dissenting: I agree that this court should not be seduced by emotionally compelling arguments, in contravention of a strict application of the law. Moreover, it is not our function to make public policy in derogation of that expressed by the legislature. However, where there are general policy reasons for the subject matter of a statutory provision, we should view the statutory language through the lens of that public policy, i.e., acknowledge the general public policy advanced by the legislature in passing the law.
In K.S.A. 2008 Supp. 44-510k(c), the legislature specifically provided for an allowance of attorney fees and costs by a workers compensation claimant seeking post-award medical benefits. In such a proceeding, the employer will be ordered to pay the additional medical compensation if the additional medical care “is necessary to cure or reheve the effects of the accidental injury which was the subject of the underlying award.” K.S.A. 2008 Supp. 44-510k(a).
The general policy reason behind statutory attorney fee awards is “to deter potential violators and encourage voluntary compliance with the statute involved.” Hatfield v. Wal-Mart Stores, Inc., 14 Kan. App. 2d 193, 199, 786 P.2d 618 (1990); see also Naff v. Davol, Inc., 28 Kan. App. 2d 726, 732, 20 P.3d 738, rev. denied 271 Kan. 1037 (2001) (applying K.S.A. 44-536[g] attorney fee provisions according to its public policy purpose rather than its strict statutory elements). Accordingly, the general policy reason behind 44-510k(c) is to deter employers from violating their duty to pay additional medical compensation where applicable and to encourage employers to voluntarily comply with their statutory duties to fairly compensate the claimant.
In K.S.A. 2008 Supp. 44-510k(c), the legislature initially combines the allowance as “attorney fees and costs.” I cannot divorce the public policy reasons for the attorney fee award from that applicable to the cost award. In addition to recognizing the claimant’s need for an attorney to successfully pursue additional medical benefits from a recalcitrant employer, the legislature would surely recognize that any meaningful hearing on the need for post-award medical care would involve expert medical testimony, in one form *366or another. Allowing the recovery of attorney fees, but denying the recovery of the cost to obtain the evidence that the attorney needs to be successful, does not further the general public policy of deterrence and encouragement.
In my view, the foregoing public policy interpretation can be reconciled with the language added to the statute in 2002:
“As used in this subsection, ‘costs’ include, but are not limited to, witness fees, mileage allowances, any costs associated with reproduction of documents that become a part of the hearing record, the expense of making a record of the hearing and such other charges as are by statute authorized to be taxed as costs.” L. 2002, ch. 122, sec. 6.
By prefacing the discussion of costs with the statement, “[a]s used in this subsection,” the legislature is telling us that “costs” have a unique meaning in a post-award medical benefits proceeding which is not dependent upon the definitions of costs in other areas or other statutes. Pointedly, the attorney fees discussion refers back to K.S.A. 44-536(g), but the costs discussion does not incorporate other costs provisions, such as K.S.A. 44-553, to which the majority cites.
Most importantly, the statutory language explicitly tells the reader not to limit the allowable costs by the examples that are specifically listed. I would heed that directive. The administrative law judge (ALJ) should have the discretion to award as costs the claimants expenses incurred to provide the proof to overcome an employer s objection to necessary post-award medical care. But cf. Naff, 28 Kan. App. 2d at 729 (quoting May v. University of Kansas, 25 Kan. App. 2d 66, 70, 957 P.2d 1117 [1998] [“ Tt is contrary to public policy to add the burden of attorney fees to a respondent who has conscientiously complied with all provisions of an award. Such a holding would defeat the policy of encouraging timely compliance by respondents.’ ”]). I would find that the fees and expenses incurred by Higgins to obtain the medical evidence needed to substantiate his claim for additional medical care was allowable at the discretion of the ALJ. However, such costs were not mandated, especially if the employer was conscientiously complying with the provisions of K.S.A. 2008 Supp. 44-510k.