Childress v. Childress Painting Co.

REES, J.:

I dissent. By way of introduction, I will briefly express my general understanding of the purpose of our Workmen’s Compensation Act and how that purpose is implemented. In simple terms, workmen’s compensation is a self-enacting insurance plan paid for by the employer whereby injured workers are paid benefits for work-related accidents. It is fair to view it as *141a first party insurance plan. A state administrative agency, headed by the Workmen’s Compensation Director, is charged with the responsibility of administering the plan. That agency supervises workmen’s compensation claims. It also adjudicates disputes concerning eligibility for benefits and extent of disability. Agency decisions may be appealed for review by the courts. Despite the state role, workmen’s compensation is to an important degree a privately administered and funded program. The Workmen’s Compensation Act provides that each employer shall compensate disabled workers by a certain formula of benefits. In practice, the employer usually makes private insurance arrangements to meet his statutory obligations through contracts with insurance companies. An individual employer’s insurance carrier steps into the employer’s shoes and is directly liable to the employer’s injured workers.

The first problem I have with the case at hand concerns the question of appellate jurisdiction, a matter not dealt with in the majority opinion. K.S.A. 1978 Supp. 44-556(c) provides that “[a]ny party to the [compensation] proceedings may appeal from any findings or order of the district court to the court of appeals on questions of law. . . . Such appeal shall be taken and perfected by the filing of a written notice of appeal with the clerk of the district court within twenty (20) days after the final order of said district court . . . .”

When a workmen’s compensation proceeding is the subject of a case before the district court, may an appeal from “any finding or order of the district court” be taken regardless of when made? I would think not. To permit this would be to sanction piecemeal appeals. The words “any party . . . may appeal from any findings or order of the district court” strike me as like the language of K.S.A. 60-2103(1) where it is said “[w]hen an appeal . . . has been timely perfected the fact that some ruling of which the appealing . . . party complains was made more than thirty (30) days before filing of the notice of appeal shall not prevent a review of the ruling.” The first sentence of K.S.A. 1978 Supp. 44-556(c) is descriptive of what may be reviewed and is not descriptive of tfte nature of the district court order necessary to clothe us with jurisdiction. The latter is found in the last sentence of K.S.A. 1978 Supp. 44-556(c) which I read to say there is appellate jurisdiction only after a final order of the district court.

*142My limited research of Kansas law has developed no controlling precedent. This comes as no surprise because, as a practical matter, district court findings and orders in a workmen’s compensation case are not ordinarily made separate from and prior to the entry of the final order.

The issue raised on appeal is whether a particular limitations defense asserted by the employer is dispositive of a deceased’s dependent’s claim. The employer filed a motion to dismiss on the ground that the claimant’s application for hearing had not been filed within three years of the date of the accident. K.S.A. 1978 Supp. 44-534(h). The examiner ordered that the claimant’s application for hearing be dismissed with prejudice. The substance of the district court decision was that this defense was not available because of K.S.A. 1978 Supp. 44-557(c). The district court order was “that the findings and conclusions of the Workers’ Compensation Director are reversed, and the matter is remanded for trial on the merits.” This is a “final order” from which an appeal may be taken? I wonder. Claimant has been neither denied nor granted an award. What we have before us may be in the nature of an interlocutory appeal, a procedure that I do not find available in the absence of statutory authority.

It is plausible to argue that this appeal is like an appeal in a civil action by an unsuccessful movant for pretrial dismissal because of the running of limitations. If that be true, we are without jurisdiction. However, it also is plausible to argue that the district court order in this case is final; that nothing remains undecided by the district court; that the district court case is concluded. If so, perhaps this is an appealable final order even though there is no final determination of this claimant’s compensation proceeding. I am uncertain of the answer. Appellate jurisdiction was not briefed by the parties. It is not addressed by the majority. It should have been.

Aside from the question of appellate jurisdiction, there are areas in which I differ with my colleagues.

The decision of the issues addressed in the majority opinion is essentially determined by the following pertinent statutory language:

“(a) It is . . . the duty of every employer to make ... a report to the director of any accident ... to any employee ... of which the employer has knowledge, which report shall be made . . . within twenty-eight (28) days, after the receipt of such knowledge ....
*143“(c) No limitation of time in the workmen’s compensation act shall begin to run unless a report of the accident as provided in this section has been filed at the office of the director . . . .” (Emphasis supplied.) K.S.A. 1978 Supp. 44-557.

Basic to the claimant’s contentions and the conclusion reached in the majority opinion, the statutory wording “unless a report of the accident as provided in this section has been filed” must be read to say “unless a report of the accident has been filed as provided in this section.” How can “as provided in this section” be transposed and read to apply to, qualify or be descriptive of the twenty-eight days within which the report of accident is to be made? The quoted words of subsection (c) mean what they say: no statutory limitation of time shall begin to run unless a report of accident has been filed. (Query: Did the legislature intend to say “unless a report of the accident is filed”? If so, would there be a change in meaning?) The statute does not abolish time limitations when the employer fails to file a report of accident within twenty-eight days of being notified of the accident, as the majority says, it abolishes time limitations when no report of accident has been filed by the employer. There is no ambiguity. This is plain English language.

Definitions of the word “unless” are what my colleagues and Webster’s and the Merriams’ successors say. The word “unless” is definable as “except on the condition that” or “under any other circumstance than.” Where, as in this case, the condition has been met, or the circumstance has occurred, the question is how to apply K.S.A. 1978 Supp. 44-534(b) which provides that no compensation proceedings shall be “maintained,” not “commenced” (see the proviso clause of K.S.A. 1978 Supp. 44-557[c] and Odell v. Unified School District, 206 Kan. 752, 755, 481 P.2d 974 [1971]), unless an application for hearing has been filed within three years of the accident or within two years of the date of last payment, whichever is later.

K.S.A. 1978 Supp. 44-534(a) discloses that other than with regard to the furnishing of information to injured workers, or their dependents in death cases (see Almendarez v. Wilson & Co., 188 Kan. 303, 305, 362 P.2d 1 [1961]), the good offices of the director and his examiners are brought into play only upon the filing of an application for hearing by an interested party. There is no “lawsuit” until the application for hearing is filed.

As noted in the majority opinion, we have no direct precedent *144controlling our decision. The majority says the three-year limitation period for filing an application for hearing is eliminated by tardy filing of the report of accident. They are mistaken.

The irony of the majority decision is that although compensation may be found to be payable to this particular claimant under the principle that the Workmen’s Compensation Act is to be liberally construed in favor of the worker (Ours v. Lackey, 213 Kan. 72, 79, 515 P.2d 1071 [1973]), the consequence of this decision is in derogation of that very principle. It is upon the filing of the report of accident that the director sends to the injured worker information concerning his rights and entitlement to compensation. If no such information is sent, the one-year limitation for the commencement of a proceeding for compensation (see the proviso clause of K.S.A. 1978 Supp. 44-557) runs against an uninformed and unadvised injured worker. The employer owes no duty to the injured worker to inform him of his rights and entitlement to compensation. He now will not be inclined to file a tardy report earlier than one year following the accident. To permit the one-year limitation to bar the rightful claims of uninformed injured workers surely must be contrary to an intent and purpose to afford compensation benefits to those who are factually entitled.

In my view, two answers to the issue raised in this appeal may be urged. The first possible answer is that K.S.A. 1978 Supp. 44-534(b) overrides the “no limitation of time shall begin to run” language of K.S.A. 1978 Supp. 44-557(c). Without assessment of their merits, it seems to me two arguments might be combined to support this answer. First, the K.S.A. 1978 Supp. 44-534(fe) limitation was enacted at a time (L. 1968, ch. 102, § 7) when the K.S.A. 1978 Supp. 44-557(c) language was already in the statute (L. 1957, ch. 293, § 7); and the later enacted statute controls. The second is that because the proviso clause of K.S.A. 1978 Supp. 44-557(c) speaks of commencement of a proceeding, i.e., initiation of a proceeding, K.S.A. 1978 Supp. 44-557(c) applies to limitations of time within which proceedings may be initiated. It would be argued a distinction is to be drawn because K.S.A. 1978 Supp. 44-534(h) says that proceedings shall not be maintained, i.e., continued, and such construction achieves the result of reconciliation of seemingly conflicting statutory provisions so as to make them harmonious and sensible. See Brinkmeyer v. City of Wichita, 223 Kan. 393, 397, 573 P.2d 1044 (1978).

*145The second possible answer is that urged by the employer and insurance carrier in this case: the consequence of a tardy filing of a report of accident is the tolling of limitations, such as that expressed in K.S.A. 1978 Supp. 44-534(b), for a period of time equal to that from the date of accident to the date of the filing of the tardy report of accident. This answer would achieve a result that reconciles seemingly conflicting statutory provisions on a basis that is equitable to all parties.

In summary, I would question our jurisdiction. If we have jurisdiction, I would reverse because affirmation requires tortured incorrect reading of plain statutory language and, recognizing its proviso, K.S.A. 1978 Supp. 44-557(c) does not eliminate, for all purposes and for all time, either all limitations provided in the Act or the limitation provided by K.S.A. 1978 Supp. 44-534(fe) in particular.

Lastly, a question. In the judicial review and consideration of this case before the district court and us, the director’s view, which is referred to in the majority opinion, has been “lost in the shuffle.” I fail to see that anyone has urged or considered it. Maybe it is correct and controls this particular proceeding.