Damon L. Pierson, Appellee,
City of Topeka, Appellant.
BY THE COURT
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."
remand by the Workers Compensation Board to the
administrative law judge on the extent of preaward medical
expenses is a nonfinal agency action.
Final agency action under K.S.A. 77-607(b)(1) "means the
whole or part of any agency action other than nonfinal agency
law of the case doctrine prevents relitigation of the same
issues within successive stages of the same lawsuit.
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.
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."
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.
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).
from Workers Compensation Board.
Douglas M. Greenwald and Karl L. Wenger, of McAnany, Van
Cleave & Phillips, P.A., of Kansas City, for appellant.
D. Post, of Topeka, for appellee.
Schroeder, P.J., Malone, J., and Stutzman, S.J.
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
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.
affirm in part, reverse in part, dismiss in part, and remand
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.
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."
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.
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. ...