Green v. Gen. Motors Corp.

• Decision Date: 08 February 2019
• Docket Number: No. 119,044,119,044
• Citation: 437 P.3d 94,56 Kan.App.2d 732
• Parties: Amiel C. GREEN, Appellant, v. GENERAL MOTORS CORP., Appellee.
• Court: Kansas Court of Appeals

56 Kan.App.2d 732

437 P.3d 94

Amiel C. GREEN, Appellant,

v.GENERAL MOTORS CORP., Appellee.

No. 119,044

Court of Appeals of Kansas.

Opinion filed February 8, 2019.

Dennis L. Horner, of Boyd, Kenter, Thomas & Parrish, LLC, of Olathe, for appellant.

Kristina Mulvany, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellee.

Before Gardner, P.J., Atcheson and Powell, JJ.

Atcheson, J.:

The Workers Compensation Board dismissed Amiel C. Green's claim against General Motors Corporation seeking benefits for an on-the-job injury. The Board found a lack of prosecution as provided in K.S.A. 2008 Supp. 44-523(f), despite Green's repeated requests for continuing treatment and temporary compensation. Green has appealed. The Board applied the wrong version of the statute. Under K.S.A. 2017 Supp. 44-523(f)(1), the correct version, lack of prosecution is determined differently and more favorably to Green. We, therefore, reverse and remand to the Board for further proceedings.

In short, K.S.A. 2008 Supp. 44-523(f) effectively created a categorical definition of lack of prosecution that covered Green's claim. The amended statute removes that unyielding—some would say procrustean—rule and affords injured workers a hearing to show why their claims should not be dismissed. On remand, the Board should see that Green gets a hearing.

Factual and Procedural History

Given the narrow issue at hand, we quickly sketch the relevant facts and procedural history. Green, an assembly line worker at General Motors, suffered repetitive-use injuries to both his hands and filed a claim for workers compensation benefits in early 2009. Green underwent multiple examinations and received various forms of treatment with less than optimal results. As part of the workers compensation claims process, Green requested more than a dozen preliminary hearings beginning in 2009 seeking treatment, temporary benefits, or both. He had four preliminaryhearings between 2013 and 2017. But the case neither settled nor progressed to a final hearing.

In July 2017, General Motors filed a motion to dismiss Green's claim for lack of prosecution. Relying on K.S.A. 2008 Supp. 44-523(f), the administrative law judge granted the motion. Green appealed to the Board. In a split decision, the Board affirmed the administrative law judge. The majority applied K.S.A. 2008 Supp. 44-523(f) and held the statutory language required dismissal. A dissenting board member would have applied K.S.A. 2012 Supp. 44-523(f)(1) and would have rejected the automatic dismissal of Green's claim for lack of prosecution. Green has appealed the Board's decision, and that is what we now consider.

Standard of Review and Principles of Statutory Construction

We review decisions of the Board under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. There are no material facts in dispute, so we confront a question of law dependent upon the selection and construction of the governing version of K.S.A. 44-523. See State v. Murdock , 299 Kan. 312, 314, 323 P.3d 846 (2014) (interpretation of statute a question of law given unlimited review on appeal); Estate of Belden v. Brown County , 46 Kan. App. 2d 247, 258-59, 261 P.3d 943 (2011) (absent material factual disputes, issues typically present questions of law). Under the KJRA, we may reverse an administrative agency decision that "has erroneously interpreted or applied the law." K.S.A. 2017 Supp. 77-621(c)(4). Appellate courts owe no deference to the Board's statutory interpretation of the Workers Compensation Act. Fernandez v. McDonald's , 296 Kan. 472, 475, 292 P.3d 311 (2013).

In a recent case involving the Workers Compensation Act, we laid out guiding principles for statutory interpretation:

"In construing a comprehensive statutory scheme such as the Workers Compensation Act, an appellate court must, as a first priority, strive to honor the legislative intent and purpose. In re Marriage of Traster , 301 Kan. 88, 98, 339 P.3d 778 (2014). The court should look initially to the words of a statute to discern legislative intent. Bussman v. Safeco Ins. Co. of America , 298 Kan. 700, 725-26, 317 P.3d 70 (2014). If particular language is open to more than one reasonable interpretation, a court may consider the overall statutory purpose and favor a reading that comes to a ‘consistent, harmonious, and sensible’ result effectuating that purpose. In re Marriage of Traster , 301 Kan. at 98 . Judicial interpretation should avoid adding something to the statutory language or negating something already there. Casco v. Armour Swift-Eckrich , 283 Kan. 508, Syl. ¶ 6, 154 P.3d 494 (2007). A court, of course, may also deploy those analytical tools to debunk a suggested interpretation of a statute as improbable, particularly when the suggestion would undermine a legislative purpose. See State v. James , 301 Kan. 898, 903, 349 P.3d 457 (2015) (court should construe statute ‘to avoid unreasonable or absurd results’)." Travelers Cas. Insurance v. Karns , 56 Kan. App. 2d 388, 393, 431 P.3d 301 (2018).

Retroactivity: Determining the Applicable Version of K.S.A. 44-523

The threshold issue here is whether K.S.A. 2008 Supp. 44-523(f) or K.S.A. 2017 Supp. 44-523(f)(1) applies to Green's claim. In its brief, General Motors characterizes the two versions of the statute and the differences between them as fundamentally procedural, so the version in effect in 2017 when it moved to dismiss the claim should govern. We agree with that proposition, subject to a limited qualification immaterial to Green's claim. See Norris v. Kansas Employment Security Bd. of Review , 303 Kan. 834, 841-42, 367 P.3d 1252 (2016) (procedural statute applies to cases pending when it goes into effect). General Motors, however, submits Green's claim must be dismissed under either version of 44-523(f) and then focuses on K.S.A. 2008 Supp. 44-523(f), consistent with the Board's decision. We disagree with that proposition.

Each version of 44-523(f) provides an employer with a vehicle to request dismissal of a claim that has not progressed to one of several identified stages in the adjudicatory process within a fixed time. A dismissal for lack of prosecution has nothing to do with the underlying merits of the claim and turns on the alacrity (or lack thereof) with which it has proceeded through the administrative process. Each version of the statute also outlines the mechanisms, involving various combinations of motions and hearings, for raising and resolving lack of prosecution. We examine how the particular procedures operate later. The statute, thus, imposes a limitations period—not for bringing a claim but for substantially advancing the administrative adjudication of one. And the statute establishes methods for addressing dismissal for lack of prosecution. Those are hallmarks of a procedural statute that should be applied retroactively. See State v. Spencer Gifts , 304 Kan. 755, 769, 374 P.3d 680 (2016) (statute of limitations considered procedural); Norris , 303 Kan. at 841-42, 367 P.3d 1252 (procedural statute entails "machinery" or "mode" for adjudicating legal dispute rather than defining substantive rights or claims).

Given the purpose and operation of 44-523(f), we find the statute to be procedural rather than substantive with respect to claims, like Green's, filed after K.S.A. 2008 Supp. 44-523(f) went into effect and that remained pending when the amendments in K.S.A. 2017 Supp. 44-523(f)(1) became effective in 2011. Accordingly, K.S.A. 2017 Supp. 44-523(f)(1) governs Green's claim. In that respect, the Board erred.

Statutory Construction: Tracking Changes in K.S.A. 44-523

To explain why K.S.A. 2017 Supp. 44-523(f)(1) requires reversal of the Board's decision, we begin by looking at K.S.A. 2008 Supp. 44-523(f) and then contrasting its provisions with those of K.S.A. 2017 Supp. 44-523(f)(1). As a practical matter, we simply explain our disagreement with General Motors' suggestion that the two versions of the statute have the same impact on Green's claim.

We start with K.S.A. 2008 Supp. 44-523(f), the version the Board applied:

"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 pursuant to K.S.A. 44-534, and amendments thereto, 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. This section shall not affect any future benefits which have been left open upon proper application by an award or settlement." K.S.A. 2008 Supp. 44-523(f).

The first sentence is particularly relevant here. It imposes a categorical rule of dismissal. An administrative law judge must dismiss a claim for lack of prosecution if there has been no regular hearing, settlement hearing, or agreed upon resolution within five years of claimant's initial filing for a hearing. Under K.S.A. 44-534, any party may file for a hearing if a claim for benefits cannot be resolved by agreement; the filing initiates the agency adjudicatory process with an assignment of the claim to an administrative law judge for further proceedings.

We see no basis for assuming the Legislature intended the statutory "shall" in K.S.A. 2008 Supp. 44-523(f) —commanding the administrative law judge to dismiss a claim—to be read other than in its customary way as compelling a mandatory act. See Gannon v. State , 298 Kan. 1107, 1141, 319 P.3d 1196 (2014). So K.S.A. 2008 Supp. 44-523(f) functionally defined "lack of prosecution" requiring dismissal as the failure of a claim to reach a regular or settlement hearing or to be resolved with an agreed award within five years of filing. Green's claim indisputably remained open; there never was...