*1 44,912 No. Corporation, Johnson, Appellee, Motors General
David Allen Appellant. 585) (433 2dP.
Opinion filed November 1967. Cleave, Jr., Kelly, Mo., Jr., City, M. Van Paul Scott Kansas: Thomas cause, Fabian, City, City, argued E. was with and Bill of Kansas Kansas appellant. on them the brief Wells, City, cause, Lugar, argued Samuel P. Kansas James J. appellee. City, with him on the brief for the Kansas was delivered court opinion The first with the of a are concerned C.: We Harman, of a com- workmen’s district court award. pensation award compensation against received claimant-appellee
The received injury January for an 1965. the respondent-appellant and three-sevenths weeks of temporary for five award week, followed five per per at rate disability total hundred eight four two-sevenths disability permanent cent rate of week. weeks, at the payable made award were for approximately seven Payments filed his with the application then workmen’s Appellee months. requiring order balance due on to K. A. pursuant 44-531. paid to be held before an examiner. The hearing A and, turn, the director denied the application. exáminer court of Wyandotte county, district appealed then and ordered granted redemption. the application *2 This is from that order. appeal contends, first, there is no in a district court
Appellant authority to act under K. S. A. 44-531. the district court has Appellee replies statute, such under the K. S. A. the authority appeal 44-556. Thus lies in answer the construction to be these two statutes. given has never been precise question determined this court. It was Grant, 327, 872, raised in Durnil left open inasmuch as the case was of on disposed other grounds. 44-531, S. A. in its 1955,
K. enacted form provides: payments under (6) “Where an award have been made for not less than six he, months, the workmen’s director when may, his sound discretion, injured determines it is for the better interest the of or dependents employee, require employer the of-a deceased the to redeem all or part any liability workman, his of under such award the to the or workman, dependents equal ninety-five of the deceased of a sum percent (95%) liability award, upon amount of the redeemed under upon party, party by Upon of either notice to the other the director. paying employer discharged liability such amount shall all from portion under this redeemed section.” 44-556, here, insofar as K. A. pertinent provides: “Any party proceedings appeal any decisions, to the all find- ings, rulings county the district or director to court of the where awards upon questions presented the cause action arose of law and fact as transcript proceedings presented, shown of the evidence had and before the director. . . . introduced appeal jurisdiction grant any “On the district court shall or such have any compensation, the director as or to increase or diminish refuse require. justice may . . .” It grounds. argues its contention several upon bases Appellant to order authority knew how vest it had done the district court inasmuch as specifically redemption law, it has not done so yet 1911 compensation in our original so in our current law. authority law sole our first vested
It is true in the district court (Laws chap. redemption only one which could be exercised at This §33). his employer discharge liability employer; option cent total eighty amount an award upon initial absent agreement due. prospectively arbitration, the district court was or tribunal agency authorized to make an award of compensation this was done —and in a civil action—there no being administrative such as a body commission or director in the act. Under provided the 1911 act many the duties and powers which were to be exercised relating court, compensation were vested in district instead aof commission which came into being later (Laws Chap. 232). Hence we think the fact the district court was initially with vested this power is not significant to our present problem. 44-556,
Appellant argues that the
provision
“On any such appeal
the district court shall
jurisdiction
to grant or refuse compen-
sation, or to
increase
dimmish
any award of
justice
may require,” defines and limits the
of that
court upon
inasmuch as the right to order
not specifically mentioned it does not exist.
effect
would have us
the maxim
apply
Expressio unius est exclusio alterius.
*3
Generally, this maxim may be used in the
interpretation
con-
struction of statutes
when
intention of the lawmaking body is
not
S., Statutes,
otherwise clear
C.
(82
§333a).
it is
J.
merely
auxiliary rule of statutory construction which is not
conclusive; it should be
as a
applied only
means of discovering
legislative
manifest,
intent not otherwise
and should never
per-
be
mitted to defeat the plainly indicated
purpose
the legislature.
Accordingly maxim is inapplicable if there is some
reason
special
for
one
mentioning
thing
none for mentioning another which
statute,
is otherwise within the
so that the absence of any mention
of such other will not exclude it. Where the statute contains an
enumeration of certain
to
things which the act
applies
also a
general expression concerning
application
the general
expression may
given
effect if the context shows that the enu-
meration
not
intended to be exclusive.
So
maxim does not
ato
statute
apply
of which
language
may clearly comprehend
many different cases in which some
are
mentioned expressly
way
example,
not as excluding others of a similar nature
S.,
C.
(82
supra, §333b; see also Breedlove v.
General Baking
J.
138 Kan.
and Priestly Skourup,
The extent to which the doctrine should be applied depends in any event on how legislative clearly intent is otherwise expressed. “in emphasizes phrase his sound discretion” as used 44-531, in and asserts its use—the precise phrase not found being elsewhere in the workmen s compensation act—the in- tended to rest within the exclusively sound discretion of the director, workmen s compensation and that his decision is not subject to de novo review by the district court upon appeal. is question free entirely from difficulty view of 44-556.
The latter statute does for an provide to the district court from decisions, and all “any awards findings, rulings of the direc- tor .. . upon questions law and fact as presented shown aby transcript the evidence and proceedings presented, had and introduced before director.” This is broad language. difficult, Indeed it is from the language employed, conceive a wider grant of power. And it is expressed plain, unambiguous terms. Much more used; restrictive language have been 60-2102, example, K. S. A. the legislature specified detail the particular of district type orders which appeals might be taken to this court. The contrast is great.
In performing his duties the workmens compensation director has functions are purely administrative and others which are judicial or quasi-judicial nature. It may be helpful examine his duty with, under 44-531. To start in a contested hearing, the director is forbidden enter a except amounts due past A. (K. 44-525). Payments of are ordered is, weekly payments, that periodically, wages are paid. When, after payments months, made for at least six made, it is essentially a request character of the award in the light of then- existing conditions. Inherently, the employer-respondent has an award, interest in the and in the light end sought to be *4 achieved by the workmens compensation there is a public interest as well. a Conceivably award could far- reaching and in a real consequences very sense the word could a constitute new award. The review and modification of an award as well as (44-528) entitlement to medical treatment are affected. Thus (44-510) redemption terminates rights on both sides. Such an liabilities award is to be made (except security 44-529 where after a doubtful) only under determination the better interest” of the injured “it is for or his de- hearing Some on the matter is type clearly contem- pendents. always and this has custom and The plated, practice. 724 fact,
question to be determined is one of Is a namely, Therefore, for the better of the claimant? interest we think than a the director more mere administrative func- performs tion in this He considers facts duty. as disclosed past by evidentiary hearing. Certainly this is in the nature of a function, judicial and one for which review is appellate appropriate. that injunction legislature the director exercise sound 44-531 discretion in a determination does not militate against judicial Certainly legislature essential nature the function. discernment, a wise and cautious expected good judgment, said as much. of discretion is an element of always The exercise the use of the judicial We do not believe words power. “in intended to establish thereby his sound discretion” scheme on this one nor that it in- procedural question, separate 44-531 tended enactment of to override the plain language Lytle 44-556. In Ross v. Kan. with together that 44-531 must be read other parts
stated court has act. We hold district 44-531 for determine an of an award. contention the before the raises further evidence Initially its order. we are support
trial court was insufficient the findings the well established rule with confronted in a workmen’s compensation a trial court entered case if substantial supported compe on appeal not be disturbed will Service, &Post Brown Well (see tent evidence Jibben case it was stated the term 2d In the 467). 433 P. Jibben means evidence which possesses “substantial evidence” something and which consequence of substance and relevant furnishes sub from which the issues can stantial basis of fact tendered reasonably be resolved. witness who testified at the It hearing. $6,800 he still employed by appellant,
appears earning $7,000 works, $4,200 His wife also year. so per per year, family $11,000. the annual income was approximately He $319.64, month, owed a finance company payable per $26.00 $763.05, month, store department payable owed per on a new automobile purchased bank after his injury the sum $2,600, month. He also owed his father-in-law payable work, lent him money while he was off $600 loan could interest as he able. without He repaid has one child. His
725 wife month. His approximately totaled living expenses His to a doctor. and had ill owed and been daughter pain had a sharp She bronchitis. wife had recovered from just of the condition not sure underneath her and was appellee lung was doctor health; but the her to doctor she was see supposed his on two behind payment out. He was about weeks running usually had into a credit union weekly bills. He been paying his pay out to by payment the end of the month had to draw award, was based initial bills. The of workmen’s not neck; had all of in his neck difficulty to injury appellee’s cleared up. stat- denied application,
Based on foregoing, list of incurred that the bills submitted to ing appeared shelter, accident, and the date of the that appellee’s providing since and food himself his family jeopardy. clothing judge application, stating: The district allowed me, injury I . I think nature of his not known don’t might or to look future it am asked to determine here into the and see what be; respondent this financial such the below I think that man’s condition is discount, award, statutory pay less the be ordered the balance should time, at this will be order.” sum ordering trial court erred in urges knowledge appellee’s physical without condition of his financial condition insufficient the evidence further argues law support requisite finding. as a matter of financial war- instability there was sufficient to showing simply was in his sum better interest. finding rant is, course, to of lump expressed purpose the claimant. think the better interest of We there are several serve could be factors which considered this determi- making possible ones have already been indicated permissible Some nation. court. 149 Pac. arose our Racking
Roberts law at a time when a district judge initial workmen’s his discretion order either paid In this court considering legislative intent payments. periodical stated: rendered court is enforceable . . “. open at once is not modification the condition of execution capacity theory his increase. The manifestly that cases arise which the condition would *6 the would be so that there reason to antici- marked would be little
pate improvement capacity, be the circumstances would giving judgment such would warrant the court in a available as for payments, periodical at once rather than for in an of as award. kind court, judgment is trial to be rendered was left to discretion of the [p. 728.] arriving judgment testimony “In at its as court considers injury, earning capacity, nature of on the duration its effect of incapacity pertinent improvement; likelihood of .cure or all and from brought facts it its attention determines die shall be for whether periodical payments or for which be enforced (p.729.) at once.” In Ross v. Lytle supra, was whether award question temporary subject to In redemption. disability not, that it was holding court referred to Roberts decision as to well decisions in sister states wherein condition of physical factor, the claimant was a in view especially statutory provisions review modification of an award changed based upon physical indicated, As ability. already Kansas it, which is being paid periodically carries with to final prior pay- ment, a continuing right review and modification (44-528) well as the to substantial treatment (44-510), which rights liabilities are terminated commutation. condition,
Although physical the nature of the disability, unques- can tionably be consideration one, and an it important is not the one only upon ordered, sum commutation can be this, the exclusion of In others. support of it need be pointed out the benefits of the statute are available as well to dependents of a deceased In employee. the' “better interest” of phrase claimant, the lawmakers used broad language and that language is entitled to liberal construction to effect the purpose remedial the statute. We hesitate to delineate attempt to all possible factors upon which lump sum based, is there no necessity such effort. Our here problem is whether simply the evidence shown in the record before us is to satisfy sufficient the statute.
We need not recount the evidence. himself probably best summarized it saying was running about two weeks behind on the payment of his bills. If us, the question were before well be held that might evidence of economic hardship necessity was sufficient case economic hardship simply before for future that question leave facts and we state of us on consideration. we think laid down. can be
No inflexible rule circum- or exceptional unusual mind that some legislature had in method from the normal to justify departure stances should exist and liabil- of all rights and termination mat- laboring Without further continuing award. ities under bills paying weeks behind ter about two running we think times as in these or unusual circumstance is not so exceptional sub- hold there is no Accordingly we warrant that departure. and its finding judg- the trial court’s stantial to support evidence ment is reversed.
approved by the court. *7 agree I dissenting part: concurring part J., Fontron, portion and with of this disposition with the ultimate are sup- findings holds that trial court’s the' opinion evidence. competent substantial ported by instance I do not that the district court in this agree 44-531, in a trial determining by act under K. S. A. had redeemed de novo whether the award of should be I dissent Accordingly respectfully payment. No. 1 and such Syllabus part opinion the holding expressed as relates thereto. view, A. the court has miscontrued K. S.
My very simply, other, I 44-556 in relation to each and am not impressed 44-531 and on which the court arrives at reasoning finally with the elaborate its interpretation. dissenting in the joins foregoing concurring J.,
Fromme, opinion.