Nilges v. State

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No. 105,787

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

LEO NILGES,
Appellant,

v.

STATE OF KANSAS and
STATE SELF INSURANCE FUND,
Appellees.


SYLLABUS BY THE COURT

1.
An appellate court has unlimited review of questions involving the interpretation
or construction of statutes under the Workers Compensation Act, owing no significant
deference to the interpretation of the statutes given by the Workers Compensation Board.

2.
Under K.S.A. 44-557(c), if an employer has notice of an employee's work-related
accident and fails to file an accident report as provided in K.S.A. 44-557(a), whether or
not such accident report is required to be filed, the time limitation for the employee to file
a written claim for compensation is extended beyond the usual deadline of 200 days after
the date of the accident.

Appeal from Workers Compensation Board. Opinion filed November 23, 2011. Reversed and
remanded.

Jan L. Fisher, of McCullough, Wareheim and LaBunker, of Topeka, for appellant.

Bryce D. Benedict, of Kansas Health Policy Authority, for appellees.

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Before GREEN, P.J., MALONE and MCANANY, JJ.

MALONE, J.: Leo Nilges appeals the decision of the Workers Compensation Board
(Board) finding that he had failed to timely file a written claim for compensation. Nilges
argues that pursuant to K.S.A. 44-557(c), his deadline to file a written claim was
extended because his employer had notice of his accident but failed to file an accident
report. We agree with Nilges' interpretation of the statute; therefore, we reverse the
Board's decision and remand for further proceedings.

Nilges was employed by the Kansas Department of Transportation (State) as an
equipment operator. On April 21, 2008, Nilges was injured when he refastened a lid on a
water truck. While descending from the truck, his feet slipped, so he held onto the truck
with his hands. He immediately felt pain in his upper back, especially his right shoulder.
Although Nilges continued to work that day, his pain progressively worsened.

That same evening, Nilges reported the accident to his supervisor, Garrett Brandt.
However, no accident report was initially completed. According to Nilges, he requested
that an accident report be completed on the date of the accident and then again several
times thereafter, but his requests were repeatedly denied by Brandt. According to Brandt,
Nilges did not request an accident report on the date of the accident; however, Nilges did
request a report some time later, which Brandt then completed.

After the accident, Nilges continued to work. However, he testified that his pain
progressively worsened and that he was unable to perform all of his regular duties,
including lifting and throwing things and doing work above his head. Wesley Leisure,
one of Nilges' coworkers, testified that within a few weeks after the accident Nilges was
unable to repair a sign that required reaching above his head. Leisure further testified that
Nilges would ask other people to undertake duties he would normally do himself but had
difficulty performing due to the pain in his shoulder. Brandt testified that, although
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Nilges had mentioned having difficulty raising his shoulder, Nilges had never spoken to
him about problems performing his job duties due to shoulder or upper back pain.

Nilges testified that because Brandt would not fill out an accident report, he sought
medical treatment on his own. He went to a chiropractor for treatment of his upper back
and right shoulder and sometimes would miss work for those appointments. Leisure
testified he was aware that these visits to the chiropractor were related to Nilges'
shoulder. Brandt testified he knew Nilges was taking time off work to see a chiropractor
and assumed Nilges was doing so due to back problems because most people go to
chiropractors for back problems. However, Brandt testified he did not know that Nilges
was seeing a chiropractor due to his work injury. According to Brandt, Nilges never told
him the reason he was visiting a chiropractor and Brandt never asked for a reason.

An accident report was eventually completed on December 2, 2008. According to
Nilges, the report was completed only after he had complained to Brandt's supervisor that
Brandt had refused to fill out an accident report. The State subsequently authorized
Nilges to receive medical treatment, which began approximately December 8, 2008. On
January 15, 2009, Nilges had a second accident for which he was ultimately denied any
compensation, and Nilges has not appealed that ruling. In June 2009, the State cancelled
its authorization for Nilges' medical treatment. Nilges filed a written claim for
compensation on June 25, 2009.

A hearing on Nilges' claim was held before an administrative law judge (ALJ) on
August 19, 2009. The ALJ found that Nilges' claim was not timely filed and denied
benefits, but this decision was reversed and remanded by the Board. Nilges resumed
medical treatment and received benefits. He returned to work with no restrictions in
January 2010, but his condition worsened. Nilges saw another doctor who gave work
restrictions. The State could not accommodate the restrictions, and Nilges was released
from his job on February 4, 2010.
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On September 27, 2010, Nilges' claim was transferred to a new ALJ. The ALJ
found that Nilges' claim was timely and awarded benefits. The ALJ's decision was
appealed to the Board. The issues before the Board included whether Nilges timely filed
his claim; whether Nilges suffered a scheduled injury or an injury to the body as a whole;
and the nature and extent of Nilges' disability. The Board found that Nilges did not file
his claim within 200 days of the date of his injury on April 21, 2008. The Board also
found that the State was not required to file an accident report when Nilges initially
notified his supervisor of the injury, so as to extend the deadline for Nilges to file a claim.
Thus, the Board concluded that Nilges failed to file a timely written claim, and the Board
did not reach the remaining issues. Nilges timely appealed the Board's decision.

On appeal, Nilges claims the Board erred in finding that he had failed to timely
file a written claim for compensation. Nilges acknowledges that he did not file his written
claim within 200 days of the date of his accident, as generally required by K.S.A. 44-
520a. However, Nilges argues that, pursuant to K.S.A. 44-557(c), the State's failure to
file an accident report until December 2, 2008, extended his deadline for filing his written
claim to 1 year from the date of the last medical treatment authorized by his employer. As
a result, Nilges asserts that his written claim filed on June 25, 2009, was timely.

Nilges' argument requires the interpretation of multiple statutes under the Workers
Compensation Act (Act). An appellate court has unlimited review of questions involving
the interpretation or construction of such statutes, owing no significant deference to the
Board's interpretation or construction. Fort Hays St. Univ. v. University Ch., Am. Ass'n of
Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010).

We will begin by reviewing important statutory deadlines applicable to filing
claims for compensation under the Act. K.S.A. 44-520 generally provides that an
employee must give notice of any accident to the employer, stating the time and place of
the accident, and the name and address of the person injured, within 10 days after the date
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of the accident. However, actual knowledge of the accident by the employer or the
employer's duly authorized agent shall render the giving of such notice unnecessary.
Here, there is no question that Nilges timely notified his supervisor of his accident on
April 21, 2008.

K.S.A. 44-520a generally provides that no proceedings for compensation shall be
maintained under the Act unless a written claim for compensation is served upon the
employer within 200 days after the date of the accident. Here, Nilges served his written
claim for compensation on July 6, 2009, which was more than 200 days after the date of
his accident.

Under certain circumstances, the time period for serving a written claim upon the
employer may be extended. K.S.A. 44-557 states in relevant part:

"(a) It is hereby made the duty of every employer to make or cause to be made a
report to the director of any accident, or claimed or alleged accident, to any employee
which occurs in the course of the employee's employment and of which the employer or
the employer's supervisor has knowledge, which report shall be made upon a form to be
prepared by the director, within 28 days, after the receipt of such knowledge, if the
personal injuries which are sustained by such accidents, are sufficient wholly or partially
to incapacitate the person injured from labor or service for more than the remainder of the
day, shift or turn on which such injuries were sustained.
. . . .
"(c) No limitation of time in the workers 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 if the injured employee has given notice of accident as provided in K.S.A.
44-520 and amendments thereto, except that any proceeding for compensation for any
such injury or death, where report of the accident has not been filed, must be commenced
by serving upon the employer a written claim pursuant to K.S.A. 44-520a and
amendments thereto within one year from the date of the accident, suspension of payment
of disability compensation, the date of the last medical treatment authorized by the
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employer, or the death of such employee referred to in K.S.A. 44-520a and amendments
thereto." (Emphasis added.)

Under K.S.A. 44-557(a), an employer is required to file an accident report with the
Director of Workers Compensation within 28 days of receiving notice of a work-related
accident, provided the injuries "are sufficient wholly or partially to incapacitate the
person injured from labor or service for more than the remainder of the day, shift or turn
on which such injuries were sustained." Such accident report is significant because the
report triggers a notice from the director to the injured employee of the employee's rights
under the Act, including notice that the employee has 200 days from the date of the
accident to file a written claim for compensation.

Under K.S.A. 44-557(c), no limitation of time under the Act shall begin to run
unless a report of the accident as provided in K.S.A. 44-557(a) has been filed at the office
of the Director, assuming the employee has given proper notice of the accident, except
that any proceeding for compensation where an accident report has not been filed must be
commenced within 1 year from the date of the accident, suspension of payment of
disability compensation, the date of the last medical treatment authorized by the
employer, or the death of the employee. Stated differently, if an employer has notice of
an employee's work-related accident and fails to file an accident report as provided in
K.S.A. 44-557(a), the time limitation for the employee to file a written claim for
compensation is extended beyond the usual deadline of 200 days after the date of the
accident.

Here, it is undisputed that Nilges did not file his written claim for compensation
until June 25, 2009, well over 200 days after the April 21, 2008, accident but shortly after
his last authorized medical treatment. Therefore, the timeliness of Nilges' claim turns on
whether he was entitled to the extended filing period under K.S.A. 44-557(c). The Board
found that the State was unaware that Nilges' injuries were sufficient wholly or partially
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to incapacitate him from labor or service for more than the remainder of the day, shift, or
turn on which the injuries were sustained. Accordingly, the Board found that the State
was not required to file an accident report when Nilges initially notified Brandt of the
accident on April 21, 2008. Instead, the Board found that the State was not required to
file an accident report until it did so on December 2, 2008, which was already more than
200 days after the accident. Because the State was not required to file an accident report
when Nilges initially gave notice of the accident, the Board determined the State's failure
to do so did not extend the deadline for Nilges to file a written claim for compensation.

Nilges argues that the only prerequisites for the extension of the filing deadline
under K.S.A. 44-557(c) are that (1) the injured employee has given notice of the accident
to his employer and (2) the employer has not filed a report of the accident. According to
Nilges, it is irrelevant whether the accident report was required to be filed according to
K.S.A. 44-557(a) or whether the employer simply chose not to file any report. On the
other hand, the State argues that the Board's interpretation of K.S.A. 44-557 was correct.
The State acknowledges that it did not file an accident report when Nilges first notified
Brandt of his injury. However, based on findings made by the Board, the State was not
required to file an accident report within 28 days after receiving notice of Nilges' injury,
pursuant to K.S.A. 44-557(a). Because the State was not initially required to file an
accident report, the State argues that its failure to do so did not extend the deadline for
Nilges to file his written claim for compensation.

This issue has been squarely addressed by the Kansas Supreme Court in Ricker v.
Yellow Transit Freight Lines, Inc., 191 Kan. 151, 379 P.2d 279 (1963). In Ricker, the
employee reported a work-related accident to his supervisor within 7 days of its
occurrence on May 13, 1960. The employee did not miss any work because of the
accident. He was given temporary release from his employment in August 1960 for
unrelated surgery but did not return to work thereafter. On May 3, 1961, the employee
filed a written claim for compensation. Two days later, the employer filed an accident
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report. 191 Kan. at 152. The only issue before the court was whether the employee filed a
timely claim for compensation. The employer argued that the claim was not timely filed
under the provisions of G.S. 1949, 44-520a (1961 Supp.), which set forth a filing
deadline of 180 days after the date of the accident, and G.S. 1949, 44-557 (1961 Supp.),
which extended the deadline in cases where no accident report was filed. The relevant
provisions of G.S. 1949, 44-557 (1961 Supp.) are materially the same as the present
K.S.A. 44-557. Specifically, the employer argued that it had no duty to file an accident
report because the employee's injuries were not "sufficient wholly or partially to
incapacitate [him] from labor or service for more than the remainder of the day, shift or
turn on which such accidental injury was sustained." 191 Kan. at 154. In other words, the
employer argued, as the State does here, that the extended filing deadline is only
applicable where the employer fails to file a required accident report.

The Ricker court rejected the employer's argument:

"We cannot agree with the foregoing contention. The appellants rely on the first
proviso of G.S. 1961 Supp., 44-557, but ignore the first of the two provisos that were
added to that section in 1957. The first proviso so added must be given effect. It provides:

"That no limitation of time in this act provided shall begin to run unless a report
of the accident as hereinbefore provided has been filed at the office of the Kansas
workmen's compensation commissioner if the injured workman shall have given his
notice of injury as provided by section 44-520 of the General Statutes of 1949: . . .'

"Knowledge of the accident by the employer or his duly authorized agent, or
notice to the employer within ten days of the accident is all that is required by G.S. 1949,
44-520. When the employer or his agent has knowledge of the accident all limitations in
the act are suspended if the employer fails to file a report of the accident as provided for
in G.S. 1961 Supp., 44-557." (Emphasis added.) 191 Kan. at 154-55.

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The Ricker court acknowledged that an employer is not required to file an accident
report unless the employee's injuries are sufficient wholly or partially to incapacitate the
employee for more than the remainder of the day, shift, or turn on which the injuries were
sustained. Nevertheless, the Ricker court determined that if the employer has notice of an
accident and chooses not to file an accident report, then the time limitation for filing a
written claim for compensation is extended under the provisions of K.S.A. 44-557. See
also Almendarez v. Wilson & Co., 188 Kan. 303, 304-05, 362 P.2d 1 (1961) (employee
allowed 1 year from the date of accident to file written claim for compensation where it
was shown employer had notice of the injury and failed to file accident report, even when
accident report was not required); Wilson v. Santa Fe Trail Transportation Co., 185 Kan.
725, 735-36, 347 P.2d 235 (1959) (same result).

The State argues that the Ricker court did not address the meaning of the phrase
"as hereinbefore provided" (now "as provided in this section") in K.S.A. 44-557(c),
which it contends refers to reports that are required to be filed under K.S.A. 44-557(a).
According to the State, if the filing of a report is not mandatory under K.S.A. 44-557(a),
the failure of an employer to file a report cannot trigger the extended deadline under
K.S.A. 44-557(c). The State urges this court to follow our court's decision in Poff v. IBP,
Inc., 33 Kan. App. 2d 700, 106 P.3d 1152 (2005). In Poff, an employee appealed from the
Board's decision that his claim for work-related hearing loss was untimely. The employee
had requested that a hearing examination be performed by the employer's medical staff,
and the examination indicated some hearing loss that the employee believed to be work
related. However, the employee failed to give his employer timely notice of the claimed
injury pursuant to K.S.A. 44-520. Moreover, the employee failed to file a written claim
for compensation for the hearing loss until more than 200 days after he had terminated
his employment. On appeal, the employee argued that the time limitation for filing a
written claim for compensation had been extended because the employer never filed an
accident report. The Poff court rejected the employee's argument:

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"Poff attempts to extend the time limitation for providing a written claim for
compensation to 1 year because of IBP's failure to file an accident report with the
Director pursuant to K.S.A. 44-557. K.S.A. 44-557(a) requires every employer to report
any accident 'if the personal injuries which are sustained by such accidents, are sufficient
wholly or partially to incapacitate the person injured from labor or service for more than
the remainder of the day, shift or turn on which such injuries were sustained.'

". . . We find the Board properly interpreted K.S.A. 44-557(a) to require
incapacitation before the time for filing is extended to 1 year pursuant to K.S.A. 44-
557(c). Poff never missed work because of the alleged hearing loss, and IBP was not
required to file an accident report. Consequently, the time limitation was not extended
pursuant to K.S.A. 44-557(c)." 33 Kan. App. 2d at 708.

The facts of Poff are distinguishable from the facts herein in one important respect.
Here, there is no question that Nilges timely notified his supervisor of his accident on
April 21, 2008. In Poff, the Board found that the employee failed to give the employer
timely notice of his injury pursuant to K.S.A. 44-520. An employee is only entitled to an
extended filing deadline under K.S.A. 44-557(c) "if the injured employee has given
notice of accident as provided in K.S.A. 44-520." Because the employee in Poff failed to
give his employer timely notice of his claimed injury pursuant to K.S.A. 44-520, the
employee was not entitled to an extended deadline to file his written claim for
compensation. Poff provides no support for the State's position herein.

We are hard pressed to distinguish Nilges' case from the facts in Ricker. Also, the
statutory language of K.S.A. 44-557 has not changed in any material respect since Ricker
was decided. The Ricker court stated that as long as the employer has notice of the
accident, "all [time] limitations in the act are suspended if the employer fails to file a
report of the accident as provided for in G.S. 1961 Supp., 44-557." 191 Kan. at 155. The
Ricker court expressly rejected the State's argument herein that the time limitation for
filing a written claim for compensation is only extended when an employer fails to file a
required accident report.
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The State reminds us that the Kansas Supreme Court is emphatic in holding that
our statutes are to be applied as written. Moreover, a recent Supreme Court case has
reaffirmed the principle, in the context of interpreting a workers compensation statute,
that precedent will not stand where rules were originally erroneous or are no longer
sound. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 610, 214 P.3d 676 (2009).
The State argues that the Ricker court's interpretation of K.S.A. 44-557 is contrary to the
plain language of the statute.

We disagree. K.S.A. 44-557(c) provides that if an employer has notice of an
employee's work-related accident and fails to file an accident report as provided in
K.S.A. 44-557(a), the time limitation for the employee to file a written claim for
compensation is extended beyond the usual deadline of 200 days after the date of the
accident. Just because K.S.A. 44-557(c) makes reference to the accident report as
provided in K.S.A. 44-557(a), this does not mean that the time limitation for filing a
written claim for compensation is only extended when an employer fails to file a required
accident report. If the State's interpretation of K.S.A. 44-557 was truly intended by the
legislature, the statute could have been drafted more clearly to accomplish this result. For
instance, in referring in K.S.A. 44-557(c) to the suspension of time limitations resulting
from the employer's failure to file the report of an accident, the legislature could have
changed the language from as provided in this section to as required by this section. If
such language had been employed by the legislature, K.S.A. 44-557(c) could reasonably
be interpreted to mean that the time limitation for filing a written claim for compensation
is only extended when an employer fails to file a required accident report.

Furthermore, Nilges' interpretation of the statute has a certain pragmatic appeal.
The reason for the extension of time for filing the claim as provided in K.S.A. 44-557(c)
is that if the employer gives notice of an accident to the Director of Workers
Compensation, the Director will then mail material to the employee advising the
employee of his or her rights under the Act, including the deadline to file a written claim
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for compensation. If no accident report is filed by the employer, the employee may never
learn of his or her rights under the Act. Almendarez, 188 Kan. at 305. This notification
process might be defeated in some cases if the time limitation for filing a written claim is
only extended when an employer fails to file a required accident report.

In any event, the Court of Appeals is duty bound to follow Kansas Supreme Court
precedent, absent some indication the court is departing from its previous position. Tyler
v. Goodyear Tire & Rubber Co., 43 Kan. App. 2d 386, 391, 224 P.3d 1197 (2010). We
have no indication that the Kansas Supreme Court is departing from its precedent in
Ricker. Based on this controlling precedent, we conclude the Board erred in finding that
Nilges failed to timely file a written claim for compensation. Accordingly, the case is
remanded to the Board to address the merits of the remaining issues.

Reversed and remanded.