Johnson v. Brooks Plumbing, LLC, No. 95,668.

• Court: United States State Supreme Court of Kansas
• Writing for the Court: Beier
• Citation: 135 P.3d 1203
• Parties: Jason JOHNSON, Appellee, v. BROOKS PLUMBING, LLC, and Nationwide Mutual Insurance Company, Appellants.
• Decision Date: 09 June 2006
• Docket Number: No. 95,668.

Page 1203

135 P.3d 1203 Jason JOHNSON, Appellee,
v.
BROOKS PLUMBING, LLC, and Nationwide Mutual Insurance Company, Appellants. No. 95,668. Supreme Court of Kansas. June 9, 2006.

Page 1204

Troy A. Unruh, of Wilbert & Towner, PA, of Pittsburg, argued the cause and was on the brief for appellants.

Timothy A. Short, of Law Office of Timothy A. Short, of Pittsburg, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

This appeal requires interpretation and application of the statute governing timeliness of appeals to the Workers Compensation Board (Board).

Claimant Jason Johnson suffered a back injury at work. The decision of the administrative law judge (ALJ) responsible for the case, which found failure to prove a task loss, was issued within a week after all evidence had been submitted; administrative law judges have 30 days to rule. See K.S.A. 44-523; Nguyen v. IBP, Inc., 266 Kan. 580, 583, 972 P.2d 747 (1999) (30-day time limit directory only). A copy of the decision was mailed to Johnson's counsel's office but never arrived. Johnson's counsel learned of the decision on the last day permitted for filing of an appeal to the Board, May 24, 2005. This was too late for counsel to contact Johnson to authorize an appeal and then get it filed before the deadline. Johnson's application for Board review ultimately was filed on May 27, 2005.

The Board found that Johnson and his counsel had not received actual notice of the ALJ's decision and the date of the award; thus it considered the appeal on its merits and granted relief to Johnson. One Board member dissented. Johnson's employer, Brooks Plumbing, LLC, and its insurance carrier now challenge the Board's decision to reach the merits of the appeal, despite its late filing.

Standard of Review

Although this court has said that "interpretation of a statute is a necessary and inherent function of an agency in its administration or application of that statute" and "the interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to great judicial deference," Mitchell v. Liberty Mut. Ins. Co., 271 Kan. 684, Syl. ¶ 4, 24 P.3d 711 (2001), the determination of an administrative body as to questions of law on undisputed facts is not conclusive. While persuasive, it is not binding on the courts. See, e.g., Fieser v. Kansas State Bd. of Healing Arts, 281 Kan. 268, 270-71, 130 P.3d 555 (2006); Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546 (2004).

Resolution of this case requires statutory interpretation, as well as interpretation and application of our previous decision in Nguyen, 266 Kan. 580, 972 P.2d 747. In addition, the Board ruled that constitutional due process required it to address the merits of Johnson's appeal. This court's review over such questions of law is unlimited. See, e.g., Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004); Nguyen, 266 Kan. at 583, 972 P.2d 747.

Analysis

The right to appeal is purely statutory. Furthermore,

"`the Work[ers] 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 code of civil procedure not included in the act itself are not available in determining rights thereunder. [Citation omitted.]'"

"Such a result is consistent with the rule that where a statute provides for an appeal, the appeal is governed by that statute rather than general statutes concerning

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the right to an appeal." Jones v. Continental Can Co., 260 Kan. 547, 557, 920 P.2d 939 (1996) (citing Clay Township v. Pebley, 207 Kan. 59, 64, 483 P.2d 1101 [1971]).

The right to seek review of findings and awards by an ALJ, and the procedures governing such appeals, are contained in K.S.A. 2005 Supp. 44-551(b)(1), which states in pertinent part:

"All final orders, awards, modifications of awards, or preliminary awards under K.S.A. 44-534a and amendments thereto made by an administrative law judge shall be subject to review by the board upon written request of any interested party within 10 days. Intermediate Saturdays, Sundays and legal holidays shall be excluded in the time computation. Review by the board shall be a prerequisite to judicial review as provided for in K.S.A. 44-556 and amendments thereto."

For purposes of calculating the finality of the award, the Workers Compensation Act states that "[t]he award of the administrative law judge shall be effective the day following the date noted in the award." K.S.A. 44-525(a). The award in this case was issued on May 9, 2005. It...