Jay B. Mullen, Appellant,
Kansas Employment Security Board of Review, Appellee.
BY THE COURT
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.
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.
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.
Date: September 14, 2017
from Reno District Court; Trish Rose, judge.
Melinda G. Young, of Bretz & Young, of Hutchinson, for
McFarland, special assistant attorney general, deputy general
counsel, of Kansas Department of Labor, for appellee.
Buser, P.J., Pierron and Standridge, JJ.
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.
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.
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.
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 ...