LESLIE FRANCIS NUESSEN, Deceased, Appellant, v. SUTHERLANDS and LUMBERMEN‘S UNDERWRITING ALLIANCE, Appellees.
No. 111,417
Court of Appeals of Kansas
June 12, 2015
(352 P.3d 587)
Michael P. Bandre, of Hoffmeister, Doherty & Webb, LLC, of Overland Park, for appellees.
Before SCHROEDER, P.J., ATCHESON and BRUNS, JJ.
SCHROEDER, J.: In this appeal, the heirs of Leslie Francis Nuessen (Nuessen) claim the Workers Compensation Board (the Board) erred in denying their demand for penalties and attorney fees pursuant to
FACTS
This case arises out of a claim for workers compensation benefits by the heirs of Nuessen who died at work at Sutherlands. The facts of the original claim were well summarized in the decision by another panel of this court in Nuessen v. Sutherlands, No. 110,233, 2014 WL 1612607 (Kan. App. 2014) (unpublished opinion). Those facts are not relevant to this decision, and we find no need to repeat them.
In the original workers compensation claim, the Board issued a final decision on June 28, 2013, affirming the administrative law judge‘s (ALJ) award. Three days after the Board‘s decision, Nuessen sent a demand for compensation on July 1, 2013, for the $25,000 lump-sum death benefit payment plus payment of Nuessen‘s medical and funeral expenses. Nuessen contended
The Board issued an order on February 24, 2014, vacating the penalties awarded by the ALJ for failing to pay the death benefits in a timely fashion while the case was on
ANALYSIS
On appeal, Nuessen argues that the Board erred in finding that
“When an appellant alleges the Board erroneously applied the law to undisputed facts, an appellate court has de novo review of the issue.” Craig v. Val Energy, Inc., 47 Kan. App. 2d 164, 166, 274 P.3d 650 (2012), rev. denied 297 Kan. 1244 (2013). Appellate courts have unlimited review of questions involving the interpretation or construction of a statute, owing “[n]o significant deference” ’ to the agency or Board‘s interpretation or construction. Ft. Hays St. Univ. v. University Ch., Am. Ass‘n of Univ. Profs., 290 Kan. 446, 457, 228 P.3d 403 (2010); see Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013) (“the doctrine of operative construction... has been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books where it will never again affect the outcome of an appeal“).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Nationwide Mutual Ins. Co. v. Briggs, 298 Kan. 873, 875, 317 P.3d 770 (2014). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Cady v. Schroll, 298 Kan. 731, 738, 317 P.3d 90 (2014). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013). Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute‘s language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature‘s intent. Cady, 298 Kan. at 739.
When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1123, 307 P.3d 1255 (2013). The courts must construe statutes to avoid unreasonable or absurd results and presume the legislature does not intend to enact meaningless legislation. Milano‘s Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 501, 293 P.3d 707 (2013). Thus, courts may presume that when the legislature expressly includes specific items in a statutory list, it intends to exclude any items not expressly included in that list. Cole v. Mayans, 276 Kan. 866, 878, 80 P.3d 384 (2003).
A specific statute controls over a general statute. Likewise, a specific provision within a statute controls over a more general provision within the statute. Sierra Club v. Moser, 298 Kan. 22, 54, 310 P.3d 360 (2013) (citing Ft. Hays St. Univ., 290 Kan. at 463).
The right to appeal
“(a) Any action of the board pursuant to the workers compensation act, other than the disposition of appeals of preliminary orders or awards under
K.S.A. 44-534a , and amendments thereto, shall be subject to review in accordance with the Kansas judicial review act by appeal directly to the court of appeals. Any party may appeal from a final order of the board by filing an appeal with the court of appeals within 30 days of the date of the final order. When an appeal has been filed pursuant to this section, an appellee may file a cross appeal within 20 days after the date upon which the appellee was served with notice of the appeal. Such review shall be upon questions of law.“(b) Commencement of an action for review by the court of appeals shall not stay the payment of compensation due for the ten-week period next preceding the board‘s decision and for the period of time after the board‘s decision and prior to the decision of the court of appeals on review.” (Emphasis added.)
Here, giving the common words their common meanings, it is clear the legislature intended Board appeals to be reviewed in accordance with the Kansas Judicial Review Act (KJRA),
Moreover, there is no mention of an automatic stay in
We pause to acknowledge, as Sutherlands argues, the Board has routinely interpreted
We believe it might be helpful to explain why
Prior to the 1993 modifications, the statute read as follows:
“(b) On any such review the district court shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the director as justice may require. No compensation shall be due or payable until the expiration of the time for commencing an action for review and then the payment of past due compensation awarded by the director shall not be payable if, within such time a petition for review, has been filed in accordance with the act for judicial review and civil enforcement of agency actions. Except as otherwise provided by this section, the right of review shall include the right to make no payments of such compensation
until the review has been decided by the district court if the employer is insured for workers compensation liability with an insurance company authorized to do business in this state, if the employer is maintaining membership in a qualified group-funded workers compensation pool under K.S.A. 44-581 through44-591 and amendments thereto, if the employer is maintaining membership in a group-funded pool under the Kansas municipal group-funded pool act which includes workers compensation and employers’ liability under the workers compensation act, or if the employer is currently approved by the director as a self-insurer and has filed a bond with the district court in accordance withK.S.A. 44-530 and amendments thereto. Commencement of an action for review shall not stay the payment of compensation due for the ten-week period next preceding the director‘s decision and for the period of time after the director‘s decision and prior to the decision of the district court on review.” (Emphasis added.)
As such, as the pre-1993 version of the statute did provide for an automatic stay of payment of workers compensation benefits—except specific weekly benefits therein described—if a petition for review was filed within the time allowed for appeal. Thus, in accordance with the pre-1993 version of the statute, any demand filed within 30 days from service of the order was ineffectual as a predicate for a
Because the language prior to the 1993 revision and the judicial interpretation of that revision very clearly provided an automatic stay for workers compensation benefits during the pendency of an appeal, it can be presumed that by deleting the language clearly stating “no compensation shall be due and payable,” the legislature intended to remove the automatic stay for workers compensation benefits. Unfortunately, while there are numerous pre-1993 cases addressing a
The Kansas Supreme Court, while addressing
“The right to an action under
K.S.A. 44-512a occurs when an award becomes the final award of the Board. See Harper v. Coffey Grain Co., 192 Kan. 462, 466, 388 P.2d 607 (1964). An appeal of the award to the appellate courts does not stay the operation of the statute. 192 Kan. at 467, 388 P.2d 607. SeeK.S.A. 44-556 (stating that an appeal of an award to the Court of Appeals does not stay the payment of compensation due).” Acosta v. National Beef Packing Co., 273 Kan. 385, 398, 44 P.3d 330 (2002).
Furthermore, the Kansas Supreme Court went on to state it ” ‘is the declared public policy of the state that compensation awards shall be promptly paid, and [
This reference to
When the Board determined
Next, we acknowledge the Board also found Nuessen‘s demand for payment of death benefits, including the payment of Nuessen‘s medical and funeral expenses, was premature because it was filed 3 days after the issuance of the Board‘s decision. The only case that addresses this issue after the 1993 changes to
We reverse and remand to the Board to determine the penalties owed and Nuessen‘s reasonable attorney fees, if any, under
Reversed and remanded with directions.