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Pierson v. City of Topeka

Court of Appeals of Kansas

June 15, 2018

Damon L. Pierson, Appellee,
v.
City of Topeka, Appellant.

         SYLLABUS BY THE COURT

         1. Under K.S.A. 77-607(b)(2), nonfinal agency action is "the whole or a part of an agency determination, investigation, proceeding, hearing, conference or other process that the agency intends or is reasonably believed to intend to be preliminary, preparatory, procedural or intermediate with regard to subsequent agency action of that agency or another agency."

         2. A remand by the Workers Compensation Board to the administrative law judge on the extent of preaward medical expenses is a nonfinal agency action.

         3. Final agency action under K.S.A. 77-607(b)(1) "means the whole or part of any agency action other than nonfinal agency action."

         4. The law of the case doctrine prevents relitigation of the same issues within successive stages of the same lawsuit.

         5. To recover penalties for failing to pay compensation awarded in a workers compensation case, the demand for benefits not paid must set forth with particularity the items of disability and medical compensation claimed to be unpaid and past due.

         6. K.S.A. 2017 Supp. 44-536(g) authorizes an award for attorney fees "on the basis of the reasonable and customary charges in the locality for such services and not on a contingent fee basis."

         7. An award for attorney fees in a workers compensation case is controlled by statute. K.S.A. 2017 Supp. 44-536(g) specifically limits an award of attorney fees to issues raised before the administrative law judge and Workers Compensation Board, not on appeal.

         8. Kansas Supreme Court Rule 7.07(b)(1) (2018 Kan. S.Ct. R. 50) only authorizes an award of attorney fees for the appeal of a case when the district court had authority to award fees. A workers compensation case is not heard by the district court. Therefore, attorney fees in a workers compensation case cannot be awarded under Kansas Supreme Court Rule 7.07(b)(1).

          Appeal from Workers Compensation Board.

          Douglas M. Greenwald and Karl L. Wenger, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellant.

          Paul D. Post, of Topeka, for appellee.

          Before Schroeder, P.J., Malone, J., and Stutzman, S.J.

          Schroeder, J.

         The City of Topeka (Topeka) appeals and Damon L. Pierson cross-appeals the decision of the Workers Compensation Board (the Board). We find Topeka prematurely appealed the Board's remand for the administrative law judge (ALJ) to determine whether Pierson's preaward medical expenses were reasonably necessary to cure and relieve his work-related injuries. Since the remand is a nonfinal agency action, we have no jurisdiction to address the issue, and that portion of Topeka's appeal is dismissed. The remaining issues on appeal involve whether Pierson is entitled to payment of his postaward medical expenses; his entitlement to penalties for the nonpayment of his postaward medical expenses; attorney fees for the prosecution of the case for postaward medical expenses; and attorney fees on appeal.

         We find the request for payment of postaward medical expenses should be effective as of February 11, 2016, six months before Pierson filed his motion for penalties on August 11, 2016. The request for penalties is denied because Pierson failed to set out his demand letter with particularity as to what postaward medical expenses needed to be paid. We determine the Board failed to properly apply K.S.A. 2017 Supp. 44-536(g) when assessing attorney fees, and we must remand for the Board to consider the reasonable and customary fees charged in the locality while considering the guidance of Kansas Rule of Professional Conduct (KPRC) 1.5(a) (2018 Kan. S.Ct. R. 294). Finally, we determine Pierson is not entitled to attorney fees on appeal as Supreme Court Rule 7.07(b)(1) (2018 Kan. S.Ct. R. 50) does not allow attorney fees on appeal from a Workers Compensation Board decision.

         We affirm in part, reverse in part, dismiss in part, and remand with directions.

         Facts

         Pierson, an employee of Topeka, was injured while working in September 2012. Pierson immediately began medical treatment with his own doctor and provided notice of the work-related injury to Topeka on October 8, 2012. Topeka denied the workers compensation claim and did not pay or provide medical services. On July 14, 2014, the ALJ found Pierson's work was the prevailing factor of his injury, and he had a 15 percent permanent partial impairment rating. The ALJ noted he was "unaware of any additional medical expense requested by the claimant. Nevertheless, all medical care necessary to cure and relieve the effects of claimant's injury be [sic] repetitive trauma is ordered paid by the self-insured respondent." The ALJ also found Pierson was entitled to future medical care. Topeka appealed.

         The Board found Pierson's work was the prevailing factor of his injury and affirmed the permanent partial impairment rating of 15 percent. The Board further found any medical treatment Pierson received before October 8, 2012, was unauthorized. The Board ordered Topeka to pay "all medical expenses incurred by claimant commencing October 8, 2012, necessary to cure and relieve the effects of his work injuries." The Board concluded Pierson was "entitled to future medical benefits upon proper application and approval."

         On February 11, 2015, Topeka appealed to this court, arguing the Board lacked sufficient evidence to conclude Pierson's permanent partial impairment was 15 percent and that Pierson's work was the prevailing factor to his injury. Our court affirmed the Board in an opinion issued February 19, 2016. Pierson v. City of Topeka, No. 113, 247, 2016 WL 687726, at *3-5 (Kan. App. 2016) (unpublished opinion). Topeka did not petition for review.

         On April 7, 2015 (while the first appeal was pending), Pierson filed an application for modification of medical benefits. The form utilized has an option for the applicant to request postaward medical termination or modification of medical benefits. Here, Pierson marked the box to apply for postaward medical, termination, or modification of medical benefits authorized on July 14, 2014 (the date of the ALJ's order). Additionally, he wrote: "Claimant continues to have symptoms from the work-related injury, and is currently in treatment with Dr. ...


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