Opinion
112,945.
08-14-2015
Gary SPHABMIXAY, Appellant, v. RUBBERMAID, INC., and Travelers Indemnity Company, Appellees.
Michael L. Snider, of Snider & Seiwert, L.L.C., of Wichita, for appellant. Terry J. Torline, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellees.
Michael L. Snider, of Snider & Seiwert, L.L.C., of Wichita, for appellant.
Terry J. Torline, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellees.
Before BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gary Sphabmixay filed a claim for compensation under the Kansas Workers Compensation Act (the Act) alleging his asthma that ultimately developed into chronic obstructive pulmonary disease (COPD) resulted from his exposure to chemical irritants, dust, and fumes during his 28 years of employment at a Rubbermaid, Inc., plant in Winfield, Kansas. The Workers Compensation Board (the Board) affirmed the conclusion of the administrative law judge: (ALJ) that Sphabmixay did not meet his burden of proving his lung condition is an occupational disease, which is compensable under the Act, as opposed to an ordinary disease of life, which is not compensable. Sphabmixay then petitioned this court for review of the Board's decision.
Sphabmixay first argues that the Board applied the wrong legal standard related to his burden of proof. Because we find the Board correctly interpreted and applied the Act, Sphabmixay's claim fails. Second, he claims that the Board violated his rights under the Equal Protection and Due Process Clauses of the United States Constitution in finding that he failed to prove a compensable claim under the Act. First, Sphabmixay has not adequately briefed this issue. But moreover, Sphabmixay's constitutional assertions are based on the faulty premise that K.S.A.2014 Supp. 44–5a01(d) establishes a separate means of proving a compensable claim. That statute deals only with apportionment once an occupational disease is established. The problem here is no occupational disease was ever established.
Accordingly, the Board's decision is affirmed.
Factual and Procedural History
Except for a few intermittent layoff periods and periods of short-term disability, Sphabmixay worked as a production operator at Rubbermaid's plastic plant in Winfield, Kansas, from 1984 until early 2012. His job duties included operating a machine that uses impact-and-heat molding to cut and merge plastic and foam products as part of the process for manufacturing plastic coolers. He was not involved in the actual production of the foam or plastic and did not use glue—processes known to release chemicals that can irritate asthma. Sphabmixay never used respiratory protection but did use other personal protective equipment.
For our purposes, it is undisputed that since at least 2004, Sphabmixay has suffered from asthma. This required him at times to go to his car during breaks to use a breathing treatment machine that plugged into his cigarette lighter. When confronted by his supervisor who was concerned when he witnessed this practice in the summer of 2010, Sphabmixay told him his asthma problems were not work related. His asthma eventually developed into COPD and ultimately led Sphabmixay to resign from his job with Rubbermaid because he was incapable of performing his work at the plant. This appeal centers on what caused Sphabmixay's lung condition.
In October 2012, Sphabmixay filed a claim with the Kansas Department of Labor, Division of Workers Compensation, alleging his “exposure to fumes, dust and chemicals in [Rubbermaid's] plastic mold factory” caused his “lung disease, breathing disorder and occupational asthma.” In March 2014, an ALJ conducted a full hearing on Sphabmixay's claim.
As evidentiary support for his position that asthma was compensable as an occupational disease under K.S.A.2014 Supp. 44–5a01, Sphabmixay relied upon his own testimony as well as the testimony and records of some of his doctors. This included Dr. John Mark Winblad, his long-time family doctor, and Dr. William Leeds, a pulmonologist who saw Sphabmixay once in February 2013 at the request of his counsel. Notably, the ALJ did not consider the opinion or records of Dr. Eldika, a pulmonologist. Dr. Eldika has apparently treated Sphabmixay's lung condition since 2009, upon the referral of Dr. Winblad, who was unsure if Sphabmixay had asthma. Sphabmixay testified that Dr. Eldika diagnosed him with occupational asthma. But the law precluded the ALJ from considering Dr. Eldika's causation opinion because Dr. Eldika did not testify and Rubbermaid objected. See K.S A. 44–519 (providing “no report of any examination of any employee by a health care provider ... shall be competent evidence in any proceeding for the determining or collection of compensation unless supported by the testimony of such health care provider, if this testimony is admissible, and shall not be competent evidence in any case where testimony of such health care provider is not admissible”); K.A.R. 51–3–5a (recognizing medical records “shall not be considered as evidence when the [ALJ] makes a final award in the case, unless all parties stipulate to the reports, records, or statements or unless the report, record, or statement is later supported by the testimony of the [doctor] making the report, record, or statement”). This meant that Sphabmixay primarily relied on Dr. Leeds' testimony to prove causation. Highly summarized, Dr. Leeds testified that “ ‘[f]rom reviewing the records [he] felt that [Sphabmixay's] exposure to a multiplicity of chemicals, vapors and fumes at his workplace was the proximate cause of his respiratory problem.’ “ In sum, Dr. Leeds “assigned an 85% ‘disability’ ... which he attributed to [Sphabmixay's] employment.”
In support of its position that Sphabmixay's claim was not compensable as an occupational disease under the Act, Rubbermaid challenged the foundation for Dr. Leeds' opinion and relied on the contrary opinion of its causation expert, Dr. Allen Parmet. In April 2014, Dr. Parmet, who has over 35 years of experience in occupational respiratory issues, conducted an independent medical examination of Sphabmixay at Rubbermaid's request. In his resulting report, Dr. Parmet noted the various causes of asthma can include “a specific antigen such as isocyanate [a common workplace chemical], a virus, or some other environmental trigger.” Dr. Parmet pointed out that persons such as Sphabmixay who test negative for an antibody to isocyanate exposure are not sensitized to it, meaning that chemical cannot be a cause. Dr. Parmet also acknowledged that exposure to specific known polymers used in Rubbermaid's plant will irritate a person with asthma. However, Dr. Parmet stressed that any such asthma attack will subside as soon as the exposure to such irritants stops. Dr. Parmet then explained, “[i]t is apparent that Mr. Sphabmixay's condition has persisted long after his exposure stopped. Therefore an occupational agent cannot be the cause of his condition.” Dr. Parmet suggested as other possible causes: Sphabmixay's known allergies or sensitivities to other environmental asthma triggers such as tree pollens; gastroesophageal reflux (GERD), which Dr. Parmet characterized as the “one major potential cause uninvestigated” in this case; and Sphabmixay's noncompliance with medications prescribed when he sought treatment for asthma flareups, combined with the delay in his treatment until his asthma developed into COPD. In conclusion, Dr. Parmet explained:
“I would agree that he has severe asthma with COPD but the specific cause cannot be stated to be occupational in nature. There is no objective evidence to support this, only an association by recollection. To the contrary, there are specific objective findings of non-occupational causes as well as uninvestigated causes such as GERD. The non-occupational causes must be considered the prevailing factor.”
Rubbermaid also presented evidentiary depositions of several of its employees and contractors who variously testified about: Rubbermaid's environmental-protection protocols for worker safety, regular air-quality control testing performed at the plant, the lack of other Rubbermaid employees who developed asthma or complained about machines emitting fumes, and/or Sphabmixay's own actions and representations that his asthma was not work related. Rubbermaid also introduced forms that Sphabmixay submitted to obtain short-term disability benefits in 2011 and 2012, on which Sphabmixay indicated his lung condition was not caused by work and he did not plan to file a workers compensation claim.
In its subsequent written “award,” the ALJ concluded Sphabmixay did not meet his burden of proving that his lung condition is compensable under the Act. In support, the ALJ explained:
“There is little question that fumes at [Rubbermaid's] facility caused [Sphabmixay's] asthma to become worse while [Sphabmixay] was in the facility. [Sphabmixay] was unable to continue working for [Rubbermaid] for that reason.
“But K.S.A. 44–5a01 requires that [Sphabmixay] show that the asthma [arose] out of and in the course of employment and that [Sphabmixay] actually contracted asthma from working for [Rubbermaid]. The [ALJ] is not convinced that [Sphabmixay] has met his burden to show that. Dr. Leeds did not point to any chemical or other substance in [Rubbermaid's] facility that caused [Sphabmixay's] asthma. While [Sphabmixay's] asthma got worse when he was in [Rubbermaid's] facility, that only proves that something in the facility temporarily aggravated [Sphabmixay's] asthma. That does not prove that the conditions in the facility caused claimant's underlying asthma.
“K.S.A. 44–5a01 also requires that [Sphabmixay] show there is a particular hazard in the employment that is in excess of the hazard of the disease in general. [Sphabmixay] must show that his asthma resulted from a special risk of asthma connected with his employment. [Sphabmixay] has shown that he worked around hot plastic and that there were fumes in [Rubbermaid's] plant. But the testing done by [Rubbermaid] showed that the air quality in the facility was within established standards, and there was no evidence that any other workers had developed asthma. There is not a showing by [Sphabmixay] that his asthma resulted from a special risk associated with his employment.
“[Sphabmixay] has not convinced this [ALJ] that his asthma actually was caused by working for [Rubbermaid]. There is no doubt [Sphabmixay's] asthma was temporarily made worse during the time he was actually in [Rubbermaid's] facility. But this [ALJ] is not convinced that the fumes in [Rubbermaid's] facility caused [Sphabmixay] to develop asthma.
“The [ALJ] finds [Sphabmixay] did not meet with disability by occupational disease on each and every working day through January 10, 2012, and the alleged occupational disease did not arise out of and in the course of [Sphabmixay's] employment with [Rubbermaid].”
Sphabmixay timely applied for the Board's review of the ALJ's decision. The parties subsequently presented extensive briefing and oral arguments on their opposing positions on the various issues raised in that appeal.
A majority of the Board thereafter entered a 29–page, single-spaced order detailing the evidence it considered in support of its agreement with the ALJ's findings and conclusion that Sphabmixay did not sustain his burden of proving he suffers from an occupational disease compensable under the Act. Sphabmixay then timely petitioned this court for review of the Board's decision.
Additional facts will be discussed as necessary to the analysis.
Analysis
Final orders of the Workers Compensation Board are subject to review by this court under the Kansas Judicial Review Act (KJRA), K.S.A.2014 Supp. 77–601 et seq. , as amended. See K.S.A.2014 Supp. 44–556(a). Sphabmixay properly invoked this court's jurisdiction by filing a timely petition for judicial review from the Board's decision in compliance with K.S.A.2014 Supp. 77–614. See Supreme Court Rule 9.04 (2014 Kan. Ct. R. Annot. 90).
The KJRA limits this court's jurisdiction to the issues Sphabmixay identifies in his petition. See K.S.A.2014 Supp. 77–614(b)(6) (requiring petitioner to “set forth ... the petitioner's reasons for believing that relief should be granted”); Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 406, 204 P.3d 362 (2009) (recognizing issues so stated generally define the parameters of the reviewing court's jurisdiction). Sphabmixay states two reasons in his petition for why he believes this court should grant relief:
(1) The Board “erroneously interpreted and applied the law by requiring the claimant to identify the specific chemicals from burning plastic fumes and heated polyethylene in respondent's place of employment”; and that erroneous interpretation “renders a portion of the statutory scheme for compensation of non-occupational conditions aggravated by occupational disease injuries in the workplace a ity, and imposes a standard of proof not required at law that is unreasonable, arbitrary and capricious.”
(2) This erroneous interpretation of the law denies Sphabmixay “a remedy in violation of due process and equal protection of the law.”
The issue statements in his brief on appeal essentially mirror these statements.
Accordingly, this court's jurisdiction under the KJRA is limited to determining: (1) whether the Board applied the wrong legal standard related to his burden of proof; and (2) whether the Board violated equal protection and due process in finding Sphabmixay failed to prove a compensable claim under the Act. These issues are considered in turn below.
The Board did not apply the wrong legal standards.
Sphabmixay maintains the ALJ and Board misapplied the law in finding he failed to prove his exposure to heated plastic fumes in his work caused his worsening lung condition. See K.S.A.2014 Supp. 77–621(c)(4) (noting reviewing court may grant relief under KJRA if it determines “the agency has erroneously interpreted or applied the law”).
This court conducts unlimited review over questions of law raised in an appeal brought under the KJRA. See Pitts v. Kansas Dental Bd ., 267 Kan. 775, 776, 987 P.2d 348 (1999). Likewise, this court conducts unlimited review to the extent that resolution of this legal question requires statutory interpretation. See Milano's Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013). In this regard, our legislature directs that the Act is to be “liberally construed only for the purpose of bringing employers and employees within the provisions of the [A]ct. The ... [A]ct shall be applied impartially to both employers and employees in cases arising thereunder.” K.S.A.2014 Supp. 44–501b(a) ; see Fernandez v. McDonald's, 296 Kan. 472, 479–80, 292 P.3d 311 (2013).
Sphabmixay raises three subissues in support of his general contention that the Board applied the wrong legal standards in finding he failed to prove he was entitled to compensation for his lung condition as an occupational disease under K.S.A.2014 Supp. 44–5a01. His first two arguments center on the following subsection of that statute:
“ ‘Occupational disease’ shall mean only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged. ‘Nature of the employment’ shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee was engaged, there is attached a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general. The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk. Ordinary diseases of life and conditions to which the general public is or may be exposed to outside of the particular employment, and hazards of diseases and conditions attending employment in general, shall not be compensable as occupational diseases.” K.S.A.2014 Supp. 44–5a01(b).
Sphabmixay first complains the Board (and the ALJ before it) imposed an additional proof requirement not found in K.S.A 2014 Supp. 44–5a01 or caselaw by “holding occupational disease claimants to a standard of proving which chemicals they are exposed to and how much of each chemical they are exposed to in an environment of fumes and dust at work in order to demonstrate compensable asthma and COPD ... claims.” In support of this contention, Sphabmixay cites only the Board's general recognition that “K.S.A. [2014 Supp.] 44–5a01 requires that claimant show that the asthma arise out of and in the course of employment and that claimant actually contracted asthma from working for respondent.”
We hold that the Board's decision belies Sphabmixay's contention that he was held to the wrong burden of proof. On the contrary, the Board's order reveals that it was well aware of the various evidentiary burdens K.S.A.2014 Supp. 44–5a01(b) places upon a claimant seeking compensation for an occupational disease under the Act. For example, the Board found the evidence did not establish that Sphabmixay's employment at Rubbermaid's plant “exposed him to a particular and peculiar hazard of developing asthma that distinguishes such employment from other occupations and employments, and which creates a hazard of such disease in excess of the hazard of such disease in general.” In other words, the Board found Sphabmixay's asthma did not result from the “course of his employment” with Rubbermaid as required to be compensable as an occupational disease under K.S.A.2014 Supp. 44–5a01(b). The Board also found Sphabmixay failed to demonstrate “his asthma was anything more than an ordinary disease of life and conditions to which the general public is or may be exposed to outside of the particular employment. The evidence does not specifically link asthma with the chemicals and other substances to which [Sphabmixay] says he was exposed.” This finding follows, almost verbatim the limiting statutory language set forth above. In discussing the dearth of evidence concerning what chemicals Sphabmixay was exposed to, the Board was simply commenting on the type of evidence that might have led to a contrary conclusion. It was not imposing an additional burden.
Second, Sphabmixay complains that in concluding he did not meet his burden, the Board erroneously discounted Dr. Leeds' causation opinion and relied on Dr. Parmet's opinion, the foundation of which Sphabmixay questions. Indeed, the Board discounted Dr. Leeds' opinion. But it did so due to the myriad presumptions, assumptions and/or suppositions upon which it was based. For example, the Board pointed out that Dr. Leeds admittedly had never been to Rubbermaid's plant, conducted any testing, or otherwise been informed of what specific chemicals, vapors, or fumes were actually present at Rubbermaid's facility or to which Sphabmixay was exposed. The Board further took note of Dr. Leeds' observation that “it was ‘certainly plausible’ [Sphabmixay] was exposed to” irritating chemicals and solvents outside of work, as well, and that his condition “is exacerbated by non-work situations.” And finally, the Board observed that in discussing Sphabmixay's diagnosis of COPD from asthma, which “likely predated 2009,” Dr. Leeds disagreed with the suggestion that it was not due to work because he had “no reason not to think that the exposures that we're assuming didn't have something to do with his lung dysfunction.' “ Thus, the Board stressed that Dr. Leeds' “opinion was premised on [Sphabmixay] having worked extensively around chemicals and the probability such exposures were the most likely cause of his COPD.” The Board then concluded:
“Dr. Leeds' opinions are based on non-verifiable assumptions. Dr. Leeds acknowledged he was ‘assuming’ extensive workplace chemical exposure. Dr. Leeds did not know what chemicals, vapors, fumes or irritants claimant may have been exposed to or the concentration of any such chemicals, vapors, fumes or irritants. Dr. Leeds' opinion is premised on the belief that the ‘record’ established [Sphabmixay] was exposed to multiple chemicals, vapors and fumes, and that any such chemicals, vapors and fumes could cause [Sphabmixay]'s condition, which could be progressive and could be exacerbated by further exposures. However, according to Dr. Leeds, the ‘record’ was ‘Work at the Rubbermaid plant.’
“[Rubbermaid] is correct that Dr. Leeds' testimony is distilled to the ‘assumption that claimant was exposed to some type(s) of chemicals at Rubbermaid that were the type that could cause exacerbations of a respiratory condition if they were at sufficient levels ... [and] that since [Sphabmixay] was exposed to chemicals, fumes and dust during his employment, such exposure caused him to develop asthma.’ Dr. Leeds even acknowledged this is the sort of post hoc, ergo propter hoc logic denounced in Kuxhausen [v. Tillman Partners, 291 Kar. 314, 241 P.3d 75 (2010) ] and Chriestenson [v. Russell Stover Candies, 46 Kan.App.2d 453, 263 P.3d 821 (2011), rev. denied 294 Kan. 943 (2012) ]. Dr. Leeds' opinions are similar to the rejected opinions of Dr. Kanarek in Kuxhausen and Dr. Ziem in Chriestenson. ”
By taking issue with these findings and attacking Dr. Parmet's opinion, Sphabmixay essentially invites this court to reweigh the evidence or assess credibility. In other words, he wants this court to review the sufficiency of his evidence on the issue of causation, which this court cannot do for the reasons already explained above. Even if this court could reach the issue, Sphabmixay has not adequately briefed, and therefore he has waived any challenge to the Board's finding that Dr. Leeds' opinion is legally insufficient for the same reasons the causation opinions were deemed legally insufficient in Kuxhausen and Chriestenson. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011) (noting issues not briefed by appellant are deemed waived and abandoned).
In his third argument, Sphabmixay contends the Board erroneously overlooked K.S.A.2014 Supp. 44–5a01(d) in finding Sphabmixay failed to prove his lung condition is compensable under the Act. That subsection provides:
“Where an occupational disease is aggravated by any disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated or in any wise contributed to by an occupational disease, the compensation payable shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death, as such occupational disease, as a causative factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants.” (Emphasis added.) K.S.A.2014 Supp. 44–5a01(d).
See Burton v. Rockwell International, 266 Kan. 1, 967 P.2d 290 (1998) (discussing how disability is apportioned under this same language as found in a prior version of the Act).
According to Sphabmixay, our Supreme Court interpreted this statutory language in Burton to hold that “even assuming Burton had a noncompensable disability before his workplace aggravation, he then had a compensable case when that preexisting noncompensable condition was made worse through the increased aggravation caused by the work exposure.” Sphabmixay then proclaims that he, too, proved a compensable claim because “the totality of the competent evidence” of the worsening of his lung condition due to workplace fumes is stronger than that presented by the claimant in Burton. Put another way, Sphabmixay contends: “Once the [ALJ] found [Sphabmixay] had to leave his workplace due to his asthma condition, which even appellee's expert Dr. Parmet admitted would cause [Sphabmixay] to have aggravation of his asthma symptoms by workplace irritants, under Burton, [he] was entitled to an award for his total disability.”
Not only does Sphabmixay misinterpret the holding in Burton, but, more importantly, his argument fails under the plain language of K.S.A.2014 Supp. 44–5a01(d). As emphasized above, subsection (d) is triggered only if a claimant first establishes either:
• He or she had an occupational disease (as defined in subsection [b] ) that was then aggravated by a noncompensable disease or infirmity, or,
• He or she had had a noncompensable disability or death that was aggravated, prolonged, accelerated, or otherwise contributed to by an occupational disease.
In either case, proof of an occupational disease as defined under K.S.A.2014 Supp. 44–5a01(b) is required. In Burton, there was apparently no dispute that the claimant was “permanently and totally disabled from adult-onset asthma and bronchitis caused by both smoking and dirt, dust, and chemical fumes at his place of employment.” 266 Kan. at 2. Here, on the other hand, Rubbermaid has always disputed any suggestion that Sphabmixay's employment caused his lung condition. And again, the Board held Sphabmixay failed to meet his burden to prove otherwise. Burton, therefore, is inapposite. And K.S.A.2014 Supp. 44–5a01(d) does not, as Sphabmixay seems to believe, provide that a claim for asthma is compensable under the Act simply upon showing that a claimant suffered from asthma that was aggravated by his or her work conditions.
This court recently rejected a somewhat analogous argument in Moore v. Cimarex Energy Co., Inc., No. 110,192, 2014 WL 2747644, at *5 (Kan.App.2014), rev. denied 301 Kan. –––– (2015). In that case, the claimant also sought compensation under the Act for his asthma, which he alleged developed as a result of his work servicing oil wells for Cimarex. The ALJ and Board denied that claim for lack of persuasive proof that his intermittently serious asthma is an “ ‘occupational disease’ “ as opposed to an “ ‘ordinary disease of life’ “ under K.S.A.2013 Supp. 44–5a01. 2014 WL 2747644, at *2–3. On appeal, the claimant alternatively argued, in pertinent part, that the Board improperly applied the law regarding the aggravation of a preexisting condition. Instead of relying on K.S.A.2014 Supp. 44–5a01(d) as Sphabmixay does here, the claimant in Moore argued the Board misapplied the law in not finding he proved his asthma was compensable under K.S.A.2013 Supp. 44–508(f)(2) by showing “the aggravation of his preexisting condition caused a permanent change in the physical structure of his body.” 2014 WL 2747644, at *5. In rejecting that argument, this court noted the claimant failed to prove his asthma was an “occupational disease” under K.S.A.2013 Supp. 44–5a01 and did not otherwise claim he suffered an “accident” or “repetitive trauma”; so he failed to prove he suffered an “injury” or “[p]ersonal injury” as those terms are defined by K.S.A.2013 Supp. 44–508(f)(1). 2014 WL 2747644, at *5. Thus, this court found irrelevant K.S.A.2013 Supp. 44–508(f)(2), which addresses when an “injury” is or is not compensable where, for example, the injury “ ‘aggravates, accelerates or exacerbates a preexisting condition or renders a preexisting condition symptomatic.’ “ 2014 WL 2747644, at *5.
Applying this same reasoning here, we hold Sphabmixay has not demonstrated the Board misapplied the law in finding that he failed to establish a compensable occupational disease claim under K.S.A.2014 Supp. 44–5a01 based on the aggravation of his asthma by his work at Rubbermaid.
The Board's decision did not unconstitutionally deny Sphabmixay due process or equal protection of the law.
In his second issue on appeal, Sphabmixay argues that denying him a remedy under K.S.A. 44–5a01(d) is contrary to the purposes of the Act and the denial of his rights to a remedy at law is violative of his constitutionally protected rights to due process and equal protection of the law. Rubbermaid responds that Sphabmixay fails to raise a valid constitutional issue.
This constitutional challenge is within the scope of review under the KJRA. See K.S.A.2014 Supp. 77–621(c)(1) (noting court has authority to grant relief under KJRA where “[t]he agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied”).
We first note that the Board found Sphabmixay abandoned his constitutional challenge below by failing to brief it. Likewise, his briefing of this issue on appeal is equally as deficient. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013) (noting point raised incidentally in brief and not argued therein is deemed abandoned). For example, he complains his constitutional rights to due process and equal protection of the law were violated but does not bother citing authority concerning from where those rights derive or how they generally apply in this agency action.
But Sphabmixay's argument here is simply a continuation of his third subissue discussed above. In short, he argues the evidence shows his exposure to burning plastic fumes at work exacerbated or aggravated his condition. He argues that the Board's holding that he did not prove the precise type and quantity of chemical or fumes to which he was exposed in the absence of such a requirement under the law, or because he is of Southern Asian descent, which Dr. Parmet noted made him more prone to develop asthma, denied him a remedy, thereby denying him due process and equal protection of the law.
The sole authority cited by Sphabmixay in support of this constitutional argument is Stephenson v. Sugar Creek Packing, 250 Kan. 768, 830 P.2d 41 (1992). In Stephenson, our Supreme Court considered the constitutionality of K.S.A.1991 Supp. 44–510d(a)(23), which provided “compensation for ‘repetitive use conditions occurring in opposite upper extremities' shall be computed as separate scheduled injuries.” 250 Kan. at 768–69. The Stephenson court held the statute's discrimination “against an injured worker based solely on whether the injury resulted from ‘repetitive’ rather than ‘a single’ trauma is neither a fair nor reasonable distinction.” 250 Kan. at 782. Because that distinction “is discriminatory, arbitrary, and without rational basis,” our Supreme Court deemed the statute “unconstitutional as a violation of the equal protection clause of the United States Constitution.” 250 Kan. at 782.
As Rubbermaid points out, however, Sphabmixay fails to demonstrate how the holding in Stephenson relates in any way to his case, except perhaps its citation to the rational basis standard for reviewing such constitutional challenges. Rather, Sphabmixay only summarily suggests the Board lacked a rational basis for denying his claim for compensation under K.S.A.2014 Supp. 44–5a01(d) solely because (1) he did not provide a chemical analysis of which chemicals from the burning plastic aggravated his disabling lung condition, and (2) he is of Southeast Asian origin.
Accordingly, we reject Sphabmixay's constitutional argument for two reasons. First, it is based on the faulty premise that K.S.A. 44–5a01(d) establishes a separate means of proving a compensable claim. As discussed above, that statute deals only with apportionment once an occupational disease is established. Second, Sphabmixay has not adequately briefed this issue.
Affirmed.