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Vol. XXXVI, No. 6

July 2013

JOURNAL of the Kansas Association for Justice

Who Is That Mystery Man in the Operating Room? Manufacturer Representatives Scrub in for Surgery James R. Howell

Why Criminal-Defense Lawyers Love Their Work (And You Should Too) Daniel E. Monnat, Paige A. Nichols and Jennifer Roth

Liability Insurance for Intentional Torts: An Introduction to Coverage for Personal and Advertising Injury N. Russell Hazlewood

2013 Legislative Session Report Callie Jill Denton

KANSAS ASSOCIATION FOR

JUSTICE


a tradition of Success

John M. Parisi

Victor A. Bergman Matthew E. Birch

Scott E. Nutter Lynn R. Johnson

Our Experience Pays 816-474-0004

We have a long history of success inside and outside the

www.sjblaw.com

courtroom. For over 40 years, we have maximized the value of cases referred to our firm and we will continue

2600 Grand Boulevard, Suite 550 Kansas City, MO 64108

to do so into the future. If you have a client with a serious injury or death, we will welcome a referral or opportunity to form a co-counsel relationship.


Journal of the Kansas Association for Justice  1

Board of Editors

CO-CHAIR & LEAD COLUMN James R. Howell 7701 E. Kellogg, Ste. 415 Wichita, KS 67207 316-683-9080 CO-CHAIR & TRIAL TACTICS David Morantz 2600 Grand Blvd., Ste. 550 Kansas City, MO 64105 816-474-0004 CONSUMER LAW Edward L. Robinson 500 N. Market Wichita, KS 67214 316-262-9393 CRIMINAL LAW Daniel E. Monnat 200 W. Douglas, Ste. 830 Wichita, KS 67202 316-264-2800 EVIDENCE & CIVIL PROCEDURE Derek S. Casey 2959 N. Rock Road, Ste. 300 Wichita, KS 67226 316-630-8100 FAMILY LAW Douglas C. Cranmer 300 W. Douglas, Ste. 430 Wichita, KS 67202 316-264-9137 INSURANCE LAW N. Russell Hazlewood 218 North Mosley Wichita, KS 67202 316-266-4058 MEDICAL-LEGAL Daniel B. Giroux 7701 E. Kellogg, Ste. 415 Wichita, KS 67207 316-683-9080 NEGOTIATIONS, SETTLEMENTS & TRIAL APPROACHES Patrick R. Nichols 5200 W. Bob Billings Pkwy., Ste. 302 Lawrence, KS 66049 785-865-3700 PRODUCT LIABILITY Patrick A. Hamilton 13420 Santa Fe Trail Drive Lenexa, KS 66215 913-888-7100 PROFESSIONAL NEGLIGENCE John W. Johnson 300 N. Mead, Ste. 200 Wichita, KS 67202-2722 316-262-2671 SETTLEMENTS & VERDICTS Robin Maxon 117 Redbud Lane Topeka, KS 66606 785-354-1599

Vol. XXXVI, No. 6  July 2013

Lead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Who Is That Mystery Man in the Operating Room? Manufacturer Representatives Scrub in for Surgery By James R. Howell

Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Why Criminal-Defense Lawyers Love Their Work (And You Should Too) By Daniel E. Monnat, Paige A. Nichols and Jennifer Roth

Insurance Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Liability Insurance for Intentional Torts: An Introduction to Coverage for Personal and Advertising Injury By N. Russell Hazlewood

Public Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 2013 Legislative Session Report By Callie Jill Denton

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

Workers Compensation Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

WORKERS COMPENSATION REVIEW Joseph Seiwert 2628 S. Oliver, Ste. 104 Wichita, KS 67210 316-686-6113

Worth Noting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

MANAGING EDITOR Emily Wilson

AAJ Update. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

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

Settlements & Verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Back at the Station: News from KsAJ Staff at Fire Station No. 2. . . . . 48 Charlotte A. Krebs, MA, CAE

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


2  Journal of the Kansas Association for Justice

KsAJ EAglEs, govErnors & sustAining MEMbErs

your support!

GOLDEN EAGLE $20,000 Bradley J. Prochaska

CHAMPION EAGLE $7,500-$9,999 Lynn R. Johnson

BARRISTER EAGLE $5,000-$7,499 Robert L. Pottroff

BENEFACTOR EAGLE $3,500-$4,999 Victor A. Bergman Jeff K. Cooper Pedro L. Irigonegaray Dan Lykins James E. Martin Ronald P. Pope

KsAJ EAglEs, govErnors & sustAining MEMbErs

Thank You for

ADVOCATE EAGLE $1,600-$2,499 Timothy V. Pickell

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H. William McIntosh

Ben Schmitt

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Roger W. McLean

Craig Shultz

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Daniel E. Monnat

Fred Spigarelli

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PATRON EAGLE $2,500-$3,499

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Matthew E. Birch

Michael Crow

David A. Hoffman

Andrew L. Oswald

William Greg Wright

Dennis M. Clyde

Grant L. Davis

Joseph P. Huerter

Gary E. Patterson

Mitchell Wulfekoetter

Roger D. Fincher

David C. DeGreeff

John W. Johnson

Dennis L. Phelps

Larry W. Wall

C. Albert Herdoiza

Honored Eagles

Ryan E. Hodge

Endowed Eagle Emeritus Eagle

Dennis L. Horner Scott J. Mann

John E. Shamberg Edward J. Hund

John M. Parisi William L. Phalen

Governors

Joseph Seiwert Michael L. Snider

Ruth Benien

Meaghan M. Girard

George H. Pearson

Zackery E. Reynolds

Frank D. Taff

Stephen L. Brave

Daniel B. Giroux

Bradley A. Pistotnik

Gerard C. Scott

Donald W. Vasos

Tamara J. Collins

Garry L. Howard

Judy A. Pope

Michael L. Sexton

Michael R. Wallace

James M. Crabtree

James R. Howell

Bradley Post

Steve Six

Gary D. White Jr.

David Curotto

Patrick R. Nichols

Derek H. Potts

Will Wohlford

G. Michael Fatall

Anne H. Pankratz

Randall J. Price

Sustaining Members In tribute to our bedrock Sustaining Members, thanks to this edition’s random selection... R. Clark Allemang

Geoffrey Clark

Thomas E. Hammond Sr.

Tim Pringle

Douglas R. Bradley

Robert W. Coykendall

Gary E. Laughlin

Lee H. Tetwiler

Jay F. Fowler

James S. Oswalt


Journal of the Kansas Association for Justice  3

KANSAS ASSOCIATION FOR

From the President JUSTICE

Jeffery L. Carmichael

It seems like just a minute ago I was accepting the presidential gavel from Karen Renwick, and now I am concluding my term as president. Writing this final column affords me the chance to reflect on our successes over the past year and to thank those who helped with that success. With the leadership of the Executive Committee, including our hard working program chairs, we accomplished a great deal. The Chairs had the knowledge, experience and willingness to get things done, and for that, I thank them. As Education Chair, Matt Birch and his committee revitalized KsAJ's Continuing Legal Education program with seminars focused on trending topics for today's practitioners — including those new-to-practice and seasoned attorneys. Over a third of KsAJ’s membership attended one or more CLE seminars in the past year. Nearly 40 members have enjoyed the new online webinars offered through KsAJ. The Education Committee did a fantastic job on this year’s programs. Thank you to Matt and his committee for all of your hard work. During a lengthy legislative Session that went nine days into overtime, we were fortunate to have a vigilant Legislative Advocacy team. Thank you to Legislative Chair Mike Fleming for helping to keep the association on track toward preserving our basic civil liberties. I worked with Mike quite a bit this year and had the honor of appearing with him at several legislative functions. The most notable outcome of the session was KsAJ's principled stance on

the issue of merit selection for judges and justices, which was subsequently reflected in the action of others including KBA, coalition partners and others. Mike did a wonderful job; I applaud his efforts and those of his dedicated committee. The Membership Committee, chaired by Kathy Kirk, tackled a number of initiatives this year including membership recruitment and the recommendation that KsAJ adopt the KBA Pillars of Professionalism, which the Board unanimously approved. I encourage you to take a look at these guidelines on the website (www.ksaj.org/pillars). An organized brainstorming session and phone-a-thon have yielded great ideas about how to move forward with membership recruitment. Many thanks to Kathy and the committee for their efforts to grow and sustain our organization. Over the past few years our Public Affairs Committee has seen a rebirth. Chaired by David Rebein, the committee has done a fabulous job to advance the image of trial lawyers in Kansas. David worked to develop the KsAJ's Speakers Bureau, a group that now includes 15 presenters from around Kansas. Initial presentations have been based on the need to preserve the independence of the judiciary and the right to trial by jury in Kansas. Speaking engagements have included numerous community groups, such as Rotary and Kiwanis clubs, from Kansas City to Western Kansas and many more in between! I am extremely proud of

the outreach that David and the Public Affairs Committee have been able to establish. Lastly, I would like to thank our staff, lobbyists and executive director for their assistance this year. Staff has made my life a whole lot easier. You have helped me be on time, on task and on message. I really appreciate your hard work. Thank you to Jen, John and Callie for all of your hard work during the Session in the face of increasing pressures on our profession. You have navigated a tough legislative climate well and our organization is stronger because of your efforts. Charlotte, you have done a wonderful job turning the organization around and have been great to work with. Now I get to pass the baton in the form of a gavel to our incoming president Dale Bennett, who I know will do an excellent job in leadership. I have enjoyed working with him this past year. Dale served in past as our Membership Chair and his experience will work to KsAJ’s advantage as we seek to swell the membership for the benefit of our profession and for the citizens of Kansas. Dale, I wish you the very best as you begin your journey as KsAJ president. For me, the presidency was a very rewarding experience. It truly has been a privilege to serve as your president this year, and I have had a great time doing so. Thank you for having me as your 2012-13 President. I plan to continue contributing to the association in any way that I can. Best wishes in the new program year! p


4  Journal of the Kansas Association for Justice

u LEAD

Who Is That Mystery Man in the Operating Room? Manufacturer Representatives Scrub in for Surgery 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 currently chairs the KsAJ Board of Editors. He is also a member of the Kansas and American bar associations and the American Association for Justice.

Having an aortic stent-graft placed? Getting a knee replacement? Having a femoral rod placed? If so, there is a strong likelihood that there is a mystery person in the operating room who is not an employee of the hospital or the surgeon you hired. In fact, that gowned mystery man may be scrubbed in and participating in your surgery! With modern technology and scientific development on the rise, new medical devices are entering the marketplace almost every day. Some medical devices are so innovative and their use so complex, manufacturers send out their sales representatives not only to sell their wares, but also to assist with their use. In many instances, when the medical device is used in surgery, the representatives not only observe the surgery, they are often called upon to assist the surgeon or surgical team with the selection, assembly, implantation or calibration of the medical device. While manufacturers in days past were able to shield themselves from any liability on the part of their representatives, with new highly technical medical devices this is no longer necessarily so. With comparative fault principles in play, the fault of the representative is fair game for comparison in instances where a medical device company representative is actually involved in the selection, assembly, implantation, placement or calibration of the medical device and his or her involvement causes or contributes to an avoidable injury.1 In these instances, liability generally attaches on the basis that the representative is engaging

in the broadly defined “unauthorized practice of medicine” or violated a duty imposed under Section 324A of the Restatement (Second) of Torts.

Liability Under Section 324A of the Restatement (Second) of Torts Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertakings, if (a) his failure to exercise reasonable care increases the risk of such harm; (b) he has undertaken to perform a duty owed by the other to the third person; or, (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Obviously, 324A creates a duty upon a manufacturer’s representative who is present in the operating room and involved in the selection, assembly, implantation, placement or calibration of a medical device. When the acts and omissions of the representative cause or contribute to an avoidable injury, then liability should attach under 324A. For example, see Chamian v. Sharplan Lasers, Inc., No. 20000171, 2004 WL 2341569 (Mass. Super. Sept. 24, 2004).2 In Chamian, the court denied the defendant’s motion for summary judgment


Journal of the Kansas Association for Justice  5

reasoning that by providing a technician to assist in the surgery, Sharplan, the distributor of a skin laser machine, assumed a duty to ensure that the representative was knowledgeable about the equipment and competent to provide technical assistance to the physician.

Liability for the Unauthorized Practice of Medicine

Although the AMA Code of Medical Ethics states that manufacturers of medical devices may facilitate their use through industry representatives who can play an important role in patient safety and quality of care by providing information about the proper use of the device or equipment as well as technical assistance to physicians,

liability can still attach for the acts and omissions of their company representatives under the more nebulous theory of imposing liability for the unauthorized practice of medicine. Generally, a medical device company cannot be held liable for the unauthorized practice of medicine merely because its representative is present in the operating room.4 Rather, the representative must participate in some way in the treatment of the patient or exercise medical judgment.5 There are a number of sources to consider in your quest to impose liability for the unauthorized practice of medicine. These include the state’s medical act and standards promulgated by various medical organizations or societies.

Practice of the Healing Arts in Kansas

In Kansas, the unauthorized practice of medicine is governed by the Kansas Healing Arts Act, K.S.A. 65-2800 et seq. K.S.A. 65-2803(a) provides: It shall be unlawful for any person who is not licensed under the Kansas Healing Arts Act or whose license has been revoked or suspended to engage in the practice of the healing arts as defined in the Kansas Healing Arts Act.

The Act defines “healing arts” to include any system, treatment, operation, diagnosis, prescription, or practice for the attainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, or injury, and includes specifically but not by way of limitation the practice of medicine and surgery; the practice of osteopathic medicine and surgery; and the practice of chiropractic.6 As is obvious, what constitutes engagement in the practice of the healing arts in Kansas is very broad. Accordingly, it is not too difficult to bring the acts or omissions of a representative in the operating room who is involved in the selection, assembly, implantation, placement or calibration of the medical device into the purviews of the act. Furthermore, corporations and their employees may not practice the healing arts in Kansas.7 So, unless the medical device company’s representative is duly licensed in Kansas, he or she cannot do anything that would constitute the practice of the healing arts.

Other Sources To Establish Unauthorized Practice of Medicine Another source of guidance on the unauthorized practice of medicine by medical device representatives is the American College of Surgeons. ACS recommends that sales representatives act as advisors only to ensure the safe and effective use their medical devices. Specifically, the ACS states the sales representatives: 1. May not engage in the practice of surgery, nursing or medical decision making. 2. May not scrub in or be involved in direct patient contact. 3. May be involved in the remote calibration or adjustment of medical devices to the surgeon’s and manufacturer’s specifications. 4. Should have their activities monitored and supported by the surgeon or by the peri-operative nurse

responsible for the patient.8 Similar recommendations have been made by the Emergency Care Research Institute, which recommends sales representatives be educated and establish an understanding of medical issues and principles to protect the safety of the patient as well as staff,9 and the American Association of Perioperative Registered Nurses Position Statement — The Role of the Health Care Industry Representative in the Perioperative/Invasive Procedure Setting.

Application to Practice

So, how do you go about looking for clues that a mystery man may have been in the operating room with your client and he or she caused or contributed to the patient’s death? Lets look at a recent case handled by this author. An elderly gentlemen presented to a surgeon on referral for evaluation of an aortic aneurysm. A decision was made to place a stent graft at the aneurysm site endoscopically. The procedure involves the use of a delivery catheter containing an endovascular graft, which is inserted into an artery in the groin through a small skin incision. The catheter is carefully advanced by continuous fluoroscopy into the aorta where the aneurysm exists. The graft is then positioned such that the top of the graft will not cover any major arteries branching off the aorta such as hose that provide blood to the kidneys, bowel, etc. Once positioned below these important arteries, the graft is opened and expands to the diameter of the aorta thus sealing off the aneurysm and making a new arterial wall in that section of the aorta. The key to proper placement of the stent graft is to make sure it expands below the renal and mesenteric arteries to prevent blocking off blood flow to the kidneys and bowel. Postoperatively, the gentleman’s kidneys shut down and his bowels quit working. The fluoroscopic images were reviewed later the next day and it was noted that the stent graft was placed too high thus covering and closing off the main arteries coming off the aorta that


6  Journal of the Kansas Association for Justice

fed the kidneys and bowel. The gentleman subsequently died after a rescue operation was attempted. Suit was brought against the surgeon who placed the stent graft on the basis that he failed to properly mark on the fluoroscopic monitor where the renal and mesenteric arteries were located and thus placed the stent graft over those arteries closing off the blood supply to the kidneys and bowel — leading to death. The standard of care requires the names and titles of all persons present during a surgery be documented in the medical record. So the first place to start looking for that mystery representative is in the medical record. The clinical documentation sheets for the surgery in this case revealed that a representative for the stent graft manufacturer was present in the operating room during the entire surgery. Initial discovery requests to the surgeon confirmed the representative was present. Further inquiry was made as to why he was there and what role he played in the operation. After receiving the typical four word response and objection, the representative’s deposition was taken, we discovered: 1. The representative’s educational background consisted of a two-year degree in radiology technology; 2. He routinely assisted surgeons in their clinical practice; 3. Surgeons seek his advice as far as aneurysms go, whether their device was good to treat them or not; 4. He routinely supported surgeons in the OR by bringing the products to the OR and working with the surgeons on the placement of the product; 5. He provided those services in the OR during our client’s surgery; 6. He helped locate the renal arteries on the fluoroscopy monitor and marked the monitor where they were located; and,

7. The patient knew nothing about any of this. During the deposition of the surgeon, we discovered: 1. The representative selected the aortic stent graft components to use; 2. The surgeon relied upon the representative to select the stent graft; 3. The representative helped the scrub tech assemble the stent graft delivery system and remove and add components to it during the procedure; 4. When the stent graft was ready to be deployed (below the renal arteries), the representative assisted in locating the renal arteries on the fluoroscopy monitor and marking on the monitor where they were so as to allow the stent graft to be advanced to that point and then deployed; 5. The surgeon relied upon the location and marking made by the representative in advancing and deploying the stent graft; and, 6. The patient knew nothing about any of this. In this case, the representative was present and was clearly involved in the selection and placement of the stent graft. The stent graft was improperly placed (too high thus covering major arteries coming off the aorta that provide blood to the renal arteries, bowel and other organs) leading directly to postoperative complications and death. Applying the aforementioned theories of imposing liability, the representative was both practicing the healing arts without a license and had assumed duties under Section 324A of the Restatement (Second) of Torts. His acts directly caused and contributed to the injuries and death of the patient. So, when considering a surgical case involving a medical device, always

consider whether the medical device company and its representative should be joined in the lawsuit. Otherwise, you may be missing a key defendant. p

ENDNOTES

1 Other legal theories that may be available include: 1) preventing misuse of a medical device; or, 2) failing to communicate a warning to the surgeon about a reported problem, defect or recall with the medical device. 2 The case involved the use of a skin laser with adjustable settings dependent upon the procedure to be performed and the patient’s physical and medical condition. A technician was provided by the distributor of the laser (leased to a physician). The physician asked the technician to program the laser for settings that were not recommended for the patient’s procedure resulting in significant facial scarring. 3 American Medial Association. Opinion 8.047 Industry Representatives in Clinical Settings. Code of Medical Ethics. Chicago, Il: American Medical Association; 2008. 4 See Kennedy v. Medtronic, Inc., 366 Ill App 3d 298 (2006); and Swayze v. McNeil Laboratories, Inc. 807 F2d 464 (5th Cir. 1987); and Labzda v. Purdue Pharma, LP, 292 F Supp 2d 1346 (SD Fla 2003). 5 See Zappola v. Leibinger, 2006 WL 1174448 (Ohio App 8 Dist. 2006) wherein the sales representative recommended use of a product to repair large cranial defects but did not provide the physician with adequate warnings as to the risks inherent in its use — the product fragmented causing CSF leak and 5 surgeries; and, Adkins v. Cytyc Corp, 2008 WL 2680474 (W.D. Va. 2008) wherein patient underwent a endometrial ablation procedure and manufacturer’s representative advised and directed the physician on the proper way to measure the size of the uterus and test integrity of uterine wall before use of the device — incorrect measurement caused patient to suffer thermal burn and colon perforation. 6 K.S.A. 65-2802(a) 7 Early Detection Center, Inc. v. Wilson, 248 Kan. 869, 811 P.2d 860 (1991). 8 American College of Surgeons, “Statement of Health Care Industry Representatives in the Operating Room,” Vol. 85, No.5 (May 2000). 9 ECRI Institute, “Operating Room Risk Management: Sales Representatives and Other Outsiders in the OR,” Volume 2 (Nov. 2007).


Journal of the Kansas Association for Justice  7

u CRIMINAL LAW

Why Criminal-Defense Lawyers Love Their Work (And You Should Too) By Daniel E. Monnat, Paige A. Nichols and Jennifer Roth

Daniel E. Monnat of Monnat & Spurrier, Chtd., has been a practicing criminal-defense lawyer for the past 37 years in his hometown of Wichita, Kan. A cum laude graduate of California State University, San Francisco, he received his J.D. from the Creighton University School of Law. Monnat frequently lectures throughout the United States on a variety of criminal-defense topics and has been listed in The Best Lawyers In America for a quarter of a century. He has also been listed as one of the top 100 Super Lawyers for Kansas and Missouri from 2006 thru 2012. Monnat is a past two term president of the Kansas Association of Criminal-Defense Lawyers, a former member of the Board of Directors of the National Association of Criminal-Defense Lawyers, a member of the KsAJ Board of Governors and Executive Committee, a graduate of the Gerry Spence Trial Lawyer’s College, a Fellow of the American College of Trial Lawyers, the International Academy of Trial Lawyers, and the Litigation Counsel of America. Paige A. Nichols has been a criminal-defense lawyer for 20 years. She lives and works in Lawrence, Kan.

Jennifer Roth has been a public defender in Topeka, Kan., for 15 years. She also serves as the chair of the legislative committee of the Kansas Association of Criminal-Defense Lawyers.

Introduction

Once upon a time, a young law student accepted a summer internship with a law office that represented death-row inmates in post-conviction proceedings. The student was vaguely opposed to the death penalty, but she had no aspirations of becoming a criminal-defense lawyer. The internship was a lark — other students recommended it, and the rumor was that one could wear shorts to the office. The student’s first assignment was to read the transcript of a capital trial and look for errors. As she read, she learned that the defendant had forcefully picked up two women he saw walking down a road late one night, taken them to a remote place, raped them, beat them, and left them for dead. One of the women lived to tell the gruesome tale, and gave very powerful testimony against the defendant at trial. The law student imagined herself in the victim’s shoes. This could have happened to her. The transcript was her first real exposure to the hard facts of a rape and murder case. She was sickened; how could she possibly represent this person? And then she learned the rest of the story. After the defendant had been sentenced to death, new counsel in the case developed evidence that the defendant, a U.S. citizen of foreign birth, had sought asylum in the United States as a young adult fleeing a country mired in civil war. He suffered from post-traumatic stress, and, lacking a local support system, self-medicated with alcohol. He committed his crimes in an alcoholic blackout and had no memory of what he had done. He initially believed he was innocent, and began his trial angry and defensive, convinced that the prosecution was unjust. But he listened to the evidence. He heard the experts and he looked at the physical exhibits. And as he watched the surviving victim describe her ordeal from the witness stand, he recognized some shadow of himself in her description of her assailant’s speech and mannerisms. He listened to her describe how this man had violated her, terrified her, and made her watch as he murdered her friend. And then he understood that he was responsible for this vile crime. By the time the law student was assigned to his case, the defendant — by now long sober — was fighting to give up his appeals and be executed. He believed he deserved nothing less than death.


8  Journal of the Kansas Association for Justice

We relish performing a complex role in a complex system, and, even when we can’t share them, we are thankful for the stories our clients tell us of their lives—stories that inform our understanding of humanity. And thus the student learned that a guilty person might be more than just the sum of his crimes. He might have a conscience. He might have an excuse, or at least an explanation. He might be both willing to change and capable of change. And he might, just maybe, be deserving of mercy. Most criminal-defense lawyers have a story to tell of a client who inspired them to take up or carry on the challenging work of defending. We’ve been telling these stories a lot this year, both in celebration of the golden anniversary of Gideon v. Wainwright,1 and to commemorate the lifework of Anthony Lewis, the great journalist who died this year after decades of giving voice to the powerless within our justice system.2 But we too often only tell these stories to each other — preaching to the choir, as they say. As public and private defenders,3 we offer this article to share with you, our other colleagues, why it is that you may find us so stubborn, obnoxious, and, yes, defensive, while representing our clients in the heat of trial or promoting their interests on the legislative floor. We offer this rather personal article in the spirit of collegiality, and in the hopes of contributing to a deeper appreciation of how a passionate commitment to criminal-defense work helps keep us all safe from injustice.

Gideon v. Wainwright

Our nation’s early history is replete with stories of valiant criminal-defense lawyers, from John Adams, who, for the price of a pair of shoes and at great risk to his political career, represented the despised British soldiers charged in the Boston Massacre,4 to Clarence Darrow, known for, among other courtroom feats, successfully saving the unquestionably guilty Leopold and Loeb from the death penalty.5 But until Clarence Gideon came along, a person accused of a noncapital crime in many state courts had to have money or connections to get representation.6 Gideon had neither. By now, we are all familiar with the story of how the poor, hapless, repeat-offender Clarence Earl Gideon, convicted of breaking and entering a poolroom, hand-wrote a petition to the United States Supreme Court successfully arguing that the federal constitution entitled him to the appointment of counsel. Less familiar is the epilogue to Gideon’s story: how

Fred Turner, the local lawyer appointed to represent Gideon at his retrial, turned what had originally been a slam-dunk for the prosecution into an acquittal. The prosecution’s star witness Henry Cook was a young snitch who was himself a potential suspect in the crime. Turner familiarized himself with Cook in part by picking pears with Cook’s mother before trial and talking to her about her son. Turner’s intelligence gathering paid off in his crossexamination of Cook, when he forced Cook to admit to lying under oath at Gideon’s first trial. Turner’s preparation was otherwise thorough. For instance, a cab driver testified for the prosecution that, after he drove Gideon downtown the morning of the crime, Gideon instructed him: “If anyone asks you where you left me off, you don’t know me; you haven’t seen me.” This testimony was certainly inculpatory. But Turner knew his client well enough to ask the driver on cross-examination why Gideon had said this. The answer? “He had trouble with his wife.”7

Beyond Gideon

Gideon was acquitted, and available evidence suggests that he was wholly innocent of breaking into the poolhall. Consequently, Turner’s enthusiastic representation of Gideon rarely raises eyebrows. But we criminal-defense lawyers only sometimes represent wholly innocent people. We often represent people who are at least partially guilty. Of course, what it means to be “guilty” is a complex question in itself. Some of our clients are not guilty of any crime, but rather are “guilty” of being social outliers. Some of our clients are guilty as charged, but may be deserving of mercy. Some are guilty of something, but not necessarily the crimes charged. Some are guilty of prohibited physical acts, but did not possess the required mental state, or were entrapped, or acted under duress. We make these perhaps obvious points to emphasize that we are not “innocentrists,” i.e., those who believe that the exoneration of innocents is the highest-ranking goal of defense lawyers. We believe that a wrongful conviction is not only a conviction of a person wholly innocent of any crime, but also one that is for the wrong crime; that a wrongful sentence is one that is too harsh despite the convicted person’s guilt; and that a wrongful prosecution includes a factually defensible conviction and sentence that was secured in a wrongful (unconstitutional or unfair) manner. And we stand at the ready to defend even the guiltiest clients with as much zeal as the law allows. How and why have we dedicated ourselves to this task? Numerous authors have discussed the philosophical justifications for the zealous defense of guilty clients.8 Although these authors take myriad positions, two complementary justifications for defense lawyering emerge in the literature: the “client-centered justification” and the “systemic justification.”9 From a client-centered perspective, the zealous defense of guilty persons is necessary as a recognition of every person’s intrinsic worth as a complex human being. This view may


Journal of the Kansas Association for Justice  9

arise from religious principles or a philosophy of secular humanism.10 It subscribes to the “dangerous philosophy of life” that recognizes that criminal conduct may arise from mental illness rather than evil intent.11 And it accepts as a given that, regardless of culpability, everyone “has a natural, inalienable right to be treated as a person.”12 From this perspective, we can appreciate the defense lawyer’s representation of the “person, not the conduct attributed to that person,” and we can accept the lawyer’s undivided loyalty to the otherwise-ostracized client as the necessary work of “giving voice to those who would not otherwise be heard.”13 From a systemic perspective, the zealous defense of even guilty persons is necessary to keep a powerful and sometimes corrupt (or merely sloppy) government in check. Ensuring the constitutional guarantees of procedural justice for all increases public confidence in the system, enhances political freedoms, decreases disobedience to law, and prevents the conviction of innocents.14 Thus, the defense lawyer’s role is that of maximizing society’s interest in the fair administration of justice, even if society’s interest in convicting the guilty appears in individual cases to be thereby compromised.15 As defense lawyers, we don’t think about these justifications every day, but they motivate us over time, as do our egos, our anger at injustice, our empathy, our heroic fantasies, and the emotional satisfaction that comes with being a small source of light in another person’s darkest hour.16 We relish performing a complex role in a complex system, and, even when we can’t share them, we are thankful for the stories our clients tell us of their lives—stories that inform our understanding of humanity.

The Dark Side of Defense Lawyering

Some may assume that, despite our lofty pronouncements to the contrary, criminal-defense lawyers suffer from cognitive dissonance when they represent guilty clients.17 But there are far greater and more immediate burdens on criminal-defense lawyers than the status of our clients. We recognize that the justice system imposes burdens on all of its players, from the police to prosecutors to judges.18 That said, we hope you will indulge us as we share some of the frustrations we feel are unique to criminal-defense lawyering. “How can you defend those people?” Criminal-defense lawyers must field this question everywhere they go, from cocktail hours to church socials to family reunions. As two authors familiar with this burden have asked, “How many times must we face this question and be forced to respond with equanimity and charm? The presumption is that there is something wrong with ‘those people’ and something wrong with those of us who stand by their sides.”19 Popular distaste for our work is so strong that some public defenders jokingly wear buttons or T-shirts that say: “Don’t tell my mother I’m a public defender; she thinks I play piano in a whorehouse.” Both public and private defenders who zealously represent guilty clients are depicted on television and in the movies as ethically shifty at best.20 And even when the media

calls for public-defender funding, it makes no effort to recognize the valiant defenders who do good work daily under nearimpossible conditions, instead describing defenders collectively as apathetic, drug-addicted, meet-’em-and-plead-’em potted plants.21 Criminal-defense lawyers don’t fare much better in the Kansas Legislature, which, in recent years, has passed a number of laws that appear to reflect a belief that criminal-defense lawyers are singularly untrustworthy. For instance, our kind are now required to seek court permission before disclosing certain evidence provided in discovery, including witness “identifiers,” to our clients or “any other person.”22 In other words, we may not share so much as a witness’s address or phone number with a secretary, a paralegal, an investigator, or an expert without first securing a court order. No other category of Kansas lawyers — not prosecutors, and not civil lawyers — must seek such permission. Singling out criminal-defense lawyers in this way not only makes our jobs harder, it “write[s] into law the unsavory presumption that lawyers, usually considered trusted officers of the court, are somehow less trustworthy if they represent a particular class of clients.”23 Finally, no list of defender woes would be complete without mentioning the problem of resources. Gideon’s promise of constitutionally effective counsel for poor people accused of crime simply cannot be met without adequate funding. In these austere days, public defenders manage overwhelming caseloads under increasing pressure to cut costs. And private lawyers who take appointments are shamefully underpaid. Once fee caps and overhead costs are taken into account, the earnings for competently representing a criminal defendant by appointment in Kansas may run as low as minimum wage. These conditions have serious results. Recent studies have shown that “under-funding indigent defense does not save the state money,” but rather increases court and incarceration costs as well as wrongful convictions and disproportionate sentences.24 Additionally, legislative demonstrations of distrust chill defense lawyers from engaging in the legislative process, despite the fact that defenders may be uniquely suited to advise our lawmakers about the need, effectiveness, and cost of justice-related legislation. Lastly, conditions of parsimony and public reproach discourage new lawyers from becoming private or public defenders, and causes burnout in current defense lawyers. These results put the entire justice system at risk.25 But a little respect, trust, and funding goes a long way with criminal-defense lawyers, and we are grateful to all of our colleagues who have given us that and more.

Conclusion

How can we defend those people? “Those people” — our clients — are the underdogs who energize and motivate us, regardless of charge or culpability, from the innocent kid whose “friends” duped him into carrying their pot in his car, to the hard-boiled murderer whose mother still loves him (bless


10  Journal of the Kansas Association for Justice

her heart). Life is messy, and we’re in the thick of it. How can we defend the guilty? Perhaps the better question is “Why don’t you defend the guilty?”26 Here is a thought experiment. Let us all close our eyes and think back upon our lives. What is the worst thing I have ever done? Cheated on a lover or spouse? Hit someone in anger? Taken something that wasn’t mine? Gotten behind the wheel after one or two or 10 too many? Let’s be honest with ourselves; nobody’s listening. Now for the easy part. Is this awful act the thing that defines us? Of course not. Even if we had no excuse for our behavior, “each of us is more than the worst thing we ever did.”27 This is our bottom line; we have never met a client for whom this wasn’t true. As the Bishop who sheltered escaped-convict Jean Valjean in Les Miserables taught us, no person is beyond redemption.28 And thus that tenacious advocacy that frustrates or puzzles you? We hope we never have to, but should the need ever arise, we’ll give it to you or your loved one too. p

ENDNOTES

4

5

6

7

8

9 10

1 372 U.S. 335 (1963). 2 See Adam Liptak, Anthony Lewis, Supreme Court Reporter Who Brought Law to Life, Dies at 85, N.Y. Times A1 (March 26, 2013). 3 Dan Monnat is a private practitioner who has in the past served as appointed counsel; Jen Roth is a public defender; and Paige Nichols has worked as a private practitioner, an appellate defender, and appointed counsel. We don’t presume to speak here on behalf of all of our defender

11

12

colleagues, but, rather, from our individual and shared experiences. John E. Ferling, Setting The World Ablaze: Washington, Adams, Jefferson, and the American Revolution 77 (2002). See also David McCullough, John Adams 65-68 (2001). Accounts of Darrow’s representation of Leopold and Loeb may be found, among other places, in John A. Farrell, Attorney For The Damned 333-60 (2011), and Irving Stone, Clarence Darrow For The Defense 380-421 (1941) (describing this episode of Darrow’s career in a chapter titled “Even the Rich Have Rights!”). This was not the case in Kansas, which since at least the 1930s had required appointment of counsel upon request for indigent people accused of felony offenses. See Kan. Gen. Stat. 62 1304 (1935). For the best factual and legal history of Gideon and his landmark case, nothing beats Anthony Lewis’s account in Gideon’s Trumpet (1964), on which the description in this article is based. See Charles J. Ogletree, Jr., Beyond Justifications: Seeking Motivations to Sustain Public Defenders, 106 Harv. L. Rev. 1239, 1244-60 (1993) (reviewing justifications for defense lawyering). Id. See Abbe Smith & William Montross, The Calling of Criminal Defense, 50 Mercer L. Rev. 443 (1999) (exploring “the connection between Jewish and Christian values and criminal defense work”). See Stone, supra note 5 at 407 (reporting prosecutor’s description of mitigating psychiatric evidence at Leopold and Loeb’s sentencing as “Clarence Darrow’s dangerous philosophy of life!”). Bruce J. Winick, On Autonomy: Legal and Psychological Perspectives, 37 Vill. L. Rev. 1705, 1711, 1716 (1992) (noting that this right is “a value that infuses the Constitution”).

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Journal of the Kansas Association for Justice  11

13 Smith & Montross, supra note 10 at 531, 469. See also Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer Client Relation, 85 Yale L. J. 1060 (1976) (arguing that “[t]he lawyer acts morally because he helps to preserve and express the autonomy of his client vis a vis the legal system”); Ogletree, supra note 8 at 1250 (explaining that “client centered justifications are premised on a vision of the lawyer as a facilitator for the client’s interaction with an otherwise impenetrable legal system”). Some advocates of this justification liken the lawyer-client relationship to a friendship. See Smith & Montrose, supra note 10 at 532 (remarking that “the defense attorney is often the only companion the defendant has”). But see Abbe Smith, The Bounds of Zeal in Criminal Defense: Some Thoughts on Lynne Stewart, 44 S. Tex. L. Rev. 31, 47 (2002) (cautioning against “excessive devotion,” and observing that “[w]hen lawyers get too close to clients…things can go off-course”). 14 See Andrew E. Taslitz, Trying Not to Be like Sisyphus: Can Defense Counsel Overcome Pervasive Status Quo Bias in the Criminal Justice System?, 45 Tex. Tech L. Rev. 315, 386 (2012) (describing the right to counsel as “a right that benefits the system and the people as a whole by increasing the fairness of procedures and the community’s confidence in them”). 15 See id; see also David Luban, The Adversarial System Excuse, in The Good Lawyer: Lawyers’ Roles And Lawyers’ Ethics 92 (David Luban ed., 1983) (noting that “the goal of zealous advocacy in criminal defense is to curtail the power of the state over its citizens…the primary end of the adversary system is not legal justice but the protection of accused individuals against the state or, more generally, the preservation of the proper relation between the state and its subjects”); John B. Mitchell, Reasonable Doubts Are Where You Find Them: A Response to Professor Subin’s Position on the Criminal Lawyer’s “Different Mission,” 1 Geo. J. Legal Ethics 339, 342, 347 (1987) (arguing that the system “help[s] keep innocents out of the process and, at the same time, limit[s] the intrusion of the state into people’s lives,” so that the principal good sought is not “truth” in a factual sense, but rather “the legitimate use of the prosecutor’s power as embodied in the concept of ‘legal guilt’”); Ogletree, supra note 8 at 1258 (explaining that “[t]he adversary system functions not only to find truth, but also, perhaps more fundamentally, to protect individuals from the tyranny of a powerful government. Within this framework, zealous advocacy serves as an effective constraint on the power of the state”); Smith & Montrose, supra note 10 at 527 (observing that “while truth is certainly an important value, it is often in conflict with other values. This is no different for lawyers than it is for anyone else. A narrow focus on truth in the legal system can also be at odds with the needs of poor and disadvantaged people, the struggle for social justice, and other more important moral principles”); 4 William Blackstone, Commentaries 358 (“It is better that ten guilty persons escape, than that one innocent suffer.”); Voltaire, Zadig (1747) (“It is better to risk saving a guilty person than to condemn an innocent one.”). 16 See Ogletree, supra note 8 (proposing empathy and heroism as dual motivations for defense work); Dorothy E. Roberts, Sources of Commitment to Social Justice, 4 Roger Williams U. L. Rev. 175 (1998) (evaluating different approaches for motivating people to “create a just society”); Smith & Montrose, supra note 10 at 452, 509, 533 (accepting systemic justification for criminal-defense lawyering, but offering “virtue ethic” as more sustaining motivation for defense work). 17 See generally Susan Bandes, Repression and Denial in Criminal Lawyering, 9 Buff. Crim. L. Rev. 339, 346 (2006) (examining the “emotional

costs” of criminal-defense lawyering, such as lawyers’ purported “denial or disavowel” of the fact that they “have to defend people accused of acts that are morally objectionable, even horrific”). 18 See Alexis Resnick, et al., Surviving Bench Stress, 49 Fam. Ct. Rev. 610, 610-11 (2011) (describing judicial stress as including “endless caseloads, social isolation, and heightened public scrutiny” in addition to the burdens of conscience that go along with deciding the fates of others); Allie Phillips, The Few and the Proud: Prosecutors Who Vigorously Pursue Animal Cruelty Cases, 42 SEP Prosecutor 20, 23 (2008) (discussing vicarious trauma experienced by prosecutors who handle cases involving violent crimes); Bandes, supra note 17 at 344-45 (noting existence of denial and defense mechanisms among judges, prosecutors, and civil lawyers); Ralph Slovenko, Police Suicide, 18 Med. & L. 149, 149 (1999) (describing police work as “an occupation replete with psychological stress and trauma”). 19 Smith & Montrose, supra note 10 at 446. See also Abbe Smith, Defending Defending: The Case for Unmitigated Zeal on Behalf of People Who Do Terrible Things, 28 Hofstra L. Rev. 925, 933 (2000) (noting that “defending defending may be an endless pursuit”). 20 Query whether Perry Mason would have been so popular were his accused clients not always innocent. American movies that portray as heros those who advocate on behalf of the accused also tend to feature innocents. Some examples of this include The Green Mile, The Hurricane, I Want To Live!, The Thin Blue Line, To Kill A Mockingbird, and, on a lighter note, Legally Blonde and My Cousin Vinny. Rare exceptions include Murder In The First, Dead Man Walking, and Last Dance. And although the defense attorneys on the popular television series The Good Wife have represented guilty clients, the attorneys are more-often-than-not shown to agonize over acts they take on those clients’ behalf. See also Katherine R. Kruse, Lawyers Should Be Lawyers, but What Does That Mean?: A Response to Aiken & Wizner and Smith, 14 Wash. U. J.L. & Pol’y 49, 60 (2004) (noting that “in the world of Hollywood defense lawyers, zealous adversarial advocacy coincides with social justice precisely because the clients are either innocent or else are portrayed as otherwise worthy”); Smith, Defending Defending: supra note 19 at 961 n.52 (observing that “[c]riminal defense has never been terribly popular with the public…. One has only to turn on a typical radio talk show or scan the editorial pages of most newspapers to find disparagement of criminal defense lawyers and their clients”). 21 See Jonathan Rapping, A Promise Worth Keeping: Restoring Fairness to America's Justice System, Huffington Post (March 18, 2013) (decrying court precedent that “has set an embarrassingly low bar [for criminaldefense lawyers] and enabled a system in which lawyers have been unprepared, drug addicted, and even asleep for portions of the trial”); Carrie Johnson, 50 Years after Key Case, Problems Defending the Poor Persist, NPR Morning Edition (March 15, 2013) (quoting law professor for proposition that “[t]here are a lot of stories of what are called meet ’em and plead ’em lawyers”); Andrew Cohen, How Americans Lost the Right to Counsel, 50 Years after ‘Gideon,’ The Atlantic (March 13, 2013) (bemoaning Gideon as “another unfunded mandate,” while broadly describing the overworked, underpaid public defender as “often just a potted plant”). 22 K.S.A. 22-3212(b)(5). 23 Brendan M. Driscoll, The Guantánamo Protective Order, 30 Fordham Int’l L.J. 873, 927 (2007) (analyzing and critiquing protective orders


12  Journal of the Kansas Association for Justice

adopted in Guantánamo cases). Other recent legislation that expresses a unique distrust of defense lawyers includes discovery provisions prohibiting defense lawyers (but not prosecutors) from possessing evidence of alleged child pornography in preparation for trial, and requiring defense lawyers (but not prosecutors) to make certain detailed pretrial disclosures regarding expert witness credentials and testimony. See K.S.A. 22-3212(j); K.S.A. 22-3212b(c)(2). 24 John P. Gross & Jerry J. Cox, The Cost of Representation Compared to the Cost of Incarceration: How Defense Lawyers Reduce the Costs of Running the Criminal Justice System, 37-MAR Champion 22 (2013) (discussing studies). 25 See Ogletree, supra note 8 at 1241 (“The phenomenon of burnout is widespread and can be particularly troubling when it undermines our commitment to the representation of criminal defendants, which in our justice system is a constitutional, if not a moral, imperative.”); Jonathan Rapping, Redefining Success as a Public Defender: a Rallying Cry for Those Most Committed to Gideon’s Promise, 36-JUN Champion 30, 35 (2012) (“It is a grueling task to spend every day pushing back against a system that harbors such low expectations for the quality of representation. It is not surprising that some lawyers enter this system full of idealism but ultimately resign themselves to the status quo. Others simply find it too difficult and leave before the pressure to conform overwhelms them.”). 26 See Barbara Allen Babcock, Defending the Guilty, 32 CLEV. ST. L. REV. 175, 175 (1983 1984). 27 Abbe Smith, In Praise of the Guilty Project: A Criminal Defense Lawyer’s Growing Anxiety About Innocence Projects, 13 U. Pa. J. L. & Soc. Change 315, 324 (2009-2010) (quoting death-penalty lawyer Bryan Stevenson). 28 See Victor Hugo, Les Miserables Vol. I, Book Second, Ch. XII (1862).

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Journal of the Kansas Association for Justice  13

u INSURANCE LAW

Liability Insurance for Intentional Torts: An Introduction to Coverage for Personal and Advertising Injury By N. Russell Hazlewood

Russ Hazlewood is a member of the law firm of Graybill & Hazlewood L.L.C., a trial firm in Wichita, Kan., dedicated to enforcing the rights of consumers and insurance policyholders. Russ graduated from the University of Kansas School of Law in 1997. He is a member of the Kansas Bar Association (president, Litigation Section 2008-09), the Wichita Bar Association, and KsAJ (Board of Governors; Legislative Committee; Insurance Law Editor). KsAJ honored Russ with the Consumer Advocate Award is 2003 and with the Thomas Sullivan Award in 2007.

We are all familiar with the term “personal injury.” In common parlance, the term describes an injury to one’s mind or body. However, in the world of liability insurance, that type of injury is known as “bodily injury.” “Personal injury” is something altogether different — it refers to a category of injury for which available liability insurance coverage is frequently overlooked. Liability insurers and their counsel often attempt to justify the denial of a liability claim by invoking the well-known, but also non-existent “intentional act exclusion.” In some instances, counsel for the claimant, personal counsel for the liability insured, and even courts get caught up in this misnomer, because they fail to understand that the insurance policy at issue does not exclude coverage for intentional acts.1 Sometimes, these common misunderstandings result in circumstances where a claimant does not recover or where a liability insured is not afforded a defense or indemnity for a covered claim. This article is intended to help the reader recognize and exploit coverage for personal and advertising injury. Most lawyers are familiar with Coverage A in a standard form commercial general liability insurance policy (or CGL). The Coverage A insuring agreement obligates the insurer to pay the insured’s legal liability to pay damages because of bodily injury or property damage caused by an “occurrence” (or accident) to which the insurance applies.2 The insurer has both the right and duty to defend the insured from

a suit seeking those damages. Coverage A defines “bodily injury” the way most people think of personal injury, i.e., “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.”3 Fewer lawyers are knowledgeable about Coverage B, although it is standard in commercial general liability policies. Generally speaking, Coverage B encompasses intellectual property claims and other various torts, and categories of damages that fall outside of Coverage A. With regard to certain offenses, coverage is afforded even where there is no bodily injury or property damage, and even where the conduct complained of was intentional. Coverage B contains a stand-alone insuring agreement covering the insured’s legal obligation to pay damages for personal and advertising injury, to which the insurance applies.4 To be sure, Coverage B does not insure all risks excluded by Coverage A. Coverage is limited to personal and advertising injury, which the policy defines as injury arising out of the invasion of another’s rights by one or more of seven enumerated “offenses:”5 a) False arrest, detention or imprisonment; b) Malicious prosecution; c) The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a


14  Journal of the Kansas Association for Justice

where the insured would have such liability in the absence of the contract or agreement; f) Breach of contract: personal and advertising injury arising out of a breach of contract, except an implied contract to use another’s advertising idea in the insured’s advertisement;

person occupies, committed by or on behalf of its owner, landlord or lessor; d) Oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services; e) Oral or written publication, in any manner, of material that violates a person’s right of privacy; f) The use of another’s advertising idea in [the insured’s] “advertisement;”6 or g) Infringing upon another’s copyright, trade dress or slogan in [the insured’s] “advertisement.” As with Coverage A, the insurer has both the right and duty to defend its insured from a suit seeking damages for personal and advertising injury. Unlike Coverage A, coverage for personal and advertising injury is not triggered by accidental occurrences. (The terms, “occurrence” and “accident,” are nowhere to be found in Coverage B). Notably, coverage under this part may include protection for injuries caused by one or more intentional acts. In fact, most of the offenses covered by Coverage B are, by nature, intentional torts. Nevertheless, as discussed below, the insured’s subjective intentions are not irrelevant. For example, coverage may be excluded for a knowing invasion of

another’s rights, criminal activity, and promotional material that is intentionally misleading. Coverages A and B also contain standalone exclusionary provisions. Stated another way, Coverage A exclusions are irrelevant to claims made under Coverage B and vice versa. Loosely paraphrased, the 16 exclusions applicable only to claims made under Coverage B are: a) Knowing violation of the rights of another: expected personal and advertising injury caused by a knowing violation of the rights of another; b) Material published with knowledge of its falsity: personal and advertising injury arising out of an oral or written publication made at the direction of the insured with knowledge of its falsity; c) Material published prior to the policy period: personal and advertising injury arising out of material whose first publication took place prior to the policy period; d) Criminal acts: personal and advertising injury arising out of a criminal act committed by or at the direction of the insured; e) Contractual liability: personal and advertising injury for which the insured has assumed liability in a contract or agreement, except

g) Failure of the insured’s goods to conform to statements concerning quality or performance: personal and advertising injury arising out of the failure of goods, products or services to conform with any statement of quality or performance made in the insured’s advertisement; h) Wrong description of prices: personal and advertising injury arising out of the wrong description of the price of goods, products or services stated in the insured’s advertisement; i) Infringement of copyright, patent, trademark or trade secret: personal and advertising injury arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights (except for the use of another’s advertising idea in the insured’s advertisement); j) Insureds in media and Internet type businesses: personal and advertising injury committed by an insured whose business is: (1) advertising, broadcasting, publishing or telecasting; (2) designing or determining content of web sites for others; or (3) an Internet search, access, content or service provider, except for the offenses of false arrest, detention or imprisonment; malicious prosecution; and wrongful eviction wrongful entry or invasion of the right of private occupancy of a room, dwelling or premises;


Journal of the Kansas Association for Justice  15

k) Electronic chatrooms or bulletin boards: personal and advertising injury arising out of an electronic chatroom or bulletin board the insured hosts, owns, or controls; l) Unauthorized use of another’s name or product: personal and advertising injury arising out of the unauthorized use of another’s name or product in the insured’s email address, domain name or metatag, or other similar tactics to mislead potential customers; m) Pollution: personal and advertising injury arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of “pollutants” at any time; n) Pollution-related: any loss, cost or expense arising out of any: (1) request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, pollutants; or (2) claim or suit by or on behalf of a governmental authority for damages because of such activities; o) War: personal and advertising injury arising out of war, rebellion, insurrection or the like; and p) Recording and distribution of material or information in violation of law: personal and advertising injury arising out of any action or omission that violates or is alleged to violate: (1) The Telephone Consumer Protection Act; (2) The CANSPAM Act of 2003; (3) The Fair Credit Reporting Act (FCRA) / Fair and Accurate Credit Transactions Act (FACTA); or any law that addresses, prohibits, or limits the printing, dissemination, disposal, collecting, recording, sending, transmitting, communi-

cating or distribution of material or information.7 Although the insuring agreements and exclusions of Coverages A and B are separate and distinct, some other provisions of the policy apply to both. These include Section II – Who is an Insured; Section III – Limits of Insurance (there is a separate limit for personal and advertising injury, subject to the general aggregate limit); and Section IV – Commercial General Liability Conditions. Coverage for personal and advertising injury is not limited to commercial liability insurance forms. Some homeowners and renters liability policies also provide coverage for injuries arising from the enumerated offenses, with similar provisions. Finally, it is important to note that, while personal and advertising injury caused by familiar torts, such as malicious prosecution and defamation, are obviously covered, the word “offense” does not limit personal and advertising injury coverage to any particular cause of action or claim. Here are a few illustrative cases demonstrating the potential breadth and usefulness of the coverage:

Coverage for Intentional Interference with Contract/Business Relations

In Bankwest v. Fidelity & Deposit Co. of Maryland, 63 F.3d 974 (10th Cir.1995), the plaintiff in the underlying action sued his bank for tortious interference with business relations, claiming it told other banks they were estopped from advancing him money. The Tenth Circuit, interpreting Kansas law, held that the bank’s liability insurer was obligated to defend it, under the policy’s personal injury coverage, because the alleged interference was based on the publication of false statements. See also, United Wats, Inc. v. Cincinnati Ins. Co., 971 F. Supp. 1375 (D. Kan. 1997) (Long-distance telephone provider’s tortious interference claim alleging that competitor made false statements about provider in its attempts

to solicit customers was covered under personal injury provision of CGL). The Missouri Supreme Court reached a similar conclusion in McCormack Baron Mgmt. Servs., Inc. v. Am. Guarantee & Liab. Ins. Co., 989 S.W.2d 168 (Mo. 1999). In the underlying case, a security guard employed by a contractor sued a real estate management company for tortious interference with contract, claiming that he was fired because an apartment manager accused him of “insubordination” and asked that he be removed from his post. The Missouri Supreme Court held that the management company’s insurer was obligated to defend the claim, under the personal injury coverage, because the alleged interference involved disparaging remarks.

Coverage for Tenant’s Wrongful Abandonment of Property on Leasehold

In FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167 (Ind. Ct. App. 2012), the Indiana Court of Appeals held that a lessor’s claim against an industrial tenant for abandoning more than 100,000 tons of sand on the leasehold property and subjecting the landlord to environmental liabilities was potentially subject to personal injury coverage for wrongful entry or invasion of the right of private occupancy of a premises.

Coverage for Trespass and Nuisance

In Hartford Fire Ins. Co. v. Gandy Dancer, LLC, 864 F. Supp. 2d 1157 (D. N.M. 2012), the court held that a commercial general liability insurer’s duty to defend was triggered by a landowner’s trespass and nuisance claims against a railroad maintenance contractor, alleging that the construction of a water diversion system caused an invasion onto his property. The court held these claims were arguably within the policy’s personal and advertising injury coverage provision for wrongful eviction, wrongful entry, or invasion of right to privacy. As reflected in the cases cited above, courts everywhere have struggled


16  Journal of the Kansas Association for Justice

with the scope and application of the liability coverage afforded for personal and advertising injury. Because of the legalistic nature of the listed offenses and exclusions, coverage questions involving these claims tend to be hypertechnical and fact-intensive. There is no shortage of reported opinions or articles discussing the various offenses and exclusions, in exhaustive detail. However, the first step to exploiting the benefits of personal and advertising injury coverage is to understand that it exists. So, the next time you find yourself on either side of a dispute involving an intentional tort or other

invasion of the rights of another, it may be well worth your time to revisit this coverage. p

ENDNOTES

1 A standard form liability insurance policy generally excludes coverage for intentional injury, i.e., bodily injury or property damage “intended or expected from the perspective of the insured.” See. e.g., ISO Commercial Liability Coverage Form CG 00 01 04 13 at p. 2. Intentional acts and intentional injury are different concepts. 2 Id. at p. 1. 3 Id. at p. 13.

4 Id., at p. 5. (Some other forms, including ISO’s 1993 CGL form, make separate reference to “personal injury” and “advertising injury.”) 5 Id. at p. 15. 6 “Advertisement” means a notice that is broadcast or published to the general public or specific market segments about the insured’s goods, products or services for the purpose of attracting customers or supporters, including material published on the Internet or by other, similar means. Id. at p. 13. 7 Id. at pp. 6-7.

Thank you to the following individuals who attended one or more KsAJ-sponsored CLE Seminar in 2012-13! (*denotes member attended more than one CLE program)

Gary Albin Frank Allison Timothy Alvarez Peter Andreone Lee Barnett James Barnett James Bartimus* Mark Beam-Ward James Bell Bryce Benedict James Benfer Dale Bennett Matthew Birch Douglas Bradley Sean Brennan Bruce Brumley John Bryan David Byerley* Terrance Campbell* Jeffery Carmichael John Carmichael Derek Chappell Jon Clayton* Chris Clements Bryson Cloon* Dennis Clyde Brian Collignon Robert Collins Lee Cross* Marti Crow Michael Crow David Curotto David DeGreeff Stephen Dickerson Thomas Diehl Norman Douglas Elizabeth Dudley* Frank Eschmann

Margaret Farley* David Farris Elaine Fleetwood Michael Fleming* Meaghan Girard* Daniel Giroux Alan Goering Lawrence Gurney Nathan Harbur Jeremy Harris Danton Hejtmanek Keith Henry Steven Hobson Michael Hodges David Hoffman James Howell Joseph Huerter Tina Huntington* Pedro Irigonegaray N.M. Iverson Lynn Johnson John Johnson* Jeremiah Johnson Kelly Johnston Gary Jordan James Kahler Russell King Katherine Kirk John Klenda Zachary Kolich Charles Kugler Joslyn Kusiak Michael Lawless Jerry Levy Chad Lucas Richard Marquez Kim Martens Michelle Marvel

Orvel Mason* Robin Maxon H. William McIntosh John McKay Cameron Michaud David Morantz Patrik Neustrom* Scott Nutter Michael Oliver Craig Olsen* Rodney Olsen* Anne Pankratz John Parisi Mark Parrish Meredith Peace Ken M. Peterson Gary Peterson Pamela Phalen William Phalen Dennis Phelps Timothy Pickell* Bradley Pistotnik Ronald Pope Robert Pottroff Tim Power Randall Price Scott Price Bradley Prochaska Ryan Prochaska Paul Rebein David Rebein Paul Redfearn Karen Renwick* Nicole Revenaugh Mitchell Rice Roger Riedmiller Peter Robertson Walter Robertson

Edward Robinson William Ronan Conn Sanchez Stephen Sanders* Geoffrey Schmidt Ben Schmitt Ronald L. Schneider* Gerard Scott Joseph Seiwert Michael Sexton* James Shetlar* Craig Shultz Michael Shultz Daniel Singer Steve Six Rachel Smith Drew Steadman Stuart Symmonds Frank Taff James H. Thompson John Tongier Michael Unrein Dustin Van Dyk* Wm. Dirk Vandever Donald Vasos A. Scott Waddell Carl Wagner Larry Wall Michael Wallace Michael Wallis Thomas Warner Gary White Stephanie Wilson* Will Wohlford William Wright Michael Wyatt Melinda Young*


Journal of the Kansas Association for Justice  17

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 John Clark: David H. Farris Judge Pamela Fuller: Tom Fields C. Albert Herdoiza Judge Kenneth Hursh: Steven R. Jarrett Judge Thomas Klein: Dennis L. Phelps Judge Bruce Moore: Scott M. Price Judge Rebecca Sanders: Roger D. Fincher Judge William G. Belden: Stephanie J. Wilson

Appellate Court Decisions Joseph Seiwert

Earlier this year, it seemed that there was not much activity in the Court of Appeals concerning workers compensation. Those appeals that were reported concerned cases that involved injury dates before May 15, 2011, the effective date of the recent legislative changes to the Workers Compensation Act. Nevertheless, there remain a few cases that merit discussion, though that may mean they are more of historical interest rather than guidance to the practitioner. „„ Work Disability For An Undocumented Worker In Fernandez v. McDonald’s, No. 104,951 (Jan. 25, 2013), the Supreme Court approved work disability for an undocumented worker under K.S.A. 44510e. This case had been pending before the Supreme Court for a considerable amount of time. Respondent argued that claimant should be denied work disability because she was not eligible to return to work due to her undocumented status. Since it was illegal for claimant to work, it would be contrary to public policy to award a work disability. The Court did not address respondent’s public policy argument, ruling instead that the work disability statute was not ambiguous and made no exception to work disability based on the injured worker’s immigration status. The Court cited Bergstrom v. Spears Manufacturing, 289 Kan. 605, 214 P.3d 676 (2009) in support of its ruling. The Court also stated that the illegal-

ity of the claimant’s status did not affect her right to recover under the Workers Compensation Act, noting that minors remain covered under the Act even if their employment is illegal. Moreover, the definition of “employee” under K.S.A. 44-508(b) does not mention the legal status of the employee. K.S.A. 44-501(a) specifies “employment to which the workers compensation act applies,” rather than the type of compensation payable. The Court did note that there were changes to K.S.A. 44-510e that in the future will require a worker seeking work disability benefits to show that the person has the legal capacity to enter into a valid employment contract. Presumably, this will prevent an undocumented worker from receiving work disability benefits, but the Court merely noted the changes without specifying what such changes will mean in the future. It is not clear just what is meant by “legal capacity.” The capacity to enter into a contract in general requires legal age and the mental capacity to understand the requirements of the contract. There is no requirement based on alienage. Respondent might well argue that the injured worker’s misrepresentation as to immigration status means that the worker lacks legal capacity to enter into an employment contract. In general, however, such arguments make the employment contract voidable, but not void from the outset. While considering an employer’s liability under the Federal Employers’ Liability Act and not a workers compensation case, the Kansas Supreme Court in White v.


18  Journal of the Kansas Association for Justice

Thompson, 181 Kan. 485, 312 P.2d 612 (1957), reconsidered and aff’d, 183 Kan. 133 (1958), addressed false information provided in an employment application, and whether that would preclude the plaintiff’s recovery of FELA benefits. There the Court stated: Misrepresentations by an employee in an application for employment with an interstate carrier do not render the contract of employment void as to terminate the relation of master and servant and preclude recovery under the Federal Employers’ Liability Act for negligent injuries inflicted upon him where he was found to be in good health and acceptable physical condition at the time of his physical examination and the misrepresentations had no causal relation to his fitness to perform the duties required of him and to the injuries he sustained., notwithstanding they may render the contract voidable and form the basis for its recision by his dismissal. 181

Kan. 485, at Syl. 3.

Would undocumented status mean that a claimant lacks legal capacity to enter into an employment contract? It might make the contract of employment voidable, but would the contract be void from the beginning? When capacity is generally understood to be about age and mental capacity to understand and agree to a contract, alien work status should not be part of the determination for legal capacity, at least in the normal meaning of those words. „„ Injury During Recreational Activities Douglas v. Ad Astra Information Systems, L.L.C., No. 101,445 (Feb. 8, 2013), addressed claimant’s injury during a “team building” exercise that involved racing go-carts one afternoon rather than remaining at the office and working. The company owners characterized the afternoon as a “thank you” to the employees and was a “fun event.” The owner discussed a new product. Attendance was not mandatory, but the employee could either remain at work

or spend the afternoon in recreational activities. The employee was paid during the activity. The employers also testified that employees were encouraged to attend the recreational event, but were not required to do so. Claimant was injured in a go-cart accident while in a race with his coworkers. Racing go-carts was not something claimant would normally do, but he participated in the event as a member of the team. The ALJ and the Board found that claimant was injured during the course of his employment, even though his injury occurred during a recreational activity in which his attendance was not required. The Board used liberal construction to bring employees and employers alike under the protection of the Act. K.S.A. 44-508(f) specifies that injuries that occur during recreational or social events where the employee was under no duty to attend and where the injury did not result from the performance of tasks related to the employee’s normal job duties or as specifically instructed to be performed by the employer.

The Board found that the Act did not define what a recreational or social event was and looked to Larson’s for guidance. The Board reviewed 2 Larson’s Workers’ Compensation Law § 22.01 (2009), concluding that the factors that bring recreational activities under the cover of workers compensation are: 1. whether the employer “expressly or impliedly” requires participation; 2. whether the employer derives a benefit from the employee’s participation beyond the employee’s health or morale; and 3. whether the activities occur on the employer’s premises during lunch or recreation period as a regular incident of employment.

The Board found that all three factors were met. The employee felt “some

duty” to attend the event. The employer sought to build teamwork through the activity. While claimant was not on the employer’s premises, claimant was paid his regular wages and the employer had reserved the go-cart facility for the exclusive use of the employer. Accordingly, the Board awarded benefits. The Court of Appeals affirmed, with one dissent. The dissent believed that the Board had erred in following the Larson factors set out above. Rather than refer to Larson, the dissent argued that the Board should follow the statutory language, and that “recreational activity” was not ambiguous and should be interpreted on its own rather than refer to a treatise. Likewise, the dissent argued that “no duty to attend” the recreational activity was the same as “under no duty to attend.” Since attendance was not mandatory, the dissent reasoned, there was no duty to attend and thus the recreational activity was not covered by worker compensation. The Supreme Court agreed with the dissent that there was no need to resort to Larson’s treatise because “recreational activity” was not ambiguous. The Court disagreed with the dissent concerning the duty to attend the event. “Some duty” or an implied duty to attend the event is not the same as “no duty” to attend. The Court remanded the case to the Board for factual findings on the issue of a duty to attend. In making the remand, however, the Court noted that the Board’s findings of fact did not consider whether claimant was performing his regular work tasks or tasks as specifically directed by the employer. The Court directed the Board to consider any evidence that might support the claim that one of the owners specifically instructed claimant to race the go-carts, which the Court indicated the Board had not addressed. „„ Work Disability „„ Temporary Total Disability (TTD) Messner v. Continental Plastics Containers, No. 107,035 (March 29, 2013), has an unusual procedural history. Claimant’s case had two numbers, one


Journal of the Kansas Association for Justice  19

a whole body case from a fall on July 8, 1999, and a second a repetitive use injury to the shoulder after returning to work after the fall. Claimant left work for respondent on April 25, 2001. She was paid temporary total disability from April 26, 2001, through Dec. 13, 2002 (33 weeks). During that time, claimant’s personal chiropractor had taken claimant off of work. By Dec. 13, 2002, Dr. Pratt had been authorized to treat claimant and he found that claimant was at maximum medical improvement by that date. Though claimant was initially rated for her injuries in 2003, in 2007 she sought additional medical treatment and underwent shoulder surgery. She was again rated by physicians for both parties. By 2010, nearly 11 years after the initial fall, her case had proceeded to regular hearing. For the 1999 fall, she was awarded an additional 29.57 weeks of TTD, 47.88 weeks of Permanent Partial Disability (PPD) for a 12% whole body functional impairment and a 78.75% work disability. Respondent first argued that claimant’s functional impairment case of 12% to the body as a whole would have paid out before April 26, 2001, when claimant left work and became eligible for a work disability. Citing strict construction, respondent noted that K.S.A. 44-510e(a) sets out the procedure for calculating an award of whole body impairment, and then states: “The resulting award shall be paid for the number of disability weeks at the full payment rate until fully paid or modified.” (Emphasis added) If the award is fully paid out before modification, respondent argued, then the duty to pay ends once the award has fully paid out. The award in this case was never modified. The Court rejected respondent’s argument, stating that the only requirement for different periods of functional impairment and work disability is that the events requiring the change in the award occur within the 415 weeks of compensation. Respondent also challenged one period of temporary total disability where claimant’s chiropractor, who was not authorized to treat claimant, provided

restrictions respondent could not accommodate. The Court found that under K.S.A. 44-510c(b)(2), an authorized physician must make the determination that claimant is completely and temporarily incapable of engaging in any type of substantial and gainful employment. Because the chiropractor was not authorized, the award of TTD was reversed. The case did not discuss the application of K.S.A. 44-510j(h), which allows claimant to choose a treating physician if the respondent unreasonably fails to provide medical treatment. At the time that claimant saw her chiropractor, she was not receiving authorized medical treatment but had been trying to obtain additional treatment on both her whole body case and her subsequent right shoulder case. A petition for review is pending. „„ Going and Coming Rule In Williams v. Petromark Drilling, L.L.C., No. 108,125 (June 7, 2013), the Court of Appeals revisited the “going and coming” rule under K.S.A. 44508(f). This case involves the recurring factual pattern of a drilling crew traveling to remote well sites with the driller gathering the members of his crew for travel and a worker suffering injury during such travel. This factual pattern as described generally is found compensable, as travel is inherent in the job. However, in Williams, the Court addresses a slight change that makes the inherent travel exception not applicable, according to the Court of Appeals. The wrinkle in Williams is that claimant rode to work with the driller on the date of his injury, but rode home with a coworker he had worked with that day at the remote drill site. The driller in this matter usually transported his crew from Great Bend and claimant would obtain his own transportation from his home in Pawnee Rock to Great Bend. That morning a friend had driven him from Pawnee Rock to Great Bend to catch a ride with the driller. Claimant would have to arrange his return transportation from Great Bend to Pawnee Rock at the end of the day.

However, claimant’s coworker had driven his own vehicle rather than travel with the driller and he was able to take claimant to Pawnee Rock, saving claimant the trouble of obtaining a ride from Great Bend to his home. On the way to Pawnee Rock with the coworker, claimant was injured in an accident. The Court discussed the “inherent travel exception” to the going and coming rule. In Craig v. Val Energy, 47 Kan. App. 2d 164 (2012), the Court of Appeals noted that this “exception” was a misnomer and that the “exception” was firmly rooted in the statutory language. Where travel is truly an intrinsic part of the job, the employee already assumes the duties of employment once he or she heads out for the day’s work. Traveling in these circumstances requires the employee to have assumed the duties of employment. The Court in Williams focuses on whether the claimant was furthering respondent’s interests at the time of the injury. An important factor for the Williams Court was whether the driver of the vehicle was paid mileage for driving. This payment underlined the importance of the trip to the employer, and demonstrated the value the employer placed on the trip. The Court stated: The key to resolution of this case is whether Williams’ travel, at the time of the accidental injury, was furthering Petromark’s interests. There was a mutually beneficial transportation arrangement between Williams (free ride to and from the drill site) and Petromark (did not have to pay for crew’s food or lodging or find a new crew at every drill site). But Williams chose to ride from the drill site with LaMaster [his coworker] instead of Roach [his supervisor]. Roach’s travel was definitely inherent to his employment because it furthered Petromark’s interests. The

same cannot be said of Williams’ travel at the time of his accidental injury. He was on a personal mission to get home sooner. The proximate cause of Williams’ injury was LaMaster’s rather than Petromark’s negligence.


20  Journal of the Kansas Association for Justice

If the focus is on Petromark’s interests, the interests cited by the Court —“did not have to pay for crew’s food or lodging or find a new crew at every drill site”— remain the same whether Williams rides home with Roach to Great Bend or with LaMaster to Pawnee Rock. The Court relied on LaRue v. Sierra Petroleum Company, 183 Kan. 153, 325 P.2d 59 (1958) to deny benefits. In LaRue, claimant was injured when his supervisor and he decided to travel home after the workday rather than drive on to the next well site. The rest of the crew stayed near the drill site. The employer in this case did not provide transportation or authorize the driller to provide such transportation and paid no mileage. The travel to claimant’s home was strictly personal and the employer had no interests advanced in this particular trip. Nevertheless, the Williams Court ignored Petromark’s interests in not having to pay for a crew’s food and lodging or finding a new crew at every drill site, and found claimant’s ride home with the coworker was a “personal” rather than “inherent travel” trip. Petromark’s interests were unchanged whether claimant rode with Roach or LaMaster. Moreover, as the Williams Court notes in applying the “inherent travel exception” in Messenger v. Sage Drilling, 9 Kan. App. 2d 435, 680 P.2d 556, rev. denied 235 Kan. 1042(1984), the Messenger Court found that “the drilling crew’s willingness to travel furthered the interests of the employer,” without noting that this factor was present in the Williams case also. Moreover, the Williams Court also cited Scott v. Hughes, 294 Kan. 403, 275 P.3d 890 (2012), stating that the “payment of mileage was critical to the outcome in Messenger….” The full quote from Scott, however, lists other equally important factors, and even cites a case where payment of mileage was not a factor for the “exception” to apply. In Scott, the Court wrote: Payment of mileage was critical to the outcome in Messenger, for example, and so was the absence of a permanent work site and the practical necessity of

daily travel from home to perform job duties [Emphasis added]. The benefit of the worker’s travel to the employer was mentioned explicitly in Messenger …In Bell [v. A.D. Allison Drilling Company], [175 Kan. 41, 264 P.2d 1069 (1953)], the travel inherent in the responsibility for assembly of a crew for a drilling site was persuasive. …In contrast, in LaRue, [supra], the subject derrick man was on a “personal mission having no connection with his employment” at the time he suffered his fatal injury. 183 Kan. at 157, 325 P.2d 59. He was not “moving to another location at the request of his employer, but rather was going home after leaving the duties of his employment.” 183 Kan. at 157, 325 P.2d 59. In other words, the travel in which the derrick man was engaged at the time of the accident offered no benefit to his employer.

Bell, supra, did not involve the payment of any mileage or wages at all during travel time. There, the driller was killed in a car accident while trying to find persons to work on his crew, which was to report to work the next day. The driller and his crew were paid neither mileage or wages other than what they earned while on the job site itself. Nevertheless the Supreme Court found that the inherent travel exception applied to this case. The payment of mileage is but one factor to consider in determining the benefit to the employer. It is not a necessary condition. The Williams Court found that the returning home travel of the driller, Roach, was a benefit to the employer, but not the same type of travel of the injured worker. Scott v. Hughes, supra, was a civil action in which the plaintiff was injured while traveling with his coworker to the drilling job site. Defendant was driving plaintiff to the remote drilling site when the accident occurred. Hughes defended on the basis of the fellow servant immunity under workers compensation. Hughes was intoxicated at the time of the accident and therefore was unable to obtain benefits in his own workers compensation claim.

The usual test in applying the fellow servant immunity and workers compensation is that the immunity applies if the fellow servant would have been covered by workers compensation. Here, defendant was not covered by workers compensation because of the intoxication defense. Defendant moved for summary judgment on the basis that Hughes was within the course and scope of his employment when the accident occurred. The Supreme Court noted that in most cases discussing the inherent travel exception on appeal, the focus has been on whether there was substantial competent evidence to support that finding. Scott involves determining whether there is a material question of fact as to the exception. The Court ruled that as a matter of law, defendant Hughes was within the inherent travel exception of the going and coming rule. The Court did not decide whether plaintiff was within the course and scope of his employment, and did not seem to think this was an issue even though coverage under workers compensation is a necessity if the fellow servant immunity is to apply. The Court cited the following factors to determine that Hughes was within the course of his employment: 1. Hughes was responsible for gathering and hiring his crew; 2. He provided transportation for the crew; 3. He got the crew to the job site on time; 4. The crew worked at various remote job sites; 5. The employer benefitted from the travel of its employees; 6. The work sites changed; and 7. The driller and crew needed to be able to move to different job sites. All of these factors together led to the conclusion that Hughes was within the


Journal of the Kansas Association for Justice  21

inherent travel exception of the going and coming rule as a matter of law, and thus immune from civil suit. The Court set out no rulings concerning the relative importance of the factors, or which were necessary to that conclusion. As a matter of law, however, these factors are sufficient for the exception to apply. If the focus is on Petromark’s interests, the interests cited by the Court — “did not have to pay for crew’s food or lodging or find a new crew at every drill site” — remain the same whether Williams rides home with Roach to Great Bend or with LaMaster to Pawnee Rock. Of the seven factors cited in Scott, four applied to Williams as an employee: the crew worked at various remote job sites, the employer benefitted from the travel of its employees, the work sites changed, and the driller and crew needed to be able to move to different job sites. Claimant was not in a position to hire and transport a crew as he was not the driller. What seems to influence the Williams Court is the source of the risk of injury. Clearly, transportation by one’s supervisor exposes the worker to the risk of negligence by the supervisor and vicariously the employer. K.S.A. 44508(f) makes a specific exception for the employer’s negligence. This is absent when claimant rides with a coworker, though the risk of travel remains the same. However, the point is whether claimant is in the course and scope of his employment when traveling. This does not depend on what risks the worker faces in traveling or negligence by the employer. The risks of travel are the same no matter who is the driver. None of the Scott v. Hughes factors touched on risks the employee faced. „„ Petitions for Review Craig v. Val Energy, No. 105,949 (March 16, 2012), concerns application of the “going and coming” rule, and whether the “inherent travel” exception survives after Bergstrom v. Spears Manufacturing, 289 Kan. 605, 214 P.3d 676 (2009), with its emphasis on the “plain language” of the statute. A petition for review was filed and denied.

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 has a pending petition for review. No petition for review had been filed in Williams v. Petromark Drilling, L.L.C., No. 108,125 (June 7, 2013), but time remains to do so at publication. No other previously discussed cases have pending petitions for review. p

Appeals Board Decisions Kathleen J. Cossairt

„„ Drugs-Old Law-Contribute to Accident „„ Comparison to New Law Hicks v. Butler Transport, Inc., and Kansas Truckers Risk Management Group, No. 1,026,648. SALJ Nodgaard denied claimant benefits, concluding respondent met the requirements of K.S.A. 2005 Supp. 44-501(d)(2). Claimant appealed raising several issues including������������������������ that respondent provided no evidence to support its argument that claimant’s alleged drug impairment contributed to the accident as required by K.S.A. 2005 Supp. 44-501(d), and that respondent should be estopped from asserting the drug defense as it condoned claimant’s drug use and enabled him to continue his driving activities both before the accident and after receiving notice of a positive result for cocaine following the accident. Claimant did not dispute that probable cause existed requiring him to undergo a drug test. The Board found that claimant was permanently and totally disabled, analyzed the decision in Wiehe v. Kissick Construction Co., 43 Kan. App. 2d 732, 232 P.2d 866 (2010) and stated: …There, Wiehe, after sustaining a work-related accident, tested positive

for marijuana at a level that established a conclusive presumption under K.S.A. 2009 Supp. 44-501(d)(2) that Wiehe was impaired at the time of the accident. In Wiehe, a toxicologist, Dr. Daniel Brown, testified that a person impaired by marijuana functions normally until something unexpected happens. Charles Foshee, an addiction counselor, testified that the circumstances surrounding Wiehe’s accident showed that drug impairment played a role in the accident. Foshee also testified that people who have high levels of marijuana have impaired judgment and impaired logic. Foshee explained that although a lot of people who used marijuana on a long-term basis are able to function normally, they will have a slower motor affect, be avoidant, be very tunnel visioned, and not be cognizant of things around them. In Wiehe, there was evidence that Wiehe’s impairment contributed to his injury or disability. The Board, with a great deal of reluctance, feels compelled to concur with claimant’s argument. The facts of the current claim are distinguishable from those of Wiehe. No witnesses, such as law enforcement officials who investigated the accident, the person who collected claimant’s urine sample, or anyone else who had contact with claimant immediately following the accident, testified. Unlike Wiehe, no toxicologist, physician, addiction counselor or other expert testified that claimant would not demonstrate overt signs of impairment. Respondent presented little, if any, evidence that claimant’s impairment contributed to the accident. This is puzzling in light of the fact that ALJ Barnes made a finding in the April 14, 2006, Preliminary Hearing Order that respondent failed to prove claimant’s impairment contributed to the accident. Respondent relies on the fact that claimant’s urine had 14,212 nanograms per milliliter of benzoylecgonine, which greatly exceeded the confirmatory cutoff level in K.S.A. 2005 Supp. 44-501(d)(2) for benzoylecgonine of 150 nanograms per milliliter. This evidence is suf-


22  Journal of the Kansas Association for Justice

ficient to reach the finding that claimant was impaired, but not that his use of drugs contributed to his injury or disability. Claimant’s accident occurred in heavy fog. Claimant was cognizant of the fact that he was operating his truck in dangerous weather conditions and pulled off the roadway. There is little in the record to controvert claimant’s testimony that it was the extraordinary fog that caused the accident. There is no proof that claimant’s decision to pull his truck over to the side of the road, the location he chose to do so or the way he pulled his truck over was affected by his cocaine use seven days earlier. Simply put, respondent provided insufficient evidence to prove that claimant’s impairment from cocaine contributed to the Nov. 7, 2005, accident. The Kansas Legislature addressed this very situation when it passed the 2011 amendments to the Kansas Workers Compensation Act. K.S.A. 2011 Supp. 44-501(b)(1)(D) now provides that if a worker is impaired pursuant to K.S.A. 2011 Supp. 44501(b)(1)(C), there is a rebuttable presumption that the impairment contributed to the worker’s accident, injury, disability or death.

„„ Post-Award Medical „„ Reasonably Necessary to Cure or Relieve „„ Reasonable Time for Respondent to Process Prescriptions Jones v. Via Christi Health, Inc., And Royal & Sun Alliance Ins. Co., No.  1,008,376. ALJ Barnes found that claimant’s need for a stress echo cardiogram satisfied the intent of K.S.A. 44-510h(a) and ordered respondent to pay the bill from Heartland Cardiology in the amount of $5,460. Further, the ALJ agreed claimant should not have to wait from one to three weeks to get medication prescriptions filled and ordered respondent to approve the authorized physician’s prescriptions within a three-day time frame.

The Board stated and found: The Board has held in a prior case that pre-operative cardiac evaluations are compensable as a part of necessary medical treatment where there was no evidence within the record to suggest that claimant had been advised that he required the cardiac evaluation independent of the workrelated injury. Fisher v. Cessna Aircraft Co., Docket No. 1,022,386, 2007 WL 2586168 (Kan. WCAB Aug. 29, 2007). In the present case, even though there is some evidence of a preexisting heart condition, there is no indication that claimant required the cardiac evaluation for any other reason than as a prerequisite for surgery. And it is uncontroverted that claimant required the surgery due to the work-related injury. Therefore, the Board concludes respondent should be required to pay for the cardiac evaluation. … K.S.A. 2011 Supp. 44-534a provides guidance with respect to what should be considered a reasonable time for the authorization of medical treatment. K.S.A. 2011 Supp. 44-534a creates an expectation that the employer is to respond to a demand for medical treatment within seven days of receiving the demand. The Board finds that seven days is a reasonable time period in which the respondent should be able to process and act on claimant’s request for the authorization of prescription medications.

„„ Independent Contractor „„ Equitable Estoppel Al-Sager v. Delivery Logistics, Inc. and National Union Fire Insurance Co. of Pittsburg, PA, No.  1,043,908. ALJ Howard found that when claimant’s accidental injury occurred he was an independent contractor, not an employee. Judge Howard also found claimant was precluded by the doctrine of equitable estoppel from receiving any benefits under the Kansas Workers Compensation Act (Act). The Board reversed and listed the common factors used to determine

whether an individual is an employee is an employee of independent contractor. The Board adopted the findings of former Board Member Julie Sample from her prior Order and stated: Although respondent obviously took steps to ensure that claimant would be viewed an independent contractor (thus negating respondent’s responsibility for workers compensation coverage) the facts belie the parties’ true relationship. Claimant was hired as a truck driver to drive a route for respondent. He was not told the route to take, only that he had to be on time in the delivery of the packages. He was paid a flat rate of $700 per week. He was provided with a truck which was paid for by respondent. Respondent provided gas and insurance and took care of the maintenance on the truck. While it is true that respondent intended for claimant to lease this truck, that endeavor never came to pass. The fact is that respondent provided the truck claimant used in his daily route, paid for all the expenses associated with that truck and limited claimant’s ability to use the truck for other deliveries or obtain a substitute driver in the event he could not drive the route himself. Respondent even directed claimant to park the truck in a specific place after there was an issue of vandalism. While respondent clothes itself in the fabric of a logistic service, it is, in essence, a package delivery company that does not have any drivers. Respondent must then obtain drivers in some fashion and does so through CMS. Claimant was hired, albeit through an intermediary, to perform those driving services. He was assigned a route, by respondent. He was provided a truck and expenses for that truck were paid for, by respondent. He was dictated to with regard to the time of delivery. While it is true that he was paid a flat rate, that fact alone is not determinative. Nor is the fact that there is an abundance of paperwork


Journal of the Kansas Association for Justice  23

that suggests claimant is an independent contractor.

However, the Board disagreed with Judge Sample regarding her finding of equitable estoppel. Even Judge Sample had found it distasteful to rule in favor of the respondent on this issue. She had stated: To be clear, this factual scenario is offensive, in that respondent has taken a multitude of steps to avoid workers compensation coverage while in effect, [it] is a package delivery company with no drivers. It borders on the absurd to think a company can provide a service for which it has no employees to provide that service.

The Board stated: Apparently, Judge Sample and the ALJ felt compelled to find claimant must be equitably estopped from claiming he was an employee due in large part to the opinion of the Kansas Court of Appeals in Marley. Marley v. M. Bruenger & Co., Inc., 27 Kan. App. 2d 501, 504, 6 P.3d 421, rev. denied 269 Kan. 933 (2000). However, the Board finds there are a number of factual distinctions, enumerated below, between Marley and this claim that persuade the Board that equitable estoppel should not be applied in this claim.

The Act provides no specific jurisdiction for the Board to apply equitable remedies such as estoppel, in contrast to the district courts and appellate courts of this state. However, the Board is duty bound to follow precedent of our appellate courts. Since the Court of Appeals in Marley applied the doctrine of equitable estoppel in a workers compensation claim, and since that opinion has not been overturned, the Board concludes it must consider the applicability of the doctrine of equitable estoppel. There are some similarities between this claim and Mr. Marley’s claim, not the least of which is both Mr. Marley

and Mr. Al-Sager signed documents certifying that they were independent contractors and not employees. But, there are significant differences between this claim and the Marley claim which render inappropriate the application of equitable estoppel: (a) Mr. Marley owned his own tractor whereas Mr. Al-Sager was required to use respondent’s truck. (b) Mr. Marley was in a partnership with his spouse which operated under the name S & J Trucking. Mr. Al-Sager did not operate his own business, nor had he ever done so. (c) Mr. Marley had been in the trucking business for a number of years, whereas the evidence does not support the notion that claimant had years of experience in the package delivery business. (d) Both Mr. Marley and Mr. Al-Sager obtained coverage under occupational accident insurance policies. In doing so, both claimants agreed that they were not employees, but were independent contractors. It is also true that both claimants received benefits under such policies. However, Mr. Marley made application for benefits under the policy, whereas Mr. Al-Sager did not. In this claim, respondent made the claim against the occupational accident policy. Also, while Mr. Marley did not reveal he claimed to be an employee until

after he had received nearly $40,000 in benefits under the accident policy, Mr. Al-Sager received two weeks of benefits under his policy totaling approximately $485. Mr. Al-Sager did not benefit substantially as did Mr. Marley. Also, Mr. Al-Sager testified he believed he was actually receiving workers compensation benefits. (e) In Marley, the Court of Appeals noted that the case did not involve a wide divergence between the bargaining positions of claimant and respondent. There is unquestionably such a divergence in this claim. (f) Mr. Marley was paid a percentage of the gross revenue generated for each truckload, whereas Mr. Al-Sager was paid a salary of $700 per week. (g) Mr. Marley was responsible for repairs, maintenance and fuel. Mr. Al-Sager was responsible for none of those costs. (h) Respondent’s motives in making such elaborate arrangements to make sure claimant would not be considered an employee are likely reflected in the numerous documents prepared by respondent and/or CMS. As noted above, the documents contain a waiver prohibiting claimant from asserting a claim for workers compensation or unemployment benefits. Since respondent operated a delivery service without having to employ any drivers, it thereby avoided

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24  Journal of the Kansas Association for Justice

all or part of the cost of providing workers compensation insurance. Arguably, if equitable estoppel is applied in this claim, it should be applied to respondent, thus prohibiting it from asserting claimant was an independent contractor. The respondent knew or should have known that both factually and legally the drivers it hired were employees. Claimant executed the various documents acknowledging, over and over again, he was not an employee, but instead was an independent contractor. The evidence does not establish respondent reasonably relied to its detriment on claimant’s representations of the nature of the legal relationship between it and claimant. On the contrary, respondent profited from the mirage it constructed. Respondent saved the cost associated with providing workers compensation insurance coverage, qualifying as a self-insured employer, or taking the other steps an employer can take to satisfy the mandates of the Act. In addition to relieving itself of the cost of providing workers compensation coverage, respondent also saved the cost of providing unemployment compensation for its drivers by having them waive that right in advance. Also, in effect, respondent provided claimant with two options in the event of a work-related injury: either (1) have no remedy other than perhaps civil litigation or, (2) seek benefits under an occupational accident policy, the premiums for which the driver paid himself. The Board is persuaded that given the substantial factual distinctions between this case and Marley the doctrine of equitable estoppel should not be applied under the circumstances of this claim. (Footnotes omitted) p

Appeals Board Decisions Jan Fisher

„„ Liability Between Two Employers and Insurance Carriers

In Davis v. The Boeing Company and Spirit AeroSystems, Inc., Nos. 1,050,418 and 1,040,108, the Board looked at liability between two different employers and insurance carriers. Claimant began working for Boeing in April 1985. He injured his low back and his left leg in 1994 after pulling carpet tiles. He settled this claim based on a 15% whole person impairment. He had restrictions for only a short period of time. The claimant left Boeing in January 2006. Mr. Davis began working for Spirit in June 2006 as a “crib sealer attendant.” This job involved mixing paint and epoxies and filling sealer tubes. It required bending and lifting 5-gallon buckets. Claimant sustained an injury to his low back while working for Spirit after bending over to pick up a dolly. He also complained of right leg and hip pain. The back claim was settled for an additional 5% impairment to the body as a whole. The claimant continued to have problems with his back off and on in 2008. However, he returned to work without restrictions. Mr. Davis then stopped working for Spirit in August 2008 and returned to work for Boeing as a lube tech. This job involved greasing and lubricating old machines, air conditioners and gates. The job required lifting 55-gallon barrels and 5-gallon jugs. It also required the crawling and climbing of ladders. The claimant testified that he was unable to lift the 55-gallon barrels so he would slide them. At the request of his attorney, Mr. Davis met with Dr. Pedro Murati, who diagnosed low back pain with signs and symptoms of radiculopathy and left SI joint dysfunction. At the claimant’s request, Dr. Murati did not assign any restrictions as the claimant was afraid he would lose his job. Dr. Murati did assign a 10% whole person impairment secondary to radiculopathy. Mr. Davis, while working for Boeing in March 2010, reported a third accident. He was sliding a barrel and picking up a jug when his low back went out. Mr. Davis believes that his back was aggravated during this March 2010 incident.

He is no longer able to work at either Boeing or Spirit. The dispute centers around claimant’s most recent employment with Boeing and whether he suffered permanent injury during that time or just a temporary aggravation of the injuries. The MRI’s done after each accidental injury showed no change in the claimant’s condition between 2008 and 2010. There are conflicting doctors’ opinions as to causation between the three potential accidents. The Board in this case was persuaded by the fact that, after the initial accident at Spirit and the first accident at Boeing, the claimant returned to his job duties without any permanent restrictions. He was able to do his regular job until suffering a subsequent accident. Only after the March 2010 Boeing accident was the claimant unable to return to work without significant restrictions. Dr. Eyster agreed that after the recent accident he would be unwilling to pass claimant during a plant pre-employment physical. Based on this change in the claimant’s functional abilities, the Board found that an additional 5% impairment of function to the whole body should be assessed on the March 15, 2010, accident. Thus, the Board reversed the ALJ’s Award of Review and Modification against Spirit. Due to the most recent accident, the claimant was not able to return to work — creating a 100% wage loss. There was an additional 62% loss of task preforming abilities. This calculates to a work disability of 81%. The Board found that the award should be assessed against Boeing and the most recent date of accident. The Board also ruled that there were preexisting impairments and granted Boeing a reduction in the award based upon a preexisting 20% impairment to the whole person. „„ Neutral Physician In Reddick v. S & J Painting. Inc., No. 1,049,017, the Board dealt with several evidentiary issues. The first issue concerned whether to exclude the report of Dr. Terrence Pratt, which was issued based on a request of the ALJ pursu-


Journal of the Kansas Association for Justice  25

ant to K.S.A. 44-516. This is the neutral physician statute. Judge Sanders’ order appointing Dr. Pratt as a neutral evaluator specifically indicated that the parties could not communicate with Dr. Pratt without prior permission from the ALJ. Subsequent to the issuance of the report, the respondent made ex parte contact with Dr. Pratt requesting his opinion on impairment of function. A second letter from the insurance carrier asked the doctor to apportion his rating between the current date of accident and any preexisting impairment. Based on this ex parte contact, Dr. Pratt indicated, in a subsequent letter, that the claimant had no new impairment causally related to this date of accident. The claimant’s attorney objected to Dr. Pratt’s opinions. The question for the Board, therefore, was whether the addendum report issued by Dr.Pratt should be considered. The Board found that striking a court ordered physician’s addendum report from the record based on inappropriate ex parte contact is not always necessary where the opposing party is not prejudiced and the physician’s intended opinion was not altered. The Board concluded that Dr. Pratt’s deposition and his reports — other than the original report of May 17, 2010 — were affected by the ex parte contact. This was a prejudice to the claimant. Therefore, both the additional reports and the subsequent deposition must be stricken from the evidence record. The fact that Dr. Pratt may have reached the same conclusion — absent the ex parte communication is immaterial. It is impossible to say claimant was not prejudiced. A secondary evidentiary issue was also considered by the Board. The respondent offered into evidence medical records that had been sent jointly by the parties to Dr. Fotopoulous, who was the second physician appointed under the neutral statute. Claimant objected that many of the medical records contained medical hearsay. Under K.S.A. 44-519, medical records that are not supported by the healthcare

providers’ testimony are not be considered part of the evidentiary record. There are some exceptions to this rule. For example: medical records may be considered as evidence when the parties agree to their admission. No exception applied in this case; thus, these medical records were without supporting testimony and would not be considered by the Board. The respondent also offered exhibits that included a copy of prior settlement transcripts and attached medical records. Again, the claimant objected to the admission of the attached medical records. The Board ruled that the medical reports appended to the settlement hearing transcript would not be considered as evidence. The medical records attached to the settlement hearing were not supported by the testimony of those physicians and no stipulation agreement between the parties was made as to the admission of these records. The mere fact that the Division of Workers Compensation maintains records concerning prior settlements does not somehow serve as a method to circumvent the mandate of K.S.A. 44-519. The settlement hearing transcript, however, was considered by the Board as appropriate evidence in this claim. „„ Occupational Disease In McLaughlin v. Ducommun, Inc., No. 1,049,335, the Board looked at the compensability of an occupational disease. The claimant was a chemical mill operator. The job description indicated that the employee would frequently be exposed to wet and/or humid conditions, fumes or airborne particles, and toxic or caustic chemicals. The claimant identified some of the chemicals she worked around including hydrofluoric acid, formaldehyde and tetrachloroethylene. The claimant believed that the air filtration system was ineffective. Testimony from the respondent indicated that the system met all appropriate safety concerns. Dr. Murati testified as to this woman’s condition. After performing a pulmonary examination, he diagnosed the

claimant with apparent allergic reaction and bronchitis. He opined that the claimant’s diagnoses were all a direct result of claimant’s work-related injury. He recommended a consultation with an allergist or pulmonologist. Dr. Murati examined the claimant a second time. At that time, the claimant complained that she could not be around any chemicals, had red patches on her face occasionally, dry eyes all the time and shortness of breath, dizziness, upper respiratory infections and a sore throat. These conditions and symptoms subsided unless she was around chemicals. Dr. Murati again performed a pulmonary study and diagnosed the claimant as having a reactive airway disease with facial skin rashes. He opined that the claimant’s diagnoses were caused — or permanently aggravated — by her work with respondent. Dr. John Nelson, who is board certified in internal medicine, pulmonary disease and sleep medicine, also testified. Dr. Nelson indicated that the claimant’s pulmonary examination was normal. He opined that the claimant had a toxic event from inhaled gas fumes or vapors. Dr. Nelson diagnosed her as having multiple chemical hypersensitivity syndrome. Because of her history of pulmonary functions, Dr. Nelson did not expect the claimant to have long-term sequelae as long as she kept out of the workplace. Based on the AMA Guides, Dr. Nelson rated claimant as having a 0% permanent impairment due to pulmonary dysfunction. Claimant’s last day of employment with the respondent was Feb. 14, 2010. Claimant continues to have problems around chemicals. She tries to avoid chemical exposure but has had problems since leaving the respondent’s employ. Based on the aforementioned testimony, the Board found that the claimant did suffer from multiple chemical hypersensitivity syndrome. They termed this to be an occupational disease that was a result of the claimant’s employment with the respondent as a chemical millist. Although Dr. Murati opined a 5% impairment of function, the Board chose to disregard this opinion and adopted the


26  Journal of the Kansas Association for Justice

opinion of Dr. Nelson. The Board found that the claimant suffered a 0% impairment for loss of pulmonary function. There was a claim for task loss; however, the Board found that task loss is not a consideration in awarding a final disability amount when considering occupational diseases. Thus, the Board found no permanent impairment of function and no task loss. However, this is not an end to the decision making with regard to occupational diseases. In occupational disease cases, permanent disablement is based on the claimant’s ability to earn wages. The Kansas Supreme Court provided guidance in this respect in Burton v. Rockwell International, 266 Kan. 1, 967 P.2d 290 (1998). The Court stated: We held in Knight v. Hudiburg-Smith Chevrolet, Olds, Inc., 200 Kan. 205, 209, 435 P.2d 3 (1967), that the term “disability,” when attributable to occupational disease, relates to loss of earning capacity.”

Based on the above language in Burton, the Board found that it was required to determine what the claimant is earning or her capacity to earn. Two vocational experts testified. Karen Terrill testified that the claimant had a 100% wage loss due to the fact that she was unemployed at the time of the evaluation. However, Ms. Terrill did not address the issue of claimant’s capacity to earn wages. Steven Benjamin wrote in his report that the claimant was earning $217.50 at the time of his evaluation but possessed the capacity to make $300 per week if she worked 40 hours per week. Based on this limited evidence in the record, the Board found the claimant’s earning capacity to be $300 per week. This equates to a 61% loss of earning capacity as a result of her disability from occupational disease. It’s clear, from this case, that the attorneys tried the case as if it were governed by the accidental injury statutes rather than by the occupational disease statutes. „„ Offset for Retirement Benefits In Bennett v. Vangent, Inc., No.

1,051,400, the ALJ found the claimant to be realistically unemployable due to her pain level, age and lack of mobility, as well as her forced use of strong pain medications. This left the claimant permanently and totally disabled. The ALJ denied respondent’s request for a 6% offset for retirement benefits that respondent is paying the claimant due to a lack of reliable wage and contribution information. The ALJ also denied respondent’s request for an offset for Social Security Retirement benefits claimant is receiving. Respondent appealed to the Board — arguing that the claimant was not permanently and totally disabled and, in addition, that the claimant should be subject to an offset for Social Security Retirement benefits and the 401(K) retirement benefits that claimant receives as a result of contributions made by the respondent. Claimant began working for the respondent in April 2007 as a customer service representative for 1-800-Medicare. Ms. Bennett was injured in December 2009 when she slipped on ice in the respondent’s parking lot on her way to work. Claimant denied any prior problems with her back before the slip and fall. The claimant eventually sought medical treatment. An MRI was ordered, which verified compression fractures at L1 and L2 with mild canal stenosis. Later, the claimant was seen by Dr. John Ciccarelli who verified her broken vertebrae and an extruded disc fragment at L1-2. Evidently, surgery was not appropriate and treatment consisted entirely of conservative care. Claimant was born in July 1942 and was 69 years old at the time of the regular hearing. She was receiving $1,502 per month in Social Security Retirement benefits with payments beginning in 2006. This is before her employment with the respondent in 2008. Before receiving her own Social Security Retirement benefits, claimant was receiving widow’s benefits through Social Security beginning in either 2004 or 2005. While claimant worked for the respondent, she participated in a 401(K)

retirement plan. Respondent contributed 6% of the claimant’s gross income to her account. Claimant testified that her final rate of pay was $14.88 per hour. Claimant also contributed to the retirement account but was unsure how much she actually paid. Claimant was unaware of the amount of money involved in this plan. Sometime after her last day with respondent, she cashed her 401(K) fund but did not testify as to when this occurred or how much money she actually received. The Board reviewed the various medical opinions as to permanent restrictions. It found, from a purely physical standpoint, the claimant would appear capable of remaining in the open labor market performing substantial work. However, when the aspect of her required pain medication is added to the equation, her employability becomes more questionable. The Board agreed that the claimant is not realistically employable when considering her pain level, age, lack of mobility and forced use of strong pain medications with resulting loss of concentration and memory functions. The Board then considered whether a Social Security offset was appropriate. The claimant began receiving Social Security benefits before she began working for the respondent. She testified that she returned to work in 2007 because the Social Security benefits she was receiving were not adequate. The Board found, pursuant to Dickens v. Pizza Co., 266 Kan. 1066, 974 P.2d 601 (1999), that the employer was not entitled to an offset. The Board stated: The purpose of this statutory offset, or reduction, is to prevent wage-loss duplication. However, the Kansas Supreme Court has created an exception to the statute that applies to retired workers who are already receiving Social Security retirement benefits and then reenter the workforce to supplement that Social Security income.

Here the claimant was unemployed and on Social Security for two years and then returned to work for the respon-


Journal of the Kansas Association for Justice  27

dent to supplement her Social Security income, which she described as inadequate. This occurred before she suffered the work-related accident. Pursuant to Dickens and Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 286, 241 P.3d 15 (2010), the respondent is not entitled to an offset for claimant’s Social Security Retirement income. The last issue was whether respondent was entitled to a credit for the 401(K) retirement plan that the claimant cashed in a lump sum after she left her employment with the respondent. While claimant testified that the respondent contributed 6% of her gross income to the plan, she also stated that she contributed to the account as well. No information was provided to accurately identify the amount of the lump sum payment claimant received when the account was cashed in, how much of that amount represented respondent’s contributions, how much stemmed from the claimant’s contributions and over what period of time the payment applied. The respondent has the burden of proof to demonstrate the amount of the credit that should be applied. Here the financial information would have been readily available to the respondent but was simply not placed in the record. The respondent failed to identify what, if any, offset it would be entitled to as a result of the claimant’s receipt of 401(K) plan payments. Thus, no offset is allowed. One dissent was filed in this matter regarding the issue of credit for Social Security Retirement benefits. The dissenting Board member found that this case was not equivalent to the Dickens case — or other cases — where a worker retired, obtained Social Security Retirement earnings and then was injured after returning to limited or part-time work to supplement his or her Social Security Retirement income. In essence, the dissent argued that, when claimant took full-time employment with the respondent, she was no longer retired. If anything, she was “un-retired.” Thus, the dissent argued that the exception created by Dickens is only available if the claimant actually

retires; i.e., quits the job and then starts part-time work to supplement the Social Security Retirement income. Finally, the dissent argued that it is unclear how the Appellate Courts would address Social Security offsets based on a strict construction of K.S.A. 44-501(h) and the Supreme Court’s mandate in Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009). The dissent indicated: The decision in Dickens was not based on literal interpretation of K.S.A. 44-501(h), at least based on the Court’s acknowledgment in the decision itself. For that matter, McIntosh was not decided based on literal interpretation of the statute. Both cases focus on factors not contained within the plain language of K.S.A. 44501(h), such as: • the timing of retirement, i.e., whether injury or retirement occurs first; • duplication of wage-loss benefits; and • whether a worker may supplement his or her income with post-retirement wages without being subject to the offset. This Board Member would find that K.S.A. 44-501(h) literally provides for a Social Security offset. p

Appeals Board Decisions John W. Stapleton, Jr.

„„ Arising Out Of and In the Course of Employment „„ Going and Coming Rule In Del Rosario Ortiz v. S2 Holdings and Twin City Fire Insurance Company, No. 1,060,227, claimant testified that all employees including herself parked in a designated parking area every day. On the date of accident she had parked in the designated area and was walking to the employer’s office when she stepped off of a curb

and was struck by a vehicle. Claimant testified that she was already at work and therefore the coming and going exception didn’t apply. Claimant further testified the parking lot contained hundreds of spaces and was open to the general public, but she and other employees were only allowed to park in a central lot that was available for parking to employees of other businesses and the general public. More of respondent employees testified that they could park anywhere in the lot and therefore the injuries did not arise out of and in the course of claimant’s employment. Other exceptions to the arising out of and in the course of employment K.S.A. 2011 Supp 44-508 (f)(3)(B) also did not apply to this case. Claimant was not on the way to assume her duties and sustained an injury due to the employer’s negligence, but her injuries were due to a third party’s negligence. Another exception to the above statute provides that an employee shall not be construed as being on the way to assume the duties of employment or having left such duties at a time when the worker is on the premises owned or under the exclusive control of the employer. This was also not applicable as the respondent did not own the lot and did not have exclusive control of the lot as other businesses and the general public used the lot. Finally, when the claimant was injured she was not a provider of emergency services responding to an emergency. The Board has consistently held that term “arising out of and in the course of employment” in the Kansas Workers Compensation Act shall not be construed to include injuries an employee sustains while on the way from a public parking lot to assume the duties of employment or after leaving such duties, the proximate cause of which is not the employee’s negligence. „„ Functional Impairment In Gawdun v. State of Kansas and Self-Insurance Fund, No. 1,059,846, respondent requested review of ALJ Sanders’ award from Oct. 25, 2012. Judge Sanders found claimant sustained a 35%


28  Journal of the Kansas Association for Justice

functional impairment to the body as a whole based upon Dr. Murati’s opinion. While the judge adopted most of the doctor’s opinion, she rejected the doctor’s opinion that claimant was entitled to an additional 2% impairment rating to the body as a whole for anosmia (partial loss of smell). Claimant, an administrative captain at the Topeka Correctional Facility, was reading a document when his chair broke causing him to fall backward injuring his head and neck on a ledge behind him. Claimant was transported to a hospital and thereafter received conservative treatment. Respondent’s doctor provided claimant with a 15% whole person impairment for Cervicothoracic DRE Category III based on the Guides. Claimant was next evaluated by Dr. Murati at the request of his attorney. At that time he complained of stiffness in his neck, headaches, and high pitched noises in his ears. Among other things, the doctor diagnosed claimant with partial anosmia, vestibular disorder, post concussion syndrome, bilateral tinnitus, status post C5-6 and C6-7 anterior cervical discectomy and fusion, left shoulder sprain and myofascial pain syndrome of the bilateral shoulder girdles, extending into the cervical and thoracic paraspinals, all due to the work-related injury. The doctor indicated that his combined ratings equaled a 36% permanent partial impairment rating to the body as a whole based upon the Guides. Dr. Murati rated the claimant as having 2% whole body impairment for partial anosmia; 3% whole body impairment for tinnitus; 5% whole body impairment for vestibular disorder; 5% whole body impairment for post concussion syndrome; 25% whole body impairment for Cervicothoracic DRE Category IV for claimant’s cervical spine fusion; and 5% whole body impairment for Thoracolumbar DRE Category II related to myofascial pain syndrome, which equals a 36% permanent partial impairment rating to the body as a whole based upon the Guides. At the regular hearing, claimant complained of tinnitus, neck and shoulder pain, headaches, dizziness and loss of

balance, as well as a constant lump in his neck accompanied by difficulty swallowing. He denied having any of these problems prior to the accident. The Board found that claimant’s cervicothoracic impairment is best accounted for under DRE Cervicothoracic Category I, at 25%. The Board found that claimant did not have a hearing loss and did not allow the 3% whole body impairment. The Board allowed the remaining impairment ratings with the exception of the partial anosmia. The Board concluded that claimant had an overall 33% whole body impairment. „„ Timely Notice „„ Prevailing Factor Beck v. Nutriject Inc. and Granite State Insurance Company, No. 1,059,728. Respondent and its insurer requested review of a Feb. 2, 2013, Preliminary Hearing Order entered by ALJ Rebecca Sanders. Judge Sanders found timely notice based on KSA 2011 Supp 44-520(a). ALJ went on to find the cause of claimant’s bilateral shoulder problem was not clear, and that there was not enough evidence to find claimant’s work activities are the prevailing factor and causing claimant’s bilateral shoulder complaints. ALJ further found the cause of claimant’s low back problems more difficult to determine. Claimant had a preexisting lower back condition, but ALJ found that his preexisting intermittent symptomatic back pain did not become so severe that it rendered him unable to work until after he worked for respondent for eight years, performing work activities that were competent to cause claimant’s current disability. She held the aggravation of claimant’s preexisting low back condition was not the sole condition for his current disability. Instead, the severe aggravation of that condition, caused by claimant’s work activities, was the prevailing factor for his current low back injury and disability. She found claimant entitled to medical care for the low back injuries and ordered respondent to provide the names of two qualified physicians from which claimant could designate an

authorized treating physician. TTD was also ordered. Claimant testified that the majority of his work experience is in farming, mechanic work and driving a truck. He began working for respondent on June 15, 2004, working primarily as a truck driver, working anywhere from 10-12 hours per day. For his employment he drove trucks and performed mechanical work. Over time he developed problems with his lower back, which worsened the longer he sat in a truck. Claimant testified that on Feb. 3, 2012. he had a telephone conversation with his supervisor about ending driving duties and focusing on managerial duties. His employer requested claimant’s resignation. He again spoke with a supervisor who advised him he could stay on and manage the Junction City location, which he agreed to do. He was advised that the company owner would call and confirm the relocation but the call never came through. Claimant testified that he started having trouble with his back in 2011 while driving his truck. He went to see his primary care doctor who referred him to an orthopedic physician. The orthopedic doctor recommended surgery, which claimant was unwilling to undergo. Claimant admitted to having several episodes with prior back injuries dating to the 1990s from doing farm work and falling from a tanker in 2005. At the Preliminary Hearing, respondent admitted to having a telephone conversation with claimant in February 2012 in which claimant advised respondent he was having back problems. However, respondent denied claimant told them his back problems were work related. Claimant’s attorney referred him to a neurological surgeon in April 2012. This doctor stated that claimant’s injuries progressed over time and represented an aggravation of his lower back injuries, and the prevailing factor was the preexisting symptomatic condition, not the present work injury. After meeting with claimant’s attorney, this doctor prepared another report. The report indicated that he had been


Journal of the Kansas Association for Justice  29

informed that the current law does not eliminate aggravation as a factor in determining causation, rather it only indicates that the injury is not compensable solely because it aggravates a preexisting condition. He understood that if an aggravation is severe enough, it could be considered a prevailing factor by itself. Claimant was next referred by his attorney to Dr. Pedro Murati for an examination, who stated that claimant sustained a series of repetitive traumas resulting in numerous body, including back, complaints. He did note the preexisting injuries, but indicated that the prevailing factor for claimant’s injuries, with the exception of the lower back injury, was the series of repetitive traumas at work. Claimant was next referred to a physician authorized by respondent, who identified the materials he received from previous medical providers as confusing. This doctor described claimant’s preexisting back condition dating from 2007, and the work activities contributed and aggravated his condition, and was not the principal and prevailing factor. „„ Repetitive Use „„ Notice Wilson v. United Parcel Service and Liberty Insurance Corp., No. 1,058,989. Respondent and its insurance carrier requested review of the Nov. 16, 2012, award entered by ALJ John Clark holding that claimant’s injury arose out of and in the course of his employment, that claimant gave respondent timely notice and that claimant had an 86% permanent partial general disability. Claimant had worked for respondent as a driver for 25 years. He testified that on Feb. 7, 2011, he was driving a truck when he felt pain in his left hip. He also testified his supervisor was riding with him on that date and he told his supervisor about his hip pain from repetitively pushing in the clutch of the truck, and asked his supervisor to take the day off to go to the doctor. Claimant stated that the supervisor told him he would need to call in which he said he did, the next day. Claimant acknowledged he did not ask the

supervisor for medical treatment but saw his personal doctor the next day, Feb. 8, 2011. The personal doctor’s notes indicated that claimant saw the doctor on Feb. 7, 2011, not Feb. 8, 2011. Claimant amended his Application for Hearing to set out the date of accident of Feb. 4, 2011, through April 18, 2011. Claimant acknowledged he had previous work related accidents and knew respondent’s policy was for employees to report injuries immediately. Claimant acknowledged he thought he told his supervisor but could not remember when he did so. He stated his condition continued to worsen. The supervisor testified claimant never told him he had a hip injury from working for respondent. He claimed he did not ride with claimant on the date claimant listed as the date of injury, Feb. 7, 2011. Company records showed the supervisor had not ridden with claimant during the time of his injury. The primary issue of this case concerned whether claimant gave respondent notice of the work-related injury. The Board found that a statement made by claimant — “I told him that my hip was hurting and that I needed to go see the doctor because it was very painful” — is not notice of a work-related injury. Three months after the hearing claimant was deposed and made specific causation statements that his injury arose while he was pushing the clutch while driving for respondent. The Board, however, did not find that the recantation, which contained a very specific causation statement, to be credible. p

Decisions of Judge Barnes Roger A. Riedmiller

„„ Prevailing Factor In Tawater v. West Plains Transport, Inc., No. 1,057,938, there was extensive discussion in regards to the New Law and, more specifically, prevailing factor. Dr. James Weimar determined after review of claimant’s prior medical records and long history, that he felt claimant suffered from an aggravated preexisting condition and, therefore, that

the specific accident of June 3, 2011, was not the prevailing factor, nor the cause of claimant’s condition or need for surgery. Due to the fact that Dr. Weimar was the only physician testifying in this matter, ALJ Nelsonna Potts Barnes found that claimant had not sustained her burden of proof. ALJ Barnes found that the accident was not the prevailing factor in causing claimant’s condition or need for surgery. Furthermore, ALJ Barnes found that claimant was not entitled to the 45.7 weeks of TTD that she was paid, nor was she entitled to the $96,315.76 in medical paid by respondent’s insurance carrier and that these amounts should be reimbursed by the Workers Compensation Fund. The ALJ found that claimant had not committed any type of fraud. It appears from review of this case that claimant made a deal with respondent not to contest these issues. In exchange, an Order was entered by ALJ Barnes denying the claim of respondent having paid compensation to the claimant. Claimant provided no contest to Dr. Weimar’s opinion on prevailing factor through her own testimony disputing the nature of the preexisting conditions, or testimony from another doctor, both of which would have controverted Dr. Weimar’s opinion. This author feels that this case does not stand for the proposition that if one sustains a work-related injury and as a result of the work-related accident begins to experience worsening back pains that require surgery, that the individual has not met the prevailing factor threshold. „„ Application of Separate Awards for Separate Body Parts Impaired Ellis v. City of Wichita, No. 1,055,398 In this case, the claimant contended that he sustained bilateral extremity injuries from repetitive activities working for respondent for approximately 18 years as a custodian. The upper extremities were operated upon by Dr. Mark Melhorn who performed four surgeries, one to each elbow and one to each wrist. Ultimately,


30  Journal of the Kansas Association for Justice

Dr. Pedro Murati and Dr. Melhorn testified in regards to permanent impairment of function for these body parts. ALJ Barnes entered four separate awards for the four separate body parts based on the Old Act workers compensation claims, calculating each one of those awards separately. „„ Calculation of Work Disability Upon Review and Modification Wheeler v. City of Wichita, No. 1,034,532. In this interesting case, ALJ Barnes found that while claimant was entitled to a work disability based upon her loss of employment, she was limited to a work disability or permanent partial disability benefits to 415 weeks from the date of the work related accident. Claimant had sustained an injury on Jan. 16, 2007, and thus, the 415 week benefit period expires on Jan. 16, 2015. The triggering event that led to claimant’s increased disability and the review and modification petition was the separation from work on May 25, 2012. Therefore, claimant’s permanent partial disability benefits from May 25, 2012, into the future were limited to the remaining 137.57 weeks. This award also has an interesting calculation for retirement benefits offset. The parties actually stipulated to an offset, which took into consideration the fact that claimant’s retirement benefits were approximately $25,000, but only about half of that was attributable to the respondent. The parties then agreed that, using common actuarial tables, the offset should be limited to a weekly value based upon a 25.5 year life expectancy or 1,326 weeks of payments, or $9.52, per week, thus minimizing the effect of the retirement offset. p

Decisions of Judge Belden Stephanie J. Wilson

„„ Preexisting Impairment Under the New Law „„ Future Medical Jackson v. Amsted Rail Co., Inc., No. 1,058,952 (April 2013). The new

law regarding deductions for preexisting impairment is a harsh one. In this case, the claimant sustained a shoulder injury. The ALJ found a compromised rating was appropriate between the two expert ratings of Dr. Mark Rasmussen at 10% (respondent) and Dr. Poppa at 28% (claimant). The ALJ found the correct rating was 20%. Claimant had sustained a prior injury to the shoulder while working for the same respondent. He settled the prior case based upon an 18% functional impairment rating. The ALJ recited the New Law as follows: An award of permanent partial disability compensation shall be reduced by the amount of functional impairment found to be preexisting. See K.S.A. 2011 Supp. 44-501(e). Where benefits were previously awarded through settlement in Kansas, the percentage basis of the prior settlement shall conclusively establish the amount of preexisting functional impairment. See 44-501(e)(1). If the preexisting impairment is the result of an injury sustained while working for the same employer against whom benefits are currently sought, the reduction shall be reduced by the current dollar value attributable to the preexisting functional impairment percentage. “Current dollar value” is calculated by multiplying the percentage of preexisting impairment by the compensation rate in effect on the date of the accident against which the reduction will be applied. See 44501(e)(2)(A).

The ALJ went on to hold: In this case, it is undisputed claimant sustained an injury to the right shoulder in 2002, while working for respondent, resulting in permanent impairment of function. It is also undisputed claimant received a settlement from the prior injury based on 18% functional impairment of the right shoulder as defined in the AMA Guides. Although claimant

argues the reduction should have no effect because the impairment ratings from Drs. Poppa and Rasmussen are based on claimant’s new injuries, the plain language of K.S.A. 2011 Supp. 44-501(e) mandates a reduction in compensation shall be made and the percentage basis of the prior settlement shall be conclusive evidence of the preexisting impairment. See K.S.A. 2011 Supp. 44-501(e). Accordingly, the Court finds the award of permanent partial disability compensation of 20% of the right shoulder shall be reduced by the current dollar value of claimant’s preexisting impairment of 18% of the right shoulder. The Court finds the current dollar value of claimant’s preexisting impairment is $21,861.45 (225 week maximum - 6.14 weeks TTD = 218.86 weeks remaining x .18 impairment = 39.39 weeks PPD x $555/week = $21,861.45.) In conclusion, claimant’s award of permanent partial disability compensation shall be reduced by $21,861.45 under the plain language of K.S.A. 2011 Supp. 44-501(e).

The final permanent partial disability awarded was $2,430.90. Dr. Poppa thought future medical treatment in the form of intermittent cortisone injections would be needed, but Dr. Rasmussen did not. The Court found Dr. Rasmussen’s opinion more persuasive because Dr. Rasmussen was an orthopedic surgeon and Dr. Poppa was not. „„ Attorney Lien In Ruiz v. Webco Manufacturing, Inc., No. 1,059,213 (April 2013), claimant’s counsel withdrew after the prehearing settlement conference. Claimant’s attorney filed a lien based on 25% of the last settlement offer plus expenses. The respondent set the matter for regular hearing and though claimant was properly notified of the hearing, he failed to attend. The respondent submitted the rating report of the treating physician without objection. An award was issued in the same approximate amount as the


Journal of the Kansas Association for Justice  31

settlement offer and attorney fees were approved for the amount requested. p

Decisions of Judge Clark David H. Farris

„„ Drug and Alcohol Defense In Kathman v. Superior Testers Enterprises, LLC, No. 1,059,672, the claimant had spent the last 20 years of his life working in the oil field casing business. On the date of injury, the claimant and three co-workers were working on an oil rig when a part known as a “swivel” broke and fell from a connection and struck the claimant’s head and back. The part, which weighed approximately 1,300 pounds, caused the claimant to sustain significant injuries. Dr. Paul Stein, a board certified neurosurgeon with almost 40 years of medical experience, performed a medical examination on the claimant. Dr. Stein diagnosed the claimant as having sustained a thoracic vertebra compression fracture that crushed or transected the spinal canal, resulting in the claimant’s paraplegia and loss of bowel and bladder control. Dr. Stein also diagnosed the claimant with tibia and fibula fractures in the lower left leg above the ankle and bilateral adhesive capsulitis in both shoulders. Dr. Stein was of the opinion that the prevailing factor was the work accident. He issued a 74% functional impairment rating and found the claimant to be permanently totally disabled from returning to any gainful employment. Lastly, Dr. Stein was of the opinion that claimant would need significant future medical treatment in accordance with a life care plan. The respondent noted, however, that the claimant tested positive for marijuana metabolite greater than 15 ng/ml based on a GC/MS Confirmation Test dated Jan. 19, 2012. The respondent further cited the Workers Compensation Act, K.S.A. 44-501, which indicates that a positive test for marijuana in excess of 15 ng/ml results in a presumption that the employee was impaired due to drugs.

The claimant, however, argued that he was not impaired despite the results of the drug testing indication. In addition, marijuana in his system did not contribute to the accident as a part broke and fell on his head, which would have been unavoidable even had he not been under the influence of marijuana. Judge Clark found that claimant’s work accident was caused when the tongs on the oil rig unexpectedly and without warning, due to no fault of the claimant, fell on his head. Judge Clark further found that the preponderance of the evidence strongly suggests that this was as a result of the failure of the swivel, as opposed to anything the claimant was doing in his job as a casing operator in the same and usual manner he had performed for over 20 years. The claimant’s actions or inactions did not directly cause or could not have prevented the accident. However, Judge Clark found that the plain and unambiguous language of K.S.A. 44-501 creates a conclusive presumption of impairment where on a strict legal basis the claimant’s claim is denied. Judge Clark further cited the Kansas Court of Appeals in Wiehe v. Kissick Construction Co.,43 Kan.App.2d 732 (2010) to support his conclusions. p

Decisions of Judge Klein Dennis L. Phelps

„„ Nature and Extent „„ Old Law „„ Average Weekly Wage In Gobble v. Durham School Services, No. 1,049, 638, Judge Klein ruled that claimant, who worked two part-time driving jobs (both requiring a CDL) of similar nature, should be entitled to “aggregate” the wages from both jobs pursuant to pertinent sections of K.S.A. 44-511. Judge Klein rejected respondent's argument that the jobs were not similar because one involved driving a bus and one involved driving a commercial truck. In addition to two preliminary hearings and a regular hearing, 11 depositions (including seven physicians)

were taken in the claim relating to the disputed work disability issues. Ultimately, Judge Klein adopted the opinion of the Court Ordered IME (Stein) that claimant had only sustained a scheduled injury to the shoulder. „„ Functional Impairment In Kiser v. DH Pace Door Services, No. 1,059,824, the claimant, in a “New Law” claim, was seeking a work disability. Respondent argued the 7.5% functional impairment threshold was not satisfied. Respondent’s doctor, Dr. Estivo, provided a 6% body as a whole impairment rating. Dr. Fluter, claimant’s doctor, provided a 15% body as a whole impairment rating. Judge Klein averaged the two ratings (thus granting a work disability award) and specifically noted that Dr. Estivo had made findings, which were conceded in the doctor’s deposition testimony, that suggested radiculopathy. However, Dr. Stein had refused to assign any impairment in regards to that condition. „„ New Law „„ Prevailing Factor In Dinora v. Dollar General #2484 , No. 1,061,299, the respondent’s attorney took a discovery deposition from claimant and then “conferred” with Dr. Do, the treating physician, who had already issued a 20% impairment rating and convinced him to “change his opinions” based on selected portions of the discovery deposition testimony. Essentially, Dr. Do changed his opinion on prevailing factor and opined that only 5% of the 20% impairment rating could be attributed to the work injury. Claimant presented testimony from his own IME, Dr. Brown, which confirmed that his entire (20%) impairment, and the need for future medical treatment, was due to claimant’s work injury, which was the “prevailing causal factor.” Judge Klein found the opinions of both physicians to be credible and averaged the impairment ratings provided for a 12.5% impairment. Judge Klein also allowed for future medical treatment based on claimant’s physician’s


32  Journal of the Kansas Association for Justice

prevailing factor findings and awarded ongoing pain management treatment for which he appointed Dr. Sollo. p

Decisions of Judge Hursh Steven R. Jarrett

„„ Medical Expense „„ Schedule v. Body as a Whole Demoss v. State of Kansas, No. 1,060,782. Claimant worked as a security officer at the state hospital at Osawatomie. In April 2010, he suffered an injury to the left side of his face when he was struck by a patient. Subsequently the claimant received extensive dental care, which ultimately led to full dentures. The respondent took the position that not all of the claimant’s dental work was related to this accident. The treating dentist, Dr. Le, testified that the claimant presented with four broken teeth on the upper left side, which appeared to have been broken by trauma. However, the claimant had extensive problems with other teeth, which did not appear to be traumatic in nature. Ultimately, Dr. Le billed workers compensation for the upper dentures and billed the claimant’s private health insurance for the lower dentures. The doctor testified that the upper teeth could have been replaced with implants but the claimant opted for full dentures to avoid future dental work. He indicated that the cost of the dentures was actually less than the implants would have been. Based upon this evidence, Judge Hursh found that the cost of the upper dentures should be paid by the respondent as reasonable treatment for the traumatic injuries. Claimant also sought permanent disability compensation. There was no claim for work disability so the question boiled down to what functional impairment the claimant had as a result of the injuries to his teeth. Judge Hursh noted that teeth and facial structures do not appear on the K.S.A. 44-510d list of scheduled injuries and, accordingly, claimant’s disability would be calculated under the permanent partial general disability statute.

Dr. Bieri provided testimony for the claimant including a functional impairment rating based on the AMA Guides. After considering the testimony of Dr. Bieri, Judge Hursh awarded permanent partial disability benefits based upon 6% impairment to the body as a whole. p

Decisions of Judge Moore Scott M. Price

„„ Nature and Extent of Disability Brown v. Chanute Healthcare Center and Premier Group Insurance Company, No. 1,037,354. In this case, the claimant alleged that she suffered injuries when transferring an overweight resident from a bed to a wheelchair while performing her duties as a CNA. Respondent denied that the claimant met with personal injury by accident, arising out of and in the course of her employment and further denied that claimant gave timely notice or made a timely written claim. Judge Moore found that the claimant did indeed meet with personal injury by accident, arising out of and in the course of her employment and that timely notice of the accident was given and timely written claim was made. However, Judge Moore found that the claimant’s injury was limited to her thoracic spine and that claimant did not suffer any permanent partial disability to her thoracic spine. It appeared that most of the claimant’s problems were with her low back and left leg pain. Judge Moore found that the claimant did not have left leg pain until approximately a month after she last worked for the respondent. Judge Moore found that in the accident report claimant, in her own words, described the injury to the upper back and again never complained of any low back or left leg pain until a month after she quit working for the respondent. Judge Moore found that any impairment or disability suffered by the claimant is the result of her lumbar spine problem and was unrelated to the compensable thoracic spine injury.

„„ Personal Injury by Accident Ribeau v. Russell Stover Candies and Travelers Indemnity Co. of America, No. 1,043,421. In this case, the claimant claimed that she developed an allergy to nuts and nut by-products while employed as a cook at Russell Stover’s candy-making factory. The court found that claimant was sprayed in the face with “metrin oil” a product used by respondent to lubricate the belts that moved the candy prior to wrapping, to prevent candy from sticking to the belts. Claimant alleged that she developed a nut allergy as a result of being sprayed with metrin oil. However, Judge Moore found that the claimant doesn’t know what metrin oil is composed of, that she believed the metrin oil was mixed with peanut oil, and that the exposure to peanut oil caused her to develop a nut allergy. Unfortunately for the claimant, Judge Moore found that the basis for that claimed knowledge did not appear in the record. The claimant saw a number of physicians, but Judge Moore found that the record before the court was devoid of any evidence relating to an actual chemical analysis of metrin oil. He also found that none of claimant’s claimed reactions to nuts or nut products were ever documented by any medical professional. Judge Moore found that the 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. p

Decisions of Judge Sanders Roger D. Fincher

„„ Nature and Extent of Disability „„ Permanent Total Disability Presumption In Bunyar v. Value Options and Travelers Indemnity Co., No. 1,054,641, claimant was employed with respondent as a clinical case manager, requiring her to wear a headset, answer a telephone and key information into a computer. In 2009, claimant initially developed symptoms in her arms. Ultimately in


Journal of the Kansas Association for Justice  33

2010, claimant was diagnosed with carpal tunnel syndrome in both wrists. She was sent to Dr. Suzanne Elton for treatment. Dr. Elton performed carpal tunnel surgery on both of her wrists. Shortly after the surgery, she returned to Dr. Elton complaining of right upper extremity and radiating pain into the right hand. In January 2011, Dr. Elton diagnosed claimant with bilateral pronator syndrome. On Aug. 25, 2011, Dr. Elton performed right pronator release and on Dec. 26, 2011, she was released from her care. At the time of the regular hearing, claimant had pain in her neck on the right side that radiated into her right shoulder and right arm. She last worked for respondent in February 2011. As she continued to work, her condition worsened. She did work for a hospice facility until August 2011 when she left and had the pronator surgery. At the time of the regular hearing, she was not employed and was receiving Social Security disability. Dr. Elton, when releasing the claimant from care did not make any arrangements for her to have pain medicine. The claimant, therefore, went to her own physician for this medication. Dr. Elton rated the claimant at 0% impairment after the claimant’s first surgeries and rated her at 2% to the right upper extremity for the pronator release surgery. Dr. Koprivica rated the claimant at the request of her attorney at 35% of the body as a whole, with significant right and left upper extremity ratings and a cervicothoracic rating. Judge Sanders reviewed the records and depositions and found the claimant had a loss in both upper extremities, and that she was permanently and totally disabled. Judge Sanders found that Dr. Koprivica’s rating and task loss are more credible than those of Dr. Elton, and that there was a rebuttable presumption of permanent total disability, which was based on vocational and medical evident. She found the respondent had not rebutted this presumption. „„ Nature and Extent of Disability „„ Future Medical

In Lambert v. ES Wilson Transport, Inc. and American Interstate Insurance Co., No. 1,054,950, the claimant was injured on Feb. 12, 2011, while working for the respondent. Claimant drove a tractor trailer vehicle for the respondent. On the day of the injury claimant had unloaded some feed and on an entry ramp to get back onto the interstate the claimant felt something shift in his vehicle, and the truck overturned. Claimant was unconscious for a period of time after the accident. On May 16, 2011, claimant was released to return to work by Dr. Manguoglu with no restrictions. Dr. Murati testified that the claimant had an overall permanent impairment of 27% of the body and had permanent work restrictions. Dr. Fevurly testified for the respondent that the claimant suffered from a concussion from blunt head trauma in the accident and that he still had sporadic complaints of neck and low back pain following the accident. Dr. Fevurly assigned a 5% impairment to the body and stated that he could return with unrestricted duties. Dr. Stein, the court appointed physician, found the claimant had a 16% functional impairment to the body as a whole. Judge Sanders awarded a 16% functional impairment to the claimant. Future medical was authorized with Dr. Manguoglu to continue to provide medical treatment for claimant that was necessary to cure and relieve effects of the accidental injury. „„ Nature and Extent of Disability „„ Average Weekly Wage In Martin v. Royal Valley Public Schools, U.S.D. 337 and Hartford Insurance Company, No. 1,060,837, the claimant was employed with U.S.D. 337 as a group leader in the childcare department. During the school year, claimant worked 15-20 hours per week doing child care after school. During the summer of 2010, claimant worked 40 hours every other week. Claimant worked two weeks in a row or part of a second week when she filled in for another employee. The employer

testified that they designate people such as Ms. Martin as not being full-time employees. In July 2010, the claimant jumped into the pool and broke the heel to her left foot. She had significant treatment with Dr. McCoy and had a subtalar fusion in June 2011. The claimant testified that she lost strength and flexibility in her left ankle, that she has pain in her left ankle when she runs, and that she is no longer able to play softball or run and jump. She has popping when she walks. At the request of her attorney, Dr. Zimmerman examined her and found that she had a 29% left lower extremity impairment at the ankle. Dr. McCoy stated that she had 10% impairment to the left lower extremity and a 14% impairment to the foot. McCoy claimed that her injury was in her heel, not her ankle. The ALJ found that her injury was limited to her heel, and awarded her $1,139.61. Further, the ALJ found her compensation rate on this case to be $62.07, as claimant was not working full time every week but rather every other week on the date of the injury. „„ Nature and Extent of Disability „„ Medical Bills In Brazell v. Furmantie Worldwide and Chartis Insurance, No. 1,053,760, claimant was employed with respondent as an assistant tech requiring him to travel to various locations. On or about April 1, 2010, the employer started putting air fresheners in all of the company trucks. Claimant started having difficulty breathing, his throat started swelling and eyes and nose watering. Claimant asked the respondent to remove the air fresheners from the employer’s trucks. The employer removed the air fresheners from some, but not all of the trucks. The claimant had to travel frequently with a supervisor named Wayne, who insisted on having these air fresheners in the truck that he drove. On one trip with Wayne, the claimant removed the scented tree air freshener from Wayne’s truck. Wayne told claimant that if he ever did that again he would put 10 or 12 of the opened scented trees in the truck.


34  Journal of the Kansas Association for Justice

The claimant testified that Wayne did not use the air fresheners correctly. He pulled the “tree” out of the bag completely instead of pulling it out of the bag a little bit at a time. On Oct. 31, 2010, claimant and Wayne left for a two to two and a half hour trip. According to claimant, Wayne had more than one of these scented trees inside the cab of the truck. On the way back to El Dorado, the air freshener was still in the truck and he developed the same symptoms again. When claimant arrived home that evening he went to bed and later awoke around 11:30 p.m., unable to breath. Claimant’s wife took him to the hospital where he was treated as if he was having a major heart attack. He was hospitalized for three days and submitted the bill for the hospital stay. All the tests in the hospital showed that his heart was normal but his blood pressure was increased and he was prescribed blood pressure medicine. He was diagnosed with high blood pressure problems in 2006 after an episode of vertigo. Claimant had not had any blood

pressure problems until the exposure to air fresheners. Claimant worked for respondent two to three more days after his hospitalization. His primary doctor advised him to stay away from air fresheners. When he told his employer of the advice of his doctor to stay away from the air fresheners the employer let him go. Since the claimant’s last exposure to the scented tree air fresheners, he has not had any further symptoms. The Court sent claimant to see Dr. Harold Barkman, who specializes in pulmonary medicine. The pulmonary function test results were normal, as well as the chest X-ray. The blood test showed elevated levels of immunoglobulin, which indicates that claimant has a higher susceptibility to allergies. His assessments were that the claimant’s symptoms were consistent with exposure to irritants and caused him to go to the hospital for further evaluation. Dr. Barkman believed that the claimant’s symptoms at the time he went to the hospital like chest tightness were

compatible with a possible heart condition. He believed it was somewhat significant that the tightness in claimant’s chest was relieved by nitroglycerin and would suggest a cardiac condition. Dr. Barkman opined that the air freshener exposure was the trigger that started the process in the emergency room and acknowledged that a cardiac catheterization is not generally a reasonable and necessary treatment for allergic exposure. Dr. Barkman found no permanent impairment due to his exposure to air fresheners, and found that the claimant could return to his old job as long as he stayed away from air fresheners. The only evidence in this case presented is that the claimant had no permanent impairment, and claimant had incurred medical expenses. The Judge ordered the balance of $312.72 remaining from the claimant’s hospital stay beginning Nov. 2, 2010, as an authorized expense. She also ordered the medical bills from Dr. Thomas (the allergist the respondent sent him to) and Dr. Barkman’s bill be paid as an authorized medical bill. p


Journal of the Kansas Association for Justice  35

u PUBLIC POLICY

2013 Legislative Session Report By Callie Jill Denton

Callie Jill Denton, JD is KsAJ's Director of Public Policy. Callie earned a Bachelor of Arts from the University of Kansas in political science and a law degree from the Washburn University School of Law. She is admitted to the practice of law in Kansas. She entered into governmental affairs by chance when she accepted an internship at the Kansas Statehouse during her final semester at KU. She loved the people and the process. After law school, she accepted a position as a contract lobbyist. Following her interests, one position led to another. Callie has held professional government affairs positions as a contract lobbyist, executive director of a non-profit association, and manager of legislative affairs with a non-profit health plan in Seattle, Washington. Her accountabilities have included lobbying at the state and federal levels of government, compliance, association management, fundraising, and persuasive communication. She attends conferences for political involvement professionals to learn from others in her field.

2013 In Review

The 2013 Legislative Session convened in January with a newly elected House and Senate. In the Senate, Republicans hold a 32-8 majority over Democrats. In the House, Republicans hold a 92-33 majority. The most significant implication of the 2012 Elections is not the overwhelming Republican majority in the Legislature. Instead, it is that conservative Republicans obtained control of the Kansas Senate. Prior to the 2012 Elections, the Kansas Senate was a roadblock to passage of legislation supported by conservative legislators and conservative Governor Sam Brownback. The Senate, which was previously led by moderate Republican Senator Steve Morris, stopped conservative initiatives through a coalition of moderate Republicans and Democrats that held a very slim majority over conservative Republicans. Following challenges by conservative Republican candidates, and losses by several incumbent moderate Republican senators in the 2012 Primary Elections, the moderate Kansas Senate fell. Conservative Republicans now hold a majority in the Senate over moderate Republicans and Democrats. With a conservative in the Governor’s Office, and conservatives elected to leadership positions and holding majorities in both the Kansas House and Kansas Senate, the path was cleared for conservatives to advance their policy agenda as the 2013 Legislature gaveled in.

Independence of the Judiciary & Judicial Selection

The battle lines were drawn early in the debate on the judicial selection process for the appellate courts. In his 2013 State of the State, Governor Sam Brownback charged the Legislature to take action, stating: Unfortunately, our current [merit selection] system of selecting our appellate judges fails the democratic test. …I would be supportive of returning to that system [electing the state Supreme Court] or going to the federal model of judicial selection. Either passes the democracy test that the current system fails.

But others saw the Governor’s interest in the selection pro-


36  Journal of the Kansas Association for Justice

cess differently. House Minority Leader Paul Davis, D-Lawrence, was quoted in the Wichita Eagle (see http://www.kansas. com/2013/01/15/2637212/brownback-urges-more-cuts-in-kansas. html) as stating that Brownback was “engineering a far-right takeover of the judicial branch in an effort to solidify his absolute unfettered control of Kansas government.” Several pieces of legislation were introduced eliminating the Nominating Commission process in the appellate courts. In the new conservative-led Senate, there were sufficient votes to pass a constitutional amendment resolution to make changes to the selection process for the Supreme Court. (A two-thirds majority vote of both the House and Senate is needed to place a constitutional amendment resolution on the ballot for a vote of the people. No signature of the governor is required to place a resolution on the ballot). However, in the House, a coalition of moderate Republicans and Democrats stood firmly opposed to changing the selection process. While conservatives had the votes in the House to pass a judicial selection bill that would affect only the Court of Appeals, they did not have the necessary two-thirds majority needed to pass a constitutional amendment resolution. Throughout the 2013 Session, the Kansas Association for Justice opposed entirely the bills and resolutions making any changes to merit selection for the appellate courts. At the 2012 Annual Meeting, the KsAJ Board of Governors unanimously approved a very, very strong position of support for the Nominating Commission process for the appellate courts, and for merit selection. The Governors opposed politicizing the Kansas appellate judicial system. The Governors opposed any change to Kansas’ judicial selection process. At hearings before both the House and Senate Judiciary Committees, KsAJ Legislative Chair Mike Fleming testified on behalf of KsAJ. In his testimony, Fleming stated that the current process is the best means to identify judicial candidates based on their qualifications. Fleming testified: KsAJ supports the current laws on judicial selection. The current Nominating Commission process for the appellate courts is the best way to identify and evaluate professionally qualified candidates for the judiciary and to reduce the risk of bias and undue influence in the judicial branch. The importance of a professionally qualified, independent, and impartial judicial branch cannot be overstated. Yet proponents of changing merit selection, and the Constitution, cannot provide hard evidence of how the current judicial selection system has worked to the detriment of judicial independence, impartiality, or high-quality decision-making. And supporters of change have not proposed concepts that assure judges will be selected in a nonpartisan, merit-based process that also assures the independence of the judicial branch.

Public opinion polling showed that Kansans do not support changing merit selection for the appellate courts. Prior to

the start of the session, Justice at Stake (JAS), a nonpartisan, non-profit organization in Washington D.C. dedicated to the preservation of fair and impartial courts, conducted a poll on Kansans’ knowledge and views on merit selection. The poll found that 61% of Kansas voters opposed amending the state Constitution to change the way in which Kansas Supreme Court justices are selected. In a press release, JAS stated: By a nearly a three-to-one margin, Kansans oppose abandoning their current system and replacing it with a proposed model that would allow the Governor to choose judges without first having candidates screened and recommended by a panel.

Polling was conducted by 20/20 Insight LLC, which surveyed 975 registered voters over a period of two days, January 13-14. Results of the poll can be found at http://www.justiceatstake. org/media/cms/2013_Kansas_Poll_D8D19B1CC59DC.pdf. For more information on the poll and Justice at Stake, visit www. justiceatstake.org. Despite polling showing citizen opposition, and growing criticism in editorial boards across the state, both the House and Senate Judiciary committees passed nearly identical constitutional amendment resolutions. Both resolutions (HCR 5002 in the House, and SCR 1601 in the Senate) eliminate the Nominating Commission and require Senate confirmation of gubernatorial appointments for both the Supreme Court and Court of Appeals. The Senate resolution passed the full Senate. There was significant pressure on moderate House Republicans and Democrats to join conservatives, support the Governor, and pass a constitutional amendment resolution. However, citizenled groups of non-attorneys voiced strong public opposition to making any changes to the judicial selection process. The work of the League of Women Voters of Kansas, MainStream Coalition, and Traditional Republicans for Common Sense strengthened the House coalition of legislators that opposed changes to the selection process. Consequently, House conservatives could not muster sufficient votes to pass a constitutional amendment resolution in 2013. Instead, HB 2019 was passed in both houses and signed into law by Governor Brownback. HB 2019, which required only a simple majority to pass, is effective July 1, 2013. HB 2019 eliminates the Nominating Commission for the Court of Appeals and replaces it with a federal-style Senate confirmation process. HB 2019 also adds a 14th judge for the Court of Appeals. Under HB 2019, the current Nominating Commission merit selection process remains in effect for the Supreme Court. HB 2019 has the effect of establishing separate selection processes for Court of Appeals judges and Supreme Court justices. Despite enactment of HB 2019, judicial selection will continue to be debated in the 2014 Session. Proponents of merit selection and the current Nominating Commission process for the Supreme Court are preparing to oppose constitutional


Journal of the Kansas Association for Justice  37

amendment resolutions, as well as other statutory changes that will weaken the appellate courts. The Kansas Values Institute (www.kansasvaluesinstitute.org), a policy and grassroots advocacy organization, will spearhead a citizen-led coalition to educate the public about merit selection and the importance of the judiciary as an independent, coequal, and separate branch of government. Consistent with the position set by the KsAJ Board of Governors, KsAJ will continue to advocate for no additional changes to the selection process for Supreme Court justices in effect on July 1, 2013. The KsAJ Executive Committee reviewed KsAJ’s position on judicial selection after passage of HB 2019. The Executive Committee voted unanimously to make no changes to KsAJ’s current public policy position on the judicial selection process. There was strong agreement that it is a greater priority to preserve the integrity of the current merit selection process for the Kansas Supreme Court, rather than to dilute the integrity of the selection process for both courts. The KsAJ Executive Committee affirmed KsAJ’s opposition to politicization of the judicial selection process and support for merit selection for the appellate courts.

Workers Compensation

Significant changes to the Workers Compensation Act became law in 2011 (2011 Sub for HB 2134). During the Legislature’s consideration of 2011 Sub for HB 2134, the conservative House amended stringent anti-worker provisions into the bill that went beyond a compromise base bill crafted by Business and Labor. However, the punitive House amendments did not become law because the amendments were voted down in the moderate-controlled Senate. The 2012 Elections eliminated the moderate majority coalition in the Senate. Despite a strong grassroots campaign mounted by Working Kansans Alliance, conservative legislators, the Business community, and the Department of Labor introduced and successfully advanced antiworker changes to the Workers Compensation Act in 2013. SB 187, the omnibus workers compensation bill, is effective upon publication in the Kansas Register on April 25, 2013, and contains several provisions amending the Workers Compensation Act. It changes the selection process for workers compensation administrative law judges, the workers compensation appeals board, and the unemployment security review board. The ALJ selection issue is parallel to the debate on the merit selection process for appellate court judges. Like the nominating commission process for appellate court judges, there has been no concern that the selection process for work comp ALJs, the appeals board, or the unemployment security review board produced unqualified judges or has not worked in a timely fashion. Despite apparently effective processes, the Department of Labor and business interests supported legislation that tilts the playing field in favor of business interests. Under SB 187, representatives of employers dominate the new nominating

committee, with business organizations holding the majority of positions (four and potentially five of seven). The new nominating committee will be composed of seven members appointed by the governor from nominees submitted by each of the following: • the Kansas secretary of labor; • the Kansas Chamber; • the NFIB; • the Kansas AFL-CIO; • the Kansas state council of the society for human resource management (KS SHRM); • Kansas self-insurers association; • a nominee from either an employee organization defined in K.S.A. in 75-4322 or a professional employees’ organization defined in 72-5413 selected by the secretary of labor. No action of the nominating committee shall be effective unless approved by a vote of two-thirds of the committee. ALJs and work comp board members wishing to be reconsidered for reappointment are deemed to have met qualifications for reappointment, and shall submit an application for reappointment. ALJs and board members shall be submitted for reappointment unless two-thirds of the nominating committee votes not to submit the ALJ or board member for reappointment. SB 187 also contains the provisions of SB 73, a bill requested by the Kansas Department of Labor. The bill requires the use of the 6th Edition of the American Medical Association’s Guide to the Evaluation of the Permanent Impairment. However, use of the 6th Edition is delayed and not required until Jan. 1, 2015. Opposition testimony during the hearings on SB 73 indicated that 2011 HB 2134 had been agreed upon by Labor based on retaining the 4th Edition Guides. In addition, Kansas AFL-CIO and the Kansas Association for Justice testified that the 6th Edition has not been adopted uniformly nationwide; that impairment ratings cannot be attributed to greater validity or reliability of the 6th Edition; and that the 6th Edition will cause uncertainty for workers, physicians and employers. SB 187 also amends 2012 K.S.A. 44-520, the notice of injury provisions of the Act. The time periods for notice of injury were reduced. 2012 KSA 44-520 is amended. Notice of accident or injury is reduced from 30 calendar days to 20 calendar days from the date of accident or the date of injury by repetitive trauma. If the employee no longer works for the employer against whom benefits are being sought, the period for providing notice of injury is reduced from 20 days to 10 calendar days after the employee’s last day of actual work for the employer (See Sec. 11 of the bill, page 21).


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As you are well aware, reductions in notice work against both the injured worker and the employer and are inconsistent with the concept of the Workers Compensation Act in many ways. The notice reductions were not part of the legislation that was introduced, but were raised by legislators when the committees worked the bills. Thus, there was little opportunity to provide legislators with testimony about the reductions. Legislators stated that reducing the notice periods encouraged employees to report injuries so that they could be treated sooner and get better results. However, labor stated that it would result in increased claims and overreporting. KsAJ opposed the changes.

Restraint of Trade/Antitrust

Interest in amending the Kansas Restraint of Trade Act dates back to 2006 when legislation was introduced to eliminate treble damage provisions in K.S.A. 50-115 (2006 SB 548). At that time, the Senate Judiciary held hearings on SB 548. The bill did not advance due to concerns expressed by committee members that it would affect pending litigation. In 2012, an eleventh hour legislative battle ensued following the Kansas Supreme Court’s decision in O’Brien v. Leegin Creative Leather Products, 277 P.3d 1062 (2012). Legislation amending the KRTA passed the House but narrowly failed in the Senate. In Fall 2012, a Judicial Council Advisory Committee met and recommended two potential draft bills for the Legislature’s consideration. In 2013, multiple new bills amending the KRTA were introduced in both the House and Senate, including bills that would repeal the KRTA altogether. In 2013, SB 124 was enacted and went into effect upon publication in the Kansas Register on April 18, 2013. SB 124 creates new law regarding the purpose and application of the KRTA to certain business contracts, arrangements and agreements. It contains provisions directing the court to construe the KRTA in harmony with judicial interpretations by the U.S. Supreme Court of comparable federal antitrust law. However, there are exceptions in which the KRTA still applies, including actions concerning intrastate commerce; actions brought by indirect purchasers under the KRTA; recovery of damages for violations under the KRTA; remedies or penalties provided under the KRTA; and actions brought by the attorney general under the KRTA. SB 124 clarifies when the KRTA does not apply, including to associations that comply with the Kansas Cooperative Marketing Act; entities governed by the Capper-Volstead Act, a federal law; corporations organized under the Kansas Electric Cooperative Act; associations governed by the Kansas Credit Union Act; associations governed by the Packers and Stockyards Act, a federal law; and any franchise agreements or covenants not to compete. SB 124 enacts a new reasonableness analysis for the consideration of whether an arrangement, contract, agreement, trust, understanding, or combination may be deemed a trust pursuant to the KRTA. It eliminates full consideration

damages; a plaintiff may sue and recover only treble the actual damages sustained. SB 124 also contains a retroactivity clause. The new law and amendments made by SB 124 to the Act apply to any choses in action or defenses based on any KRTA provision repealed by the bill. Any such choses in action or defenses accruing by April 18, 2012 (the effective date of the Act, upon publication in the Kansas Register) shall be abated, but any cause of action pending in any court before the effective date shall not be abated. All other non-remedial provisions shall be applied prospectively.

Enacted Legislation Affecting Your Practice

The following bills were passed and signed into law during the 2013 Session. Highlights of the new laws are outlined below; practitioners should review the new laws online at www. kslegislature.org to determine how they may affect your clients. • SB 85: Motor vehicle insurance; providing proof of insurance by cellular phone or portable electronic device. Effective July 1, 2013. Amends the Kansas Automobile Injury Reparations Act (KAIRA) to permit drivers to present proof of financial security via an image on a cellular phone or other type of portable electronic device as proof of insurance, self-insurance or other financial security when applying to register a vehicle. Proof by photocopy or facsimile is still permitted. Proof of insurance via a cell phone or other portable electronic device may also be provided at the time of an accident or when requested by law enforcement. Any person who reviews the image of proof of insurance is prohibited from viewing any other content or information stored on the cell phone or device. Law enforcement officers are specifically prohibited from viewing any other content or information stored on the cell phone or device. • SB 120: Enacting the Kansas farmers’ market promotion act. Effective July 1, 2013. Establishes a central, voluntary registration of farmers’ markets in Kansas, maintained by the Kansas Department of Agriculture (KDA) for the purpose of encouraging and promoting farmers’ markets and agriculture in Kansas. Provides limited liability for farmers’ markets and establishes that any participant assumes the inherent risk of attending, participating or selling goods at a registered farmers’ market, when the participant takes part in any activity in conjunction with the farmers’ market. A registered farmers’ market may plead an affirmative defense of assumption of the risk by a participant in any action for damages against the farmers’ market. The liability of a registered farmers’ market operator will not be limited in the following instances: intentional or willful misconduct by the farmers’ market operator that injures a participant; the registered farmers’ market operator’s actual knowledge of a dangerous condition in the land, facilities, or equipment or the dangerous


Journal of the Kansas Association for Justice  39

propensity of a particular animal, and failure to make the dangerous condition known to participant, when the dangerous condition causes the injury or death of a participant. • SB 124: Amending the Kansas Restraint of Trade Act (KRTA). Effective upon publication in the Kansas Register, April 18, 2013. SB 124 creates new law regarding the purpose and application of the KRTA; contains provisions directing the court to construe the KRTA in harmony with judicial interpretations by the US Supreme Court of comparable federal antitrust law; clarifies when the KRTA does not apply; enacts a new reasonableness analysis; eliminates full consideration damages; and contains a retroactivity clause. • SB 142: Abortion; concerning civil actions related to abortion. Effective July 1, 2013. Creates a new section of law prohibiting a civil action for a claim of wrongful life or wrongful birth. Defines “claim of wrongful birth” and “claim of wrongful life.” Recovery of damages in any civil action for any physical condition of a minor that existed at birth is prohibited if such damages arise out of a claim that a person’s act or omission contributed to the minor’s mother not obtaining an abortion. The bill clarifies that nothing in the new section should be deemed to create a new cause of action or preclude any otherwise proper cause of action based on a claim that, but for a person’s wrongful action or omission, the death or physical injury of the mother would not have occurred, or the handicap, disease, or disability of an individual prior to birth would have been prevented, cured, or ameliorated so that the health and life of the individual was preserved. The wrongful death statute, K.S.A 60-1901, is amended to include “unborn child” within the definition of “person” for purposes of the statute, permitting a wrongful death action for the death of an unborn child caused by the wrongful act or omission of another. “Unborn child” is defined as a living individual organism of the species homo sapiens, in utero, at any stage of gestation from fertilization to birth. The provisions of K.S.A 60-1901 do not apply to the death of an unborn child by means of an act committed by the mother, any lawful medical procedure performed by a physician or other licensed medical professional at the request of the pregnant woman or her guardian, the lawful dispensation or administration of lawfully prescribed medication, or a legal abortion. • SB 149: Drug screening for recipients of cash assistance and unemployment benefits. Effective July 1, 2013. Authorizes the screening of applicants or recipients of cash assistance programs or unemployment insurance (UI) benefits. The Secretary of Labor may promulgate rules and regulations regarding implementation of the bill’s UI

provisions. SB 149 deletes current law disqualifying an individual for UI benefits if the individual is discharged for failing a preemployment drug screen. Instead, UI applicants or recipients must submit to controlled substance screening tests. If a test is positive, the applicant/ recipient must complete a substance abuse treatment program and a job skills program. A person that fails or refuses to complete either program is ineligible for UI benefits, subject to applicable federal law. A second positive test results in a person losing UI benefits for 12 months or until another substance abuse treatment program and job skills program are completed, whichever is later. A person is no longer eligible for UI benefits after a third positive test, subject to applicable federal law. Employers are required to report to the Secretary of Labor the name and address of applicants who are refused employment due to misconduct and other information required by the Secretary. The Secretary of the Department for Children and Families (DCF) is authorized to establish the screening program by January 1, 2014, for applicants and recipients of cash assistance programs. Please review SB 149 for more information regarding the bill’s provisions for screening of cash recipients. • SB 168: Limiting nuisance actions against certain agricultural activities. Effective July 1, 2013. SB 168 creates a new statutory section outlining the compensatory damages for both permanent and temporary nuisances. For permanent nuisances, damages are limited to the reduction in the fair market value of the claimant’s property caused by such nuisance, not to exceed the fair market value of the property. For a temporary nuisance, damages are the lesser of the diminution in fair rental value of the claimant’s property caused by such nuisance; the value of the loss of the use and enjoyment of the claimant’s property; or the reasonable cost to repair or mitigate any injury to the claimant caused by the nuisance. SB 168 also permits temporary nuisances to be deemed incapable of abatement after a good faith effort at abatement is unsuccessful, and damages are limited to those provided for permanent nuisances. Substantial compliance with a court order shall constitute a good faith effort as a matter of law. Persons bringing an action for private nuisance are required to have an ownership interest in the property alleged to be affected by the nuisance. Owners may reasonably expand the scope of agricultural activity and retain the protections of K.S.A. 2-3202 so long as the activity complies with all applicable local, state, and federal environmental codes, resolutions, laws, and rules and regulations. The definition of “agricultural activity” in K.S.A. 2-3203 is amended to include the wholesale handling, storage and transportation of agricultural commodities. • SB 187: concerning workers compensation. Effective upon publication in the Kansas Register, April 25, 2013. Replaces


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the current selection processes for ALJs, work comp appeals board, and the unemployment security review board with a new nominating committee process. Increases salaries of ALJs to 85% of the salary prescribed for a district judge. Requires that each work comp appeals board member have at least five years’ experience practicing law in the area of workers compensation. Nominees to the employment security board are confirmed by the Senate. Requires the use of the 6th Edition AMA Guides for injuries occurring on and after Jan. 1, 2015. Reduces the time period for notice of injury from 30 calendar days to 20 calendar days from the date of accident or the date of injury for repetitive trauma. Reduces the time period for notice of injury from 20 calendar days to 10 calendar days after the employee’s last day of actual work for the employer, if the employee no longer works for the employer against whom benefits are being sought. Changes the provisions for seeking a recusal of an ALJ. • HB 2019: Eliminating the Nominating Commission Process for Selection of Court of Appeals Judges; Selection by Governor, Confirmation by Senate. Effective July 1, 2013. On and after July 1, 2013, any vacancy occurring in the court of appeals and any position to be open on the Court of Appeals due to enlargement of the court, retirement or failure of an incumbent to run for retention election shall be filled by appointment by the governor, with the consent of the Senate, by a person possessing the qualifications of office. If the governor fails to make an appointment within 60 days, the chief justice of the Supreme Court, with the consent of the Senate, shall make the appointment. The Senate shall confirm appointments by an affirmative, majority vote, and if the Senate does not consent the same procedure shall be followed until a valid appointment is made. The Senate must vote to consent not later than 60 days after the appointment is received; if the Senate is not in Session within the 60 day time limit, the Senate shall vote to consent no later than 20 days after the Senate begins its next session. Judges appointed to the Court of Appeals are eligible to run for retention election; terms are four years. The Court of Appeals shall consist of 14 judges. • S Sub for HB 2052: Concerning firearms; personal and family protection act; concealed handguns in public building; unlawful discharge of a firearm inside a city. Effective July 1, 2013. Creates new law, and makes substantial amendments to the Personal and Family Protection Act, to permit the possession of firearms on certain governmental property and within state and municipal buildings, and requires adequate security measures at public entrances of state and municipal builds in order to prohibit the carrying of any weapon into the building. Creates certain exceptions for corrections facilities, the courts, and the State Capitol. Allows any state or municipal building to exempt the building for four years, subject to developing

a plan for security measures and filing notification of the exemption. Permits school districts, post-secondary educational institutions, public medical care facilities, public adult care homes, community mental health centers, and indigent health care clinics to allow licensed employees to concealed carry under certain circumstances. Prohibits a state agency or municipality from prohibiting a licensed employee from carrying a concealed handgun at the employee’s workplace except in certain circumstances. Any private entity providing adequate security measures in a private building, and posting conspicuously signage prohibiting the carrying of a concealed handgun, shall not be liable for any wrongful act or omission relating to the acts of persons licensed to carry a concealed handgun, concerning acts or omissions regarding such handguns. Provides that any private entity not providing adequate security in a private building, permitting the carrying of a concealed handgun, shall not be liable for any wrongful act or omission relating to actions of persons licensed to carry a concealed handgun, concerning the acts or omissions regarding such handguns. • HB 2081: Amends the Kansas Consumer Protection Act (KCPA) and the Kansas Code of Civil Procedure relating to the crimes of identity theft and identity fraud, temporary restraining orders, temporary injunctions, poverty affidavits, redemption of real property, and civil forfeiture. Effective July 1, 2013. A new section named the “Wayne Owen Law” is added to the KCPA stating that the crimes of identity theft and identity fraud are unconscionable acts or practices in violation of the KCPA. The bill permits a court to issue a temporary restraining order without notice or bond to the adverse party under certain circumstances. The requirements for poverty affidavits filed by plaintiffs in civil cases seeking to be relieved from paying a docket fee are modified. • HB 2107 Insurance enacting the electronic notice and document act, return of premiums separate from the notice of adverse underwriting decision, statutory updates, uninsurable health plan increase in lifetime limit, mandate lite, certain company dividend plan. Effective July 1, 2013. The Electronic Notice and Document Act permits the use of electronic notices and documents for purposes of sending insurance notices and documents. Under the new act, insurers must obtain the consent of the “party,” which is defined as any recipient of any notice or document required as part of an insurance transaction, including, but not limited to, an applicant, an insured, a policyholder, or an annuity contract holder. “Delivery by electronic means” is defined to include delivery to an electronic mail address at which a party has consented to receive notices or documents; or posting on an electronic network or site accessible to the internet, together with a separate notice of the posting, which is required to be provided by email to the


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address at which the party has consented to receive notice or by any other delivery method that has been consented to by the party. Insurers may deliver notices or documents to a party if the following conditions are met: the party has affirmatively consented to the method of delivery and has not withdrawn consent; the party, before giving consent, is provided with a clear and conspicuous statement informing the party of any right or option to have the notice or document provided in paper or other non-electronic form; the right to withdraw consent and any consequences if consent is withdrawn; whether the party’s consent applies only to a particular transaction or to identified categories of notices or documents; how a paper copy of a notice or document may be obtained and any fee applied; and the procedure to withdraw consent and to update information needed to contact the party electronically. Delivery of a notice is considered equivalent to any delivery method required under applicable law, including delivery by first class mail; postage prepaid, certified mail; certificate of mail; or certificate of mailing. The bill contains provisions for posting online. The bill does not allow denial of legal effectiveness, validity or enforceability of a contract or policy of insurance solely due to the failure to obtain electronic consent or confirmation of consent by a party. The bill permits an oral communication or recording that could be reliably stored and reproduced by the insurer to qualify as a notice or document delivered electronically. Electronic signatures that are attached to or logically associated with the signature, notice or document may also satisfy a requirement for a notice or document to be notarized, acknowledged, verified or made under oath. The bill does not affect any obligation of the insurer to provide notice to any person other than the insured of any notice provided to the insured. The bill does not apply to any mutual insurance company organized under Kansas law nor does it modify, limit or supersede the provisions of the Federal Electronic Signature in Global and National Commerce Act (PL 106-229) or the Uniform Electronic Transactions Act (K.S.A. 16-1601 et seq.). For details of the remainder of HB 2107, please review the bill. • HB 2164: Concerning jurors; relating to information disqualifying jurors from jury service. Effective July 1, 2013. Requires any jury commissioner who receives information from a prospective juror or court of this state that disqualifies or potentially disqualifies a juror from jury service pursuant to K.S.A. 43-156 to submit such information to the Secretary of State. The information is limited to the full name, current and prior addresses, age, telephone number, and, if available, the date of birth of the prospective juror. Jury commissioners must submit the information in a form and manner approved by the Secretary of State. The information shall be used for the purpose of maintaining voter registrations. For details of the remainder of HB 2164, please review the bill.

• HB 2204: Extending the judicial branch surcharge for two years. Effective July 1, 2013. The bill allows the Supreme Court to continue to add an additional charge to certain docket fees to fund the costs of non-judicial personnel. The surcharge was due to expire on June 30, 2013, but has been extended to July 1, 2015. Under the bill, the docket fee established in K.S.A. 2012 Supp. 60-2001 is $154, and the Supreme Court may continue to impose an additional charge not to exceed $22 per docket fee. • Sub for HB 2183: Amendments to the Health Information Technology Act. Effective July 1, 2013. Provides that protected health information in the possession of an “approved health information organization” shall not be subject to discovery, subpoena, or other means of legal compulsion, and also such “approved health information organization” shall not be compelled by a request for production, subpoena, court order, or otherwise, to disclose protected health information. During hearings, proponents indicated that approved health information organizations would not be in possession of a patient’s full medical records, which would remain with providers. Providers would not be exempted from discovery and would be able to authenticate records (no change to current laws). • HB 2216: Amending the joint committees on special claims against the state. Effective July 1, 2013. The number of members on the Joint Committee on Special Claims Against the State are reduced from 13 to seven, and the number of required attorney members is reduced from four to two. • HB 2253 Abortion restrictions and declaration that life begins at fertilization. Effective July 1, 2013. Unless a pregnancy resulted from the plaintiff’s criminal conduct, the following persons may obtain relief in a civil action: a woman upon whom an abortion is performed or induced or upon whom there is an attempt to perform or induce an abortion, in violation of the law enacted in HB 2253; the father, if married to the woman at the time of the abortion; and the parents or custodial guardians of the woman, if she is not age 18 at the time of the abortion. Remedies include money damages for all injuries, psychological and physical; statutory damages equal to three times the cost of the abortion; injunctive relief; and reasonable attorneys fees. “Abortion” is defined in the bill. A new statutory provision is added that declares the life of each human being begins at fertilization, with all state laws to be interpreted and construed to protect the rights, privileges and immunities of the unborn child, subject only to the U.S. Constitution and the judicial decisions and interpretations of the U.S. Supreme Court. The bill clarifies that nothing in the new provisions apply to abortion necessary to preserve the life of the pregnant woman. Current law applying to late-


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term restrictions is amended, and “medical emergency,” regarding a pregnant woman is redefined. The definitions “bodily function” and “fertilization” are added to the general abortion statutes.

Issues in 2014

Despite passage of HB 2019 this year, judicial selection is expected to remain on the front burner in the next legislative session. First, during this year’s veto session, Rep. Lance Kinzer, R-Olathe, chair of the House Judiciary Committee, introduced new legislation affecting the courts, which is likely to receive hearings in 2014. Second, a decision by the Kansas Supreme Court in Gannon v. State of Kansas, Case No. 10C1569, is expected to stir up legislative ire over school funding and renewed interest in judicial selection. Additionally, 2014 is a carry over year. Any bill that was not passed in 2013 is live and may once again advance in 2014. In preparation for the 2014 Session, KsAJ members are encouraged to review the following bills online at www. kslegislature.org and provide any comments or concerns about how they may affect your clients or practice to Callie Denton, Director of Public Policy. • SB 42: Architects and engineers; immunity from liability in negligence under certain circumstances. The bill creates additional immunity beyond what is provided for at K.S.A. 60-4201. The bill grants immunity from negligence except for gross negligence or willful misconduct for an architect or engineer who voluntarily provides services and options for consideration for sheltering students in cases of emergencies located on school property. • SB 89: Concerning interest on judgments in civil actions. Amends K.S.A. 16-201 and K.S.A. 16-204. Prohibits pre-judgment interest on any unliquidated, punitive, exemplary or future damages. Amends the judgment interest rule and replaces the rate of 10% per annum with a scheme that changes annually and is equal to an amount that is one percentage point above the discount rate as of July 1 preceding the date the judgment was rendered. • SB 90: Amending private remedies under the Kansas consumer protection act. Amends K.S.A. 50-634 by defining “aggrieved” and “suffers loss” as only when a consumer can prove on an individual basis that a violation of the KCPA caused the consumer to enter into a transaction that resulted in damages. The person seeking damages must show an actual out-of-pocket loss. “Outof-pocket loss” is defined as an amount of money equal to the difference between the amount paid by the consumer for the good or service and the actual market value of the good or serve that the consumer actually received. The bill is to be construed and applied retroactively. Based on an ALEC model bill.

• SB 233: Concerning the Uniform Consumer Credit Code. Amends the definition of “loan” in K.S.A. 16a-1-301 to include the advancing of cash or funds to a consumer in exchange for which such consumer assigns to, conveys to or otherwise confers upon the person or entity advancing the cash advance or funds, the right to receive the proceeds, or any part thereof, of the settlement, insurance payment, or award of damages obtained as a result of such consumer’s civil action, statutory or regulatory claim for which damages may be awarded to the claiming party, or a cause of action or legal claim upon which a civil action or statutory claim may be based, regardless of whether the right to receive the proceeds is non-recourse. “Loan” does not include providing professional legal services or advancement of litigation expenses by an attorney admitted to practice law in this state to an individual on a contingency fee basis. • HB 2315: Concerning real property; relating to trespass and liability exceptions. Based on an ALEC model bill. Defines “trespasser;” provides that a possessor of real property owes no duty of care to a trespasser except to refrain from willfully or wantonly injuring the trespasser. A possessor may use justifiable force to repel a trespasser who has entered the land or a building with the intent to commit a crime. A possessor may be subject to liability for physical injury or death to a trespasser if the trespasser was a child, the injury resulted from a dangerous artificial condition on the land, and the possessor knows or in the exercise of ordinary care should know, that young children are likely to trespass; the possessor knows, or in the exercise of ordinary care should know, that the condition exists and that it involves an unreasonable risk of bodily harm to young children; the injured child because of such child’s youth did not discover the condition or realize the risk involved in intermeddling with it; and a possessor using ordinary care would not have maintained the condition when taking into consideration the usefulness of the condition and whether or not the expense or inconvenience to the possessor in remedying the condition would be slight in comparison to the risk of harm to children. The bill states the section does not create or increase the liability of any possessor of real property. The bill states the section does not affect any immunities from or defenses to liability established by any other section in statute or common law. • HB 2376: Enacting the Kansas apology and disclosure of unanticipated medical outcomes and medical errors act. Enacts new law regarding required disclosure policies for unanticipated medical outcomes and medical errors by medical care providers and health care facilities. Amends the rules of evidence relating to admission of evidence in civil actions and expression of apology, sympathy, compassion or benevolent acts by medical care providers or health


Journal of the Kansas Association for Justice  43

care administrators by making such evidence inadmissible. • HB 2384: Eliminates classified service for attorneys, IT, and supervisory employees in the Executive Branch. The bill affects workers compensation administrative law judges who chose to remain classified pursuant to K.S.A. 44-551(g). • HB 2399: Civil action for damages for criminal acts; trespass and liability. Based on an ALEC model bill. Specifies that any person injured in person or property by a criminal act shall have a civil cause of action unless specifically prohibited by law and may recover actual damages, punitive damages, and reasonable attorneys fees and costs. Recovery on a tort action is barred except for civil claims based upon alleged willful or wanton misconduct or intentionally tortuous conduct, alleged violations of the U.S. Constitution or alleged violations of federal statutes pertaining to civil rights. “Trespasser” is defined. Under the bill, possessors of real property owe no duty of care to a trespasser except to refrain from willfully or wantonly injuring the trespasser. A possessor may use justifiable force to repel a trespasser who has entered the land or a building with the intent to commit a crime. The bill contains provisions relating to attractive nuisance and child trespassers. • HB 2415: Concerning courts; relating to the retirement system for judges; retirement age; amending K.S.A. 2012 Supp. 20-2609. The bill amends statutory provisions providing for retirement funds for judges and justices. On and after Aug. 31, 2014, any district judge shall retire upon reaching the age of 75 and may finish serving the term during which the judge attains the age of 75. On and after Aug. 31, 2014, any Supreme court Justice or Court of Appeals judge shall retire upon reaching age 65 and may not finish serving the term during which the judge attains the age of 65. • HB 2416: Concerning courts; relating to appellate court jurisdiction; abolishing the court of appeals; establishing the court of criminal appeals and the court of civil appeals. The bill abolishes the Court of Appeals and creates instead a court of criminal appeals and a court of civil appeals. Each court shall be the final court of appellate review in matters under the court’s jurisdiction, except in matters for which the Kansas Supreme Court has original jurisdiction or appellate jurisdiction as provided by statute. Vacancies on both courts will be filled by appointment by the governor, with the consent of the Senate. Cases in which notice of appeal to the Kansas Supreme Court was filed prior to Aug. 31, 2014, may be transferred to the appropriate court of appeals by the Supreme Court.

• HCR 5019: A proposition to amend the constitution of the state of Kansas by revising article 3 thereof, relating to the judiciary. HCR 5019 is a new constitutional amendment resolution that establishes a judicial selection process for both the Supreme Court and Court of Appeals by which the governor appoints a qualified person and the Senate confirms the appointment. Under the resolution, the selection process for judges of the Court of Appeals and justices of the Supreme Court would be the same; the Supreme Court Nominating Commission would be eliminated. Also, judges and justices would hold office for life subject only to retirement, discipline and removal for cause.

KsAJ at the Statehouse

KsAJ’s registered lobbyists are Callie Denton, Jennifer Crow and John Polzar. KsAJ’s lobbying team maintains KsAJ’s constant Statehouse presence, builds relationships on KsAJ’s behalf, and recommends effective legislative strategies to the KsAJ Governors, Executive Committee and Legislative Committee. As KsAJ’s Public Policy Director, Callie coordinates the legislative advocacy program, which includes communicating with KsAJ members, testifying on behalf of KsAJ, and representing KsAJ with interest groups, legislators, and members of the public. If you have questions, comments or concerns, please contact Callie Denton at 785-232-7756 or cdenton@ksaj.org. p

2012-13 KsAJ Legislative Committee Members Mike Fleming, Chair Lee Cross Matt Dameron David DeGreeff Russ Hazlewood Chad Lucas Michelle Marvel K ala Spigarelli Rex Sharp A. Scott Waddell


44  Journal of the Kansas Association for Justice

Worth Noting

Member Updates  Steven J. Borel, Olathe, announced his transition to part-time practice, effective June 1, 2013. Borel's contact information is as follows: Law Office of Steven J. Borel, 10505 W. 128th Terrace, Overland Park, KS 66213. Phone: (913) 782-2400 or (800) 748-7100. Fax: (913) 782-1490. Email: sborel@borelfirm.com.  G. Lee Cross, Westwood, attended the AAJ New Lawyer Division Membership Drive in New York City on June 6-7. New Lawyer recruitment to AAJ was the main focus for this event.  Stephen G. Dickerson, Overland Park, reported a change of contact information: The Dickerson Law Group, 7944 Santa Fe Drive, Overland Park, KS 66204. Phone: (913) 381-3800. Fax: (913) 827-1194. Email: steve@sdickersonlaw. com.  Linda Gilmore, Liberal, was appointed to a District Judge position in the 26th Judicial District.

Welcome New Members! Selena Sujoldzic, Wichita Jonathan Voegeli, Wichita Mark Rockwell, Lawrence Kole Masters, Shawnee

KANSAS ASSOCIATION FOR

JUSTICE

 Daniel E. Monnat, Wichita, was honored by Chambers USA 2013 as one of Kansas’ Most Notable Litigators. According to the Chambers USA report, Monnat was chosen based on his experience as a criminal defense attorney and recognition as a talented trial and appellate lawyer.  Christopher Welsh, Omaha, reported a change of address: Welsh & Welsh, P.C., L.L.O., 9290 West Dodge Road, Suite 204, Omaha, NE 68114.

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

KsAJ Student Intern KsAJ continues its new summer tradition of hiring an undergraduate summer intern. This year’s intern is Samantha Hulvey. Hulvey is working toward a degree in English with a minor in dance at The University of Kansas where she will be a junior next year. Hulvey has a 3.56 GPA and has plans to pursue a career in law following completion of her undergraduate program. Hulvey is a member of the Delta Epsilon Iota Honor Society at KU and is also active in various organizations throughout the City of Lawrence.

With the desire to remain in the state after obtaining a legal education, Samantha is eager to learn more about the Kansas judiciary system and KsAJ’s mission of protecting the rights of Kansans. Staff looks forward to working with Ms. Hulvey on a number of projects geared toward enhancing member benefits, revitalizing the website and cataloging historical association materials. p

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!


Journal of the Kansas Association for Justice  45

KsAJ 2013-14 Executive Committee & Program Chairs Executive Committee President: Dale Bennett Westwood

Immediate Past President: Jeff Carmichael Wichita

President-elect: Patrik Neustrom Salina

Treasurer & Eagles Chair: Kathy Kirk Lawrence

Executive Director: Charlotte Krebs Lawrence

Program Chairs Education Chair: Matt Birch Kansas City

Legislative Co-Chair: Mike Fleming Kansas City

Membership Chair: G. Lee Cross Westwood

Public Affairs Chair: Tim Pickell Westwood

Committee Chairs

KsAJ Organization Liaisons

Amicus Curiae Chair: Vacant

KBA IOLTA Committee: Terry Beck, Topeka

Board of Editors Chair: Jim Howell, Wichita

KS Bar Foundation Board of Trustees: Margaret Farley, Lawrence

AAJ Representatives

KS Legal Services Board of Directors: David Calvert, Wichita

AAJ Governors: Dan Lykins, Topeka John Parisi, Kansas City AAJ Delegates: Steve Dickerson, Olathe Brad Prochaska, Wichita KsAJ New Lawyer Representative to AAJ BoG: Matt Birch, Kansas City

Legacy of Justice Foundation Board Chair: David Rebein, Dodge City

Section Chairs Auto Litigation Chair: Ryan Hodge, Wichita

Legislative Co-Chair: David Morantz Kansas City

Section Chairs (Continued)

Criminal Law Chair: Dan Monnat, Wichita Family Law Chair: Joe Huerter, Topeka Medical Malpractice Chair: Larry Wall, Wichita Work Comp Chair: Jeff Cooper, Topeka


46  Journal of the Kansas Association for Justice

KANSAS ASSOCIATION FOR

JUSTICE Settlements & Verdicts By Robin Maxon

Plaintiff v. Defendent Hospital and Defendant Obstetrician Plaintiff's Attorney: Bradley J. Prochaska, Wichita Settlement Amount: $4.2 million Case Description: Due to confidentiality, the parties and the venue cannot be disclosed. The plaintiff was born in a hospital in Kansas. His condition at birth indicated he had suffered a lack of oxygen during the approximate hour before his delivery. The boy is now 5 years old. He has cerebral palsy, severe brain damage and requires 24-hour care. Pitocin was being administered to the mother during labor to make her contractions more frequent. Plaintiff claimed the Pitocin caused her contractions to occur too frequently, which caused the fetus to suffer a lack of oxygen during labor. Plaintiff claimed the hospital’s nurse and the obstetrician negligently failed to discontinue the Pitocin. Plaintiff claimed that if the Pitocin had been promptly discontinued, the frequency of the contractions would have been reduced, the fetus would have received adequate oxygenation, and the fetus would not have suffered brain damage. Plaintiff claimed the hospital failed to have a written policy that defined how many contractions it takes be unsafe. Plaintiff further claimed the hospital failed to properly train its labor and delivery nurse to know how many contractions it takes to be unsafe. p

Want to see your cases published in the KsAJ Journal? Tell us about your good results! Submit materials for Settlements & Verdicts by mail or email to: Robin Maxon, c/o KsAJ, 719 SW Van Buren, Suite 222, Topeka, KS 66603, info@ksaj.org. Fax: (785) 232-7730. When submitting settlement or verdict information for a case that is yet to be final, please be careful to keep us advised of additional developments so that we can exercise discretion in a timely fashion as to what should be published. p

From all of us at KsAJ • Thank You to

Jeff Carmichael for your outstanding leadership as 2012-13 KsAJ President.


Journal of the Kansas Association for Justice  47

AAJ Update

KANSAS ASSOCIATION FOR

JUSTICE

Report Details Rising Dangers from Trucks, Offers Market-Based Solutions AAJ Urges Congress to Increase Trucking Insurance Limits set in 1980

Washington, DC — An outdated economic model allows unsafe trucking companies to operate on U.S. roads, according to a new report released by the American Association for Justice (AAJ). “Truck Safety Alert: Rising Danger from Trucks and How to Stop It,” details safety hazards in the trucking industry, including a compensation program that promotes fatigued driving and ignores safety risks, and inadequate insurance limits that shift the cost burden to taxpayers, medical insurance carriers, and Medicare. According to the report, artificially low insurance limits prevent unsafe trucking carriers from ever being held responsible for the full amount of damage they cause. A fatal truck crash costs approximately $4.3 million in direct costs, yet the insurance minimum for cargo trucks has remained at $750,000 since 1980. Adjusted for inflation, the rate would be equal to $2.2 million today, or $4.4 million adjusted for the equivalent in medical care dollars. This allows companies and drivers to take risks that jeopardize public safety. One Virginia State Trooper was killed in 2002 when a commercial tow truck turned in front of him while the trooper

was responding to a call of gun shots fired during the D.C. sniper crisis. The trooper had his lights and siren on, but the truck driver was on his cell phone. The statutory minimum insurance requirement of $750,000 applied to the truck, while the trooper's lost income and services were around $2 million. "Without adequate insurance limits for the trucking industry, all consumers pay the price when a vehicle and truck collide," said American Association for Justice (AAJ) president Mary Alice McLarty. "Not only are consumers who share the roads with trucks at risk, but so are truck drivers who operate in an industry that incentivizes risky driving conditions. Congress needs to address the antiquated trucking insurance limits," added McLarty. The report concludes with suggested, market-based solutions that would make strides towards increased safety. Solutions include an emphasis on the realities of truck drivers' work and compensation — not just logged hours — and changing insurance requirements. Key facts: • 3,757 people died in trucking accidents in the U.S. in 2011.

Fatalities (per miles driven) are 17 percent higher for trucks than for passenger vehicles. • More than 28,000 trucking companies with safety violations operate on U.S. roads. • Nearly three times as many people die in truck accidents as die in aviation, boating, and railroad accidents combined. • In a fatal two-vehicle crash involving a vehicle and a large truck, 97% of the deaths were the occupants in the passenger vehicle. • The Trucking Alliance, a coalition of trucking companies, recently published a study showing 42% of crash settlements exceeded the federal government's minimum insurance requirement for trucking companies. p

Reprinted with permission of the American Association for Justice. For more information, visit http://www. justice.org.


48  Journal of the Kansas Association for Justice

KANSAS ASSOCIATION Back FORat the Station…

JUSTICE

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

How Does KsAJ Measure Up? We have talked over the past several years about the difficulties we faced as an organization, the solutions we’re pursuing, and the success we’ve had getting the association pointed in the right direction. So the question arises: How does KsAJ measure up? We provide metrics on a quarterly basis to the leadership and our premier members, and most of our indicators are trending in the right direction. But I think it’s always helpful to step back and see how we compare to other associations. As an association executive, my “go to” source for such data is the American Society of Association Executives (ASAE). The associations they represent vary widely — from trade to professional, from institutional members to individual members, and various combinations of these elements. Professional associations, particularly individual member professional associations such as KsAJ, almost always run a much tighter ship than do trade and institutional member associations, so I was prepared to find that our operating ratios were slightly below industry norms. Working with your Director of Financial Operations, Dereka Pedersen, CPA, here is what we found.

The industry standard for Efficiency is $1.20. That is based on total revenues divided by total assets. In other words: based on our assets, how much revenue can we generate? We were delighted to document that KsAJ’s Efficiency is $1.70 — higher than the industry standard. I think that’s something to celebrate. The industry standard ratio for Membership Dues is 41.40%. That ratio measures what percentage of the organization’s revenue come from dues dollars. KsAJ derives 57.39% of its revenues from dues. That makes the organization more dependent on dues dollars than perhaps we should be. But before you get too concerned, please note that back in 2010 when the staff turnover occurred, and applying the rules of our new configuration to our financial records, back then KsAJ was pulling 82% of its revenues from dues dollars. This documents that leadership and current staff, by actively pursuing strategic sponsorships and non-dues sources of revenue, have decreased our reliance on dues dollars by almost 25% in the last three years. I think that’s something to be proud of. The industry standard ratio for Advocacy is 1.1%. That ratio is based on advocacy expenses divided by total revenues. KsAJ spends 22.37% of its total revenues on advocacy;

a great deal more than the norm. Political climates ebb and flow… but the tide of big money pushing to limit the liability of corporations and others when they do harm is especially strong in our state. These efforts threaten your ability to make a decent living. And the overarching effect is that they threaten to limit the rights of Kansans when they are harmed by the actions or negligence of others. What kind of state will we leave to the next generation if we don’t push back? These extraordinary advocacy efforts are made possible to a large degree by the generous support of our premier members — Governors and Eagles — who voluntarily increase their dues and provide leadership so that we can protect the legacy which your predecessors have built over the last 60-plus years. I think that’s extraordinary — you all are truly champions for Justice. p


Save the Date 2013 Annual Meeting & CLE Seminar at Crown Center

Excellence in Advocacy December 5-7, 2013 | The Westin Kansas City at Crown Center

Registration Coming Soon! Visit www.ksaj.org/annualmeeting for more infomation.


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

PRSRT STD

U.S. Postage PAID Topeka, Kansas Permit NO. 698

Topeka’s Historic Fire Station No. 2 Banquet & Event Space For more than 50 years, Fire Station No. 2 served the Topeka community as the city’s first freestanding fire station and Fire Department headquarters. Purchased by the Legacy of Justice Foundation in 2001, the once-abandoned landmark has been renovated and restored. Today, the historic site serves the community in a new capacity, providing unique event space and office suites just steps away from the State Capitol. The newly renovated facility provides modern conveniences with historic charm in a prime downtown location. Whether you’re looking for a place to host a wedding reception or plan a meeting, the Legacy of Justice Foundation has just the space for your next business event or social function!

Rooms for All Occasions: weddings, receptions luncheons, education, depositions Book your event today!

Mention this ad to receive a 10% discount on your first rental.

Legacy of Justice Foundation 719 SW Van Buren Topeka, KS 66603 Phone: (785) 232-7756 Fax: (785) 232-7730 Email: info@ksaj.org

KsAJ Journal July 2013  

Journal of the Kansas Association for Justice. Vol. 36, No. 6, July 2013

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