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Green v. General Motors Corp.

Court of Appeals of Kansas

February 8, 2019

Amiel C. Green, Appellant,
v.
General Motors Corp., Appellee.

         SYLLABUS BY THE COURT

         1. Appellate courts review decisions of the Workers Compensation Board under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq.

         2. 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 there.

         3. 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.

         5. The 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.

         6. A 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.

         7. 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.

          Appeal from Workers Compensation Board.

          Dennis 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.

          Before Gardner, P.J., Atcheson and Powell, JJ.

          ATCHESON, J.

         The 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 ...


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