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No. 123,376

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CAROLYN L. MILLER,

Appellant,

v.

KVC BEHAVIORAL HEALTHCARE, INC.,

d/b/a KVC PRAIRIE RIDGE HOSPITAL,

Appellee.

SYLLABUS BY THE COURT

Since a preliminary hearing order under K.S.A. 44-534a in a workers 

compensation case is nonbinding and essentially nonappealable, it does not satisfy the 

elements of collateral estoppel and has no preclusive effect in subsequent proceedings.

Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion filed January 28, 2022. 

Reversed and remanded for further proceedings.

Robert A. Bruce and Daniel L. Doyle, of Doyle & Associates LLC, of Kansas City, for appellant. 

Vaughn Burkholder and Eric Turner, of Foulston Siefkin LLP, of Overland Park, for appellee.

Before MALONE, P.J., POWELL and CLINE, JJ.

CLINE,J.: KVC Behavioral Healthcare, Inc. (KVC) terminated Carolyn Miller for 

cause a few weeks after she filed a workers compensation claim. Miller sued KVC for 

wrongful termination while her workers compensation claim was pending. After the 

administrative law judge (ALJ) preliminarily determined KVC terminated Miller for 

cause and denied Miller temporary workers compensation benefits, Miller and KVC

settled her workers compensation claim. The parties agreed the settlement only resolved 
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the workers compensation claim, and Miller was not giving up any rights in her wrongful 

termination civil suit.

After the workers compensation settlement, KVC amended its answer in the civil 

suit to assert new affirmative defenses of res judicata, claim preclusion, collateral 

estoppel, and issue preclusion. It then moved for judgment on the pleadings, asserting the 

doctrine of collateral estoppel barred Miller's claim for wrongful termination because the 

issue of whether KVC terminated Miller for cause was already litigated and decided as 

part of her workers compensation claim. The district court granted KVC's motion and 

dismissed Miller's civil suit. 

We find the court erred in dismissing Miller's civil suit because the ALJ's order 

entered under K.S.A. 2019 Supp. 44-534a was preliminary, nonbinding, and 

nonappealable, and thus could not satisfy the requirements of collateral estoppel. We 

reverse the dismissal of Miller's civil suit and remand the matter for further proceedings.

FACTUAL BACKGROUND

Miller worked for KVC as a behavioral health tech, assisting children with 

developmental and behavioral issues. On May 23, 2019, she injured her back at work 

while playing with the children in a "'bouncy house'" during an event to celebrate the end 

of the school year. She informed her supervisor of the injury and received authorized 

medical treatment as a result. She was kept off work for two days and given work 

restrictions. 

After Miller returned to work, she alleges one of her supervisors repeatedly asked 

her about the workers compensation benefits she was receiving. On June 18, 2019, Miller 

says he became visibly upset after she told him she was still receiving benefits checks. 

Later that day, Miller's direct supervisor, Tanise Smith, called Miller into a meeting and 
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terminated her employment. Smith said KVC was discharging Miller for an incident that 

occurred on May 4, 2019, and three absences, all of which occurred before Miller's work 

injury.

Miller sued KVC for wrongful termination on August 13, 2019, alleging KVC 

discharged her because she exercised her rights for workers compensation benefits under 

the Kansas Workers Compensation Act. KVC answered on October 15, 2019, generally 

denying Miller's claim.

On October 23, 2019, a preliminary hearing was held under K.S.A. 2019 Supp. 

44-534a in Miller's workers compensation case to address Miller's eligibility for 

temporary total disability (TTD) compensation. The ALJ found KVC legitimately 

terminated Miller for cause and denied her request for TTD benefits. In support of its 

findings, the ALJ noted that in the two years before Miller's injury, KVC had written up 

Miller several times for workplace violations including poor attendance, insubordinate 

behavior, and failure to follow protocol with a disruptive student. The ALJ also pointed 

out Miller had an adversarial relationship with Smith. 

The ALJ found that the day before the accident, Smith recommended to her 

supervisors that Miller be terminated for excessive absences, the May 4, 2019 incident, 

and Miller's resistance to "'coaching'" for the May 4, 2019 incident. Smith lacked the 

authority to terminate Miller, so her recommendation was passed on to KVC's executive 

director and others in the chain of command for an ultimate decision. The ALJ 

acknowledged the timing of Miller's June 18, 2019 termination tended to suggest an 

association to Miller's injury report. Still, the ALJ found the record showed a history of 

performance problems before the injury to justify termination.
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KVC and Miller settled Miller's workers compensation claim, and a settlement 

hearing was held before a different ALJ on March 3, 2020. After the parties 

acknowledged the terms of the settlement, the ALJ asked Miller's counsel if she wanted 

to make a record of any other matters. In response, Miller's counsel mentioned Miller's 

civil suit. She also clarified, "I just want to make sure that everybody understands that 

well, not only does the judge, the work comp judge, not have jurisdiction over the civil 

suit, that in no way, shape or form are we giving up any rights for the civil suit that is 

currently pending." The ALJ acknowledged he had no jurisdiction over the civil suit, then 

asked KVC's counsel if he had any questions. KVC's counsel responded, "No questions, 

Judge. This is just resolving the workers' compensation case." The ALJ went on to 

approve the workers compensation settlement. 

Several months later, KVC filed an amended answer, adding new affirmative 

defenses of res judicata, claim preclusion, collateral estoppel, and issue preclusion. That 

same day, KVC moved for judgment on the pleadings, arguing Miller's claim for 

wrongful termination was barred by issue preclusion because the issue of whether KVC 

terminated Miller for cause was already litigated and decided at the preliminary hearing 

in Miller's workers compensation case. The district court granted KVC's motion and 

dismissed Miller's lawsuit with prejudice. Miller timely appealed.

ANALYSIS

Miller argues on appeal the district court erred by finding a preliminary hearing

order under K.S.A. 2019 Supp. 44-534a "conclusively determined" her wrongful 

termination claim. KVC counters by asserting Miller is reading a requirement of finality 

into the elements of issue preclusion which it claims does not exist.
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Because the district court considered matters outside the pleadings in rendering its 

decision, we apply the same standard of review as we do for summary judgment. See 

Fairfax Portfolio LLC v. Carojoto LLC, 312 Kan. 92, 94, 472 P.3d 53 (2020); K.S.A. 

2020 Supp. 60-212(d). And since the parties stipulated to the facts, we need only review 

the district court's application of the law to those facts to determine de novo if KVC was 

entitled to judgment as a matter of law based on issue preclusion. See In re Care & 

Treatment of Sigler, 310 Kan. 688, 699, 448 P.3d 368 (2019); Trear v. Chamberlain, 308 

Kan. 932, 936-37, 425 P.3d 297 (2018); In re Tax Appeal of Fleet, 293 Kan. 768, 777, 

272 P.3d 583 (2012).

Our Supreme Court explained the doctrine of res judicata in Jackson Trak Group, 

Inc., ex rel. Jackson Jordan, Inc. v. Mid States Port Authority., 242 Kan. 683, 751 P.2d 

122 (1988):

"The doctrine of res judicata has two aspects: claim preclusion and issue 

preclusion. Claim preclusion prevents parties from relitigating a cause of action that has 

been finally adjudicated. It is founded on the principle that the party, or some other party 

in privity, has litigated or had an opportunity to litigate the same matter in a former action 

in a court of competent jurisdiction. An issue is res judicata when four conditions concur: 

(1) identity in the things sued for, (2) identity of the cause of action, (3) identity of 

persons and parties to the action, and (4) identity in the quality of the persons for or 

against whom the claim is made.

"Res judicata also includes issue preclusion or collateral estoppel, which prevents 

relitigation in a different claim of issues conclusively determined in a prior action. Under 

Kansas law, collateral estoppel may be invoked where the following is shown: (1) a prior 

judgment on the merits which determined the rights and liabilities of the parties on the 

issue based upon ultimate facts as disclosed by the pleadings and judgment, (2) the 

parties must be the same or in privity, and (3) the issue litigated must have been 

determined and necessary to support the judgment. [Citations omitted.]" 242 Kan. at 690-

91.
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As Miller points out, this appeal centers on whether the ALJ's order denying 

Miller's request for TTD benefits satisfied the first element of collateral estoppel. Miller 

contends this "preliminary, non-binding and non-appealable ruling" did not "conclusively 

determine" the issue of why Miller was discharged. KVC says the dispositive issue in the 

wrongful termination case was the same issue the ALJ determined in the workers 

compensation case—whether Miller was terminated for cause—and thus Miller was 

prohibited from relitigating the issue.

The ALJ's order was issued under K.S.A. 2020 Supp. 44-534a, which sets forth 

the procedures for a preliminary hearing to address a TTD benefits request. It provides 

that, except for certain specified jurisdictional findings, "no such preliminary findings or 

preliminary awards shall be appealable by any party to the proceedings, and the same 

shall not be binding in a full hearing on the claim, but shall be subject to a full 

presentation of the facts." K.S.A. 2020 Supp. 44-534a(a)(2). Our court has characterized 

the K.S.A. 2020 Supp. 44-534a preliminary hearing process as merely an "initial 

determination," with the goal being to "temporarily secure prompt compensation while 

the parties proceed with a more thorough exposition of the evidence." See Butera v.

Fluor Daniel Const. Corp., 28 Kan. App. 2d 542, 544, 18 P.3d 278 (2001); Hampton v.

Professional Security Co., 5 Kan. App. 2d 39, 42, 611 P.2d 173 (1980).

Given the statutory restrictions on the potency of a preliminary hearing order 

under K.S.A. 2020 Supp. 44-534a, we do not find such an order "conclusively 

determines" the rights of the parties on an issue based on ultimate facts. Under the 

language of K.S.A. 2020 Supp. 44-534a, the findings made at the preliminary hearing are 

just that, preliminary. And such an avowedly tentative determination of the rights of the 

parties does not carry the determinative weight required to preclude further litigation on

the issue. See Restatement (Second) of Judgments § 13 Requirement of Finality, 

comment g (1982) (noting the preclusive effect of a judgment turns on whether the 
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conclusion reached was "procedurally definite" and "preclusion should be refused if the 

decision was avowedly tentative").

KVC tries to bolster its position by pointing to Griffin v. Dodge City Cooperative

Exchange, 23 Kan. App. 2d 139, 927 P.2d 958 (1996), but it overstates Griffin's holding.

While it is true that this court held in Griffin "[t]he doctrine of collateral estoppel may 

preclude a party in a retaliatory discharge case from relitigating an issue decided in a 

previous workers compensation proceeding," that issue must have been "conclusively 

determined" in the workers compensation proceeding before the decision has a preclusive 

effect. 23 Kan. App. 2d 139, Syl. ¶ 7; see Jackson Trak Group, Inc., 242 Kan. at 690-91. 

The ALJ order was not preclusive since it was, by statute, a nonbinding, nonappealable 

order.

Griffin did not involve a decision on temporary disability benefits made after a 

preliminary hearing. It involved both an ALJ and a district court decision on permanent 

disability benefits; that is, on Griffin's overall workers compensation claim. The ALJ 

awarded Griffin permanent disability benefits because of a work injury, finding Griffin 

permanently disabled and unable to perform his former job duties. Griffin's employer 

appealed to the district court. The district court upheld the ALJ's order, which Griffin's 

employer appealed to this court. Griffin did not cross-appeal. Griffin's employer then

voluntarily dismissed its appeal after it resolved its case with Griffin. 23 Kan. App. 2d at 

142.

After dismissal of the appeal and resolution of the workers compensation claim, 

Griffin filed a retaliatory discharge claim against his employer. Griffin's employer moved 

for summary judgment, and one of the issues was whether Griffin could perform the 

duties of his former job. The district court granted Griffin's employer summary judgment, 

finding Griffin could not perform those job duties. Griffin then appealed, arguing he was 

"'ready, willing and able'" to resume those job duties. 23 Kan. App. 2d at 143. Griffin's 
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employer countered that Griffin was collaterally estopped from claiming he could 

perform his job duties, since the ALJ's award of permanent disability benefits stemmed 

from its finding that Griffin was permanently disabled and could not, in fact, perform 

those job duties. 

This court found Griffin collaterally estopped from relitigating the "'ability to 

work'" issue, noting that both the ALJ and the district court had found Griffin unable to 

perform his job duties. 23 Kan. App. 2d at 143, 150. It also noted that Griffin did not 

appeal the "final order" in his workers compensation proceeding, the district court order.

23 Kan. App. 2d at 149-52. Thus the final order in Griffin (a district court order 

upholding an ALJ's final order), which this court found had preclusive effect, was 

different than Miller's preliminary ALJ order in this case.

KVC also argues Miller should be precluded from litigating why she was 

discharged because she dismissed her workers compensation claim, citing Grimmett v. 

S&W Auto Sales Co., 26 Kan. App. 2d 482, 988 P.2d 755 (1999). Yet Grimmett is also 

distinguishable. Grimmett sued to recover injuries she sustained in an automobile 

accident. One of the defendants, S&W Auto Sales Co., Inc., received summary judgment 

because it had no legal liability for Grimmett's injuries. Grimmett moved to alter or 

amend the summary judgment decision, which was denied. She appealed, but later 

voluntarily dismissed her appeal. 26 Kan. App. 2d at 483-84.

Grimmett refiled her lawsuit against the same parties, alleging the same claims, 

several months later. This court found Grimmett's claims against S&W Auto Sales Co., 

Inc. in the refiled case were barred by res judicata, based on the prior summary judgment 

ruling and Grimmett's dismissal of her appeal of that ruling. When explaining its 

decision, this court noted: "[A] trial court's decision on summary judgment satisfies the 

final judgment on the merits requirement for purposes of claim preclusion when the 
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parties were fully heard, the decision is made with a reasoned opinion, and the ruling is 

subject to appeal or, in fact, reviewed on appeal." 26 Kan. App. 2d at 488.

Thus Grimmett addressed claim preclusion (not issue preclusion) in the context of 

a summary judgment decision (not a preliminary, nonbinding order). It also involved a 

dismissed appeal of that adverse summary judgment decision (not a nonappealable 

order), followed by a duplicate lawsuit asserting the very same claims (not a pending

lawsuit asserting a different claim). Unlike Grimmett, here Miller was not seeking a 

"fresh start" to avoid the adverse ruling which dismissed her claim. 26 Kan. App. 2d at 

488. Indeed, Miller's civil lawsuit was already on file before she received the preliminary 

ruling in the workers compensation case. And she specifically reserved all rights in that 

civil lawsuit when she settled and dismissed her workers compensation case (with no 

objection from KVC).

Res judicata is an important doctrine, grounded in both public policy and common 

sense. Grimmett, 26 Kan. App. 2d at 488 (quoting Reed v. Allen, 286 U.S. 191, 198-99,

52 S. Ct. 532, 76 L. Ed. 1054 [1932]); see Herington v. City of Wichita, 314 Kan. 447, 

458, 2021 WL 5990322, at *7 (2021). It is not a game of "gotcha justice." Infusing a 

preliminary, nonbinding, and nonappealable order with preclusive effect would not serve 

public policy or common sense.

KVC seeks to punish Miller for settling and dismissing her workers compensation 

case, yet it voiced no objection to Miller's recorded reservation of all rights in her civil 

suit as part of that settlement and dismissal. If we agreed with KVC's position that Miller 

waived her right to be fully heard on why she was discharged simply by dismissing her 

workers compensation case after a preliminary order, we would not only discourage 

settlements, but we would also be ignoring the statutory restrictions on the effect of an 

order under K.S.A. 2020 Supp. 44-534a (which is against public policy and common 

sense). And we would encourage parties to stand silent rather than voice their 
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disagreement with an opposing party's recitation of the terms of the parties' settlement 

(also against public policy and common sense).

Since we are reversing the district court's dismissal of Miller's civil case because 

of its mistaken application of res judicata, we need not reach Miller's second argument on 

appeal, which voices an alternative reason for reversal.

Reversed and remanded for further proceedings.