K.S.A. 2011 Supp. 44-523(f)(1), a workers compensation
claimant must move for an extension within three years of
filing an application for hearing if the claim is to survive
a proper motion to dismiss.
of the judgment of the Court of Appeals in 53 Kan.App.2d 712,
390 P.3d 116 (2017).
from Workers Compensation Board.
L. Smith, of Ankerholz and Smith, of Overland Park, argued
the cause and was on the brief for appellant.
D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs,
Chartered, of Overland Park, argued the cause, and
Christopher J. McCurdy, of the same firm, was with him on the
briefs for appellees.
Fisher, of McCullough, Wareheim & LaBunker, of Topeka,
was on the brief for amicus curiae Kansas AFL-CIO.
appeal concerns the interpretation of K.S.A. 2011 Supp.
44-523(f)(1). The administrative law judge (ALJ), the Kansas
Board of Workers Compensation (the Board), and a panel of our
Court of Appeals concluded that this statute requires that a
claimant file a motion for extension within three years of
filing an application for hearing for the claim to survive a
proper motion to dismiss. We agree with this interpretation
and Procedural Background
December 5, 2012, Timmy Glaze filed an application for
hearing with the Kansas Division of Workers Compensation,
asserting that he fell and injured himself while working for
J.K. Williams, LLC.
January 4, 2016, J.K. Williams filed an application for
dismissal, stating that the ALJ should dismiss Glaze's
claim pursuant to K.S.A. 2011 Supp. 44-523(f) because Glaze
had "failed to move the claim towards regular hearing or
settlement within three years" of filing his application
for hearing. On January 29, 2016, Glaze filed a "request
for extension of time to schedule out of state deposition and
to schedule regular hearing." Glaze asserted that the
case was not ready to proceed to final hearing, because
"[d]ue to factors beyond the control of either claimant
or his Kansas counsel," he had not been able to depose
hearing, the ALJ granted J.K. Williams' application to
dismiss on February 12, 2016. In its order, the ALJ explained
that K.S.A. 2011 Supp. 44-523(f)(1) required the dismissal
because Glaze had not moved for an extension within three
years of filing his application for hearing.
appealed the dismissal to the Board. The four-member board
affirmed the dismissal, with one member dissenting. Glaze
v. JK Williams, LLC and Commerce & Industry Ins.
Co., No. 1, 063, 419, 2016 WL 2619518, at *3 (Kan. Work.
Comp. App. Bd. April 11, 2016).
appealed the Board's decision to the Court of Appeals.
The panel affirmed the lower decisions. Glaze v. J.K.
Williams, LLC, 53 Kan.App.2d 712, 390 P.3d 116 (2017).
petitioned for this court's review of the following
issues: (1) whether the panel erred in interpreting K.S.A.
2011 Supp. 44-523(f)(1) and dismissing his claim; (2) whether
the panel erred when it held that K.S.A. 2011 Supp.
44-523(f)(1) requires dismissal of a claim when a motion to
extend is not filed within three years of filing an
application for hearing; and (3) whether the panel's
interpretation of K.S.A. 2011 Supp. 44-523(f)(1) deprived him
of due process under section 18 of the Bill of Rights of the
Kansas Constitution. We granted review of his first two
is no distinguishable difference between Glaze's points
in the two issues he presents. In both, he offers arguments
about how the panel erred in interpreting K.S.A. 2011 Supp.
44-523(f)(1), and many of those arguments overlap. For this
reason, we address the issues as one.
conduct an unlimited review of issues of statutory
interpretation, owing "no significant deference to the
ALJ's or the Board's interpretation or
construction." Bryant v. Midwest Staff Solutions,
Inc., 292 Kan. 585, 587, 257 P.3d 255 (2001).
statutory language is clear and unambiguous, we simply
interpret the words used by the Legislature. Ambrosier v.
Brownback, 304 Kan. 907, 911, 375 P.3d 1007 (2016).
"A statute is ambiguous when two or more interpretations
can fairly be made." Petty v. City of El
Dorado, 270 Kan. 847, 851, 19 P.3d 167 (2001). "If
the language is less than clear or is ambiguous, we move to
statutory construction and use the canons of construction and
legislative history and other background considerations to
divine the legislature's intent."
Ambrosier, 304 Kan. at 911.
parties dispute the meaning of K.S.A. 2011 Supp.
2011 Supp. 44-523(f)(1) provides:
"In any claim that has not proceeded to a regular
hearing, a settlement hearing, or an agreed award under the
workers compensation act within three years from the date of
filing an application for hearing pursuant to K.S.A. 44-534,
and amendments thereto, the employer shall be permitted to
file with the division an application for dismissal based on
lack of prosecution. The matter shall be set for hearing with
notice to the claimant's attorney, if the claimant is
represented, or to the claimant's last known address.
The administrative law judge may grant an extension for
good cause shown, which shall be conclusively presumed in the
event that the claimant has not reached maximum medical
improvement, provided such motion to extend is filed prior to
the three year limitation provided for herein. If the
claimant cannot establish good cause, the claim shall be
dismissed with prejudice by the administrative law judge for
lack of prosecution. Such dismissal shall be considered a
final disposition at a full hearing on the claim for purposes
of employer reimbursement from the fund pursuant to
subsection (b) of K.S.A. 44-534a, and amendments
thereto." (Emphasis added.)
parties' disagreement and the panel's conclusion
center on the third sentence: "The administrative law
judge may grant an extension for good cause shown, which
shall be conclusively presumed in the event that the claimant
has not reached maximum medical improvement, provided such
motion to extend is filed ...