No. 115,674

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                  ALYSSA M. CLAYTON,
                                       Appellee,

                                            v.

                        UNIVERSITY OF KANSAS HOSPITAL AUTHORITY
                                           and
                            SAFETY FIRST INSURANCE COMPANY,
                                       Appellants.


                              SYLLABUS BY THE COURT

1.
       A final order of the Workers Compensation Board is subject to review under the
Kansas Judicial Review Act, K.S.A. 77-601 et seq. Relief may be granted if the Board
erroneously interpreted or applied the law. K.S.A. 2015 Supp. 77-621(c)(4).


2.
       Whether the Workers Compensation Board properly interpreted or applied a
statute is a question of law over which appellate courts have unlimited review.


3.
       When a statute is plain and unambiguous, appellate courts must give effect to its
express language—giving ordinary words their ordinary meaning—to determine the
legislature's intent.




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4.
       Because the Kansas Supreme Court abrogated the doctrine of operative
construction in Kansas, appellate courts no longer give deference to the Workers
Compensation Board's interpretation of the Workers Compensation Act.


5.
       When the legislature revises an existing law, appellate courts presume that it
intended to change the law as it existed prior to the amendment. Likewise, courts must
construe statutes to avoid unreasonable results and presume the legislature does not
intend to enact meaningless legislation.


6.
       K.S.A. 2015 Supp. 44-510k(a)(3) provides for a shifting burden of proof when an
employer seeks permanent termination of future medical benefits. Initially, the burden is
on the employer to come forward with evidence that a claimant has failed to obtain
medical treatment for a period of 2 years from the original award or from the last date
upon which the claimant received medical treatment. Upon successfully meeting its
burden, the employer is entitled to a statutory presumption "that no further medical care
is needed as a result of the underlying injury." At that point, the burden of proof shifts to
the claimant to attempt to overcome the statutory presumption by "competent medical
evidence."


7.
       To overcome the statutory presumption under K.S.A. 2015 Supp. 44-510k(a)(3), a
claimant must establish within a reasonable degree of medical probability or likelihood
that medical treatment in addition to what has already been received will be needed in the
future as a consequence of the work-related injury.




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       Appeal from Workers Compensation Board. Opinion filed January 13, 2017. Reversed and
remanded with directions.


       Matthew Stretz, of Stretz/Quinn P.C., of Kansas City, Missouri, for appellants.


       James E. Martin, of The Law Office of James E. Martin, of Overland Park, for appellee.


Before STANDRIDGE, P.J., ARNOLD-BURGER and BRUNS, JJ.


       BRUNS, J.: This is an appeal brought by the University of Kansas Hospital
Authority and Safety First Insurance Company from an order entered by the Workers
Compensation Board finding that Alyssa Clayton had overcome the statutory
presumption, under K.S.A. 2015 Supp. 44-510k(a)(3), that she needed no further medical
care as a result of an underlying work-related injury she suffered in October 2011. On
appeal, we conclude that the Workers Compensation Board has misconstrued the statute
regarding the type of evidence required to overcome the presumption and, by doing so,
has rendered the statutory presumption meaningless. Thus, we reverse the decision of the
Workers Compensation Board and remand this matter for further proceedings consistent
with this opinion.


                                                FACTS

       The facts of this case are undisputed. On October 6, 2011, Clayton injured her left
knee arising out of and in the course of her employment at the University of Kansas
Hospital (Hospital). Clayton filed a claim for workers compensation benefits and
ultimately settled. At a settlement hearing held on May 30, 2013, an administrative law
judge approved the agreement of the parties to settle for a lump sum payment of
$9,435—based on an 8.5 percent permanent partial impairment of the left knee—with
future medical treatment and review left open.



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       At the hearing, the administrative law judge also considered a letter from Aakash
A. Shah, M.D., of the Kansas City Spine and Sports Medicine Center, dated April 8,
2013. In his letter, Dr. Shah stated that he had last evaluated Clayton on March 5, 2012.
At the time of his evaluation, Dr. Shah noted that Clayton had a left knee lateral femoral
condyle high-grade articular chondral lesion. He further noted his understanding that
Clayton wanted to pursue definitive nonoperative treatment.


       Regarding future medical treatment, Dr. Shah opined in his letter:


               "I believe [Clayton] will likely need future medical treatment that is directly
       related to this slip and fall injury given her high-grade articular chondral lesion over the
       lateral femoral condyle. Future medical treatment may necessitate steroidal injection,
       viscosupplementation injection, and/or surgical intervention utilizing arthroscopy with
       debridement, chrondroplasty, microfracture procedure." (Emphasis added.)


       On June 15, 2015, the Hospital filed an application for postaward medical
termination and a motion to terminate future medical benefits pursuant to K.S.A. 2015
Supp. 44-510k(a)(3). Because it was undisputed that Clayton had not sought additional
medical treatment in the 2 years following the date of the settlement hearing, the Hospital
was entitled to a statutory presumption that no further medical care is needed as a result
of Clayton's underlying work-related injury. At a termination hearing held before an
administrative law judge on August 5, 2015, Clayton's attorney argued that the letter from
Dr. Shah dated April 8, 2013, was sufficient to constitute "competent medical evidence"
to overcome the statutory presumption.


       On November 25, 2015, the administrative law judge found that Dr. Shah's letter
was sufficient to constitute competent medical evidence to rebut the statutory
presumption that no further medical care is needed by Clayton as a result of the injury she
suffered in October 2011 at the Hospital. Specifically, the administrative law judge
interpreted K.S.A. 2015 Supp. 44-510k(a)(3) to mean that no additional or new evidence

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other than that presented in support of the settlement was required. Notwithstanding the
fact that Dr. Shah has never testified in this case—either in-person or by deposition—and
his most recent evaluation of Clayton was more than 3 1/2 years prior to the hearing, the
administrative law judge concluded that Dr. Shah's letter was "competent medical
evidence that rebuts the presumption that no further medical care is needed."
Accordingly, the administrative law judge denied the application and motion.


       The Hospital timely appealed to the Workers Compensation Board (Board).
Instead of holding a hearing, the Board placed the appeal on a summary docket for
disposition. On March 25, 2016, the Board issued an order affirming the administrative
law judge's decision. Although the Board noted that Clayton had simply relied upon the
letter from Dr. Shah that she submitted at the time of the settlement hearing in May 2013,
it found that the Hospital had also failed to present evidence. Thus, the Board also
concluded that Clayton had overcome the statutory presumption.


                                         ANALYSIS

       On appeal, the primary issue presented is whether the Workers Compensation
Board erred in concluding that Clayton had overcome the statutory presumption—under
K.S.A. 2015 Supp. 44-501k(a)(3)—that she needed no further medical care is needed as a
result of the underlying injury. A final order of the Workers Compensation Board is
subject to review under the Kansas Judicial Review Act, K.S.A. 77-601 et seq. K.S.A.
2015 Supp. 44-556(a). Relief may be granted if the Board erroneously interpreted or
applied the law. K.S.A. 2015 Supp. 77-621(c)(4). Whether the Board properly interpreted
and applied a statute is a question of law subject to de novo review. See Whaley v. Sharp,
301 Kan. 192, 196, 343 P.3d 63 (2014).


       When a statute is plain and unambiguous, we must give effect to its express
language. It is not our role to determine what the law should or should not be. Graham v.

                                             5
Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007). This means we are not
to speculate on legislative intent. Bergstrom v. Spears Mfg. Co., 289 Kan. 605, 607-08,
214 P.3d 676 (2009). Moreover, although both parties suggest in their briefs that we are
to give deference to the Board's interpretation of the law, this is no longer true. May v.
Cline, 304 Kan. 671, 675, 372 P.3d 1242 (2016). As the Kansas Supreme Court has made
abundantly clear, the doctrine of operative construction has "been abandoned, abrogated,
disallowed, disapproved, ousted, overruled, and permanently relegated to the history
books." Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723
(2013).


       Accordingly, we must attempt to determine legislative intent by applying the
meaning of the statute's text—giving ordinary words their ordinary meaning—to the
specific situation in controversy. See State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095
(2014). We do not read into the statute words not readily found there. Casco v. Armour
Swift-Eckrich, 283 Kan. 508, 525, 154 P.3d 494 (2007). Only if the language of the
statute is unclear or ambiguous do we employ the canons of statutory construction,
consult legislative history, or consider other background information to determine
legislative intent. Hoesli v. Triplett, Inc., 303 Kan. 358, 362, 361 P.3d 504 (2015).


       Furthermore, when the legislature revises an existing law, we presume that it
intended to change the law as it existed prior to the amendment. City of Dodge City v.
Webb, 305 Kan. 351, 356, 381 P.3d 464 (2016); Nuessen v. Sutherlands, 51 Kan. App. 2d
616, 621, 352 P.3d 587 (2015). Even when various statutory provisions are unambiguous,
we are to consider them in pari materia with a view of reconciling and bringing the
provisions into workable harmony if possible. Neighbor v. Westar Energy, Inc., 301 Kan.
916, 919, 349 P.3d 469 (2015). Likewise, we must construe statutes to avoid
unreasonable results and presume the legislature does not intend to enact meaningless
legislation. Milano's, Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 501, 293 P.3d 707
(2013).

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Interpretation of K.S.A. 2015 Supp. 44-510k(a)(3)

       Prior to 2011, the Kansas Workers Compensation Act, K.S.A. 44-501 et seq.,
contained no statutory provision allowing an employer to terminate future medical
benefits of an injured worker once the claim had been finally resolved. In 2011, however,
the Kansas Legislature added the following subsection to K.S.A. 2015 Supp. 44-510k(a):


               "(3) If the claimant has not received medical treatment, as defined in subsection
       (e) of K.S.A. 44-510h, and amendments thereto, from an authorized health care provider
       within two years from the date of the award or two years from the date the claimant last
       received medical treatment from an authorized health care provider, the employer shall
       be permitted to make application under this section for permanent termination of future
       medical benefits. In such case, there shall be a presumption that no further medical care is
       needed as a result of the underlying injury. The presumption may be overcome by
       competent medical evidence."


       At the same time, the legislature also amended K.S.A. 2015 Supp. 44-525(a). Prior
to 2011, claims for future medical benefits were left open as a matter of right. In addition,
workers compensation law was previously interpreted to allow a claimant to maintain his
or her right to future medical benefits once they had been left open—even when there
was no showing of a continuing need. See Parker-Rouse v. Larned Healthcare Center,
No. 107,221, 2012 WL 5392155, at *6 (Kan. App. 2012) (unpublished opinion).
However, after the 2011 amendments, K.S.A. 2015 Supp. 44-525(a) now provides that
"[n]o award shall include the right to future medical treatment, unless it is proved by the
claimant that it is more probable than not that future medical treatment . . . will be
required as a result of the work-related injury."


       Based on our reading of plain language of the current version of the Kansas
Workers Compensation Act, we conclude that the legislature has expressed its intent that
future medical benefits should not be automatically ordered or left open by enacting
K.S.A. 2015 Supp. 44-525(a). Furthermore, the legislature has expressed its intent to
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bring finality to the process in cases in which treatment from a health care provider is no
longer needed by enacting K.S.A. 2015 Supp. 44-510k(a)(3). Moreover, reading these
two statutes together, we find that the legislature intended to allow an employer to apply
for the permanent termination of future medical benefits—when a claimant has not
received treatment for 2 or more years—even if there was sufficient evidence presented
at the time of the original award or settlement hearing to leave the issue of future medical
benefits open.


       From a procedural perspective, we find that K.S.A. 2015 Supp. 44-510k(a)(3)
provides for a shifting burden of proof when an employer seeks permanent termination of
future medical benefits. Initially, the burden of proof is on the employer to come forward
with evidence that the claimant has failed to obtain treatment from a health care provider
for a period of 2 years from the original award or from the last date upon which the
claimant received medical treatment. Upon successfully meeting its burden, the employer
is entitled to a statutory presumption "that no further medical care is needed as a result of
the underlying injury." At that point, the burden of proof shifts to the claimant to attempt
to overcome the statutory presumption.


       In other words, once the presumption in favor of the employer comes into play, it
is solely the claimant's burden to establish that "further medical care is needed as a result
of the underlying injury." K.S.A. 2015 Supp. 44-510k(a)(3). The word "further"
commonly means additional to what already exists, and the word "needed" commonly
means necessity or required. See American Heritage Dictionary 713, 1178 (5th ed. 2011).
Giving the words of K.S.A. 2015 Supp. 44-510k(a)(3) their ordinary meaning, we find
that a claimant must therefore prove he or she still requires medical care in addition to
that which has already been received as a consequence of his or her work-related injury.


       Furthermore, K.S.A. 2015 Supp. 44-510k(a)(3) requires that a claimant may only
overcome the statutory presumption by presenting "competent medical evidence."

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Although the parties disagree whether K.S.A. 2015 Supp. 44-510k(a)(3) requires "new
evidence" to overcome or rebut the presumption, they agree that the term "competent
medical evidence" in the context of workers compensation would normally mean an
opinion asserted by a health care provider that is expressed in terms of "reasonable
degree of medical probability" or similar language. See Webber v. Automotive Controls
Corp., 272 Kan. 700, 705, 35 P.3d 788 (2001) (opinion of health care provider stated
within a reasonable degree of medical certainty was sufficient competent evidence of
causation in workers compensation case); accord Redd v. Kansas Truck Center, 291 Kan.
176, 179-80, 185, 239 P.3d 66 (2010). Accordingly, to overcome the presumption, a
claimant must establish within a reasonable degree of medical probability or likelihood
that medical treatment in addition to what has already been received will be needed in the
future as a consequence of the work-related injury.


       We agree with the Hospital that in many instances new competent medical
evidence may be required to overcome the statutory presumption that no additional
medical treatment is needed resulting from the underlying injury. For example, an
updated evaluation of the claimant by a health care provider to determine within a
reasonable degree of medical probability whether the claimant needs additional medical
treatment due to the work-related injury would be sufficient new evidence. We do not
agree, however, that this will be necessary in every case. In some cases, the original
medical evidence may be sufficient to establish within a reasonable degree of medical
probability or likelihood that medical care in addition to what has already been received
will be needed in the future as a result of the underlying injury. For example, a claimant
may need a medical device arising out of the work-related injury that will require
replacement in 5 or 10 years. Accordingly, we find that the question of whether the
medical evidence is competent to overcome the statutory presumption must be
determined on a case-by-case basis.




                                             9
Application of K.S.A. 2015 Supp. 44-510k(a)(3)

       In the present case, it is undisputed that Clayton did not receive medical treatment
resulting from her work-related injury within 2 years from the date of the settlement
hearing. As a result, the Hospital was entitled to the "presumption that no further medical
care is needed as a result of the underlying injury." K.S.A. 2015 Supp. 44-510k(a)(3).
Moreover, it is undisputed that the burden of proof shifted to Clayton to establish by
"competent medical evidence" to overcome or rebut the statutory presumption.


       A review of the record reveals that the Board relied solely on the opinions stated
in Dr. Shah's letter dated April 8, 2013—based on his evaluation of Clayton in March
2012—to conclude that she had overcome the statutory presumption that no further
medical treatment was needed as a result of the underlying injury. The letter from Dr.
Shah is not sworn to under oath and is based on a physical examination that was
completed nearly 5 years ago. Although Dr. Shah believed at the time of the settlement
hearing that it was likely that Clayton would need future medical care, the record does
not reflect what his opinion might be today regarding whether there is a need for
treatment in addition to what has already been received for the underlying injury. Thus,
we do not find Dr. Shah's letter—in and of itself—to be sufficient to constitute competent
medical evidence to overcome the statutory presumption under K.S.A. 2015 Supp. 44-
510k(a)(3) that "no further medical care is needed as a result of the underlying injury."


       Under the circumstances presented, we believe that the appropriate remedy is to
reverse the Board's decision and to remand this matter for a new hearing on the Hospital's
application and motion to terminate future medical benefits. At the new hearing, the
burden of proof will be on Clayton to come forward with "competent medical
evidence"—as that term is defined in this opinion—to overcome the presumption that no
medical treatment is needed in addition to what has already been received as a
consequence of her work-related injury suffered on October 6, 2011. In light of this

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conclusion, we do not find it necessary to reach the issue of whether Clayton's counsel is
entitled to attorney fees.


       Reversed and remanded with directions.




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