Helms v. Tollie Freightways, Inc.
| Decision Date | 17 February 1995 |
| Docket Number | No. 71297,71297 |
| Citation | 20 Kan.App.2d 548,889 P.2d 1151 |
| Parties | Vickie Ruth HELMS, Claimant, v. TOLLIE FREIGHTWAYS, INC., Respondent, and Insurance Company of North America, Insurance Carrier/Appellee, and Truck Insurance Exchange, Insurance Carrier/Appellant, and Kansas Workers Compensation Fund. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The procedural avenues for review of workers compensation awards were changed by the legislature in 1993. Presently, the administrative law judge's decision is, upon request, subject to review by the Workers Compensation Board, and review by the Board is a prerequisite to judicial review. The Board may review questions of both law and fact, and its decisions are appealable directly to the Court of Appeals, which is limited to reviewing questions of law.
2. K.S.A. 44-555b(a) authorizes the Workers Compensation Board "to review all decisions, findings, orders and awards of compensation of administrative law judges." The legislature intended the Board to have the authority to review and to substitute its judgment for the decisions of the administrative law judges. Under the facts of the present case, the administrative law judge had jurisdiction to determine which of two insurance carriers before him had coverage of the 1991 accident, and the Board had full jurisdiction to review the award and correct any errors it found therein.
3. The "last injurious exposure" rule assigns liability to the carrier covering the risk at the time of the most recent injury that bears a causal relation to the original disability. If an employee sustains a subsequent injury which is found to be a new injury, the insurer at risk at the time of the second injury is liable for all of the claimant's benefits.
Julie A.N. Sample and Kip A. Kubin, of Payne & Jones, Chartered, Overland Park, for appellant Truck Ins. Exchange.
Marcia Sandgren, of Law Offices of Rex R. Redhair, Kansas City, MO, for appellee Ins. Co. of North America.
Before BRISCOE, C.J., GERNON, J., and ROBERT H. MILLER, Chief Justice Retired, Assigned.
Truck Insurance Exchange (Truck) appeals from the decision of the Workers Compensation Board (Board) holding that Truck is liable for Vickie Ruth Helms' compensation for her work-related injury. There is no dispute that Helms sustained a work-related injury, nor is there any dispute as to the amount of compensation awarded. The sole dispute here is between the insurance carriers, Truck and Insurance Company of North America (ICNA), as to which one is liable. The Administrative Law Judge (ALJ) held ICNA liable. The Board reversed that portion of the ALJ's decision and held Truck liable. This appeal followed. Helms did not appear at oral argument, nor was a brief filed in her behalf.
The background facts are as follows: Helms, while employed at Tollie Freightways, Inc., (Tollie) severely injured her wrist in a work-related accident in February 1988. Approximately three years later, she still had not returned to work due to the injury, and she continued to receive daily physical therapy on her wrist. She was involved in a car accident and injured her back in January 1991 while she was on her way home from a daily therapy session. That injury was held to be work-related.
Truck was the insurance carrier for Tollie in 1988, at the time of the wrist accident. Helms' claim for that injury has now been settled. Tollie changed insurance carriers in April 1990, and ICNA was its insurance carrier at the time of the back injury in 1991. We are concerned here only with the back injury. Each of the insurance carriers claim that the other was on the risk and is, therefore, liable to pay compensation to Helms for the back injury.
Truck raises two issues. It argues: (1) The Board does not have jurisdiction to determine which of two insurance carriers had coverage for the 1991 accident; and (2) there was insufficient evidence to support the Board's finding that the 1991 accident was a direct, proximate consequence of the 1988 accident.
This court's review of an action of the Board is limited to questions of law. K.S.A. 44-556(a). When determining a question of law, an appellate court is not bound by the decision of the court below. Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
The procedural avenues for review of workers compensation awards were changed in 1993. The initial hearing is and continues to be before an ALJ, who enters or denies an award. Under the pre-1993 law, any party could then file an application for review by the Director, but such a review was not a prerequisite to judicial review. K.S.A.1992 Supp. 44-551(b). Also, any party could request a review by the district court on questions of both law and fact. K.S.A.1992 Supp. 44-556(a).
Since the legislative changes enacted in 1993, the ALJ's decision is, upon request, subject to review by the Board, and review by the Board is a prerequisite to judicial review. K.S.A. 44-551(b)(1). The Board may review questions of both law and fact, K.S.A. 44-555b(a), and its decisions are appealable directly to the Court of Appeals, which is limited to reviewing questions of law. K.S.A. 44-556(a).
K.S.A. 44-551(b)(1) provides in pertinent part:
(Emphasis added.)
K.S.A. 44-555b(a) provides:
(Emphasis added.)
K.S.A. 44-556 provides for judicial review of actions of the board:
K.S.A.1992 Supp. 44-551(b)(1), in effect prior to the 1993 amendments, read:
K.S.A.1992 Supp. 44-556 provided the avenue for judicial review. It read:
The Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., sets forth the procedural rules for appeals to the courts from the action of state agencies. With reference to workers compensation actions, the Act provides:
"Judicial review of disputed issues of fact shall be confined to the agency record for judicial review as supplemented by additional evidence taken pursuant to this act, except that review of:
(a) Orders of the director of workers' compensation under the workmen's compensation act shall be in accordance with K.S.A. 44-556 and amendments thereto." K.S.A.1994 Supp. 77-618.
Finally, K.S.A. 77-623 provides: "Decisions on petitions for judicial review of agency action are reviewable by the appellate courts as in other civil cases."
K.S.A. 44-532 requires employers who are under the Workers Compensation Act to have either insurance, a self insured plan, or be covered by a group-funded workers compensation pool. Insurance carriers are mentioned throughout the Workers Compensation Act. See K.S.A. 44-512a(a), K.S.A. 44-528(a), K.S.A. 44-532, K.S.A. 44-534, and K.S.A. 44-534a. Several sections of the Act deal specifically with insurance carriers. See K.S.A. 44-559, K.S.A. 44-559a, K.S.A. 44-561, K.S.A. 44-562, and K.S.A. 44-563. Insurance carriers may initiate the hearing process. K.S.A. 44-534. When an insurance carrier is present, it, like the employer and the claimant, is a party to the action and may appeal, as Truck has done in the case before us.
An award by an ALJ must be in writing, K.S.A. 44-525, and must determine not only whether compensation is or is not due and the amount thereof, but must name the parties--the claimant, the employer, and the insurance carrier, if any. Thus, the ALJ must decide whether there is an insurance carrier and, in the case of multiple insurers, which is on the risk. One of the pretrial questions to...
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...(2006). Last injurious exposure rule The last injurious exposure rule was first applied by this court in Helms v. Tollie Freightways, Inc., 20 Kan.App.2d 548, 557, 889 P.2d 1151 (1995). There, the claimant suffered a wrist injury at work. Subsequently, the claimant was involved in an accide......
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