KANSAS OFFICE of
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44-551. Assistant directors, administrative law judges and special local administrative law judges; application, qualifications, appointment, reappointment, term; workers compensation and employment security boards nominating committee; judges' powers and duties, compensation, fees and expenses; review of findings and awards by workers compensation appeals board; delayed order on board review, effect; payment of medical compensation pending review. (a) The duties of the assistant directors of workers compensation may include, but not be limited to, acting in the capacity of an administrative law judge.

(b) Each administrative law judge shall be an attorney regularly admitted to practice law in Kansas. Such attorney shall have at least five years of experience as an attorney, with at least one year of experience practicing law in the area of workers compensation.

(c) Except as provided in subsection (k), the annual salary of each administrative law judge shall be an amount equal to 85% of the annual salary paid by the state to a district judge, other than a district judge designated as a chief judge. Administrative law judges shall devote full time to the duties of such office and shall not engage in the private practice of law during their term of office. No administrative law judge may receive additional compensation for official services performed by the administrative law judge. Each administrative law judge shall be reimbursed for expenses incurred in the performance of such official duties under the same circumstances and to the same extent as district judges are reimbursed for such expenses.

(d) Applications for administrative law judge positions shall be submitted to the director of workers compensation. The director shall determine if an applicant meets the qualifications for an administrative law judge as prescribed in subsection (b). Qualified applicants for a position of administrative law judge shall be submitted by the director to the workers compensation and employment security boards nominating committee for consideration.

(e) There is hereby established the workers compensation and employment security boards nominating committee. Whenever the workers compensation administrative law judge nominating and review committee or the workers compensation board nominating committee, or words of like effect, is referred to or designated by a statute, contract or other document, such reference or designation shall be deemed to apply to the workers compensation and employment security boards nominating committee. The workers compensation and employment security boards nominating committee shall be composed of seven members who are appointed by the governor. Each of the following shall select one member to serve on the nominating committee by giving written notice of the selection to the governor who shall appoint such representatives to the committee:

(1) The Kansas secretary of labor;

(2) the Kansas chamber of commerce;

(3) the national federation of independent business;

(4) the Kansas AFL-CIO;

(5) the Kansas state council of the society for human resource management (KS SHRM);

(6) the Kansas self-insurers association; and

(7) the secretary of labor, who shall select a nominee from either an employee organization as defined in K.S.A. 75-4322, and amendments thereto, or a professional employees' organization as defined in K.S.A. 72-2218, and amendments thereto.

In the event the governor refuses to appoint a member selected by one of the organizations in this subsection, the organization may replace that selection with another, subject to the same appointment requirements.

(f) Of the members first appointed to the workers compensation and employment security boards nominating committee, three shall be appointed for terms of two years and four shall be appointed for terms of four years as specified by the governor. Thereafter, members of the nominating committee shall be appointed for a term of four years. Members may not serve more than two consecutive terms.

(g) In the event of a vacancy on the nominating committee occurring for any reason, the respective member whose position becomes vacant shall be replaced by the selecting organization by submitting written notice of the replacement selection to the governor within 30 days of such vacancy. The governor shall either appoint or reject the replacement selection as provided in this section.

(h) The nominating committee shall meet as needed to provide the workers compensation and employment security board of review appointing authorities with nominees for appointments to the position of:

(1) Workers compensation administrative law judge;

(2) workers compensation appeals board member; and

(3) employment security board of review.

No action of the committee shall be effective unless approved by two-thirds of the committee.

(i) When notified of a vacancy in the position of workers compensation administrative law judge or workers compensation appeals board member, the committee shall review all qualified applicants as submitted by the director of workers compensation. The committee shall nominate a qualified person to fill the vacancy and submit that nomination to the secretary of labor. The secretary shall either accept and appoint the person nominated by the nominating committee to the position for which the nomination was made or reject the nomination and request the nominating committee to nominate another person for that position. Upon receipt of any such request for the nomination of another person, the nominating committee shall nominate another person for that position in the same manner as set forth above.

(j) (1) Each administrative law judge shall hold office for a term of four years and may be reappointed. Each administrative law judge shall continue to serve for the term of the appointment or until a successor is appointed. An administrative law judge who wishes to be considered for reappointment shall be deemed to have met the qualification requirements for appointment as administrative law judge. If such administrative law judge wishes to be considered for reappointment by the nominating committee, such administrative law judge shall submit an application as provided in subsection (d) no sooner than 150 days before and no later than 90 days prior to the expiration of such judge's term. Within sixty days prior to the expiration of the term of the administrative law judge seeking reappointment, the nominating committee described above shall meet to vote on reappointment of the administrative law judge. The administrative law judge shall be submitted to the secretary for reappointment unless 2/3 of the nominating committee votes not to submit the administrative law judge for reappointment.

(2) If a vacancy should occur in the position of an administrative law judge during the term of an administrative law judge, the nominating committee shall nominate an individual from the qualified applicants submitted by the director to complete the remainder of the unexpired portion of the term.

(k) Except as otherwise provided in this subsection, administrative law judges appointed on and after July 1, 2006, shall serve a term of office of four years. Administrative law judges hired before July 1, 2006, may continue as administrative law judges under the classified service under the Kansas civil service act at the salary provided under the civil service act or may elect to be appointed to a term and receive the annual salary equal to 85% of the salary prescribed for a district judge if the currently employed administrative law judge within 60 days of the effective date of this section notifies the director in writing that the administrative law judge elects to serve an appointed term of office rather than continuing in the classified service. The term of office for an administrative law judge who elects a term of office shall begin on the date the written election is received by the director and the first term of office for such person shall be for two, three or four years as specified by the secretary so that administrative law judges appointed under this subsection serve staggered terms. Thereafter, any such person if reappointed as an administrative law judge shall be appointed for a term of four years.

(l) (1) Administrative law judges shall have power to administer oaths, certify official acts, take depositions, issue subpoenas, compel the attendance of witnesses and the production of books, accounts, papers, documents and records to the same extent as is conferred on the district courts of this state, and may conduct an investigation, inquiry or hearing on all matters before the administrative law judges. All final orders, awards, modifications of awards, or preliminary awards under K.S.A. 44-534a, and amendments thereto, made by an administrative law judge shall be subject to review by the workers compensation appeals board upon written request of any interested party within 10 days. Intermediate Saturdays, Sundays and legal holidays shall be excluded in the time computation. Review by the board shall be a prerequisite to judicial review as provided for in K.S.A. 44-556, and amendments thereto. On any such review, the board shall have authority to grant or refuse compensation, or to increase or diminish any award of compensation or to remand any matter to the administrative law judge for further proceedings. The orders of the board under this subsection shall be issued within 30 days from the date arguments were presented by the parties.

(2) (A) If an administrative law judge has entered a preliminary award under K.S.A. 44-534a, and amendments thereto, a review by the board shall not be conducted under this section unless it is alleged that the administrative law judge exceeded the administrative law judge's jurisdiction in granting or denying the relief requested at the preliminary hearing. Such an appeal from a preliminary award may be heard and decided by a single member of the board. Members of the board shall hear such preliminary appeals on a rotating basis and the individual board member who decides the appeal shall sign each such decision. The orders of the board under this subsection shall be issued within 30 days from the date arguments were presented by the parties.

(B) If an order on review is not issued by the board within the applicable time period prescribed by subsection (l)(1), medical compensation and any disability compensation as provided in the award of the administrative law judge shall be paid commencing with the first day after such time period and shall continue to be paid until the order of the board is issued, except that no payments shall be made under this provision for any period before the first day after such time period. Nothing in this section shall be construed to limit or restrict any other remedies available to any party to a claim under any other statute.

(C) In any case in which the final award of an administrative law judge is appealed to the board for review under this section and in which the compensability is not an issue to be decided on review by the board, medical compensation shall be payable in accordance with the award of the administrative law judge and shall not be stayed pending such review. The employee may proceed under K.S.A. 44-510k, and amendments thereto, and may have a hearing in accordance with that statute to enforce the provisions of this subsection.

(m) Each assistant director and each administrative law judge or special administrative law judge shall be allowed all reasonable and necessary expenses actually incurred while in the actual discharge of official duties in administering the workers compensation act, but such expenses shall be sworn to by the person incurring the same and be approved by the secretary.

(n) In case of emergency the director may appoint special local administrative law judges and assign to them the examination and hearing of any designated case or cases. Such special local administrative law judges shall be attorneys and admitted to practice law in the state of Kansas and shall, as to all cases assigned to them, exercise the same powers as provided by this section for the regular administrative law judges. Special local administrative law judges shall receive a fee commensurate with the services rendered as fixed by rules and regulations adopted by the director. The fees prescribed by this section prior to the effective date of this act shall be effective until different fees are fixed by such rules and regulations.

(o) All special local administrative law judge's fees and expenses, with the exception of settlement hearings, shall be paid from the workers compensation administration fee fund, as provided in K.S.A. 74-712, and amendments thereto. Where there are no available funds or where the special local administrative law judge conducted a settlement hearing, the fees shall be taxed as costs in each case heard by such special local administrative law judge and when collected shall be paid directly to such special local administrative law judge by the party charged with the payment of the same.

(p) Except as provided for judicial review under K.S.A. 44-556, and amendments thereto, the decisions and awards of the board shall be final.

History: L. 1927, ch. 232, § 36; L. 1953, ch. 245, § 1; L. 1955, ch. 250, § 9; L. 1957, ch. 293, § 6; L. 1961, ch. 243, § 3; L. 1967, ch. 280, § 11; L. 1969, ch. 246, § 3; L. 1971, ch. 179, § 1; L. 1976, ch. 225, § 1; L. 1976, ch. 370, § 21; L. 1980, ch. 146, § 11; L. 1983, ch. 168, § 2; L. 1986, ch. 318, § 55; L. 1990, ch. 183, § 8; Revived and amended, L. 1995, ch. 1, § 2; L. 1996, ch. 79, § 12; L. 1997, ch. 125, § 12; L. 2001, ch. 121, § 4; L. 2006, ch. 109, § 1; L. 2013, ch. 104, § 1; April 25.

Revisor's Note:

1993 amendments to statute declared unconstitutional in Sedlak v. Dick, 256 Kan. 779, 887 P.2d 1119 (1995).

Cross References to Related Sections:

Division of workers compensation, see 75-5708.

Qualifications, appointment and compensation of director, assistant directors and examiners, see 75-5708.

Payment of medical compensation when compensability is not an issue on review, see 44-556.

Law Review and Bar Journal References:

Survey of law of workmen's compensation, William A. Kelly, 10 K.L.R. 349 (1961).

Survey of law of workmen's compensation, Thomas M. Van Cleave, Jr., 12 K.L.R. 360 (1963).

Certain provisions in conflict with K.S.A. 44-549, Thomas M. Van Cleave, Jr., 14 K.L.R. 393, 397 (1965).

Discussion of second injury fund (K.S.A. 44-566 et seq.), Alvin D. Herrington, 35 J.B.A.K. 167, 197 (1966).

Prior restriction limiting special examiners to cases within their home county removed by 1967 amendment, William F. Morrissey, 36 J.B.A.K. 173, 174 (1967).

Court has held that K.S.A. 44-549 must yield to this section as to finality of compensation award (see case annotation 8), Sheila R. Miller, 18 K.L.R. 940, 942 (1970).

"Discovery Techniques in Workmen's Compensation: Largely Undiscovered?" Robert Fowks, 42 J.B.A.K. 83, 85 (1973).

"Procedures for Reviewing Workmen's Compensation Awards," 13 W.L.J. 197, 200 (1974).

"Workmen's Compensation—Permanent Partial Disability Benefits—The Dilemma," George E. McCullough, 24 K.L.R. 627, 638 (1976).

"Administrative Law: Findings of Fact, A Review of the Federal Administrative Procedure Act and Kansas Law," David W. Queen, 22 W.L.J. 58, 68 (1982).

"Appellate Court Jurisdiction: An Update," Debra S. Byrd, 58 J.K.B.A. No. 1, 21, 23 (1989).

"Workers Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVI, No. 1, Special section, 4 (1992).

"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 1, Work. Comp. Review Section, 1, 2 (1994).

"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 3, Work. Comp. Review Section, 1 (1995).

"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 2, Review Section, 29 (1996).

"Workers Compensation Review," Jan L. Fisher, J.K.T.L.A. Vol. 24, No. 4, 21 (2001).

"Workers Compensation Review," Jan L. Fisher, Ed., J.K.T.L.A. Vol. 28, No. 5, 18 (2005).

"Making the Most Out of the Cap: Maximizing Non-Economic Damages," Bradley J. Prochaska, J.K.T.L.A. Vol. 29, No. 6, 8 (2006).

"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 30, No. 1, 19 (2006).

"Workers Compensation Review," Joseph Seiwert, Editor, J.K.A.J. Vol. 33, No. 6, 31 (2010).

"2013 Legislative Session Report," Callie Jill Denton, 36 J.K.A.J. No. 6 (2013).

CASE ANNOTATIONS

1. Upon receipt of a request for review made by any interested party, the director is under the mandatory duty to review the award or the decision of the examiner. Ward v. Marzolf Hardwood Floors, Inc., 190 Kan. 809, 811, 378 P.2d 80 (1963).

2. Proceedings to have director review the award of an examiner may not be dismissed by director on his own motion; such a dismissal is a nullity. Harper v. Coffey Grain Co., 192 Kan. 462, Syl. 6, 469, 388 P.2d 607 (1964); Ward v. Marzolf Hardwood Floors, Inc., 190 Kan. 809, 811, 378 P.2d 80 (1963).

3. An award of the examiner does not become a final award of the director until the expiration of ten days after it is filed, or until a request for review, filed within the ten-day period, is determined by the director; award not due until final. Harper v. Coffey Grain Co., 192 Kan. 462, Syl. 3, 466, 467, 388 P.2d 607 (1964).

4. Petition for review of award filed while appeal from commissioner (director) was pending; director did not have jurisdiction to hear petition for review, even though the district court acquired no jurisdiction on the appeal. Duncan v. Davidson Construction Co., 170 Kan. 520, 529, 530, 227 P.2d 95 (1951).

5. Nothing in this section precludes the director from making an award of compensation in a compensation case under facts and circumstances stated. Pence v. Centex Construction Co., 189 Kan. 718, 721, 371 P.2d 100 (1962).

6. Twenty-day period mentioned in K.S.A. 44-527 has no application to proceedings for review under this section. Contrary was ruled in original case and opinion was vacated on rehearing. Franklin v. Watkins, Inc., 189 Kan. 495, 370 P.2d 405 (1962); opinion vacated 190 Kan. 374, 375 P.2d 618 (1962).

7. Amendments to the compensation act that are procedural and remedial in nature and do not prejudicially affect substantive rights apply to pending causes of action. Ward v. Marzolf Hardwood Floors, Inc., 190 Kan. 809, 811, 378 P.2d 80 (1963).

8. 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).

9. Appeal to district court from examiner's award when review pending before director ineffectual. Harper v. Coffey Grain Co., 192 Kan. 462, 463, 465, 466, 467, 468, 469, 388 P.2d 607 (1964).

10. An appeal will lie only from review and approval of director, not from findings and award of examiner. Bammes v. Viking Manufacturing Co., 192 Kan. 616, 618, 619, 389 P.2d 828 (1964).

11. Award not final until filed 10 days or until request for review is denied. Cramer v. Blankenship Painting & Decorating Co., 197 Kan. 360, 361, 362, 416 P.2d 255 (1966).

12. Director only official authorized to make award upon proceedings before him. Davis v. Joe Ward Construction Co., 197 Kan. 589, 590, 592, 419 P.2d 918 (1966).

13. Cited in construing K.S.A. 44-528. Coffee v. Fleming Company, Inc., 199 Kan. 453, 454, 430 P.2d 259 (1967).

14. Timely written request is essential to confer jurisdiction on workmen's compensation director to review an award. Shinkle v. Kansas State Highway Commission, 200 Kan. 191, 192, 193, 194, 195, 196, 434 P.2d 836 (1967).

15. 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).

16. No application made for review by director of examiner's award; not prerequisite for appeal under K.S.A. 44-556; incorrectly worded notice of appeal held sufficient. Elwood v. General Motors Corporation, 200 Kan. 686, 687, 688, 438 P.2d 44 (1968).

17. Vacation of award and remanding of proceedings by director not final action; appeal premature. Garrigues v. Fluor Corporation, Ltd., 201 Kan. 156, 160, 439 P.2d 111 (1968).

18. Considered in construing provisions of K.S.A. 44-512a. Shinkle v. State Highway Commission, 202 Kan. 311, 312, 313, 448 P.2d 12 (1968).

19. Cited; action under K.S.A. 44-512a; no statutory provisions for staying remedies available to workman pending appeal. Casebeer v. Alliance Mutual Casualty Co., 203 Kan. 425, 426, 454 P.2d 511 (1969).

20. Cited in construing provisions of K.S.A. 44-556. Dunn v. Kuhlman Diecasting Co., 203 Kan. 670, 455 P.2d 536 (1969).

21. Mentioned in discussing K.S.A. 44-512a and 44-556. Griffith v. State Highway Commission of Kansas, 203 Kan. 672, 674, 456 P.2d 21 (1969).

22. Cited in case concerning the administration of the second injury fund. Leiker v. Manor House, Inc., 203 Kan. 906, 909, 915, 457 P.2d 107 (1969).

23. Cited; district court properly sustained hearing examiner's motion to dismiss in mandamus action. Wilson Certified Foods, Inc. v. Reid, 211 Kan. 613, 614, 507 P.2d 339.

24. Cited; findings on review upheld on appeal where supported by substantial competent evidence. Streff v. Goodyear Tire and Rubber Co., 211 Kan. 898, 900, 508 P.2d 495.

25. Where district court upheld finding hereunder, res judicata forecloses review under K.S.A. 44-528 on issue of causation. Randall v. Pepsi-Cola Bottling Co., Inc., 212 Kan. 392, 393, 510 P.2d 1190.

26. Provision stating director may appoint a special examiner in case of emergency is directory and not mandatory. Meyersick v. Rodney Milling Co., 213 Kan. 678, 679, 518 P.2d 398.

27. Traumatic neurosis following physical injury and directly traceable to the injury is compensable only if causal connection established. Rund v. Cessna Aircraft Co., 213 Kan. 812, 822, 518 P.2d 518.

28. Award made after finding synovitis occupational disease; authority to cancel award discretionary under K.S.A. 44-5a04. Hill v. General Motors Corporation, 214 Kan. 279, 281, 519 P.2d 608.

29. Referred to in determining 1974 amendment of K.S.A. 44-528 could not be applied retroactively. Eakes v. Hoffman-La Roche, Inc., 220 Kan. 565, 566, 552 P.2d 998.

30. A district court has no jurisdiction to decide an appeal from a temporary award entered under this act. Lively v. MBPXL Corp., 7 Kan. App. 2d 204, 206, 638 P.2d 999 (1982).

31. Director required to enter order even when review not requested, and appeal may be taken therefrom. Osmundson v. Sedan Floral, Inc., 10 Kan. App. 2d 261, 697 P.2d 85 (1985).

32. Review in (b) does not determine "the conclusion of a full hearing on the claim" appearing in K.S.A. 44-534a. Sawyer v. Oldham's Farm Sausage Co., 246 Kan. 327, 333, 787 P.2d 697 (1990).

33. When director's review of preliminary hearing award available examined. Stout v. Stixon Petroleum, 17 Kan. App. 2d 195, 200, 836 P.2d 1185 (1992).

34. Cited in holding that compensation award following settlement hearing before ALJ subject to review and modification under K.S.A. 44-528. Redgate v. City of Wichita, 17 Kan. App. 2d 253, 256, 836 P.2d 1205 (1992).

35. Whether section precludes judicial review of K.S.A. 44-512a penalty assessments made prior to entry of final award examined. Waln v. Clarkson Constr. Co., 18 Kan. App. 2d 729, 731, 861 P.2d 1355 (1993).

36. Whether appellate court lacks jurisdiction to review ALJ's order when no written request for review by appeals board filed; retroactive application of amendments discussed. Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 185, 883 P.2d 1177 (1994).

37. Whether appellate court lacks jurisdiction to review ALJ's order when claimant failed to request review by appeals board examined; retrospective application of section discussed. Hall v. Roadway Express, Inc., 19 Kan. App. 2d 935, 937, 940, 878 P.2d 846 (1994).

38. Whether ALJ order filed prior to October 1, 1993, should be reviewed in accordance with pre-1993 amendment procedures examined. McClure v. Rodricks, 20 Kan. App. 2d 102, 104, 883 P.2d 1228 (1994).

39. Whether the attempted repeal of section is invalid reviving sections existing before attempted amendment and repeal examined. Sedlak v. Dick, 256 Kan. 779, 804, 887 P.2d 1119 (1995).

40. Whether workers compensation board has authority to substitute its judgment for ALJ's decision in reviewing administrative decisions examined. Helms v. Tollie Freightways, Inc. 20 Kan. App. 2d 548, 550, 889 P.2d 1151 (1995).

41. ALJ's order denying motion to dimiss is not considered a preliminary award and may be reviewed by workers compensation board. Shain v. Boeing Military Airplanes, 22 Kan. App. 2d 913, 914, 924 P.2d 1280 (1996).

42. Which findings and awards of ALJ may be reviewed by workers compensation board discussed. Winters v. GNB Battery Technologies, 23 Kan. App. 2d 92, 93, 927 P.2d 512 (1996).

43. K.S.A. 60-206(a) computation method applies to 10-day limit for requesting workers compensation board to review ALJ decision. McIntyre v. A.L. Abercrombie, Inc., 23 Kan. App. 2d 204, 205, 929 P.2d 1386 (1996).

44. Purchase of car not medical treatment under K.S.A. 44-510(a); board erred in dismissing appeal of ALJ's award. Hedrick v. U.S.D. No. 259, 23 Kan. App. 2d 783, 784, 935 P.2d 1083 (1997).

45. Workers compensation board's scope of review of ALJ decision is not limited to issues raised in written request for review. Woodward v. Beech Aircraft Corp., 24 Kan. App. 2d 510, 515, 949 P.2d 1149 (1997).

46. Excusable neglect under K.S.A. 60-2103 does not justify untimeliness of workers compensation appeal under subsection (b)(1). Anderson v. Bill Morris Constr. Co. Inc., 25 Kan. App. 2d 603, 604, 966 P.2d 96 (1998).

47. ALJ's award misaddressed; not received before expiration of review application filing date; notice insufficient to satisfy due process. Nguyen v. IBP, Inc., 266 Kan. 580, 582, 972 P.2d 747 (1999).

48. When ALJ considers injured employee's request for medical benefits after a final order has been issued, the decision of the ALJ is not preliminary in nature and is subject to review before the Workers Compensation Board. Bryant v. U.S.D. 259, 26 Kan. App. 2d 435, 438, 992 P.2d 808 (1999).

49. Upon receipt of request for review, board may address every issue decided by administrative law judge. Solis v. Brookover Ranch Feedyard, Inc., 268 Kan. 750, 999 P.2d 921 (2000).

50. Statutes 10-day time limit tolled during time notice of administrative law judge's award not received by counsel. Johnson v. Brooks Plumbing, 281 Kan. 1212, 1217, 135 P.3d 1203 (2006).

51. Approval of a lump sum settlement qualifies as a final order or award subject to board review. Grajeda v. Aramark Corp., 35 Kan. App. 2d 598, 601, 132 P.3d 966 (2006).

52. Section permits appeals to the Board of preliminary awards under K.S.A. 44-534a but appeal limited to "jurisdictional issues." Quandt v. IBP, 38 Kan. App. 2d 874, 877, 878, 879, 173 P.3d 1149 (2008).


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