Jones v. Continental Can Co.

• Decision Date: 12 July 1996
• Docket Number: No. 75333,75333
• Parties: Thurma J. JONES, Claimant, v. CONTINENTAL CAN COMPANY and Aetna Life & Casualty Company, Appellees, and Kansas Workers Compensation Fund, Appellant.
• Court: Kansas Supreme Court

Page 939

920 P.2d 939

260 Kan. 547

Thurma J. JONES, Claimant, v. CONTINENTAL CAN COMPANY and Aetna Life & Casualty Company, Appellees and Kansas Workers Compensation Fund, Appellant.

No. 75333.

Supreme Court of Kansas.

July 12, 1996.

Review Denied Aug. 16, 1996.

Syllabus by the Court

1. The right to appeal is entirely statutory and not a right contained in the United States or Kansas Constitutions; Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes.

2. The Workers Compensation Act provides its own time limit for appeals of decisions of the Workers Compensation Board without reference to Chapter 60 and in preemption of K.S.A.1995 Supp. 77-613. The statutory basis for applying the provisions of the Kansas Code of Civil Procedure to workers compensation appeals discussed in Dieter v. Lawrence Paper Co., 237 Kan. 139, 697 P.2d 1300 (1985), was removed by the legislature.

3. Kansas appellate decisions are replete with statements that the Workers 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. We must look to the procedure of the Act for the methods of itsadministration. Rules and methods provided by the Kansas Code of Civil Procedure not included in the Act itself are not available in determining rights thereunder.

4. Where a statute provides for an appeal, the appeal is governed by that statute rather than general statutes concerning the right to an appeal.

5. The time limits imposed by Supreme Court Rules are not jurisdictional and can be waived. This is not true of the time limits for filing a notice of appeal imposed by statute.

6. To perfect an appeal from a final order of the Workers Compensation Board, an appeal must be filed with the Court of Appeals within 30 days of the date of the order. Three additional mailing days are not permitted.

Fred J. Logan, Jr., of Logan & Logan, Prairie Village, argued the cause, and Brian Moline and Paula Greathouse, of Kansas Commissioner of Insurance, were on the brief, for appellant.

Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., Kansas City, argued the cause, and Clifford K. Stubbs, Lenexa, of the same firm, was on the brief, for appellee.

LARSON, Justice.

The Kansas Workers Compensation Fund (Fund) appeals a Workers Compensation Board (Board) ruling that a notice the Fund was being impleaded which was transmitted to the Commissioner of Insurance (Commissioner) by telefax 52 minutes prior to the first hearing in the case is sufficient to implead the Fund under K.S.A. 44-567(d).

The Administrative Law Judge (ALJ) and the Board both held the Fund was properly impleaded so as to subject it to liability.

Because the Fund contends an untimely and improper action in its impleading, and the respondent and insurance carrier contend this appeal is not timely filed, we will set forth in detail the chronological development of this case.

Thurma Jean Jones claimed workers compensation benefits for injuries to her left shoulder and arm resulting from repeated lifting in the course of her employment with Continental Can Company. The case was placed on the active docket in September 1993; a prehearing settlement conference was held in November 1993; and in January 1994, the ALJ ordered that Jones be examined by independent expert Lynn D. Ketchum, M.D., whose evaluation was submitted in March 1994. The evaluation noted Jones had a shoulder injury that had previously been rated and concluded her disability rating was 18% permanent partial impairment of the left upper extremity at the level of the wrist.

The first evidentiary hearing was set for April 5, 1994. Continental Can and its insurance carrier, Aetna Life & Casualty Company, impleaded the Commissioner as administrator of the Fund by serving the Commissioner with copies of its impleader petition by telefax sent at 2:08 p.m. on April 5, 1994. The first full hearing where evidence was introduced was conducted at 3 p.m. on that date, and testimony of Jones was taken. The Fund did not appear, nor was it represented, although counsel for respondent and insurance carrier told the court: "Just for purposes of clarification of the record, if the Fund lawyer needs to come back and take additional evidence in this case, Mrs. Jones' depositions can be rescheduled at her convenience to do that."

In response to an April 22, 1994, letter from Jones' counsel, Dr. Ketchum stated for the first time in the record that a connection existed between the current wrist injury and the prior shoulder injury by opining, "It is my feeling that the current weakness that she has is significantly related to that first accident and that her second injury would probably not occur but for the pre-existing impairment which does not relate to the shoulder, but to the arm."

On May 6, 1994, the Fund attempted to obtain its dismissal, arguing the notice of impleader was defective because it was untimely and that notice by fax was unauthorized. On May 10, 1994, the ALJ denied the Fund's motion but continued the case to allow an appeal to the Board.

The Fund's appeal to the Board resulted in a July 14, 1994, determination by the Board that it lacked jurisdiction to review the denial of the Fund's motion to dismiss because the appeal was interlocutory.

At a July 8, 1994, hearing the ALJ approved a settlement negotiated between Jones and Continental Can. The respondent, its insurer, and the Fund stipulated the settlement was reasonable and reserved the apportionment of the award as an issue to be resolved.

Counsel for both Fund and respondent were present when the deposition of Dr. Ketchum was taken in November 1994. This resulted in a determination on February 17, 1995, by the ALJ that the Fund had been properly impleaded in conformity with governing law and was totally responsible for Jones' award.

The Fund appealed to the Board. The Board, in an order dated, filed, and mailed to all interested parties on September 29, 1995, held the notice of impleader complied with the technical requirements of K.S.A. 44-567(d) but, because the Fund had not been given a reasonable opportunity to be heard and present evidence as K.S.A. 44-523 requires, the evidence presented at the April 5, 1994, hearing was deemed to be inadmissible as related to issues involving the Fund's liability. Nevertheless, the Board affirmed the ALJ's finding that the Fund was 100 percent liable based on the deposition of Dr. Ketchum, which had been taken long after the Fund was impleaded.

The Fund filed a notice of appeal from the Board's September 29, 1995, order on November 1, 1995. The notice of appeal acknowledged the Board's order was mailed to all parties on September 29, 1995, and stated: "With three days added for service by mail, the deadline for filing a notice of appeal is November 1, 1995, and this notice of appeal is accordingly timely filed."

The respondent and insurance carrier moved for involuntary dismissal of the appeal, contending it was untimely because it was not filed within 30 days of the date of the Board's final order as required by K.S.A.1995 Supp. 44-556(a).

The Fund responded by contending it was entitled to the benefit of the "three-day mailing rule" under Supreme Court Rules 1.05(c) (1995 Kan. Ct. R. Annot. 5) and 9.04(c) (1995 Kan. Ct. R. Annot. 56), and the application of K.S.A.1995 Supp. 60-206(a) and (e).

We must first answer the difficult question of our jurisdiction to hear this appeal. It is our longstanding rule that "the right to appeal is entirely statutory and not a right vested in the United States or Kansas Constitutions; Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes." Little Balkans Foundation, Inc., v. Kansas Racing Comm'n, 247 Kan. 180, 188, 795 P.2d 368 (1990); Tobin Constr. Co. v. Kemp, 239 Kan. 430, 437, 721 P.2d 278 (1986).

The resolution of this issue involves the interpretation of statutes, which is a question of law upon which our appellate review is unlimited. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).

The Board fully complied with its statutory obligation when it rendered its decision that was dated and mailed on September 29, 1995. The mailing to all interested parties was in compliance with K.S.A.1995 Supp. 44-555c(k), which provides in part: "The board shall mail a copy of the final order of the board to all parties to the proceeding within three days following the issuance of the final order."

Once the Board had acted, any party which wished to appeal its decision was then obligated to follow the provisions of K.S.A.1995 Supp. 44-556(a), which provides in applicable part:

"Any action of the board pursuant to the workers compensation act, other than the disposition of appeals of preliminary orders or awards under K.S.A. 44-534a and amendments thereto, shall be subject to reviewin accordance with the act for judicial review and civil enforcement of agency actions by appeal directly to the court of appeals. Any party may appeal from a final order of the board by filing an appeal with the court of appeals within 30 days of the date of the final order. Such review shall be upon questions of law."

As has been previously stated, the Fund obviously recognized that its appeal was not filed within 30 days from the date of the Board's order and it attempted to invoke 3 additional days within which to file its appeal as a result of the Board's mailing of its decision to all interested parties.

This jurisdictional issue was raised by the motion of respondent and insurance carrier to dismiss the appeal for failure of the notice to be filed within 30 days "of the date of the final order." They claimed the 3 additional days arise...