Lackey v. D & M Trucking

Decision Date30 August 1984
Docket NumberNo. 55665,55665
Citation9 Kan.App.2d 679,687 P.2d 23
PartiesRichard H. LACKEY, Deceased, Claimant/Appellee, v. D & M TRUCKING, Respondent/Appellant, and Home Insurance Company, Insurance Carrier/Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

1. The Kansas Workmen's Compensation Act is to be liberally construed in order to award compensation to the worker where it is reasonably possible to do so, and to effectuate legislative intent.

2. An obvious purpose of the lump-sum payment to the surviving legal spouse upon remarriage (K.S.A. 44-510b[b ] is to lessen the disincentive to remarriage created by the complete termination of dependency benefits.

3. A lump-sum payment pursuant to K.S.A. 44-510b(b ) does not constitute a redemption of liability under K.S.A. 44-531(a) With the accompanying eight percent discount.

4. Upon the date of remarriage of a surviving legal spouse, the compensation payable to that spouse shall be reapportioned to those eligible dependent children without regard to the lump-sum payment made to that spouse. K.S.A. 44-510b(g ).

5. A K.S.A. 44-510b(b ) lump-sum award is not a weekly benefit which is subject to the maximum benefit limit of K.S.A. 44-510b(a).

6. Attorney fees in workers' compensation cases are allowable only where expressly authorized by the Workmen's Compensation Act.

7. Where no claim for attorney fees is presented to the director, the district court lacks statutory authority to award attorney fees on appeal of the order of apportionment. K.S.A. 44-536(g ); k.s.a.1983 supp. 44-556(B ).

John E. Fierro, Dodge City, for appellants.

Jeff Johnson, Hugoton, for appellee.

Before REES, P.J., and SWINEHART and BRISCOE, JJ.

SWINEHART, Judge:

This is an appeal by D & M Trucking, the respondent, and Home Insurance Company, the insurance carrier, from the district court's order affirming the decision of the administrative law judge. The district court held: (1) that an employer's lump-sum payment made to a surviving legal spouse upon her remarriage, as provided in K.S.A. 44-510b(b ), does not entitle that employer to the eight percent discount provided in K.S.A. 44-531(a); (2) that the surviving spouse's share of a workers' compensation award should be reapportioned to the surviving dependent children from the date of that spouse's remarriage; and (3) that an award of attorney fees against the employer to the attorney representing the surviving dependent children was proper under the provisions of K.S.A. 44-536.

Richard Lackey was killed in August, 1981, while working for respondent, D & M Trucking. Benefits in the following amounts were awarded to decedent's dependents pursuant to K.S.A. 44-510b: Roxanna Lackey, widow--$93.50 weekly; James and Keri Lackey--$93.50 weekly. Decedent's widow remarried on September 25, 1982, and took the name Roxanna Nairn.

Jeff Johnson, conservator and attorney for Keri and James Lackey, filed and served in November, 1982, a written motion for reapportionment of those benefits awarded in October, 1981, pursuant to K.S.A. 44-510b. After hearing this motion on November 15, 1982, the administrative law judge awarded Roxanna Nairn the lump sum of one hundred weeks of benefits, without any discount, under the terms of that statute. Keri and James were awarded those benefits payable to Roxanna as of September 25, 1982, the date of Roxanna's remarriage. Respondent and insurance carrier appealed to the district court. The district court affirmed those awards, and, in addition, awarded Jeff Johnson attorney fees amounting to $961.40.

We first examine the district court's ruling that the employer was not entitled to an eight percent discount on the one-hundred-week lump-sum payment to Roxanna upon her remarriage.

Two sections of the Kansas Workmen's Compensation Act are alleged to be pertinent to this issue. K.S.A. 44-510b(b ) provides:

"Upon the remarriage of a surviving legal spouse receiving compensation under this section, the benefits being paid to such spouse shall terminate, except that upon such remarriage, one hundred (100) weeks of benefits at the highest rate paid to such spouse under this section, shall be paid to such spouse in one lump sum."

K.S.A. 44-531 provides:

"(a) Where all parties agree to the payment of all or any part of compensation due under the workmen's compensation act or under any award or judgment, and where it has been determined at a hearing before the director or an assistant director that it is for the best interest of the injured employee or the dependents of a deceased employee, or that it will avoid undue expense, litigation or hardship to any party or parties, the director may permit the employer to redeem all or any part of his liability under the workmen's compensation act by the payment of compensation in a lump sum. The employer shall be entitled to an eight percent (8%) discount on the amount of any such lump sum payment, exclusive of any compensation due as of the date of such lump sum payment. Upon paying such lump sum the employer shall be released and discharged of and from all liability under the workmen's compensation act for that portion of the employer's liability redeemed under this section.

"(b ) No lump sum awards shall be rendered under the workmen's compensation act except as provided in subsection (a) of this section, in cases of remarriage of a surviving spouse as provided in K.S.A. 44-510b, as amended, in cases involving compensation due the workman at the time the award is rendered as provided in K.S.A. 44-525, as amended, and in cases of past due compensation as provided in K.S.A. 44-529."

Respondent argues that its lump-sum payment to Roxanna, as required by 44-510b(b ), redeemed part of its liability under the act, and entitles it to an eight percent discount under 44-531. This issue of statutory construction is one of first impression in Kansas.

The following general rules guide us in construing the Workmen's Compensation Act:

"[T]his court has been firmly committed to the rule of liberal construction of the act in order to award compensation to the workman where it is reasonably possible to do so, and to make the legislative intent effective and not to nullify it. Chapman v. Wilkenson Co., 222 Kan. 722, 567 P.2d 888 [1977] [citations omitted] ....

....

"... Legislative intent is to be determined by a general consideration of the entire act. Effect should be given, if possible, to the entire statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. Easom v. Farmers Insurance Co., 221 Kan. 415, 421, 422, 560 P.2d 117 [1977]. Where a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Lakeview Gardens, Inc. v. State, ex rel. Schneider, 221 Kan. 211, 214, 557 P.2d 1286 [1976]. Where various provisions of an act conflict, this court should attempt to reconcile such provisions in order to make them harmonious and sensible. Jordan v. Doonan Truck & Equipment, Inc., 220 Kan. 431, 434, 552 P.2d 881 [1976]." Brinkmeyer v. City of Wichita, 223 Kan. 393, 396-97, 573 P.2d 1044 (1978).

Applying these rules, we find respondent's argument to be unpersuasive.

K.S.A. 44-531(a) Establishes one situation in which lump-sum payments are authorized and provides for an eight percent discount in such situations. In contrast, 44-531(b ) specifies all the circumstances in which lump-sum payments are permitted, and clearly distinguishes between lump-sum payments authorized under 44-531(a) and lump-sum payments made pursuant to 44-510b(b ). 44-531(b ) does not provide that the eight percent discount under 44-531(a) also applies to every situation in which lump-sum payments are statutorily allowed.

The elements of a lump-sum payment under 44-531(a) are: (1) all parties agree to a payment under the act or in compliance with an award; (2) the director determines that a lump-sum payment is in the best interest of the employee and/or dependents; and (3) the director "may permit" the employer to redeem all or part of its liability under the act. In contrast, the lump-sum award under 44510b(b ) is not a product of the parties' agreement or the exercise of the director's discretion. The statutory discount in 44-531(a) was intended as a benefit for "an employer who manifests a whole-hearted readiness to do for his injured workman all that the compensation law requires of him." Edgar Zinc Co. v. Hamer, 130 Kan. 58, 62, 285 P. 550 (1930).

In considering statutes which require a lump-sum payment to a widow upon remarriage, one commentator noted: "The obvious purpose of such a provision is to lessen the disincentive to remarriage that would be inherent in a flat cut-off of dependency benefits." 2 Larson on Workmen's Compensation Law § 64.42 (1983). In construing the Missouri provision for remarriage payment, the Missouri Supreme Court ruled: "Yardley [v. Montgomery, 580 S.W.2d 263 (Mo.1979) ] considered the remarriage payment to be a matter separate and apart from ordinary compensation benefits, and that the remarriage payment is not an installment of compensation. Neither does it represent an advance payment of future installments of compensation." Ikerman v. Koch, 580 S.W.2d 273, 279 (Mo.1979). We find the Missouri Supreme Court's conclusion to be persuasive, since the reference in 44-510b(b ) to the one hundred weeks of benefits appears to be merely the manner of calculating the lump-sum payment, and does not create any opportunity for the employer to redeem its liability under 44-531(a). Similarly, the New Jersey Supreme Court interpreted its statutory remarriage provision to mean: "that upon remarriage (1) the widow receives in lump sum, without discount, the balance of the compensation not yet accrued to her, or $1,000, whichever is...

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