                                       No. 115,763

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      TIMMY GLAZE,
                                        Appellant,

                                             v.

       J.K. WILLIAMS, LLC, and COMMERCE & INDUSTRY INSURANCE COMPANY,
                                   Appellees.


                              SYLLABUS BY THE COURT

1.
       When a statute is plain and unambiguous, an appellate court should not speculate
about the legislative intent behind that clear language, and it should refrain from reading
something into the statute that is not readily found in its words. The court must give
effect to the statute's express language rather than determine what the law should or
should not be. Where there is no ambiguity, the court need not resort to statutory
construction.


2.
       K.S.A. 2011 Supp. 44-523(f)(1) is not ambiguous.


3.
       If a claimant's workers compensation claim has not proceeded to a regular hearing,
a settlement hearing, or an agreed award under the Workers Compensation Act within
3 years from the date of filing an application for hearing, the employer may file a motion
to dismiss the claim for lack of prosecution. In order to survive such a motion to dismiss,
at a minimum, the claimant must have filed a motion to extend the claim prior to



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expiration of the 3-year time limitation. Only then will the court proceed to determine
whether there is good cause for the extension.


        Appeal from Workers Compensation Board. Opinion filed February 24, 2017. Affirmed.


        Daniel L. Smith, of Ankerholz and Smith, of Overland Park, for appellant.


        Ryan D. Weltz and Christopher J. McCurdy, of Wallace, Saunders, Austin, Brown & Enochs,
Chartered, of Overland Park, for appellees.


        Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for amicus curiae Kansas
AFL-CIO.


Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.


        ARNOLD-BURGER, C.J.: Timmy Glaze's workers compensation claim was
dismissed by the Kansas Workers Compensation Board (Board) pursuant to K.S.A. 2011
Supp. 44-523(f)(1), because his claim had not proceeded to hearing within 3 years of
filing and he had not requested an extension within that 3-year period. It was dismissed in
spite of the fact that he had not been dilatory in pursuing his claim, he had not abandoned
his claim, and there was no dispute that he had not reached maximum medical
improvement. Unfortunately, the statute that requires this result, although inartfully
drafted, is not ambiguous so we are required to uphold the Board's decision. It is up to the
legislature to change the statute if it wants to avoid this clearly harsh result in the future.
In addition, we cannot find that the dismissal of the case denies Glaze his right to be
heard at a meaningful time and in a meaningful manner under § 18 of the Kansas
Constitution Bill of Rights. The statute provides Glaze a sufficient opportunity to proceed
with his claim if he does so under the time requirements of the statute. Accordingly, we
affirm the decision of the Board dismissing Glaze's claim.



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                           FACTUAL AND PROCEDURAL HISTORY


       In August 2011, Glaze slipped and fell at work, injuring his left side. Glaze filed
an application for a workers compensation hearing in Kansas on December 5, 2012.
Glaze lived in Alabama at the time of filing the application. In August 2013, Glaze sent
respondent J.K. Williams (Williams) expert reports and a demand for the payment of
permanent total disability benefits. Williams scheduled evaluations for Glaze to attend in
October 2013 in Kansas City. Glaze refused to attend the evaluations and requested
rescheduling because Williams had not prepaid the mileage for the trip. The parties
appeared in court in July 2014 to settle issues related to payment for the trip.


       Williams filed a motion to dismiss on January 4, 2016. The basis for the motion to
dismiss was that "[c]laimant has failed to move the claim towards Regular Hearing or
settlement within three years after the date of the filing of the Application for Hearing."
On January 29, 2016, Glaze filed a request for extension of time to schedule out of state
depositions and schedule a regular hearing. A hearing on the motions occurred on
February 3, 2016. The primary issue was whether K.S.A. 2011 Supp. 44-523(f) required
dismissal of Glaze's claim because he did not file a motion for extension within 3 years of
his application for a hearing. The administrative law judge (ALJ) ruled that K.S.A. 2011
Supp. 44-523(f)(1) required her to dismiss the case because Glaze did not file a motion to
extend time to proceed to regular hearing until after the 3-year limitation on filing such
motions had passed. The Kansas Workers Compensation Appeals Board affirmed the
ALJ's decision, with one Board member dissenting.


       Glaze appealed.




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                                          ANALYSIS


K.S.A. 2011 Supp. 44-523(f)(1) requires that the Board dismiss Glaze's claim.


       On appeal, Glaze argues that K.S.A. 2011 Supp. 44-523(f)(1) is ambiguous and
does not require dismissal of his claim. The Kansas AFL-CIO filed an amicus curiae
brief in support of Glaze's argument.


       K.S.A. 2011 Supp. 44-556(a) directs that final orders of the Workers
Compensation Board are subject to review under the Kansas Judicial Review Act, K.S.A.
77-601 et seq., as amended. Appellate courts have unlimited review of questions
involving the interpretation or construction of a statute, owing no deference to the
agency's or the Board's interpretation or construction. Fernandez v. McDonald's, 296
Kan. 472, 475, 292 P.3d 311 (2013).


       When a statute is plain and unambiguous, an appellate court should not speculate
about the legislative intent behind that clear language, and it should refrain from reading
something into the statute that is not readily found in its words. Hoesli v. Triplett, Inc.,
303 Kan. 358, 362, 361 P.3d 504 (2015). The court must give effect to the statute's
express language rather than determine what the law should or should not be. 303 Kan. at
362. Where there is no ambiguity, the court need not resort to statutory construction.
Only if the statute's language or text is unclear or ambiguous does the court use canons of
construction or legislative history to construe the legislature's intent. 303 Kan. at 362.


       K.S.A. 2006 Supp. 44-523(f) "provides a way for the workers compensation
division to cleanse its house of stale claims." Welty v. U.S.D. No. 259, 48 Kan. App. 2d
797, 800, 302 P.3d 1080 (2012). Subsection (f) was added to the statute during the 2006
legislative session, 48 Kan. App. 2d at 800, and amended in 2011. L. 2011, ch. 55, sec.


                                               4
17. The 2011 version of the statute is the version of the statute under which the ALJ made
her ruling in Glaze's case. The relevant amended language is as follows:


               "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 . . . 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." K.S.A. 2011 Supp. 44-523(f)(1).


       Glaze breaks the statute down into individual sentences. He argues that the first
sentence requires employers to establish a lack of prosecution as grounds for dismissal.
Glaze says that this sentence "does not state that the mere passage of three years
constitutes a lack of prosecution. Rather, the statutory language provides that the passage
of three years is the minimum required before a respondent can assert a claim of lack of
prosecution and seek dismissal of the claimant's case." However, this interpretation is
faulty because the statute does not require the employer to establish lack of prosecution.
The fourth sentence of the statute requires the ALJ to dismiss the claim for lack of
prosecution if the claimant cannot show good cause, whether or not the employer proves
that the claimant has failed to prosecute. "The statute equates a lack of prosecution with a
claimant taking more than three years after the filing of an application for hearing to get
to a regular hearing, settlement hearing or award." Hackler v. Peninsula Gaming
Partners, LLC, No. 1,060,759, 2016 WL 858312, at *5 (Kan. Work. Comp. App. Bd.
February 25, 2016).



                                                     5
       Glaze also argues that that the third sentence of the statute is ambiguous. The third
sentence gives the ALJ discretion to grant an extension for good cause, "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." K.S.A. 2011 Supp. 44-523(f)(1). Glaze argues that it is unclear
whether the last clause in sentence three "applies to the immediate description of the
conclusive presumption of good cause or is to be stretched somehow to apply to the
initial independent main clause as the Board had found."


       It is clear from the plain language of the statute that the last clause, requiring the
claimant to make a motion to extend within 3 years, applies to the opening clause of the
sentence. The opening clause gives the ALJ discretion to grant a motion for extension for
good cause, but the final clause states that the motion for extension must be filed within
3 years. The clause in the middle of the sentence simply provides the circumstances
under which good cause will be presumed—when the claimant has not reached maximum
medical improvement—and does not relate to the motion to extend. Accepting Glaze's
interpretation of the statute would mean that the conclusive presumption of good cause
would only apply if the claimant filed a motion to extend within the 3-year limit. We can
think of no logical reason why the legislature would limit the use of the presumption in
this manner.


       This court recently reached the same conclusion in Breedlove v. Richardson
Hauling Inc., No. 114,600, 2016 WL 5844575 (Kan. App. 2016) (unpublished opinion),
examining K.S.A. 2007 Supp. 44-523. Breedlove was decided after the parties in this case
wrote their briefs, so neither party discusses it. While it involves the 2007 statutory
language, the analysis is still applicable to the 2011 statutory language. The 2007
language was as follows:




                                               6
               "Any claim that has not proceeded to final hearing, a settlement hearing, or an
       agreed award under the workers compensation act within five years from the date of
       filing an application for hearing . . . shall be dismissed by the administrative law judge
       for lack of prosecution. 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 five year limitation provided for herein." K.S.A. 2007 Supp. 44-523(f).


       In Breedlove, the claimant's claim was dismissed for lack of prosecution under
K.S.A. 2007 Supp. 44-523(f) because more than 5 years had passed since the claimant
had made an application for a workers compensation hearing. The claimant had filed a
motion for extension, but it was untimely because the motion was made after the 5-year
time limit. The court relied upon the language in K.S.A. 2007 Supp. 44-523(f) that stated
"that a motion for extension of time for good cause is timely 'provided such motion to
extend is filed prior to the five year limitation provided for herein.'" 2016 WL 5844575,
at *6. Based on this language, the court held that the claimant "needed to request an
extension of time before the 5-year time limit to prosecute the claim had elapsed.
Otherwise, the ALJ would no longer have jurisdiction to consider the motion for
extension of time." 2016 WL 5844575, at *6.


       The Breedlove court noted that 44-523(f) had been revised since the notice of
appeal was filed in the case and that the current revision simply changed the time limit
for lack of prosecution from 5 years to 3 years. 2016 WL 5844575, at *4. However, the
remaining statutory language that the Breedlove court relied upon, "provided such motion
to extend is filed prior to the [five/three] year limitation provided for herein," remains
unchanged. Compare K.S.A. 2007 Supp. 44-523(f) with K.S.A. 2011 Supp. 44-523(f)(1).
This is exactly the portion of the statute that Glaze challenges as ambiguous. Because the
statute contains the same operative language now as it did in the Breedlove decision, we
find the court's interpretation of the statute in Breedlove to be persuasive.


                                                     7
       There have also been several Board decisions that interpreted K.S.A. 2011 Supp.
44-523(f)(1) in the same way as the ALJ in this case interpreted it. See Hackler, 2016
WL 858312, at *5 ("[A] motion to extend must be filed within the three years after an
application for hearing is filed and claimant must prove good cause to warrant an
extension. . . . In this case, claimant had good cause, but filed her motion outside of the
three year time frame."); Hoffman v. Dental Central, P.A., No. 1,058,645, 2015 WL
4071473, at *5 (Kan. Work. Comp. App. Bd. June 26, 2015) (noting that "the statute is
very specific in its requirement that the motion to extend be filed prior to the running of
the three year limitation"); Ramstad v. U.S.D. 229, No. 1,059,881, 2015 WL 5462026, at
*2 (Kan. Work. Comp. App. Bd. August 31, 2015) ("The motion [for extension] must be
filed prior to the expiration of the three-year period. No such motion was filed. The plain
language of K.S.A. 2011 Supp. 44-523(f)(1) requires dismissal."). Appellate courts are
not required to give significant deference to an agency or board's statutory interpretation.
Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs., 290 Kan. 446, 457, 228
P.3d 403 (2010). However, the Board decisions provide further evidence that the statute
is not ambiguous.


       Glaze points to a dissenting opinion in the Hackler case as evidence that the
statute is ambiguous. Like Glaze, the dissenting Board member in Hackler—the same
Board member who dissented in Glaze's case, Thomas D. Arnhold—looked at the
sentences in the statute in isolation and concluded that "regardless of the inevitable
passage of time, the first sentence of K.S.A. 2011 Supp. 44-523(f) clearly states a lack of
prosecution is a condition necessary for a respondent to file a motion to dismiss."
Hackler, 2016 WL 858312, at *6 (Arnhold, dissenting). Board member Arnhold also
argued that the fourth sentence ("If the claimant cannot establish good cause, the claim
shall be dismissed with prejudice by the administrative law judge for lack of
prosecution.") requires a judge to find both a lack of prosecution and a lack of good cause
before dismissing the case. 2016 WL 858312, at *7. While this is a creative interpretation


                                              8
of the statute, it ignores the third sentence which states that a motion to extend for good
cause must be filed within 3 years. K.S.A. 2011 Supp. 44-523(f)(1).


          In sum, we find that K.S.A. 2011 Supp. 44-523(f)(1) is not ambiguous. If a
claimant's workers compensation claim has not proceeded to a regular hearing, a
settlement hearing, or an agreed award under the Workers Compensation Act within 3
years from the date of filing an application for hearing, the employer may file a motion to
dismiss the claim for lack of prosecution. In order to survive such a motion to dismiss, at
a minimum, the claimant must have filed a motion to extend the claim prior to expiration
of the 3-year time limitation. Only then will the court proceed to determine whether there
is good cause for the extension.


          Because the 3-year time limitation in K.S.A. 2011 Supp. 44-523(f)(1) is not
ambiguous, the statute authorized the dismissal of Glaze's claim. The Board's decision is
affirmed. The court must give effect to the statute's express language rather than
determine what the law should or should not be. See Hoesli, 303 Kan. at 362. It is up to
the legislature to change the statute if it wants to avoid this clearly harsh result in the
future.


As applied to the facts of this case, K.S.A. 2011 Supp. 44-523(f)(1) does not represent a
denial of due process under § 18 of the Kansas Constitution Bill of Rights.


          Glaze also argues that the Board's application of K.S.A. 2011 Supp. 44-523(f)(1)
to dismiss his claim deprived him of his procedural and substantive due process rights in
violation of § 18 of the Kansas Constitution Bill of Rights. The appellees argue that there
was no procedural due process violation and that Glaze failed to preserve any substantive
due process issue. Glaze does not make distinct procedural or substantive due process
arguments; rather, his primary argument is that the application of K.S.A. 2011 Supp.
44-523(f)(1) deprived him of an opportunity for a full and complete hearing. Glaze made

                                               9
this same argument to the ALJ, so the issue of whether Glaze was given an opportunity to
be heard is preserved for review.


         Determining a statute's constitutionality is a question of law subject to unlimited
review. The appellate courts presume statutes are constitutional and must resolve all
doubts in favor of a statute's validity. Courts must interpret a statute in a way that makes
it constitutional if there is any reasonable construction that would maintain the
legislature's apparent intent. Solomon v. State, 303 Kan. 512, 523, 364 P.3d 536 (2015).


         Section 18 of the Kansas Constitution Bill of Rights states: "All persons, for
injuries suffered in person, reputation or property, shall have remedy by due course of
law, and justice administered without delay." "The basic elements of procedural due
process are notice and an opportunity to be heard at a meaningful time and in a
meaningful manner." State v. Wilkinson, 269 Kan. 603, 608, 9 P.3d 1 (2000). Because
Glaze is challenging his opportunity to be heard, he is making a procedural due process
claim.


         Glaze argues that he "was afforded a notice of a hearing" but that "the hearing
itself did not afford an opportunity for a full hearing." Glaze is referencing the hearing
mandated by K.S.A. 2011 Supp. 44-523(f)(1). The statute says that when an employer
files an application for dismissal based on lack of prosecution the matter shall be set for
hearing and the claimant notified. K.S.A. 2011 Supp. 44-523(f)(1). Glaze was provided
notice of this hearing, but Glaze describes the hearing as a "meaningless exercise"
because the ALJ did not consider his argument that he had good cause for an extension. It
is true that Glaze did not have the opportunity to present his good cause for extension
arguments at this hearing, but that does not mean that Glaze did not have the opportunity
to present the arguments at all. K.S.A. 2011 Supp. 44-523(f)(1) gives claimants 3 years to
proceed to a regular hearing or file a motion to extend. Glaze had ample opportunity
within those 3 years to move forward with his case. But he did not. Due process

                                               10
requirements were satisfied because Glaze was given this opportunity, and Glaze cannot
now claim that his failure to take advantage of that opportunity violates his constitutional
rights.


          Affirmed.




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