Printable Format44-523. Hearing procedure; time limitations on evidence and entry of award; prehearing settlement conference; recusal of administrative law judge; closure of claims; lack of prosecution. (a) The director, administrative law judge or board shall not be bound by technical rules of procedure, but shall give the parties reasonable opportunity to be heard and to present evidence, ensure the employee and the employer an expeditious hearing and act reasonably without partiality.
(b) Whenever a party files an application for benefits pursuant to K.S.A. 44-534, and amendments thereto, the matter shall be assigned to an administrative law judge for hearing and the administrative law judge shall set a terminal date to require the claimant to submit all evidence in support of the claimant's claim no later than 30 days after the first full hearing before the administrative law judge and to require the respondent to submit all evidence in support of the respondent's position no later than 30 days thereafter. An extension of the foregoing time limits shall be granted if all parties agree. An extension of the foregoing time limits may also be granted:
(1) If the employee is being paid temporary or permanent total disability compensation;
(2) for medical examination of the claimant if the party requesting the extension explains in writing to the administrative law judge facts showing that the party made a diligent effort but was unable to have a medical examination conducted prior to the submission of the case by the claimant but then only if the examination appointment was set and notice of the appointment sent prior to submission by the claimant; or
(3) on application for good cause shown.
(c) When all parties have submitted the case to an administrative law judge for an award, the administrative law judge shall issue an award within 30 days. The administrative law judge shall not stay a decision due to the absence of a submission letter. When the award is not entered in 30 days, any party to the action may notify the director that an award is not entered and the director shall assign the matter to an assistant director or to a special administrative law judge who shall enter an award forthwith based on the evidence in the record, or the director, on the director's own motion, may remove the case from the administrative law judge who has not entered an award within 30 days following submission by the party and assign it to an assistant director or to a special administrative law judge for immediate decision based on the evidence in the record.
(d) Not less than 10 days prior to the first full hearing before an administrative law judge, the administrative law judge shall conduct a prehearing settlement conference for the purpose of obtaining stipulations from the parties, determining the issues and exploring the possibility that the parties may resolve those issues and reach a settlement prior to the first full hearing.
(e) (1) If a party or a party's attorney believes that the administrative law judge to whom a case is assigned cannot afford that party a fair hearing in the case, the party or attorney may file a motion for change of administrative law judge. A party or a party's attorney shall not file more than one motion for change of administrative law judge in a case. The administrative law judge shall promptly hear the motion informally upon reasonable notice to all parties who have appeared in the case. Notwithstanding the provisions of K.S.A. 44-552, and amendments thereto, the administrative law judge shall decide, in the administrative law judge's discretion, whether or not the hearing of such motion shall be taken down by a certified shorthand reporter. If the administrative law judge disqualifies the administrative law judge's self, the case shall be assigned to another administrative law judge by the director. If the administrative law judge refuses to disqualify the administrative law judge's self, the party seeking a change of administrative law judge may, within 10 days of the refusal, file an appeal with the workers compensation appeals board.
(2) The party or a party's attorney shall file with the workers compensation appeals board an affidavit alleging one or more of the grounds specified in subsection (e)(4).
(3) If a majority of the workers compensation appeals board finds legally sufficient grounds, it shall direct the director to assign the case to another administrative law judge.
(4) Grounds which may be alleged as provided in subsection (e)(2) for change of administrative law judge are that:
(A) The administrative law judge has been engaged as counsel in the case prior to the appointment as administrative law judge.
(B) The administrative law judge is otherwise interested in the case.
(C) The administrative law judge is related to either party in the case.
(D) The administrative law judge is a material witness in the case.
(E) The party or party's attorney filing the affidavit has cause to believe and does believe that on account of the personal bias, prejudice or interest of the administrative law judge such party cannot obtain a fair and impartial hearing. Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists.
(5) In any affidavit filed pursuant to subsection (e)(2), the recital of previous rulings or decisions by the administrative law judge on legal issues or concerning prior motions for change of administrative law judge filed by counsel or such counsel's law firm, pursuant to this subsection, shall not be deemed legally sufficient for any belief that bias or prejudice exists.
(6) Notwithstanding the provisions of K.S.A. 44-556, and amendments thereto, no interlocutory appeal to the court of appeals of the workers compensation appeals board's decision regarding recusal shall be allowed while the resolution of the claim for compensation is pending before an administrative law judge or the workers compensation appeals board.
(f) (1) 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 pursuant to K.S.A. 44-534, and amendments thereto, 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 from the work-related injury. If the claimant cannot establish good cause, the claim shall be dismissed with prejudice by the administrative law judge for lack of prosecution. Such dismissal shall be considered a final disposition at a full hearing on the claim for purposes of employer reimbursement from the fund pursuant to K.S.A. 44-534a(b), and amendments thereto.
(2) In any claim which has not proceeded to regular hearing within one year from the date of a preliminary award denying compensability of the claim, 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. Unless the claimant can prove a good faith reason for delay, the claim shall be dismissed with prejudice by the administrative law judge. Such dismissal shall be considered a final disposition at a full hearing on the claim for purposes of employer reimbursement from the fund pursuant to K.S.A. 44-534a(b), and amendments thereto.
(3) This section shall not affect any future benefits which have been left open upon proper application by an award or settlement.
History: L. 1927, ch. 232, § 23; L. 1974, ch. 203, § 27; L. 1979, ch. 156, § 10; L. 1980, ch. 146, § 5; L. 1989, ch. 149, § 2; L. 1993, ch. 286, § 43; L. 1997, ch. 125, § 6; L. 2002, ch. 122, § 7; L. 2006, ch. 117, § 1; L. 2011, ch. 55, § 17; L. 2013, ch. 104, § 12; L. 2024, ch. 27, § 17; July 1.
Source or prior law:
L. 1911, ch. 218, § 25; L. 1917, ch. 226, § 12; R.S. 1923, 44-523.
Law Review and Bar Journal References:
Dispensing with rules of evidence criticized, Barton E. Griffith, 28 J.B.A.K. 307, 315 (1960).
"Potential Federalization of State Workmen's Compensation Law—The Kansas Response," James C. Wright and James P. Rankin, 15 W.L.J. 244, 256 (1976).
"Workmen's Compensation—Major Changes in Employments Covered, Benefits, Defenses, Offsets, and Other Changes," Alvin D. Herrington, 24 K.L.R. 611, 620 (1976).
"Workmen's Compensation—Rehabilitation Benefits," Vivien Hanna, 24 K.L.R. 649, 653 (1976).
"Major Legislative Changes in Workers' Compensation Law," Gary L. Jordan, 3 J.K.T.L.A. No. 1, 14, 16 (1979).
"Workers' Compensation: The Exclusive Remedy Rule is Alive and Well in Kansas [Hormann v. New Hampshire Insurance Co., 236 Kan. 190, 689 P.2d 837 (1984)]," Janet K. Kerr, 25 W.L.J. 192, 201 (1985).
"An Overview of the 1993 Amendments to the Kansas Workers Compensation Act," David J. Rebein, 62 J.K.B.A. No. 5, 30, 35 (1993).
"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 6, Review Section, 3 (1996).
"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 1, Review Section, 7 (1996).
"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 2, Review Section, 30 (1996).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 28, No. 1, 19 (2004).
"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. 31, No. 2, 16 (2007).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.A.J. Vol. 33, No. 6, 31 (2010).
CASE ANNOTATIONS
Explanation, see Revisor's Note under article title, chapter 44, article 5.
Cases through 1973
IN GENERAL (1-13)
1. Section contains an express mandate that the commissioner (director) shall not be bound by technical rules of procedure. Employers' Liability Assurance Corp. v. Matlock, 151 Kan. 293, 297, 98 P.2d 456 (1940).
2. Trial court not required to make technical findings of fact. Turner v. Spencer-Stafford Loadcraft, Inc., 189 Kan. 246, 251, 368 P.2d 630 (1962).
3. Hearings are not to be bound by technical rules of procedure. Norman v. Consolidated Cement Co., 127 Kan. 643, 646, 650, 274 P. 233 (1929).
4. Plain terms of statute itself not to be ignored in disregarding technical rules. Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 414, 286 P. 396 (1930).
5. Reopening of compensation case before award within commissioner's discretion. Stanley v. United Iron Works Co., 160 Kan. 243, 244, 255, 160 P.2d 708 (1945).
6. Applied in construing words "duly authorized agent" in K.S.A. 44-520a. Rubins v. Lozier-Broderick & Gor don, 160 Kan. 499, 502, 163 P.2d 364 (1945).
7. By express mandate the director is not bound by technical rules of procedure. Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 738, 347 P.2d 235 (1959); Pence v. Centex Construction Co., 189 Kan. 718, 724, 371 P.2d 100 (1962).
8. Compensation claim held legally sufficient to support award; lack of detail in claim no bar. Duncan v. Davidson Construction Co., 170 Kan. 520, 523, 227 P.2d 95 (1951).
9. Act intends speedy determination to be made of claims. Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, 278, 65 P.2d 284 (1937).
10. Section does not impose a time limitation upon director's jurisdiction to make award.
(a) Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 822, 339 P.2d 41 (1959);
(b) Pence v. Centex Construction Co., 189 Kan. 718, 721, 371 P.2d 100 (1962).
11. Time limitations upon jurisdiction to make award not imposed. Ketchell v. Wilson & Co., 138 Kan. 97, 99, 23 P.2d 488 (1933).
12. Quoted in construing provisions of K.S.A. 44-5a04. Ochoa v. Swift & Co., 200 Kan. 478, 480, 436 P.2d 412 (1968).
13. Implication is that any procedure which is appropriate and not prohibited by the workmen's compensation act may be employed. Drennon v. Braden Drilling Co., Inc., 207 Kan. 202, 208, 210, 483 P.2d 1022 (1971).
RULES OF EVIDENCE (14-20)
14. Director should not confine the parties to strict rules of evidence.
(a) Pence v. Centex Construction Co., 189 Kan. 718, 724, 371 P.2d 100 (1962);
(b) Dean v. Hodges Bros., 170 Kan. 333, 335, 224 P.2d 1028 (1950);
(c) Stanley v. United Iron Works Co., 160 Kan. 243, 255, 160 P.2d 708 (1945);
(d) Souden v. Rine Drilling Co., 150 Kan. 239, 241, 92 P.2d 74 (1939);
(e) Son v. Eagle-Picher M. & S. Co., 144 Kan. 146, 152, 58 P.2d 44 (1936);
(f) Walz v. Missouri Pac. Rld. Co., 142 Kan. 164, 166, 45 P.2d 861 (1935);
(g) Freeman v. Fowler Packing Co., 135 Kan. 378, 380, 11 P.2d 276 (1932);
(h) Holt v. Peterson Construction Co., 134 Kan. 149, 151, 4 P.2d 428 (1931).
15. Rule in compensation cases is that claimant is not required to establish his right to an award by direct evidence alone, or that he produce an eyewitness to the accident; circumstantial evidence may be used; not necessary that evidence rise to degree of certainty as to exclude every reasonable conclusion other than that found by the trial court.
(a) Pence v. Centex Construction Co., 189 Kan. 718, 725, 371 P.2d 100 (1962);
(b) Love v. Kerwin, 187 Kan. 760, 359 P.2d 881 (1961);
(c) Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 358 P.2d 676 (1961);
(d) Silvers v. Wakefield, 176 Kan. 259, Syl. 2, 270 P.2d 259 (1954);
(e) Workman v. Johnson Bros. Construction Co., 164 Kan. 478, 479, 190 P.2d 863 (1948);
(f) Carney v. Hellar, 155 Kan. 674, 127 P.2d 496 (1942);
(g) Williams v. Cities Service Gas Co., 151 Kan. 497, 99 P.2d 822 (1940);
(h) Kirkpatrick v. Yeamans Motor Co., 143 Kan. 510, 54 P.2d 960 (1936);
(i) Supica v. Armour & Co., 131 Kan. 756, 293 P.2d 483 (1930).
16. Hearsay evidence is admissible and may be accorded probative force. Parker v. Farmers Union Mut. Ins. Co., 146 Kan. 832, 840, 73 P.2d 1032 (1937).
17. Erroneous admission of testimony not ground for reversal. Lefebvre v. Western Coal and Mining Co., 131 Kan. 1, 10, 289 P. 394 (1930).
18. Testimony by doctor of deceased as to what he told of the history of the case as to symptoms and also how the accident happened; properly received in evidence and given probative force and effect.
(a) Pence v. Centex Construction Co., 189 Kan. 718, 724, 371 P.2d 100 (1962);
(b) Holt v. Peterson Construction Co., 134 Kan. 149, 150, 151, 4 P.2d 428 (1931).
19. Widow of deceased workman is not incompetent to testify to communications made to her by her husband in compensation action.
(a) Pence v. Centex Construction Co., 189 Kan. 718, 725, 371 P.2d 100 (1962);
(b) McDonnell v. Swift & Co., 124 Kan. 327, 259 P. 695 (1927).
20. Testimony of legally insane witness, who is having lucid interval, may support compensation judgment. Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 364, 139 P.2d 846 (1943).
RULES OF PROCEDURE (23-30)
23. Director must receive all evidence germane to every issue involved; must receive all evidence pertaining to any question in issue.
(a) Employers' Liability Assurance Corp. v. Matlock, 151 Kan. 293, 299, 98 P.2d 456 (1940);
(b) Parker v. Farmers Union Mut. Ins. Co., 146 Kan. 832, 837, 840, 73 P.2d 1032 (1937);
(c) Brown v. Shellabarger Mill & Elev. Co., 142 Kan. 476, 50 P.2d 919 (1935);
(d) Walz v. Missouri Pac. Rld. Co., 142 Kan. 164, 166, 45 P.2d 861 (1935).
24. Two injuries; claim for first injury; evidence as to both injuries receivable. Brown v. Shellabarger Mill & Elev. Co., 142 Kan. 476, 50 P.2d 919 (1935).
25. Where director and court act reasonably and impartially their decision will be upheld. Burns v. Topeka Fence Erectors, 174 Kan. 136, 139, 254 P.2d 285 (1953).
26. If director's decision be based on substantial and satisfactory evidence, relevant, reasonable, and persuasive, though not technically admissible under the rules of evidence governing procedure, the decision will be upheld.
(a) Pence v. Centex Construction Co., 189 Kan. 718, 723, 371 P.2d 100 (1962);
(b) Dean v. Hodges Bros., 170 Kan. 333, 224 P.2d 1028 (1950);
(c) Parker v. Farmers Union Mut. Ins. Co., 146 Kan. 832, 73 P.2d 1032 (1937);
(d) Freeman v. Fowler Packing Co., 135 Kan. 378, 380, 381, 11 P.2d 276 (1932);
(e) Holt v. Peterson Construction Co., 134 Kan. 149, Syl. 2, 4 P.2d 428 (1931).
27. Immediately before time for award employer requested employee to submit to medical examination; unreasonable and improper. Zimmerman v. O'Neill Tank Co., 188 Kan. 306, 307, 310, 362 P.2d 10 (1961).
28. Early theory of procedure explained. Goodwin v. Packing Co., 104 Kan. 747, 749, 180 P. 809 (1919).
29. Mentioned; workman's offer to arbitrate not a condition precedent to maintenance of compensation proceeding. Peschka v. Wilkinson Drilling Co., 192 Kan. 126, 130, 386 P.2d 509 (1963).
30. 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).
Cases after 1973
31. Director may grant continuances hereunder and award temporary disability pending determination of permanent disability. Bushey v. Plastic Fabricating Co., 213 Kan. 121, 125, 515 P.2d 735.
32. Act to be liberally construed in favor of worker; judge and court not bound by technical procedural rules. Bahr v. Iowa Beef Processors, Inc., 8 Kan. App. 2d 627, 633, 663 P.2d 1144 (1983).
33. Cited; claimant's oversight in filing claim following second injury notice with notice and claim for earlier injury examined. Pyeatt v. Roadway Express, Inc., 243 Kan. 200, 756 P.2d 438 (1988).
34. Cited in discussion of whether administrative law judge's order was preliminary or final. Waln v. Clarkson Constr. Co., 18 Kan. App. 2d 729, 732, 861 P.2d 1355 (1993).
35. Conflicting provisions of K.S.A. 44-510e and 44-519 construed to allow admission of neutral medical report into evidence without supportive testimony. McKinney v. General Motors Corp., 22 Kan. App. 2d 768, 772, 921 P.2d 257 (1996).
36. A request for reassignment of case by a party does not divest ALJ of jurisdiction to make award. Bradford v. Boeing Military Airplanes, 22 Kan. App. 2d 868, 872, 924 P.2d 1263 (1996).
37. Cited; workers compensation ALJ has discretion to assess costs of a neutral physician's examination to a party. Winters v. GNB Battery Technologies, 23 Kan. App. 2d 92, 99, 927 P.2d 512 (1996).
38. Section prohibits opinion testimony by vocational rehabilitation expert relying upon nontestifying health care provider evidence. Roberts v. J.C. Penney Co., 263 Kan. 270, 275, 277, 949 P.2d 613 (1997).
39. 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, 583, 972 P.2d 747 (1999).
40. Neither the ALJ nor the Workers Compensation Board abused its discretion by granting an extension of the terminal date. Tull v. Atchison Leather Products, Inc., 37 Kan. App. 2d 87, 99, 150 P.3d 316 (2007).
41. Claimant failed to demonstrate the compensability of medical compensation and her post-award medical benefits were incurred outside the relation back period; awards reversed. Roles v. Boeing Co., 43 Kan. App. 2d 619, 230 P.3d 771 (2010).
42. The 5-year limitation period provision does not apply retroactively to bar claims. Welty v. U.S.D. No. 259, 48 Kan. App. 2d 797, 302 P.3d 1080 (2012).
43. The provisions in subsection (f) are procedural rather than substantive, and an amended version applies retroactively; a dismissal for lack of prosecution under subsection (f)(1) is with prejudice and operates as a bar to any recovery on the injured worker's claim. Green v. Gen. Motors Corp., 56 Kan. App. 2d 732, 740, 437 P.3d 94, 100 (2019).
44. Under subsection (f)(1), a workers compensation claimant must move for an extension within three years of filing an application for hearing if the claim is to survive a proper motion to dismiss. Glaze v. J.K. Williams, LLC, 309 Kan. 562, 564-69, 439 P.3d 920 (2019).
45. If a workers compensation claimant filed an application for hearing under K.S.A. 44-534 after K.S.A. 2011 Supp. 44-523(f)(1) took effect, the 2011 statute governs the claim. Knoll v. Olathe Sch. Dist. No. 233, 309 Kan. 578, 578, 439 P.3d 313 (2019).
46. Second extension is not required to be requested before first extension expires to keep claim viable. Gerlach v. Choices Network, Inc., 61 Kan. App. 2d 268, 275, 503 P.3d 1033 (2021).