Johnson v. State

• Court: Kansas Supreme Court
• Writing for the Court: LOCKETT
• Citation: Johnson v. State, 727 P.2d 912, 240 Kan. 123 (Kan. 1986)
• Decision Date: 31 October 1986
• Docket Number: No. 58574,58574
• Parties: DeElla Alice JOHNSON, Appellee, v. STATE of Kansas--Kansas Neurological Institute, and State Self-Insurance Fund, Appellants, and Workers' Compensation Fund, Appellee.

Page 912

727 P.2d 912

240 Kan. 123

DeElla Alice JOHNSON, Appellee, v. STATE of Kansas--Kansas Neurological Institute and State Self-Insurance Fund, Appellants and Workers' Compensation Fund, Appellee.

No. 58574.

Supreme Court of Kansas.

Oct. 31, 1986.

Syllabus by the Court

1. Appellate courts should be reluctant to interfere with the course of litigation determined in the trial courts or administrative hearings. Deference to the lower court or the administrative process usually precludes review on issues other than those presented at the trial or the hearing. The rule limits reviewing courts somewhat from raising legal issues sua sponte.

2. Three exceptions to the general rule that reviewing courts will not consider on appeal issues not raised in the trial court or the administrative hearing are: (1) cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case; (2) cases where consideration of a question raised for the first time on appeal is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) cases where a judgment of a trial court may be upheld on appeal even though the court may have relied on the wrong ground or assigned a wrong reason for its decision.

Randall J. Forbes, of Frieden & Forbes, Topeka, argued and was on briefs, for appellants.

Martha M. Snyder, of Palmer, Marquardt & Snyder, P.A., Topeka, argued and was on brief, for appellee, DeElla Alice Johnson.

Derek J. Shafer, Topeka, argued and was on briefs, for appellee Workers' Compensation Fund.

LOCKETT, Justice:

This is a workers' compensation case. The injured worker was employed by the State of Kansas. It was discovered that seven and a half years prior to the present injury she had suffered a similar type injury while working for the State and had been determined to be permanently partially disabled. The Administrative Law Judge (ALJ) found that the Workers' Compensation Fund (Fund) should be assessed a portion of the award since the State had retained a handicapped worker. The Fund appealed to the Director of Workers' Compensation (Director). The Director ruled that there was not sufficient evidence to show that the employing agency had retained a handicapped worker. The State Self-Insurance Fund then appealed to the district court, which affirmed the Director's decision. On appeal the Court of Appeals ruled on a legal issue determined below but, because there had been no cross-appeal of that legal issue, we accepted the matter for review.

Claimant/appellee DeElla Alice Johnson was a child development specialist and supervisor at the Kansas Neurological Institute (KNI) in Topeka. She had worked at KNI for 23 years. Her duties included dressing, bathing, feeding, transporting and generally caring for the physical needs of 32 profoundly retarded, nonambulatory adult patients. On August 16, 1982, while pulling a choking patient out of his wheelchair, Johnson injured her back. Her orthopedic surgeon diagnosed her condition as herniated or bulging discs with nerve root compression. She has not been released to work since the day of her injury.

Johnson filed a claim for compensation against respondents KNI and the State Self-Insurance Fund. The Fund was subsequently impleaded when a search of the Self-Insurance Fund's records revealed that Johnson had settled a previous claim with KNI for 12 1/2 percent permanent general disability for a slip-and-fall induced back injury suffered in November 1974. She had been off work for one month after the first injury and then had returned to work with no symptoms until the second injury approximately seven and a half years later.

At the hearing on the present injury before the ALJ, the contested issues were the nature and extent of Johnson's disability and whether KNI had knowingly retained a handicapped employee. George Welch, the director of the State Self-Insurance Fund, testified that he had approved Johnson's settlement in 1974, knowing she was likely to continue to have back problems. The ALJ awarded Johnson compensation based on a finding of a 95 percent permanent partial general work disability. The ALJ held: (1) that KNI had met its burden of showing knowing retention of Johnson because Welch was an employee of the State and his knowledge could be imputed to KNI, and (2) that the 1974 injury contributed 30 percent to the 1982 injury. He assessed 30 percent of the award against the Fund.

The Fund requested that the Director review the decision. The Director affirmed the finding of 95 percent work disability, but reversed as to the Fund's liability. The Director found that KNI had imputed knowledge but, since Johnson's preexisting disability was not demonstrably disabling, KNI had the burden of persuasion that it had a reservation when it retained the handicapped employee. Finding no evidence of such reservation, the Director concluded no portion of the award could be assessed against the Fund.

The State Self-Insurance Fund appealed to the Shawnee County District Court. The district court adopted the rulings of the ALJ as modified by the Director. KNI appealed the finding that it had not shown reservations about retaining the handicapped claimant. The Fund did not cross-appeal the district court's finding that knowledge of claimant's preexisting condition was imputable to KNI. On appeal, the Court of Appeals, however, considered whether George Welch had knowledge which was imputable to KNI. Johnson v. Kansas Neurological Institute, 11 Kan.App.2d 161, 716 P.2d 598 (1986). The Court of Appeals stated:

"We need not reach consideration of what respondents here consider to be a troublesome application of the reservation concept. Assuming Welch's testimony is sufficient to show knowledge, as we must on review, we nonetheless must disagree with the respondents' legal conclusion that that knowledge must be imputed to KNI." 11 Kan.App.2d at 162-163, 716 P.2d 598.

The court went on to say that neither the cases nor the evidence require the conclusion that the director of the State Self-Insurance Fund was an agent of KNI for the purpose of imputing knowledge to KNI. It concluded that the district court was correct in holding that the Fund was not liable, even though the court reached that conclusion for the wrong reason.

KNI contends that the ALJ, the Director, and the district court all held that the claimant's employer had imputed knowledge of claimant's preexisting condition. KNI appealed the rulings adverse to it, but the Fund did not cross-appeal the finding that knowledge of the handicap was imputed to the employer. KNI argues that the Court of Appeals incorrectly based its decision on an issue not appealed and it never considered the issues raised on appeal.

K.S.A. 60-2103(h) provides:

"When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which he or she complains, the appellee shall within twenty (20) days after the notice of appeal has been served upon him or her and filed with the clerk of the trial court, give notice of his or her cross-appeal."

K.S.A. 60-2103(h) requires appellees to cross-appeal adverse rulings to obtain appellate review of those issues. Douglas v. Lombardino, 236 Kan. 471, 490, 693 P.2d 1138 (1985); Chetopa State Bancshares, Inc., v. Fox, 6 Kan.App.2d 326, 334, 628 P.2d 249, rev. denied 229 Kan. 669 (1981). Timely filing of a cross-appeal is jurisdictional. Haas v. Freeman, 236 Kan. 677, 684, 693 P.2d 1199 (1985).

Appellate courts serve two quite different functions. The appellate court reviews the trial record for error in the particular case. It also uses the case before it as a vehicle for stating and applying constitutional principles, for authoritatively interpreting statutes, or for formulating and expressing policy on legal issues of state-wide concern.

Appellate courts should be reluctant to interfere with the course of litigation determined in the trial courts or administrative hearings. Deference to the lower court or the administrative process usually precludes review of issues other than those presented at the trial or the hearing. The rule limits reviewing courts somewhat from raising legal issues sua sponte.

Three exceptions to the general rule that reviewing courts will not consider on appeal issues not raised in the trial court or the administrative hearing are:

(1) Cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case;

(2) cases where consideration of a question raised for the first time on appeal is necessary to serve the ends of justice or to prevent denial of fundamental rights; and

(3) cases where a judgment of a trial court may be upheld on appeal even though the court may have relied on the wrong ground or assigned a wrong reason for its decision. See State v. Puckett, 230 Kan. 596, 598-99, 640 P.2d 1198 (1982).

The Court of Appeals' stated exception for raising the issue sua sponte was that the district court had "relied upon a wrong ground or assigned an erroneous reason for its decision."

The Court of Appeals never decided that the district court was wrong when it determined there had been no "reservation." Without notice to the parties, it chose to determine sua sponte whether knowledge of the...