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Mullen v. Kansas Employment Security Board of Review

Court of Appeals of Kansas

June 30, 2017

Jay B. Mullen, Appellant,
v.
Kansas Employment Security Board of Review, Appellee.

         SYLLABUS BY THE COURT

         1. When the statutory language is plain and unambiguous, courts should give effect to the express language of the statute and not speculate about the intent of the legislature.

         2. If an individual lacks sufficient base period wages to establish a benefit year for purposes of making a claim under the Kansas Employment Security Act but satisfies the requirements of K.S.A. 2016 Supp. 44-705(g) and K.S.A. 2016 Supp. 44-705(hh), the Secretary of Labor shall permit the individual to have an alternative base period substituted for the current base period so as not to prevent establishment of a valid claim.

         3. K.S.A. 2016 Supp. 44-705(g) unambiguously states that an unemployed individual is eligible to receive employment security benefits if the Secretary of Labor finds that the claimant is returning to work after a qualifying injury for insured work as provided by statute and if (1) the claimant has filed for benefits within four weeks of being released to return to work by a licensed and practicing health care provider; (2) the claimant files for benefits within 24 months of the date the qualifying injury occurred; and (3) the claimant attempted to return to work with the employer where the qualifying injury occurred, but the individual's regular work or comparable and suitable work was not available.

          Filed Date: September 14, 2017

         Appeal from Reno District Court; Trish Rose, judge.

          Melinda G. Young, of Bretz & Young, of Hutchinson, for appellant.

          Justin McFarland, special assistant attorney general, deputy general counsel, of Kansas Department of Labor, for appellee.

          Before Buser, P.J., Pierron and Standridge, JJ.

          OPINION

          STANDRIDGE, J.

         Claimant, Jay B. Mullen, sustained a workplace injury on April 27, 2011. Mullen remained employed-though unable to work-for the next 2 years, until he was terminated on April 13, 2013. After his physician released him for work on August 22, 2013, Mullen applied for unemployment compensation. The Kansas Department of Labor (KDOL) denied Mullen's application. The Kansas Employment Security Board of Review (the Board) affirmed the KDOL's decision, ruling that Mullen failed to comply with the requirements of K.S.A. 2016 Supp. 44-705(g). Mullen appeals the Board's decision.

         Facts

         On April 27, 2011, Mullen, at the time an employee of Correct Care Solutions (CCS), suffered a herniated disk while performing his duties as a licensed practical nurse at the Hutchinson Correctional Facility. Mullen applied for, and received, workers compensation payments but was unable to return to work due to his injury. CCS terminated Mullen's employment on April 13, 2013. Even after he lost his job with CCS, Mullen's workers compensation doctor did not release him for any full-time work. Mullen eventually sought the second opinion of another doctor, who released him on August 22, 2013, for light or sedentary activity for 4 to 8 hours. On September 15, 2013, Mullen applied for unemployment benefits with the KDOL.

         But the KDOL determined Mullen was ineligible to receive unemployment benefits, reasoning: "Claimant did not file for benefits within four weeks of being released to return to work by a licensed and practicing health care provider, in accordance with K.S.A. 44-705[(g)(1)]." Mullen appealed this decision. An appeals referee affirmed the KDOL's conclusion finding Mullen ineligible to receive unemployment benefits but did so for a reason different than that of the KDOL. Specifically, the appeals referee modified the KDOL's decision to find Mullen "ineligible for an alternative base period as he failed to file an unemployment insurance claim with[in] 24 months after the date of the qualifying injury." Mullen appealed to the Board. The Board affirmed the appeals referee's decision without making further findings of its own.

         Mullen next filed a petition for judicial review with the district court of Reno County. In his brief to the court, Mullen argued that K.S.A. 2016 Supp. 44-705(g) was ambiguous when applied to his unique circumstances, specifically, in "situations in which the claimant is still considered to be an employee and is paid as an employee 24 months after the qualifying injury, but has not yet been released by a physician to return to work." The district court rejected this argument and ruled: "K.S.A. 44-705(g) is not ambiguous. . . . Petitioner did not file for ...


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