Blakeslee v. Mansel Construction

NOT DESIGNATED FOR PUBLICATION

No. 119,887

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

BRANDON BLAKESLEE,
Appellee,

v.

MANSEL CONSTRUCTION,

and

FARM BUREAU PROPERTY & CASUALTY INSURANCE COMPANY,
Appellants.

MEMORANDUM OPINION

Appeal from Workers Compensation Board. Opinion filed May 10, 2019. Appeal dismissed.

Matthew S. Crowley, of Crowley Law Office, L.L.C., of Topeka, for appellants.

Phillip B. Slape, of Slape & Howard, Chartered, of Wichita, for appellee.

Before LEBEN, P.J., GREEN and POWELL, JJ.

LEBEN, J.: In a workers'-compensation case, the employer and employee
sometimes disagree about who should be providing medical treatment. While the
employer generally pays for the care and therefore gets to choose the provider, the law
sometimes allows a judge to direct who provides treatment.

After an administrative law judge directed that Brandon Blakeslee be treated by
Dr. Eva Henry, the employer, Mansel Construction, appealed that order to the Workers
Compensation Appeals Board. The Board denied the appeal, and Mansel Construction
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has appealed to our court. But we don't have jurisdiction to consider the appeal of a
preliminary order about medical treatment. We therefore dismiss this appeal for lack of
jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

Blakeslee was injured in May 2015 while employed by Mansel Construction.
Between May and August 2017, Blakeslee was seen by several doctors. Those doctors
prescribed different treatments for his ongoing pain.

In August 2017, at Blakeslee's request, the administrative law judge ordered an
evaluation by Dr. Eva Henry, a neurologist. She gave recommendations for his future
treatment. Mansel Construction then selected Dr. Xavier Ng, who apparently practices
physical medicine and pain management, to treat Blakeslee.

In December 2017, Blakeslee asked the administrative law judge for an order
allowing his treatment to be done by Dr. Henry and not Dr. Ng. That request was at first
denied in January 2018. In April 2018, Blakeslee renewed the request for a change in
physician to Dr. Henry. The administrative law judge granted this renewed request and
ordered Blakeslee's continued treatment to be performed by Dr. Henry. She is a
neurologist and had made treatment recommendations that relate to neurology. Dr. Ng is
not a neurologist, and the course of treatment he pursued diverged from the
recommendations made by Dr. Henry.

Mansel Construction appealed this preliminary order to the Kansas Workers
Compensation Appeals Board. Mansel Construction claimed that the administrative law
judge had denied Mansel Construction due process by ordering that Dr. Henry provide
the treatment without first allowing Mansel Construction to submit two names of
treatment providers for the judge to choose from under K.S.A. 2018 Supp. 44-510h.
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Mansel Construction also claimed that the Board could take jurisdiction over the appeal
because the judge had "exceeded his or her jurisdiction or authority."

The Board disagreed, generally finding that it lacked jurisdiction to review the
preliminary order. After making its findings of fact, the Board concluded that K.S.A.
2018 Supp. 44-510h allows jurisdiction only for four specific reasons. The Board
concluded that a preliminary order "'related solely to the provision of medical care'" was
not one of the four issues that the Board can review.

Even so, the Board said that it did have jurisdiction to consider Mansel
Construction's claim that the administrative law judge had violated its right to due
process. The Board found that Mansel Construction was given notice and an opportunity
to be heard at the preliminary hearing, so the judge did not deprive it of due process. The
Board said that "[i]deally" the administrative law judge would have given Mansel
Construction the opportunity to present two names of potential treatment providers, but
the Board ultimately found that due process did not require it. The Board upheld the
administrative law judge's temporary order.

Mansel Construction then appealed the Board's order to this court.

ANALYSIS

A workers'-compensation claim proceeds in a series of administrative hearings that
lead up to a final order, which generally is the awarding of some amount of compensation
for the worker's injury. Before that final award is made, there may be preliminary awards
or orders, including ones over medical treatment. As everyone recognizes, only a
preliminary order is at issue in this appeal.

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Because of that, the parties recognize that the first issue we must consider is
whether we have jurisdiction to consider the appeal at all. The Kansas Court of Appeals
was established by statute, and we have only the jurisdiction provided by statute. See
Williams v. Lawton, 288 Kan. 768, 778, 207 P.3d 1027 (2009). So unless a statute
provides jurisdiction for judicial review of a preliminary order, we can't review that
order.

Two statutes provide the framework for court consideration of appeals from the
Kansas Workers Compensation Appeals Board. K.S.A. 2018 Supp. 44-556(a) provides
for the appeal of final orders of the Board to our court:

"Any action of the board pursuant to the workers compensation act, other than
the disposition of appeals of preliminary orders or awards under K.S.A. 44-534a, and
amendments thereto, shall be subject to review in accordance with the Kansas judicial
review act by appeal directly to the court of appeals." (Emphasis added.)

So that statute provides jurisdiction for us to review final Board orders, but not
preliminary ones. Those preliminary orders are made under K.S.A. 2018 Supp. 44-534a,
the second of the statutes that frame the jurisdiction issue.

K.S.A. 2018 Supp. 44-534a provides for preliminary hearings and preliminary
orders, and the preliminary hearings are "summary in nature" with the later opportunity
for a "full presentation of the facts" at the "full hearing on the claim." K.S.A. 2018 Supp.
44-534a(a)(1) and (2). There's a limited right of review for key issues that are
jurisdictional to the workers'-compensation proceeding itself, like whether the injury
arose out of the employment and whether the employee suffered an accident. But
preliminary orders on those issues are "subject to review by the board," not a court.
K.S.A. 2018 Supp. 44-534a(a)(2). The statute specifically precludes judicial review of
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preliminary orders even on these key issues: "Such review by the board shall not be
subject to judicial review." K.S.A. 2018 Supp. 44-534a(a)(2).

Even so, Mansel Construction argues that we have jurisdiction because the
administrative law judge denied it due process by failing to follow a statutory directive—
that the employer be allowed to submit the names of two health-care providers for
consideration if the administrative law judge decides a change in treatment provider is
called for. See K.S.A. 2018 Supp. 44-510h(b)(1). Mansel Construction argues that even
in a preliminary order the failure to follow the statutory requirement should be
reviewable by a court. If this court doesn't provide review of the administrative law
judge's failure to follow the statute, the argument goes, there won't be judicial review at
all.

In support of its position, Mansel Construction cites an unpublished decision from
our court, Naff v. Davol, Inc., No. 79,250, unpublished opinion filed January 8, 1999. It's
true that Naff did treat a preliminary order as a final order so that an appeal could be
considered. Slip op. at 11. But Naff considered a case that was in a different procedural
posture. Naff was a ruling on an issue related to continuing medical treatment after the
award of benefits had been made—in other words, it was a post-merits decision related
only to carrying out the award's requirement for further medical treatment. Slip op. at 2.
The Naff court decided that the order at issue really was a final order because doing
otherwise would have left the employer with no recourse to obtain any review. Slip op. at
5.

The difference in procedural posture is significant. Because there had already been
a decision on the merits in Naff, the recourse anticipated in K.S.A. 2018 Supp. 44-
534a(a)(2) for review of a preliminary order—a "full presentation of the facts" at the final
administrative hearing—was not an option.

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Here, however, there has not yet been an administrative ruling on the merits of
Blakeslee's claim. All we have is a preliminary order. That preliminary order is still
subject to a "full hearing on the claim" at the final administrative hearing, and at that
point preliminary orders are not binding in resolving the underlying issues. See K.S.A.
2018 Supp. 44-534a(a)(2). So if the administrative law judge's decision about who would
provide treatment affects resolving any issue, Mansel Construction still has a chance to
contest the decision by the administrative law judge. And if the administrative law judge
made the wrong decision and that mistake causes Mansel Construction to make payments
it shouldn't have had to make, it can seek compensation under K.S.A. 2018 Supp. 44-
534a(b).

In sum, our jurisdiction to hear this appeal is determined by statute, and no statute
gives us the authority to hear this appeal. We therefore dismiss the appeal for lack of
jurisdiction.