dissenting: The court has ignored the express provisions of K. S. A. 44-512a and a uniform course of decisions established by at least a dozen cases, including two by which the very claim now sustained was unanimously rejected shortly after the statute was enacted in 1943. (Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 303 P. 2d 168; 181 Kan. 659, 313 P. 2d 267.) The impressive body of rulings thus ignored reflected the legislative intent of the statute that compensation awards shall be promptly paid, and applies to all awards without the slightest qualification. (Miller v. Massman Construction Co., 171 Kan. 713, 237 P. 2d 373.) Such a massive repudiation of our decisions is without precedent, but it made possible by the assertion of a new and doctrinary concept of when an award of compensation is due “in the eyes of the law.” Such a concept is not to be found in the statute or in our decisions, and amounts to nothing less than legislation by judicial fiat.
I am at loss to understand the court’s utter disregard of the plain language of 44-512a, and a reversal of this case is profoundly ill-advised and judicially impermissible. The court admits the $75 item allowed to the Medical Center was specifically itemized in the examiner’s compensation award and ordered paid on January 8, 1968, which award was approved by the director upon the respondent and its insurance carrier’s written request for a review. (K. S. A. 44-551.) No appeal was taken from the director’s award. The court further admits that the respondent and its insurance carrier, as well as its counsel, were fully aware that the $75 item for physical therapy to the claimant’s back was incurred at least one year after the insurance carrier paid the medical expenses for treatment in 1966 in the amount of $356.50. The court further admits the respondent and its insurance carrier failed and refused to pay the $75 item within twenty days after service of the claimant’s written demand. Those facts should affirm this case. The pertinent provisions of 44-512a read:
“That if any compensation awarded ... or any installment thereof shall not he paid . . . when due, and . . . payment of said demand *991is thereafter either refused or not made . . . then the entire amount . . . shall become immediately due and payable and said employee . . . may maintain an action . . . for the collection thereof in like manner as for the collection of a debt.” (Emphasis supplied.)
The real key to why the court has gone astray in this case is to be found in the last sentence of paragraph 3 of the syllabus and the corresponding portion of the opinion. There the court reveals it is not really trying to apply the provisions of 44-512a to the unpaid medical award in this case, but is announcing instead its new concept of when payment of an award of compensation is due “in the eyes of the law.” The court does not elaborate on its new doctrine, nor does it indicate how far — and how unwisely— it intends to stray from appropriate judicial bounds of the statute. In applying the concept, the court simply concludes the $75 item was not due “in the eyes of the law” when the written demand was served and was not effectual to accelerate payment of the entire amount of compensation awarded the claimant. The court’s conclusion in this case has thrown the law of this state into a demoralizing state of uncertainty.
The major portion of the court’s opinion is devoted to setting forth the respondent and its insurance carrier’s ingenious attempt to shift full responsibility to the accounting procedures of the Medical Center and their erroneous assumption of confusion in credits and balances with respect to the claimant’s medical account. Under the statute, the respondent’s guideline was the award itself, and it is new law to say that a third party’s alleged error can get a respondent’s insurance carrier “off the hook.” Be that as it may, had the court looked further, it would have found the insurance carrier’s own records disclosed it owed the $75 item set forth in the award and that the item had not been paid. The insurance carrier’s fallacious position has contributed in a large measure to its own predicament, and I cannot conceive how the court can justify its conclusion by assuming that a payment made before the $75 item, was ever incurred constituted a defense “in the eyes of the law.”
As indicated, the very claim now sustained was unanimously rejected in Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 313 P. 2d 267. There the respondent contended as a legal excuse for failure to make payment of an award for medical expenses, the following: that payment was not refused but was delayed without cause due to confusion of credits and balances of the amount *992awarded the doctor. The respondent elected to disregard entirely the demand for payment of the unpaid compensation and, as here, made no attempt to pay the balance of the award within the two-weeks period (now twenty days). The opinion cites the Miller case, and states that the burden of avoiding the effects following a written demand made in accordance with the terms of the statute was upon the employer and not the employee. It was further contended that the provisions of 44-512a should be construed as contemplating the phrase “payment of said demand, is either refused or not made” as meaning “payment of said demand is refused or without cause is not made.” The contention was rejected, and it was said:
“. . . We think such a construction would read into the statute something that is not there. Even so there is no necessity for laboring the point. The answer to this contention appears in syllabus 3 and corresponding portions of the opinion (p. 289) where it is held and said that a failure to pay any part of the compensation awarded when due, including medical expenses, within two weeks from the date of service of the written demand, makes the entire amount of compensation awarded immediately due and payable.” (Emphasis supplied.) (1. c. 665.)
It is unnecessary to cite our many cases construing 44-512a. They may be found under the appropriate section of Kansas Statutes Annotated. They are to the effect, without deviation, that the provisions of the statute are remedial in character and deprive the employer and his insurance carrier of no vested rights; that they supplement existing remedies made available to the workman and give him the right to maintain, and a court the power to hear and determine an action commenced to enforce payment; that the burden of avoiding effects following service of a written demand is upon the employer and his insurance carrier and not the workman, and that it is no defense payment was delayed without cause due to an alleged bookkeeping error of a third party.
I would affirm the judgment of the district court.
O’Connor, J., joins in the foregoing dissent.