Hopkins v. Great Plains Manufacturing ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,735
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
LOREN J. HOPKINS,
Appellant,
v.
GREAT PLAINS MANUFACTURING, INC.,
Appellee.
MEMORANDUM OPINION
Appeal from Saline District Court; PAUL J. HICKMAN, judge. Opinion filed May 21, 2021.
Affirmed.
Donald S. Andersen, Roger A. Riedmiller, and Mark A. Scott, of Riedmiller, Andersen & Scott,
LLC, of Wichita, for appellant.
Jacob E. Peterson and Dustin J. Denning, of Clark, Mize & Linville, Chartered, of Salina, for
appellee.
Before MALONE, P.J., ATCHESON, J., and BURGESS, S.J.
PER CURIAM: In September 2014, Loren J. Hopkins was injured at work. Hopkins
filed a claim under the Kansas Workers Compensation Act (the Act) to recover for his
injuries. He also filed a civil action against his employer, Great Plains Manufacturing,
Inc. (Great Plains), alleging negligence. Great Plains moved for summary judgment in the
civil action, alleging that the exclusive remedy provision of the Act barred Hopkins'
negligence claim. The district court agreed and granted the summary judgment motion.
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The district court also rejected Hopkins' argument that if the Act barred his civil action, it
violated his rights under section 18 of the Kansas Constitution Bill of Rights.
Hopkins appeals, arguing that the exclusive remedy provision does not bar his
civil action because his injury was not compensable under the Act. In the alternative, he
argues that if the Act bars his civil action, it is unconstitutional. For the reasons stated in
this opinion, we reject Hopkins' claims and affirm the district court's judgment.
Factual and procedural background
On September 5, 2014, Hopkins' coworker, Benjamin Deiser, struck Hopkins in
the back with a forklift while both men were working for Great Plains. It is undisputed
that the forklift accident was work-related. Hopkins had suffered a back injury about 10
years earlier, which was treated and eventually became asymptomatic. After the forklift
accident, an ambulance took Hopkins to the hospital, where he received medication and
was released after a couple of hours with instructions not to work until he could see a
physician for follow-up care.
Four days later, Dr. Jon O'Neal, "a company doctor," examined Hopkins. O'Neal
treated Hopkins, prescribed more medication, referred him to physical therapy, and
instructed him about when to return to work. O'Neal also ordered MRI scans, which
Hopkins underwent on November 3, 2014. Those scans showed evidence of degeneration
in Hopkins' spinal region. Hopkins eventually filed a claim for benefits under the Act.
On February 26, 2015, at Hopkins' request, Dr. George Fluter performed an
independent medical examination (IME). Hopkins was continuing to suffer pain in his
back and was seeking medical treatment for the pain. As relevant to this appeal, Fluter
opined in his subsequent written report that Hopkins suffered multiple injuries in the
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2014 accident. Fluter concluded that the 2014 accident was the prevailing factor for those
injuries and for Hopkins' need for continuing medical care and treatment.
On March 12, 2015, Dr. John Estivo performed a second IME of Hopkins. Unlike
Fluter, Estivo concluded that the injuries resulting from the 2014 accident were not the
cause of Hopkins' continuing need for medical treatment. Rather, Estivo found that
Hopkins' 2014 injury aggravated his preexisting chronic back condition.
The administrative law judge (ALJ) presiding over the workers compensation case
ordered a third IME performed by Dr. David Hufford on May 14, 2015. Hufford found
that although Hopkins had been injured in the 2014 accident, the 2014 MRI showed
findings like those from an MRI in 2006. Thus, Hufford found that Hopkins' continuing
pain was "an aggravation of the preexisting degenerative disc disease" and the 2014
accident was not the prevailing factor causing Hopkins' need for continuing medical
treatment, nor did it increase Hopkins' percentage of permanent impairment.
On May 25, 2016, Hopkins filed a civil action against Great Plains in district
court, alleging that Deiser was negligent when he hit Hopkins with the forklift and, as
Deiser's employer, Great Plains was vicariously liable for that negligence. Hopkins
sought more than $75,000 in damages including medical expenses, loss of income and
the ability to work, and noneconomic damages such as pain, suffering, mental anguish,
disability, and loss of enjoyment of life. Great Plains filed an answer to Hopkins' civil
action. Great Plains alleged that Hopkins had failed to state a claim upon which relief
could be granted and his claim was barred by the exclusive remedy provision of the Act.
In August 2016, the district court stayed the civil action pending the outcome of
the workers compensation case. The ALJ held a preliminary hearing at which Hopkins
argued that the 2014 accident was the prevailing factor causing his condition and need for
further treatment, while Great Plains argued that the Hopkins' preexisting back condition
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was the prevailing factor. On September 16, 2016, the ALJ issued a preliminary order
finding that Hopkins had failed to meet his burden to show that the 2014 accident was the
prevailing factor causing his current need for treatment and denying Hopkins coverage
for future treatment. On February 3, 2017, the ALJ held the final regular hearing, at
which the parties reasserted their positions from the preliminary hearing.
On July 3, 2018, the ALJ issued an Award finding that Hopkins suffered a strain
as a result of the 2014 accident, but he had recovered from that strain and had failed to
show that the accident caused any permanent injury or impairment. The Award limited
benefits to those already paid and denied any future benefits. Hopkins appealed the
Award to the Kansas Workers Compensation Board (the Board).
Meanwhile, proceedings in the civil action had resumed and on October 19, 2018,
the parties filed a statement of stipulated facts with the district court. On the same day,
Great Plains filed a motion for summary judgment, renewing its argument that the Act's
exclusive remedy provision barred Hopkins' civil action. Hopkins responded to the
summary judgment motion and contended that his ongoing physical impairment, though
caused by the 2014 work-related accident, was not compensable under the Act, so the
Act's exclusive remedy provision did not apply to bar his civil action. He argued in the
alternative that denying him the opportunity to seek redress through his civil action
would deny him his constitutional right under section 18 of the Kansas Constitution Bill
of Rights to seek an adequate remedy for his injury.
On December 19, 2018, while the summary judgment motion was pending in
district court, the Board issued its Order. The Board noted that Hufford and Estivo both
found that the 2014 accident had not caused Hopkins' ongoing impairment, while Fluter
found that the 2014 accident was the prevailing factor behind Hopkins' need for ongoing
medical treatment. The Board found that Hopkins "failed to meet the burden of proving
his September 5, 2014, work-related injury by accident is the prevailing factor causing
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his permanent impairment and need for continuing and future medical treatment." The
Board also found that "[t]he weight of the medical evidence supports the ALJ's finding
that the prevailing factor causing claimant's current impairment and need for treatment is
the preexisting condition." Thus, the Board upheld the ALJ's award of limited benefits for
Hopkins. Hopkins did not seek judicial review of the Board's Order.
On April 2, 2019, the district court held a hearing on Great Plains' summary
judgment motion, at which the parties presented oral argument. On June 7, 2019, the
district court filed a journal entry including findings of fact and conclusions of law. The
district court focused on the Board's finding that Hopkins had failed to meet his burden of
proof, ultimately finding that compensation for Hopkins' injuries suffered from the 2014
accident—including his ongoing impairment—"was recoverable" under the Act. Thus,
the district court found that the Act's exclusive remedy provision barred Hopkins' civil
action. Turning to Hopkins' section 18 argument, the district court found that the Act
provided an adequate substitute remedy for Hopkins' work-related injuries and his failure
to recover his entire claim under the Act does not equate to a constitutionally inadequate
remedy. Thus, the district court granted Great Plains' motion for summary judgment.
Hopkins timely appealed the district court's judgment.
Did the district court err by granting summary judgment based on the exclusive remedy
provision of the Act?
Hopkins argues that the district court erred by granting summary judgment based
on the exclusive remedy provision of the Act. He begins by engaging in an extensive
history of the Act and describes how it was intended to provide a substitute remedy for
work-related injuries. As for his own injuries, Hopkins separates his ongoing impairment
and need for treatment as an injury distinct from the sprain he suffered in 2014. He then
argues that the Act as a matter of law bars compensation for his ongoing impairment, so
the exclusive remedy provision does not bar his civil action.
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Great Plains argues that the exclusive remedy provision hinges on whether
compensation is recoverable under the Act, not on whether a claimant was awarded all
the compensation he or she sought to recover. Great Plains asserts that Hopkins could
have recovered compensation for his ongoing impairment had he met his burden of proof
in the workers compensation proceedings and shown that the 2014 accident was the
prevailing factor causing his need for ongoing treatment and compensation. Because
compensation under the Act was recoverable for Hopkins' injuries, Great Plains asserts
the district court correctly held that the exclusive remedy provision barred the civil suit.
"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, admissions on file, and supporting affidavits show that no genuine issue
exists as to any material fact and the moving party is entitled to judgment as a matter of
law. . . . Appellate review of the legal effect of undisputed facts is de novo. [Citation
omitted]." GFTLenexa, LLC v. City of Lenexa, 310 Kan. 976, 981-82, 453 P.3d 304(2019).
To the extent that this issue involves statutory interpretation, this court exercises
unlimited review. Breedlove v. State, 310 Kan. 56, 68, 445 P.3d 1101 (2019)
("[I]nterpretation of statutes is a question of law subject to unlimited review."); Estate of
Graber v. Dillon Companies, 309 Kan. 509, 513, 439 P.3d 291 (2019) ("The
interpretation or construction of the Workers Compensation Act is a question of law.").
"[W]hen construing the Act, our most fundamental rule is that the intent of the legislature
should govern, where such intent can be ascertained. [Citation omitted.]" Mera-
Hernandez v. U.S.D. 233, 305 Kan. 1182, 1187, 390 P.3d 875 (2017). And the
Legislature has expressed its intent "that the workers compensation act shall be liberally
construed only for the purpose of bringing employers and employees within the
provisions of the act." K.S.A. 2020 Supp. 44-501b(a). This liberal construction applies
"whether or not it is desirable for the specific individual's circumstances. [Citation
omitted.]" Zehring v. Wickham, 232 Kan. 704, Syl. ¶ 5, 658 P.2d 1004 (1983).
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Resolution of this appeal turns on interpreting the exclusive remedy provision of
the Act found at K.S.A. 2020 Supp. 44-501b(d). This provision states:
"Except as provided in the workers compensation act, no employer, or other
employee of such employer, shall be liable for any injury, whether by accident, repetitive
trauma, or occupational disease, for which compensation is recoverable under the
workers compensation act nor shall an employer be liable to any third party for any
injury or death of an employee which was caused under circumstances creating a legal
liability against a third party and for which workers compensation is payable by such
employer." (Emphasis added.) K.S.A. 2020 Supp. 44-501b(d).
Although the Act was amended in 2011, the relevant language in this provision
remained the same after the amendment. See K.S.A. 2010 Supp. 44-501(b). The Kansas
Supreme Court has long interpreted the provision to mean "that if a [worker] can recover
benefits from an employer under the [Act] for an injury, he [or she] cannot maintain a
common-law action against that employer for damages based on a theory of negligence."
Fugit v. United Beechcraft, Inc., 222 Kan. 312, 314, 564 P.2d 521 (1977).
Hopkins points this court toward Endres v. Young, 55 Kan. App. 2d 497, 498, 509-
10, 419 P.3d 40 (2018), arguing that it stands for the proposition that "without the ability
to recover under the Act, [a] plaintiff can pursue an action for personal injury due to
negligence under the common-law in civil district court." Hopkins also cites Logue v.
Layne Inliner, LLC, No. 6:17-CV-01245-EFM-GEB, 2018 WL 2971746 (D. Kan. 2018)
(unpublished opinion), to support his point that he can pursue a civil action if the Act
does not allow compensation for his personal injuries. He also points out that other courts
outside Kansas have applied the same principle. But Great Plains does not dispute that
general principle, nor did the district court hold otherwise. No one argues that if
compensation under the Act is not recoverable, Hopkins should still be barred from
pursuing his civil action. Rather, the dispute in this appeal is whether compensation for
Hopkins' ongoing back problems was recoverable under the Act.
7
In 2011, the Act was amended to provide that for an injury by accident to arise out
of and in the course of employment, the accident must be "the prevailing factor causing
the injury." K.S.A. 2020 Supp. 44-508(f)(2)(B)(ii). According to K.S.A. 2020 Supp. 44-
508(g), the prevailing factor causing the injury means "the primary factor, in relation to
any other factor." A separate provision of the Act provides that "[a]n injury is not
compensable solely because it aggravates, accelerates or exacerbates a preexisting
condition or renders a preexisting condition symptomatic." K.S.A. 2020 Supp. 44-
508(f)(2). Hopkins argues that under these provisions, his claim for his ongoing medical
care and disability was not recoverable under the Act as a matter of law because his
injury resulted from the aggravation his preexisting back condition.
Despite the 2011 amendments to the Act, compensation was recoverable under the
Act for Hopkins ongoing medical care and disability. It is true that "[a]n injury is not
compensable solely because it aggravated, accelerates or exacerbates a preexisting
condition or renders a preexisting condition symptomatic." (Emphasis added.) K.S.A.
2020 Supp. 44-508(f)(2). But Hopkins could still recover under the Act for his ongoing
medical care and disability provided he could show that his 2014 work accident was the
prevailing factor causing his need for continuing treatment and impairment, rather than
the preexisting condition being the primary cause. See Le v. Armour Eckrich Meats, 52
Kan. App. 2d 189, 200, 364 P.3d 571 (2015) (considering whether chronic pain following
a back fracture was caused by preexisting osteoporosis or the work accident).
Fluter's opinion that the 2014 accident was the prevailing factor for Hopkins'
continuing medical care and treatment supported Hopkins' claim for current and future
medical benefits and his claim for disability compensation. But Estivo and Hufford found
that Hopkins' continuing pain was an aggravation of the preexisting degenerative disc
disease and the 2014 work accident was not the prevailing factor causing Hopkins' need
for continuing treatment, nor did it increase Hopkins' percentage of permanent
impairment. In other words, Estivo and Hufford found that Hopkins would be having his
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current back problems even if he had never been involved in the 2014 forklift accident.
The ALJ and the Board agreed with Estivo and Hufford and rejected Fluter's opinion.
Hopkins did not sustain two independent injuries resulting from his 2014 forklift
accident. He sustained one injury with multiple consequences. One of those
consequences was the aggravation of his preexisting degenerative disc disease. For
Hopkins to recover under the Act for his ongoing medical care and disability, he needed
to show that the work injury was the prevailing factor causing the current back problems,
rather than the preexisting condition being the primary cause. This was the primary fact
issue that was addressed in the workers compensation proceedings.
Under these circumstances, it is incorrect to say that Hopkins could not recover
under the Act as a matter of law for his ongoing medical needs. Hopkins would have
fully recovered for his claims had the ALJ and the Board adopted Fluter's opinion. It was
possible for Hopkins to fully recover for his claims under the Act, he simply failed to
meet his burden of proof—at least according to the ALJ and the Board—and Hopkins
made no attempt to seek judicial review of the Board's decision.
In sum, Hopkins recovered some compensation under the Act for his 2014 forklift
accident, just not nearly as much as he wanted to recover because the Board rejected his
claim that his work injury was the prevailing factor in causing his current back pain.
Because compensation was recoverable under the Act, the exclusive remedy provision
bars a civil action against Great Plains. Thus, the district court did not err in granting
summary judgment for Great Plains based on the exclusive remedy provision.
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Does applying the exclusive remedy provision in this case violate Section 18 of the
Kansas Constitution Bill of Rights?
As an alternative claim, Hopkins asserts that if the exclusive remedy provision of
the Act bars his civil action against Great Plains, then the Act violates section 18 of the
Kansas Constitution Bill of Rights by denying him a remedy by due course of law. He
does not specify an appropriate legal remedy in terms of striking any provision of the Act
if we agree with his constitutional claim. Great Plains asserts that Hopkins' failure of
proof in the workers compensation proceeding does not support a section 18 violation.
Whether a statute is constitutional is a question of law subject to unlimited review.
Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1132, 442 P.3d 509 (2019). Generally, if a
court can find any reasonable way to construe a statute as valid, it must. Board of
Johnson County Comm'rs v. Jordan, 303 Kan. 844, 858, 370 P.3d 1170 (2016). But when
a statute implicates "'fundamental interests,'" the presumption of constitutionality does
not apply. Hodes & Nauser, MDs, P.A. v. Schmidt, 309 Kan. 610, 673-74, 440 P.3d 461(2019).
"Section 18 of the Kansas Constitution Bill of Rights guarantees an individual's
right to a remedy: 'All persons, for injuries suffered in person, reputation or property,
shall have remedy by due course of law.' It has long been held that the words '[r]emedy
by due course of law' . . . means the reparation for injury, ordered by a tribunal having
jurisdiction, in due course of procedure and after a fair hearing." Pardo v. United Parcel
Service, 56 Kan. App. 2d 1, 11, 422 P.3d 1185 (2018).
By enacting the Act in 1911, Kansas "remove[d] an employee's common-law right
to bring a civil action against his or her employer for injuries caused by an employer's
negligence." 56 Kan. App. 2d at 11-12. In exchange, the Act provided a substitute
remedy, allowing "'employees to quickly receive a set but possibly smaller sum of money
for injuries received at work, regardless of whether the injuries were the result of the
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employer's negligence.'" 56 Kan. App. 2d at 12 (quoting Injured Workers of Kansas v.
Franklin, 262 Kan. 840, 883, 942 P.2d 591 [1997]).
This sort of exchange is permitted "'so long as it provides an adequate substitute
remedy for the right infringed or abolished.'" Pardo, 56 Kan. App. 2d at 12 (quoting Bair
v. Peck, 248 Kan. 824, Syl. ¶ 1, 811 P.2d 1176 [1991]). But once the Legislature
establishes a substitute remedy, it "'cannot constitutionally proceed to emasculate the
remedy, by amendments, to a point where it is no longer a viable and sufficient substitute
remedy.'" Pardo, 56 Kan. App. 2d at 13 (quoting Bair, 248 Kan. at 844).
Hopkins argues that the 2011 amendments to the Act "abolished the right of
workers in this state to seek redress for an aggravation of a preexisting condition within
the workers compensation system" and, by doing so, "eliminated that individual right of
workers of this state to a remedy that existed in the common law." He contends that by
doing so, the Legislature removed the substitute remedy the Act had provided and, thus,
violated section 18 of the Kansas Constitution Bill of Rights.
We agree with Hopkins that the 2011 amendments to the Act make it harder for a
worker to recover for the aggravation of a preexisting condition. Before the 2011
amendments to the Act, it was "well established under the workers compensation law in
Kansas that when a worker's job duties aggravate or accelerate an existing condition or
disease or intensify a preexisting condition, the aggravation becomes compensable as a
work-related accident. [Citation omitted.]" Le, 52 Kan. App. 2d at 193-94. The injured
worker could recover for any increase in the functional impairment associated with the
aggravation. 52 Kan. App. 2d at 194. But under the 2011 amendments to the Act, the
injured worker must now also show that the work accident was the prevailing factor
causing the need for continuing treatment, rather than the preexisting condition being the
primary cause. 52 Kan. App. 2d at 200.
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But for all the reasons we discussed in the last section of this opinion, an injured
worker can still recover under the Act for the aggravation of a preexisting condition,
provided the work accident is the prevailing factor. In Hopkins' case, he could still
recover for the full amount of his claim under the Act even though the prevailing factor
test increased his causation burden. Thus, Hopkins' constitutional argument fails because
the constitutionality of a substitute remedy considers the remedy available to the
claimant. See Pardo, 56 Kan. App. 2d at 25 ("The quid pro quo exchange that supports
the Act's constitutionality requires that a claimant have the opportunity to recover . . . if
the facts of the case warrant such compensation." [Emphasis added.]).
In sum, Hopkins recovered some compensation under the Act for his 2014 forklift
accident. He simply failed to meet his burden of proof—according to the ALJ and the
Board—to show that he was entitled to more compensation and benefits. Under these
circumstances, the exclusive remedy provision under the Act bars his civil action against
Great Plains. Hopkins still had an adequate remedy for all his claims under the Act, and
the 2011 amendments have not "emasculate[d] the remedy . . . to a point where it is no
longer a viable and sufficient substitute remedy." See Pardo, 56 Kan. App. 2d at 13.
Thus, we reject Hopkins' claim that the Legislature unconstitutionally restricted Hopkins
right to a remedy and that applying the exclusive remedy provision to Hopkins' case
violated section 18 of the Kansas Constitution Bill of Rights.
Affirmed.
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