefits, the Board stated: At the time of the injury, claimant was lifting weights. He was not out on a call as a first responder to a fire, medical emergency or any other duty of an apparatus operator, firefighter or rescuer. As such, claimant was engaged in a recreational and social activity. Activities that are organized, encouraged and supervised by the employer may not fall within the

purview of a recreational and social activity. While this activity was allowed, even encouraged, it was not required. And while it obviously benefitted both claimant and his employer, it was neither a task that resulted from the performance of claimant’s normal job duties, nor was it a task claimant was specifically instructed to perform. Accordingly, claimant’s injury did not arise out of his employment as that phrase is used in the Kansas Workers Compensation Act.

„„ Nature and Extent „„ Hand Injury vs. Shoulder Injury In Rodriguez v. Vertis, Inc., No. 1,056,654, the ALJ, awarded benefits based upon a 40% impairment to claimant’s right hand. Claimant appealed the issue of nature and extent, contending that her impairment involves the right arm and shoulder. This case ultimately turned on the “situs of the disability” in limiting claimant’s impairment to her hand only. The Board stated: The Guides and Kansas law do not always fit nicely together. The Guides provide ratings to the upper extremity. The schedule does not specifically list the “upper extremity.” Upper extremity injuries accounted for under our schedule include the finger, thumb, hand, forearm, arm and shoulder. An upper extremity rating is not necessarily an arm rating. Pertinent to this case, Kansas law recognizes that PPD benefits for permanent injuries to the hand, forearm, arm and shoulder are based on 150, 200, 210 and 225 weeks respectively. The Guides, however, classify forearm, arm and shoulder injuries as involving the upper extremity. Of course, it would be unfair under the statutory schedule to award a claimant with shoulder impairment benefits only based on the arm, just as it would be unfair to award a claimant based on the arm if he or she only had a hand or forearm impairment. An award of PPD

benefits must be based on the actual situs of the disability based on Kansas law, which classifies different parts of the upper extremity as warranting different PPD benefits levels under the schedule.

„„ Accident and Symptoms at Time of Injury In Johnson v. State, No. 1,060,601, claimant worked for respondent as a medical health technician. On April 4, 2012, claimant attempted to grab a patient who was falling in the bathtub. Claimant was in an awkward position when this occurred and hit his upper chest on the bathtub. Even though it was an awkward fall, claimant testified that he did not experience any pain when the incident occurred. Two days after the incident, claimant was unable to get out of bed due to severe back pain and pain in his lower left side. The Board examined K.S.A. 2011 Supp. 44-508(d), which requires there be symptoms of an injury at the time of occurrence in order to establish an accident and qualify for benefits under the Act. Respondent argued that claimant was not covered by the Act because he did not sustain an injury that produced symptoms of an injury until two days later. The Board agreed and held the claimant did not prove he had suffered a compensable “accident” at work. „„ Heart Amendment In Yarnell v. State of Kansas, No. 1,052,276, claimant was assisting in patching asphalt, which required him to be close to a “lay down machine,” which heated the asphalt with propane burners. Testimony revealed that claimant looked “bad” during work and was encouraged to ride with another worker to another site. On the trip, claimant appeared to take a nap. The co-worker eventually realized that something was wrong with claimant. An ambulance was called and EMT workers could not revive claimant. The evidence established that claimant did not do unusual work or engage


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in unusual exertion on the date of his death. Two medical experts testified. Dr. Galichia testified that claimant died from arrhythmia from a combination of physical work and heat. Dr. Evans attributed claimant’s death to coronary artery disease, not due to claimant’s work environment. Dr. Evans did not view the heat as a significant contributing factor in claimant’s death. The Board opted to adopt Dr. Evans’ opinions, which were more detailed and based on more information than was provided to Dr. Galichia. The Board noted Dr. Galichia did not provide much rationale to support his causation opinions. This case is on appeal to the Kansas Court of Appeals. „„ Horseplay/Safety „„ New Law In Robinson v. Goff Motors, No. 1,063,653, both the ALJ and the Board concluded that claimant voluntarily participated in horseplay and was not entitled to compensation pursuant to K.S.A. 2012 Supp. 44 501(a)(1)(E). Claimant works as a car salesman. Claimant injured his knee when a co-worker tried to “take him down” to the ground following a “bear hug” by claimant. Claimant argued that any “horseplay” had ended after the “bear hug” and that it was the co-worker that came up behind him to take him down that was involved in the horseplay. Further, claimant presented evidence that horseplay occurred around the sales floor and even a manager would occasionally participate in a slap on the rear, high five, chest bump, etc. The ALJ and the Board denied compensation pursuant to K.S.A. 2012 Supp. 44-501(a)(1)(E), apparently finding that there are no longer any exceptions to the horseplay statute. It appears that participation in horseplay under the new law will result in a denial of benefits regardless of the knowledge of the employer. „„ Post-Injury Wages From Investments

In Webb v. National Envelope Corporation, No. 1,046,493, the main issue concerned post-injury wages. Claimant owned rental properties and respondent argued that the rental properties constituted income. The Board stated: In order for income to be considered a “wage” for the purposes of the workers compensation act, the income must be received for services rendered to an employer. Claimant does not personally maintain his rental properties. The Kansas City Housing Authority collects the rent, not claimant. Claimant’s sole involvement in the operation of his rental property is to receive rent from a third party. Claimant is not receiving money for services rendered to anyone. Claimant is simply enuring himself to the benefits of an investment. Profit or loss from an investment is not a wage for the purposes of the act.

„„ Preexisting Condition „„ Medical Evidence In Harris v. All About Staffing, Inc., No. 1,055,923, claimant injured her knee at a part-time job and eventually developed a limp. Her doctor opined she had permanent low back impairment, while the treating orthopedic physician and her longtime chiropractor disagreed. The Board noted: Claimant’s low back pain when she started treating with Dr. Schmidt in September 2010, well before her work accident was very severe. Dr. Schmidt’s 2012 records, well after her work accident, show that claimant’s low back pain was mild, nominal and minimal. It is difficult to grasp how claimant’s low back condition was permanently worsened following her work accident. Both Drs. Schmidt and McNamara only identified a temporary aggravation of a preexisting condition. Claimant did not prove a permanent whole body injury. Dr. Elea’s conclusion that

claimant had permanent low back impairment, based in part on the presence of a positive SLR test that never went away, is not supported by the medical evidence.

„„ Timely Application for Hearing In Davenport v. City of Manhattan, No. 1,057,282, claimant was injured April 17, 2008. He was provided medical treatment. An employer’s report of accident was timely filed. Claimant last received authorized medical treatment on Jan. 14, 2009. The last payment made by respondent was on or about Nov. 11, 2010, for medical mileage incurred for the Jan. 14, 2009, visit to Dr. Bailey. Claimant filed an application for hearing with the Division of Workers Compensation on Aug. 19, 2011. While respondent argued claimant’s application for hearing was untimely, as it was more than two years subsequent to the last payment of compensation, the ALJ judge issued an award in claimant’s favor. The Board affirmed. Citing the broad definition of medical compensation in Hedrick v. U.S.D. No. 259, 23 Kan. App. 2d 783, 935 P.2d 1083 (1997), the Board noted: Employer-provided transportation includes reimbursing a claimant for mileage or tolls. Hedrick indicates that transportation for medical treatment is under the statutory definition (now K.S.A. 44-501h) of medical treatment. As noted in Riedel, providing medical treatment is medical compensation. The Board concludes that payment of medical mileage is payment of medical treatment and is thus payment of compensation.

A majority of the Board rejected respondent’s argument that medical compensation had to result in economic gain to claimant. The Board determined that claimant’s application for hearing was filed within two years of the last payment of compensation. This case is on appeal to the Kansas Court of Appeals.


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„„ Employer/Employee Relationship In Martinez v. U.S.D. 501, No. 1,063,614, claimant was employed as a substitute teacher. He was not under a written contract. The school year had ended and he was not substitute teaching for respondent when he attended a job fair at the school in the summer of 2012. The job fair was at the school that claimant normally would substitute teach. While at the job fair, he tripped over a chair, fell and was injured. A single Board Member found that at the time of the accident, claimant was not an employee of respondent. „„ Preexisting Impairment „„ Old Law In Jamison v. Sears Holding Corp., No. 1,054,942, claimant had a 2010 work accident involving his neck. The ALJ concluded claimant had a 75% work disability. Claimant had a prior neck surgery and what the ALJ and the Board determined to be a 10% preexisting whole body impairment. Even with a credit for a prior 10% impairment, claimant’s resulting 65% work disability resulted in him getting a $100,000 award. Respondent asserted that the K.S.A. 44-501(c) credit for preexisting impairment should be based on the methodology used by the Appeals Board and the Kansas Court of Appeals in Payne v. Boeing Co., 39 Kan. App. 2d 353, 180 P.3d 590 (2008), where: [T]he employer did not contest the finding that Payne was permanently and totally disabled, but requested a credit for a preexisting 35% functional impairment. The ALJ found that Payne’s award for permanent total disability should be reduced under K.S.A. 44-501(c) because of her 35% preexisting functional impairment. The ALJ first calculated the number of weeks of disability payments Payne would be entitled to with a 35% functional impairment. The ALJ then calculated the number of weeks it would take for Payne to receive the maximum award of $125,000 for being permanently and totally dis-

abled. To calculate the final award, the ALJ deducted the number of weeks for the preexisting functional impairment from the number of weeks it would take Payne to receive her maximum award of $125,000. The Board affirmed, as did the Kansas Court of Appeals.

The Board declined to extend the Payne methodology to work disability claims, instead simply deducting the 10% preexisting impairment from the 75% work disability, as had been done in prior cases, such as Gethins v. Cedar Living Center and Criswell v. U.S.D. 497, both of which were affirmed by the Kansas Court of Appeals in unpublished decisions. This case is on appeal to the Kansas Court of Appeals. p

Decisions of Judge Avery Michael C. Helbert

„„ Nature and Extent of Disability „„ Post-Injury Wage and Work Disability In Rogers v. Premium Transportation Staffing and Self-Insured, No. 1,062,424 (June 18, 2013), the basic jurisdictional items were not in dispute. Physical injury, medical condition and prevailing factor were all the subject of stipulation. Claimant was a truck driver who fell off the truck and fractured his hip while he was tarping a load of shingles. Two doctors, Prostic and Koprivica provided ratings. The Court gave equal deference to both and found that claimant had a 17.5% functional impairment to the body as a whole. The key question was work disability. There were two vocational experts but neither of them provided a “labor market survey” toward the specific capabilities of the claimant. One expert, Dick Santner, initially found that claimant was capable of working but then changed his mind and opined that he was totally disabled. The Court found that the most reliable evidence of the claimant’s capability

to earn post-injury wages was the offer of employment by the respondent. The Court found that the offer of employment was a legitimate offer and that claimant would be making 90% of his pre-injury wages. The Court limited the award to the claimant’s functional impairment. The Court found that the medical evidence showed claimant would more likely than not need a second hip replacement. Therefore, the Court found that the medical care should be left open. „„ Nature and Extent of Disability „„ Work Disability In Ramirez v. AMS Staff Leasing and Dallas National Insurance Co, No. 1,050,307 (May 23, 2013), the basic jurisdictional matters were not in dispute. This is a pre-May 15, 2011 case. The claimant sustained an injury while falling head first off scaffolding 10-12 feet high. At the time, he was working as a carpenter. He was diagnosed with bilateral wrist factures, left rotator cuff tears, right shoulder and neck pain and dental injuries and found to have a 14% impairment to the body as a whole. Dr. Bieri examined claimant at the request of the Court and found the claimant to have had bilateral upper extremity injuries and a DRE II injury to the cervical spine. Dr. Bieri rated him at 19% to the body as a whole. Dr. Murati examined claimant at the request of the claimant’s attorney and also found a combination of injuries and assessed claimant with a 34% impairment to the body as a whole. The Court found all three ratings should be given equal deference and found claimant’s impairment to be 22% to the body as a whole. The Court discussed the possible total disability of claimant since he had suffered bilateral upper extremity injuries. However, there was a consensus among the vocational and medical experts that claimant was capable of working and the presumption in favor of permanent total disability has been overcome.


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The Court found that claimant had been unemployed since the time of his accidental injury and that he was entitled to work disability. He was found to have 100% wage loss and a task loss of 77% for a permanent partial disability of 88%. Future medical was also ordered. „„ Nature and Extent of Disability „„ Permanent and Total Disability In Schmidt v. Tyson Fresh Meats, Inc. and Self-Insured, No. 1,060,390 (May 16, 2013), the jurisdictional matters were not an issue. Claimant had injured his back while performing repetitive work for the respondent. For almost 40 years, claimant worked as a “brine puller,” taking cow hides out of a tub of water and hanging them on a hook. When Tyson shut down its slaughter operation in Emporia in 2007, claimant was transferred to a new job driving a “lowboy,” which he stated aggravated his back. Dr. Bieri, who saw the claimant at the request of his attorney, also noted a specific incident around Thanksgiving. The parties have agreed on an accident date of Dec. 2, 2010. Two doctors provided ratings. The Court gave equal deference to both and found claimant to have 15.5% functional impairment. Claimant alleged that he was permanently and totally disabled. Claimant was not working and was receiving Social Security Disability. The claimant is now 63 years old with academic abilities in reading and math being extremely limited. He has only worked for Tyson and its predecessor, IBP, during his adult life. He testified that he is not capable of any substantial and gainful employment and indicated that Tyson staff had suggested that he retire because the company had no jobs that would fit his restrictions. However, Dr. Bieri testified that the claimant could return to work at the “light” level. Dr. Carabetta placed significant physical restrictions upon him. Two vocational experts also testified. Mr. Dick Santner testified that claimant would, in all likelihood be considered permanently and totally disabled

from any substantial and gainful employment. Steve Benjamin testified that claimant could enter the open labor market and earn about $448 per week. However, Mr. Benjamin did not perform a labor market survey. Neither doctor who testified stated claimant was incapable of substantial and gainful employment. While the Court felt that there were significant impediments to claimant returning to work, the evidence was insufficient to establish that claimant was permanently and totally disabled. The Court found a 100% wage loss and an 80% task loss for a 90% work disability. „„ Personal Injury by Accident „„ Arising Out of and In the Course of Employment „„ Nature and Extent of Disability West v. Braums, Inc. and SelfInsured, No. 1,055,651 (June 27, 2013). Claimant was a shift supervisor for respondent. She testified that she slipped and fell on the floor while she was mopping one of the employer’s stores. She felt immediate pain in her hip, back and neck and was taken to Newman Memorial Hospital in Emporia where she received conservative treatment from NP Leighton York. Claimant was initially taken off work and provided temporary restrictions and modified duty. She was eventually released to regular duty. She was diagnosed with injuries to her head, elbow, neck, buttock, and back. She also saw Dr. Hu and Dr. Garrett for treatment. Dr. Garrett testified that he felt that she had chronic SI dysfunction that waxes and wanes, and might have been from a prior fall. Claimant received two epidural shots from Dr. Hu. The shots provided temporary relief but the effects would wear off and her pain would return. Garrett opined that claimant’s condition was a temporary exacerbation, and that her condition was resolved. Dr. Geis examined claimant for respondent’s attorney. He found that claimant’s need for evaluation and treatment was caused by her fall at work

on July 27, 2010 but that her chronic recurrence of pain was not related to her work injury. Dr. Pratt performed an IME at the request of the parties found that restrictions should be imposed and that the restrictions could be permanent. At the request of claimant, Dr. Murati performed a complete examination of claimant. In addition, claimant was also the subject of an IME by Dr. Fluter, who diagnosed her with neck-upper back, middle back pain, and lower back pain, cervical/thoracic/lumbar strain and sprain, bilateral upper extremity radiculitis, lower extremity radiculitis, probable sacroiliac joint dysfunction and probable trochanteric bursitis. The Court gave no credibility to Dr. Garrett and found that Dr. Murati provided the most detailed analysis of any preexisiting problems that she might have. The Court found her to have a 5% impairment to the body as a whole, a 76% task loss (Murati was the only doctor to render a task loss opinion) and a 100% wage loss for a permanent partial disability of 88%. Future medical care was also granted. p

Decisions of Judge Barnes Roger A. Riedmiller

„„ Post-Award Medical Request Requires Medical Opinion Supporting Claimant’s Requests Wharton v. Chance Rides Manufacturing, Inc., No. 1,006,012. In this case, claimant requested medical care arising out of a post-award matter for an injury that occurred on June 20, 2002. Claimant testified that she had no injuries since her award was entered on May 27, 2003, and that her back condition slowly deteriorated over the years subsequent to the award. However, claimant’s testimony did not carry the day and was not sufficient to support this request for medical care. Dr. Paul Stein opined that claimant’s subsequent work activities aggravated her prior condition and this was the cause for the need for additional medical care. In the report generated, Dr. Matthew Henry indicated that claimant’s


Journal of the Kansas Association for Justice  43

conditions were primarily degenerative in nature and most likely related to a recent aggravation in her recent work activities. Dr. Richa Sharma indicated in her report that claimant’s need for treatment was most likely related to aggravation caused by heavy work activity with her subsequent employer. The lesson learned from this award is that one cannot entirely rely on the claimant’s testimony when requesting post award medical care. „„ Conflict in Respondent’s IME Opinion When Compared to the Treating Physician’s Opinion and Claimant’s IME Opinion Macfarland v. Dillon Companes, Inc., #65, No. 1,054,185 & 1,054,186. In this interesting case, the claimant was treated by Dr. Sandra Barrett, who assigned a 5% whole body impairment, and Dr. Pedro Murati, who assigned a 14% whole person impairment. However, respondent hired Dr. Chris Fevurly, who found claimant had a 0% impairment. Judge Barnes did not find this opinion to be persuasive and totally disregarded not only claimant’s impairments from Dr. Chris Fevurly, but also his opinions with respect to permanent restrictions and limitations, and thus task loss opinions. Judge Barnes averaged only Dr. Barrett and Dr. Murati’s opinions, and ignored the 0% task loss opinion of Dr. Chris Fevurly. p

Decisions of Judge Belden Stephanie J. Wilson

„„ Repetitive Trauma „„ Application of Old Act Even When Date of Accident is Under New Act Williams v. General Motors LLC, Nos. 1,057,159 and 1,057,160 (May 2013). In this interesting case, the claimant performed repetitive overhead work for the respondent. He developed symptoms in his right arm in November 2010 that gradually worsened. He did not know at that time that his symptoms were work related. He sought out

treatment on his own through his health insurance, which was provided by his employer. As the New Act passed on May 15, 2011, claimant was off work recuperating from shoulder and carpal tunnel surgery. He informed respondent of his restrictions, but he did not inform respondent that his conditions were work related because he did not know that they were. Claimant returned to work following surgery on June 1, 2011. As set forth below, the Court ultimately found that the last injurious exposure was prior to the passage of the new act. Claimant subsequently realized his symptoms were caused by work activities. It is not clear from the award how this epiphany occurred, but “Claimant may have been informed verbally by a health care provider of the cause of his condition.” He gave written notice to his employer on July 28, 2011, that he wished to have his right arm and shoulder injuries handled under workers compensation. The interesting question presented in this case is the date of accident and whether the new or old Act applies. The Court found the Old Act applied, and in applying the Old Act date of accident law, the Court found that the date of accident was not until after the passage of the New Act. The Court held: To determine the date of accident or injury, the Court must first consider whether the Workers Compensation Act in existence before May 15, 2011 or after May 15, 2011 applies. The Appeals Board previously ruled the law in effect on the last day the employee was exposed to the injurious work will dictate the determination of the date of accident or injury. See Nay v. Petco, Docket No. 1,056,075, p.8 (W.C.A.B. 2012); Cutchlow v. University of Kansas Hospital Authority, Docket No. 1,057,361, pp. 10-11 (W.C.A.B. 2012); Burnom v. Cessna Aircraft Co., Docket No. 1,056,443, p. 10 (W.C.A.B. 2011). Where the law in effect before May 15, 2011 applies and places the date of accident after May 15, 2011,

the older version of the Act will still apply because holding otherwise would require an impermissible retroactive deprivation of substantive and vested rights. See Burnom, pp. 10-11. In this case, claimant alleges he sustained repetitive-use injuries to the right forearm and shoulder from work he performed until April 4, 2011, when he was taken off work by respondent. Because claimant’s last injurious work occurred before May 15, 2011, the “Old Act” version of K.S.A. 44-508 will apply for determining the date of accident. Even if the date of accident falls after May 15, 2011, the Old Act will apply to the remaining issues of the case. ... The Court finds and concludes the date of accident is the date claimant gave his written notice to respondent, or July 28, 2011. Notwithstanding the finding of a date of accident after May 15, 2011, the Court will apply the Old Act to the remaining issues in this matter to avoid an impermissible retroactive deprivation of substantive and vested rights. (Emphasis added)

Under the Old Act version of K.S.A. 44-508(d), if the worker is not taken off work or restricted by an authorized physician, then the date of accident is the earlier of: 1. The date the employee gives the employer written notice of the injury, or 2. The date the condition is communicated in writing to the employee as work related. If none of those criteria apply, the Court determines the date of accident based on all the evidence and circumstances. In the case at bar, there was no authorized treating physician, so the date of accident was the date the employee gave the employer written notice of the injury. p


44  Journal of the Kansas Association for Justice

Decisions of Judge Clark David H. Farris

„„ Post Injury „„ Average Weekly Wage In Botello-Huerta v. Home Maid, Inc., No. 1,056,774, the claimant was employed by the respondent for over 10 years as a housekeeper. On June 13, 2011, she fell down some stairs sustaining injuries to her bilateral lower extremities and ultimately surgery was performed by orthopedic surgeon, Dr. Estivo. Dr. Murati issued an 18% impairment to the body as whole, while Dr. Do issued a 13%. Judge Clark found that the claimant had sustained a 16% impairment to the body as whole. However, when the claimant returned to the respondent, with the restrictions issued by her treating physician, Dr. Estivo, she was laid off as no work was available. At the time of claimant’s Regular Hearing, she remained

unemployed. The only vocational expert to testify was Jerry Hardin who found that the claimant could perform minimum wage work. Judge Clark found that since minimum wage was $7.25 an hour, her average weekly wage would be $290 per week, which is more than the $168 the claimant was earning at the time of her injury. Therefore, Judge Clark found that the claimant was limited to the 16% functional impairment and no work disability. „„ Treating vs. IME Physician „„ Permanent Total Disability In Diaz v. Quikrete, No. 1,056,994, the claimant, completely illiterate, was employed by the respondent for 32 years stacking 130 bags of concrete per hour, which weighed anywhere from 10 to 80 pounds each. Over time, the claimant began developing adverse symptomatology in his bilateral

Announcement The following information was received by KsAJ from the Kansas Automobile Assigned Claims Plan (KAACP). According to the KAACP mission statement, the Kansas Automobile Assigned Claims Plan was created to provide fair and prompt claim service to those eligible injured individuals, for statutory personal injury protection benefits (PIP), arising out of an accident involving an automobile, in the state of Kansas, and provided said benefits are not available elsewhere to the injured party. The Plan is required by KSA 40-3116 and has been in existence since 1974. The purpose of the plan is to provide Personal Injury Protection benefits for those individuals who are injured in an automobile accident and who do not have any PIP benefits available to them. If an individual owns a motor vehicle and it is not insured, that person is not eligible for coverage in the Plan. The benefits provided by the Plan are set out in KSA 40-3103 and include disability benefits, funeral benefits, medical benefits, rehabilitation benefits, substitution benefits and survivors' benefits. If you have questions regarding the plan, please visit their website, www. kaacp.org, or call 785-273-6300. The forms necessary to submit a claim on behalf of an eligible injured person are listed on this website. Please contact the KAACP with any questions or for more details.

upper extremities, neck and back, and provided notice to his employer. At the request of his attorney, the claimant was examined by Dr. Pedro Murati, who noted the claimant had a history of gout and rheumatoid arthritis. However, he found the demanding work activities that the claimant did for the respondent permanently aggravated and accelerated his condition. Dr. Murati further diagnosed bilateral carpal tunnel syndrome and rotator cuff sprains, which were a direct result of the claimant’s work activities with the respondent. At the request of the respondent, the claimant was evaluated by Dr. Chris Fevurly who felt that the entirety of the claimant’s condition was related to gout, rheumatoid arthritis, and age-related degenerative conditions. Ultimately, Dr. Fevurly testified that he found absolutely no work-related conditions that the claimant had sustained while in the course of his employment with the respondent. Judge Clark ordered an independent medical examination with orthopedic surgeon, Dr. George Lucas, who found that the major problems with the claimant were rheumatoid arthritis and gout, which were not caused by his work exposure. However, Dr. Lucas felt that the very heavy manual labor type work that the claimant had done for over 30 years, contributed to his current complaints and findings by worsening the claimant’s underlying conditions. Dr. Lucas felt that the work that claimant performed for the respondent put extra burden on his joints and hastened their destruction over time. Judge Clark found the testimony of Dr. Lucas to be most persuasive and found that the claimant sustained injuries arising out of and in the course of his employment. Further, Judge Clark found that the claimant was permanently totally disabled based upon the opinions of Dr. Lucas, Dr. Murati, and vocational expert, Karen Terrill. Judge Clark discounted the opinions of Steve Benjamin who felt that the claimant could work for minimum wage. p


Journal of the Kansas Association for Justice  45

Decisions of Judge Moore Scott M. Price

„„ Review and Modification Reed v. Windsor Place At Home Care and Technology Insurance Company, No. 1,047,868. In this case, the claimant sought review and modification of an agreed award entered into on April 20, 2012. Shortly after the Settlement Hearing, the claimant quit her job and then filed this Application for Review and Modification alleging 100% wage loss. This was a very interesting case in that both parties tried to persuade Judge Moore that earlier stipulations should be set aside and issues re-examined by the Court. The claimant wanted the court to find that her pre-injury average gross weekly wage was $342 rather than the wage of $256.50, which was presented at the settlement hearing. Judge Moore went over the settlement document and transcript very carefully. He found that the claimant had agreed a number of times during the settlement hearing that her average weekly wage was $256.50. The Court found that this was res judicata and the average weekly wage could not be relitigated. Respondent had earlier stipulated that the claimant did suffer personal injury by accident, arising out of and in the course of her employment with the respondent. The court found that this was also res judicata. The respondent was trying to argue that there should not be a task loss as respondent’s doctor stated that there was no work injury. Both parties were bound by their earlier stipulations. „„ Death Benefits Walker (Deceased) v. City of Coffeyville and Kansas Municipal Insurance Trust, No. 1,055,252. In this interesting case, the claimant had suffered injuries to his right lower extremity including his knee and ankle while at work. This occurred on Feb. 4, 2011. The claimant had numerous other medical problems and ended up in the hospital from Feb. 7, 2011, until being

discharged on Feb. 17, 2011. On Feb. 27, 2011, his wife called for an ambulance and he was taken to the hospital again. The claimant died on Feb. 28, 2011. A Dr. Myers was the pulmonologist consulted when the decedent was brought to the hospital. It was Dr. Myers’ causation opinion that the decedent died from a pulmonary embolism caused by a DVT and that the DVT was in turn caused by the decedent’s work injury and/or inactivity following the work injury. The decedent’s death was thus the natural and probable consequence of the work injury. p

Decisions of Judge Sanders Roger D. Fincher

„„ K.S.A. 44-501(d)(1) — Failure To Use A Guard Or Protection Against Accident (Seat Belt) Apodaca v. Riley County Law Enforcement Agency and Kansas Employers Workers Compensation Fund, No. 1,061,271. Claimant was employed by respondent from 20062012 as a police officer. For about a year prior to his workrelated accident, he had been working the midnight shift patrolling Aggieville, typically by himself. He testified that he regularly did not utilize his seat belt as it was much easier to respond more quickly without it buckled. He stated he buckled it underneath him to keep the warning bell from repeatedly chiming. The claimant testified that he was not the only officer who did not wear his seat belt, but did not provide any specific names of officers. The testimony established that the respondent had a written policy requiring that officers wear seat belts and the claimant had been issued this policy procedure manual and initialed the same. K.S.A. 44-501(d)(1) provides that if the injury to the employee results from the employee’s willful failure to use a guard or protection against accident required pursuant to any statute…. Any compensation in respect to that injury shall be disallowed.

On Oct. 18, 2009, the claimant was responding to a motor vehicle accident at a speed of 104 miles per hour when he struck a vehicle that a drunk driver had left in the roadway after turning off his headlights. The claimant suffered severe injuries to his hip, bilateral knees and thumb in the collision. The claimant’s independent medical physician, Dr. Daniel Zimmerman, testified that the front of the vehicle collapsed on the claimant’s knees and hip, causing the claimant’s injuries, and that a seatbelt would not have changed the nature of his injuries. Dr. Zimmerman admitted he had no experience in biomechanics. The claimant himself testified that he believed his injuries would have happened regardless of wearing a seatbelt. The respondent hired two biomechanical engineers who testified that the claimant moving forward into the dash was what caused his injuries (except for the thumb) and they believed his injuries to his hip, legs, etc. would have been prevented had he been wearing his seatbelt. The claimant argued that the statute, under strict construction, the defense was not applicable as a seat belt is a guard against “injury” and not “accident.” The statute provides that compensation shall be disallowed if the injury results from a failure to use a guard against “accident.” In fact, the Legislature specifically amended the statute in May 2011 to include the disallowing of benefits if the claimant fails to use a guard or protection against “accident” or “injury.” The ALJ called this argument that the statute didn’t apply “patently absurd” and followed other cases such as Sutton v. Allied Waste of North America, No. 105,243, in which compensation was denied for claimant’s willful failure to use a seatbelt, even though the same statutory argument about strict construction was not addressed. The ALJ limited the injury of Apodaca to a scheduled thumb injury, and awarded $9,052.68, less any amounts


46  Journal of the Kansas Association for Justice

previously paid, resulting in a net award after TTD deductions of $1,495.54. At the time of the regular hearing, the claimant claimed 100% wage loss with medical paid in the amount of $72,667.32, a fractured hip, bilateral ligament tears in his knees, and a torn ligament in his left thumb, which was operated upon. „„ Nature and Extent Holton-Edwards v. Dillon Companies and Dillon Companies, Inc., Nos. 1,047,415 & 1,052,285. The claimant was injured on both July 12, 2009, and Aug. 24, 2010, while working for the respondent. The Court ruled that the primary accident was July 12, 2009, and that the Aug. 24, 2010, accident merely resulted in symptoms that were the natural and probable consequence of the earlier accident. The claimant was unemployed at the time of the regular hearing and, thus, was found to have suffered 100% wage loss. Dr. Sankoorikal rated the claimant at 10% to the body as a whole and Dr. Prostic (utilizing Dr. Amundsen’s reports, which were not formally admitted) found her to have loss of motion segment integrity and rated her at 20% of the body. Judge Sanders adopted the functional rating of Dr. Sankoorikal as Dr. Prostic did not independently confirm the loss of motion segment integrity. Both Drs. Prostic and Sankoorikal commented on task loss, and Judge Sanders adopted Dr. Prostic’s opinion as to a 64% task loss. Averaging the 100% wage loss and 64% task loss, Judge Sanders awarded an 82% work disability. „„ Prevailing Factor Jackson v. Clay County Medical Center, respondent, and Kansas Hospital Association WCF, Inc., No. 1,058,540. Claimant was working as a licensed practical nurse for the respondent in May 2011. She filed a claim for compensation claiming symptoms beginning approximately May 24, 2011, in her lower back as she

assisted another nurse in pulling a patient up in bed. Claimant stated that the symptoms persisted for the next three days and believes she completed a form for her employer regarding the incident on the day it happened. She stated that the pain was relieved after a few days of being off, but that she continued to have back pain on and off depending on her level of activity. In September 2011, she had two different incidents of back pain; one reaching out for her son while in a restaurant and the other while helping do a sheet rocking project in her home. She apparently only sought medical treatment after this first incident in September at home and before the sheet rocking incident. In the medical records of her primary care physician, she reported the pain symptoms in her back began about a week and a half before (records from Sept. 14, 2011 to Oct. 24, 2011). She then later had the sheet rocking incident and reported it as worsening her back condition. An MRI performed on Oct. 12, 2011 showed central disc protrusion/ herniation at the T-9 level. After this finding, there are medical records where she began mentioning the work injury (from May), the sheet rocking injury, etc. The case was tried before ALJ Sanders with Dr. Murati opining that her May 2011 accident was the prevailing factor for the 15% whole body rating opinion he rendered. He also rated her at 10% of one of her extremities for carpal tunnel he diagnosed. The Court appointed Dr. Pratt as an IME physician to evaluate the claimant. Dr. Pratt acknowledged claimant had some vocationally-related complaints, but noted an inconsistent history, and believed her other events reported were more significant in causing her systems. He ultimately opined, and the ALJ adopted his opinion that her May 24, 2011, accident was not the prevailing factor in her whole body impairment. Her claim was therefore denied by Judge Sanders.

„„ Nature and Extent „„ Future Medical Benefits „„ Penalties Pursuant to K.S.A. 44512. Kailihiwa v. State of Kansas and State Self-Insurance Fund, No. 1,062,197. Claimant was injured on June 29, 2012, while working as a developmental disability technician for respondent. Claimant was initially provided with medical treatment and then referred for injections on Aug. 31, 2012. These injections were denied and temporary total disability was ceased at that time, however, as the claim was denied by respondent. The claimant proceeded to regular hearing and the ALJ reviewed differing opinions on functional impairment: 8% from Dr. Prostic and 6% from Dr. Zarr. Dr. Zarr recommended the claimant have epidural steroid injections, work hardening, and an EMG if symptoms worsened. Dr. Prostic believed epidural steroids should not be done unless symptoms worsened. The claimant sought penalties pursuant to K.S.A. 44-512b (a) for the employer wrongfully cutting off medical treatment and TTD in August 2011. The ALJ determined the 8% of Dr. Prostic, who used the injury model, was more appropriate. She did not find that certain findings of Dr. Gilbert, who did not testify, supported a finding of a 10% functional impairment as radiculopathy, but his reports were not admitted into evidence. Judge Sanders authorized a specific doctor to provide post-award medical treatment recommended by Dr. Zarr, and refused to award penalties pursuant to K.S.A. 44-512b(a) as she did not believe failing to provide medical benefits or TTD were proper reasons to award penalties under that statute. „„ Prevailing Factor „„ Preexisting Condition Biggs v. Kansas Kids Daycare and West Bend Mutual Insurance, No. 1,062,837. Claimant was on a fieldtrip for Kansas Kids Daycare on Aug. 4, 2011, when her foot got caught on a clump of grass and she fell to the


Journal of the Kansas Association for Justice  47

ground, and suffered a femoral neck fracture. The respondent paid $60,795.61 in medical benefits and $1,857.22 in temporary total disability benefits. According to the file record, the claimant has suffered from brittle bone disease since a young age and has a specific diagnosis of osteogenesis imperfecta. The claimant did not appear at her regular hearing and did not offer any evidence. The respondent offered a report by Dr. Scott Cook, an orthopedic surgeon, who stated that it is unlikely given the way the patient describes her fall on the grass onto mainly her elbow that she would have suffered the femoral neck injury if not for her underlying diagnosis of brittle bone disease. Therefore, he stated the prevailing factor for her resulting disability, medical treatment, etc., was not her fall. Judge Sanders denied the claim in its entirety as there was uncontroverted evidence in regard to the prevailing factor not being the fall she sustained at work.

was treated by Dr. Zarr. Claimant was put on light duty by Dr. Zarr, and was ultimately terminated by respondent in June or July 2012. He has not worked since that time. The claimant applied for approximately 50 to 150 jobs, registered with the Job Services Center, and was evaluated by both Doug Lindahl and Steve Benjamin. Dr. Zarr restricted him initially,

and even though his condition did not change, ultimately released him to full duty. Dr. Zarr rated him at 10% of the body. Dr. Murati rated him at 28% of the body and opined a 75% task loss. After reviewing all of the medical opinions, Doug Lindahl opined that the claimant was permanently and totally disabled. Steve Benjamin testified that if Dr. Zarr’s opinions are utilized as to

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„„ Nature and Extent „„ Permanent Total Disability „„ Future Medical Benefits Howell v. Russell Stover Candies and Travelers Indemnity Company, No. 1,057,830. Claimant was working for respondent on Aug. 14, 2011 in sanitation, when he slipped on a wet floor. He injured multiple body parts and

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48  Journal of the Kansas Association for Justice

restrictions, he could return to a wage of $392.80. He stated that the claimant’s age of 68 was not as big of a barrier to employment as it was 20 years ago. Judge Sanders found the claimant to be permanently and totally disabled, and awarded medical benefits with an authorized pain management doctor or the claimant’s own physician as claimant was currently paying for his own pain medicine at the time of the award. „„ Notice „„ Arising Out of and In the Course of Employment „„ Nature and Extent Esparza v. Drywall Systems, Inc. and ACE American Insurance Co., No. 1,056,594. Claimant worked as a framer for respondent and claimed repetitive trauma injuries up to June 13, 2011. He last worked for the respondent on June 10, 2011. Claimant testified he told at least two supervisors about his injury or the fact that he was going to a chiropractor for his back. He stated that one of his supervisors responded by making smart remarks. The claimant typed up a form on July 15, 2011, stating that he was claiming workers compensation benefits from a series of accidents from November 2010 to June 13, 2011. The claimant told various medical providers and others different versions as to which job he hurt himself on, and was not very specific in his reporting of his version of how he had hurt himself after the claim was given to his employer on July 15, 2011. Workers Compensation Section Meeting Thursday, December 5, 2013 Westin Kansas City at Crown Center Visit www.ksaj.org/annualmeeting for more information.

Four different employer witnesses testified claimant told them his injury was not work related, and that it happened doing lawn work or moving furniture. They stated that he began to tie the injury to his job when he was told that he couldn’t get workers compensation benefits or unemployment because he had not been hurt on the job. The claimant’s attorney sent him to Dr. Fluter, who rendered an opinion that he had a 15% impairment and that the prevailing factor was his work-related injury. However, the other physicians who testified stated the claimant either did not relate the condition to work or gave conflicting statements to them. The parties stipulated to an accident date of June 10, 2011. The ALJ found that notice was not timely as his typed accident report was over 30 days subsequent to that date. She did not believe notice was given to the other supervisors. Further, she denied the claim based upon prevailing factor as Dr. Fluter was the only doctor testifying with this opinion and the other physicians were given inconsistent or conflicting information. „„ Nature and Extent „„ Date of Accident Sachs v. City of Topeka and City of Topeka, Nos. 1,053,921, 1,053,922, & 1,053,925. Claimant was employed by the City for approximately six years in the water department. He claimed three different accidents and docketed all three. He was terminated from the respondent on Dec. 11, 2011, for excessive absences and as of the regular hearing date remained unemployed. In the first docketed claim, the ALJ found his accident date to be Dec. 23, 2010, and found a 5% loss of use of his right forearm and left forearm. In the second claim, the court found an accident date of Jan. 7, 2011, and awarded a 10% loss of use of the left shoulder. In the last docketed claim, the claimant’s accident date was found to be Nov. 16, 2010, with a functional impairment only case being awarded of 5% up through his date of termination, and

then a 56% work disability from that date forward. Both Drs. Prostic and Fevurly testified in this case and the ultimate 5% whole body impairment was sufficient to obtain a work disability under this old law case, in spite of evidence of preexisting impairment and opinions from Dr. Fevurly that brought his functional down to 5% of the body. „„ Prevailing Factor „„ Preexisiting Condition Le v. Armour Eckrich Meats and Safety National Casualty Corporation, No. 1,057,643. Claimant had worked for the respondent in food production packing for 11 years when she slipped and fell in a walk-in cooler on Aug. 8, 2011. She worked light duty for the respondent up through Nov. 23, 2011, at which time she believed she was not capable of continuing. She has not worked anywhere since then. She had back pain prior to her date of accident if standing too long, and had been prescribed medication. She also had a bone scan after the accident that showed she had severe osteoporosis. Her treating physician testified that the prevailing factor for her symptoms was the fall, as did Dr. Murati on behalf of the claimant. Dr. Cicarelli testified that the claimant’s osteoporosis was a preexisting condition, which was exacerbated by her fall. He did rate her impairment as being 15% of the body as related to the fracture in her spine from the fall, but did not believe her restrictions were related to the fall. He did recommend she not return to that work as she may suffer further injury. Dr. Murati testified that the claimant’s work injury was the prevailing factor in her resulting disability. Dr. Robert Barnett testified that she was permanently and totally disabled. Judge Sanders found that she did not suffer a mere exacerbation or aggravation of a preexisting condition. She found that her accident arose out of and occurred in the course of her employment, and awarded a permanent total disability. p


Journal of the Kansas Association for Justice  49

• Worth Noting

Member Updates  Katherine L. Kirk, Lawrence, will serve as President of the Kansas Bar Association Foundation, effective July 1, 2013 through June 30, 2014.  The law offices of Valentine, Zimmerman & Zimmerman, P.A., have reported a change in firm name to: Zimmerman & Zimmerman, P.A. The firm can be reached at 909 E. Quincy St., Topeka, KS 66612. Phone: (785) 357-0021. Fax: (785) 357-1548. Contact and majority shareholder: Angel Zimmerman, angel@z2law.com.  Kana R. Lydick, Lawrence, reported her recent change in name to Kana R. Roller.  The Law Office of Patrick R. Nichols reported the following change of address: Patrick Nichols, CHTD and Associates in Dispute Resolution, LLC; PO Box 442202, Lawrence, KS 66044. Phone: (785) 865-3700. Fax: (785) 7835421.

KANSAS ASSOCIATION FOR

JUSTICE

Join the KsAJ Speakers Bureau! The Public Affairs Committee will continue the Speakers Bureau for its third year. Through this initiative, KsAJ members have presented to community groups across the state on the topic of preserving basic liberties and fundamental rights. Events are currently being scheduled for this fall. If you are interested in presenting to individuals in your community about this important issue, please contact Emily Wilson at ewilson@ksaj.org or (785) 232-7756. Recent/Upcoming Events Include: • August 19 — Joe Huerter, Topeka Lion's Club • August 29 — Mike Fleming, Atchison Rotary • September 12 — Tim Pickell, Leawood Rotary • September 13 — Joe Huerter, Topeka South Rotary

Welcome New & Returning Members! Paula Brown, Kansas City

Timothy Bunson, Edmond

Ryan Fowler, Leawood

Tom Pickert, Leawood

Ronald Shalz, Colby

AAJ Annual Summer Convention in San Francisco — News from the Birth Trauma Litigation Group AAJ’s Birth Trauma Litigation Group (BTLG) held its annual summer seminar on July 21, 2013, in San Francisco during the AAJ’s Annual Summer Convention. Approximately 80 plaintiff lawyers from across the country were in attendance to learn from expert medical physician speakers and medical malpractice expert witnesses about how to litigate these complicated medical malpractice cases, which entail catastrophic injuries. In attendance during the seminar and listening intently to one of the outstanding physician speakers were KsAJ attorneys Ryan Prochaska, Wichita and Larry Wall, Wichita. The moderator, who conducted the program and made speaker

Above: Larry Wall (left) and Ryan Prochaska (right) at the AAJ Birth Trauma Litigation Group's annual summer seminar. Photo courtesy of Brad Prochaska.


50  Journal of the Kansas Association for Justice

arrangements, was the outgoing BTLG Co-Chairman, Bradley J. Prochaska, Wichita, who is now in line to be the chairman of AAJ’s Professional Negligence Section.

Above: Artist's rendering of the Skywalk Memorial. Photo courtesy of Shamberg Johnson & Bergman, Chtd.

Above: Brad Prochaska served as moderator for the Birth Trauma Litigation Group's annual summer seminar. Photo courtesy of Brad Prochaska.

Law Firm Makes Substantial Donation to Skywalk Memorial Foundation In July, the Shamberg, Johnson & Bergman law firm announced it will be providing the Skywalk Memorial Foundation with a substantial donation to be used for the construction of a memorial to remember the victims of the skywalks collapse in 1981. The $20,000 donation arrived just prior to the 32nd anniversary, July 17, 2013, marking the tragedy that claimed the lives of 114 people and injured more than 200 others. The memorial will be built at Hospital Hill Park at 22nd & Gillham in Kansas City, Mo. “This donation helps put us closer to our goal and we thank the attorneys and staff at Shamberg, Johnson & Bergman,” Skywalk Memorial Foundation President Brent Wright said. “We want this to serve as an opportunity for other law firms and lawyers to contribute so we can complete this project for the families of the victims offering them a place they can gather together to reflect and heal.” Shamberg, Johnson & Bergman has a long history with the collapse. During

the litigation process, because of the high volume of cases and number of attorneys, a state court plaintiffs’ committee was formed that included a number of prominent Kansas City plaintiff’s attorneys, including John E. Shamberg and Lynn R. Johnson of Shamberg, Johnson & Bergman. Ultimately, Johnson was one of four attorneys appointed as class counsel for the state class action who worked without compensation to successfully resolve all of the wrongful death and personal injury cases in a manner that assured that all victims were entitled to and received full and fair compensation. This was accomplished through unprecedented cooperation of the attorneys representing all the parties to this complex litigation. “Having worked with and personally known the families affected by this tragedy, our firm is behind the goals and mission of this memorial,” Johnson said. “We believe every law firm or lawyer with any ties to the collapse should contribute. Let’s make this finally happen for these families.” During a tea dance on July 17, 1981, 114 people were killed and 216 others injured when two suspended walkways at the Hyatt Regency Hotel collapsed. It remains the deadliest structural collapse in U.S. history other than the terrorist acts in New York City and Oklahoma City. The Skywalk Memorial Foundation (SMF) is a nonprofit corporation committed to building a memorial to honor the victims and rescuers of that night. Members of the SMF, rescuers

and survivors of the tea dance are featured in The Star’s coffee table book, “The Last Dance: The Skywalks Disaster and a City Changed,” part of its series of historic books chronicling important stories in Kansas City. p

We Want to Hear From You! Help KsAJ keep its records updated by sharing your membership changes with staff at: info@ksaj.org; 719 SW Van Buren, Suite 222, Topeka, KS 66603. Phone: (785) 232-7756. Fax: (785) 2327730. p

Complete Your KsAJ.org Profile Login to www.ksaj.org. Under the “Membership” tab, click the link to “Update Your Information.” Here you will be able to update your basic contact information, member details, practice areas and more! Click “Save Updates” to confirm changes. Personalize your profile further by sending a headshot to KsAJ staff at info@ksaj.org.


Journal of the Kansas Association for Justice  51

KANSAS ASSOCIATION Back FORat the Station…

JUSTICE

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

The Future Looks Bright! Back in the spring of 2010 when I had the opportunity to interview for this position, I shared with the search team that “I would like nothing more than to cap off my career by helping to re-energize your professional association.” I believe — with guidance from leadership and the support of our magnificent staff — we have done just that. As many of you know, I will retire as Executive Director of the Kansas Association for Justice and the Legacy of Justice Foundation effective the end of this month. I have been challenged and fulfilled working on your behalf over the past three years. I am proud of the staff we’ve built, the problems we’ve solved, the difficulties we’ve overcome, the direction we’ve set and the future that lies ahead. As of this writing, the details of our transition plan are still being finalized with the leadership. I have strongly recommended that KsAJ move forward with the staff on board — fulfilling your mission with a staff of four, rather than the five we have had with my involvement. At the time I accepted this position, we quickly began breaking down silos, opening up communication, cross training in critical areas, and empowering staff to take ownership of their

responsibilities. As a result, KsAJ now has a highly cohesive, professional, and talented staff. Each member of the team is motivated to grow in their responsibilities and accountabilities, and each has the imagination to move the organization forward. I gave three months’ notice to allow plenty of time to finish the transfer of duties for which I have been primarily responsible, and that process is going extremely well. You are in good hands… For the record, our plan is to have each and every member of your current staff take on a portion of my prior responsibilities. Callie Jill Denton, JD, will be taking on overall responsibility for strategic direction and governance, while retaining oversight of KsAJ’s public policy and advocacy efforts. As the longest serving member of your current staff (she was hired in January 2005), Callie is our major repository of institutional memory. She will candidly tell you that she has seen the organization at what may have been its least functional point… and she has been a key partner in building the highly performing staff and organization you enjoy today. As an attorney herself, Callie resonates to your issues and is uniquely prepared to help KsAJ

navigate through whatever political and legislative situations may challenge its vision of a fair and just Kansas. As chief executive officer, Callie will be an ex officio member of the Executive Committee, the Foundation Board, Treasurer for the CJ PAC, and will serve as staff executive to the Executive Committee and the Board of Governors. Dereka Pedersen, CPA, will in effect become chief operating officer for the organization. She will support Callie’s leadership by ensuring that staff is addressing all the cyclical challenges they face each leadership year, and still have the time and energy to thoughtfully tackle any new projects or emergent situations. Dereka’s financial knowledge and business acumen have been central to helping us sort out what was in major disarray. With her help, we are today effectively, efficiently and lawfully administering our 501(c)6 educational professional association (KsAJ), our 501(c)3 charitable foundation (LoJF), our political action committee (CJ PAC), and our building with its slate of tenant issues, maintenance concerns, and myriad outside customers utilizing our event spaces. Dereka will become staff executive to the Legacy of Justice Foundation


52  Journal of the Kansas Association for Justice

Board of Directors, and will assist Callie in staffing the Executive Committee and the Board of Governors. She will also assume staff responsibility for the annual Nominating Committee and Awards Committee. Mary Kate Haworth will be expanding her role in a number of ways. In addition to her work as staff executive to the Education Committee and the Annual CLE Seminar planning group, she will become staff executive to the vital and vibrant Membership Committee, and will continue to administer a broad range of member services and association processes. Mary Kate will also assist Dereka in supporting staff duties for the Executive Committee and Board of Governors, and will be assistant staff for the annual Nominating Committee. Mary Kate is valued

on staff for her talent to remain calm and collected through most anything. She is a stabilizing force and her expanded role will contribute to team cohesion. Emily Wilson is also adding challenging responsibilities to her book of business. Besides serving as Managing Editor of KsAJ’s Journal and staff executive to the Public Affairs Committee, she will become assistant staff to the annual Awards Committee, and assume responsibility for administering KsAJ’s Awards Program — a key element in our public outreach initiative. In addition, Emily will become assistant staff executive to the Legacy of Justice Foundation Board, and will be central to the development of new programming to support their mission. Emily is treasured on staff as our “one true extrovert” and an

accomplished “do-er” — she thrives on tackling new challenges and moving them forward. These notations on added responsibilities are just the “icing on the cake” of a robust load of ongoing staff duties to support leadership initiatives which are building KsAJ into a highly respected, effective and values-based specialty bar. Please consider how YOU might become more involved in your constellation of organizations — the association, the Foundation, and/or the political action committee. Reach out to leadership or staff to share your passion…so we can help you find a role in which you can contribute. The future is bright. Your ideas and participation help it glow even brighter. Thank you for giving me the opportunity to serve KsAJ and LoJF.p

Thank You, Charlotte! Charlotte Krebs joined us as our Executive Director in July 2010. As a veteran association executive with over 20 years of experience, she desired the opportunity to champion a professional association whose members make a difference in the civil justice system and the lives of their clients. In accepting the position, Charlotte bravely took on numerous challenges with great vision, energy and skill. Since the start of her tenure, the association and affiliated organizations have been revitalized. Operational functions have been clarified, financial systems have been stabilized, and volunteer member engagement has been reinvigorated. In addition, Charlotte's vision has directed KsAJ's sister organization, the Legacy of Justice Foundation, toward a path to success and accomplishing its charitable mission as a 501(c)3 foundation.

Charlotte A. Krebs, MA, CAE KsAJ Executive Director 2010-2013

For her thoughtful leadership and dedication to reinvigorating the Kansas Association for Justice and the Legacy of Justice Foundation, the members and staff offer their sincerest thanks and gratitude. Best wishes, Charlotte, as you begin your retirement!


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