Injured Workers of Kansas v. Franklin

77,142 No. Wayne al., Kansas, v. et L. Workers of

Injured Appellants, Philip Franklin, Resources, S. of Human Secretary Harness, of Workers Director Appellees. Compensation, 77,561

No. Wal-Mart, Gettle, v. Oliver Appellee, Appellant, Company, Insurance Insurance Union Fire National Carrier. 591)

(942 P.2d Opinion July filed 18, 1997. Short, Short, of McLane & Pittsburg, argued A. of Spigarelli, Timothy Nichols, The Law

cause, W. of of and Patrick R. Kelly Johnston, Topeka, Johnston Render, Hammond, Wichita, and Ham- Offices, P.A., of Kamas E. of and Thomas Wichita, mond, for with him on the briefs were appellants. of cause, and Prairie & of argued of Village, Fred Jr., Logan Logan, Logan, J. Resources, him on the Kotich, was with of Human Kansas A. of Department J. Franklin and Harness. brief appellees Enochs, Saunders, Austin, Wallace, Char- Brown & of McCurdy, Christopher J. firm, Streit, cause, was tered, Wichita, same and Michael D. argued Wal-Mart. with him on the brief appellee of the court was delivered opinion The 1993 Kansas Legislature sweeping passed Abbott, J.: (Act). die Act Five of those to Workers Compensation changes as as a amendments are this well as Act challenged appeal, contend the and the as a whole. The amendments Act plaintiffs whole violate due unconstitutionally process, equal protection, doctrine. The variety separation powers individuals, and labor standing groups, organizations. (declar- and the used to reach this court they procedure action) trial held and the are not an issue. The court the Act atory constitutional, amendments are and this followed. appeal session, At the start of the 1993 had before legislative legislators them of the Governor’s on Workers Com- Task Force reports the Insurance Commissioner’s Workers pensation, Compensation orce, Committee, F and the Audit all which Task Post Legislative var- areas of the workers that the suggested system ious committees determined needed reform. Over the course of session, the House Committee on Labor and and the Industry Senate Committee on Commerce conducted and heard hearings from witnesses trial representing employees, lawyers, employers, 307, labor and business associations. S.B. organizations, issues, dealt with was used as the vehicle for workers com- safety reform. The both pensation legislation passed unanimously Senate, House and and Governor bill into law. Finney signed 1993, Once the bill several filed a passed parties petition Court, in Shawnee District declaratory judgment County asking the trial court to declare nine of the Act’s amendments unconsti- and tutional void. These filed their plaintiffs declaratory judgment Gomez, action then the Director of the Division of against George Dick, Workers and then the against Compensation, Secretary Joe Resources, of Human who oversaw the Division of Workers Com- and the of the Act. L. Franklin pensation implementation Wayne Resources, is now the of Human S. Harness Secretary Philip is the Director of Workers These are now Compensation. parties the named defendants in the case. declaratory judgment

The trial court heard mo- oral on arguments summary judgment 4, tions filed both the and the defendants. On plaintiffs June and order. filed a memorandum decision The the trial court motion for court denied the summary judgment plaintiffs’ the defendants’ motion summary judgment, finding granted amendments to the Act withstood consti- that all nine challenged filed a notice of with tutional timely scrutiny. plaintiffs appeal motion to Court of This court Appeals. granted plaintiffs’ the case to the Court. transfer Supreme raised five issues instead of the On only appeal, the trial court level. The four issues nine issues that raised at they raised the of certain which were abandoned constitutionality some of the that were the amendments amendments affecting These still have in this individual standing ap- plaintiffs. of the entire also because challenge constitutionality they peal Act, not certain amendments. just action, Oliver C. Gettle filed a workers

In a separate plaintiff claim with the Division Workers Compensation was a Wal-Mart on 1994. Gettle March 64-year-old hand, arm, and shoulder while he his who right right right treatment, it was cans to overhead shelving. Upon moving paint the rotator cuff in his Gettle had tom was discovered partially on the American Medical Association Guides shoulder. Based (AMA (4th 1995) ed. the Evaluation of Permanent Impairment Guides), had a Gettle’s doctor found that Gettle partial permanent 15%, which was shoulder right equivalent impairment the whole 9% of body. heard Division of Workers Gettle’s Compensation him The issue at claim and awarded compensation. 44-510d(a)(13), that the was whether “K.S.A.

the stating hearing arm, shoul- the shoulder shoulder loss of joint, girdle, including a shoulder structures is scheduled musculature or other der any [,is], 225 weeks constitutional?” The with limited to recovery injury to de- found that he had no administrative law jurisdiction judge Thus, constitutional. follow- whether K.S.A. 44-510d was termine statute, im- limited Getde to a 15% scheduled the ing judge for 225 widi benefits calculated to his shoulder right pairment at for 25.5 weeks awarded Getde weeks. The judge week, $2,597.94, 29.92 weeks or followed a rate of $101.88 by per 844 $3,048.24, week, a total award of

at $101.88 making per $5,646.18. with the Workers Com-

Gettle filed an for review application (Board). to review the Gettle asked the Board Board pensation the constitution- law award and administrative judge’s challenged as 44-510d(a)(13), which classifies shoulder of K.S.A. injuries ality 28, 1996, that it On the Board ruled scheduled injuries. August Const, it a art. Ill court and that did have was not Kan. áct unconstitutional. to hold an Kansas authority Legislature found that it was to enforce Board obligated provi- enacted, 44-510d(a)(13), shoul- of K.S.A. as treat Gettle’s sions a The Board affirmed the award der as scheduled injury. injury entered the administrative law judge. a

Gettle to the Court of and filed motion to Appeals appealed case. This court consolidate his case this with declaratory judgment 20-3018(c), Gettle’s motion. Pursuant to K.S.A. Gettle’s granted case, 77,561, No. was transferred to this court and consolidated for 77,142. review and determination under case No. See Supreme (1996 16). Rule 2.06 Kan. Ct. R. Annot. Court a is a of law. whether statute violates constitution “Determining question law, When a this court exercise an unlimited de novo may determining question Mertz, 745, 748, (1995). State v. 258 Kan. 907 P.2d 847 standard review. See constitutional, ‘A and all doubts must resolved in favor of statute be presumed its If there is to construe a statute as reasonable validity. way constitutionally valid, the court must do so. A must violate constitution statute before clearly Scherzer, 926, 6, struck State v. 254 Kan. 869 P.2d 729 down.’ may Syl. ¶ (1994); Comm’n, 240, 243, v. Kansas 251 Kan. 834 P.2d 368 Boatright Racing (1992). ‘This court not but also the a has construe authority, duly, a if statute in such manner that it is constitutional the same can be done within Durrant, intent of the statute.’ State v. apparent passing 522, 534, (1989).” Fieser, Kan. 769 P.2d cert. denied 492 U.S. 923 Lemuz v. 936, 943, (1997). 933 P.2d I. 10-DAY NOTICE OF RULE INJURY file Prior to the Act worker to a workers com- required claim within 200 of an and to notice of pensation days injury give such to his or her within of the as injury employer days injury claim, condition valid workers precedent filing unless the or its had actual agent injury. knowledge 1986); 1986). K.S.A. 44-520a K.S.A. 44-520 This (Ensley (Ensley of claim notice requirement specifically provided: under the workmen’s act shall for not “Proceedings compensation compensation accident, maintainable unless notice of the the time and and stating place thereof, the and the name address of shall have particulars person injured, (10) after been the within ten the date the accident: given employer days Provided, That of the actual accident the or his knowledge by employer duly authorized shall render the of such notice Provided agent giving unnecessary: That want notice or therein shall not be a bar the further, unless' any defect that he has been K.S.A. 44-520 prejudiced thereby.” employer prove (Ensley 1986). added.) (Emphasis Under this notice of claim if the worker did not requirement, give notice of an within 10 of the lack of notice was injury days injury, not a to the workers bar claim unless the compensation employer could that such lack of notice was to it. prove prejudicial 1993, the amended the Act so that the failure to with notice of an within 10 of the provide employer injury days acts as bar to workers claim unless the injury compensation or its had actual notice of the or the em- employer ágent injury Further, had cause” notice. this “just failing ployee provide 1993 amendment a workers if bars claim an em- compensation fails to notice of an to the within ployee give injury employer if even had cause such for days injury, employee just failure, unless the or its had actual notice of the employer agent accident, notice, was unavailable to receive or the employer was unable notice. L. ch. physically give § amendment 42. this Specifically, provided: section, as otherwise this for “Except provided proceedings compensation act under shall be maintainable unless notice of compensation accident, thereof, the time and and the name and stating place particulars address of the to the within 10 after the person injured, given employer days accident, date that actual of the accident except knowledge by employer shall authorized render of such notice employer’s duly agent giving in this section shall not bar notice ten-day unnecessary. provided pro- if under the workers act the claimant ceeding cause, that a failure to under this section was due to shows notify just except in no event shall such a be maintained unless the proceeding within 75 notice this section is after required by given employer days (a) date of the accident unless actual of the accident knowledge notice unnec- of such renders authorized giving agent or the duly employer s. section, (b) receive such unavailable to was this as employer essary provided section, (c) unable to was or physically in this notice as provided K.S.A. 44-520. notice.” such give amendment, not have to does 1993

Under the employer lack it in order for the of notice that lack timely prejudiced prove an as a bar to act of notice compen- employee’s timely work- of claim on this new notice claim. Based sation requirement, of have to ers injury notify compensation plaintiffs 75 at or within occurrence of within of the 10 days injury, days most, to file suit and tort victims have while notify typical within of an 2 of the of the defendant injury, discovery injury years the occurrence of within 8 of in some cases or injury. years as notice of claim the new The requirement challenge and due a violation of process. protection equal Equal Protection A. vi- 44-520 contend that K.S.A. unconstitutionally United States Constitu- Protection Clause

olates the Equal relevant to the of tion. The plaintiffs’ protection equal principle Bill of in 1 of the Kansas Constitution embodied claim is Rights. § 127-28, Ass’n, 115, 631 v. Clinic See Snyder Stephens of (1981). “All men are 222 This section P.2d possessed provides: life, are natural and inalienable liberty, rights, among equal of and the pursuit happiness.” of the United States Constitution

The equal provision protection Amendment, which is in the 14th found provides: States, and naturalized in the United subject juris- “All bom or persons thereof, wherein States and of the State they are citizens of the United diction or law which shall abridge No State shall make enforce any privileges reside. States; nor shall State of of the United any deprive any immunities citizens law; Ufe, nor without due of deny liberty, property, process person added.) the laws.” its (Emphasis within equal protection jurisdiction person “ ‘ “ in treatment . . . disparity emphasizes ‘Equal protection’ ar- are of individuals whose situations a State between classes ’ ” 129, Faler, 124, Ernest v. Kan. 237 indistinguishable.” guably L. (1995) v. 417 U.S. 41 Ross 697 P.2d 870 Moffitt, (quoting

847 [1974]). Ed. 2d 94 S. Ct. 2437 equal protection when a statute treats clas- implicated “arguably indistinguishable” Smith v. 315, 321, 254 ses Kan. Printup, people differently. (1993). P.2d 985 on the People job people injured elsewhere in a sense. Neither arguably indistinguishable legal otherwise. Since K.S.A. 44-520 treats these two ar- party argues to the notice guably indistinguishable groups differently regard of claim K.S.A. 44-520 requirement, implicates equal protection. (sometimes rational standard basis referred to as reasonable test) basis to laws which result in a shorter statute of applied hmitations or a shorter notice of claim statute for a certain non- Ernest, see 130; class citizens. Kan. at Stephens, suspect standard, constitutional, at Kan. 129-30. Under this a law is despite citizens, some classification of if the “classification bears unequal some reasonable to a valid legislative objective.” Earley relationship v. 663, 3, (1987). 241 Kan. 740 P.2d 1058 Engelken, Syl. ¶

Leiker v. 325, 363-64, (1989), 245 Kan. 778 P.2d 823 Gafford, the rational basis standard as follows: explains “The ‘reasonable test is violated if the basis’ classification rests only statutory on irrelevant to the achievement of the State’s wholly objective. grounds legitimate The state is to have acted within its constitutional legislature presumed power, test, even if the statute results in some Under the reasonable basis inequality. will if discrimination not be set aside state of facts statutory any reasonably may it.” be conceived justify Revenue, v.

In Peden Kansas Dept. of 239, 258-59, 261 Kan. Cert. denied 520 U.S. 1229 (1997), (1966), this court 930 1 P.2d on rational basis standard: elaborated “The rational basis standard is a lenient standard. All the must court do to very classification under the rational basis standard is uphold legislative any perceive state of facts which the classification. Kellemsv. Commissioner rationally justifies Revenue, (1972), (2d Cir.), Internal 58 T.C. 558 474 F.2d 1399 cert. of denied 414 U.S. 831 aff’d (1973). ‘Relevance is the between only relationship required the classification and the 250 Kan. at 774. See also Ste objective.’ Stephenson, Ass’n, 115, 129, (1981) 230 Kan. P.2d 222 v. Clinic 631 phens Snyder (stating that a classification which result in some violates may inequality equal pro tection if the classification is ‘irrelevant’to the the State intended to achieve goals statute). of the A classification is ‘relevant’ its intended if through passage goal it is related to the behind the statute. rationally legitimate legislative purpose

848 Co., However, 1010, 1018, (1993). P.2d 773 v. KFB Ins. 252 Kan. 850 Thompson on a criteria which is into based ‘wholly a statute cannot classify persons groups Kan. at 753-54. A classification of the statute. Henry, unrelated’ goal ‘ “ reasonable, of differ and must rest some ‘must be not arbitrary, upon ground that so substantial relation to the ence fair and object legislation, having ” ’ shall treated alike.’ all circumstanced be Thompson, similarly persons 412, 415, Co. Guano v. 253 U.S. 64 L. Ed. Virginia, at (quoting Royster [1920]). 40 S. Ct. 560 that the classifi- the rational basis standard discriminatory “Although requires or does . . . be related valid state interests the standard cation rationally goals, solution to achieve such not that the classification goals. perfect require (When Kan. at 1021 must draw a line and See Thompson, legislature ‘ “ no the decision of ‘there is mathematical logical fixing way precisely, can wide must be unless that it was say very [the court] accepted ” (‘Establishment ’); reasonable mark.’ 223 Kan. at 619 of classifi- Liggett, with cations mathematical precision required.’).” of K.S.A. 44-520 is to The State’s up purpose speed espoused reduce claims. defendants the claim and to fraudulent process which iden- Post Audit Committee Report, Legislative point workers tified the five most significant compensation problem insurers, and offi- areas as stated attorneys, employers, judges, that five cials. The stated two of these concerns were report fre- claim and the length process concerns, claims. In these fraudulent listing report quency Times, cited the New York which estimated as much as 30% of all workers’ claims could be fraudulent. These two are valid concerns legislative objectives. new claim notice of related to rationally requirement valid The claim

these state amendment the objectives. speeds up because it the entire claim to earlier process requires process begin it would have. 44-520 does than otherwise K.S.A. not require (200 to file a claim earlier than worker actually previously required However, does after K.S.A. 44-520 days injury). strongly encourage a worker to an with notice of an timely provide employer injury by if notice A harsher not imposing consequences timely provided. will notice of an and the worker more likely give timely injury, treatment, can medical and settle- investigations, employer begin Thus, it earlier than would even ment evaluations have. previously an file 44-520 does to K.S.A. actually though require a claim earlier than the new re- notification previously required, does entire claim earlier to quirement require “process” begin have, than it otherwise would the claim thereby speeding up proc- ess.

Since K.S.A. 44-520 to encourages employees give timelynotice, an will have notice of sooner than it employer typically any injury otherwise would have. notification allows an This early employer to claimed while the work set is still investigate injuries place up same and while tire facts of the incident are still fresh. This way will an an allow to dis- early investigation employer opportunity cover fraudulent claims and to defend them. The no- new against tification lead should to a reduction in number of requirement claims, fraudulent if there are the new notice any. require- ment related to two valid state rationally objectives speeding — the claim fraudulent claims. up process reducing

There has been a of claim notice always 10-day requirement the Act. The notice claim did a claim statute not bar original if the notice was unless the em- untimely could it was notice. The ployer prove prejudiced by untimely of this notice was to the em- “afford original purpose requirement the accident to furnish ployer opportunity investigate medical treatment.” Pike v. Co., 408, Gas Service Kan. prompt (1978). 573 P.2d 1055 This court this to a valid considered be. such, notice As notice purpose requirement. original statute was to valid related rationally legislative objectives —allow- an accident and ing opportunity investigate furnish medical treatment. prompt Faler,

Based on Ernest v. that plaintiffs argue the similar notice of claim statute at herein issue violates equal because is not related ob- protection rationally legislative the claim time or jectives sought up reducing speeding process fraudulent claims. that out neither point Legis- lative Post Audit Committee nor other material sub- Report mitted claims after 10 will reduce fraud barring days suggests the claim speed up process. that, Workers out the Kansas point according 14.01, 1990), (rev. ed. no cases Handbook 14-2 Compensation § p. to show from where an was able were employer prejudice reported re- notice the notification under original untimely employee’s as information this The interpret apparently plaintiffs quirement. filed or allowed to fraudulent claims were that no pro- indicating ceed; thus, old to the occurred under the no prejudice fraud statute. Since was not notification encouraged by original claim it will not be notice discouraged by plaintiffs provision, notice assert that the new the new provision. plaintiffs interest related to the State is not rationally legitimate requirement claims. of fraudulent reducing

Further, if the new notice of claim statute does even actually of claim claims more than the notice reduce fraudulent original did, the new notice of claim statute statute argue plaintiffs class reason for to one must have rational only applying particular ¿here to to the must be reason plaintiffs, According people. have a why constitutionally justify compensation plaintiffs re- to them than the notice different notice requirement applied all other and such a reason tort plaintiffs, applied quirement that the mere fact a does not existhere. The claim plaintiff plaintiffs that a at work does not create such a for fraud is injured potential notification time should be reduced from worker’s period years, torts, allowed for to 10 claim that as most days. plaintiffs new notice of claim claimants only injured requirement, applied to the state interest on related job, rationally legitimate claims. fraudulent of reducing if there is a new notice even justification Finally, apply ¿he workers, that there

claim statute claim plaintiffs no basis as for the rule to 20-day/100- 10-day/75-day opposed is no rule. to the there rational reason why day According plaintiffs, new rule reduces fraudulent claims or speeds 10-day/75-day the claim better than a rule would. 20-day/100-day up process such, the new As assert that the notification requirement state is not related valid objectives speeding up rationally claim claims. fraudulent process reducing have attacked the new notice statute as facially thus, unconstitutional; must establish that no set plaintiffs, be valid. circumstances exist under the amendment would out that the amendment not be Simply pointing might rationally related to the state one set of facts under is not objectives sought to declare the amendment unconstitutional on its face. See enough Salerno, United States v. 739, 745, 697, 107 481 U.S. 95 L. Ed. 2d (1987). S. Ct. 2095

The notice new. can cut off nonfraudulent claims. requirement However, this does not take from fact that the notice away also cuts off fraudulent claims and is related requirement rationally to this The mere fact that the notice is overbroad goal. requirement its a is not reason to find that it violates achieving goals equal Peden, See 261 Kan. at 258 the rational protection. (“Although basis standard that classifica- requires discriminatory tion ... be related to valid state interests or rationally goals, standard does not that the classification be the so- require perfect Further, lution to achieve such the new notice goals.”). require- ment includes the statute from provisions prevent being applied in an overbroad manner and nonfraudulent claims. For barring instance, the new notice does not bar a claim for un- requirement (after notice if the can show cause. timely days) employee just While does bar a claim if notice is not within requirement given cause, even with the statute does days injury, just provide for a few of the most common reasons for such exceptions delay accident, notice —the knew about the the em- employer already notice, was unavailable to receive or the was un- ployer able to notice. has taken care to make give sure the new notice is not in an requirement applied unreasonably overbroad manner.

Further, even if the statute could be in an applied unreasonably claims, overbroad manner numerous nonfraudulent by dismissing test, this does not mean that it will be. “Under the reasonable basis discrimination will not be set aside if state of facts statutory Leiker, be conceived to at it.” 363- reasonably may justify Such a state of 64. facts can be conceived here in which the amend- ment will be with a focus on untimely applied narrowly dismissing filed fraudulent.claims. also claim that the amendment is not plaintiffs rationally

related to the fraudulent claims because the goal reducing orig- off did

inal notification good job cutting already requirement fact this contention on the claims. The base fraudulent plaintiffs few, show from if could that untimely prejudice any, employers Thus, the fraudulent notice under old provision. argue filed, have been or the could rnust not have claims employers few, if fact could any, very employers prejudice. proven the old re- notice under notification for untimely prejudice prove discover how difficult it is for indicates quirement believe, it. To as the from a fraudulent claim prove prejudice claims) do, (i.e., because fraudulent that simply prejudice notice means that under cannot provision proven original if exist is Even claims do not not a conclusion. fraudulent justified does of fraud- old notice a the great job discouraging requirement claims, new, not mean a stricter notice ulent this does that require- an even better ment could not do job.

Next, new notice is the the plaintiffs question why requirement workers not to all and to and injured injured plaintiffs only applied to the how this classification is related objectives sought. rationally new is to workers notice only applied compensation provision to achieve the because it is more important goals sought plaintiffs in than notice the workers area the compensation by requirement other In in of area any compensable injury. legislature a to caused abolished sue an plaintiff’s right damages of this of leg- negligence employer. place right, by Act, which is the Workers islature gave Compensation employees a amount of without set money, quick, proof supposed provide for all of on the job. employer negligence, employees will is a fact that claim be of part quid pro speedily processed for the common-law to sue plaintiff’s abrogation right quo Thus, it claims in negligent employer. important cases be Workers quickly processed. compensation of an claims do not only proof injury. require proof negligence, file it that the fraudulent workers makes sense opportunity file much than the claims is greater opportunity fraudulent It is easier to fake cause of an tort claims. injury of the new to fake Since the notice than require- negligence. goals fraudulent claim time reduce ment-speed process up claims—are more of area, a concern in the workers it makes sense that the means to achieve these new goals—the notice to the class of requirement applied plain- —should tiffs to the Act and not to all subject plaintiffs. claim that there is no basis for the 10-

Finally, rule as to a rule. It is true that day/75-day opposed 20-day/100-day rule have been able to achieve the same 20-day/100-day might which the notice statute at achieve, issue was enacted to with goals the same success. “When the must draw a line and legislature

‘there is no mathematical or logicalway fixing precisely, decision of the must be unless can [the accepted court] ” ’ ” that it was wide of Veden, reasonable mark.’ say veiy any Kan. at 258-59 State ex rel. v. Schneider 223 Kan. (quoting Liggett, 610, 619, [1978]). 576 P.2d 221 This court cannot that the say rule was wide of mark reasonable 10-day/75-day obtaining the legislative goals sought. the main case relied on

Finally, support Ernest, their from the position, distinguishable case at hand. statute, Ernest involved a notice of claim but the notice did not allow for a nor did the required quick investigation, Here, notice statute, the notice of claim help speed up process. that notice be requires given defendant/employer not to irrelevant third does bear a rational party, relationship the valid the claim legislative objectives sought speeding up time and fraudulent claims. The new strict notice process reducing of claim statute does not violate equal protection.

B. Due Process contend that K.S.A. 44-520 vi- plaintiffs unconstitutionally olates die Due Process Clause of the Kansas Constitution. Due is embodied in 18 of the Kansas Constitution Bill of process § which without All Rights, provides: delay. persons, “Justice suffered in or shall have rem- injuries person, reputation property, law, due course administered without edy by justice delay.” The due of the United States Constitution is process provision Amendment, found in the 14th provides pertinent part life, that no state shall or “deprive any person liberty, property, 854 “ ‘ “ fairness law.” ‘Due due

without process’ emphasizes process State, re with the and the individual the State between dealing same individuals in the situation how other may gardless ’ ” v. Ernest, Ross 417 Moffitt, at 129 237 Kan. treated.” (quoting 600). U.S. vi- due have been claim that their process rights claim has in a workers their

olated because remedy notice of claim statute. due to a more restricted been stringent violation, test tihe due following process analyzing potential be utilized: should

islature, in the been Manzanares lature 261 Kan. (citing “ ‘If a restricted.’ Bonin provides public Aves v. “such remedy protected 936, 946-47, v. interest to Shah, change Bell, adequate 214 Kan. 258 Kan. 933 P.2d 134 is constitutional v. promote Vannaman, substitute remedy” 506, 521, due process (1997). general 261 Kan. if 522 P.2d 1291 906 P.2d 642 ‘[1] welfare of the abrogated 199, 217, change replace [1995]).” (1974), or restricted 929 reasonably necessary people remedy Lemuz v. P.2d 754 ^[2] by which has Fieser, (1996) state,’ legis- leg- test, ask this the first

Under 1 of due process question Step of claim statute on is whether the new notice imposed work, a workers which restricts the at plaintiffs’ right in the inter- is reasonably necessary public remedy, of the state. An- welfare of est tó people promote general whether the means selected to state this test is other legislative way (the a real and substantial relation to notice has requirement) Vannaman, v. 199, 217, 929 See Bonin 261 Kan. objective sought. v. Manzanares 614; (1996) 223 Kan. at P.2d 754 (citing Liggett, Ernest, Bell, 589, 599, (1974); 237 Kan. 522 P.2d 1291 214 Kan. 129). at to the rational basis a due is similar 1 of process analysis

Step to an “In standard of an referring analysis protection analysis. equal ‘ the Bonin test, court stated that 1 of the under “[t]he § Step due of a statute under test constitutionality determining ’ factors.” Bo- almost identical weighs process equal protection nin, v. United States Clements Fidelity Kan. at 218 (quoting Co., Le- 124, 127, [1988]).” & Guaranty 243 Kan. P.2d 1274 muz, in the at 948. As analyzed equal protec- previously

855 section, tion State has a interest in claim legitimate speeding up Further, fraudulent claims. the new notice process reducing is related to these valid In other rationally requirement objectives. words, the new notice is a means which has requirement legislative a real and substantial relation to the objectives sought speeding — claim fraudulent claims. up process reducing new notice satisfies of the due 1 test. requirement Step process “However, this is not where the review if [due the mod- process] ‘[E]ven stops. ification of a common-law is consistent with remedy this does not public policy, the due concerns. In order to necessarily satisfy insure due process process, to an substitute when a legislature required provide common- adequate, remedy ” Lemuz, law ... is modified or abolished.’ remedy 261 Kan. at 948 (quoting Shah, 506, 522, [1995]). Aves v. 258 Kan. P.2d Bonin, See 261 Kan. at 218. test,

In 2 of the due it is applying Step process important realize that the workers common- compensation remedy Rather, law (or is an substitute itself remedy. adequate remedy for the of a worker s to sue an quid pro quo) abrogation right for an caused on-the-job injury by employer’s neg- ligence. of their common- legislature stripped employees

law a civil action for caused right bring against employers injuries “The can the com- employer’s negligence. legislature modify mon law so as it substitute for long provides adequate remedy or abolished.” Kansas Victims Co- right infringed Malpractice Bell, alition v. 333, 350, (1988), 243 Kan. 757 P.2d 251 overruled Peck, on other Bair v. 811 P.2d 1176 part grounds (1991). Thus, when the abolished the com- legislature employees’ mon-law to sue for right employers injuries, legislature pro- vided the (or with an substitute employees adequate remedy quid for the abolished —the Workers Act. pro quo) right Compensation smaller, The Act allowed receive set amount employees quickly work, received at whether were caused money injuries they not, as as the notice was met. by negligence long requirement Now, the has made the notice more strict requirement receive, so that workers benefits are more difficult to making quid pro quo abrogation employee’s right less than what once was. an for sue negligence 2 test is whether under of the due not Step process question for an substitute remedy taking legislature provided adequate Instead, in the notice Act. the lenient ques- away requirement has, Act, with its stricter notice becomes whether it under tion receive award the Act become so difficult to an that requirement, of em- no an substitute remedy abrogation longer adequate so, If then to sue employers negligence. ployees’ right stricter notice quid quo inadequate, requirement, making pro make a of due The number other violates argu- process. and we will ments an consider concerning adequate quo, quid pro this V later in this matter under issue opinion.

II. SHOULDER INJURIES classes which do The two different Act recognizes injuries to a or scheduled result in death disability permanent disability — 44-510d; body part permanent partial general disability. K.S.A. K.S.A. 44-510e. 1993, as were treated

Prior to both shoulder and hip injuries See v. disabilities. Excel Bryant Corp., permanent partial general (1986); 51-7-8(d)(3). 722 579 In the P.2d K.A.R. Act, reclassified shoulder 1993 amendments to the the legislature as a to scheduled making body part, injuries permanent disability with shoulder entitled to 66%% of weeks, for 225 employee’s average weekly gross salary regardless lost because earning employee’s employee’s capacity, work work of the or character as the same perform type inability classi- before the occurred. still injury Hip injuries performed fied as In fiscal disabilities. general year permanent partial 2,614 Division Workers shoulder were injuries reported 528 while were injuries reported year. Compensation, only hip Com- 16th Statistical of the Division of Workers Annual Report 1994, 3,492 (1990). 25-26 In fiscal shoulder year pp. pensation, were to the Division of Workers injuries reported Compensation, while 20th Annual Statistical were hip injuries reported. 25-26 of Workers Division Report Compensation, pp. (1994). contend that this was made in the Act change

because over the certain in industries Kansas have years, past incidence of overuse to arms experienced high repetitive injuries shoulders, as disabilities. These indus- qualified general tries increases in their workers claims experienced an increase their workers payments, resulting compen- sation insurance K.S.A. 44- premiums. plaintiffs challenge 510d(a)(13), which reclassifies a shoulder as a scheduled injury as a violation of and due injury, equal protection process. Equal

A. Protection 44-510d(a)(13) that contend K.S.A. classifies work- plaintiffs ers with a shoulder from with a injury differently hip injury and allows less to the shoulder victims. Ac- injury to the this distinction creates a between cording plaintiffs, disparity basis, two classes of situated without a rational similarly persons thereby equal violating protection. constitutional,

A law is some classification of despite unequal citizens, if the “classification bears some reasonable to relationship v. 663, a valid Kan. 241 legislative objective.” Farley Engelken, Syl. (1987). 740 P.2d 1058 ¶ Equal protection only implicated when statute treats classes of “arguably indistinguishable” people v. Smith 315, 321, 254 Kan. 866 P.2d 985 Printup, differently. (1993).

The first to ask in an question equal protection analysis whether classes of two who are treated people differently by are con- indistinguishable.” “arguably tend that victims of shoulder are situated or “ar- injuries similarly from victims because both guably indistinguishable” hip injuries the shoulder and the “connect” scheduled extremi- joint hip joint (arms Further, ties and to the trunk both the legs) body. bones, muscles, bloodvessels, and have shoulder the hip ligaments, to, affect, and nerves that various that attach structures are con- to sidered trunk of the In of their part body. support v. Creek cite to Stephenson argument, Sugar Packing, which, view, (1992), P.2d in their holds that arm are injuries leg injuries arguably indistinguishable. due to was on the

In Stephenson, job carpal plaintiff on a 1987 in both arms. Based tunnel she experienced syndrome amendment, 44-510d(a)(23), com- was awarded under Stephenson if had instead of a as she a scheduled injury general pensation 44-510d(a)(23), who enactment of an Prior employee injury. extremities was consid- suffered the same in both injury opposite ered have a The amended statute disability. general provided extremities that use occurring injuries opposite upper repetitive dis- rather than a treated as scheduled should be injuries general award, her workers ability. appealed Stephenson as an unconstitutional violation of statute equal challenging 44-510d(a)(23) violated Stephenson equal protection. argued to the because classified repetitive injuries protection opposite from trauma extremities injuries upper differently single extremities and awarded victims repetitive opposite upper use less a rational basis. without injuries this court found that argument, analyzing Stephenson’s statute also classified extrem- injuries opposite upper repetitive (arm ities from the lower injuries) differently injuries opposite who extremities The court found that an (leg injuries). employee who suffers an to both arms suffers injury to both situated. Since the State did injury similarly legs two enumerate rational basis to these justify treating similarly this court found the an un- situated statute differently, groups was. of at constitutional violation 781-82. protection. equal so the court stated: holding, case, “In narrows the focus argument unnecessarily present Stephenson’s of our workers treated are not those just dissimilarly sustaining carpal inquiry. trauma, all workers with bi- tunnel conditions from sudden versus but repeated workers who lateral use conditions extremities and upper repetitive suffer of workers are other to both extremities. These any injuries opposite of classifications do not receive situated with cost but cutting, they goal

similarly respect like of the United States Constitution treatment. The equal protection guarantee does State from legislation, preclude classifying persons purposes Kan. at but it situated be treated alike.” 250 does similarly require persons 781-82. workers with to both extremities

Since injuries (injuries upper arms) to both to both are situated to workers with similarly injuries lower extremities to both assert that (injuries legs), workers with shoulder are also situated to workers injuries similarly with hip injuries.

Workers with shoulder are not situated or ar- injuries similarly from workers with guably indistinguishable hip injuries.

two classifications of can be treated differently— one classified as worker with a one classified general and. injury as a worker with a scheduled injury impheating equal —without concerns. Workers with shoulder are not simi- protection injuries situated to workers with because it is larly hip injuries medically rational to treat a shoulder as an to an injury impairment upper but it is not as rational to treat a as extremity medically hip injury ato lower The affidavit of Dr. Baker impairment extremity. noted that the AMA Guides evaluate shoulder as an injury upper Baker, to Dr. all shoulder extremity impairment. According injuries considered Not medically impairments upper extremity. did Dr. Baker it that was rational to consider a shoulder testify to be an he stated that it was injury upper extremity impairment, to define a shoulder as a whole “medically illogical” injury body Thus, the two can be classified and impairment. types injuries treated without differently implicating equal protection. Dr. Baker’s was not Dr. Wertz- testimony unopposed. John J. submitted affidavit which concluded that it makes “an-

berger atomical sense to characterize the shoulder as of the trunk of part because the muscles that make the shoulder body up originate on the trunk of the directly indirectly body.” We hold the two are not indistin- types injuries “arguably and that different classification of the under the guishable” injuries Act does not It is true that the implicate equal protection. an affidavit to rebut Dr. Baker’s affidavit that a

presented stating However, shoulder an arm not the injury logically injury. of this court to determine which medical evidence the place leg- islature should have relied on or if it needed to on medical rely evidence at all. The chose to that it is anatomi- accept to treat a shoulder as a whole cally illogical injury body impairment but not as treat a as a anatomically illogical whole hip injury body evidence, on this medical shoulder Based injuries

impairment. indistinguishable. injuries arguably hip brief that classi- their The also unequal argue reply their workers who created between fications have been injured at the effective date of the 1993 amendment shoulders prior shoulders after the amend- and workers who their issue This class will occur became effective. distinction ment type a valid amendment and is not the enactment of new upon an classification on which base equal protection argument. Due B. Process 44-510d(a)(13), that which classi- contend K.S.A. a instead of as a whole

fies a shoulder as scheduled injury injury due violates body injury, process. which is due test used to analyze potential proc- two-step Lemuz, at violation out in 261 Kan. 946-47.

ess is set test, the Under 1 of this first whether the shoul- Step question rule, which restricts an with shoulder from der injury in the nonscheduled reasonably necessary receiving remedy, welfare of of the interest to public promote general people state. Another to state this test is whether means way legislative statute) (the a real and relation selected shoulder has substantial Bonin, at to the See 261 Kan. 217 objective sought. (citing Liggett, Manzanares, 599; 614; Ernest, at at 237 Kan. 214 Kan. 129). at statute make the

One shoulder was to objective sought more rational. of Dr. Act medically According testimony Baker, the Guides to the shoulder as an AMA evaluate injury not as an extremity, impairment upper impairment Further, Dr. whole Baker testified it was body. “medically whole a shoulder as a consider illogical” injury body impairment. testified rational evaluate a as an He that it was shoulder injury such, As a shoulder classifying injury upper extremity impairment. as a scheduled instead of a whole is a body legislative injury injury valid means which is related to the state substantially objective the Act more sound. making medically The out that the of S.B. 307 plaintiffs point legislative history contains no that the Act was because the shoul- testimony illogical der was treated as of the aas whole. The assert part body plaintiffs that there is no in evidence the that the legislative history supports as been the “medically illogical” argument having genesis Instead, shoulder the that the legislation. plaintiffs allege legislative demonstrates desired to limit workers history only employers so their workers compensation payments compensation premiums would decrease. the fact that the did not enun- Despite ciate this as a reason time, the amendment at the goal passing the understand that the of the Act more plaintiffs goal making sound still as a state medically may qualify legitimate objective which the shoulder statute seeks to obtain.

The that even if the trial court relied plaintiffs argue reasonably on Dr. Baker’s affidavit that a shoulder is solely stating injury log- seen as a scheduled the amendment clas- ically impairment, sifies a shoulder as a scheduled is not related to injury impairment the valid state of the Act more and objective making medically sound. The contend that it is anatomically plaintiffs particularly difficult under the shoulder statute to determine when an injury a scheduled shoulder and when an crosses the merely injury injury fine into the trunk of the and becomes a whole body body injury muscles, nerves, because vessels, blood and bones many ligaments, involve both the shoulder and the trunk of the Due to the body. in whether has suffered a difficulty determining scheduled shoulder aor whole trunk injury body injury, plain- tiffs claim that the shoulder amendment will be in injury applied inconsistent, irrational, manner. unpredictable Application of the amendment in an irrational and inconsistent manner cannot result in the Act more sound. making medically contend the statute related to this state objective. concede that it is for the shoulder statute possible However, a rational and consistent manner. ac- applied to the this could occur is if all the

cording plaintiffs, only way muscles, nerves, bloodvessels, and bones that injuries ligaments, have whatsoever to do with the shoulder are treated as anything nonscheduled shoulder This would result much of the injuries. shoulder, lower rib skull and to the between related

anatomy as a a scheduled and not treated as part body part cage, being as a whole for compensation purposes. plain- body as a nonsched- which would tiffs claim that the injury qualify skull, brain, internal would be an uled organs, injury injury musculature, Under this abdominal pelvis, hips. application amendment, that a greater percentage plaintiffs allege than defined as “scheduled” rather would be body body part as a whole. such as According body plaintiffs, part such, the anatomical sense. As result does not make medical or of the stat- that the consistent shoulder assert application plaintiffs the Act the interest of not related to state ute is legitimate making correct. The conclude more plaintiffs anatomically medically a nor an of the stat- that neither inconsistent consistent application Thus, to ac- is related this valid state ute objective. substantially to the the shoulder statute violates due cording process. plaintiffs, make the the to We with analysis. disagree plaintiffs’ goal accurate is a state Act more anatomically legitimate medically Further, statute, which a shoulder the shoulder classifies objective. as a as a instead of an to the scheduled injury body injury injury whole, is in with medical evidence. the statute line shoulder which is related valid state means to the legislative substantially the Act more sound. The medically objective making rationali- statute’s is an after-the-fact contend the objective never the as a zation was espoused by legislature purpose true; however, the be it matter. statute. This does not may “ ‘ test, the to the “Under reasonable basis it is ascertain unnecessary specific Kansas espoused, challenged purpose Legislature any, establishing if ’ Peck, 824, 834, 811 (1991).] 248 Kan. 1176 . . . P.2d [statute].” [Quoting Bair v. not to articulate reasons for required enacting “[B]ecause legislature statute, conceived ‘it is irrelevant constitutional whether the entirely purposes v reason for the motivated [statute] [F.C.C. actually legislature.’ challenged Communications, Inc., 307, 315, L. 508 U.S. Ed. 2d 113 S. Ct. Beach 261,Kan. (1993)].” Peden, (refers test, also at 253-54 but equal protection two the same 1 of the due test because the tests Step process weigh applies factors). Thus, it is whether verbalized irrelevant the legislature actually the Act more sound when making medically passed goal shoulder fact is statute. The that the shoulder statute is a leg- means which does fact fulfill this valid state islative objective. all the heard evidence and relied on the evidence to be it found the most It is not this court’s persuasive. job All the second-guess legislature’s decision-making process. " State had to do was offer state of facts [which] ‘any reasonably ” Peden, be conceived to the shoulder statute. may justify’ facts, at 252-53. The State did this to Dr. by offering according affidavit, Baker’s that it is accurate treat a shoulder medically aas scheduled This fact body injury part injury. reasonably justifies the shoulder statute and its to make the Act more goal medically sound. claim that the shoulder statute is not re-

Finally, lated to the state more Act ac- objective making medically curate because the will either statute be so applied inconsistently that some shoulder are treated as whole injuries body injuries statute will so that applied consistently many injuries torso which are related to the will shoulder be treated tangentially case, as scheduled In either inaccurate injuries. body part medically will occur results and this indicates that according plaintiffs, the shoulder statute does further the the Act making goal more accurate. medically words, other the seem to that the shoulder argue

statute can be in either an or overinclusive underinclusive applied manner and not the further Doctors have been objective sought. an these lines for whether ais whole drawing years, deciding injury or a under There scheduled the Act. is no reason body injury injury to doctors cannot continue do so under this new amendment. The that the be an statute in overinclusive or possibility might applied underinclusive manner not substantial should the relation- destroy “ between the amendment and its '[C]ourts ship objective. under a rational-basis review to compelled accept legislature’s is an fit even when there between means generalizations imperfect and ends. A does not fail classification rational-basis reviewbecause not it “is made mathematical . omit- with . [Citations nicety. ” Peden, (rule at 257 to an Kan. refers ted.]’ equal protection the due because two tests 1 of also to test but process applies Step factors). same weigh which or underinclusion overinclusion any might despite statute, means

occur, is the shoulder legislative applied, properly to the valid state is related objective making substantially such, As accurate. more the Act anatomically medically statute, shoulder as scheduled which treats shoulder inju- injuries ries, 1 of the due test. satisfies Step process

However, review Even this is not where due process stops. this is consistent with if the modification policy, remedy public concerns. In order insure due does necessarily satisfy process is due adequate, required provide process, modified, is a common-law re- substitute when remedy remedy 948; Bonin, Lemuz, stricted, at 261 Kan. at Kan. or abolished. this there amend- Whether is an 218. adequate quid quo pro issue will be under V. for the Act as a whole discussed ment and BENEFITS III. OFFSET OF RETIREMENT 44-501(h), created offsets enacted K.S.A. against to which worker would benefits workers compensation be entitled the worker receives social re- otherwise when security benefits or selected retirement benefits. tirement pension private new subsection provides: “(h) retirement the federal If the benefits under social employee receiving or retirement from other or act benefits retirement any system, program security made, which the claim is which is by being plan provided employer against which the benefit receive eligible any compensation payments act for such claim shall reduced under the workers be by weekly benefits, all such less amount of total amount of retirement any equivalent benefit, other than benefits under the such retirement retirement portion act, contributions federal social that is attributable made security payments the workers benefit less but no event shall employee, the workers benefit than payable employee’s percentage functional impairment.” the offsets claim that against compensa- and for

tion benefits allowed for social benefits security private are violation of benefits pension equal protection. Security

A. Social (h) workers allows an offset Subsection against compensation be entitled worker would otherwise to which benefits injured retirement benefits received dollar of social for each by security worker, benefits as as the workers long compensation injured the workers benefits do not below payable dip compensation of functional plaintiffs impairment. employee’s percentage of whether the em- that this offset is allowed out regardless point on behalf of made contribution to social security ployer any of contributions worker injured regardless proportion made worker or other to social by security by employ- offset ers. The contend that this social security provision workers com- because it classifies those violates equal protection social benefits beneficiaries who are receiving security pensation benefici- those workers than classifies compensation differently benefits. Because aries who are not social receiving security with treats these two classes of statute reducing disparity, by people so- benefits of those who the workers receiving compensation benefits, claim that the social cial security security violates offset equal protection. provision law had retire- workers The Kansas compensation previously were all held to Those ment benefit offset provisions. provisions constitutional. Co., 222 Kan. v. and Clark Construction In Baker List (1977), on the His a worker was killed P.2d 431 job. dependents benefits claim for death filed a workers against compensation were also for social security eligible dependents employer. such, the their father. As on the death of death benefits based the claimants’ Director Workers reduced Compensation to the social benefits in relation benefits security compensation was in workers benefits This reduction received. (since on K.S.A. 1975 based repealed), Supp. 44-510b(j) provided: act because the federal social benefits are under security “When being paid under are entitled to of an whose of the death dependents section, reduced due under this section shall be the amount of

this (Vi) of such social security to one-half of the amount payments an amount equal made to the workman’s time such social being security payments during of future receive credit on the compen- The shall payment dependents. act for an amount workmen’s equal due under the sation otherwise compensation (%) made of social of the total amount security subsequent to one-half payments were made employer, to a payments during compensation period to such which are attributable period.” but and its claimants K.S.A. The 44-510b(j) Supp. challenged benefits as of their workers reduction compensation required claimants con- violation of unconstitutional protection. equal classes of claim- discriminated between tended the offset provision of those death benefits workers ants compensation by reducing benefits, minors, widows with were for social who security eligible death benefits of those but not reducing benefits, widows claimants who were not for social eligible security minors. without standard, held that rational basis this court

Applying this court stated was constitutional. In so offset statute holding, that the offset exists provision under the Workmen’s Act and “to of benefits Compensation duplication prevent with . This scheme to be consistent

the Social Act. . . statutory appears Security a treatise on workmen’s leading compensation: unit in an overall workmens is one ‘Once it is that recognized rather than something resembling recovery system wage-loss protection, of the conclusion that tort or on a accident duplication policy, private follows of should not be allowed. Since parts system ordinarily from different of benefits in unrelated most social in the United States has appeared fragments, legislation common; in cumulation of benefits is but lack of coordination quite resulting is the Social offset newer Security provision, legislation, including Larson, 4 A. The Law of Workmen’s more drawn to this result.’ prevent carefully (1976). Sec. 97.00 Compensation, on to state: “The treatise goes to the worker a such as restore legislation designed portion, Wage-loss two-thirds, causes of one-half to of lost due to the three wage-loss: wages major and crucial economic old disability, unemployment, age. operative physical loss; dictates the fact is that of loss merely cause wage category wage loss due Now if a workman undergoes period wage legislation applicable. conditions, he receive three sets of all three it does not follow that should more than his actual He is recover wage. benefits simultaneously thereby and, in should receive only one loss system, wage any logical experiencing inevitable, that once it is one benefit. This conclusion recognized wage-loss workmens sickness compensation, unemployment compensation, nonoccupational insurance, and old and survivors’ insurance are all disability age parts of denied, If based a common this is then all coordination system upon principle. becomes and social becomes a of assorted unre- impossible legislation grab-bag lated benefits.’ Id. at Sec. 97.10. “Based on we conclude K.S.A. does not foregoing, 44-510b(j) 1975.Supp. offend the When the equal protection guarantee. system wage-loss protection whole,

is viewed as a benefits avoiding duplication overlapping appears be a reasonable It be said the classification created objective. may legislative basis, the statute has a rational is not and affords like treatment arbitraiy, added.) situated.” 222 Kan. at 130-32. persons similarly (Emphasis Schroeder, dissented in this joined by Owsley, Justice Justice of the Schroeder was that the statute un- opinion. opinion Justice violated because reduced constitutionally equal protection the workers death benefits of those claimants who compensation also received social benefits did and not also reduce the security workers death benefits of those claimants who re- compensation monies, ceived insurance veteran’s administration death private benefits, or Kansas Public death Retirement System Employees Further, benefits. Schroeder noted that the offset against Justice workers benefits for social benefits reduces compensation security an workers and employers compensation payments premiums, from thereby discouraging adopting safety program deaths in the future. Schroeder prevent employee Justice was of the that the offset statute out class of opinion singled basis, for distinctive treatment without a rational persons thereby 222 Kan. at 137-38. violating equal protection. Inc., v. Barton & 2d Kan. Boyd Storage, App. Transfer (1978),

580 P.2d rev. denied 225 Kan. 843 who plaintiff, benefits, was 62 old and social was years receiving injured security while at his at the worked working job. plaintiff part- part-time time his social benefits. was aware He job security supplement of how he could earn for much before money becoming ineligible social and he did not intend to exceed that amount. The security, filed a workers claim for his work-related plaintiff compensation but he was denied benefits based on K.S.A. 1976 44- injury, Supp. 510f(c) (since repealed), provided: benefits permanent not be entitled “An shall under workmen’s total disability, disability partial

total disability, temporary act, when he shall be entided to after the date during from and benefits, reduced or federal old social he shall receive age security such as period unreduced.” the denial of the Director affirmed Workers Compensation court, district

benefits, to the and the claiming plaintiff appealed 44-510f(c) was unconstitutional. The dis- that K.S.A. Supp. affirmed the was constitutional and held that tire statute trict court denial of the benefits. not rule on the did

The Court constitutionality Appeals Instead, statute and found court the offset statute. interpreted ben- it did not plaintiff’s apply the court stated: so efits. In holding, 44-510f(c), as to whether it exists “As we read K.S.A. 1976 ambiguity Supp. while in a like part-time job to those who employed plaintiff applies old have started to receive social normal retirement after security after they to so that the did not intend statute We conclude benefits. age therefore, and, reverse the denial compensation. apply “ is not viewed as a substitute ... As as workmen’s compensation long the cutoff of workmen’s but as only, tort recovery wage-loss protection compen- benefits initial of old social at the of retirement and age security sation time receipt loss, would suffer one but continued be reasonable. worker would wage after retirement would workmen’s duplicate wage-loss replace- compensation which at that time. social benefits ment of the old security begin age here, hand, retired workers such as the who are “On the other plaintiff already work on a social old benefits before and security age starting part-time receiving benefits, loss when those suffer second they to wage job supplement 44-510f(c) K.S.A. 1976 be course of their Should ap- employment. Supp. workers, it would to such totally any replacement wages preclude plicable old social benefits. As are entitled to earn over and above security which age they such, but would it would not operate preclude wage prevent ‘duplication’ it was the intent of the which legislature provide through replacement Act. Workmen’s Compensation that the intent construction “It is a fundamental rule legislative statutoiy and the intent a statute be ascertained wherever legislative gov behind possible, words used therein even the literal of the erns its construction meaning though rel, Park, 700, State, 215 Kan. 527 P.2d followed. ex v. Overland is not City of intent, (1974). courts are not limited to a mere legislative determining used, to the historical of the of the but look consideration background language enactment, the circumstances its to be accom attending passage, purpose and the the statute have under the effect various constructions plished, may suggested. 195, (1978). Keill, own v. 224 Kan. 580 P.2d 867 When the interpre Br tation of a section of an act to the exact and literal of its words according import would contravene the manifest the entire act should purpose legislature, reason, be read to its so far as spirit disregarding may according necessary State, rel., Kalb, 459, the strict letter of the law. ex v. 218 Kan. 543 P.2d 872 (1975), 231, (1976). modified on other 219 Kan. 546 P.2d 1406 grounds, said, “From what has been we conclude that the did not intend 44-510f(c) situated, K.S.A. 1976 and those Supp. apply plaintiff similarly even the literal of that seem to include them. It though wording provision might follows that should not have been denied under the act.” plaintiff compensation 2 Kan. 2d at 426-29. App. Co.,

In Brown v. Tire & Rubber 3 Kan. 2d Goodyear App. (1979), (1980), 599 P.2d 1031 608 P.2d 1356 aff’d the claimant filed for and received an award for workers compen sation from the Kansas Workers Fund. Sixteen Compensation later, months the claimant turned 65 old and years began receiving later, social benefits. One month the Fund filed a motion security modification termination of the claimant’s workers com benefits, based on K.S.A. 1974 44- pensation disability Supp. 510f(c) (since repealed), provided:

“An shall not be entitled to benefits for permanent total total under the workmen’s disability, temporary disability partial disability, act, from and after the date he when shall be entided to and during benefits, such as he shall federal old receive social reduced or period age security unreduced.”

The workers examiner the Fund’s motion granted benefits, and terminated the claimant’s disability stating Workers Fund would not be liable for further ben- Compensation efits to claimant so as he received social benefits. security long The Workers Director sustained the termination Compensation order, and the district court affirmed the termination order. The inter the order to the Court of appealed plaintiff Appeals, alleging, alia, 44-510f(c) that K.S.A. 1974 violated unconstitutionally Supp. on and re- classification based by creating age equal protection Baker, of social on benefits. ceipt security Relying 870 of K.S.A. 1974

the Court of constitutionality Appeals upheld 44-510f(c). the court stated: In so holding, Supp. of uncon- in this withstands “The setoff allegations action provision challenged in Baker. When viewed as on similar to those described part

stitutionality grounds under 44- the termination of benefits aof program, wage-loss compensation 510f(c), worker. like does not By 44-510b(j), really penalize preventing Act and Social of benefits under the Workmen’s Compensation duplication Act, in as fellowwork- the worker the same position Security provision places At that old social benefits. who have retired and are security point ers drawing age that are loss. It is his benefits he is no disability longer subject wage a worker is not caused After retirement the loss by affected. wage experienced by benefits A could retain workmen’s but retirement. worker injury, by 44-510f(c) in the market and not The setoff labor retiring. provision by staying an award be owed under does not medical might apply of compensation. Act ‘is “The claimant that the of the Workmen’s purpose Compensation argues workman, or his with the economic loss to to burden industry dependents, in sustained the workman out and from accidental by arising resulting injury Co., v. the course of his employment,’ Hilyard Drilling Lohmann-Johnson 177, 180, (1949), that the classification under Kan. P.2d “arbitrary” 44-510f(c) this the economic loss to the frustrates statutory purpose shifting However, above, as discussed this contention is without merit. already employee. “ offset, if . . . The a reasonable basis for the even theory wage-loss provides benefits, social benefits are lower than the workmen’s security if he amount is the same the worker would have received even since former 44-510f(c) is had retired without been We therefore find that having injured. constitutional.” 3 Kan. 2d at 654-55. App. court the Court of decision.

This affirmed Appeals’ the case law which holds that similar plaintiffs acknowledge However, are constitutional. ask this offsets pension its decision in Baker and Brown and find the court to reconsider 44-501(h) in offset for social retirement benefits K.S.A. security denial of for the reasons unconstitutional equal protection Baker. set out the dissent Schroeder by Justice in Baker and Brown is still valid. relied The analysis upon Brown, based on Baker the social offset in K.S.A. security 44-501(h) related to the valid state interest of is rationally pre- loss benefits. The wage replacement venting duplication does not violate offset unconstitutionally equal protection. pension alternative, court to limit ihe ask this In the judicially plaintiffs offset and find that it does not who are employees apply while are on a the social working job supplement injured they were as the Court benefits currently just security they receiving, Moreover, in 2d did Kan. 425. Boyd, App. plain- Appeals find that the not to em- tiffs ask this court to offset should apply received social retirement before injured they security ployees who would have continued to work to but benefits supplement benefits, came, the time had it not their social once been security for their to the these workers are injuries. According plaintiffs, workers who were after their situated to similarly injured receiving first check and no rational basis exists them treating pension in out that both situations differently. Finally, plaintiffs point retirement benefits do not the same the social security replace thus, benefits; the workers loss by compensation wage replaced used to offset the workers social benefits should security so, claim, in a benefits. To do results plaintiffs violation of equal protection. all of these deal more with the

As Boyd, questions interpre- than with the constitu- tation and of the offset statute application the con- of tire statute. The have only tionality appealed plaintiffs statute; have not its stitutionality they appealed specific Thus, these analysis interpretation application. questions until a more time. is best saved appropriate B. Private Pensions 44-501(h)

K.S.A. also allows an offset workers against compen- benefits, which an worker would otherwise be en- sation injured to, benefits, titled for selected retirement but only private pension if the has contributed to the and even private pension, employer offset benefits is allowed then no against for the attributable to an contribution. benefits pension employee’s vi- that the offset claim private pension provision plaintiffs because it treats olates protection pension plans equal different from all other has contributed funds employer directly retirement without a rational basis. According plans, plain- tiffs, all are private plans actually paid by employees pension Thus, workers who receive retired of labor. injured

through years Yet, differ- receive all situated. they similarly private pensions on how benefits ent amounts of workers depending contributed to if their much pri- directly money, any, no claim that vate fund. The legitimate purpose pension situated treatment is served this similarly disparate 44-501(h) which K.S.A. requires. employees Ste- 44-501(h) See violates assert that K.S.A. equal protection. 768,830 (1992). P.2d 41 v. Creek Sugar Packing, phenson of intended to We hold the wage duplication legislature prevent con- The with offset loss legislature provision. replacement to of cluded that it did not make sense replace- prevent duplication em- benefits that were ment from social partially security wages of from funded and not such duplication wages prevent ployer Thus,' the allowed pensions. legislature employer-funded private to retired in contributions paid private pension plans, employer workers, to offset employer-funded compensation injured workers, to to the same so as benefits prevent dupli- paid injured This is a issue. cation of loss public policy wage replacement. fur- will to believes such an offset encourage employers legislature will because the nish retirement for plans employees should an to injured duplicate wage replacement required loss is a worker retire. The of wage duplication legiti- prevention for State and the offset mate employer-funded provisions goal, (social or rationally retirement security private pensions) plans 44-501(h) violate does not to this K.S.A. related pro- equal goal. tection.

IV. ATTORNEY FEES to a flat 25% limit on the contin- Prior Act imposed to out of the fee an worker could agree lawyer gency pay in the worker be awarded a workers benefits compensation might action. This limitation provided: specifically in connection with initial or “With and all any orig- any proceedings respect in no claim of for services rendered inal claim for any attorney compensation, or the with the of for connection compensation employee employee’s seeming order, in award or a whether secured any by agreement, judgment dependents, or of the amount amount for such services 25% exceed reasonable court shall less, in to actual ex-' and whichever addition recovered paid, of compensation incurred, this as the other of section. and Except provisions subject penses section, cases, in total and in this death disability partial hereinafter provided cases, not exceed 25% of the sum the amount of fees shall attorney disability act for weeks of due the workers per- which would be under compensation total based disability employee’s average grossweeklywage prior manent upon to maximum benefits the date of accident and subject weekly provided 44-536(a). 44-510c amendments thereto.” K.S.A. in K.S.A. and Supp. on fees amended this limitation attorney in the Act. amendment provided: with all in connection initial or ‘With and any orig- respect any proceedings claim for rendered in no of services attorney

inal claim compensation, any with the or connection securing compensation employee’s order, award or in whether secured by agreement, judgment dependents, (2) (1) services the amount shall exceed a reasonable amount for such court of that of total recovered and to the total 25% compensation paid portion équal $10,001, recovered less than 20% of of total which is portion $10,000 $20,001, of that and less than and 15% and which than greater paid is in recovered which of the total amount of and paid portion less, incurred, $20,000, actual whichever is addition to excess expenses of this as hereinafter to the other section. Except provided subject provisions cases, section, cases, amount in death total disability this disability partial due under fees shall based would be not be upon attorney act 415 weeks of total disability the workers beyond permanent compensation to the date of the average weekly prior based employee’s gross wage upon 44-510e maximum benefits in K.S.A. accident and to the subject provided weekly 44-536(a). K.S.A. thereto.” and amendments made 1993 amendments three The significant changes in workers fees rule attorney allowing compensation contingent rate, fee The amendments cases. imposed graduated contingency offer, on fees a settlement restriction a limit after against benefits. The 1997 of vocational rehabilitation fees out being paid fee rates amended Kansas returning Legislature attorney again, form, a fee limitation. them to their flat 25% contingency pre-1993 Thus, of the 1993 fee attorney contingency constitutionality The moot as future workers claimants. rates is to all offer was also amended limit on fees after a settlement 1993 again However, did not return the set- the 1997 amendments in 1997. Instead, status. fee rates back tlement attorney pre-1993 874

1997 amendments created new settlement fee The rates. attorney 1997 of the settlement fee amendments not an constitutionality in this case. 1993 issue The restriction fees out of against paid 1997, vocational rehabilitation benefits was not altered in this amendment 1993 is still effective.

The 1997 amendments substantive amendments do contain not that the intended language indicating legislature Hence, them to be the 1997 com workers retroactively. applied are to be amendments See pensation applied prospectively only. v. & Assocs., Inc., KPERS Reimer 17, 43, 261 Kan. 927 P.2d Roger (1996) (“ will ‘statute rather retro than operate prospectively unless its that the indicates spectively language clearly legislature Inc., Eakes v. Hoffman-LaRoche, ”) intended the latter/ (quoting 565, 1, [1976]). 552 P.2d 998 Syl. ¶ The to the 1993 amendments focuses challenge plaintiffs’ mainly on the fee rate. Since the 1997. fee graduated contingency attorney amendment has been enacted and the only applied prospectively, who are affected the 1993 fee amendment people contingency are those workers claimants who filed their claims between the date effective, amendment became July 1993, and the effective, date the amendment became July amendment, 1997. that this claim as applied above, narrow of claimants defined reduced the segment arbitrarily fees which were percentage contingency allowed represent- workers, and thé thereby ing violating protection equal sep- aration of doctrine. powers Separation

A. of Powers that the of law plaintiffs argue regulation practice Kansas, the fees which for their including attorneys may charge services, is a function. judicial, legislative according when the fees plaintiffs, legislature regulated contingency amendments, cases the 1993 by enacting fees, was usurping judicial regulate power the of doctrine. The thereby separation violating powers plaintiffs concede the has fees previously regulated attorney statute, the fee which set the fee pre-1993 attorney contingency However, a flat rate. the assert that this limit at 25% plaintiffs fees, of was not true but statute a legislative regulation attorney codification rule a of a the contin- was prior judicial setting simply rate in workers cases. fee at 25% gency (MRPC) of Conduct 1.5 to Rule Professional Model Pointing 276), (1996 claim rule is Kan. Ct. R. the that this Annot. plaintiffs on claim the current limit fees. contingency judicial 1.5 that to the extent the 1993 amendments conflict with MRPC rate, a the amend- fee contingency imposing graduated as a of the inherent ments are violation court’s unconstitutional to law. regulate practice power that the fee claim graduated contingency agree- ment, which limits an attorney’s percentage recovery greater success, to will induce an curtail the attorney’s attorney improperly award, as for the client and receive a lesser a award services larger fee. will not result a higher attorney necessarily plain- fee in the 1993 tiffs assert that the rates contingency graduated Comment, with the 1.5 its amendments conflict MRPC with court’s to regulate thereby interfering power practice of law and unconstitutionally separation powers violating doctrine. MRPC 1.5

The Comment to provides: induce the im- “An not be made whose terms might lawyer agreement may them in to for the contrary curtail services client way perform properly enter For should not into lawyer the client’s interest. agreement example, fore- to a stated amount when it is services are to be whereby provided up more services will be unless situation seeable that extensive required, probably Otherwise, client. the client have to might bargain explained adequately However, or transaction. in the midst proceeding assistance for further client’s A services in to define the extent of ability pay. light proper on should not a fee based charges by arrangement primarily hourly lawyer exploit whether a fee is con- wasteful When there is doubt procedures. contingent using interest, alternative with the should offer client sistent client’s best lawyer law lim- for the fee and their bases implications. Applicable may impose explain added.) as a on such on itations contingent fees, ceiling percentage." (Emphasis Comment were intended 1.5 and this MRPC accompanying further in the assistance clients from having bargain prevent a midst of or transaction. This result will not proceeding happen when the fee rates are utilized. A graduated contingency lawyer does not receive fee under a fee unless any contingency agreement such, an award is recovered. As under a fee contingency agree- ment, a is induced to a claim to its final outcome —an lawyer pursue award or setdement. a fee Utilizing contingency payment plan, client will not have to for an to the claim bargain attorney pursue to its final outcome in the midst of a or transaction. proceeding so; otherwise, The will desire to do he or she will not receive lawyer a fee at all. Since rationale for the Rule and its Comment —to clients from to for further assistance —will prevent having bargain rates, not be a with fee then the problem graduated contingency Rule and the Comment —which fee that in- prohibit agreements duce an curtail services —do not attorney improperly apply or conflict with the fee in rates the 1993 graduated contingency amendments. The fee rates in the 1993 graduated contingency amendments do not interfere with the court’s power inherent of law or violate the regulate practice unconstitutionally sepa- ration of doctrine. powers addition, MRPC 1.5 and its Comment allow for specifically restrictions on instance, fees. For

statutory contingent attorney 1.5(f)(3) MRPC “A shall not enter into an provides: lawyer arrange- for, ment or collect: ... fee manner charge, contingent in which such Also, fee is statute.” the Comment precluded by MRPC 1.5 states law pertinent part: “Applicable may impose fees, limitations on such as a on the contingent ceiling percentage.” i.e., law, which Any legislative regulation, statutory regulates conflict, limits consistent, fee rates does not but is with contingency MRPC, fees in the judicial regulation attorney spe- allows for the fees. cifically statutory regulation contingency B. Equal Protection claim that the 1993 amendments changing cases, fee rates for workers set out at

contingent 44-536(a), K.S.A. violate the Protection Clauses of the Kan- Equal sas and United States Constitutions. a statute treats when classes implicated Equal protection Smith v. who differently. indistinguishable,” “arguably

people, (1993). 315, 321, 866 P.2d Printup, are “ar 44-536(a) who treats classes claim that K.S.A. people, First, the in two ways. plain differently indistinguishable,” guably workers who were the class of the statute treats tiffs claim that claim between or filed a workers July injured 1997, workers who 1, than the class of 1993, and differently July 1, 1993, after or filed a claim before or were July July injured indis these two classes even “arguably people though When is not a valid This protection argument. equal tinguishable.” amended, those citizens who it will treat a new statute always the amend the effective date of the statute before are affected by affected citizens who are than it will treat those ment differently such the amendment. If after the effective date of the statute by concerns, then treatment different implicates equal protection to an enacted will be ever amendment subject equal protec every Instead, or valid. is not reasonable tion This pro equal challenge. statute, in evaluated when concerns are tection only implicated of the stat to versions and without regard previoiis dependently the clas ute, even treats two classes of differently, though people ses are indistinguishable. arguably 44-536(a), inde- evaluated also claim that K.S.A.

The plaintiffs it treats two classes because violates protection equal pendently, in a workers worker class compen- injured differently people —the in a class and insurance case and the sation company employers are ar- the two classes case —even workers though compensation out that K.S.A. 44- The plaintiffs point indistinguishable. guably to fee rates 536(a) new contingency graduated only applies de- or an hired employee by employee’s by injured attorneys not new rates do case. The in a workers compensation pendents hired of an to or restrict the employer attorney by payment apply in a workers insurance or an compensation company employer’s fee rates reduced case. attorney plaintiffs, According to secure a com- for an make it more difficult injured employee workers, ain employee attorney represent aggressive petent, not to em- rates do Since the reduced case. apply compensation will that an or their argue employer attorneys, plaintiffs ployers to defend time in have a difficult attorney securing competent Thus, the action. in a workers compensation 44-536(a) the class of treats claim that K.S.A. injured employees than case in a workers differently disparately compensation case, even in a workers treats the class of employers such, the As classes are the two arguably indistinguishable. though 44-536(a) that K.S.A assert equal protection. implicates 44-536(a) states in K.S.A. part: pertinent or “(a) in connection with initial and all any With respect any proceedings services rendered no claim of claim any attorney compensation, original for or the with the employee’s connection securing of order, award or whether secured a judgment by agreement, dependents-, (2) (1) amount for such services [the court shall exceed a reasonable graduated incurred, less, rates], in addition to actual fee whichever expenses contingency added.) of this section.” other (Emphasis subject provisions workers in 44-536(a) the class of treats K.S.A. clearly that it treats the class of cases differently in workers grad- applying employers compensation cases — hired fee rates uated lawyers by employees contingency Thus, to ask hired and not to question lawyers by employers. classes of who are treated is whether these two differently people, statute, are arguably indistinguishable. of are not indistin- these two classes people arguably Clearly, with and We are dealing apples oranges. Employers guishable. defense of a workers to win an award in not able end of a case no of a sum of at the case. There is money recovery an could out a fee. from which contingent Employ- pay hand, ees, have the to on the other often do not money pay a workers claim. the hour to attorney by pursue case, will awarded win the Should a. attorney employee of which the at the end of the out sum of money proceedings, Thus, almost could always attorney. employees pay in a hire to them the attorneys they represent compensate the two case on a fee basis. In this contingent way, are not class classes of indistinguishable compensates people —one class at- fee basis and one on compensates contingent attorneys 44-536(a) on an basis. K.S.A. does not tomeys hourly impli- cate because it does not treat two indis- equal protection arguably classes tinguishable differently. event, the United States Court considered Supreme Labor v. 715, issue U.S. Department Triplett,

analogous 701, (1990). 108 L. 2d Ed. 110 S. Ct. 1428 involved due of the Ben- Triplett Black process challenge Lung Act, efits that the fees for an required attorney representing a benefits claimant under the Act be approved by Department of Labor as “reasonable.” The vio- respondent, Triplett, George lated the fee restrictions a 25% attorney by receiving contingency fee before it had been as reasonable. approved Triplett argued fee restrictions in the Act violated the due attorney process rights of Black Benefits Act claimants because such Lung deprived claimants of available them in ben- attorneys represent pursuing efits. no were According Triplett, attorneys willing represent claimants under the current Black Benefits Act fee Lung attorney restrictions. The Court found this assertion to be Supreme unsup- evidence. In so the Court stated: ported by ruling, “Here, we need not reach the issue unless has [attorney availability] respondent Survivors, what was assumed in v. National Assn. Radiation proved [Walters viz., (1985),] 473 U.S. 87 L. Ed. 2d 105 S. Ct. 3180 that the regime made unavailable to his clients at the time vio attorneys prospective respondent (1) lated the Act. That contains two that claimants could showing component parts: (2) not obtain that this was attrib representation, unavailability attorneys burden, utable the Government’s fee That is no small regime. respondent has failed to bear it. “ .. . The ‘factual record’ which the court relied to invalidate this [trial] upon federal consisted of two in the program testimony by lawyers disciplinary pro- court, five affidavits attached to an amicus brief to the and statements ceeding, before a House of in 1985. Subcommittee by attorneys hearings Representatives case, Since it is critical to we shall our describe evidence disposition the court relied in some detail. upon “As to the first court three relied unavailability attorneys upon issue— —the assessments. One stated that ‘fewer are lawyers’ qualified attorneys accepting claims,’ Va., black and that more claimants are se. 180 W. at lung proceeding pro 541, S.E.2d, 378 at 90. to a second ‘few are According attorney, attorneys willing to black claimants.’ Ibid. A third evaluation was not con- lung lawyer’s represent record, tained in the consisted of his 1985 to the House subcom- but testimony that “. . . stated they had unequivocally of his mittee that colleagues ‘many Id., S.E.2d, at 91 at ....”’ (quoting take cases

would not black lung the Subcom- in Black Cases before of Lung on Backlog Investigation Hearings Labor, on Education and House Committee Relations of the mittee on Labor (The Sess., [1985]). did not mention the court testimony 1st 99th Cong., id., See, e.g., at effect. witnesses before Subcommittee opposite other 45.) clear in Walters that this sort of anecdotal evidence will not do. We made “This to which a and constitutionality regularity will not overcome the presumption U.S., at n.11. The is entitled. 473 impres established by Congress program ‘fewer ‘few’ the current has lawyers, of three that system produced sions lawyers field, means), (whatever that have left the that ‘many’ attorneys’ qualified if un burden of even entirely proof, insufficient to meet respondent’s blatantly 722-23. 494 U.S. at rebutted.” that two distinguish Triplett by claiming plaintiffs try and that these affidavits did in affidavits were submitted Triplett Here, claimants were not indicate individual going unrepresented. claim, is well exceeded the evidence Triplett have reduced that which establish seven affidavits attorneys many claimants are that their many practice However, are mistaken about the plaintiffs unrepresented. going case. The Tri- in the evidence considered the amount of Triplett five of two court considered lawyers, testimony plett actually brief, an amicus of an at- and the affidavits attached to testimony subcommittee before House meeting. torney Representatives the amount of evidence amount of evidence This comparable States Court found herein. The United Supreme presented was insufficient of evidence the amount Triplett presented in the Act would that the fee restrictions prevent attorney prove secure from able to claimants competent representation, being was the evidence unrebutted. even though presented Harness, Here, the affidavit of the defendants Philip presented Division of Workers Harness the Director of the Compensation. amendments, date of the 1993 “the that since the effective stated has not received one com- Workers Division [of Compensation] worker that he or she was unable to obtain from an injured plaint made to the workers counsel as a result compen- changes legal there is not sufficient the defendants assert sation laws.”

881 44-536(a) that will evidence K.S.A. work- prove prevent able ers from to secure We hold being competent representation. 44-536(a) that K.S.A. does not treat and thus employees disparately does not implicate equal protection.

C. Due Process contend that K.S.A. 44-536 vi- unconstitutionally olates the Due Process Clauses of the United States and Kansas Constitutions. The claim that their due process rights have been violated because their suffered on remedy injuries award, a workers is now more difficult to job, compensation achieve.

Even is more difficult to assuming plaintiffs’ remedy achieve because are less to take workers competent attorneys likely fees, 44-536(a) cases with reduced K.S.A. compensation attorney does not violate due test which is used to process. two-step set out in Lemuz v. due violation analyze potential process Fieser, 946-47, (1997). 261 Kan. 933 P.2d 134 1 of the due test is similar to the rational basis

Step process standard of an “In to an equal analysis. protection referring analysis ‘ test, the Bonin court stated that under 1 of the 18 Step § “[t]he test of a statute under due determining constitutionality ’ almost identical factors.” Bo- process equal protection weighs nin, Clements v. United States at 261 Kan. Fidelity (quoting Co., if 124, 127, Le- [1988]).” Guaranty 753 P.2d 1274 muz, 261 Kan. at 948. The State has interest legitimate pro- the interest of them to more tecting employees by allowing keep Further, of their workers award. contin- compensation graduated fee rates are related to this valid gency rationally legislative objec- words, tive. In other fee rates are a graduated contingency means a real which have and substantial relation to the legislative the interests of allow- objective sought protecting employees by — them to more of their workers award. ing keep fee rates of the due graduated contingency satisfy Step process test. test,

Under 2 of the due is not whether Step process question substitute legislature provided adequate remedy taking Instead, rates in the Act. fee question higher attorney away rates, Act, with its reduced fee whether the becomes attorney pre- reduced availability quality sumably causing a work- has made so difficult to receive attorneys, no the Act is sub- award that ers adequate longer to sue for the stitute right remedy abrogation employees’ so, then the on fee If limits for contingency negligence. employers rates, violate due the inadequate, process. making quid pro quo will be under issue V. This discussed question

V. PRO QUID QUO ADEQUATE claim that their due have been vi- process rights their in a workers action has because olated remedy compensation statute, due to a notice of claim been limited more stringent in the available for shoulder vari- limitation injuries, recovery on limitations set forth above were workers ous other placed due In vio- analyzing potential process recovery. lation, be utilized: the test should following in the islature, lature Manzanares been restricted.’ Bonin v. at 946-47. (citing “ ‘If a remedy provides public Aves “such v. v. interest to Shah, change Bell, an protected by adequate 214 258 Kan. promote Kan. constitutional Vannaman, substitute 589, 506, 521, due 599, process general remedy” 261 Kan. if 522 P.2d 906 P.2d 642 ‘[1] is the welfare of the abrogated to 199, 217, change 1291 replace [1995]).” (1974), or restricted 929 reasonably people remedy Lemuz, P.2d 754 ^[2] which the necessary 261 Kan. the (1996) state,’ legis- leg- has set of the due

As forth this opinion, process previously Step test in Lemuz is satisfied. test, due 2 of the it is

In Step process important applying is not a common- realize that remedy Rather, (or it is an substitute itself law remedy remedy. adequate, for of a to sue an the abrogation plaintiff’s right quid pro quo) an on the for incurred due to job employer’s employer injury 1911, their legislature negligence. stripped employees a civil action for in- common-law right bring employers against can mod- caused “The by employers’ negligence. legislature juries law as it an the common so substitute long provides adequate ify or abolished.” Kansas for Malpractice remedy right infringed Bell, 333, 350, v. Victims Coalition (1988). 243 Kan. 757 P.2d Thus, when the abolished the common-law legislature employees’ to sue for em right injuries, legislature employers provided with an substitute Workers Com adequate remedy ployees —the allowed receive a Act. The Act set employees quickly pensation work, sum of but smaller received at for money injuries possibly of whether the were the result regardless injuries employer’s substitute, This made the Act for negligence. adequate remedy common-law to sue an em abrogation employees’ right Co., Cement 146, 139 Shade v. 92 Kan. Pac. negligence. ployer on (1914). 144 Pac. 249 rehearing aff’d Now, the has made the notice of claim Act’s statute strict, more it more difficult than was to the 1993 making prior amendments injured employees timely notify of an so the worker can recover injury compensation. legisla- ture also has classified shoulder as scheduled injuries injuries, means that those who suffer a shoulder typically employees under the Act will receive new less than injury they would have under the Act. The also allowed pre-1993 legislature benefits to be offset the amount of by an receives in retirement benefits from money injured employee social or a from funded the em- security private pension plan by Further, the enacted various other amendments ployer. legislature to the Act which make it difficult than more it was to 1993 prior for an worker to receive workers benefits. instance, For the disallowed for the legislature recovery aggrava- tion of a even the the in- of injury though aggravation preexisting was due to a work-related The 1993 amendments jury activity. rehabilitation, an to vocational repealed employee’s right allowing an vocational rehabilitation if the em- employer provide only chose to do so. The limited ployer legislature healing period for scheduled to cases injuries involving amputations. reform bill a on the rate an can be top wage placed cap employee ($450 week), at of an ac- compensated per regardless employee’s on an tual the amount earnings, placed cap ($50,000), can receive for functional employee impairment regard- of the less of the Finally, leg- employee’s impairment. severity work disa- made conclusive islation against prior presumption 1993, ch. L. earns when an wage. comparable bility 286. that the for in the Act indicate

These quid pro quo changes an common-law sue of the right employer abrogation employees’ what it was to 1993. The is less than for prior negligence that it is no an so much less claim that the longer quid pro quo to sue for the of their substitute abrogation right remedy adequate Act, claim that the negligence. which dilute the of it —the at least quid pro portions portions of due violation are an unconstitutional process. quo, Peck, 824, 844, (1991), was the Bair v. 811 P.2d 1176 248 Kan. that an first case to originally adequate quid pro quo express so down become cut of a common-law right might abrogation no be that it would and diluted longer adequate support and would thus violate due the common-law right abrogation issue, Bair identified a test to use in order this In analyzing process. has altered the stat- whether to determine original an extent to make it unconstitutional. to such utory replacement Bair, this court stated: rem- with a determination of whether faced comprehensive directly “[W]e and excess from the Care Stabili- [Health insurance edy mandatory coverage Act, Fund, Insurance Care Availability] [Health original zation] provided for this amendment or modification is a sufficient quid pro quo subsequent Act. es at least enactments statutory ‘We have tacitly, major long recognized, broad, or scheme of reparation statutory remedy

tablishing comprehensive common-law remedy may subsequently of a existing derogation previously each such or altered without subsequent change being supported by amended Provisions of the Workmen’s original quo. separate quid pro independent as constitutional in Shade v. Ce Act in 1911 and upheld Compensation adopted 257, 144 146, 139 Co., Pac. on 93 Kan. Pac. ment rehearing aff’d (1914), an additional amended without the have been adoption repeatedly to the detriment of the each time an amendment employee. operated quid pro quo of fault or recovery injury regardless pro quo providing original quid of dozens amendments has deemed sufficient been support negligence act, common-law the of of which involved existing many abrogation original right. (1983), court, “In v. 661 P.2d 1251 the Rajala Doresky, in a Act, unanimous found that the Kansas Workmen’s in opinion, Compensation pro- to fellow when

viding recoverable under immunity employees Act, so, the did not violate Section 18. the court stated that it doing expressly did not ‘view as the fact that fellow significant’ was not en- immunity acted until 1967. ‘The Workmen’s Act removes certain common Compensation law remedies for but injured substitute employees provides therefor.’ statutoiy stated, at Kan. 441. While not the court held that specifically the obviously amendment, which fellow did not provided employee immunity, require new because the afforded the quid pro quo Workmen’s comprehensive remedy by Act, existence, was sufficient. Compensation already “In the the of of considering adequacy quid pro quo comprehensive legislation, which law, substitutes a for one that existed at common statutory remedy formerly and its amendments or sufficiency modifications which support subsequent diminish the substitute no hard remedy and fast rule can originally granted, apply to all It cases. is obvious that the needs and goals comprehensive legislation Act, such as the Workers the Kansas Compensation Automobile Injury Repara- tions Act and the Health Care Provider Insurance Act will with Availability change of time and the needs of a passage It would take the fluctuating society. wisdom of Solomon to devise remedial comprehensive such as that legislation, us, now before which would never need fine or modification. The tuning, change, will, Act is a piece ongoing legislation continuous necessity, require modification to its accomplish goals. case, “At time of the in this each indi- malpractice alleged by plaintiff vidual health care who was to be was provider to main- alleged negligent required $200,000 and, addition, tain malpractice coverage Fund provided $3,000,000 Act, excess for each tortfeasor. Without the there would be coverage no that a because of the guarantee plaintiff of a health care negligence could ever recover for his provider let alone have an injuries, assured fund avail- $3,200,000. Act, able of That is a sizeable established quid pro quo, is an substitute certainly the common-law adequate remedy rights given up victims. No by injured is made that if the malpractice elimination of argument Act, vicarious had been a employer’s liability part original quid pro would somehow be insufficient. We quo conclude that in reviewing sufficiency of the substitute as it to amendment or remedy modification of applies compre- hensive remedial each must determination be made on a legislation, case-by-case basis. that all such need Recognizing we legislation may modification, periodic think the test to is whether the substitute proper would have been apply remedy so, had been a IfAct. then no part original sufficient modification if new or additional the modification quid pro quo necessary support against Section 18 attack. other would that modification of a Any holding require every substitute remedy provided by comprehensive legislation originallyabrogated 886 As substitute remedy. a new and additional would a common-law remedy require in a noted, form to draft such it would be legislation virtually impossible already not thereafter need and which would all

that would contingencies anticipate modification. and change not exceed a limit which the may that there is legislature “We recognize when a common-law remedy the statutory remedy previously provided altering a substitute established once abolished. The having was statutorily legislature, amend- emasculate the by remedy, cannot constitutionally proceed remedy, ments, substitute remedy. it is a viable a where no longer point sufficient 40-3403(h) that the the Act to such a does not amend degree K.S.A. Supp. the is not un- and we hold that statute is no sufficient substitute remedy longer added.) Bill of under Section 18 of the Kansas Rights.” (Emphasis constitutional 248 Kan. at 841-44. test, that the substitute contend on the Bair the plaintiffs

Relying common-law the of an for right employee’s remedy abrogation not have been Act —would an for sue employer negligence —the was when the common-law sufficient originally right quo quid pro at issue had been if the current amendments part abrogated concede that the Act. The the pro- legislature original plaintiffs anof em- for the vided an substitute remedy abrogation adequate for to sue an common-law negligence— right ployee’s However, substitute established this Act. once having original (the Act), that the has claim pro- remedy plaintiffs amendments, (the Act), ato ceeded to emasculate the by remedy a viable and sufficient substitute where is no remedy. longer point Act, amendments that the or the certain assert plaintiffs as a of the which emasculate remedy quid pro quo, adequacy Constitution due under Section 18 of Kansas violate process Bill Rights. substitute rem- of their contention that the adequate support amendments, has been emasculated Act original by

edy rem- out that the Act no longer provides speedy plaintiffs point a final award to be issued. Ac- wait months for edy. may Litigants review of award by cording plaintiffs, requests take to be scheduled Workers Board months may Compensation Further, more months decision. waiting argument, many contend that a workers proceeding witnesses no usually undertaking. Expert longer inexpensive and unauthorized medical benefits no necessary, may longer by used worker to obtain an independent disability evaluation. concede that this court has approved previous v.

amendments to the Act. See Rajala Doresky, (1983). However, P.2d 1251 contend none of plaintiffs those were of the cumulative of the 1993 changes magnitude amendments. it is one the for According plaintiffs, thing to make minor to one or two sec legislature relatively adjustments Act, tions of the but it is an different matter when the entirely makes to reduce or eliminate legislature major changes designed for workers. v. Fieser, Lemuz 936, 261 Kan. sheds further on this issue. light Lemuz, the was whether the Health Care Provider question Plan, Insurance Act and the Health Care Stabilization Availability which were considered substitute remedies or adequate quid pro for the of some of the common-law quos abrogation plaintiff’s in were still considered remedies the rights adequate continued of those same in of amendments abrogation rights, light the Act and had the Fund 1989 which reduced the undergone benefits available to the This court held that the statutory plaintiff. Act and the Fund were both still remedies for substitute adequate of the common-law abrogation plaintiffs’ rights despite any amendments the Act and the Fund had at 261 Kan. undergone. 950-58. In so this court stated: holding, “In this court with the bottom line as to how much summary, struggles figure can be amended and still remain an As in quid pro quo adequate quid pro quo. Bair, an at this court realizes that cannot be original quid pro quo emasculated to a where it no and viable sufficient substitute point longer Here, the did not emasculate the remedy. legislature quid quo pro provided Fund, Act, Plan, amendments, and the 1989 to a where through point Fund, it was no substitute .... Under the amended longer adequate remedy the minimum of amount medical insurance the doctor is now malpractice required $300,000. If can will recover at carry they prove negligence, $300,000. Fund, least Without the Act and the the doctor not have been might at all and the In a mal- insured have recovered medical plaintiffs might nothing. case, the doctor has his or her fortune at if' stake practice personal adequate insurance is not It is the doctor who has little to risk who purchased. basically carries the minimum insurance. The is benefitted insurance that is by any public extent, is, call and and should he to some legislative that doctor. This carried $300,000 available in minimum every that

we are unable say requiring herein it is an is so that pro quo. case inadequate quid inadequate pro quo receive the benefit original quid will portion personally and excess insurance guaranteed medical primary malpractice required remains — ade- has . . . insurance. provided medical malpractice common-law for the abrogation plaintiffs’ statutory pro quo quate quid 261 Kan. at 959-60. (Emphasis to sue a remedy hospital corporate negligence.” added.) Kansas House Here, in both the S.B. unanimously passed Senate, At the bill. and Governor and the Kansas Finney signed session, them the had before the start of the 1993 reports legislators the In- on Workers the Governor s Task Force Compensation, Force, and Workers Task surance Commissioner’s Compensation Committee, which areas Audit all of Post suggested Legislative needed reform. Before the workers compensation system bill, Committee on Labor the House Industry passing conducted Committee on Commerce the Senate many hearings witnesses and heard from representing employees, employ- many ers, and business associations. labor trial lawyers, organizations, reform effort that of a bill was comprehensive product labor, to balance the interests employers, employees, attempted and business organizations. work-

The amended Act still injured provides fault, allowed under or a benefit not ers without of negligence proof at issue do re- law. While several of the amendments tort typical bene- an to receive workers strict employee’s right fits, with the amendments have also been enacted several other (However, an intent rights. expansion expand employee’s taken to what was away.) comparison pales under With these still available injured rights Act, Act, amended it cannot be said originally pro- of an em- for the vided an substitute remedy abrogation adequate has to sue an common-law negligence, right ployee’s no where it is emasculated to been longer adequate point individual 1993 as a whole nor the Neither the Act quid pro quo. amendments violate due process.

Affirmed. I with the con J., dissenting:

Allegrucci, disagree majority’s clusion that the Act as amended continues to be an sub adequate stitute ato so-called “crisis” remedy. legislature responds by of an citizen to restricting reducing right remedy However, due course of law. as noted when the by majority, a substitute its to subse legislature provides remedy, authority alter that is not unlimited. The cannot remedy quently alter the “it is no a viable and sufficient remedy point longer Peck, substitute Bair v. 811 P.2d remedy.” Syl. ¶ (1991). As in the amendments to the Health Care Provider Bair, Insurance Act at issue I am unable to deter Availability mine at what if would conclude the point, any, majority legis lature went too far in a substitute I would con altering remedy. Act, clude that the amended, Workers as no Compensation longer I therefore dissent. provides adequate quid pro quo.

Case Details

Case Name: Injured Workers of Kansas v. Franklin

Court Name: Supreme Court of Kansas

Date Published: Jul 18, 1997

Citation: 942 P.2d 591

Docket Number: 77,142, No. 77,561

Court Abbreviation: Kan.