RONDON v. TYSON FRESH MEAT INC (2008)

MEMORANDUM OPINION

Jose Rondon worked for Tyson Fresh Meats, Inc. (Tyson) since coming to this country from Cuba in 1993. His work involved separating, sorting, and cleaning various beef parts. In 1998, he underwent surgery for a ruptured appendix. In 1999, he had his first hernia repair surgery. He was off work for a time but returned to his job at Tyson.

In June 2003, Rondon experienced a second hernia. The hernia developed along the incision for his 1998 appendectomy. This second hernia was repaired in July 2003. Rondon initiated a workers compensation claim against Tyson, claiming his injury was work related. He received an award of temporary total disability compensation which was to be paid until he reached maximum medical improvement. After a period of recovery, Rondon was placed on work restrictions and returned to work.

In April 2004, Rondon experienced his third hernia. He was referred by his attorney to Dr. Pedro Murati for an examination on July 7, 2004. Dr. Murati found an umbilical hernia in need of surgical repair. Rondon last worked for Tyson on July 28, 2004, and underwent his third hernia repair surgery on August 12, 2004. That month he filed another application for a workers compensation hearing.

In November 2004, Rondon reached maximum medical improvement and was released from treatment. Since there was no work for him at Tyson consistent with his restrictions, he was told to check back weekly to see if a suitable job became available. None ever did. Eventually, Tyson personnel told Rondon that he was unemployable. Rondon did not look for work after that.

In January 2005, Rondon was again seen by Dr. Murati for the second time. Dr. Murati found decreased sensation in the hypogastric nerve distribution bilaterally. He also found a protuberance and weakness in Rondon's abdomen, which he diagnosed as Rondon's fourth hernia. Dr. Murati opined that Rondon was at risk of further hernias and the past hernia repair surgeries had not been successful. He rated Rondon as having a 3% permanent partial disability base on the nerve damage. He provided no rating for the hernia but opined that if the hernia condition was subject to being valuated by a rating, he would rate Rondon's disability at 10% to 19% of the body as a whole.

In July 2005, Dr. Dick Geis conducted an independent medical examination of Rondon at the request of the administrative law judge (ALJ). Dr. Geis found no evidence of a fourth hernia or of the nerve loss reported by Dr. Murati. In Dr. Geis' opinion, Rondon's past surgeries repaired his hernias successfully and they were “failed” surgeries in the sense that Rondon continued to have postsurgical symptoms.

In December 2005, Dr. Chris Fevurly conducted an independent medical examination at the request of Tyson. Dr. Feverly found a generalized weakness in Rondon's abdominal wall which he characterized as an “incompetent abdominal wall.” He observed a protrusion of the abdomen when doing a test but could not determine if it was a true hernia, since the abdominal wall was so thin that it protruded whenever Rondon exerted pressure. He found no hypogastric nerve dysfunction. In his view, Rondon's hernia surgeries would not have caused the kind of nerve damage that Dr. Murati reported. Dr. Fevurly believed that future hernias were likely due to Rondon's weakened abdominal wall which was caused by Rondon's 1998 appendectomy.

Rondon argued before the ALJ that he was entitled to permanent partial disability benefits because of the nerve injury reported by Dr. Murati, because his surgeries did not result in a successful repair of his hernias, and because his resulting severe work restrictions made him unemployable. The ALJ determined that Rondon's injuries were limited to two traumatic hernias covered under K.S.A. 44–510d(22) and that Rondon had not suffered any nerve damage.

Rondon appealed to the Board, claiming that a “failed surgery” was a new unscheduled injury that entitled him to permanent partial disability benefits similar to the benefits awarded the claimant in Lozano v. Excel Corp., 32 Kan.App.2d 191, 81 P.3d 447 (2003). The Board affirmed the ALJ, stating:

“Unlike the claimant in Lozano, in this case neither Dr. Geis nor Dr. Fevurly found neurological injury resulted from the hernia surgeries. Furthermore, neither the condition diagnosed by Dr. Fevurly of an abnormally thin abdominal wall nor a ‘failed surgical hernia repair’ removes these claims from the scheduled injury statute.”

Rondon appeals.

Are Rondon's Claimed “Failed Hernia Surgeries” a New and Distinct Injury for Which Rondon is Entitled to Compensation as a Permanent Disability?

Rondon claims the Board erred by not classifying his repeated hernia operations as “failed surgeries” qualifying him for permanent disability compensation for this condition as an unscheduled injury.

Our review of the Board's ruling is limited to questions of law in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77–601 et seq. See K.S.A.2007 Supp. 44–556(a); Nance v. Harvey County, 263 Kan. 542, 551, 952 P.2d 411 (1997). Whether an injury is compensable is a question of law over which we exercise unlimited review. Coleman v. Swift–Eckrich, 281 Kan. 381, 383, 130 P.3d 111 (2006). The interpretation of a statutory provision in the Workers Compensation Act is also a question of law. Under the doctrine of operative construction, we defer to the Board's interpretation of the law if there is a rational basis for the Board's interpretation. However, the Board's determination on a question of law is not conclusive and, though persuasive, is not binding on the court. Foos v. Terminix, 277 Kan. 687, 692–93, 89 P.3d 546 (2004).

K.S.A. 44–510d provides that for certain scheduled permanent partial disabilities “compensation is to be paid for not to exceed the number of weeks allowed in the following schedule:

․

“(22) For traumatic hernia, compensation shall be limited to the compensation under K.S.A. 44–510h and 44–510i and amendments thereto, compensation for temporary total disability during such period of time as such employee is actually unable to work on account of such hernia, and, in the event such hernia is inoperable, weekly compensation during 12 weeks.”

Rondon claims his injury is not a traumatic hernia as scheduled in K.S.A. 44–510d(22). He describes his injury as a “failed hernia surgeries” injury: a new, distinct, and unscheduled injury for which he should be compensated as an unscheduled permanent disability.

As stated in Casco v. Armour Swift–Eckrich, 283 Kan. 508, Syl. ¶ 7, 154 P.3d 507 (2007):

“Scheduled injuries are the general rule and nonscheduled injuries are the exception. K.S.A. 44–510d calculates the award based on a schedule of disabilities. If an injury is on the schedule, the amount of compensation is to be in accordance with K.S.A. 44–510d.”

In considering Rondon's claim for “failed hernia surgeries,” we must be mindful of Duncan v. City of Osage City, 13 Kan.App.2d 364, Syl. ¶ 1, 770 P.2d 843, rev. denied 245 Kan. 783 (1989), in which this court stated:

“When a worker's injury results in objective physical damage to a member of his body which is included in the schedule under K.S.A. 44–510d, and general bodily disability arises solely by reason of the resulting physical limitations inherent in the loss of use of that scheduled member, the worker is limited to the compensation provided for loss of use of the scheduled member.”

This description of injury appears to fit squarely with Rondon's “failed hernia surgeries” theory.

Workers compensation laws have been in effect in Kansas for almost a century. Before 1927, the statute as interpreted by our Supreme Court permitted recovery not only for the scheduled injury, but also separately for a resulting permanent partial disability. See Lane v. Sonken–Galamba Corporation, 119 Kan. 256, 237 Pac. 875 (1925). In 1927 the legislature enacted a new act which expressly provided that no additional compensation shall be paid for a scheduled injury beyond that provided for in the scheduled injury statute. See L.1927, ch. 232. In Riggan v. Coleman Co., 166 Kan. 234, 200 P.2d 271 (1948), Riggan suffered the loss of his arm, a scheduled injury, for which he received scheduled injury benefits as well as an award for temporary total disability. Riggan claimed he was entitled to this additional disability compensation because he suffered referred pain in his shoulder, neck, and head resulting in additional incapacity. In setting aside the award for temporary total disability, the court noted:

“This is not a case where ․ [citations omitted] the accident in question caused two separate and distinct injuries each of which resulted in disability but is one where the real source or cause of his inability to work during the entire period of time for which he was awarded compensation for temporary total disability was the referral of pain from his injured arm to his shoulder, neck and head.” 166 Kan. at 237–38, 200 P.2d 271.

The referred shoulder and neck pain from Riggan's loss of his arm appears to be a fitting analogy for Rondon's weakened abdominal muscles following his various surgeries.

Dr. Murati opined that Rondon's third hernia surgery was not successful because it appeared that Rondon had developed a fourth hernia. Dr. Geis examined Rondon after Dr. Murati and found no fourth hernia. Rondon does not claim that he is entitled to benefits for a fourth hernia since that would be a scheduled injury under K.S.A. 44–510d for which limited benefits are provided. He claims his injury is a new “failed hernia surgeries” injury which is an unscheduled injury for which he is entitled to permanent disability benefits. This characterization of the cause of his problems as the condition itself seems to confuse cause and effect. “Failed hernia surgeries” is not a separate and distinct injury for which Rondon is entitled to permanent partial disability benefits.

Rondon argues, however, that while he was compensated for his earlier hernias under K.S.A 44–510d (22), they have left him unemployable because of his resulting susceptibility to future hernias. From this he argues that he is entitled to a permanent disability award because “K.S.A. 44–510d (22) contemplates that one would recover completely from hernia surgery.” An examination of the statute indicates otherwise. That a worker suffering a scheduled injury could be permanently disabled was a consequence clearly anticipated by the legislature in enacting K.S.A 44–510d. The statute limits benefits for scheduled injuries to medical care plus, in the case of permanent disability, compensation for a period ranging from 5 weeks for the loss of a portion of a toe to 225 weeks for the loss of an arm and shoulder structures. K.S.A. 44–510d(b) provides, in part:

“Whenever the employee is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation ․ and no additional compensation shall be allowable or payable for any temporary or permanent, partial or total disability, except that the director, in proper cases, may allow additional compensation during the actual healing period, following amputation.” (Emphasis added.)

Rondon has been compensated under K.S.A. 44–510d for the prior hernias for which he made claims. Should Rondon's abnormally thin abdominal wall, which has been attributed to his appendectomy, lead to future work-related traumatic hernias, they will be scheduled injuries under K.S.A. 44–510d, for which K.S.A. 44–510d(22) provides the full extent of compensation.

Rondon argues that he also suffered a disabling nerve injury. He finds support for this in the testimony of Dr. Murati and in Lozano. Lozano had surgery to repair a hernia caused by his work at a meat processing plant. He continued to experience pain following the hernia repair. Consequently, he underwent additional surgery for three reported purposes: “ ‘exploration of [the] left inguinal area, neurolysis of ilioinguinal and genitofemoral nerve [s] and repair of [the] hernia in layers.’ ” 32 Kan.App.2d at 191 Neurolysis refers to the surgical procedure of freeing a nerve from adhesions. Following this second surgery and after examining Lozano, Dr. Murati opined that Lozano suffered a 10% permanent partial disability due to damage to the nerve which the surgery was intended to free. The Board determined that Dr. Murati's undisputed testimony supported Lozano's claim, and this court affirmed, finding that the injury at issue was no longer a hernia injury but rather Lazano's new unscheduled nerve injury for which Lazano received compensation.

Rondon's reliance on Lozano is misplaced. Lozano suffered a nerve injury which was not a scheduled injury under K.S.A. 44–510d. Here, on the other hand, the Board found that Rondon suffered no nerve injury. In Lozano Dr Murati's testimony was uncontradicted. Here, both Dr. Geis and Dr. Fevurly arrived at conclusions about Rondon's injuries which were at odds with those of Dr. Murati. Dr. Murati opined that Rondon suffered nerve damage. Dr. Geis examined Rondon after Dr. Murati and found no evidence of any nerve damage. Dr. Fevurly opined that Rondon's hernia surgeries would not have caused the kind of nerve damage that Dr. Murati described, and Dr. Fevurly found no such nerve damage. Given the conflicting medical testimony, the ALJ and the Board rejected the opinions of Dr. Murati. We do not reweigh the conflicting medical testimony. There was substantial evidence supporting the Board's rejection of this argument.

Under the principles clearly stated in Duncan and Riggan, Rondon has not suffered a new and distinct injury for which he is entitled to further workers compensation benefits.

Is K.S.A. 44–510d(22) Unconstitutional?

Rondon claims that K.S.A. 44–510d(22) is unconstitutional because it does not provide him with an adequate remedy for the hernia injuries which have prevented him from returning to the workplace. Tyson argues that the issue is not properly before us because Rondon did not raise it before the Board.

Tyson correctly notes that constitutional grounds for reversal asserted for the first time on appeal generally are not properly before an appellate court for review. See Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007). However, the Board is not a Kansas Constitution Article 3 court and, therefore, does not have jurisdiction to consider claims that the Workers Compensation Act (Act) is unconstitutional. See In re Tax Appeal of Weisgerber, 285 Kan. 98, 169 P.3d 321 (2007). Nevertheless, our Supreme Court recently stated that the wise course of action is for parties in an administrative proceeding to raise constitutional issues before the administrative body to preserve the issue for appeal. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 633–34, 176 P.3d 938 (2008) (citing Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 776, 148 P.3d 538 [2006] ).

It is not clear whether this admonition in Martin applies in the context of a workers compensation appeal. In any event, Martin appears to leave intact the frequently cited exceptions to the general requirement that a party raise issues before the lower tribunal in order to preserve them for appeal. Here, since Rondon's constitutional claim involves only a question of law arising on proven or admitted facts which could be finally determinative of the case, an exception applies and we will consider Rondon's constitutional claim. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007).

In considering Rondon's constitutional challenge, we have both the authority and the duty to construe K.S.A. 44–510d (22) in a manner that renders it constitutional if we can do so without doing violence to the legislature's intent in enacting it. To that end, we presume that K.S.A. 44–510d (22) is constitutional and we resolve all doubts in favor of its validity. If there is a reasonable way for us to construe the statute as constitutional, we will do so. The unconstitutionality of K.S.A. 44–510d (22) must be clear before we may strike it down. See Injured Workers of Kansas v. Franklin, 262 Kan. 840, 844, 942 P.2d 591 (1997). The burden of proving that K.S.A. 44–510d (22) is unconstitutional rests with Rondon, and his burden in seeking to upset the will of the electorate expressed through the legislative process is a heavy one. See Barrett v. U.S.D. No. 259, 272 Kan. 250, Syl. ¶ 2, 32 P.3d 1156 (2001).

Rondon argues:

“It is the Claimant's position that the hernia statute violated the Equal Protection Clause because it does not provide for an adequate remedy to an injured Claimant who has suffered a hernia, resulting in substantial injuries and work restrictions, thereby, resulting in his inability to return to the work place.”

An equal protection claim is a claim of disparate treatment by the State between classes of individuals whose situations are arguably indistinguishable. See Ernest v. Faler, 237 Kan. 125, 129, 697 P.2d 870 (1985). Though labeled an equal protection violation, this is not the nature of Rondon's claim. He argues that the denial of benefits for his “failed hernia surgeries” injury violates the quid pro quo exchange upon which the Act is based. He claims that to limit his compensation to that described in K.S.A. 44–510d (22) ignores the ongoing nature of his condition, which warrants compensation as a permanent disability. Thus, he argues, K.S.A. 44–510d (22) “gives the Clamant no recourse for his loss.” This is not an equal protection claim but, rather, a due process claim, and we will treat it as such.

In considering the constitutionality of a statute which abrogates a remedy at common law, our Supreme Court stated in Lemuz v. Fieser, 261 Kan. 936, 948, 933 P.2d 134 (1997):

“ ‘If a remedy protected by due process is abrogated or restricted by the legislature “such change is constitutional if ‘[1] the change is reasonably necessary in the public interest to promote the general welfare of the people of the state,’ [citation omitted], and [2] the legislature provides an adequate substitute remedy” to replace the remedy which has been restricted.' ” [Citations omitted.]

As noted earlier, a heavy burden falls on Rondon in his attempt to prove his claim of unconstitutionality. In this appeal he addresses the second element of the constitutional test but ignores the first. Given the presumption of constitutionality we presume the statute satisfies the first tests, i.e., K.S.A. 44–510d (22) is reasonably necessary to promote the general welfare of the people of Kansas. Rondon presents nothing to rebut this presumption.

With respect to the second element of this test, we draw upon the words of our Supreme Court in Injured Workers of Kansas, 262 Kan. at 882–83, 942 P.2d 591:

“In applying Step 2 of the due process test, it is important to realize that the workers compensation remedy is ․ an adequate, substitute remedy itself (or quid pro quo) for the abrogation of a plaintiff's right to sue an employer for an injury incurred on the job due to the employer's negligence. In 1911, the legislature stripped employees of their common-law right to bring a civil action against employers for injuries caused by employers' negligence. ‘The legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed or abolished.’ [Citation omitted.] Thus, when the legislature abolished the employees' common-law right to sue employers for injuries, the legislature provided employees with an adequate substitute remedy—the Workers Compensation Act.”

It is interesting to note that scheduled injuries have been a part of our workers compensation laws for the better part of a century. In Riggan, discussed earlier, the court noted that “[t]he 1927 legislature enacted a new workmen's compensation act (L.1927, ch. 232) definitely indicating its intention by expressly providing that in a case where a workman suffered a scheduled injury no additional compensation should be allowable or payable for either temporary or permanent disability.” 166 Kan. at 236, 200 P.2d 271. There are many injuries listed in K.S.A. 44–510d, each one of which, one could reasonably expect, could lead to permanent partial disability or, in some cases, permanent total disability. Those injuries include the loss of digits and toes, portions or all of a leg or arm, loss of hearing, and the loss of sight in one eye. Thus, Rondon's constitutional challenge goes to the very heart of the system of scheduled injuries under the Act. In other words, if application of K.S.A. 44–510d to Rondon's injury is unconstitutional, then the statute could be unconstitutional in almost every other application.

We find significant the fact that over the many decades that scheduled injuries have been a part of our laws they have not fallen before a constitutional argument such as presented by Rondon today. This is not a case in which the legislature has recently amended the statute in a way which is claimed to have abridged in an unconstitutional way an injured worker's right to redress. Over the years, the Act has been examined in the face of broad constitutional challenges. The most recent challenge is found in Injured Workers of Kansas. While the comprehensive attack on the Act in Injured Workers of Kansas considered a particular aspect of K.S.A. 44–510d, no attack was made on the general notion of the exclusivity of the statute's scheduled benefits.

Further, Rondon does not claim that he has been denied compensation for his loss, he simply argues that the statute does not provide him with enough compensation. K.S.A. 44–510d, as applied to Rondon, has not deprived him of his right to due process of law. He argues that in terms of compensation for his injuries he is due more due process. The Act was designed to allow injured workers “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 employer's negligence.” Injured Workers of Kansas, 262 Kan. at 883, 942 P.2d 591. The scheduled benefits provided for in K.S.A. 44–510d are consistent with that design. Thus, Rondon fails to demonstrate that the system of scheduled injuries embodied in K.S.A. 44–510d is unconstitutional as applied to his circumstances. The claim that he has not been given his due is an argument more properly addressed to the legislature.

Affirmed.

PER CURIAM.