BY THE COURT
44-504(b) provides employers a subrogation right-the right of
a party who pays an obligation to recover from another party
who ought to have paid-when the employee sues a third party
who was responsible for all or part of the employee's
injury. Under that statute as interpreted in Wishon v.
Cossman, 286 Kan. 99, Syl. ¶ 2, 991 P.2d 415
(1999), the employer's subrogation interest applies
"only to the extent that the worker's recovery
duplicates compensation and medical expenses paid by the
employer under the Workers Compensation Act." When the
employee's recovery in a lawsuit against a third party
does not include any award for future medical expenses, the
employer is not entitled to any credit against future medical
expenses that might be provided to the employee under the
Workers Compensation Act.
from Sedgwick District Court; Mark A. Vining, judge.
Patrick J. Murphy and Ryan D. Weltz, of Wallace, Saunders,
Austin, Brown & Enochs, Chartered, of Wichita, for
A. Shuart, of Hutton & Hutton Law Firm, L.L.C., of
Wichita, for appellee Andrew Henson.
Malone, C.J., Leben, J., and Hebert, S.J.
Henson was badly injured at work when he was pinned between a
printing press and a large crate. Accordingly, his employer,
Belger Cartage Service, Inc., had to pay for his medical
treatment and provide disability compensation under the
Workers Compensation Act.
believed the first doctor who treated him committed medical
malpractice, and he sued the doctor. A jury agreed with
Henson and awarded substantial damages.
trial, Belger Cartage asked that the district court give it
credit in the amount of the remainder of the lawsuit recovery
against future medical expenses it might otherwise be
required to pay for Henson's continued treatment. The
district court denied that request, and Belger Cartage has
appealed to this court. Based on our Supreme Court's
ruling in Wishon v. Cossman, 268 Kan. 99, Syl.
¶ 2, 991 P.2d 415 (1999), we conclude that the district
court ruled correctly.
did not seek recovery in his medical-malpractice case for any
future medical expenses, so the jury did not award him any.
Yet Belger Cartage seeks a credit against those very expenses
through its lien rights under K.S.A. 44-504(b). Our Supreme
Court said in Wishon that an employer's interest
under K.S.A. 44-504(b) applies "only to the extent that
the worker's recovery duplicates compensation and medical
expenses paid by the employer under the Workers Compensation
Act." 268 Kan. 99, Syl. ¶ 2. Because Henson did not
get any money in the lawsuit for future medical expenses and
medical expenses are the only future costs Belger Cartage
might have to pay, Belger Cartage is not entitled to any
credit based on the malpractice recovery.
and Procedural Background
answer the limited question at issue in this appeal, we need
only sketch an outline of the background facts in the case.
had been helping load a printing press while a coworker was
driving a forklift to move a large crate. The forklift driver
went too fast, causing the crate to slide in Henson's
direction and pinning him against the printing press. Henson
was knocked out and woke up lying on the ground struggling to
breathe. Coworkers loaded him into a pickup truck to take him
to a hospital emergency room, but a Belger Cartage manager
redirected them to a nearby clinic. A doctor at that clinic
treated Henson that day and for several days afterward,
returning Henson to work. See Henson v. Belger Cartage
Service, Inc., 2011 WL 5341314, at *2-3 (Kan. Work.
Comp. App. Bd. 2011).
Henson was hospitalized, underwent surgery, and had a
pacemaker implanted. Although he went back to work, he was
restricted to lifting no more than 15 pounds; Henson was
eventually laid off and did not work again.
recovered damages for his injuries in two proceedings. The
first was a workers-compensation case to determine what his
employer should pay for his on-the-job injuries. In that
case, Belger Cartage paid Henson $125, 000 in disability
benefits; it also paid medical expenses costing $192, 000.
The second case was a medical-malpractice case for
negligence, as Henson believed the negligence of the initial
treating doctor had caused him harm. There, Henson recovered
$735, 900, a portion of which represented loss-of-consortium
damages. Loss-of-consortium damages were awarded to
compensate Henson's wife for the loss of household
services from Henson, and they are not compensable under the
Workers Compensation ...