                                        No. 119,340


             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    PAUL H. SCHNEIDER,
                                        Appellant,

                                              v.

                                    CITY OF LAWRENCE,
                                         Appellee.


                              SYLLABUS BY THE COURT

1.
       The most fundamental rule of statutory interpretation is that the intent of the
Legislature governs if the Legislature's intent can be determined. Appellate courts must
first seek to discover the intent of the Legislature through the plain language of a statute
before resorting to the canons of statutory construction.


2.
       K.S.A. 44-534(b) requires workers compensation claimants to apply for a hearing
within three years of the date of their accident or within two years of the date of the last
payment of compensation. Nothing within the plain language of K.S.A. 44-534(b)
prevents a revival of the two-year statute of limitations to timely file an application for a
hearing after the running of the two-year statute of limitations when a payment of
compensation occurs.

3.
     Under the facts of this case, when the employer made a payment of compensation
after the two-year statute of limitations to apply for a hearing had run under K.S.A. 44-
534(b), the employer revived the employee's two-year-time period in which to file a

                                              1
timely application for hearing. As a result, the employee timely filed an application for a
hearing within two years of the employer's last payment of compensation.

        Appeal from Workers Compensation Board. Opinion filed February 8, 2019. Reversed and
remanded with directions.


        Bruce Alan Brumley, of Topeka, for appellant.


        Kip A. Kubin, of Martin Pringle, Attorneys at Law, of Overland Park, for appellee.


Before STANDRIDGE, P.J., PIERRON and GREEN, JJ.


        GREEN, J.: Paul H. Schneider appeals the Workers Compensation Board's (Board)
decision, finding that both of his claims against the City of Lawrence (City) Fire
Department were untimely under K.S.A. 44-534(b). Because Schneider timely filed an
application for hearing within the two-year period for the running of the applicable
statute of limitations, we reverse the Board's decision and remand for further proceedings
consistent with this opinion.


        Schneider worked for the City's fire department. The parties do not dispute that he
injured his back while working for the City on September 21, 2008, and September 27,
2010.


        On January 28, 2016, Schneider filed two applications for hearings, in which he
asserted that he had a right to benefits under the Act. In the first application, Schneider
stated that his work accident occurred while working for the City on September 21, 2008.
In his second application, Schneider stated that his work accident occurred while working
for the City on September 27, 2010. Schneider alleged that both of his injuries were to his
low back and body as a whole. The City responded that it intended to deny Schneider's
applications for benefits as untimely. Schneider asserted that his applications were timely

                                                   2
because the City had provided him authorized medical care for back injuries on
December 14, 2015. Schneider argued that the statute of limitations under K.S.A. 44-
534(b) was revived upon the City's December 14, 2015 payment.


       At the regular hearing before the administrative law judge (ALJ), Schneider
testified about his back pain becoming progressively worse after his 2010 injury. He
explained that by 2015, it was difficult for him to work. He testified that he went to his
personal doctor, Dr. David Fritz, and they discussed him having back surgery. This was
the first doctor he had visited since his last physical therapy appointment paid for by the
City on February 28, 2012. Schneider testified that his personal health insurance paid for
his appointment with Dr. Fritz. Yet, he further testified that his personal health insurance
denied his request for back surgery once it learned that his back pain stemmed from
work-related injuries. He admitted that after his personal insurance denied his request for
back surgery, he contacted the City, and the City sent him to its doctor, Dr. Chris
Fevurly.


       During discovery, the City called two witnesses: Dr. Chris Fevurly and Gary
Cooper, the City's risk manager.


       Dr. Fevurly testified that he had treated Schneider for the 20 years that Schneider
had been employed with the fire department. He testified that he had also examined him
annually for the firefighter fitness exam. He explained that for Schneider's 2008 and 2010
work injuries, he had treated Schneider for "spondylolysis of L5 and then
spondylolisthesis grade two of L5 and S1." Dr. Fevurly testified that on December 14,
2015, Schneider returned for another examination, complaining of back pain. He testified
that at that examination, Schneider told him he was there because his personal insurance
denied his back surgery.




                                              3
       Dr. Fevurly explained that at the end of the examination, he concluded that
Schneider's 2008 and 2010 work injuries were the cause for his current ongoing back
pain. Dr. Fevurly also explained that Schneider returned to him for treatment on January
18 and 22, 2016, because of increased back pain. He testified that on those dates, he gave
Schneider medicine and modified his duties. Dr. Fevurly testified that he told Schneider
to schedule another appointment for February 2016, but Schneider never did so.


       Cooper testified that as the risk manager he kept records of all payments for work-
related injuries made by the City to medical providers and workers compensation claims.
Cooper testified that the last medical payment from the City for Schneider's September
21, 2008 injury happened on February 19, 2009. Cooper testified that the last medical
payment from the City for Schneider's September 27, 2010 injury happened on June 24,
2012. On cross-examination, Cooper agreed that the City paid for Schneider to see Dr.
Fevurly when he reported his back problems in December 2015.


       The parties filed briefs with the ALJ. The City argued that the ALJ should deny
Schneider's claims because he failed to file his application for benefits within three years
of his accidents or within two years from the City's last payment as required under K.S.A.
44-534(b). The City cited Graham v. Pomeroy, 143 Kan. 974, 57 P.2d 19 (1936), for the
proposition that its payments for Schneider's medical treatment in December 2015 and in
January 2016 did not revive the two-year timeline to file an application for hearing. The
Graham decision interpreted R.S. 1933 Supp. 44-520a—the statute of limitations
provision on written claims. Schneider argued that other caselaw supported that medical
payments constituted compensation, meaning the City's December 2015 and January
2016 medical payments to Dr. Fevurly constituted compensation for his 2008 and 2010
injuries. Schneider emphasized that nothing within the plain language of K.S.A. 44-
534(b) prohibited reviving claims. Thus, according to Schneider, under K.S.A. 44-534(b),
his January 2016 applications for hearings were timely because they were well within
two years of the City's last compensation payments.

                                             4
       In the end, the ALJ denied Schneider's claims for benefits. The ALJ first noted that
Schneider's "entire case rests on the two-year clause for the last payment of
compensation." Then, the ALJ recognized that the Graham decision was old.
Nevertheless, the ALJ agreed with the City that the Graham decision supported the
conclusion that "when the time provided by statute within which to file a claim for
compensation under the Act has passed, the right to recover compensation under the
statute is lost and cannot be revived by subsequent voluntary payments of compensation
by the employer."


       Schneider appealed the ALJ's decision to the Board. The Board noted that
Schneider had a "compelling" argument. The Board also found that "[f]rom the
perspective of strict construction," Schneider should prevail because nothing in the plain
language of K.S.A. 44-534(b) prevented time-barred claims from reviving upon an
employer's voluntary payment of compensation. Even so, the Board reasoned as follows:
that the statute of limitations language for a written claim under K.S.A. 44-520a(a) and
that the statute of limitations language for an application for hearing under K.S.A. 44-
534(b) are similar. As a result, the Board reasoned that these same statutes should be
subject to the same interpretation. The Board further noted that in Graham, our Supreme
Court held that R.S. 1933 Supp. 44-520a's statute of limitations language prohibited
reviving an employee's time-barred claim upon an employer's later voluntary medical
payment. Based on Graham, the Board felt compelled to affirm the ALJ's decision,
concluding that Schneider's claims were untimely under K.S.A. 44-534(b).


Are Schneider's Claims Timely?


       Schneider's sole argument on appeal is that the Board erred when it ruled that his
claims were untimely under K.S.A. 44-534(b) because the City revived the two-year time
limit to apply for a hearing when it paid for his medical treatment in December 2015 and

                                             5
January 2016. Schneider contends that the plain language of K.S.A. 44-534(b) supports
his argument. Moreover, Schneider asserts that because in recent years our Supreme
Court has consistently held that the plain language of the statute controls interpretation
issues, the Graham decision is no longer good law.


       The City counters that the uncontroverted evidence establishes that Schneider
failed to timely file his applications for hearing for his 2008 or 2010 injuries. As it did
below, the City asserts that Schneider's December 2015 and January 2016 visits to Dr.
Fevurly could not revive the K.S.A. 44-534(b) statute of limitations because our Supreme
Court's decision in Graham supports that workers compensation statute of limitations
cannot be revived once they have expired. The City asserts that under Schneider's
interpretation of K.S.A. 44-534(b), the two-year statute of limitations for filing an
application for hearing would never really run.


       As a preliminary note, the City also briefly asserts that "[t]he uncontroverted
evidence in the administrative record does not support that the examination and treatment
of Dr. Fevurly in 2015 and 2016 were payment of compensation for the 2008 and 2010
injuries." The City contends that each of Schneider's appointments were for "acute
exacerbation symptoms which the claimant indicated occurred on January 14, 2016."
This argument, however, is patently meritless because Dr. Fevurly testified that the
injuries Schneider presented related to his 2008 and 2010 injuries. Dr. Fevurly merely
explained that Schneider's January 29, 2016 appointment also related to an acute
aggravation of his injury, which occurred on January 14, 2016.


       Turning to our standard of review, we exercise unlimited review when considering
the Board's interpretation of a workers compensation statute:


               "Final orders of the Board are subject to review under the Kansas Judicial
       Review Act, K.S.A. 77-601 et seq. K.S.A. [] 44-556(a). The standard of review will vary


                                                   6
       depending on the issue raised. See K.S.A. [] 77-621. This court may grant relief if we
       determine that the agency erroneously interpreted or applied the law. K.S.A. [] 77-
       621(c)(4). That issue is reviewed de novo. [Citation omitted.] Moreover, we need not
       give deference to an agency's interpretation of a statute; rather, we exercise unlimited
       review. [Citation omitted.]" Fernandez v. McDonald's, 296 Kan. 472, 475, 292 P.3d 311
       (2013).


       When analyzing a workers compensation statute, like any other statute, "[t]he most
fundamental rule of statutory construction is that the intent of the legislature governs if
that intent can be ascertained." Bergstrom v. Spears Mfg. Co., 289 Kan. 605, 607, 214
P.3d 676 (2009). We presume that the Legislature "expressed its intent through the
language of the statutory scheme, and when a statute is plain and unambiguous, the court
must give effect to the legislative intention as expressed in the statutory language." 289
Kan. at 607. Moreover, when interpreting the plain language of a statute, we must refrain
from reading language into the statute that is not readily found therein. 289 Kan. at 607-
08.


       This case involves two statutes—K.S.A. 44-520a and K.S.A. 44-534. The
Legislature enacted K.S.A. 44-520a—the statute of limitations for filing a written
claim—in 1927. L. 1927, ch. 232, § 20. Because "[t]he statute in effect at the time of the
claimant's injury governs the rights and obligations of the parties," we must consider
K.S.A. 44-520a, the statute in effect in 2008 and 2010 when Schneider had his work
accidents. Rogers v. ALT-A&M JV, 52 Kan. App. 2d 213, 216, 364 P.3d 1206 (2015).
When Schneider had his 2008 and 2010 work accidents, the statute of limitations
provision of K.S.A. 44-520a read as follows:


                 "(a) No proceedings for compensation shall be maintainable under the workmen's
       compensation act unless a written claim for compensation shall be served upon the
       employer by delivering such written claim to him or his duly authorized agent, or by
       delivering such written claim to him by registered or certified mail within two hundred
       (200) days after the date of the accident, or in cases where compensation payments have
                                                    7
       been suspended within two hundred (200) days after the date of the last payment of
       compensation; or within one (1) year after the death of the injured employee if death
       results from the injury within five (5) years after the date of such accident."


Effective May 15, 2011, the Legislature repealed K.S.A. 44-520a. L. 2011, ch. 55, § 29.


       The Legislature enacted the statute of limitations provision of K.S.A. 44-534 in
1974. L. 1974, ch. 203, § 33. When Schneider had his 2008 and 2010 work accidents, the
statute of limitations provision of K.S.A. 44-534(b) stated:


               "(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."


       Thus, from 1974 when the Legislature enacted the application of hearing statute of
limitations under K.S.A. 44-534(b) until 2011 when the Legislature repealed the written
claim statute of limitations under K.S.A. 44-520a, workers seeking benefits under the Act
had to meet two statutes of limitations requirements: (1) those for the written claim, and
(2) those for the application for hearing. See Childress v. Childress Painting Co., 226
Kan. 251, Syl. ¶ 1, 597 P.2d 637 (1979).


       Before the Legislature enacted the statute of limitations requirements for filing an
application for hearing, our Supreme Court considered whether the written claim statute
of limitations could be revived. In Graham, a worker sustained an injury but filed no
claim under the Act. Later, when his time to file a written claim under R.S. 1933 Supp.
44-520a had passed, he quit because of his injury. Then, his employer provided him
compensation and paid for his medical treatment. After his employer's payments, the
worker filed a written claim for compensation. The worker argued "that notwithstanding
the fact the time had gone by within which he could file his claim for compensation, and

                                                     8
several months had elapsed, the fact his employer paid him something as compensation
revived his lost right to file his claim and recover compensation." 143 Kan. at 975. Our
Supreme Court rejected this argument because it determined that Graham's position was
untenable. Thus, it held: "When the time provided by statute within which to file a claim
for compensation has passed, the right to recover compensation under the statute is lost
and cannot be revived by subsequent voluntary payments of compensation by the
employer. We regard this as the proper interpretation of the statute . . . ." 143 Kan. at 975.


       In the decades following the Graham decision, our Supreme Court has reaffirmed
its holding that a statute of limitations cannot be revived by an employer's voluntary
compensation once the time to file a claim has passed. Nevertheless, the most recent
Supreme Court decision affirming the Graham holding was in 1957. Moreover, our
Supreme Court has never applied the Graham holding to the statute of limitations in
K.S.A. 44-534(b). See, e.g., Rutledge v. Sandlin, 181 Kan. 369, 372, 310 P.2d 950
(1957); Solorio v. Wilson & Co., 161 Kan. 518, 521, 169 P.2d 822 (1946); Pittman v.
Glencliff Dairy Products Co., 154 Kan. 516, 517-18, 119 P.2d 470 (1941). All the same,
the City asserts that the Graham holding is still good law and broad enough to be
applicable to K.S.A. 44-534(b)'s statute of limitations provision.


       A comparison of K.S.A. 44-520a(a)'s language and K.S.A. 44-534(b)'s language
establishes that the statutes are similar. For example, both K.S.A. 44-520a(a) and K.S.A.
44-534(b) have different time limitations depending on the facts of a claimant's case. If
the employer has never paid compensation, then the K.S.A. 44-520a(a) and K.S.A. 44-
534(b) statute of limitations begin to run from the worker's date of accident. On the other
hand, if an employer has previously paid compensation to the worker, then the K.S.A. 44-
520a(a) and K.S.A. 44-534(b) statute of limitations begin to run from the employer's "last
payment of compensation." K.S.A. 44-520a(a)'s and K.S.A. 44-534(b)'s comparable
language would seemingly support the Graham holding: because K.S.A. 44-520a's time
limitations did not revive upon an employer's voluntary payment of compensation to

                                              9
Graham after the running of the statute of limitations, this reasoning should also be
applicable to this court's analysis of the time limitations under K.S.A. 44-534(b).


       Yet, Schneider argues that the plain language of K.S.A. 44-534(b) does not
support the City's argument that the court should follow and adopt the Graham holding.
He argues that under the plain language of K.S.A. 44-534(b), workers need only file their
application for hearing within three years of their accident or within two years of their
employer's last payment of compensation. Thus, if an employer were to make a payment
of compensation after a worker's time to file an application for hearing had run, the time
to file an application for hearing should be extended. Indeed, Schneider argues that
nothing within the plain language of K.S.A. 44-534(b) prevented a revival of the statute
of limitations when an employer made a payment of compensation. Finally, he argues
that this court must refrain from reading language into a statute that is not within the
statute. Bergstrom, 289 Kan. at 607-08.


       In this case, the ALJ and the Board seemingly injected ambiguity into K.S.A. 44-
534(b) when they grounded their decisions on the Graham rationale. For example, the
ALJ ruled: "[W]hen the time provided by the statute within which to file a claim for
compensation under the Act has passed, the right to recover compensation under the
statute is lost and cannot be revived by subsequent voluntary payments of compensation
by the employer." Based on the plain reading of K.S.A. 44-534(b), the ALJ's
interpretation of this statute could only invite confusion.


       Here, the Legislature chose the specific construction of K.S.A. 44-534(b). Once
again, K.S.A. 44-534(b) states:


               "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



                                                    10
       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."


The Legislature was not constrained by any particular word choice or structure in drafting
K.S.A. 44-534(b). Indeed, had the Legislature wanted to prevent workers from reviving
the statute of limitations as the City argues, the Legislature could have easily included the
following language after the above "whichever is later" language in K.S.A. 44-534(b):
however, if there is a gap of two years or more from the last payment of compensation,
no proceeding will be maintained under the workers compensation act. If the previously
italicized language would have more clearly expressed what the Legislature was
attempting to say under K.S.A. 44-534(b), the Legislature could have easily included this
language in K.S.A. 44-534(b). Nevertheless, the Legislature included no such language in
K.S.A. 44-534(b).


       This court's first obligation is to determine if a statute has a clear meaning. If it
does, then this court merely applies the language of the statute. Here, the language of
K.S.A. 44-534(b) is clear and unambiguous. As a result, this court is required to apply
K.S.A. 44-534(b) as written.


       Even so, the City contends that Schneider has overemphasized the part of the
statute that "indicates that the claimant has two years from the last payment of
compensation to file an application for hearing and read that [language] to allow revival
of a claim which is time barred." The City asserts that although "there is no doubt that the
first canon of interpretation of a statute is that you give plain meaning to the language in
the statute," this court "cannot lose sight of the other canons of interpretation, such as the
statutory provision should be read with reference to the whole act." But the City's
argument fails for three reasons.




                                                    11
       First, the City ignores that this court does not resort to the canons of statutory
construction if the language of the statute is plain and unambiguous. Ullery v. Othick, 304
Kan. 405, 409, 372 P.3d 1135 (2016). Thus, because the plain and unambiguous language
of K.S.A. 44-534(b) does not prevent revival, this court has no authority to resort to the
canons of statutory construction. Second, the City asserts that under Schneider's
interpretation of K.S.A. 44-534(b), the statute of limitations of an injury could always be
revived upon an employer's payment of compensation. The City believes that this is
unfair. The question of whether revival of the statute of limitations is unfair, however, is
a policy issue. The Legislature decides policy, not the courts. Phillips v. St. Paul Fire &
Marine Ins. Co., 289 Kan. 521, 527, 213 P.3d 1066 (2009). Third, in making its
argument, the City implicitly concedes that revival could occur under the plain language
of the statute: (1) by agreeing that K.S.A. 44-534(b) "indicates" that a worker has two
years to file an application for hearing following an employer's last payment of
compensation without any other conditions; (2) by asserting that this court should focus
on the canons of statutory construction even though the "first canon of interpretation of a
statute is that you give plain meaning to the language of the statute."


       Most importantly, the City's argument undervalues the changes our Supreme Court
has made regarding statutory interpretation. As stressed by Schneider, as well as the
Board's hesitancy to affirm the ALJ's decision, our Supreme Court has consistently held
that the plain language of a statute controls how courts must interpret that statute. For
example in Casco v. Armour Swift-Eckrich, 283 Kan. 508, 525, 154 P.3d 494 (2007), our
Supreme Court reversed a 76-year-old case—Honn v. Elliott, 132 Kan. 454, 295 P. 719
(1931)—which had held that the loss of "both eyes, both hands, both arms, both feet, or
both legs or any combination thereof" necessarily constituted a permanent total disability.
The Casco court held that the "Honn court's interpretation of [K.S.A. 44-510c] did not
follow a key tenet of statutory construction—courts cannot add something to a statute
that is not readily found in the language of the statute." 283 Kan. at 525. Furthermore, in
Bergstrom, our Supreme Court reversed this court's decision in Foulk v. Colonial

                                              12
Terrace, 20 Kan. App. 2d 277, 284, 887 P.2d 140 (1994), 15 years after denying review
because it determined that this court read language into "K.S.A. 44-510e(a) that
require[d] an injured worker to make a good-faith effort to seek out and accept alternate
employment." Bergstrom, 289 Kan. at 609.


       In short, our Supreme Court decided Graham 82 years ago. When our Supreme
Court decided Graham, our Supreme Court cited to the previous version of K.S.A. 44-
520a. Next, our Supreme Court rejected Graham's position about revival. 143 Kan. at
975. The Graham court then reached its holding that after the statute of limitations under
44-520a had run, the statute of limitations could not be revived by an employer's
voluntary payment of compensation. 143 Kan. at 975. In reaching its holding, the
Graham court wrote an unstated statutory purpose into 44-520a: "When the time
provided by statute within which to file a claim for compensation has passed, the right to
recover compensation under the statute is lost and cannot be revived by subsequent
voluntary payments of compensation by the employer. We regard this as the proper
interpretation of the statute . . . ." 143 Kan. at 975. Nevertheless, there is no such
language or statutory condition stated in K.S.A. 44-520a.


       Moreover, in rejecting Graham's argument that the statute of limitations could not
be revived, the Graham court conditioned its holding on the employer's voluntary
payment of compensation. Nevertheless, there is nothing in the statutory language of
K.S.A. 44-520a or K.S.A. 44-534(b) containing the wording "voluntary payment of
compensation." This wording is absent from both K.S.A. 44-520a and K.S.A. 44-534(b).
In fact, both K.S.A. 44-520a and K.S.A. 44-534(b) contain the words "the date of the last
payment of compensation." Thus, under the statutory language of these two statutes, the
last payment does not have to be a voluntary payment by the employer. In essence, the
Graham court rewrote the plain language of 44-520a to validate its holding. As a result, it
is readily apparent that the Graham court did not apply the plain language of 44-520a—
the very thing our Supreme Court now requires.

                                              13
       This court is duty bound to follow our Supreme Court precedent absent some
indication that our Supreme Court is departing from its previous position. Majors v.
Hillebrand, 51 Kan. App. 2d 625, 629-30, 349 P.3d 1283 (2015). Here, the Graham
court's failure to interpret the plain language of 44-520a, combined with our Supreme
Court's current position that the plain and unambiguous language controls this court's
interpretation of K.S.A. 44-534(b), establishes that the Graham holding is no longer good
law.


       In summary, the plain and unambiguous language of K.S.A. 44-534(b) supports
our conclusion that a worker's time to file an application for hearing may be revived upon
an employer's payment of compensation after the statute of limitations to file an
application for hearing has run. The City's arguments rejecting this interpretation of
K.S.A. 44-534(b) are flawed for the following reasons: (1) it ignores the rules of
statutory construction, (2) it ignores that the Legislature creates policy, (3) it implicitly
concedes that revival can occur under the plain language of K.S.A. 44-534(b), and (4) its
interpretation of K.S.A. 44-534(b) is at variance with the plain meaning of this statute.


       As a result, the Board erred when it concluded that an employer could not revive
the two-year statute of limitations when it made a payment of compensation to an injured
worker after the time for the injured worker to file a timely application for hearing had
run. Here, because Schneider received compensation from the City in December 2015
and in January 2016 and because he filed his applications for hearings in January 2016,
his applications under the revived two-year statute of limitations were timely. Thus, we
reverse and remand to the Board for further proceedings consistent with this opinion.


       Reversed and remanded with directions.




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