Nguyen v. IBP, Inc.

• Decision Date: 22 January 1999
• Docket Number: No. 79,240,79,240
• Citation: 266 Kan. 580,972 P.2d 747
• Parties: Hong Van NGUYEN, Appellant, v. IBP, INC., Appellee.
• Court: Kansas Supreme Court

Page 747

972 P.2d 747

266 Kan. 580

Hong Van NGUYEN, Appellant, v. IBP, INC., Appellee.

No. 79,240.

Supreme Court of Kansas.

Jan. 22, 1999.

Syllabus by the Court

1. All workers compensation final orders, awards, modifications of awards, or preliminary awards under K.S.A.1996 Supp. 44-534a and amendments thereto made by an administrative law judge are subject to review by the Workers Compensation Board upon written request of any interested party within 10 days. K.S.A.1996 Supp. 44-551(b)(1).

2. The effective date of a workers compensation award is the day following the date noted by the administrative law judge in the award.

3. The right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely.

4. Where the legislature has provided the right of an appeal, the minimum essential elements of due process of law, in an appeal affecting a person's life, liberty, or property are notice and an opportunity to be heard at a meaningful time and in a meaningful manner.

5. The reason due process requires notice to a party is to ensure that the party having the right to appeal has actual knowledge that an adverse judgment has been rendered. To satisfy due process, notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Diane F. Barger, of Wichita, argued the cause and was on the brief for appellant.

Gregory D. Worth, of Lenexa, argued the cause, and Tina M. Sabag, of Dakota City, Nebraska, was on the brief for appellee.

LOCKETT, J.:

Worker appeals an order of the Workers Compensation Board (Board) dismissing the worker's appeal as not being timely filed because the administrative law judge mailed the award to the wrong address. Worker claims the administrative law judge's clerical error tolls the time for filing an application for review with the Board.

Hong Van Nguyen sustained a work-related injury on or about March 2, 1993. On July 29, 1996, special administrative law judge (ALJ) Michael T. Harris awarded Nguyen permanent partial disability benefits based on 25 percent functional impairment to the left forearm. A copy of the award was mailed by the ALJ by United States first class mail to Nguyen's attorney at his address in Emporia, Kansas. The ALJ mistakenly placed the zip code for Topeka, Kansas, in the attorney's address.

After a circuitous routing, postal authorities delivered the award to Nguyen's attorney on September 6, 1996. Nguyen's attorney filed an application for review by the Board on September 9, 1996, 3 days after receipt of the award. IBP, Inc., (IBP) objected to Nguyen's appeal, asserting that an application for review filed out of time deprived the Board of jurisdiction of the appeal. The Board agreed and dismissed Nguyen's appeal as untimely. Nguyen appealed the Board's dismissal of the case to the Court of Appeals. The case was transferred to this court pursuant to K.S.A. 20-3018(c).

The single issue is whether the ALJ's error in addressing Nguyen's notice of award, which delayed Nguyen's receipt of the award until after the 10-day period for filing an application for review had expired, tolled the time for filing an application for review.

Nguyen makes two arguments in support of his contention that the ALJ's error tolled the running of the statutory time: First, the unique circumstances of this case provide a basis for relief; second, the misaddressed award was insufficient to satisfy minimal due process notice requirements.

IBP's position is that the time for taking an appeal is jurisdictional and any delay beyond the statutory time for taking an appeal in a workers compensation case, regardless of the reason, is fatal to the appeal. IBP relies primarily on the holding of Jones v. Continental Can Co., 260 Kan. 547, 557, 920 P.2d 939 (1996), which determined that the Workers Compensation Act is complete in itself and cannot be supplemented by the general procedural provisions of the Kansas Code of Civil Procedure which extend the time for a party to act.

Procedure for Review

The right to review of an ALJ award by the Board is stated in K.S.A.1996 Supp. 44-551(b)(1), which provides, in part: "All final orders, awards, modifications of awards, or preliminary awards under 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." The effective date of a workers compensation award is the day following the date noted by the ALJ in the award. K.S.A.1996 Supp. 44-525(a).

Nguyen contends that the Workers Compensation Act is to be liberally construed in favor of the claimant and the standard of review is abuse of discretion. IBP disputes Nguyen's contention as to liberal construction in favor of the worker and argues that the issues presented are purely jurisdictional, thereby precluding the exercise of discretion by the Board to hear the case.

Prior to 1987, the Workers Compensation Act stated it was the duty of the courts to liberally construe the workers compensation statutes to award compensation to the worker where it was reasonably possible to do so. Angleton v. Starkan, Inc., 250 Kan. 711, 716, 828 P.2d 933 (1992). The liberal construction rule favoring the worker was altered by the legislature in 1987 by the addition of subsection (g) to K.S.A. 44-501. K.S.A.1996 Supp. 44-501(g) provides:

"It is the intent of the legislature that the workers compensation act shall be liberally construed for the purpose of bringing employers and employees within the provisions of the act to provide the protections of the workers compensation act to both. The provisions of the workers compensation act shall be applied impartially to both employers and employees in cases arising thereunder."

Nguyen's contention that this court should liberally construe the Workers Compensation Act in favor of the claimant is no longer supported in law and has not been countenanced by the appellate courts in post-1987 cases. See, e.g., Miner v. M. Bruenger & Co., 17 Kan.App.2d 185, 193-94, 836 P.2d 19 (1992).

The issue presented requires us to determine whether the Board has the jurisdiction to consider a claimant's application for review filed beyond the statutory 10-day limit. Resolution of the issue requires interpretation of statutes involving review of compensation awards. Interpretation of a statute is a question of law subject to unlimited review by an appellate court. McIntyre v. A.L. Abercrombie, Inc., 23 Kan.App.2d 204, 929 P.2d 1386 (1996).

K.S.A.1996 Supp. 44-523 provides, in part:

"(c) When all parties have submitted the case to an administrative law judge for an award, the administrative law judge shall issue an award within 30 days.... When the award is not entered in 30 days, any party to the action may notify the director that an award is not entered and the director shall assign the matter to an assistant director or to a special administrative law judge who shall enter an award forthwith based on the evidence in the record, or the director, on the director's own motion, may remove the case from the administrative law judge who has not entered an award within 30 days following submission by the party and assign it to an assistant director or to a special administrative law judge for immediate decision based on the evidence in the record."

K.S.A.1996 Supp. 44-551(d) provides, in part:

"In case of emergency the director may appoint special local administrative law judges and assign to them the examination and hearing of any designated case or cases."

The ALJ was required to issue an award within 30 days of the party's submission of the case to the ALJ. See K.S.A.1996 Supp. 44-523. The provision in 44-523(c) that an award shall be made within 30 days from the time the matter is submitted to the ALJ is designed to secure prompt action; it does not impose a time limitation upon the Director's jurisdiction to make an award. See Bradford v. Boeing Military Airplanes, 22 Kan.App.2d 868, 873, 924 P.2d 1263, rev. denied 261 Kan. 1082, 941 P.2d 1388 (1997). Therefore, the 30-day limitation is directory only, not mandatory. More than 3 months passed between the date this case was submitted to the ALJ and Nguyen's receipt of the ALJ's award.

A recent Court of Appeals case filed prior to oral argument in this case, Anderson v. Bill Morris Constr. Co., Inc., 25 Kan.App.2d 603, 966 P.2d 96 (1998), Judge Lewis, dissenting, dealt with a similar issue. Anderson considered whether a delay beyond the statutory time for rendering a decision creates a responsibility on the part of the claimant to inquire about the status of his or her case. In Anderson, the ALJ rendered an order in favor of the injured worker on January 31, 1997, after conducting a preliminary hearing on January 29, 1997. Because of a mistake by the ALJ involving the current address of the attorney for Morris Construction and its insurer, Fireman's Fund, the claimant's attorney did not become aware of the order until February 24, 1997. The attorney filed an application for review on that date. The Board noted that the ALJ's order was issued on January 31, 1997, and that the application for review was not filed until February 24, 1997. Finding that more than 10 days had elapsed between those two dates, excluding Saturdays, Sundays, and legal holidays, the Board determined that the application for review was untimely. The sole issue was whether under the circumstances the Board correctly determined that the application for review was untimely filed.

K.S.A. 77-613(e) and K.S.A. 60-205(b)(2) require service (notice) of an order or other papers to be mailed to the last known address of the party or the parties' attorney. The...