Appeal from the Workers Compensation Board.
1. The issue of whether K.S.A. 2006 Supp. 44-510k(c) permits an award of expert witness fees is a question of law.
2. Under the doctrine of operative construction, the Workers Compensation Board's interpretation of the law is entitled to judicial deference. If there is a rational basis for the Board's interpretation, it should be upheld upon judicial review. However, the Board's determination on questions of law is not conclusive and, though persuasive, is not binding on a court. The party challenging the Board's interpretation bears the burden of proving its invalidity.
3. When the Kansas Legislature intends to vest a judge or administrative tribunal with discretion to award expert witness fees to a party, the legislature makes an explicit authorization of authority.
4. K.S.A. 44-553 specifically provides for witness fees and states: "Each witness who appears before the director or administrative law judge in response to a subpoena shall receive the same fee and mileage as is provided for witnesses attending district court in civil cases in this state." There is no statutory suggestion the fee charges of experts to secure their testimony should be treated as costs or witness fees in workers compensation proceedings.
5. The Workers Compensation Board's conclusion that K.S.A. 2006 Supp. 44-510k(c) does not permit an award of costs for expert witness fees is reasonable and in conformity with legislative intent.
The opinion of the court was delivered by: Knudson, J.
Before BUSER, P.J., and KNUDSON, S.J., and BUKATY, S.J.
In this workers compensation proceeding, John W. Higgins (claimant) appeals from the order of the Workers Compensation Board (Board) and its determination that postaward expert witness fees are not to be awarded to claimant as costs under K.S.A. 2006 Supp. 44-510k(c). The issue presented is one of first impression.
The controlling facts are not in dispute. Claimant is receiving a compensation award after sustaining a work-related back injury. Subsequently, his back became worse and he made application for postaward medical treatment. Evidentiary depositions were taken from two physicians to support claimant's need for additional treatment. At hearing, the administrative law judge (ALJ) granted claimant's application but would not award expert witness fees as costs. On appeal, the Board upheld the decision of the ALJ. The Board, with one dissent, interpreted K.S.A. 2006 Supp. 44-510k(c) to allow only traditional in-court statutory witness fees as costs, not fees charged by physicians for giving deposition testimony. The dissent would have allowed the award, reasoning that "if the cost of retaining an expert to testify on [claimant's] behalf is not considered a recoverable expense, it may deter a claimant from requesting additional medical benefits."
We affirm the decision of the Board under the doctrine of operative construction. See Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546(2004).
K.S.A. 2006 Supp. 44-510k(c) states:
"The administrative law judge may award attorney fees and costs on the claimant's behalf consistent with subsection (g) of K.S.A. 44-536 and amendments thereto. As used in this subsection, 'costs' include, but are not limited to, witness fees, mileage allowances, any costs associated with reproduction of documents that become a part of the hearing record, the expense of making a record of the ...