                                           No. 120,905

                IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    CATHY MELONIE AIKINS,
                                          Appellant,

                                                 v.

                                      GATES CORPORATION,

                                                and

                                  INSURANCE COMPANY OF THE
                                    STATE OF PENNSYLVANIA,
                                           Appellees.


                                 SYLLABUS BY THE COURT

1.
          Kansas courts give no deference to an administrative agency's interpretation of
statutory language. Rather, the interpretation of a statute is a legal question over which
courts' review is unlimited.


2.
          The primary aim of statutory interpretation is to give effect to the legislature's
intent, expressed through the plain language of the statute. If a statute is plain and
unambiguous, courts will not speculate about the legislative intent behind that clear
language. Courts do not add or ignore statutory requirements; they give ordinary words
their ordinary meanings. Only when a statute's language is unclear or ambiguous does a
court turn to canons of construction or legislative history to construe the legislature's
intent.




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3.
       To ensure the timely payment of awards for workers' injuries, K.S.A. 44-512a
provides an avenue for claimants to apply for a civil penalty when payments are overdue.
When compensation has been awarded but not paid when due, a claimant may demand
payment from the employer or the employer's insurance carrier. If the employer refuses to
pay the award or fails to pay the award within 20 days of the claimant's demand, the
claimant shall be entitled to a civil penalty.


4.
       K.S.A. 44-512a does not allow a claimant to demand payment of a compensation
award, or seek a penalty for nonpayment of an award, until payment has become due.


5.
       The right to an action under K.S.A. 44-512a occurs when an award becomes the
final award of the Workers Compensation Appeals Board. This structure allows the
Board to conduct its review, and alter any award accordingly, before an employer's
payment obligations begin.


6.
       Under K.S.A. 2019 Supp. 44-551, there are three possibilities when an award
could become payable: (1) If any party seeks review by the Workers Compensation
Appeals Board, the Board must issue its decision within 30 days of when the parties
submit arguments; payment becomes due when the Board issues its decision on the
award. (2) If the Board does not issue its decision within 30 days of the parties'
arguments to the Board, payments for any medical or disability compensation must begin
on the 31st day after argument. (3) If no party seeks the Board's review of an ALJ's
award, that award becomes due after the time for seeking review expires.




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7.
        There is no need for a stay of payment obligations during the Workers
Compensation Appeals Board's review of an award under K.S.A. 2019 Supp. 44-551
because no payments are yet due.


        Appeal from the Workers Compensation Appeals Board. Opinion filed February 28, 2020.
Affirmed.


        William L. Phalen, of Pittsburg, for appellant.


        Brian J. Fowler and Brent A. Jepson, of Evans & Dixon, LLC, of Kansas City, Missouri, for
appellees.


Before BUSER, P.J., SCHROEDER and WARNER, JJ.


        WARNER, J.: The Kansas Workers Compensation Act provides an avenue for a
worker to seek a penalty from an employer who fails to pay his or her compensation
award. But Kansas law and logic dictate that such payments must be due before any
penalty can be ordered. This case presents the question of when payment obligations for
such awards arise.


        Cathy Melonie Aikins demanded payment from her employer after an
administrative law judge entered a compensation award in her favor but before that award
was reviewed by the Workers Compensation Appeals Board. While the parties were
submitting arguments to the Board, the ALJ ordered a penalty against Aikins' employer
for failing to pay her claim. The Board later reversed the penalty, finding Aikins'
payment demand and the ALJ's penalty order were premature because the employer was
not required to pay the award until after the Board concluded its review. We affirm the
Board's decision.




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                       FACTUAL AND PROCEDURAL BACKGROUND

       Aikins was injured in a car accident while leaving work at the Gates Corporation
in December 2014. The facts surrounding that accident and Aikins' injuries are discussed
in detail in the appeal affirming the Board's reversal of Aikins' compensation award,
Aikins v. Gates Corp., No. 120,769, 2020 WL 499830 (Kan. App. 2020) (unpublished
opinion). Those facts have limited relevance here. Rather, the circumstances giving rise
to this appeal are procedural in nature, relating to the post-award proceedings Aikins
initiated in pursuit of a penalty for nonpayment of her claim.


       On May 1, 2018, an administrative law judge awarded Aikins compensation for
injuries she sustained in the accident. One week later, on May 8, Aikins served Gates
with a demand for compensation based on the ALJ's award. The next day, Gates sought
review of the ALJ's ruling by the Board, claiming the ALJ erred in finding Aikins
suffered a permanent disability in the accident.


       On June 6, before the Board reviewed the underlying award, Aikins applied to the
ALJ for penalties under K.S.A. 44-512a due to Gates' failure to pay the compensation she
demanded. The ALJ held a hearing on Aikins' penalty request and ruled in her favor. In
doing so, the ALJ relied on this court's interpretation of K.S.A. 2014 Supp. 44-556—a
different statute—in Nuessen v. Sutherlands, 51 Kan. App. 2d 616, 352 P.3d 587 (2015),
and Gould v. Wright Tree Service Inc., No. 116,008, 2018 WL 1545789 (Kan. App.
2018) (unpublished opinion), where we concluded that there was no automatic stay of
payments due on compensation awards during appeals from the Board to the Kansas
Court of Appeals. Based on these decisions, the ALJ concluded Aikins was entitled to a
penalty because Gates had not moved for, or obtained, a stay on the underlying award
when it sought review by the Board.




                                             4
       Gates appealed the ALJ's imposition of the penalty to the Board, arguing Aikins'
motion for penalties under K.S.A. 44-512a was untimely because compensation was not
yet due under K.S.A. 2019 Supp. 44-551. Gates argued no payment would become due
until Aikins received a decision from the Board affirming the award or until 30 days
passed after the Board had heard the parties' oral argument.


       The Board reversed the ALJ's award on her original claim, finding by a
preponderance of the evidence that Aikins did not suffer a permanent injury from the
accident. Less than a month later, the Board also reversed the ALJ's penalty ruling. In
particular, the Board disagreed with the ALJ's extension of our analysis in Nuessen and
Gould of K.S.A. 2014 Supp. 44-556—which concerns appeals from the Board to the
Court of Appeals—to the Board's review process under K.S.A. 2019 Supp. 44-551. The
Board found Aikins' penalty application to be premature and the resulting penalty
erroneous because Gates had no duty to pay the award during the pendency of the Board's
review. Aikins appeals.


                                               DISCUSSION

       To ensure the timely payment of awards for workers' injuries, K.S.A. 44-512a
provides an avenue for claimants to apply for a civil penalty when payments are overdue:

               "In the event any compensation, including medical compensation, which has
       been awarded under the workers compensation act, is not paid when due to the person,
       firm or corporation entitled thereto, the employee shall be entitled to a civil penalty, . . .
       if: (1) Service of written demand for payment, setting forth with particularity the items of
       disability and medical compensation claimed to be unpaid and past due, has been made
       personally or by registered mail on the employer or insurance carrier liable for such
       compensation and its attorney of record; and (2) payment of such demand is thereafter
       refused or is not made within 20 days from the date of service of such demand."
       (Emphases added.) K.S.A. 44-512a(a).




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       Under this provision, when compensation has been awarded "but not paid when
due," a claimant may demand payment from the employer or the employer's insurance
carrier. Acosta v. National Beef Packing Co., 273 Kan. 385, 398, 44 P.3d 330 (2002). If
the employer refuses to pay the award or fails to pay the award within 20 days of the
claimant's demand, the claimant "shall be entitled to a civil penalty." K.S.A. 44-512a(a).


       The issue presented in this appeal is when payment of a workers-compensation
award becomes due. This question involves the interplay of two statutory provisions:
K.S.A. 44-512a and K.S.A. 2019 Supp. 44-551. Although the ALJ and the Board
interpreted these two statutes differently and reached different conclusions on the
ultimate question, Kansas courts give no deference to administrative agencies'
interpretations of statutory language. See Douglas v. Ad Astra Information Systems, 296
Kan. 552, 559, 293 P.3d 723 (2013) (no deference given to agencies' interpretations of
their own regulations). Rather, the interpretation of a statute is a legal question over
which our review is unlimited. In re Tax Appeal of Southwestern Bell, 59 Kan. App. 2d
644, 647, __ P.3d __, 2020 WL 398642, (120,167 filed January 24, 2020).


       The primary aim of statutory interpretation is to give effect to the legislature's
intent, expressed through the plain language of the statute. State v. Spencer Gifts, 304
Kan. 755, Syl. ¶ 2, 374 P.3d 680 (2016). If a statute is plain and unambiguous, we will
not speculate about the legislative intent behind that clear language. We do not add or
ignore statutory requirements, and we give ordinary words their ordinary meanings. See
304 Kan. 755, Syl. ¶ 3. Only when a statute's language is unclear or ambiguous does this
court turn to canons of construction or legislative history to construe the legislature's
intent. Nauheim v. City of Topeka, 309 Kan. 145, 149-50, 432 P.3d 647 (2019); see
Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607-08, 214 P.3d 676 (2009).


       K.S.A. 2019 Supp. 44-551, which generally concerns the qualifications and
authority of administrative law judges, also sets forth the process for review of ALJs'


                                              6
decisions by the Board. That statute concludes with the rule that "the decisions and
awards of the board shall be final." K.S.A. 2019 Supp. 44-551(p). The Board's review
process is broadly described in K.S.A. 2019 Supp. 44-551(l)(1), which states in relevant
part:


        "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. . . . 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." (Emphasis
        added.)


K.S.A. 2019 Supp. 44-551(l)(1) thus requires the Board to issue its orders on
compensation awards within 30 days of the completion of the parties' arguments during
review. K.S.A. 2019 Supp. 44-551(l)(2)(A) concerns the Board's review of preliminary
awards—an issue not presented here—and similarly requires that "orders of the board
under this subsection shall be issued within 30 days from the date arguments were
presented by the parties."


        Having established the timeframe for the Board's issuance of orders on review,
K.S.A. 2019 Supp. 44-551(l)(2)(B) clarifies that payment of an award is not due until the
close of this 30-day window:


                  "If an order on review is not issued by the board within the applicable time
        period prescribed by subsection (l)(1) [that is, 30 days after the parties present their
        arguments to the Board], medical compensation and any disability compensation as
        provided in the award of the administrative law judge shall be paid commencing with the



                                                      7
       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." (Emphases added.)


K.S.A. 2019 Supp. 44-551(l)(2)(C) then recognizes an exception to this payment due date
for cases where compensability is not in question (for example, when the only question in
dispute is the amount of the award, not whether an award is appropriate in the first place):


               "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."


       In Harper v. Coffey Grain Co., 192 Kan. 462, 466, 388 P.2d 607 (1964), the
Kansas Supreme Court reviewed a previous version of this statute and concluded that
"[u]ntil a workmen's compensation award becomes the final award of the workmen's
compensation commissioner"—a role now held by the Board—"it is not due [to] the
claimant." Harper thus held that a claimant could not make a demand for payment or
seek a penalty under K.S.A. 44-512a until a review under K.S.A. 44-551 concluded. 192
Kan. at 466. The court later relied on this conclusion in Acosta, when it observed that
"[t]he right to an action under K.S.A. 44-512a occurs when an award becomes the final
award of the Board." 273 Kan. at 398.


       Although K.S.A. 44-551 has been amended in the 56 years since Harper, its
provisions continue to reflect that payments on awards become due after the Board's
review. K.S.A. 2019 Supp. 44-551(l)(1) states that an ALJ's final orders and awards


                                                    8
"shall be subject to review by the workers compensation appeals board" if any interested
party timely requests the Board's review. The statute empowers the Board to significantly
change the award—or deny the award altogether, as it did in this case. See K.S.A. 2019
Supp. 44-551(l)(1) ("the board shall have authority to grant or refuse compensation, or to
increase or diminish any award of compensation"). Only after the Board's review does the
award become "final" under K.S.A. 2019 Supp. 44-551(p).


       This structure thus allows the Board to conduct its review, and alter any award
accordingly, before an employer's payment obligations begin. Under K.S.A. 2019 Supp.
44-551, there are three possibilities when an award could become payable:


    If any party seeks review by the Board, the Board must issue its decision within
       30 days of when the parties submit arguments. K.S.A. 2019 Supp. 44-551(l)(1).
       Payment becomes due when the Board issues its decision on the award.

    If the Board does not issue its decision within 30 days of the parties' arguments to
       the Board, payments for any medical or disability compensation must begin on
       "the first day after such time period"—namely, the 31st day after argument. K.S.A.
       2019 Supp. 44-551(l)(2)(B).

    If no party seeks the Board's review of an ALJ's award, that award becomes due
       after the 10-day timeframe for seeking review expires. K.S.A. 2019 Supp.
       44-551(l)(1).


       Despite this statutory language and Kansas Supreme Court caselaw, Aikins argues
that two recent decisions of this court—Nuessen and Gould—indicate that in order to
avoid a penalty for nonpayment of an award, an employer must apply for and obtain a
stay of execution. She correctly points out that Gates neither sought nor was granted a
stay of the award in this case while its review was pending before the Board. But this



                                            9
argument is wide of the mark because Nuessen and Gould involved a statute and process
that only come into play after payment obligations have accrued.


       Nuessen and Gould both considered whether an appeal from the Board to the
Court of Appeals under K.S.A. 2014 Supp. 44-556 and the Kansas Judicial Review Act
effected an automatic stay of any payments due. Both decisions concluded K.S.A. 2014
Supp. 44-556 did not include any automatic stay. Nuessen, 51 Kan. App. 2d 616, Syl. ¶ 5;
Gould, 2018 WL 1545789, at *5. Thus, in order to avoid any payment obligations or
penalties during the course of an appeal to this court, an employer must seek a stay from
the ALJ, the Board, or the appellate court.


       Importantly, however, the legal question presented in Nuessen and Gould only
arose after the Board had issued its decision under the K.S.A. 2019 Supp. 44-551 review
process. That is, Nuessen and Gould considered what happens after the event that triggers
the payment obligation. But no payment is due while the Board conducts its review under
K.S.A. 2019 Supp. 44-551. Thus, in contrast to the situations in Nuessen and Gould, and
contrary to Aikins' arguments here, there is no need for a stay of payment obligations
during the Board's review of an award under K.S.A. 2019 Supp. 44-551 because no
payments are yet due.


       Aikins also cites K.S.A. 2019 Supp. 44-551(l)(2)(C), which states that payment of
some awards "shall not be stayed" pending the Board's review. She argues that the
legislature's inclusion of this language indicates other payments could be stayed—
meaning some payment obligation must exist before the Board issues its decision. This
argument is misplaced, however, because it ignores the purpose of K.S.A. 2019 Supp. 44-
551(l)(2)(C). The legislature understood the possibility of a stay in contexts when
compensability was not at issue. In such instances—not present in this case—no one
disputes an employer's payment obligation. It does not follow that a stay is necessary in



                                              10
all other contexts under K.S.A. 2019 Supp. 44-551. Indeed, the statutory language and
Kansas caselaw point to the opposite conclusion.


       Here, Aikins demanded payment from Gates one week after the ALJ issued its
compensation award. The 10-day timeframe for Gates to seek the Board's review had not
expired. The ALJ held a hearing on Aikins' penalty request before she filed her brief with
the Board regarding the original compensation award—an award the Board ultimately
reversed. The 30-day clock in K.S.A. 2019 Supp. 44-551 had not begun to run. And the
ALJ granted Aikins' penalty before the Board issued its decision. In short, no payment
was yet due.


       K.S.A. 44-512a(a) does not allow a claimant to demand payment of a
compensation award, or seek a penalty for nonpayment of an award, until payment has
become due. Under the plain language of K.S.A. 2019 Supp. 44-551, no payment is due
on an award until 30 days after the Board has received the parties' arguments (or after the
Board renders its decision, whichever is earlier). Because Aikins' original award was not
yet due under K.S.A. 2019 Supp. 44-551 when she demanded payment, the Board
correctly found her application for penalties was premature. The ALJ erred in entering a
penalty in this case; the Board's decision reversing that penalty is affirmed.


       Affirmed.




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