Opinion
110,320.
09-19-2014
Samara K. SALAS, Appellant, v. BEEF PRODUCTS, INC., and Liberty Insurance Corporation, Appellees.
Bruce Alan Brumley, of Topeka, for appellant. William L. Townsley and Ali N. Marchant, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellees.
Bruce Alan Brumley, of Topeka, for appellant.
William L. Townsley and Ali N. Marchant, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellees.
Before GREEN, P.J., LEBEN and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Samara K. Salas appeals the decision of the Workers Compensation Board (Board) regarding injuries she claims she suffered as a result of an April 15, 2009, accident while working for Beef Products, Inc. (BPI). Salas was originally awarded a permanent partial disability award by an administrative law judge (ALJ) for injuries to her back, but this award was reversed by the Board. The Board determined that although Salas did sustain a work-related injury, she did not have any permanent impairment attributed to that injury. Thus, the Board concluded that Salas was not entitled to an award of permanent disability benefits. On appeal, Salas contends that the Board's decision is not supported by substantial competent evidence. Also, Salas contends that K.S.A.2013 Supp. 44–551, the recently amended statute that created anew nomination committee for the Board, is unconstitutional because it violates her right to equal protection under both the United States Constitution and the Kansas Constitution. Finding no merit in Salas' contentions, we affirm.
Salas was a 25–year–old quality assurance inspector for BPI. Salas' duties included monitoring and inspecting products and job practices to ensure that proper procedures were being followed. Salas worked for BPI for approximately 3 months.
On April 15, 2009, Salas was working at the core sampler. She would take samples from products and place them in a bucket. Salas would then take the bucket down a set of three to four steps where she would test the sample. Salas had the bucket in her right hand and was holding the railing with her left hand as she went down the stairs. After taking approximately one step she slipped and her feet came out from underneath her. Salas landed on the steps on her back, shoulder, and bottom. Throughout the fall Salas did not let go of the railing with her left hand.
After the accident, Salas was examined by the plant nurse and then returned back to work and finished the rest of her shift. Salas called her supervisor to notify him of the accident. When her supervisor asked her if she was okay, she said she may have scraped her back but otherwise she was okay. Salas told him that she was more embarrassed than anything.
Approximately 2 weeks later, on May 1, 2009, Salas reported another work-related accident to her supervisor that occurred when she was cleaning the rework metal detector and smashed her hand. Salas saw the plant nurse the following morning and was shown how to wrap her finger. And while Salas testified that she complained to the nurse about her back pain, the nurse's notes from this examination did not mention any complaints by Salas about any back pain or any other injuries related to her previous April 15, 2009, accident.
On May 12, 2009, Salas went back to see the plant nurse in connection with her April 15, 2009, accident on the stairs. At this appointment, Salas told the nurse that she did not have pain immediately following the fall on the stairs but stated that she had developed a shocking type of pain in her back around May 8, 2009. The nurse examined Salas' back and rubbed Biofreeze on it. The nurse gave Salas some ibuprofen and then sent her back to work without any restrictions.
This same day, Salas underwent a performance evaluation because she had reached the end of her 90–day probationary period. As part of the evaluation, Salas had to take a test. The results of the test helped determine whether Salas would receive a pay raise. Salas failed the test. Her evaluation also indicated that Salas had dependability issues based on her attendance. During her 90–day evaluation period, Salas had taken 3 sick days, had left work early 5 times, and had been late to work once.
The parties dispute what happened after Salas received her performance evaluation. BPI presented evidence that shortly after Salas received her evaluation, she approached her supervisor, gave the supervisor her I.D. card, and told him that she was quitting and that she had already clocked out. BPI further presented evidence that Salas later made a claim for unemployment benefits but those benefits were denied because Salas had voluntarily separated from her employment.
On the other hand, Salas testified that she did not quit her job. Salas testified that BPI asked her to turn in her I.D. badge and to leave because she was not able to do the requirements of the job. Salas stated that she returned to work the next day and was told that she did not have a job because she did not perform the job correctly. Salas further testified that no one from BPI ever told her that she was fired.
In October 2009, Salas contacted BPI by letter requesting workers compensation benefits. BPI referred Salas to Dr. Terry Hunsberger for treatment.
On May 18, 2010, Salas saw Dr. Pedro Murati at the request of her attorney. Salas told Dr. Murati that due to her back pain she could no longer do chores around the house, that she could only sleep on her right side, that she would never be capable of working the same job again, and that she had trouble with lifting, especially lifting her daughter.
Dr. Murati diagnosed Salas with a thoracic spine sprain, which he related to the April 15, 2009, fall at work, and placed her in DRE thoracolumbar category II for a 5% whole person impairment. Dr. Murati also gave Salas the following work restrictions: no above-shoulder work, no working more than 18 inches away from the body, avoid trunk twisting, no lifting/carrying or pushing/pulling of more than 35 pounds, occasional lifting/carrying or pushing/pulling of no more than 35 pounds, and frequent lifting/carrying or pushing/pulling of no more than 20 pounds. After reviewing a task list, Dr. Murati determined that Salas had a 68% task loss as a result of her work injury.
At the regular hearing, Salas testified that since leaving BPI she had worked at Target and Area Mental Health. On cross-examination, Salas also admitted to working for Tyson Fresh Meats, Inc., after leaving her job at BPI. Salas had failed to mention this job in her deposition and also on direct examination when asked about her work history. The parties later stipulated that Salas worked for Tyson from April 13, 2010, to August 10, 2010. Tyson fired Salas for misrepresentations on the medical history questionnaire she completed when she was hired.
The Tyson medical records indicate Salas stated that she was not receiving medical treatment, that she did not have any problems with her neck or back, and that she did not have a herniated disc or shoulder problems. Tyson performed a physical on Salas which indicated that her tests were within the acceptable limits for all body parts, including Salas' shoulder, neck, and back. Salas' job duties while she worked for Tyson were that of a butt boner.
Notably, Salas was working at Tyson when she went to see Dr. Murati on May 18, 2010. Dr. Murati was unaware that Salas was working for Tyson when he examined her. In fact, Dr. Murati testified that he was under the impression that Salas was not working and had not been working for some time.
On March 3, 2011, Salas saw Dr. Pat Do for an independent medical examination. Dr. Do reviewed Salas' previous diagnostic imaging tests and noted that her MRI was normal and that her total body scan was negative. Dr. Do believed that Salas had myofascial pain in the thoracic spine, which he believed was at least aggravated or accelerated by her fall at work. Dr. Do recommended additional medical treatment, including trigger point injections, anti-inflammatories, and muscle relaxants. Dr. Do reviewed the same task list that Dr. Murati reviewed; but, unlike Dr. Murati, he determined that Salas had no task loss as a result of her work injury.
On April 11, 2011, Salas was referred to Danny Briggs, Jr., a physician's assistant, for the treatment recommended by Dr. Do. Briggs initially prescribed Salas with antiinflammatories and muscle relaxers. On April 28, 2011, Salas had a follow-up appointment with Briggs. At this appointment, Briggs noted that Salas had no pain with palpation across the trapezius muscles, no pain with palpation throughout her thoracic spine, and full range of motion of the thoracic spine with no evidence of pain. Briggs released Salas with no restrictions and scheduled her to return in 2 weeks. On May 12, 2011, Salas returned with increased pain complaints. Briggs then gave Salas trigger point injections. Salas returned 2 weeks later and reported that she had not gotten any relief from the trigger point injections. Briggs' notes from this appointment stated: “There is seemingly severe pain with even light palpation throughout the left scapular area and into the thoracic spine paraspinal area. There is no muscle rigidity noted. There is no actual trigger points. It is ... diffuse with a large amount of exacerbation on her part.”
On June 13, 2011, Briggs determined that Salas had reached maximum medical improvement and released her to work with no restrictions. Briggs' notes from this appointment stated:
“Patient is sitting in a chair in no acute distress. She moves back and forth from side to side in the chair without any pain or abnormalities. She reaches to the floor to pick up a magazine that she dropped without any pain. She ambulates without any signs of distress or discomfort. She rises from the chair and gets on the examination table with no signs of discomfort. She has no grimacing or signs of pain with palpation throughout the thoracic spine or to the left scapula area or throughout the paraspinals or upper trapezius. There is no muscle rigidity noted throughout these areas. There is full range of motion of the cervical spine and left upper extremity with no pain. On questioning, the patient does not seem to be having any pain.”
Briggs' final assessment was as follows: “Subjective complaint of myofascial pain without objective findings, appears to be exacerbation of pain symptoms.” He further noted that his “recommendation would be full release with no restrictions. [Briggs] think[s] that she is exacerbating her symptoms and not being fully honest with her complaints of 9 out of 10 pain.”
On August 8, 2011, Salas saw Dr. Do for a follow-up examination. Dr. Do determined that Salas had reached maximum medical improvement, and he assigned her a whole person impairment rating of 5% based upon DRE thoracolumbar category II. Dr. Do did not assign any permanent work restrictions.
BPI hired Dr. John McMaster to perform an independent medical examination on Salas. On July 19, 2012, Salas saw Dr. McMaster for a physical examination. Dr. McMaster reviewed all of Salas' medical records before he examined her. After Dr. McMaster performed a physical on Salas, he determined that he was unable to identify any verifiable objective medical condition that arose out of her slip and fall while working for BPI. Dr. McMaster stated that he was unable to relate Salas' subjective pain complaints to her alleged work accident. Dr. McMaster concluded that Salas did not have any permanent partial impairment under the AMA guides as a result of her fall and that she did not require any permanent work restrictions as a result of the fall.
Dr. McMaster testified that he disagreed with the opinions of Dr. Do and Dr. Murati because he was unable to find any basis for placement of Salas in DRE category II based on Salas' complaints and symptoms. Dr. McMaster also reviewed a separate task list and determined that Salas had no task loss as a result of her work injury.
On June 4, 2012, a regular hearing was held before the ALJ. The ALJ entered an award in favor of Salas, finding that she sustained a 5% impairment to the body as a whole based on the opinions of Dr. Do and Dr. Murati. The ALJ further found that Salas was entitled to a work disability award based on the stipulated wage loss. The ALJ found the opinion of Dr. Do to be the most credible because “he evaluated, recommended additional treatment and then evaluated [Salas] again.” The ALJ awarded Salas $92,634.76 in permanent partial disability compensation.
BPI appealed the award to the Board arguing that Salas did not sustain any permanent impairment as a result of her work-related accident on April 15, 2009. After reviewing the record, the Board reversed the ALJ's award based on a finding that although Salas had proved that she sustained a work-related injury, she did not prove that her injury was permanent or that she had any permanent functional impairment as a result of that injury. Thus, the Board held that Salas was not entitled to an award of permanent disability benefits.
Was There Substantial Competent Evidence to Support the Board's Finding?
While attempting to frame some of the arguments as a misapplication of the legal authority, Salas essentially disputes the facts supporting the Board's decision. Salas challenges the sufficiency of the evidence to support the Board's finding that she failed to prove that she was entitled to permanent partial disability compensation. Salas also argues that the Board arbitrarily disregarded uncontroverted evidence.
Appellate review of a Board's decision is governed by the Kansas Judicial Review Act (KJRA), K.S.A. 77–601etseq. K.S.A.2013 Supp. 44–556(a) ; K.S.A.2013 Supp. 77–603(a). This court has unlimited review of the Board's legal conclusions. See K.S.A.2013 Supp. 77–621(4) ; Nistler v. Footlocker Retail, Inc., 40 Kan, App.2d 831, 835, 196 P.3d 395 (2008). In contrast, under K.S.A. 77–621(c)(7), appellate review of the Board's factual determinations is limited to verifying that the determinations are supported by substantial competent evidence “in light of the record as a whole.” Olds–Carter v. Lakeshore Farms, Inc., 45 Kan.App.2d 390, 394, 250 P.3d 825 (2011). The appellate court's consideration of the record as a whole is defined by statute.
“[T]he adequacy of the evidence in the record before the court to support a particular finding of fact shall bejudged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77–620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency's explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review.” K.S.A.2013 Supp. 77–621(d).
Under this standard of review, an appellate court does not weigh conflicting evidence except to determine whether the evidence supporting the Board's decision has been so undermined by conflicting evidence that the appellate court no longer has confidence in the substantial nature of the evidence. Substantial evidence is evidence that a reasonable person might accept as being sufficient to support a particular conclusion. Henera–Gallegos v. H & H Delivery Service, Inc., 42 Kan.App.2d 360, 363, 212 P.3d 239 (2009).
Credibility Issues
Salas contends that the Board acted arbitrarily and capriciously because her credibility was a determination to be made by the ALJ and not by the Board. She asserts that after seeing her testify and reviewing the medical records, the ALJ found her to be a credible witness.
In fact, what the ALJ found was that Dr. Do's and Dr. Murati's medical opinions were the most credible of the various medical opinions in evidence. The Board disagreed and determined that Salas had not suffered any permanent impairment to her back. Salas contends that in doing so, the Board improperly substituted its own credibility determination for that of the ALJ.
We disagree. The ALJ did not make an explicit finding about Salas' credibility. The ALJ's decision was based on the opinions of physicians who she found more credible. The Board overruled the ALJ's credibility determination for both Dr. Do and Dr. Murati. The Board gave the following specific reasons for finding that both doctors' opinions lacked credibility:
“Dr. Murati's testimony lacks credibility for several reasons including:
“1. Dr. Murati examined [Salas] only once, on May 18, 2010, before [Salas] was found to be at [maximum medical improvement] by Dr. Do on August 8, 2011.
“2. Dr. Murati apparently reviewed no medical records or reports either before or after he examined [Salas]. Dr. Murati did not reexamine [Salas] in the period after the May 2010 examination and his deposition on May 14, 2012, a period of almost two years.
“3. The results of the diagnostic testing performed—either the reports of the testing or the actual films or other data—were not made available to Dr. Murati before or after his examination. Dr. Murati did not have x-rays taken as part of his evaluation.
“4. Dr. Murati claimed his 5% rating was based on the AMA Guides' DRE Thoracolumbar Category II. However, Dr. Murati did not provide, either in his narrative report or in his deposition testimony, his rationale for placing [Salas] within Category II. Dr. Murati's findings on physical examination were lacking in any objective indication of injury. Dr. Murati also found ‘increased tone ... in the mid-to [sic ] lower thoracic paraspinals.’ Dr. Murati did not explain what ‘increased tone’ means in this context, but it is noteworthy that the doctor did not say muscle spasm or muscle guarding.”
The Board further found that Dr. Do's testimony also lacked credibility for the following reasons:
“Dr. Do also concluded [Salas] sustained a 5% permanent loss of physical function based on DRE Thoracolumbar Category II, for ‘myofascial type issues.’ Dr. Do provided no explanation why myofascial pain would place [Salas] into Category II. Dr. Do imposed no permanent restrictions and found no task loss. Dr. Do admitted on cross-examination he could identify no objective findings he could relate to [Salas'] 2009 accident.”
To the extent the Board's findings are inconsistent with the ALJ's findings, it had the authority to make its own independent findings. The Board, as the finder of fact, has “the right and the obligation to weigh the evidence to determine the credibility of witnesses, including the physicians who testified, and utilize that as a factor in making its decision.” Tovar v. IBP, Inc., 15 Kan.App.2d 782, 785, 817 P.2d 212, rev. denied 249 Kan. 778 (1991) (superseded on other grounds by statute).
Clearly, “the ability to observe the declarant is an important factor in determining whether he or she is being truthful.” State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008). K.S.A.2013 Supp. 77–621(d) requires this court to consider any “determinations of veracity by the presiding officer who personally observed the demeanor of the witness.” K.S.A.2013 Supp. 77–527(d) requires the Board, when reviewing the ALJ's decision, to “give due regard to the [ALJ's] opportunity to observe the witnesses and to determine the credibility of witnesses.” But considering and giving due regard do not vitiate the Board's authority to make its own findings of fact.
Salas relies on Lake v. Jessee Trucking, 49 Kan.App.2d 820, 316 P.3d 796 (2013), to support her argument that the Board improperly made findings regarding her credibility that were different from the ALJ's findings. In Lake, the claimant was a 39–year–old mechanic who was injured when a fiberglass bedliner fell on him. The parties disputed whether the claimant sufficiently proved that his injuries were due to his work-related accident. The ALJ found that the claimant “ ‘was suffering ill effects from his injury at the time of the accident, per his testimony and that of Mr. Palmer.’ “ 49 Kan.App.2d at 833. The Board reversed the ALJ's finding and concluded that the claimant had failed to meet his burden of proof. The Board stated that “ ‘if [Lake] suffered a traumatic injury severe enough to cause his need for three surgeries, his diffuse complaints would have existed [earlier].’ “ 49 Kan.App.2d at 834.
On appeal, we reversed the Board's decision and reinstated the ALJ's finding. Our court noted that the Board was within its rights to discount the ALJ's credibility determinations and provide reasons for its findings, but those findings must be supported by substantial evidence in light of the record as a whole. Our court found that the reasons given by the Board for discounting the claimant's testimony were not supported by substantial competent evidence. Our court held that “[t]he law does not allow the Board to discount an ALJ's credibility determination of a claimant based on presumptions, suppositions, and cherry-picked record references of questionable or limited evidentiary value.” 49 Kan.App.2d at 843. Moreover, in Lake, there were undisputed causation opinions from four doctors that related Lake's injuries to the work accident.
Our case is clearly distinguishable from Lake. First, in our case, the ALJ did not explicitly make a credibility finding regarding Salas. The ALJ expressly stated that she based her decision on the opinions of Drs. Do and Murati. Thus, it does not appear that Salas' testimony, whether credible or not, was critical to the ALJ's decision. Second, in our case, the reasons given by the Board for discounting the ALJ's credibility determinations are supported by substantial evidence and are not based on speculation or conjecture. The Board stressed that no objective medical evidence showed that Salas suffered a permanent injury. Moreover, while the Board did mention that Salas' testimony lacked credibility, it did not base its reversal on that finding alone. Instead, the Board relied on the opinion testimony of Dr. McMaster, finding that his opinion was the most credible. Additionally, unlike Lake, we do not have undisputed opinion evidence that the Board disregarded in reaching its decision. In Lake, multiple doctors related Lake's injuries to his work accident yet the Board rejected those opinions because it did not find Lake's testimony to be credible. Here, it was disputed whether Salas had suffered a permanent injury and none of the doctors were able to present objective medical evidence of a permanent injury. Thus, Lake is inapplicable to this case.
As stated earlier, the Board can make its own credibility determination, and when the Board disagrees with an ALJ's credibility determination, the Board is required to provide an explanation for its disagreement. Herrera–Gallegos v. H & H Delivery Service, Inc., 42 Kan.App.2d 360, 362, 212 P.3d 239 (2009) ; see Lake, 49 Kan.App.2d at 843. Here, in reviewing the ALJ's decision, the Board explained the facts that presented a more compelling explanation of Salas' symptoms and complaints. In weighing the evidence, the Board noted the findings of Salas' symptom magnification, her honesty issues regarding her job at Tyson, and her misrepresentations on her medical forms at Tyson. The Board coupled these findings with the lack of any objective medical findings that related to the work accident found by two doctors and one physicians' assistant to determine that there was no permanent injury. Thus, the Board did not err in the manner of its fact finding.
Evidence Supporting the Board's Finding that no Permanent Injury Occurred
Salas contends that she met her burden to show that she sustained a permanent compensable injury to her back based on the medical opinions of Drs. Do and Murati. The Board found no permanent injury and no permanent functional impairment to Salas' back. Viewing the evidence in light of all the evidence (K.S.A.2013 Supp. 77–621 [c][7]; Herrera–Gallegos, 42 Kan.App.2d at 362 ), we find substantial competent evidence to support this finding.
“Permanent partial general disability exists when the employee is disabled in a manner which is partial in character and permanent in quality and which is not covered by the schedule in K.S.A. 44–510d, and amendments thereto.” K.S.A.2013 Supp. 44–510e(a). The disagreement in this case depends on the permanent nature of Salas' back injury. BPI concedes that Salas suffered an injury while at work and the parties do not dispute the partial character of the injury to Salas' back.
In denying the award for permanent partial disability benefits, the Board relied heavily on Dr. McMaster's testimony. Dr. McMaster found that Salas did not have any significant impairment to her back or neck. He diagnosed Salas with transient, nonspecific, nondifferentiated soft tissue pain in the left scapular and mid-back regions. Dr. McMaster did not find any scientific or medical evidence to prove Salas had suffered an injury as a result of her accident on April 15, 2009. Dr. McMaster rated Salas' impairment finding that she sustained a 0% permanent functional impairment. He further opined that Salas was at maximum medical improvement (MMI) and that no permanent restrictions were needed.
The Board noted that Dr. McMaster was not the only doctor who had failed to find any objective findings to relate Salas' injuries to her accident. Likewise, although Dr. Do rated Salas' injury to be a 5% permanent partial disability, he admitted that he did not find any objective symptoms related to her injury.
Additionally, Briggs, the physician's assistant, also failed to find any objective symptoms related to Salas' injury and believed that Salas was exaggerating her pain symptoms. Briggs' recommendation was a full release with no restrictions.
The record as a whole supports the Board's findings that Salas did not sustain a compensable injury to her back.
Do the 2013 Amendments to the Kansas Workers Compensation Act Violate Constitutional Principles of Equal Protection?
Finally, Salas contends that the 2013 amendments to K.S.A. 44–551 violate her equal protection rights. Salas maintains that she is a part of the labor/worker class which is unfairly represented under the newly created nominating committee. Salas then begs the question: that the labor class is being treated differently than the class of employers/insurance companies under the Kansas Workers Compensation Act.
In Kansas, equal protection rights originate from Section 1 of the Kansas Constitution Bill of Rights as well as the Fourteenth Amendment to the United States Constitution. “Section 1 and the Fourteenth Amendment to the United States Constitution provide virtually the same protections.” Miller v. Johnson, 295 Kan. 636, 665–66, 289 P.3d 1098 (2012). The Equal Protection Clause of the Fourteenth Amendment states: “No state shall ... deny to any person within its jurisdiction the equal protection of the laws.” The guiding principle of equal protection analysis is that similarly situated individuals should be treated alike. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ; State v. Huerta, 291 Kan. 831, 834, 247 P.3d 1043 (2011).
Our review requires us to presume the statute is constitutional and resolve all doubts in favor of upholding the legislation. State v. Cheeks, 298 Kan. 1, 4, 310 P.3d 346 (2013). A party challenging the constitutionality of a statute bears a “weighty” burden. 298 Kan. at 4.
In this case, Salas maintains that her rights to equal protection have been violated because the newly created nominating committee has a bias towards businesses/insurance companies and against labor/workers. In response, BPI argues that Salas has failed to provide any evidence of the alleged bias created by the new committee and therefore she failed to meet her burden to show that she was similarly situated to others who are treated differently.
Kansas courts conduct a three-step analysis when an individual challenges the constitutionality of a statute based on an equal protection violation:
“The first [step] is to determine the nature of the statutory classification and whether that classification results in arguably indistinguishable classes of individuals being treated differently. The Section 1 Equal Protection Clause is only implicated if there is differing treatment among similarly situated individuals. [Citation omitted.] The party challenging the statute's constitutionality has the burden of demonstrating he or she is similarly situated to others treated differently. [Citation omitted.] The second step examines the rights affected by the classification because the nature of those rights dictates the level of scrutiny applied to justify the classification. There are three levels of scrutiny: (1) the rational basis standard to determine whether a statutory classification bears some rational relationship to a valid legislative purpose; (2) a heightened or intermediate scrutiny to determine whether a statutory classification substantially furthers a legitimate legislative purpose; and (3) the strict scrutiny standard to determine whether a statutory classification is necessary to serve some compelling state interest. [Citation omitted.] The final step requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable scrutiny. [Citation omitted.]” Miller, 295 Kan. at 666.
We turn now to the statute in question, K.S.A.2013 Supp. 44–551, which states:
“(e) There is hereby established the workers compensation and employment security boards nominating committee. Whenever the workers compensation administrative law judge nominating and review committee or the workers compensation board nominating committee, or words of like effect, is referred to or designated by a statute, contract or other document, such reference or designation shall be deemed to apply to the workers compensation and employment security boards nominating committee. The workers compensation and employment security boards nominating committee shall be composed of seven members who are appointed by the governor. Each of the following shall select one member to serve on the nominating committee by giving written notice of the selection to the governor who shall appoint such representatives to the committee:
(1) The Kansas secretary of labor;
(2) the Kansas chamber of commerce;
(3) the national federation of independent business;
(4) the Kansas AFL–CIO;
(5) the Kansas state council of the society for human resource management (KS SHRM);
(6) the Kansas self-insurers association; and
(7) the secretary of labor, who shall select a nominee from either an employee organization as defined in K.S.A, 75–4322, and amendments thereto, or a professional employees' organization as defined in K.S.A. 72–5413, and amendments thereto.
“In the event the governor refuses to appoint a member selected by one of the organizations in this subsection, the organization may replace that selection with another, subject to the same appointment requirements.
“(f) Of the members first appointed to the workers compensation and employment security boards nominating committee, three shall be appointed for terms of two years and four shall be appointed for terms of four years as specified by the governor. Thereafter, members of the nominating committee shall be appointed for a term of four years. Members may not serve more than two consecutive terms.
“(g) In the event of a vacancy on the nominating committee occurring for any reason, the respective member whose position becomes vacant shall be replaced by the selecting organization by submitting written notice of the replacement selection to the governor within 30 days of such vacancy. The governor shall either appoint or reject the replacement selection as provided in this section.
“(h) The nominating committee shall meet as needed to provide the workers compensation and employment security board of review appointing authorities with nominees for appointments to the position of:
(1) Workers compensation administrative law judge;
(2) workers compensation appeals board member; and
(3) employment security board of review.
“No action of the committee shall be effective unless approved by two-thirds of the committee.
“(i) When notified of a vacancy in the position of workers compensation administrative law judge or workers compensation appeals board member, the committee shall review all qualified applicants as submitted by the director of workers compensation. The committee shall nominate a qualified person to fill the vacancy and submit that nomination to the secretary of labor. The secretary shall either accept and appoint the person nominated by the nominating committee to the position for which the nomination was made or reject the nomination and request the nominating committee to nominate another person for that position. Upon receipt of any such request for the nomination of another person, the nominating committee shall nominate another person for that position in the same manner as set forth above.”
In 2013, the legislature amended this statute to do away with the Workers Compensation Board Nominating Committee (former committee), and replace it with the Workers Compensation and Employment Security Boards Nominating Committee (new committee). Under the amended statute, the new committee receives names of applicants for a vacant position and then nominates one applicant for appointment by the Secretary of Labor. K.S.A.2013 Supp. 44–551(h) and (i) ; K.S.A.2013 Supp. 44–555c(a). The nominee submitted to the Secretary of Labor must be approved by two-thirds of the nominating committee. K.S.A.2013 Supp. 44–551(h). The Secretary of Labor is free to reject a nominee, in which case the nominating committee must submit a different nominee. K.S.A.2013 Supp. 44–55 l(i). These amendments became effective on April 25, 2013.
Salas challenges this new committee arguing that it violates her right to equal protection. Salas maintains that the existence of this new committee, with its influence on the retention of the board members, had an effect on the decision issued in her case. Salas requests that the court strike the amendments and return to the former nominating committee, which was equally weighted between labor and employer and free from undue influence on decisions.
The Equal Protection Clause requires that states treat “similarly situated” individuals similarly. Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 602, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). The party challenging a law's constitutionality has the burden to prove the person is similarly situated to members of a class receiving different treatment, and in conducting our review, we are limited “by the distinctions argued by the complaining party.” State v. Salas, 289 Kan. 245, 249, 210 P.3d 635 (2009).
Here, Salas defines the parameters of her class broadly as claimants. Salas contends that claimants and respondents are the two groups that are similarly situated but that receive different treatment. Salas argues that the “[l]abor [claimaint] is treated differently because at all times the employer/insurance company class will have the majority on the committee that controls the selection and retention of the judges and Board members.” Salas stated that “[i]n times when the Secretary of Labor represents the employer interests, the committee will have 6 members that support the employer class and only 1 that supports the labor [class].”
Salas' argument fails because we are not persuaded that the new committee resulted in arguably indistinguishable classes of individuals being treated differently. As a preliminary matter, we find that there is no evidence to support Salas' assertion that the Board suddenly became biased towards her after this new committee was created. As Salas points out, the former committee was in place when her case was argued, but when the Board's decision came out, the new committee was in place. Salas has no evidence of bias, she simply speculates that this new committee could be biased and nominate other biased members.
BPI correctly argues that to accept Salas' arguments, we would have to find that each organization that nominates members to the board would only nominate people that would be biased toward the perceived interest of those organizations. Moreover, Salas even contends that the Secretary of Labor is biased and would only nominate committee members who are biased towards businesses. Salas has presented no evidence to support her theory of bias other than speculation. Mere speculation that bias could occur is not sufficient to prove a violation of the Equal Protection Clause.
We are guided by several decisions that have stated that an equal protection claim must be supported by more than mere speculation. Capra v. Cook County Board of Review, No. 11–cv–4028, 2012 WL 1969393, at *4 (N.D.Ill.2012) (unpublished opinion) (“Mere speculation ... falls short of stating a plausible claim of equal protection.”), aff'd 733 F.3d 705 (7th Cir.2013), cert. denied 134 S.Ct. 1027 (2014). See also Neis v. Douglas County Board of Comm'rs, No. 106, 513, 2013 WL 310346, at *16 (Kan.App.2013) (unpublished opinon) (equal protection claim was properly denied where plaintiff “failed to come forward with any evidence to show that he has suffered disparate treatment from someone who is similarly situated”); Jones v. Kansas Parole Board, No. 108,264, 2012 WL 6734664, at *3 (Kan.App.2012) (unpublished opinion) (“[Plaintiff] does not present any evidence that he was treated differently than other similarly situated offenders, the key requirement of any equal protection claim.”), rev. denied August 23, 2013. Here, Salas offers no actual evidence of unequal treatment between workers compensation claimants and respondents, but she merely speculates that this will be the result under the new nominating committee.
Therefore, Salas has failed to come forward with any evidence to show that she has suffered disparate treatment from someone who is similarly situated. Thus, the Equal Protection Clause was not implicated in this case.
Further, even if Salas could establish both elements of her equal protection claim, her claim would nevertheless fail because as a matter of law, any different treatment received by Salas based on the Board's decision, survives rational basis scrutiny. Salas incorrectly argues that the only rational basis for creating the new committee is to cut costs. Salas maintains that cutting costs is not an acceptable basis to treat the working class differently from the employer class. In making this argument, Salas ignores the fact that there is a rational basis for the new nominating committee to be comprised of individuals from each organization.
The new committee has the power to select the most qualified candidates from a pool of eligible applicants and to then forward the selected candidates to the Secretary of Labor for final appointment. The committee's function is to nominate administrative law judges and board members. The ultimate power to make the appointment lies in the Secretary of Labor. Additionally, the ultimate power to make the appointment to serve on the new committee rests with the Governor.
Applying rational basis review, it is clear that Kansas has a legitimate interest in selecting the most qualified candidates to serve as administrative law judges and board members. Each organization has a representative on the committee who is in a good position to evaluate each candidate's qualifications and determine who should be nominated. Moreover, the Governor can reject nominees to the nominating committee, and the Secretary of Labor can reject nominees to the Board. These safeguards provide ample protection against the kind of bias Salas alleges in this case.
Accordingly, we conclude that Kansas' legitimate interest in selecting the most qualified administrative law judges and board members encompasses an interest in having the views and expertise of each organization involved to assist with this selection. This purpose or object of the legislation seems reasonable. Thus, Kansas' new committee formed to select nominees for administrative law judges and board members by and from members of each organization does not violate Salas' rights under the Equal Protection Clause.
Affirmed.