Dinkel v. Graves Truck Line, Inc.

• Decision Date: 19 September 1985
• Docket Number: No. 57468,57468
• Citation: 706 P.2d 470,10 Kan.App.2d 604
• Parties: Frank DINKEL, Claimant/Appellee, v. GRAVES TRUCK LINE, INC., Respondent/Appellant.
• Court: Kansas Court of Appeals

Page 470

706 P.2d 470

10 Kan.App.2d 604

Frank DINKEL, Claimant/Appellee, v.GRAVES TRUCK LINE, INC., Respondent/Appellant.

No. 57468.

Court of Appeals of Kansas.

Sept. 19, 1985.

Syllabus by the Court

1.It is the duty of an appellate court to raise the question of jurisdiction on its own motion, and where the district court had no jurisdiction, the appellate court does not acquire jurisdiction over the subject matter on appeal.

2.The procedural provisions of the Kansas Code of Civil Procedure pertaining to entry of judgment, postjudgment motions and appeals are applicable to workers' compensation appeals pending in the district court to the same extent they are applied in other types of civil cases.Dieter v. Lawrence Paper Co., 237 Kan. 139, Syl. p 1, 697 P.2d 1300(1985).

3.In a workers' compensation case, it is held, the trial court lacked jurisdiction to consider a motion to change treating physicians when a change of treating physicians had not been considered by the Workers' Compensation Director, was not an issue in the case, and a final judgment had been granted.

Terry Malone and B.G. Larson, of Williams, Larson, Strobel, Estes & Malone, P.A., Dodge City, for appellant.

Don Vsetecka, Garden City, for appellee.

Before ABBOTT, P.J., and SWINEHART and BRISCOE, JJ.:

ABBOTT, Judge.

This is an appeal in a workers' compensation case from an order changing the treating physicians from a medical doctor to two chiropractic doctors, and ordering the employer to pay mileage and per diem in connection with the authorized medical treatment by the primary treating doctor located in Mr. Horeb, Wisconsin.

We raise the question of jurisdiction on our own motion.City of Overland Park v. Barron, 234 Kan. 522, Syl. p 1, 672 P.2d 1100(1983).When the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal.In re Lakeview Gardens, Inc., 227 Kan. 161, 173, 605 P.2d 576(1980).

The jurisdictional issue arises as follows: The claimant, Frank Dinkel, sustained a back injury while employed by Graves Truck Lines.The administrative law judge made an award that included permanent partial disability compensation, and also ordered "that claimant is entitled to future medical care from Dr. Reschly until further order of this Judge or the Director."

On appeal, the district court judge adopted the administrative law judge's award nearly verbatim, including the above provision for future medical care.Some five and a half months later, claimant filed a motion to modify the journal entry by substituting Dr. W. Alex Cox of the Gonstead Clinic of Chiropractic in Mt. Horeb, Wisconsin, and Dr. D.F. Rupp of Rupp Chiropractic Center in Garden City, Kansas, as the treating physicians, instead of Dr. Reschly.In the written reply, respondent maintained that the motion should be filed with the director or administrative law judge pursuant to K.S.A. 44-528andK.A.R. 51-19-1.The district court heard claimant's testimony, sustained his motion for modification of treating physicians, and ordered respondent to pay claimant's treatment costs, necessary mileage, per diem and attorney fees.Respondent timely appeals.

The Workmen's Compensation Act is complete and exclusive within itself and provides procedures on each phase of a claimant's right to compensation.Hunter v. General Motors Corporation, 202 Kan. 166, 172, 446 P.2d 838(1968);Walker v. Davis Van & Storage Co., 198 Kan. 452, 455, 424 P.2d 473(1967);Bahr v. Iowa Beef Processors, Inc., 8 Kan.App.2d 627, 632, 663 P.2d 1144, rev. denied233 Kan. 1091(1983).A district court's jurisdiction is set forth in K.S.A.1984 Supp. 44-556(b) as follows: "On any such appeal the district court shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the director as justice may require."Any party to the proceedings may appeal from a director's decision to the district court where the cause of action arose.K.S.A.1984 Supp. 44-556(a).

A trial judge now has authority to enforce its judgment as well as to modify it as authorized by law.In Dieter v. Lawrence Paper Co., 237 Kan. 139, Syl. p 1, 697 P.2d 1300(1985), the Supreme Court stated:

"In view of the 1979amendment to K.S.A. 44-556(c), the procedural provisions of the Kansas Code of Civil Procedure pertaining to entry of judgment, postjudgment motions, and appeals are applicable to workers' compensation appeals pending in the district court to the same extent as they are applied in other types...