Harper v. Coffey Grain Co.
| Decision Date | 25 January 1964 |
| Docket Number | No. 43731,43731 |
| Citation | 192 Kan. 462,388 P.2d 607 |
| Parties | Joe O. HARPER, Appellee and Cross Appellant, v. The COFFEY GRAIN COMPANY, Inc. Appellant and Cross Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. An appeal from the examiner's award in a workmen's compensation case, where review proceedings are pending before the director pursuant to G.S.1961 Supp. 44-551, is ineffectual to confer jurisdiction upon the district court, because it is not an appeal from the final award of the director as contemplated by the provisions of G.S.1961 Supp. 44-556.
2. The term 'final award' used in the opinion is defined to be an award which will sustain an appeal in a workmen's compensation case taken pursuant to G.S.1961 Supp. 44-556, 'from any and all decisions, findings, awards or rullings of the director to the district court.'
3. Provisions of G.S.1961 Supp. 44-551 set forth in the opinion are construed to mean that an award of the examiner in a workmen's compensation case does not become the final award of the director until the expiration of ten days after it is filed, or until a request for review, filed within the ten-day period by an interested party, is determined by the director.
4. The provision in G.S.1961 Supp. 44-551 reading 'and the filing of such a request for review shall not be a prerequisite to an appeal as provided for in section 44-556 of the General Statutes Supplement of 1959' is construed to mean that an appeal may be taken from the final award of the director, if no request for review is filed by an interested party within the ten-day period provided in such statute; but if an interested party files a request for review pursuant thereto within the ten-day period, no appeal can be taken to the district court until such review is ultimately determined by the director, or until such review ois otherwise terminated by the party making the request.
5. The provisions of G.S.1961 Supp. 44-519, enacted by the legislature in 1955, insofar as they conflict with the provisions of G.S.1961 Supp. 44-551, as to the finality of an award in a workmen's compensation case, must yield to the provisions of 44-551, supra, as construed in Syllabus p3.
6. Action taken by the workmen's compensation director on his own motion dismissing a review proceeding initiated pursuant to G.S.1961 Supp. 44-551, contrary to the specific written request of counsel for the party invoking the review proceeding, is erroneous and a nullity.
Frank C. Norton and Jerry E. Norton, Salina, for appellant and cross appellee.
Thomas R. Oglevie, Goodland, for appellee and cross appellant.
This is a workmen's compensation case in which the respondent appeals from a judgment of the district court sustaining a motion of the claimant to quash the respondent's appeal from an order of a workmen's compensation examiner. The claimant cross-appeals from an order of the district court remanding the case for review by the workmen's compensation director and in assessing the costs to the claimant.
The basic question is whether the district court erred in sustaining the claimant's motion to quash the respondent's appeal to the district court and in remanding the case to the workmen's compensation director.
The facts giving rise to the issue presented are not in dispute.
The claimant filed his application for hearing on a workmen's compensation claim on April 11, 1962. Thereafter, a hearing was held and evidence submitted to an examiner by both parties. On April 9, 1963, the examiner filed his award with the workmen's compensation director, awarding the claimant compensation against the respondent, a self insurer.
On April 11, 1963, the respondent requested the workmen's compensation director to review the award of the examiner as provided in G.S.1961 Supp. 44-551.
On April 12, 1963, claimant made demand upon the respondent and its attorney of record for payment of the award pursuant to G.S.1961 Supp. 44-512a.
By letter dated April 17, 1963, the director set the hearing on the application for review of the award entered by the examiner for May 10, 1963, this being more than twenty days after service upon the respondent of claimant's 44-512a demand for payment.
On April 29, 1963, and prior to the hearing of respondent's request for review, respondent filed a notice of appeal 'from all decisions, findings, awards and rulings of the Examiner in the above entitled matter, which is shown filed on the 9th day of April, 1963, to the District Court of Sherman County, Kansas, all within the terms and provisions of G.S.1961 Supp., 44-556.'
The respondent also filed an appeal bond as required by G.S.1949, 44-530 and G.S.1961 Supp. 44-556, since it was a self insurer.
The respondent accompanied the notice of appeal with a letter to the director, the body of which reads:
After the notice of appeal was given, the workmen's compensation director transmitted a certified copy of the notice of the appeal to the clerk of the district court along with the award of the examiner and other papers pertaining to the action.
On May 3, 1963, following receipt of the respondent's notice of appeal, the workmen's compensation director sent a letter to counsel for both the claimant and the respondent, the material portion of which reads:
Thereafter, on May 6, 1963, counsel for the claimant sent a letter to the workmen's compensation director which reads in part:
Following this letter the director, in the absence of any appearances by counsel, issued an order dismissing the respondent's review proceedings for lack of jurisdiction. The order was made effective May 10, 1963.
Thereafter, claimant filed a motion to quash the appeal of the respondent to the district court on the ground that 'the pretended Notice of Appeal in this matter is insufficient to grant this court jurisdiction of the subject matter of this action.'
The claimant's motion to quash the appeal was sustained by the district court on the 10th day of June, 1963. The material portion of the journal entry reads:
'That the appeal is premature because the appellant had asked for a hearing from the Workmen's Compensation Director in compliance with 44-551; that at the time the appeal was made the Workmen's Compensation Director had not yet made a determination; that despite the conflict between 44-551, 44-549, and 44-512a that a workmen's compensation matter is not appealable until the final order is made in compliance with 44-551; therefore, the Motion to Quash is sustained, and the case is remanded for review by the Director.
'The costs of this action are charged to the Claimant.'
On the same day (June 10, 1963) the claimant filed an action in the same district court to recover the total amount of the examiner's award, relying on G.S.1961 Supp. 44-512a. Because of claimant's conflicting position in these two cases, the district court stayed the 44-512a action pending the outcome of the instant appeal.
Both parties to this appeal take inconsistent positions. The claimant argues an appeal from an award of an examiner per se with nothing else happening to the examiner's award is insufficient to comply with G.S.1961 Supp. 44-556. Yet, the claimant apparently felt such an award sufficient to serve a notice under 44-512a, supra. The claimant further takes the position that the respondent's failure to appeal from the order of the director dismissing the review proceedings renders such order final, and presumably, under the claimant's theory, ripens the examiner's award into a final award for the claimant.
The respondent, on the other hand, in its brief says after giving consideration to 44-512a, supra, and G.S.1961 Supp. 44-549, that it determined, in order to protect itself from the effects of 44-512a, supra, it must file an appeal and post the required bond. The respondent, however, takes the position that G.S.1961 Supp. 44-551, was not intended to affect the jurisdiction of the district court to hear appeals by reason of the specific provision therein relating to appeals taken pursuant to G.S.1961 Supp. 44-556, and says the director's action in this case is an apparent acquiescence in such interpretation. The respondent further cites the court to the provisions of G.S.1961 Supp. 44-549, which makes the examiner's award when filed in the office of the commissioner deemed to be the award of the commissioner. It thus argues the award of the examiner, having been filed with the director, became under 44-549, supra, the award of the director and thus appealable under 44-556, supra.
Throughout this opinion it should be noted that review proceedings contemplated by G.S.1961 Supp. 44-551 are not the review proceedings contemplated by the provisions of G.S.1961 Supp. 44-528, and all reference to review proceedings herein are limited to such proceedings as are contemplated under 44-551, supra. (See, Duncan v. W. M. Davidson Construction Co., 170...
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