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Henson v. Davis

Court of Appeals of Kansas

October 16, 2015

Andrew Henson, Appellee,
v.
Ronald Davis, M.D., Appellee. and Belger Cartage Service, Inc., Appellant,

         SYLLABUS BY THE COURT

         K.S.A. 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.

         Appeal 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 appellant.

          Blake A. Shuart, of Hutton & Hutton Law Firm, L.L.C., of Wichita, for appellee Andrew Henson.

          Before Malone, C.J., Leben, J., and Hebert, S.J.

          OPINION

          Leben, J.

         Andrew 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.

         Henson believed the first doctor who treated him committed medical malpractice, and he sued the doctor. A jury agreed with Henson and awarded substantial damages.

         After 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.

         Henson 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.

         Factual and Procedural Background

         To answer the limited question at issue in this appeal, we need only sketch an outline of the background facts in the case.

         Henson 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).

         Later, 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.

         Henson 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 ...


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