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SAWYER v. OLDHAM'S FARM SAUSAGE CO.

March 2, 1990.

CORRINE SAWYER, Appellant,
v.
OLDHAM'S FARM SAUSAGE COMPANY, ARGONAUT INSURANCE COMPANY, and KANSAS WORKERS COMPENSATION FUND, Appellees.



The opinion of the court was delivered by

The first issue for review relates to whether we have jurisdiction under K.S.A. 1989 Supp. 44-556(a) to hear the appeal.

We find that we have jurisdiction.

  The second issue for review is one of statutory construction, in a workers compensation context, to determine the meaning of "a full hearing on the claim" as set out in K.S.A. 1989 Supp. 44-534a.

[246 Kan. 328]

      The claimant Corrine Sawyer's interpretation was not persuasive with either the administrative law judge, the director, or the trial court. We are extending a fourth tier of consideration to the issue. We agree with the three previous decisions and affirm.

  Corrine Sawyer appeals from the judgment of the trial court denying her: (1) medical and disability compensation for the period of September 19, 1985, through January 23, 1987, pursuant to a January 1983 preliminary hearing order, and (2) penalties for nonpayment. Her employer, its insurance carrier, and the Workers Compensation Fund (the Fund) are the respondents. The demand for penalty payments was filed by Sawyer under K.S.A. 1989 Supp. 44-512a. She asserts no claim against the Fund.

  The issues considered present questions not previously addressed by an appellate court of this state.

  Facts

  The facts are not in dispute but are stated here to provide an understanding of the claims of the parties. The facts are adequately set out in the April 11, 1988, order of the administrative law judge:
"Claimant was injured December 17, 1981. A preliminary hearing was held before a Special Administrative Law Judge, December 29, 1982, at which time temporary total disability benefits, in the amount of $186.68 per week, were ordered paid by the respondent [Oldham's Farm Sausage Company] and insurance carrier [Argonaut Insurance Company] until further order, commencing November 9, 1982, as well as medical treatment until further order. The order was dated January 3, 1983.
"On June 8, 1983, respondent's application to terminate temporary total disability compensation was heard and denied. On January 11, 1985, another application by respondent and insurance carrier to terminate temporary total disability compensation was heard and likewise denied.
  "Terminal dates were set for the completion of the taking of evidence and, on or about September 19, 1985, an award was made for temporary total disability benefits, at the increased rate of $187.00 per week, and medical benefits. A review of the Administrative Law Judge's award was taken by the respondent, insurance carrier and fund to the Director, pursuant to K.S.A. 44-551(b), within 10 days after the award was made. Pending the outcome of the review at the Director's level, the respondent and insurance carrier ceased paying temporary total disability benefits, which it had been dutifully paying, pursuant to the orders on preliminary hearing,

[246 Kan. 329]

      pursuant to K.S.A. 44-534a. The temporary total disability benefits were terminated as of October 16, 1985.

 
"On June 19, 1986, claimant's attorney made demand upon respondent and insurance carrier for payment of the temporary total disability benefits ordered by the Special Administrative Law Judge, January 3, 1983. At that point, there had not been an order entered by the Director on review. The Director's order came down January 23, 1987, modifying the award of September 19, 1985, making an award for 21.71 weeks of temporary total disability compensation and no permanent partial disability compensation. Respondent and insurance carrier paid some $36,000.00 in compensation to claimant under the preliminary hearing order, some $32,000.00 in excess of what was ultimately found to be due to claimant. In essence, claimant contends that the Administrative Law Judge's order entered pursuant to the preliminary hearing remained in effect notwithstanding the award made September 19, 1985."
  A district court (the record does not specify which district court) affirmed the director's final award of 21.71 weeks of temporary total disability compensation on April 6, 1987. Apparently, neither the director nor the district court addressed the issue raised in this appeal at the time of the final award. The April 6, 1987, order of the district court affirming the director's award was never appealed by Sawyer.

  Sawyer's request for penalties was denied by the administrative law judge. Sawyer requested the director's review, as provided for in K.S.A. 44-551(b). The director affirmed the order of the administrative law judge. Sawyer then petitioned for review to the district court of ...


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