Amiel C. Green, Appellant,
General Motors Corp., Appellee.
BY THE COURT
Appellate courts review decisions of the Workers Compensation
Board under the Kansas Judicial Review Act (KJRA), K.S.A.
77-601 et seq.
Various principles of statutory construction are stated and
applied: (1) An appellate court must, as a first priority,
strive to honor the legislative intent and purpose in
enacting a statute; (2) a court should look initially to the
words of a statute to discern legislative intent; (3) if
particular language is open to more than one reasonable
interpretation, a court may consider the overall statutory
purpose and favor a reading that comes to a consistent,
harmonious, and sensible result effectuating that purpose;
and (4) judicial interpretation should avoid adding something
to the statutory language or negating something already
K.S.A. 2017 Supp. 44-523(f)(1), governing dismissal of
workers compensation claims for lack of prosecution, is
procedural and properly applied to claims pending when it
became effective by amendment in 2011.
4. If a
workers compensation claim does not proceed to a regular
hearing, a settlement hearing, or an agreed award within
three years after the filing of a hearing application, the
employer may request dismissal for lack of prosecution under
K.S.A. 2017 Supp. 44-523(f)(1). After receiving an
employer's request, the administrative law judge must
notify the claimant and set the matter for a hearing on
whether the claim has been prosecuted.
Workers Compensation Act does not define failure to prosecute
or lack of prosecution. Courts and the administrative agency,
therefore, should look to the customary or usual meaning of
the term for guidance. As a legal term, lack of prosecution
entails a party's failure to pursue an action with due
diligence and at least suggests indifference approaching
abandonment of the cause.
dismissal for lack of prosecution under K.S.A. 2017 Supp.
44-523(f)(1) is with prejudice and, thus, operates as a bar
to any recovery on the injured worker's claim.
Dismissal with prejudice for lack of prosecution is typically
considered a harsh result to be sparingly imposed. Factors
bearing on dismissal with prejudice for lack of prosecution
typically include the length of the delay in moving the case
forward; reasons for the delay; what efforts had been made to
prosecute the claim; the party's personal responsibility,
if any, for the delay; and prejudice to the adverse party
beyond the mere delay itself.
from Workers Compensation Board.
L. Horner, of Boyd, Kenter, Thomas & Parrish, LLC, of
Olathe, for appellant.
Kristina Mulvany, of McAnany, Van Cleave & Phillips,
P.A., of Kansas City, for appellee.
Gardner, P.J., Atcheson and Powell, JJ.
Workers Compensation Board dismissed Amiel C. Green's
claim against General Motors Corporation seeking benefits for
an on-the-job injury. The Board found a lack of prosecution
as provided in K.S.A. 2008 Supp. 44-523(f), despite
Green's repeated requests for continuing treatment and
temporary compensation. Green has appealed. The Board applied
the wrong version of the statute. Under K.S.A. 2017 Supp.
44-523(f)(1), the correct version, lack of prosecution is