Garmany v. Casey's General Store

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NOT DESIGNATED FOR PUBLICATION

No. 116,445

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DONNA GARMANY,
Appellant,

v.

CASEY'S GENERAL STORE and EMCASCO INSURANCE COMPANY,
Appellees.


MEMORANDUM OPINION

Appeal from Workers Compensation Board. Opinion filed February 24, 2017. Affirmed.

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

Ronald J. Laskowski, of The Law Office of Ronald J. Laskowski, of Topeka, for appellees.

Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.

Per Curiam: Donna L. Garmany's workers compensation claim was dismissed by
the Kansas Workers Compensation Board (Board) pursuant to K.S.A. 2011 Supp.
44-523(f)(1), because her claim had not proceeded to hearing within 3 years of filing and
she had not requested an extension within that 3-year period. It was dismissed in spite of
the fact that she had not been dilatory in pursuing her claim, she had not abandoned her
claim, and there was no dispute that she had not reached maximum medical
improvement. Unfortunately, the statute that requires this result, although inartfully
drafted, is not ambiguous so we are required to uphold the Board's decision. It is up to the
legislature to change the statute if it wants to avoid this clearly harsh result in the future.
Accordingly, we affirm the decision of the Board dismissing Garmany's claim.
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FACTUAL AND PROCEDURAL HISTORY

Garmany was an employee at Casey's General Store in Scranton, Kansas. On
March 30, 2012, Garmany was stocking the cooler in the store. She "had squatted down
to get to the bottom shelf, and [she] had [her] buttocks between [her] ankles sitting there
working . . . and [she] went to stand up, and [she] felt and heard a loud pop in [her] lower
back, and [she] felt a real sharp pain." Garmany filed an application for a hearing with the
Division of Workers Compensation on March 29, 2013.

In July 2013, following a preliminary hearing, the administrative law judge (ALJ)
ordered an independent medical evaluation. In September 2014, after another preliminary
hearing, the ALJ ordered the respondent to provide medical treatment to Garmany until
she reached maximum medical improvement. The Board affirmed this decision, noting
that the "preliminary hearing findings and conclusions are neither final nor binding as
they may be modified upon a full hearing of the claim."

A regular hearing was scheduled for July 18, 2016. But, on May 12, 2016, Casey's
filed a motion to dismiss pursuant to 44-523(f)(1). Casey's motion was "based upon
claimant's failure to pursue this case to regular hearing within three (3) years from the
date the application for hearing was filed." The ALJ granted Casey's motion to dismiss.
The ALJ characterized the dismissal as "legally appropriate, but not just." Subsequently,
the Board affirmed the ALJ ruling dismissing the claim, with one Board member
dissenting.

Garmany appealed.




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ANALYSIS

On appeal, Garmany argues that K.S.A. 2011 Supp. 44-523(f)(1) is ambiguous and
does not require dismissal of her claim.

K.S.A. 2011 Supp. 44-556(a) directs that final orders of the Board are subject to
review under the Kansas Judicial Review Act, K.S.A. 77-601 et seq., as amended.
Appellate courts have unlimited review of questions involving the interpretation or
construction of a statute, owing no deference to the agency's or the Board's interpretation
or construction. Fernandez v. McDonald's, 296 Kan. 472, 475, 292 P.3d 311 (2013).

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. Hoesli v. Triplett, Inc.,
303 Kan. 358, 362, 361 P.3d 504 (2015). The court must give effect to the statute's
express language rather than determine what the law should or should not be. 303 Kan. at
362. 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. 303 Kan. at 362.

K.S.A. 2006 Supp. 44-523(f) "provides a way for the workers compensation
division to cleanse its house of stale claims." Welty v. U.S.D. No. 259, 48 Kan. App. 2d
797, 800, 302 P.3d 1080 (2012). Subsection (f) was added to the statute during the 2006
legislative session, 48 Kan. App. 2d at 800, and amended in 2011. L. 2011, ch. 55, sec.
17. The 2011 version of the statute is the version of the statute under which the ALJ made
his ruling in Garmany's case. The relevant amended language is as follows:

"In any claim that has not proceeded to a regular hearing, a settlement hearing, or
an agreed award under the workers compensation act within three years from the date of
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filing an application for hearing . . . the employer shall be permitted to file with the
division an application for dismissal based on lack of prosecution. The matter shall be set
for hearing with notice to the claimant's attorney, if the claimant is represented, or to the
claimant's last known address. The administrative law judge may grant an extension for
good cause shown, which shall be conclusively presumed in the event that the claimant
has not reached maximum medical improvement, provided such motion to extend is filed
prior to the three year limitation provided for herein. If the claimant cannot establish
good cause, the claim shall be dismissed with prejudice by the administrative law judge
for lack of prosecution." K.S.A. 2011 Supp. 44-523(f)(1).

Garmany argues that that the third sentence of the statute is ambiguous. The third
sentence gives the ALJ discretion to grant an extension for good cause, "which shall be
conclusively presumed in the event that the claimant has not reached maximum medical
improvement, provided such motion to extend is filed prior to the three year limitation
provided for herein." K.S.A. 2011 Supp. 44-523(f)(1).

It seems clear from the plain language of the statute that the last clause of the third
sentence, requiring the claimant to make a motion to extend within 3 years, applies to the
opening clause of the sentence. The opening clause gives the ALJ discretion to grant a
motion for extension for good cause, but the final clause states that the motion for
extension must be filed within 3 years. The clause in the middle of the sentence simply
provides the circumstances under which good cause will be presumed—when the
claimant has not reached maximum medical improvement—and does not relate to the
motion to extend. Accepting Garmany's interpretation of the statute would mean that the
conclusive presumption of good cause would only apply if the claimant filed a motion to
extend within the 3-year limit. We can think of no logical reason why the legislature
would limit the use of the presumption in this manner.

This court recently reached the same conclusion in Breedlove v. Richardson
Hauling, Inc., No. 114,600, 2016 WL 5844575 (Kan. App. 2016) (unpublished opinion),
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examining K.S.A. 2007 Supp. 44-523. Breedlove was decided after the parties in this case
wrote their briefs, so neither party discusses it. While it involves the 2007 statutory
language, the analysis is still applicable to the 2011 statutory language. The 2007
language was as follows:

"Any claim that has not proceeded to final hearing, a settlement hearing, or an
agreed award under the workers compensation act within five years from the date of
filing an application for hearing . . . shall be dismissed by the administrative law judge
for lack of prosecution. The administrative law judge may grant an extension for good
cause shown, which shall be conclusively presumed in the event that the claimant has not
reached maximum medical improvement, provided such motion to extend is filed prior to
the five year limitation provided for herein." K.S.A. 2007 Supp. 44-523(f).

In Breedlove, the claimant's claim was dismissed for lack of prosecution under
K.S.A. 2007 Supp. 44-523(f) because more than 5 years had passed since the claimant
had made an application for a workers compensation hearing. The claimant had filed a
motion for extension, but it was untimely because the motion was made after the 5-year
time limit. The court relied upon the language in K.S.A. 2007 Supp. 44-523(f) that stated
"that a motion for extension of time for good cause is timely 'provided such motion to
extend is filed prior to the five year limitation provided for herein.'" 2016 WL 5844575,
at *6. Based on this language, the court held that the claimant "needed to request an
extension of time before the 5-year time limit to prosecute the claim had elapsed.
Otherwise, the ALJ would no longer have jurisdiction to consider the motion for
extension of time." 2016 WL 5844575, at *6.

The Breedlove court noted that 44-523(f) had been revised since the notice of
appeal was filed in the case and that the current revision simply changed the time limit
for lack of prosecution from 5 years to 3 years. 2016 WL 5844575, at *4. However, the
remaining statutory language that the Breedlove court relied upon, "provided such motion
to extend is filed prior to the [five/three] year limitation provided for herein," remains
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unchanged. Compare K.S.A. 2007 Supp. 44-523(f) with K.S.A. 2011 Supp. 44-523(f)(1).
This is exactly the portion of the statute that Garmany challenges as ambiguous. Because
the statute contains the same operative language now as it did in the Breedlove decision,
we see no reason why the interpretation should be any different.

There have also been several Board decisions that interpreted K.S.A. 2011 Supp.
44-523(f)(1) in the same way as the ALJ in this case interpreted it. See Hackler v.
Peninsula Gaming Partners, LLC, No. 1,060,759, 2016 WL 858312, at *5 (Kan. Work.
Comp. App. Bd. February 25, 2016) ("[A] motion to extend must be filed within the three
years after an application for hearing is filed and claimant must prove good cause to
warrant an extension. . . . In this case, claimant had good cause, but filed her motion
outside of the three year time frame."); Hoffman v. Dental Central, P.A., No. 1,058,645,
2015 WL 4071473, at *5 (Kan. Work. Comp. App. Bd. June 26, 2015) (noting that "the
statute is very specific in its requirement that the motion to extend be filed prior to the
running of the three year limitation"); Ramstad v. U.S.D. 229, No. 1,059,881, 2015 WL
5462026, at *2 (Kan. Work. Comp. App. Bd. August 31, 2015) ("The motion [for
extension] must be filed prior to the expiration of the three-year period. No such motion
was filed. The plain language of K.S.A. 2011 Supp. 44-523(f)(1) requires dismissal.").
Appellate courts are not required to give significant deference to an agency or board's
statutory interpretation. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs.,
290 Kan. 446, 457, 228 P.3d 403 (2010). However, the Board decisions provide further
evidence that the statute is not ambiguous.

Garmany points to dissenting Board member opinions from cases presenting the
same issue to illustrate the ambiguity. She specifically cites Hackler, 2016 WL 858312,
and says that "[a] three-two split in opinion of the Board—by definition—shows
ambiguity with regard to the meaning of the statute."

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It is worth noting that only one Board member, not two, dissented in Hackler.
2016 WL 858312, at *8. It is the same Board member who dissented in this case, Thomas
Arnhold. In Hackler, Board member Arnhold looked at the sentences in the statute in
isolation and concluded that "regardless of the inevitable passage of time, the first
sentence of K.S.A. 2011 Supp. 44-523(f) clearly states a lack of prosecution is a
condition necessary for a respondent to file a motion to dismiss." Hackler, 2016 WL
858312, at *6 (Arnhold, dissenting). He also argued that the fourth sentence ("If the
claimant cannot establish good cause, the claim shall be dismissed with prejudice by the
administrative law judge for lack of prosecution.") requires a judge to find both a lack of
prosecution and a lack of good cause before dismissing the case. 2016 WL 858312, at *7.
While this is a creative interpretation of the statute and one that clearly allows for a just
result, it ignores the third sentence which states that a motion to extend for good cause
must be filed within 3 years. K.S.A. 2011 Supp. 44-523(f)(1).

Garmany also argues that the legislative history of the statute supports her claim.
As the ALJ who dismissed Garmany's case succinctly explained:

"The implied legislative intent behind the three year deadline of K.S.A. 44-
523(f)(1) is clearly to remedy the problem of unending, inactive cases. While the statute
is successful in this laudable goal, recent history reveals its use by respondents as an
offensive weapon against active but unaware claimants has been largely most effective."

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. Hoesli, 303 Kan. at 362.
Because the 3-year limit on filing motions to extend is clear from the plain language of
the statute, this court cannot explore the legislative history of the statute.

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Finally, Garmany argues that "K.S.A. 2011 Supp. 44-523(f)(1) does not provide a
mechanism for the claimant to request an extension of time prior to three (3) [years] after
the filing of an application for hearing." This argument is unsuccessful. The language of
the statute, "provided such motion to extend is filed," implies that claimants can file
motions to extend. In fact, a claimant in one of the cases cited by Garmany did file a
motion to extend with no problems. See Glaze v. JK Williams LLC, No. 1,063,419, 2016
WL 2619518 (Kan. Work. Comp. App. Bd. April 11, 2016).

Because the 3-year limitation in K.S.A. 2011 Supp. 44-523(f)(1) is not ambiguous,
the statute authorized the dismissal of Garmany's claim. The court must give effect to the
statute's express language rather than determine what the law should or should not be.
See Hoesli, 303 Kan. at 362. It is up to the legislature to change the statute if it wants to
avoid this clearly harsh result in the future.

Affirmed.