Gerlach v. Choices Network, Inc.

• Decision Date: 12 November 2021
• Docket Number: 123,406
• Citation: 61 Kan.App.2d 268,503 P.3d 1033
• Parties: Debbie L. GERLACH, Appellee, v. CHOICES NETWORK, INC. Fiscal Agent HCBS and QBE Insurance Corporation, Appellants, and Kansas Workers Compensation Fund, Appellee.
• Court: Kansas Court of Appeals

61 Kan.App.2d 268

503 P.3d 1033

Debbie L. GERLACH, Appellee,

v. CHOICES NETWORK, INC. Fiscal Agent HCBS and QBE Insurance Corporation, Appellants,andKansas Workers Compensation Fund, Appellee.

No. 123,406

Court of Appeals of Kansas.

Opinion filed November 12, 2021.

Ryan D. Weltz, of Wallace, Saunders, Chartered, of Overland Park, for appellants.

Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for appellee Debbie L. Gerlach.

Matthew R. Bergmann, of Frieden & Forbes, LLP, of Topeka, for appellee Kansas Workers Compensation Fund.

Before Arnold-Burger, C.J., Green and Buser, JJ.

Green, J.:

Debbie L. Gerlach filed this workers compensation claim and then moved to extend the deadline to resolve the claim beyond the three-year statutory deadline. The administrative law judge (ALJ) granted her extension under K.S.A. 2016 Supp. 44-523(f)(1). After the extended deadline had passed, Gerlach requested another extension. But Choices Network, Inc. and QBE Insurance Company (Choices Network) moved to dismiss the claim because the extended deadline had passed. The ALJ denied the motion to dismiss and proceeded to adjudicate Gerlach's claim. The Workers Compensation Appeals Board (the Board) affirmed.

On appeal, Choices Network argues that the ALJ's jurisdiction over the case lapsed once the extended deadline passed. Gerlach claims that Choices Network asks us to read into the statute an additional requirement which does not exist in the language of the statute. Gerlach states that K.S.A. 2016 Supp. 44-523(f)(1) did not require that she request her second extension before the first extension expired. Because Choices Network fails to meet its burden to show that the Board's rulings were erroneous, we affirm. Also, because we are affirming, we need not address Choices Network's reimbursement for compensation argument.

FACTS

Sixty-three-year-old Debbie Gerlach tripped and fell on uneven pavement during the course of her employment as a personal attendant for mentally challenged and handicapped adults. The injury occurred on November 24, 2014, and the insurer authorized treatment. On May 4, 2015, Gerlach had an MRI done on her left knee. The radiologist determined Gerlach suffered an anterior cruciate ligament (ACL) tear. But her primary care provider charted the injury as a medial meniscus tear. The insurance carrier did not authorize treatment for either an ACL tear or a medial meniscus tear and Gerlach's knee went untreated. On May 29, 2015, Gerlach filed an application for hearing with the Division of Workers Compensation.

Before the statutory deadline of May 29, 2018, Gerlach moved to extend the time for hearing under K.S.A. 2016 Supp. 44-523(f)(1) because she had not yet reached maximum medical improvement (MMI). The ALJ issued an agreed order—approved by the parties—extending the deadline for a regular hearing to November 29, 2018. That deadline came and went without further action from the parties.

On March 5, 2019, the ALJ contacted the parties to ask about the status of the case. On March 8, 2019, Choices Network moved to dismiss Gerlach's claim. On March 11, 2019, Gerlach moved to extend the deadline because she still had not reached MMI. The ALJ denied the motion to dismiss and granted the motion to extend time because Gerlach still had not achieved MMI.

Choices Network appealed the ALJ's decision to extend the time for hearing. Choices Network also impleaded the Kansas Workers Compensation Fund (the Fund), arguing that if the Board dismissed Gerlach's claim then that dismissal would be considered a final disposition at a full hearing for purposes of employer reimbursement. Instead, the Board dismissed Choices Network's appeal from the extension of time order as interlocutory.

Gerlach moved to extend the time for a regular hearing two more times. Choices Network renewed its objection to the previous extension and objected to the new extensions. The ALJ granted Gerlach's requested extensions.

The ALJ held a regular hearing in May 2020 and awarded compensation to Gerlach in July 2020. Choices Network appealed the award, arguing that the ALJ erred by extended the time for a hearing and by not dismissing Gerlach's claim. The Board affirmed the ALJ, ruling that once Gerlach established good cause to extend the deadline by filing her first extension then her claim remained viable until good cause no longer existed.

Choices Network timely appeals.

ANALYSIS

Choices Network argues that a strict reading of K.S.A. 2016 Supp. 44-523(f)(1) required the ALJ to dismiss Gerlach's action because her second request for extension went beyond her first extension request. On appeal, the burden of proving the invalidity of the agency action rests on the party asserting such invalidity. K.S.A. 77-621(a)(1) ; Estate of Graber v. Dillon Companies , 309 Kan. 509, 513, 439 P.3d 291 (2019).

The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., governs this court's review of cases arising under the Workers Compensation Act (the Act), K.S.A. 2020 Supp. 44-501 et seq. K.S.A. 2020 Supp. 44-556(a). The standard of review varies depending on the issue raised. See K.S.A. 77-621 (defining and limiting scope of review of administrative decisions under KJRA).

When the appellant argues that the Board erroneously applied the law to undisputed facts, appellate courts exercise de novo review. Mera-Hernandez v. U.S.D. 233 , 305 Kan. 1182, 1185, 390 P.3d 875 (2017).

"When exercising unlimited review on questions of statutory interpretation, an appellate court owes no deference to interpretations given to the Act by the [Board]." Estate of Graber , 309 Kan. 509, Syl. ¶ 2, 439 P.3d 291.

Under K.S.A. 2020 Supp. 44-523(a) of the Workers Compensation Act, neither the ALJ nor the Board is "bound by technical rules of procedure." "Technical rules of procedure" refers to the Kansas Rules of Civil Procedure and particularly the Kansas evidence rules. Roberts v. J.C. Penney Co. , 263 Kan. 270, 277-78, 949 P.2d 613 (1997).

The Workers Compensation Act

" ‘undertook to cover every phase of the right to compensation and of the procedure for obtaining it, which is substantial, complete and exclusive, and we must look to the procedure of the act for the methods of its administration. Rules and methods provided by the [C]ode of [C]ivil [P]rocedure not included in the act itself are not available in determining rights thereunder.’ " Schmidtlien Electric, Inc. v. Greathouse , 278 Kan. 810, 831, 104 P.3d 378 (2005) (quoting Jones v. Continental Can Co. , 260 Kan. 547, 557, 920 P.2d 939 [1996] ).

But see Nguyen v. IBP, Inc. , 266 Kan. 580, 589, 972 P.2d 747 (1999) (ruling that although the Workers Compensation Act is complete in and of itself, procedures must be adequate to provide constitutional due process).

Choices Network begins its argument with a throat-clearing headnote: "Strict Construction is the Only Appropriate Statutory Interpretation." Choices Network argues that our Supreme Court's recent decisions have included directions to apply the literal language of the Kansas Workers Compensation Act: "A statute should not be read to add that which is not contained in the language of the statute or to read out what, as a matter of ordinary language, is included in the statute." Casco v. Armour Swift-Eckrich , 283 Kan. 508, Syl. ¶ 6, 154 P.3d 494 (2007). Thus, "[t]he court will not speculate on legislative intent and will not read the statute to add something not readily found in it." Bergstrom v. Spears Manufacturing Co. , 289 Kan. 605, 608, 214 P.3d 676 (2009). Choices Network provides this "paradigm for review of the statute" as its basis for dismissing Gerlach's claim under K.S.A. 2016 Supp. 44-523(f)(1).

But the plain text of K.S.A. 2016 Supp. 44-523(f)(1) is limited to discussion of the first extension of the deadline to complete litigation:

"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 filing an application for hearing pursuant to K.S.A. 44-534, and amendments thereto, 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. Such dismissal shall be considered a final disposition at a full hearing on the claim for purposes of employer reimbursement from the fund pursuant to subsection (b) of K.S.A. 44-534a, and amendments thereto."

Choices Network notes that Gerlach met her obligation to establish good cause for extension within three years from the date of filing an application for hearing under K.S.A. 44-534. But Choices Network argues that the extension only shifted the date when the ALJ would lose jurisdiction to a new date: "The agreed order in question, signed by the Court, provided a specific date by which the claimant had to perform the required acts of K.S.A. 44-523(f). Perform Action A by Date B, or Consequence C."

Yet, Choices Network's argument begs the question. The fallacy of begging the question is committed when a claim is dependent on another claim that is implicitly assumed but has not been proved to be true. Pioneer Ridge Nursing Facility Operations v. Ermey , 41 Kan. App. 2d 414, 421, 203 P.3d 4 (2009). To, illustrate, Choices Network argues that a consequence is inherent in K.S.A. 2016 Supp. 44-523(f)(1) under Glaze v. J.K. Williams , 309 Kan. 562, 439 P.3d 920 (2019).

Timmy Glaze applied for a...