Printable Format44-534. Proceedings; time limitations; electronic filing system authorized. (a) Whenever the employer, worker, Kansas workers compensation fund or insurance carrier cannot agree upon the worker's right to compensation under the workers compensation act or upon any issue in regard to workers compensation benefits due the injured worker thereunder, the employer, worker, Kansas worker's compensation fund or insurance carrier may apply in writing to the director for a determination of the benefits or compensation due or claimed to be due. The application shall be filed in the form prescribed by the rules and regulations of the director, including requirements for electronic filing, and the application shall set forth the substantial and material facts in relation to the claim. Whenever an application is filed under this section, the matter shall be assigned to an administrative law judge. The director shall forthwith mail a certified copy of the application to the adverse party. The administrative law judge shall proceed, upon due and reasonable notice to the parties, which shall not be less than 20 days, to hear all evidence in relation thereto and to make findings concerning the amount of compensation, if any due to the worker.
(b) No proceeding for compensation shall be maintained under the workers compensation act unless an application for a hearing is on file in the office of the director within three years of the date of the accident or within two years of the date of the last payment of compensation, whichever is later.
(c) After implementation of rules and regulations by the director, if the workers compensation electronic filing system is inaccessible on the last day for filing, then the time for filing shall be extended to the first accessible day that is not a Saturday, Sunday or legal holiday. As used in this subsection:
(1) "Last day" means:
(A) For electronic or facsimile filing, at midnight in the division's time zone on the final day for filing; and
(B) for filing by other means, at 5 p.m. in the division's time zone on the final day for filing; and
(2) "legal holiday" means any day declared a holiday by the president of the United States, the congress of the United States or the legislature of this state, or any day observed as a holiday by order of the governor. A half holiday shall be treated as other days and not as a holiday.
History: L. 1927, ch. 232, § 41; L. 1974, ch. 203, § 33; L. 1993, ch. 286, § 48; L. 1997, ch. 125, § 8; L. 1998, ch. 114, § 3; L. 2016, ch. 98, § 2; July 1.
Source or prior law:
L. 1911, ch. 218, § 36; L. 1917, ch. 226, § 20; R.S. 1923, 44-534.
Law Review and Bar Journal References:
1953-55 survey of act, Albert M. Ross, 4 K.L.R. 325, 330 (1955).
"Potential Federalization of State Workmen's Compensation Law—The Kansas Response," James C. Wright and James P. Rankin, 15 W.L.J. 244, 256 (1976).
"Workmen's Compensation—An Introduction to Changes in the Kansas Statute," Bryce B. Moore, 24 K.L.R. 603, 607 (1976).
Judicial review of administrative decisions, 17 W.L.J. 312, 313 (1978).
"Workers' Compensation: The Exclusive Remedy Rule is Alive and Well in Kansas [Hormann v. New Hampshire Insurance Co. , 236 Kan. 190, 689 P.2d 837 (1984)]," Janet K. Kerr, 25 W.L.J. 192 (1985).
"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 3, Review Section, 1, 6 (1996).
"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 2, Review Section, 33 (1996).
"Workers Compensation Review," J.K.T.L.A. Vol. XX, No. 6, Review Section, 29 (1997).
"Workers Compensation Review," J.K.T.L.A. Vol. XXIII, No. 2, 25 (1999).
"Workers Compensation Review," J.K.T.L.A. Vol. XXIII, No. 4, 21 (2000).
"Workers Compensation Review," Patrick R. Nichols, J.K.T.L.A. Vol. 24, No. 1, 19 (2000).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 25, No. 4, 22 (2002).
"Workers Compensation Review," Jan L. Fisher, Ed., J.K.T.L.A. Vol. 28, No. 5, 18 (2005).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 30, No. 2, 18 (2006).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 30, No. 4, 19 (2007).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.A.J. Vol. 33, No. 6, 31 (2010).
CASE ANNOTATIONS
Explanation, see Revisor's Note under article title, chapter 44, article 5.
1. Director compelled to hear all evidence bearing on all points and branches of the case; until this is done case remains unfinished.
(a) Employers' Liability Assurance Corp. v. Matlock, 151 Kan. 293, 299, 98 P.2d 456 (1940);
(b) Brown v. Shellabarger Mill & Elev. Co., 142 Kan. 476, 478, 50 P.2d 919 (1935);
(c) Walz v. Missouri Pac. Rld. Co., 142 Kan. 164, 166, 45 P.2d 861 (1935);
(d) Willis v. Skelly Oil Co., 135 Kan. 543, 11 P.2d 980 (1932).
2. Only pursuant to substantial compliance with prescribed procedure may an award be entered; commissioner (director) to hear all evidence pertaining to any question at issue; ex parte order to change doctor and hospital not authorized. Wolgamott v. Vinegar Hill Zinc Co., 151 Kan. 374, 377, 99 P.2d 758 (1940).
3. When proceedings have been "commenced before the commissioner" by serving written claim, claimant has three years to make application for hearing. Ricker v. Yellow Transit Freight Lines, Inc., 191 Kan. 151, 157, 159, 379 P.2d 279 (1963).
4. This section recognizes only the employer and employee insofar as right to notice is required. Landes v. Smith, 189 Kan. 229, 234, 368 P.2d 302 (1962).
5. Powers stated; include right to determine jurisdiction to hear claims. Anchor Casualty Co. v. Wise, 172 Kan. 539, 544, 241 P.2d 484 (1952).
6. Two injuries; claim for first injury; evidence as to both injuries receivable. Brown v. Shellabarger Mill & Elev. Co., 142 Kan. 476, 50 P.2d 919 (1935).
7. Voluntary weekly payments held payment of compensation not wages. Rupp v. Jacobs, 149 Kan. 712, 715, 88 P.2d 1102 (1939).
8. Judgment may provide for apportionment of compensation among dependents. McCormick et al., v. Coal & Coke Co., 117 Kan. 686, 691, 232 P. 1071 (1925).
9. Not intention of statute to permit general review of judgment. Falcone v. Hamilton Coal & Mercantile Co., 122 Kan. 187, 188, 250 P. 1068 (1926).
10. When award becomes final discussed; failure to determine request for review of examiner's award renders award not final; K.S.A. 44-551 is controlling over K.S.A. 44-549 as to finality of award. Harper v. Coffey Grain Co., 192 Kan. 462, 388 P.2d 607 (1964).
11. Workman's offer to arbitrate is not a condition precedent to maintenance of compensation proceeding. Peschka v. Wilkinson Drilling Co., 192 Kan. 126, 128, 386 P.2d 509 (1963).
12. Proceedings "commenced" before director upon claimant executing application for hearing and delivery to director. Magers v. Martin Marietta Corporation, 193 Kan. 137, 143, 392 P.2d 148 (1964).
13. Cited in considering effect of an award on earlier one which it modifies. Ratzlaff v. Friedeman Service Store, 200 Kan. 430, 435, 436 P.2d 389 (1968).
14. Time limit for application for hearing inapplicable if employer fails to file report within time required under K.S.A. 44-557. Childress v. Childress Painting Co., 3 Kan. App. 2d 135, 136, 137, 138, 139, 142, 143, 144, 145, 590 P.2d 1093.
15. Cited; fund not timely impleaded; "first full hearing" construed. Safeway Stores, Inc. v. Workers' Compensation Fund, 3 Kan. App. 2d 283, 288, 593 P.2d 1009.
16. The three-year limitation in subsection (b) does not begin to run until the employer has filed notice as required by K.S.A. 44-557. Childress v. Childress Painting Co., 226 Kan. 251, 252, 253, 254, 597 P.2d 637.
17. Adequate procedural basis hereunder for director's review to support benefit termination hearings. Brown v. Goodyear Tire & Rubber Co., 3 Kan. App. 2d 648, 650, 655, 599 P.2d 1031. Affirmed: 227 Kan. 645, 608 P.2d 1356.
18. Authorized medical care furnished by employer equivalent to payment of compensation; care unauthorized; claim untimely. Sparks v. Wichita White Truck Trailer Center, Inc., 7 Kan. App. 2d 385, 642 P.2d 574 (1982).
19. Cited in holding administrative decision finding accidental injury where occupational disease claimed supported by substantial competent evidence. Bahr v. Iowa Beef Processors, Inc., 8 Kan. App. 2d 627, 632, 633, 663 P.2d 1144 (1983).
20. Where employer brings money suit, worker cannot claim offsets alleged due under act when provisions not utilized. Bethany Medical Center v. Knox, 10 Kan. App. 2d 192, 195, 196, 694 P.2d 1331 (1985).
21. Cited; an appeal of vocational rehabilitation award under K.S.A. 44-510g may be made hereunder during first 26 weeks. Clintsman v. St. Joseph Hosp. of Concordia, 11 Kan. App. 2d 199, 201, 202, 717 P.2d 1074 (1986).
22. Noted in discussion of K.S.A. 44-534a to determine when demand for payment of preliminary hearing award can be made. Stout v. Stixon Petroleum, 17 Kan. App. 2d 195, 199, 836 P.2d 1185 (1992).
23. Whether workers compensation board has authority to change ALJ's ruling regarding named insurance carrier examined. Helms v. Tollie Freightways, Inc. 20 Kan. App. 2d 548, 552, 889 P.2d 1151 (1995).
24. Claimant's application for hearing was timely where employer never filed report of accident. Burnside v. Cessna Aircraft Co., 24 Kan. App. 2d 684, 689, 951 P.2d 1315 (1998).
25. In action to recover excess workers compensation payments, Kansas Workers Compensation Fund makes reimbursements as a ministerial act and has no standing to litigate its liability for overpayments. Wasson v. United Dominion Industries, 266 Kan. 1012, 1018, 1021, 974 P.2d 584 (1999).
26. Workers compensation board dismissal of case for lack of jurisdiction is a final appealable order. Rivera v. Cimarron Dairy, 267 Kan. 875, 878, 988 P.2d 235 (1999).
27. In request for medical benefits after final order issued, ALJ did not exceed jurisdiction by ordering employer to submit names of three physicians for authorization. Bryant v. U.S.D. 259, 26 Kan. App. 2d 435, 440, 992 P.2d 808 (1999).
28. Director has discretion to determine amount(s) to be reimbursed to insurance carrier but cannot deny reimbursement claims as a matter of law. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 104 P.3d 378 (2005).
29. An employer revives the two-year statute of limitations for a claimant to apply for a hearing by making a payment of compensation after the two-year period has passed. Schneider v. City of Lawrence, 56 Kan. App. 2d 757, 760, 435 P.3d 1173, 1175 (2019).
30. If a workers compensation claimant filed an application for hearing under this statute after K.S.A. 2011 Supp. 44-523(f)(1) took effect, the 2011 statute governs the claim. Knoll v. Olathe Sch. Dist. No. 233, 309 Kan. 578, 578, 439 P.3d 313 (2019).