• August 1999. (Award) There must be a justiciable controversy before an issue will be reviewed under the Workers Compensation Act. The legislature did not intend the Act to be used as a vehicle to obtain an advisory opinion. In the case at hand, respondents asks for a determination of whether claimant was an employee of respondent at the time of the accident. Since the claimant has not yet asked for workers compensation benefits, the Board finds that what respondent wants is merely an advisory opinion. Dickey v. USD 259 and Self-Insured, Docket No. 242,050.



• November 1998. (Award) There is no provision in the Workers Compensation Act which would allow for a summary judgment or for a decision at the conclusion of claimant's evidence. K.S.A. 44-501(a) requires the fact finder to consider the entire record before issuing a decision. Burley, Jr and Max Rieke & Brothers, Inc and CNA, Docket No. 213,265.



• November 1997. (Ph) The Workers Compensation administrative court has limited jurisdiction. Its subject matter jurisdiction is limited to cases involving accidental injury arising out of and in the course of employment. Whether claimant suffered accidental injury and whether the injury arose out of and in the course of employment are, therefore, designated in K.S.A. 44-534a as jurisdictional issues. Personal jurisdiction requires notice and timely written claim. Notice and written claim are designated as jurisdictional issues under K.S.A. 44-534a. Barrington v. Georgia Pacific Corporation, Docket No. 223,480.

• See Also Hopper v. The Boeing Company and Insurance Co. State of Pennsylvania and American Manufacturers Mutual Ins. Co., Docket No. 223,547 (November 1997).

• July 1997. (Ph) Appeals from preliminary hearings are controlled by K.S.A. 44-534a and K.S.A. 44-551. Ruch v. Keim Transportation and United States Fidelity and Guaranty Co., Docket No. 167,666.



• July 1997. (Ph) K.S.A. 44-534a, as amended, lists specific issues on appeal from preliminary hearings of which the Appeals Board has jurisdiction to review. These issues are as follows: (1) whether the employee suffered an accidental injury; (2) whether the injury arose out of and in the course of employment; (3) whether notice and claim were timely made; and (4) whether certain defenses apply. Kersenbrock v. Holiday Resort, Inc. and Kansas Health Care Association WCIT, Docket No. 211,918.



• See Also, Dittmer v. First Class Ford Mercury and Universal Underwriters of Texas and Kansas Workers Compensation Fund, Docket No. 199,160 (July 1997); Tipton v. Dillon Companies, Inc., Docket No. 208,410 (July 1997); Grill v. State of Kansas and State Self Insurance Fund, Docket No. 220,817 (August 1997); Bennedict v. Alpine Chemicals and Wausau Insurance Companies, Docket No. 169,467 (May 1997); Turkin v. EZ Shop & National Union Fire Insurance Company of New York, Docket No. 216,200 (April 1997).



• July 1997. (Ph) K.S.A. 44-551(b), as amended, confers jurisdiction upon the Appeals Board to review an appeal from a preliminary hearing order entered pursuant to K.S.A. 44-534a, as amended, where it is alleged the administrative law judge exceeded his/her jurisdiction in making such order. Kersenbrock v. Holiday Resort, Inc. and Kansas Health Care Association WCIT, Docket No. 211,918.



• See Also, Turkin v. EZ Shop & National Union Fire Insurance Company of New York, Docket No. 216,200 (April 1997).



• July 1997. (Award) As the fact finder with de novo review, the Appeals Board is free to consider all the evidence and to decide for itself the percentage of claimant's work disability. Jones v. U.S.D. 315 and Allied Mutual Insurance Co., Docket No. 195,651.

• June 1997. (Ph) When deciding an issue on appeal, the Appeals Board does give some deference to the administrative law judge's findings. The administrative law judge has the opportunity to personally observe the witnesses testifying and is in the best position to assess the witnesses' credibility. Morales v. Monfort, Inc., Docket Nos. 208,815 & 219,228.



• June 1997. (P/A) Appeals Board review is restricted to those questions and issues first presented to the administrative law judge. See K.S.A. 1996 Supp. 44-555c. Fox v. Praytor Construction and Aetna Casualty & Surety, Docket No. 173,869.



• April 1997. (Award) The review by the Appeals Board is de novo upon the record. Zimmer v. Central Kansas Medical Center and Reliance National Insurance Company and Workers Compensation Fund, Docket No. 186,009.



• See Also, Carol Gethins vs. Cedar Living Center and Travelers Indemnity of Illinois, Docket No. 250,491 (June 2000).



• February 1997. (Award) The Appeals Board will only decide issues on appeal which were presented for consideration before the administrative law judge. Hittle v. Southwestern Bell Telephone Company and Liberty Mutual Insurance Company, Docket No. 196,744.



• November 1993. (Award) The Appeals Board standard of review is de novo on the record as indicated by the 1993 Session Laws of Kansas, Chapter 286, and a reading of the entire Workers Compensation Act. See also Reeves v. Equipment Service Industries, Inc., 245 Kan. 165, 777 P. 2d 765 (1989). Mullins v. Clasen-Morse Chevrolet, Inc., and Universal Underwriters Group, Docket No. 181,264.

15.11 Procedure for Taking Appeal

15.12 Generally

• July 1997. (Award) Procedures for appealing decisions to the Appeals Board discussed. Rodriguez v. IBP, Inc., Docket No. 169,337.

• ----- The right to appeal a decision to the Appeals Board is statutory. See Resolution Trust Corp. v. Bopp, 251 Kan. 539, 836 P.2d 1142 (1992). Id.



• ----- When the record reveals a lack of jurisdiction, the Board's authority extends no further than to dismiss the action. See State v. Rios, 19 Kan. App.2d 350, Syl. ¶ 1, 869 P.2d 755 (1994). Id.

• ----- Ordinarily, parties cannot consent, waive or confer jurisdiction on a court. See In re Marriage of Harris, 20 Kan. App.2d 50, 883 P.2d 785, rev. denied 256 Kan. 995 (1994). Id.

15.13 Time for Taking Appeal

• See Nguyen v. IBP, Inc, below, for Appeals Board and Kansas Supreme Court opinions regarding: Time for Taking Appeal.



• July 1998. (Award) An ALJ's decision is effective the day following the date shown in the Decision. K.S.A. 1997 Supp. 44-525(a). The parties have ten days to appeal the ALJ's decision to the Appeals Board. Saturdays, Sundays and legal holidays are excluded in computing the ten-day period. K.S.A. 1997 Supp. 44-551(b)(1). Additionally, in computing this ten-day period, the first day is excluded but the last day in included. K.A.R. 51-17-1. Dutton-Deal v. Detroit Diesel Remanufacturing-Central and Old Republic Insurance Co, Docket Nos. 217,887 & 219,892 [Affirmed by unpublished Court of Appeals Opinion, Docket No. 81,746].

• ----- The three day mailing period of K.S.A. 60-206(e) does not apply to the requisite period to appeal a case to the Appeals Board. Id.



• ----- The time for taking an administrative appeal is jurisdictional and delay beyond the statutory time allotted is fatal to the appeal. See Keithley v. Kansas Employment Security Bd. of Review, 23 Kan. App. 2d 732, 935 P.2d 1060 (1997); State Bank commissioner v. Emery, 19 Kan. App. 2d 1063, 880 P.2d 783 (1994). Id.



• April 1998. (Ph) K.S.A. 1997 Supp. 44-551(b)(1), which governs the time period to appeal a matter from the administrative law judge to the Appeals Board, does not have language that would give the Appeals Board authority to extend the appeal time. This appeal time is jurisdictional and delay beyond the statutory time is fatal to an appeal regardless of whether the party attempts to show excusable neglect based upon the Administrative Law Judge's failure to promptly mail a copy of the order to all the parties. The Appeals Board does suggest a possible remedy under these circumstances would be for a party to make a request to the Administrative law Judge to issue a Nunc Pro Tunc Order. Washburn v. Hopkins Manufacturing and Zurich Insurance Co. CNA Insurance Co., Docket No. 217,353.



• January 1998. (Ph) K.S.A. 44-551, as amended, requires review by the Appeals Board upon written request of any interested party within ten days. K.A.R. 51-18-2 states that "the effective date of the administrative law judges' acts, findings, awards, decisions . . . shall be the day following the date noted thereon by the administrative law judge." The transcript of September 9, 1997, stands as the order of the Administrative Law Judge. The administrative regulation would then make September 10, 1997, the effective date. K.A.R. 51-17-1 states that when computing the time within which an act shall be done the first day is excluded. Therefore, the effective date of September 10, 1997, will not be counted when considering the ten-day limitation of K.S.A. 44-551, as amended. In addition, the Kansas Court of Appeals in McIntyre v. A. L. Abercrombie, Inc., 23 Kan. App. 2d 204, 929 P.2d 1386 (1996) found that K.S.A. 60-206 applies to workers compensation matters when computing time limits of 11 days or less. The Kansas Legislature, in following the Court of Appeals' lead in McIntyre, supra, amended K.S.A. 44-551 to adopt the McIntyre computation method which excludes Saturdays, Sundays, and legal holidays from the computation. Claimant acknowledges respondent's application was filed on September 24, 1997. The decision of the Administrative Law Judge dated September 9, 1997, became effective on September 10, 1997, and the first day in the ten-day countdown would be September 11, 1997. In computing the time limits pursuant to K.S.A. 44-551, as amended, the tenth day following the September 9, 1997, decision would be September 24, 1997. Therefore, the appeal by respondent would be timely. Adam v. Dave Cook d.b.a. Cook Construction and Clifton Homes, Inc. and Workers Compensation Fund, Docket No. 216,254.



• January 1998. (Ph) Appeals to the Appeals Board must be filed within ten days as required by K.S.A. 1997 Supp. 44-551. That statute excludes intermediate Saturdays, Sundays and legal holidays from the time computation. Burkholder v. Healthcare Services Group and Zurich Insurance Company, Docket No. 225,914.

• December 1997. (Award) The Appeals Board has followed the rule announced by the Kansas Court of Appeals in McIntyre v. A.L. Abercrombie, Inc., 23 Kan. App.2d 204, 929 P.2d 1386 (1996), on several prior occasions in cases involving the computation of time for the filing of appeals. See e.g. Anderson v. Bill Morris Construction Co. Inc., Docket No. 213,350 (April 1997). In addition, the McIntyre rule was extended to apply to the computation of the seven-day notice requirement under K.S.A. 44-534a in Rayman v. Spears Manufacturing, Docket No. 213,649 (May 1997). Scruggs v. Overland Park Regional Medical Center and Galen of Kansas, Inc. / Alexsis, Docket No. 225,060.



• August 1997. (Remand) On Remand from the Court of Appeals' decision in McIntyre v. A.L. Abercrombie, Inc., 23 Kan. App.2d 204, 929 P.2d 1386 (1996), in which the court reversed the Appeals Board regarding the computation of the time period allowed under K.S.A. 44-551 for appeals from the administrative law judges to the Appeals Board. The Court of Appeals, citing K.S.A. 44-551 and K.A.R. 51-18-2, found K.S.A. 60-206(a) is not limited to civil actions but also applies to any statutorily prescribed period of time where "the method for computing such time is not otherwise specifically provided." Thus, the court found the method of computing a ten-day period under K.S.A. 60-206(a) applies to workers compensation litigation because the method for computing such time was "not otherwise specifically provided." McIntyre v. A.L. Abercrombie, Inc. and Fireman's Fund Insurance Company, Docket No. 183,293.

• ----- The method for computing a ten-day time period under K.S.A. 60-206(a) applies in workers compensation litigation. The Appeals Board notes, however, the Court of Appeals cited K.S.A. 60-206(a) and K.A.R. 51-18-2 in deciding how to compute this ten-day appeal time but failed to mention K.A.R. 51-17-1, which the Appeals Board feels directly applies to the case. Id.



• See Also, Scruggs v. Overland Park Regional Medical Center and Galen of Kansas, Inc. / Alexsis, Docket No. 225,060 (April 1998).



• July 1997. (Award) The ten-day time interval which an interested party has to file a written request for Appeals Board review of an administrative law judge's decision discussed. The relevant statute and administrative regulations: K.S.A. 44-551(b)(1), K.A.R. 51-18-2 and K.A.R. 51-17-1. Rodriguez v. IBP, Inc., Docket No. 169,337.

• ----- Claimant's counsel argues she was out of the country and presumably did not receive the Award from the Assistant Director, which is the subject of this appeal, until a month after the decision was handed down. Additionally, claimant's counsel states she contracted a serious illness while out of the country which further delayed her work. Claimant's counsel cites McIntyre v. A.L. Abercrombie, Inc., 23 Kan. App.2d 204, 929 P.2d 1386 (1996), for the proposition that K.S.A. 60-206(b) allows discretion for the enlargement of time. Claimant reasons that because the Court in McIntyre found the method for computing a ten-day period in workers compensation proceedings is governed by K.S.A. 60-206(a), then the discretion Chapter 60 of K.S.A. allows to enlarge the period of time within which an act is to be done and, in particular K.S.A. 60-206(b), likewise applies to proceedings under the Workers Compensation Act. The Appeals Board disagrees. In deciding McIntyre, the Court mentioned K.S.A. 44-551 and K.A.R. 51-18-2, but no mention was made of K.A.R. 51-17-1. There is reason to believe that if the Court had been apprised of the existence of K.A.R. 51-17-1 a different holding would have resulted. Support for this conclusion is found in a subsequent Court of Appeals decision stating K.S.A. 60-206(a) is to be applied when the method for computing time is not otherwise specifically provided under another law, rule or regulation. See Keithley v. Kansas Employment Security Bd. of Review, Kan. App.2d , 935 P.2d 1060 (1997) (Emphasis added). The Appeals Board considers the McIntyre decision controlling but only to the extent the Court therein determined K.S.A. 60-206(a) applies to the computation of time in workers compensation cases where the computation is of a period of time of less than 11 days. The McIntyre decision did not pertain to the enlargement of time under subsection (b) of K.S.A. 60-206; therefore, the Appeals Board finds McIntyre does not apply to this issue of enlargement of time. As Chapter 60 of K.S.A. does not apply, the Appeals Board is without jurisdiction to extend the time for appeal. Id.



• ----- In an administrative proceeding, the time for taking an administrative appeal, as prescribed by the statute, is jurisdictional and delay beyond the statutory time is fatal to an appeal. Id.



• May 1997. (Award) Claimant failed to file a timely Application for Review within 10 days of the Administrative Law Judge's Award. Claimant stated the zip code on the envelope carrying the decision was incorrect, and thus, claimant received the Award some seven days after it was decided and dated. Claimant argues a gross injustice would prevail in this case if claimant was not permitted to file the Application for Review within ten days of actually receiving the Award. Claimant further requests K.S.A. 60-206(b) be used to extend the time for filing the appeal. The Appeals Board finds K.S.A. 60-206(b), which gives a judge discretion to enlarge a period of time an act is required to be done "for cause shown," does not apply to K.S.A. 44-551(b)(1). The Appeals Board is mindful the Court of Appeals in McIntyre v. A.L. Abercrombie Inc., 23 Kan. App.2d 204, 929 P.2d 1386 (1996), found K.S.A. 60-206(a) applied to the ten day time limit in K.S.A. 44-551. However, subsection (a) of K.S.A. 60-206 by its explicit terms is generally applicable to all statutory time limits. Subsection (b) of K.S.A. 60-206, on the other hand, does not contain such explicit language making it applicable to all statutory time limits. Therefore, K.S.A. 60-206(b) does not apply to this workers compensation case. In an administrative proceeding the time for taking an administrative appeal is jurisdictional, and a delay beyond the statutory time is fatal to an appeal. See State Bank Commissioner v. Emery, 19 Kan. App.2d 1063, 880 P.2d 783 (1994). The Appeals Board does not have authority to extend the time for taking an appeal. Accordingly, the Appeals Board finds claimant's application for review was filed out of time. Nguyen v. IBP, Inc., Docket No. 176,235. [Reversed and remanded by Kansas Supreme Court Opinion holding: "Where the legislature has provided the right of an appeal, the minimum essential elements of due process of law, in an appeal affecting a person's life, liberty, or property are notice and an opportunity to be heard at a meaningful time and in a meaningful manner." The ALJ's incorrectly addressing claimant's award, with the result of claimant receiving the award well after the statutory time for filing an application for review, was not a method of notice which would reasonably apprise claimant that a decision was rendered in his case and afford him an opportunity to timely appeal the decision to the Board. Under the circumstances of this case, the Board erred in dismissing the case based upon the running of the statutory time limit for filing. Nguyen v. IPB, Inc, Docket No. 79,240 (Kan. 1999) ].

• See Also, Still v. Huntington Park Amoco, Docket No.205,358 (March 1996); Gillespie v. Heinz Pet Products, Docket No. 208,360 (December 1996); Anderson v. Bill Morris Construction Co., Inc. and Fireman's Fund Insurance Company, Docket No. 213,350 ( April 1997). [Appeal dismissed by Court of Appeals in 966 P.2d 96, finding the Board and Court of Appeals had no jurisdiction to hear the matter . But Supreme Court reversed and remanded in Docket No. 78,990 ].

• June 1994. (Award) Respondent first contends that claimant's neck and back injuries are not shown to have arisen out of and in the course of her employment. This is an issue which the Appeals Board would normally review on appeal from a preliminary order. See K.S.A. 44-534a. However, this appeal is from the hearing of February 8, 1994. The determination regarding compensability of the low back and neck injuries was made at the November 1993 hearing. No appeal was taken from that decision, and no new evidence was presented on the issue at the February 8, 1994, hearing. Because no new evidence was presented and the issue was not re-decided at the February 8, 1994, hearing, the Appeals Board considered the appeal from the determination of compensability to be out of time. McGinn v. Binney & Smith, Inc and Binney & Smith, Inc and Kansas Workers Compensation Fund, Docket No. 168,770.



• March 1994. (Award) Appeal from order holding counsel in contempt considered premature where it appeared the order was drafted but not signed by the Administrative Law Judge. Maus v. Kenneth Richard Kimbell, Docket No. 148,106.

• March 1994. (Award) Untimely application for review examined. Held, application for review received January 26 for a January 13 order considered out of time. Mills v. State of Kansas, Docket No. 173,974.

• February 1994. (Award) Application for review filed November 29th found to be timely where Award dated November 16th became effective November 17th pursuant to K.A.R. 51-18-2 and ten days for appeal ended on a Saturday so that Monday, November 29th, became the last day for filing an appeal. Nixon v. Mustang, Inc., Docket No. 147,299.

15.14 Application for Review

• August 1999. (Ph) K.A.R. 51-18-6 allows for the voluntary dismissal of an application for review before the Workers Compensation Board "upon the agreement of all parties to the review." No statute nor administrative regulation allows for the dismissal of an appeal by one party. Therefore, claimant's Motion to Dismiss Appeal is denied where respondent refused to dismiss the appeal. Rennert v. Dillon Companies, Inc., Docket No. 208,749 [Affirmed in part and reversed in part by unpublished Court of Appeals opinion, Docket No. 83,931, September 8, 2000.]

• February 1998. (Ph) The appellant is not required to insert in the application for review of a preliminary hearing that the Administrative Law Judge exceeded his or her jurisdiction. Woods v. Life Care Center of Wichita and Insurance Company of the State of Pennsylvania, Docket No. 227,913.



• October 1996. (Award) Nether the Workers Compensation Act, the Appeals Board nor the Director have promulgated rules stating all issues for Appeals Board determination must be listed in the Application for Review or they are not ripe for determination. The Board has de novo review of the record and can decide issues pertaining to the case which were not listed in the Application for Review. DeViney v. Oakwood Villa Care Center a/k/a American Health Foundation and Reliance Insurance Co and Travelers Insurance and Kansas Workers Compensation Fund, Docket No. 179,026.



• See Also, Rennert v. Dillon Companies, Inc., Docket No. 208,749 (August 1999) [Affirmed in part and reversed in part by unpublished Court of Appeals opinion, Docket No. 83,931, September 8, 2000.]

15.15 Notice of Appeal

15.16 Record on Appeal

15.17 Filing of Briefs / Submission Letters

• May 1999. (Ph) There is no requirement that the Board or ALJ wait any certain number of days for submission letters, nor is there any provision in the Act that gives a respondent or the Fund any certain length of time to respond to a claimant's submission letter. Lowe v. Monfort, Inc. and Old Republic Insurance Company and Kansas Workers Compensation Fund, Docket No. 172,288.



• May 1998. (Award) Respondent's Motion for Judgment On The Briefs is denied as the Appeals Board has no statutory authority to grant such a motion or access penalties for the parties' failure to timely file a brief. Killingsworth v. Premier Studios and Fireman's Fund Insurance Company and Kansas Workers Compensation Fund, Docket No. 189,097.



• June 1997. (Ph) While the Appeals Board sets certain briefing schedules in the notice provided to the parties, the Appeals Board has not been provided authorization either legislatively or through administrative regulations to dismiss appeals due to a parties failure to file a brief in a timely fashion. Westover v. Flexel, Inc. and American Home Assurance, Docket No. 205,057.

15.17a Consolidation of Dockets on Appeal

• January 1999. (Award) The Board has previously held and continues to hold that when an award contains multiple docket number, an appeal of one docket number constitutes an appeal of all. De La Paz v. Erman Corporation and National Union Fire insurance Company and Insurance Company of North American and Home Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 133,539; 154,373; and 172,398.

• June 1998. (Ph) The ALJ had the authority to consolidate the three separate applications and claims filed by claimant into one for preliminary hearing purposes. Matthews v. Four B Corporation d.b.a. Hen House Supermarket; Associated Wholesale Grocers; and U.S.D. #500 and Wausau Insurance Companies, Docket Nos. 227,974; 228,635; 231,110.



• October 1997. (Award) As a matter of fairness, the Appeals Board has held that all docketed cases which have been consolidated are subject to Appeals Board review although only one docket number may have been listed in the application for review. The claims have been tried, argued and decided as consolidated and remain consolidated for purposes of Appeals Board review. To hold otherwise is to lay traps for the unwary. See Discussion in, Carmen v. Best Buy and Sentry Insurance A Mutual Company, Docket Nos. 202,586; 204,207; and 210,069.

• December 1996. (Award) There are no designated rules concerning consolidation of workers compensation claims and how such is to come about in workers compensation proceedings. Consolidation of workers compensation matters has become a common practice and at times best serves justice and judicial economy in workers compensation litigation. For the parties to be forced to spend the time and money involved in taking multiple depositions when consolidated depositions are appropriate would seem a waste of time, cost and effort. Under the circumstances of the case at hand, it was proper for the ALJ to consolidate the two dockets. McDiffett v. Food Services of America and Travelers Insurance Company Unigard Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 177,095; and 177,096. [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,321].

15.18 Awards

15.19 Generally

15.20 Affirm, Reverse or Modify Decision of Administrative Law Judge (ALJ)

Modifications of Awards, See the Following Examples:

• September 1997. (Award) Modification of Award for post 1993 work disability benefits discussed. Potter v. Consolidated Freightways, Inc., Docket No. 208,736.

• July 1997. (Award) Modification of Award discussed. The Appeals Board applies the pre-1993 work disability test to this 1991 injury and finds claimant has a 60 percent permanent partial general disability, as defined by K.S.A. 1991 Supp. 44-510e. Ridder v. Topeka Truck Plaza, Inc. and Hartford Accident & Indemnity, Docket No. 177,364.

• July 1997. (Award) Modification of Award discussed. The Appeals Board modifies the Administrative Law Judge's Award to include work disability, where the evidence established that claimant did not at any time earn 90 percent of her pre-injury wages, that claimant's work restrictions would have prevented her from continuing to work for her employer and that claimant was not offered accommodated work. Perry v. McDonalds and American Family Mutual Insurance Co., Docket No. 198,879.



• July 1997. (Award) Modification of Award discussed. The Appeals Board gives approximate equal weight to the opinions of three physicians in determining claimant sustained an 8 percent permanent partial impairment . Diaz v. General Electric Company and Electric Mutual Liability Insurance Co., Docket No. 198,638.

15.21 Remand for Further Proceedings

• July 1999. (Award) Where the Administrative Law Judge (ALJ) failed to consider the entire record -- including the depositions of three physicians taken prior to the expiration of the terminal dates -- the matter is remanded to the ALJ to review the entire record. Castro v. IBP, Inc., Docket No. 190,478.



• July 1999. (Award) Matter remanded back to Administrative Law Judge in order that the parties may be presented the opportunity to resolve any issues which can be agreed upon, and the record clarified regarding what issues remain in contention, where no pre-trial conference form, per K.A.R. 51-3-8(b), was submitted into evidence. Rodriguez v. MPS Group, Inc and Wausau Insurance Company, Docket No. 162,402.



• August 1997. (Award) A deposition taken on behalf of claimant was found to have not been considered by the Administrative Law Judge, as it was not filed with the Division of Workers Compensation until some sixteen days after the Administrative Law Judge's Award was entered. Therefore, the Appeals Board finds the Award entered by the Administrative Law Judge should be set aside and the matter remanded to the Administrative Law Judge for consideration of the entire record. Martindale v. Cessna Aircraft Company, Docket No. 208,690. [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,050, December 10, 1999.]



• April 1994. (Award) Denial of vocational rehabilitation benefits at a preliminary hearing remanded to Administrative Law Judge for additional finding where decision by Administrative Law Judge did not reflect reason for decision in a manner which allowed the Appeals Board to determine whether it had jurisdiction to review the decision. Martinez v. Topeka Day Care Association, Docket No. 165,295.

• January 1994. (Award) In this case, preliminary order considered unclear and remanded to Administrative Law Judge for clarification regarding intent in limiting evidence considered as part of vocational assessment. Hagar v. Metal-Fab, Docket No. 180,160.

15.22 Scope of Review

See § 15.10, Scope of Review

15.23 Preliminary Hearing Orders

15.24 Generally

• January 2000. (Ph) Board construed a letter sent by the ALJ after the preliminary hearing and determined the letter did not amount to an order. Accordingly, there was no order for review by the Board and the Board remanded the case to the ALJ for decision. Neaderhiser v. Houlihan's Restaurant Group, Docket No. 242,079.

• October 1997. (Ph) In response to claimant's issue pertaining to whether the Appeals Board has jurisdiction to hear an appeal from a non final order, the Appeals Board points to K.S.A. 44-534, as amended, and K.S.A. 44-551, as amended, which provide jurisdiction for the Appeals Board to consider appeals from preliminary hearing orders. Gordon v. Oldham's Farms Sausage, Inc., Docket No. 223,537.

• May 1997. (Ph) K.S.A. 44-534a allows appeals from preliminary hearings only with regard to the disputed issues of whether the employee suffered an accidental injury, whether the injury arose out of and in the course of the employee's employment, whether notice is given or claim timely made, or whether certain defenses apply. These issues are considered jurisdictional and subject to review by the Appeals Board on appeal from preliminary hearings. Appeals to the Appeals Board are further controlled by K.S.A. 44-551 which limits appeals from preliminary hearings to situation where 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. Jurado v. Poky Feeders Inc. and U.S.F. & G., Docket No. 201,482.

• See Also, Sevilla v. Ismael Calderon and Century Roofing and Commercial Union Insurance Company and Kansas Workers Compensation Fund, Docket No. 211,139 (April 1997); Hadwick v. Dub's Dread Country Club and CNA Insurance Companies, Docket No. 157,426 (December 1997); Bryant v. USD No. 259 and Workers Compensation Fund, Docket No. 196,704 (December 1997) [Affirmed by unpublished Court of Appeals opinion, Docket No. 80,577; opinion was published 10/15/99].

15.25 Affirm, Reverse or Modify Decision of Administrative Law Judge (ALJ)

15.26 Remand for Further Proceedings or Specific Findings

• July 1997. (Ph) Where the preliminary hearing order does not state why the Administrative Law Judge denied claimant's request for temporary total disability and medical treatment, the Appeals Board must remand the matter back to the Administrative Law Judge for further findings and to specify the order, so the Appeals Board can determine whether it has jurisdiction to hear the appeal from the order. Solis v. Emerson Electric Company, Docket No. 222,013.

• March 1997. (Ph) Where the Administrative Law Judge fails to state the reason for denying benefits, the Appeals Board will ordinarily remand that decision back to the Administrative Law Judge requesting he/she indicate the reason for denial. Then the Appeals Board will determine whether the basis for denial is jurisdictional and subject to review. Banh v. The Boeing Company and Kemper Insurance Companies, Docket No. 210,271.

15.27 Scope of Review

See § 15.10, Scope of Review

15.28 Issues Reviewed on Appeal

15.29 Generally

• January 1994. (Award) Whether claimant was employee or independent contractor reviewed on appeal from preliminary order. White v. Strickland Const., Docket No. 183,532.

15.30 Accidents

• July 1998. (Ph) The Board affirms the ALJ's order after finding claimant did suffer an accidental injury arising out of and in the course of her employment with respondent. Despite the fact claimant had suffered a similar injury while working for a prior employer, evidence established a worsening of this injury while claimant worked for respondent. Butts v. Tramec Corp and Hartford Accident & Indemnity and Butts v. Russell Stover Candies, Inc and Itt Speciality Services, Docket Nos. 223,784 & 231,564.



• December 1997. (Ph) The Appeals Board decided the date of accident issue on appeal from a preliminary hearing order because this issue fits within the issue of "whether the employee suffered an accidental injury" under K.S.A. 44-534a. Hanna v. M. Bruenger & Co., Inc. and Leona Bruenger & Co., Inc. and New Hampshire Insurance Company and Business Insurance Company, Docket No. 222,182.



• See Also, Spangler v. Dillon Companies, Inc., Docket Nos. 217,810; 217,811; and 217,812 (March 1997).

• April 1994. (Award) Evidence supported finding of accidental injury even though claimant was uncertain what caused her to fall when witness testified it appeared she tripped and lunged forward, not that her knee gave way. Houske v. Johnson County Library, Docket No. 184,477.

15.31 "Arising out of" the Employment

• August 1998. (Ph) Respondent stipulated and admitted that claimant sustained an accident on the date alleged and that the accident arose out of and in the course of his employment. Respondent denied, however, that claimant's thumb condition was related to the accident. The Appeals Board considered this issue to be jurisdictional because it gave rise to a disputed question of whether claimant's injury arose out of and in the course of his employment; the causation of claimant's thumb condition was found to be the issue and not the nature and extent of any resulting disability. Tinoco v. J.C. Penney Company, Inc, Docket No. 228,844.



• See Also, Seth E. Tucker vs. Adecco Employment Services and Insurance Co. State of Pennsylvania, Docket No. 250,951 (June 2000); and Weaver vs. Buckeye Corporation and Employers Mutual Casualty Company, Docket No. 244,639 (August 2000)..



• August 1997. (Ph) Although the issue of whether claimant's entitlement to temporary total disability and medical treatment are the result of a work-related accident does somewhat involve the issue of the nature and extent of disability, the Appeals Board finds it also gives rise to the issue of whether the accident arose out of and within the course of claimant's employment, which is a reviewable issue from a preliminary hearing order per K.S.A. 44-534a. Wilson v. Braum Inc. and Shalimar Plaza Nursing Home and Self-Insured and Business Insurance Company a.k.a. Bico, Docket Nos. 222,345 & 222,514.

• See Also Anneler v. Goodyear Tire & Rubber Company and Travelers Insurance Company and Kansas Workers Compensation Fund, Docket No. 222,218 (November 1997); Branstetter v. Dustrol, Inc. and St. Paul Fire & Marine Ins. Co., Docket No. 222,354 (December 1997).

• April 1994. (Ph) Evidence examined and Administrative Law Judge's denial of benefits affirmed where claimant failed to satisfy burden of showing that dizziness was caused by fall at work. Hudgins v. The Boeing Company, Docket No. 183,283.

15.32 During / Within the Course of Employment

• August 1997. (Ph) Although the issue of whether claimant's entitlement to temporary total disability and medical treatment are the result of a work-related accident does somewhat involve the issue of the nature and extent of disability, the Appeals Board finds it also gives rise to the issue of whether the accident arose out of and within the course of claimant's employment, which is a reviewable issue from a preliminary hearing order per K.S.A. 44-534a. Wilson v. Braum Inc. and Shalimar Plaza Nursing Home and Self-Insured and Business Insurance Company a.k.a. Bico, Docket Nos. 222,345 & 222,514.

• See Also Anneler v. Goodyear Tire & Rubber Company and Travelers Insurance Company and Kansas Workers Compensation Fund, Docket No. 222,218 (November 1997); Branstetter v. Dustrol, Inc. and St. Paul Fire & Marine Ins. Co., Docket No. 222,354 (December 1997).

• December 1993. (Ph) Claimant failed to meet his burden to establish that injury arose out of and in the course of his employment where indicated, immediately before alleged accident, that he knew ways of getting money out of a company without working, the circumstances of the accident were otherwise suspicious, and the medical records revealed no objective findings to substantiate the complaints. Gunter v. Dodge House, Inc., and United States Fidelity & Guaranty Co., Docket No. 181,158.

• December 1993. (Ph) Claimant's injury did arise out of and in the course of her employment where evidence established that she injured her knee as a result of a fall which occurred while carrying a vacuum sweeper down a stairway. Burr v. Holiday Inn West and CIGNA and Kansas Workers Compensation Fund, Docket No. 177,587.

15.33 Timely Notice

• March 1997. (Ph) Whether claimant gave notice of accident as required by K.S.A. 44-520 is reviewable by the Appeals Board on appeal from a preliminary hearing order. Spangler v. Dillon Companies, Inc., Docket Nos. 217,810; 217,811; and 217,812.

15.34 Timely Written Claim

• November 1997. (Ph) Whether the written claim was timely filed is a proper issue to review on appeal from a preliminary hearing order. See K.S.A. 44-534(a)(2), as amended. Anneler v. Goodyear Tire & Rubber Company and Travelers Insurance Company and Kansas Workers Compensation Fund, Docket No. 222,218.

15.35 Defenses

• June 2000. (Ph) Certain defenses contemplated by K.S.A. 1999 Supp. 44-534a must go to the compensability of the claim. Examples of these types of defenses are allegations of a wilful failure to use a guard or protection or the intoxication defense. See Carpenter v. National Filter Service, 26 Kan. App.2d 672, 994 P.2d 641 (1999) in which the Court of Appeals adopted the Board's analysis of what is a certain defense. Keith Boyd vs. National Contractors and Hartford Accident & Indemnity, Docket No. 251,564.



• January 2000. (Ph) In an appeal from a preliminary hearing order, the date of accident will not be a jurisdictional issue if it only determines which of two insurance carriers had coverage at the time of the accident. Date of accident becomes jurisdictional if it determines which of two employers was claimant's employer at the time of the accident because the issue is, then, whether the injury arose out of and in the course of employment for the respondent. Whether the injury arose out of a particular employment is a jurisdictional issue under K.S.A. 44-534a. Goitia v. Southwest Developmental Services, Inc. and Bethphage/Advent Services, Inc., Docket Nos. 233,983 & 245, 196.

• June 1999 (Ph) The issue dealing with respondent's total gross salary does constitute a jurisdictional defense under K.S.A. 1998 Supp. 44-534a(a)(2), as it goes directly to the compensability of the claimant's injury and the claim. Wolf v. Calendar Club and Insurance Company Unknown, Docket No. 239,893.

• April 1999. (Ph) Allegation that claimant did not provide respondent with notice and proper demand for benefits is not a certain defense as contemplated by K.S.A. 1998 Supp. 44-534a. De Paz v. Monfort, Inc., Docket No. 234,745.

• September 1997. (Ph) A "certain defense" as it applies to K.S.A. 44-534a, as amended, is only a defense that goes to the compensability of the claim. For example, defenses raised by the respondent as to intoxication and willful failure to use a guard as provided by K.S.A. 1996 Supp. 44-501(d)(1)(2) are certain defenses that, if disputed, would give the Appeals Board jurisdiction to review a preliminary hearing order. Therefore, the appeals Board finds that whether claimant could perform the light duty position within his permanent restrictions is not a certain defense as contemplated by K.S.A. 44-534a, as amended. The Appeals Board, therefore, does not have jurisdiction to review this preliminary hearing order. Rembold v. R. Vickers Trucking, Inc. and Ulico Casualty Company, Docket No. 223,206.

• See Also, Stockton v. American Insulated Wire and Reliance National Indemnity Company, Docket No. 225,929 (January 1998).

• August 1997. (Ph) The Appeals Board has held on numerous occasions that the intoxication defense contained in K.S.A. 1996 Supp. 44-501(d)(2) is the type of defense contemplated by K.S.A. 1996 Supp. 44-534a; therefore, the Appeals Board has jurisdiction to hear this appeal from a preliminary hearing order. Thill v. Monfort, Inc., Docket No. 214,119.

• August 1994. (Award) The Act specifically refers to the intoxication of claimant as being a defense not just intoxication in general. Therefore, the Board does not find the intoxication defense to be viable where it would require the Board to make speculation beyond the reasonable inferences from the evidence to conclude that claimant's own intoxication was a substantial cause of the accident. Kindel (Deceased) v. Ferco Rental, Inc and Wausau Insurance Companies, Docket No. 173,368 [Affirmed by Supreme Court 258 Kan. 272 (1995)].

15.36 Other Acts or Orders Exceeding Administrative Law Judge's (ALJ's) Jurisdiction

• July 1998. (Ph) Appeal from a preliminary hearing order is considered jurisdictional where the issue on appeal goes to the fundamental question of whether the Kansas Workers Compensation Act applies, and whether the Special ALJ had jurisdiction to enter an order for respondent to pay benefits. Ortega v. Cimarron Dairy and Uninsured and Kansas Workers Compensation Fund, Docket No. 227,297. 227,297. [Affirmed by Kansas Supreme Court, Docket Nos 81,691 & 81,692].



• See Also, Rivera v. Cimarrron Dairy and Uninsured and Kansas Workers Compensation Fund, Docket No. 223,223 (July 1998). 227,297. [Affirmed by Kansas Supreme Court, Docket Nos 81,691 & 81,692].



• August 1997. (Ph) The respondent argues the Assistant Director exceeded his jurisdiction when he considered a medical report which had not been attached to the notice of intent or otherwise provided to the respondent prior to the preliminary hearing. The Appeals Board followed its ruling in Sulaimon v. Woodland Health Center, Docket No. 192,021 (September 1995), in deciding that the decision whether to consider medical records and reports, at least where they were not available prior to the Application for Preliminary Hearing, does not exceed the jurisdiction of the Administrative Law Judge. Eldridge v. Champ Service Line Division and Zurich American Insurance Company, Docket No. 189,361.



• July 1997. (Ph) Where the Administrative Law Judge disregarded a prior Appeals Board decision and claimant's uncontradicted evidence in denying claimant's request for ongoing medical treatment, the Appeals Board finds the Administrative Law Judge exceeded his jurisdiction. Banh v. The Boeing Company and Kemper Insurance Company, Docket No. 210,271.

• June 1997. ( Ph) Where the Administrative Law Judge addressed an issue not otherwise brought before him, the Appeals Board finds the Administrative Law Judge exceeded his jurisdiction. Regarding the issue, the parties did not have an opportunity to consider, present evidence or argue that issue, and therefore, the parties have been denied due process. The Administrative Law Judge's Order is set aside. Graham v. A+ Sweeping, Inc. and Commercial Union Insurance Companies, Docket No. 206,881.

• May 1997. (Ph) Termination of benefits for refusal to cooperate with medical treatment, when ordered without a hearing, does exceed the authority of the administrative law judge. See K.A.R. 51-9-5. Shelton v. State of Kansas and State Self Insurance Fund, Docket No. 217,936.

15.37 Issues Not Reviewed on Appeal

15.38 Generally

• January 2000. (Ph) The Board considered jurisdiction for a preliminary hearing appeal. Claimant sought an order for payment of cardiac catheterization expenses in case where physician would not do surgery for compensable foot injury until heart condition treated. ALJ denied the requested order and on appeal the Board held the issue, whether the heart care was necessary to relieve and cure the foot injury, was not a jurisdictional issue. Burnett v. Wal-Mart, Docket No. 223,942.

• August 1998. (Ph) The majority opinion is that the Board lack jurisdiction on appeal from a preliminary hearing order to consider issues relating to the termination of medical benefits or temporary total disability. Alleva v. Wichita Business Journal, Inc and Kemper Insurance Companies, Docket No. 202,618.

• ----- See Also, Concurring Opinion which would leave the door open for the Appeals Board to take jurisdiction of appeals from preliminary hearing orders, even those involving non-jurisdictional issues, if the ALJ's decision ignored uncontradicted evidence. Where a record has no evidence to support it, it could rise to a level of being a denial of due process and the ALJ's exceeding his/her jurisdiction. Id.

15.39 Vocational Rehabilitation

• March 1994. (Award) Decision made at preliminary hearing approving vocational rehabilitation plan not subject to review on appeal. Jones v. Kirk Mayer, Inc., Docket No. 177,058.

• February 1994. (Ph) Decision relating to which medical information should be used for vocational rehabilitation plan is within jurisdiction of Administrative Law Judge and not subject to review on appeal from a preliminary hearing. Hagar v. Metal Fab, Inc., Docket No. 180,160.

• January 1994. (Ph) Administrative Law Judge does have jurisdiction to order subsequent assessment and replace vendor and preliminary order for such assessment is therefore not subject to review by the Appeals Board. Crowder v. KNI, Docket No. 15.2,663.

• January 1994. (Ph) Preliminary order for vocational rehabilitation which required vendor to proceed with another priority other than retraining in Las Vegas did not exceed jurisdiction of Administrative Law Judge and therefore was not subject to review by Appeals Board. Thilsted v. Boeing, Docket No. 169,953.

• December 1993. (Ph) The ALJ did not exceed his authority by approving 36 weeks of vocational rehabilitation benefits and accordingly the Appeals Board does not have jurisdiction to hear an appeal from the order granting those benefits. Marrietta Coggins v. State of Kansas and Self-Insurance Fund, Docket No. 175,012.

15.40 Change of Physicians and/or Authorization of Medical Treatment

• April 1999. (Ph) Request for change of authorized treating physician is not a jurisdictional issue. Warman v. Deffenbaugh Industries, Inc and Hartford Accident and Indemnity, Docket No. 234,857.



• January 1999. (Ph) Change in physicians is a request for medical treatment and not reviewable by the Appeals Board on appeal from a preliminary hearing order. Goodrich v. Mound City products and Continental National American Group, Docket No. 237,508.



• But See August 1999. (Award) A preliminary order for medical treatment may be appealable to the Board in certain circumstances. Naff v. Davol, Inc and Lumbermens Mutual Casualty Co., Docket No. 204,405.

• ***NOTE*** Naff v. Davol, Inc. and Lumbermens Mutual Casualty Co., Docket No. 204,405 (May 1997) was reversed and remanded by Court of Appeals in an unpublished opinion filed 1/8/98, Docket No. 79,250. The ALJ ordered respondent to pay for surgery suggested by claimant's physician and rejected by two other physicians. Respondent argued the ALJ had no authority to designate claimant's medical expert as the treating physician. On appeal to the Board, the Board found the post-award medical issue was preliminary in nature and did not raise a jurisdictional issue subject to review. The Court of Appeals, however, reversed and remanded finding that the order was not preliminary in nature but final and was subject to review by the Board.

• June 1998. (P/A) Where the parties' applications concerning post-award medical treatment were treated as applications for preliminary hearing, the Board does not have jurisdiction to consider claimant's argument that the evidence does not support a finding that claimant is in need of a change in authorized treating physician. Harvey v. The Hertzler Clinic, P.A. and Dodson Insurance Company, Docket No. 187,637.

• November 1997. (Ph) Whether an administrative law judge must, in a given set of circumstances, authorize treatment from a physician chosen by respondent or from a list of three physicians designated by respondent is not a question which goes to the jurisdiction of the administrative law judge. The administrative law judge may decide this question and has the jurisdiction to decide it wrongly. Barrington v. Georgia Pacific Corporation, Docket No. 223,480.

• See Also, Bradshaw v. Presbyterian Manors, Inc., Docket No. 225,372 (January 1998); Gibson v. Beech Aircraft Corporation and Workers Compensation Fund, Docket No. 162,835 (February 1997); Briceno v. Wichita Inn West and American Motorist Insurance Co., Docket No. 211,226 (February 1997); and Weaver vs. Buckeye Corporation and Employers Mutual Casualty Company, Docket No. 244,639 (August 2000)..



• See Also, Chilargi v. W.H. Braums, Inc., Docket No. 198,309 (June 1996), holding that a decision to change physicians without first allowing the respondent to provide a list of three physicians exceeds the jurisdiction of the ALJ. [Note, in Briceno v. Wichita Inn West and American Motorist Insurance Co., Docket No. 211,226 (February 1997), the Appeals Board noted that only one Board Member decided Chilargi and that the majority of the Board views the issue of jurisdiction differently].

• September 1997. (Ph) A request for a change of physicians is basically a request for furnishing of medical compensation as contained in K.S.A. 44-534a, as amended. This issue is not an appealable issue from a preliminary hearing order. Rembold v. R.Vickers Trucking, Inc. and Ulico Casualty Company, Docket No. 223,206.

• See Also, Cano v. IBP, Inc., Docket Nos. 186,576 & 214,372 (February 1997).

• June 1997. (Ph) The majority view of the Appeals Board is that the decision to change physicians without first allowing the respondent to provide a list of three physicians is not a question which goes to the jurisdiction of an administrative law judge. An administrative law judge does have jurisdiction to decide this question at a preliminary hearing. The Appeals Board is, therefore, without jurisdiction to consider this issue on appeal from a preliminary hearing order. Graham v. Rubbermaid Specialty Products and Rubbermaid Specialty Products, Inc., Docket No. 219,395.



• See Also, Dillard v. Davis, Unrein, Hummer & Buck and Hartford Accident & Indemnity, Docket No. 217,450 (June 1997); Rayman v. Spears Manufacturing and Transportation Insurance Co., Docket No. 213,649 (May 1997); Naff v. Davol, Inc. and Lumbermens Mutual Casualty Co., Docket No. 204,405 (May 1997) [Reversed and remanded by unpublished Court of Appeals opinion, Docket No. 79,250]; Briceno v. Wichita Inn West, Docket No. 211,226 (February 1997); Miller v. Clarklift of Kansas Inc., and John Deere Insurance Co., and Kansas Workers Compensation Fund, Docket No. 180,688 (December 1993); Linda S. Cramer vs. Sabreliner Corporation and Reliance National Insurance Company, Docket No. 251,293 (July 2000). Claimant filed motion for penalties because respondent failed to provide a list of three physicians. ALJ may treat the hearing on the motion for penalties as a preliminary hearing and appoint the treating physician..

15.41 Average Weekly Wage

• March 1994. (Ph) Determination of amount of average weekly wage is not subject to review in appeal from a preliminary order. Nelson v. Floyd's Drain Cleaning, Docket No. 183,113.

• January 1994. (Ph) Decision regarding amount of average weekly wage made for purposes of preliminary order is not subject to review by Appeals Board. White v. Strickland Const., Docket No. 183,532.

15.42 Medical Benefits

• July 1997. (Ph) The Appeals Board does not have jurisdiction to consider appeals from preliminary hearing orders pertaining to ongoing medical care. Ruch v. Keim Transportation and United States Fidelity and Guaranty Co., Docket No. 167,666.

• See Also, Taylor v. Flint Hills Foods, Inc. and General Casualty of Wisconsin, Docket No. 222,274 (August 1997); Turkin v. EZ Shop and National Union Fire Insurance Company, Docket No. 216,200 (June 1997); Fields v. General Electric Company and Electric Mutual Liability Ins. Co., Docket No. 219,366 (May 1997); Tanuis v. Great Plains Casting, Inc. and Sentry Insurance A Mutual Company, Docket No. 217,819 (October 1997); Adams v. J.C. Penny Company and Liberty Mutual Insurance Company, Docket No. 223,911 (October 1997); Burkholder v. Healthcare Services Group and Zurich Insurance Company, Docket No. 225,914 (January 1998); Myers v. Hallmark Cards, Docket No. 227,696 (February 1998); Austin v. General Motors Corporation, Docket No. 199,074 (February 1998); Boyd v. Presbyterian Manors of Mid-America, Inc. and Kansas Workers Compensation Fund, Docket No. 163,905 (March 1997); Little v. Cattle Empire, L.L.C. and Kansas Livestock Association, Docket No. 230,107 (April 1998); Hayes v. Raytheon Aircraft Company, Docket Nos. 230,784 & 230,785 (May 1998).

• But See, April 1997. (P/A) The parties appealed from the Order for medical treatment post-award entered by the Administrative Law Judge. The medical treatment ordered includes medication and an exercise program which had been recommended by the treating physician. The Administrative Law Judge's Award of medical treatment would normally not be considered jurisdictional and the Appeals Board would not take jurisdiction of this issue since it does deal with medical treatment ordered under a preliminary hearing Order Pursuant to K.S.A. 44-534a. However, in this case the issue raised by the respondent was not whether the Administrative Law Judge had the right to order ongoing medical care but whether the Administrative Law Judge had the authority to contradict the running award entered into by the parties. The Appeals Board finds the Administrative Law Judge does have this authority under K.S.A. 44-534a and as such the ordering of the monitoring of the claimant's medication and exercise program are found to be proper under the circumstances. Murray v. McElroy's, Inc. and Aetna Casualty & Surety Company, Docket No. 184,352.



• July 1997. (Ph) The determination of which two insurance carriers are liable for claimant's benefits and medical treatment is not a reviewable preliminary hearing order. K.S.A. 44-551, as amended, limits the jurisdiction of the Appeals Board to review preliminary hearing orders only in cases where one of the parties has alleged the administrative law judge exceeded his or her jurisdiction. Siyavong v. Kice Industries, Inc. and ITT Hartford & CNA Insurance Companies, Docket No. 215,916.



• See Also, Cline v. The Boeing Company and Ins. Company State of Pennsylvania In Care of America International Group, Docket No. 216,725 (August 1997).



• June 1997. (Ph) The ordering or providing of medical treatment falls within the power of the administrative law judge at preliminary hearings. The Appeals Board does not have jurisdiction to consider such appeals. See K.S.A. 1996 Supp. 44-534a. Wilder v. Clean Tech and Commercial Union Insurance Company, Docket No. 201,124.

• See Also, Spangler v. Dillon Companies, Inc., Docket Nos. 217,810; 217,811; and 217,812 (March 1997).

• May 1997. (Ph) The Appeals Board finds the issue regarding the Administrative Law Judge's failure to timely issue an order regarding additional medical is not one listed in K.S.A. 44-534a as appealable to the Appeals Board. Furthermore, the power to grant or deny medical treatment from a preliminary hearing is within the Administrative Law Judge's jurisdiction under K.S.A. 44-534a. Therefore, claimant's appeal is dismissed. Jurado v. Poky Feeders Inc. and U.S.F. & G., Docket No. 201,482.

• May 1997. (Ph) The Appeals Board does not have jurisdiction on appeal from a preliminary hearing order to consider whether the Administrative Law Judge's Order denying claimant's request for a second prothesis, which is a type of medical treatment, was proper. Solis v. Brookover Feed Yards, Inc. and Kansas Livestock Association, Docket No. 220,773.

• June 1994. (Award) The Kansas Workers Compensation Act requires respondent to provide health care services, including medical supplies and apparatus. In a compensable case, the ALJ has jurisdiction to determine what is necessary to satisfy this requirement and order that it be provided. The order requiring payment for the two swim suits so claimant could perform physical therapy in a pool does not exceed the jurisdiction of the ALJ and is not subject to review on appeal. McGinn v. Binney & Smith, Inc and Binney & Smith, Inc and Kansas Workers Compensation Fund, Docket No. 168,770.

• March 1994. (Ph) Decision designating a particular physician as the authorized treating physician is not subject to review on appeal from a preliminary hearing order. Cook v. TCI, Docket No. 183,789.

• March 1994. (Ph) Decision on disputed issue of whether the respondent's statements amounted to authorization of treatment by a specific physician is within jurisdiction of Administrative Law Judge and not subject to review by Appeals Board. O'Trimple v. Plenny's Concrete, Inc., Docket No. 186,635.

• January 1994. (Ph) Appeal challenging finding that previous medical care was not satisfactory does not raise an issue subject to review when part of preliminary hearing order. Woodworth v. Lloyd Myers, Docket No. 175,411.

15.43 Temporary Total Disability

• June 1998. (Ph) Respondent argues that claimant's psychological condition has now become "permanent" and that the ALJ erred when she awarded claimant temporary total disability. The Board finds the existence, nature and extent of disability of a workers compensation claimant is a question of fact. Bradford v. Boeing Military Airplanes, 22 Kan. App. 2d 868, 924 P.2d 1263, rev. denied Kan. (1996). It does not become a question of law when the evidence supports a finding that a condition is permanent and not temporary. Further, the ALJ did not exceed her jurisdiction in ordering temporary total disability benefits in light of the fact that there is evidence claimant's condition may improve over the next few years. The Appeals Board, therefore, does not have jurisdiction to review the ALJ's refusal to deny temporary total disability benefits. The appeal is dismissed. Horn v. St. Joseph Medical Center and Kansas Workers Compensation Fund, Docket No. 199,664.



• July 1997. (Ph) Preliminary hearing decision regarding employee's ability to perform sedentary employment and right to receive temporary total disability benefits is not an appealable issue as listed in K.S.A. 44-534a(a)(2), as amended. The Appeals Board does not have jurisdiction to review such decision. Smith v. KC Fab Inc., Docket No. 217,487.



• See Also, Kersenbrock v. Holiday Resort, Inc. and Kansas Health Care Association WCIT, Docket No. 211,918 (July 1997); Tipton v. Dillon Companies, Inc., Docket No. 208,410 (July 1997); Graham v. Rubbermaid Specialty Products and Rubbermaid Specialty Products, Inc., Docket No. 219,395 (June 1997); Ross v. Shawnee County Refuse Dept., Docket No.217,771 (July 1997); Johnson v. Vulcan Materials Company, Docket No. 199,876 (April 1997); Tanuis v. Great Plains Casting, Inc. and Sentry Insurance A Mutual Company, Docket No. 217,819 (October 1997); Adams v. J.C. Penny Company and Liberty Mutual Insurance Company, Docket No. 223,911 (October 1997); Lewis v. National Beef Packing Company and Wausau Underwriting Insurance and Lumbermen's Underwriting Alliance, Docket Nos. 220,182 & 220,242 (November 1997); Burkholder v. Healthcare Services Group and Zurich Insurance Company, Docket No. 225,914 (January 1998); Spangler v. Dillon Companies, Inc., Docket Nos. 217,810; 217,811; and 217,812 (March 1997); Lechner v. Coastal Corp/Coastal Derby and Reliance National Indemnity Co., Docket No. 216,037 (March 1997); Myers v. Hallmark Cards, Docket No. 227,696 (February 1998); Boyd v. Presbyterian Manors of Mid-America, Inc. and Kansas Workers Compensation Fund, Docket No. 163,905 (March 1997); Burdick v. Blackburn, Inc and United States Fidelity & Guaranty Co.,Docket No. 217,189 (February 1997); Little v. Cattle Empire, L.L.C. and Kansas Livestock Association, Docket No. 230,107 (April 1998); Hayes v. Raytheon Aircraft Company, Docket Nos. 230,784 & 230,785 (May 1998); Bell v. Midwest Construction Company, Inc and Builders' Association Self-Insurers' Fund, Docket No. 231,011 (May 1998).

• July 1997. (Ph) K.S.A. 44-534a does not empower the Appeals Board with jurisdiction to hear an appeal from a preliminary hearing Order where the sole issue is whether claimant is temporarily and totally disabled or entitled to receive temporary total disability. Patterson v. The Boeing Company and Kemper Insurance Co., Docket No. 208,164.

• See Also, Graham v. A+ Sweeping, Inc. and Commercial Union Insurance Companies, Docket No. 206,881 (June 1997); Carrera v. Hallbrook Country Club and Wausau Underwriters Insurance Co., Docket No. 204,984 (June 1997); Adee v. Abilene Country Club and Farm Bureau Mutual Insurance Company, Docket No. 219,928 (June 1997); Stutterheim v. Bohl Construction and Fireman's Fund Insurance Company, Docket No. 199,732 (May 1997).

• March 1997. (Ph) Where the Administrative Law Judge had jurisdiction to determine the appropriate dates of temporary total disability benefits in accordance with K.A.R. 51-3-5a, the Appeals Board concludes it does not have jurisdiction to consider this appeal from a preliminary hearing order, as it does not state a jurisdictional issue. Adams Jr. v. J.W. Trucking Inc. and Kansas Truckers Risk Management, Docket No. 217,823.

15.44 Other Issues Not Considered Jurisdictional (ie. Nature & Extent; Post Award Application for Preliminary Hearing; Evidentiary Issues; Insurance Coverage Issues)

• November 1999. (Ph) Whether psychological injury is traceable to physical injury is not an issue subject to review in appeals from preliminary hearings. Frontado v. Rubbermaid Specialty Products, Docket No. 217,058 [Appeal dismissed by unpublished Court of Appeals opinion, Docket No. 84,478, February 16, 2001].

• October 1999. (Award) An administrative law judge's order appointing an independent medical examiner is not appealable except as an issue in the appeal of the final award. Such an order is not a final order and is not appealable as a jurisdictional issue in a preliminary hearing order. Burton v. Labor Ready, Inc., Docket No. 225,093.

• August 1999. (Ph) Where the existence or nonexistence of insurance coverage determined whether claimant's accident was compensable under the Act, the Board found it had jurisdiction to review the insurance coverage issue on appeal from a preliminary hearing order. Vanderwoude v. American Mobil Homes and Travelers Insurance Company, Docket No. 244,213

• July 1999. (Ph) An issue dealing with the nature and extent of injury and whether an aggravation is temporary or permanent is not a jurisdictional issue under K.S.A. 1998 Supp. 44-534a and does not confer jurisdiction to the Board under K.S.A. 1998 Supp. 44-551 to review a preliminary hearing order. Porter v. Clarence M. Kelly Detention and Hartford Accident & Indemnity and Paul Porter v. U.S.D. No. 501, Docket Nos. 234,065 & 241,160.

• June 1999. (Ph) Whether the actions or decisions in the unemployment compensation proceedings are to be given a res judicata effect in workers compensation proceedings is not a jurisdictional issue. Bachman v. Modern Air Conditioning, Inc. and Allied Mutual insurance Company, Docket No. 234,206.

• February 1999. (Ph) The Board has limited jurisdiction to review an appeal from a post-award application for preliminary hearing benefits and will apply the limited review standards contained in K.S.A. 44-551 and K.S.A. 44-534a for reviewing preliminary hearings. In the case at hand, the Board finds it does not have jurisdiction to review the issue of medical treatment and temporary total disability despite the fact that an unpublished Court of Appeals opinion suggests that post-award applications for medical may be reviewed by the Board as a final order subject to full review. That decision is unpublished, not binding and currently being appealed to the Kansas Supreme Court. Further, if the Board did conduct a de novo review of the matter, it would affirm the ALJ. Briggs v. Susan B. Allen Memorial Hospital and Phico Insurance Company, Docket No. 214,916.



• February 1999 (Ph) The defenses of res judicata and collateral estoppel are not defenses which go to the compensability of the claim. Therefore, the issue of whether respondent has proven either of those affirmative defenses is not a preliminary hearing issue that the Board may review at this juncture of the proceeding under K.S.A. 1998 Supp. 44-534a. Therefore, respondent cannot use the defenses of collateral estoppel and res judicata to argue that the ALJ should not have conducted a second preliminary hearing over what respondent deems to be the same issues. Perrill v. Wesley Medical Center and Galen of Kansas, Inc., Docket No. 233,702.



• October 1998. (Ph) Even if there is a jurisdictional issue appealed to the Board on appeal from a preliminary hearing order, the issue may be moot and the Board will not decide such an issue on appeal from a preliminary hearing order. For instance, in the case at hand, claimant appealed the issue of whether claimant's injury was causally connected to the employment. The ALJ ruled the claimant had not proven a need for preliminary hearing benefits; thus, even if this were found to be a compensable claim, no benefits would result. Gentry v. Stormont Vail Regional Medical Center, Docket Nos. 132,470; 132,471; 135,308.

• August 1998. (Ph) Identity of correct insurance carrier is not a jurisdictional issue for purposes of appeals from preliminary hearing orders. Kelly v. Kinedyne Corporation and American Home Assurance Company, Docket No. 233,493.



• See Also, Madrigal v. Peddlers Inn Restaurant and Travelers Insurance Company and Kansas Workers Compensation Fund, Docket No. 213,277 (August 1998); Remmenga, Jr v. Technical Irrigation Service and Hartford Accident & Indemnity Union Insurance Company, Docket Nos. 220,853 & 237,147 (March 1999).



• But see, Sanchez v. Habaneros Mexican Restaurant and ITT Hartford, Docket No. 223,835 (December 1997), the issue of insurance coverage may, in certain circumstances, be jurisdictional and subject to review from a preliminary hearing.

• ----- The Appeals Board has jurisdiction to review the insurance issue at this stage of the proceeding because it directly addresses the question whether claimant's accident is covered under the Workers Compensation Act. Under K.S.A. 44-542a, self employed individuals may bring themselves within the provisions of the Act by securing insurance coverage. Therefore, if claimant is deemed to have obtained insurance coverage upon herself, her accident would be compensable under the Act. If not, the accident is not compensable. Therefore, in this specific instance, the insurance coverage issue is a jurisdictional issue which may be addressed in the review of a preliminary hearing order. Id.



• July 1998. (Order) A Motion to Dismiss a proceeding is an interlocutory order which the Appeals Board lacks jurisdiction to review under either K.S.A. 1997 Supp. 44-534a or 44-551. Hirtes v. Mike Corrigan, d/b/a Barbwire Farms and Pallet Recycling Company and Workers Compensation Fund, Docket No. 228,016.



• July 1998. (Ph) Whether the proper foundation requirements have been met to admit chemical tests into evidence is not a question which goes to the jurisdiction of the ALJ. The ALJ has jurisdiction to decide these matters and the Appeals Board does not have jurisdiction on appeal from a preliminary hearing to review it. Deleon v. Boone Brothers Roofing and CNA Insurance Companies, Docket No. 228,525.



• ----- The admissibility of evidence is not a jurisdictional issue raised on appeal from a preliminary hearing order. Id.



• See Also, Ogden v. Evcon Industries, Inc and American International Group, Docket No. 230,945 (June 1998); Valencia v. Capital City Pallet and Fremont Compensation Insurance Group, Docket No. 236,556 (December 1998); Anderson v. Bill Morris Construction Co., Inc., and Fireman's Fund Insurance Company, Docket No. 213,350 (May 1999).



• June 1998. (Ph) On appeal from a preliminary hearing order entered pursuant to K.S.A. 1997 Supp. 44-534a, the Appeals Board does not have jurisdiction to review an order by an ALJ where the issue is date of accident for purposes of determining which insurance carrier is responsible for the payment of benefits. Where compensability of the claim is not disputed, date of accident is not a jurisdictional issue. The appeal is dismissed. Linville v. Grandview Products Co., Inc and Wausau Business Insurance Company and Travelers Property Casualty, Docket No. 230,739.



• See also, Scheier v. Scheier Masonry and American Family Mutual Insurance Co., Docket No. 236,919 (May 1999).

• May 1998. (Ph) The provisions of K.S.A. 44-518 and K.A.R. 51-9-5 do not constitute a defense which should be considered jurisdictional and subject to review by the Appeals board on an appeal from a preliminary order. Kent v. Schmidtlein Electric, Inc and Trinity Universal Insurance and Kansas Workers Compensation Fund, Docket No. 163,240.

• April 1998. (Ph) The timing involved in the management of an administrative law judge's docket, including when the evidence is to be submitted and whether extensions are to be granted, are within the authority and jurisdiction of an administrative law judge and the Appeals Board will not consider these issues on appeal from a preliminary hearing. Little v. Cattle Empire, L.L.C. and Kansas Livestock Association, Docket No. 230,107.



• March 1998. (Ph) Whether claimant is temporarily partially disabled and whether certain medical records should have been admitted are not jurisdictional issues. Buehler v. The Boeing Company and Ins. Co. State of Pennsylvania, Docket No. 228,765.

• December 1997. (Ph) Whether the Administrative Law Judge exceeded her jurisdiction by requiring respondent to provide a choice of three physicians from which claimant could choose does not give rise to a jurisdictional issue. Bryant v. USD No. 259 and Workers Compensation Fund, Docket No. 196,704 [Affirmed by unpublished Court of Appeals opinion, Docket No. 80,577; opinion was published 10/15/99].



• ----- Whether the Administrative Law Judge erred in finding claimant had met her burden of proof that she was in need of additional medical treatment is not a jurisdictional issue. Id.



• November 1997. (Ph) Claimant's request for additional medical treatment and that a different physician be designated, specifically a psychiatrist, is not an issue identified as jurisdictional per K.S.A. 44-534a, as amended, and does not otherwise contemplate a contention that the Administrative Law Judge exceeded his jurisdiction per K.S.A. 44-551. Ramirez v. IBP, Inc., Docket No. 217,459.



• See Also, Burdick v. Blackburn, Inc and United States Fidelity & Guaranty Co.,Docket No. 217,189 (February 1997).



• November 1997. (Ph) The Appeals Board does not have jurisdiction on appeal form a preliminary hearing order under either K.S.A. 44-534a or K.S.A. 44-551 to consider an argument regarding the appropriate date of accident. Lewis v. National Beef Packing Company and Wausau Underwriting Insurance and Lumbermen's Underwriting Alliance, Docket Nos. 220,182 & 220,242.

• September 1997. (Ph) The Board treated the ALJ's ordering an IME (Independent Medical Exam) as a request for medical treatment for which the Board lacked jurisdiction to review under K.S.A. 44-534a. Marks v. U.S. Food Service, Docket No. 222,709 (September 1997).

• See Also, Thomas v. Butler Transportation Company, Docket No. 230,756 (December 1998); Matthews v. Four B Corporation d.b.a. Hen House Supermarket; Associated Wholesale Grocers; and U.S.D. # 500, Docket Nos. 227,974; 228,635; & 231,110 (June 1998).



• June 1997. (Ph) The Appeals Board does not have jurisdiction on an appeal from a preliminary hearing order under either K.S.A. 44-534a or K.S.A. 44-551 to consider an argument regarding the nature and extent of claimant's injury and/or disability. Parsons v. Attica Long Term Care Facility and Cigna Insurance Companies, Docket No. 196,412.



• June 1997. (Ph) The issue dealing with whether a claimant's need for psychological treatment stems from the accidental injury is an issue dealing with the nature and extent of injury rather than accidental injury arising out of and in the course of employment. As such, the Appeals Board finds the claimant's entitlement to ongoing psychological counseling in this matter is not an issue which can be considered by the Appeals Board from an appeal of a preliminary hearing order. Gilman v. Olathe Medical Center, Docket No. 211,937.



• See Also, Brown v. Builders Square, Docket Nos. 211,487; 211,488; 213,469 (August 1997); Krupa v. Woodworth and Hartford Accident & Indemnity, Docket No. 216,964 (June 1997); Turkin v. EZ Shop & National Union Fire Insurance Company of New York, Docket No. 216,200 (April 1997); Schultz v. Danisco Ingredients USA, Inc. and Hartford Accident & Indemnity Company, Docket No. 216,673 (February 1997); Love v. AIFAM Enterprises, Inc., Docket No. 190,944 (September 1996); Boyd v. Presbyterian Manors of Mid-America, Inc and Insurance Management Association and Kansas Workers Compensation Fund, Docket No. 163,905 (December 1996).

• December 1996. (Award) Neither the Board nor the ALJs have jurisdiction to settle the current dispute which arises under the operation of K.S.A. 46-921 which requires the Workers Compensation Fund's uncashed check to be reissued and paid with funds from the Canceled Warrants Payment Fund with a 10 percent deduction taken by that Fund. The ALJs and Board can only decide the amount of workers compensation benefits due claimant but not the ramifications of the operation of K.S.A. 46-921 to this Award. Neel v. Consumers Markets, Inc and Cigna Property & Casualty Insurance and Kansas Workers Compensation Fund, Docket No. 173,248.

• December 1994. (Ph) Respondent admits claimant suffered a work-related injury to his mid-back but disputes the claim of injury to his low back. Respondent further contends the ALJ's Order for medical treatment for an IME (Independent Medical Exam) raises the jurisdictional issue enumerated in K.S.A. 44-534a of whether the injury arose out of and in the course of the employee's employment. However, after reviewing the evidence in record, the Board finds, under these specific facts, that the issue raised by respondent is more properly categorized as what is the nature and extent of claimant's injury. Therefore, this is not an issue over which the Board has jurisdiction on an appeal from a preliminary order. Yancey v. Johnson County and Thomas McGee and Sons and Kansas Workers Compensation Fund, Docket No. 159,922.

• August 1994. (Ph) The majority of the Appeals Board cases treat the ALJ's ordering an IME (Independent Medical Examination) as an interlocutory appeal which is not final in nature and cannot be reviewed by the Board pursuant to K.S.A. 44-551. Moyer v. Cashco, Inc, Docket No. 176,129.

• See also, Logan v. United Parcel Service, Docket Nos. 183,888; 189,836; 189,837; 190,071; 190,072; 190,073 (February 1996); Wooldridge v. Sam's Wholesale Club, Docket No. 181,934 (May 1995); Jackson v. Boeing Military Airplanes, Docket No. 176,169 (August 1994); Potter v. Kmart Corp., Docket No. 125,604 (October 1996); Sapata v. Southwestern Bell Telephone Company, Docket No. 133,971 (May 1996); Dickinson v. American Ingredients, Docket Nos. 163,348 & 170,439 (February 1995); and Flannery v. Trans Area, Docket No. 170,441 (January 1996).

• April 1994. (Ph) Decision by Administrative Law Judge that disability was caused by subsequent accident is not subject to review on appeal from a preliminary order where Administrative Law Judge does have jurisdiction and the issue is whether claimant's temporary inability to work resulted from the on the job injury or subsequent injury. Brown v. J&F Express, Inc., Docket No. 166,069 & 180,989.

• April 1994. (Ph) Decision that psychological injury is traceable to on the job injury is not, when made for purposes of preliminary hearing, subject to review by Board since it relates to nature and extent of injury, not whether injury arose out of and in the course of employment. Cunningham v. Michael E. Michael, D.D.S., Docket No. 177,523.

• March 1994. (Ph) Decision assessing interpreter fees not subject to review on appeal from a preliminary hearing order. Martinez v. Monfort, Inc., Docket No. 170,737.

• March 1994. (Ph) Decision regarding amount of medical mileage to be paid is not subject to review on appeal from preliminary order. Ball v. Georgia Pacific Corporation, Docket No. 155,811.

• March 1994. (Ph) Decisions setting terminal dates and decision granting motion to quash notice of deposition not subject to review on appeal. Glenn v. AMA Arkady, Docket No. 159,979.

• March 1994. (Ph) Decision apportioning liability between employers for purposes of preliminary hearings is not subject to review on appeal. Nelson v. Floyd's Drain Cleaning, Docket No. 183,113.

• March 1994. (Ph) Decision granting leave to amend claim by changing date of accident is not subject to review on appeal. Wilson v. The Boeing Company, Docket No. 168,442.

• January 1994. (Ph) Appeal from Order denying motion to dismiss workers compensation fund on grounds fund was not timely impleaded is not an appeal which alleges the ALJ exceeded his/her jurisdiction and therefore is not subject to review. Ormsby v. Osage City, Docket No. 141,766.

15.45 Other Orders

• October 1999. (P/A) K.S.A. 44-551 limits the Board to review of preliminary and final orders and jurisdictional issues in preliminary hearings. Final orders include orders which do not resolve all issues between the parties if the order (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment. An order for production of records is considered a final order subject to Board review under the circumstances presented in this case. Rhodeman v. Moore Management, Docket No. 234,890.

15.46 Generally

• October 1999. (P/A) K.S.A. 44-551 limits the Board to review of preliminary and final orders and jurisdictional issues in preliminary hearings. Final orders include orders which do not resolve all issues between the parties if the order (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment. An order for production of records is considered a final order subject to Board review under the circumstances presented in this case. Rhodeman v. Moore Management, Docket No. 234,890.



• June 1997. (Order) The Appeals Board concludes the Order of the Administrative Law Judge assessing costs against claimant for respondent's counsel's travel expense and time was not a preliminary hearing Order, as contemplated by K.S.A. 1996 Supp. 44-534a. Therefore, such order is subject to de novo review by the Appeals Board as it is an act by the Administrative Law Judge not made pursuant to the preliminary hearing statute. Vilaysing v. IBP, Inc., Docket No. 210,878.

15.47 Types of,

15.47a Interlocutory Orders

• November 1999. (Ph) ALJ's order for claimant to appear at hearing is an interlocutory order that is not appealable to the Workers Compensation Board except as part of appeal of final award. Perez v. KD Roofing, Docket No. 227, 990.

• May 1999. (Order) Orders reopening cases put on the inactive docket are interlocutory orders. The Appeals Board lacks jurisdiction to review them. Scarpitta v. Edward Kraemer & Sons, Inc., and Great American Insurance Company, Docket No. 107,143.



• April 1999. (Order) Orders for independent medical evaluations are interlocutory orders. The Appeals Board lacks jurisdiction to review them. Kitchen v. Luce Press Clippings, Inc and American Home Assurance Company, Docket No. 228,213.



• April 1999. (Order). Orders for paternity tests are interlocutory orders. The ALJ has the authority to order them, but the Appeals Board lacks the jurisdiction to review. Brewer v. 7 Eleven Store and Amco Insurance Company, Docket No. 234,168.



• March 1999. (Order) Motion to add party to action as a respondent is an interlocutory request and the appeal is from an interlocutory order which is not subject to Appeals Board review. Portillo v. Carl Cole Masonry & (Unknown) & Kansas Workers Compensation Fund, Docket No. 220,294.

• July 1998. (Order) A Motion to Dismiss a proceeding is an interlocutory order which the Appeals Board lacks jurisdiction to review under either K.S.A. 1997 Supp. 44-534a or 44-551. Hirtes v. Mike Corrigan, d/b/a Barbwire Farms and Pallet Recycling Company and Workers Compensation Fund, Docket No. 228,016.



• June 1998. (Order) Administrative Law Judge's Order, which re-implead the Fund and assessed all lability for paying medical bills to date as well as the providing of future medical treatment to the Fund, is found to be in interlocutory order which the Board lacks jurisdiction to review at this stage in the proceedings. See K.S.A. 1997 Supp. 44-551(b)(1). Tracy v. Central Electrical Rebuilders and Unknown and Kansas Workers Compensation Fund, Docket No. 225,817.



• May 1998. (Ph) A finding pursuant to K.S.A. 44-518 and K.A.R. 51-9-5 that an employee has unreasonably refused to submit to medical treatment such that compensation should be terminated is an interlocutory order which can be altered or rescinded based upon a change of circumstances or otherwise upon a rehearing of the matter. See Chippeaux v. Western Coal and Mining Co., 124 Kan. 475, 260 Pac. 625 (1927). Kent v. Schmidtlein Electric, Inc and Trinity Universal Insurance and Kansas Workers Compensation Fund, Docket No. 163,240.

• February 1998. (Order) Non-preliminary hearing interlocutory orders are not appealable under K.S.A. 1997 Supp. 44-534a and K.S.A. 1997 Supp. 44-551. Piland, Deceased v. City of Wichita, Docket No. 227,792.



• See Also, Bell v. Cardinal Building Services, Inc. and Hartford Accident & Indemnity and Kansas Workers Compensation Fund, Docket No. 227,195 (February 1998); Carpenter v. National Filter Service and Travelers Insurance Company, Docket No. 227,852 (March 1998). [Affirmed by Court of Appeals opinion, Docket No. 81,106, December 17, 1999.]



• October 1997. (Order) An order of the Administrative Law Judge that quashed a deposition is an interlocutory order made during the litigation of a workers compensation case. Since the appeal of this Order was filed after July 1, 1997, the Appeals Board does not have jurisdiction to hear this appeal as it is neither an appeal from a final order or preliminary hearing. See K.S.A. 44-551(b)(1), as amended by 1997 Legislature. Urquidi v. Trinity Adult Care Home and Kansas Assoc. of Homes of the Aging, Docket No. 186,568.



• See Also, Luna v. Kan-Tex Feeders and Liberty Mutual Insurance Company, Docket Nos. 202,235 & 205,193 (April 1998); Robinson v. Sell's Welding Service and Fireman's Fund Insurance Company, Docket Nol 222,311 (September 1998).



• August 1997. (Order) K.S.A. 1996 Supp. 44-551(b)(1) provides for review by the Appeals Board of all acts of the administrative law judge upon timely written request. However, the 1997 Legislature amended this statute effective July 1, 1997. That amendment limits the Appeals Board's jurisdiction to review only final orders entered by the administrative law judge except for preliminary hearing orders entered under K.S.A. 44-534a. See 1997 Kan. Sess. Laws Ch. 125, Sec. 12. Therefore, had the written request for these appeals been filed on or after July 1, 1997, the Appeals Board would not have jurisdiction to review the appeals at this juncture in the proceedings. See Bowen v. Wilson, 93 Kan. 351 Syl. ¶ 2, 144 Pac. 251 (1914). Cummings v. Kaylor Dental Laboratory, Inc. and Berkley Administrators and Employers Mutual Insurance, Docket No. 211,637.

• ----- The Board does not have jurisdiction to review an appeal from an interlocutory order if the appeal is perfected, ie. the application for review is filed on or after 7/1/97. See K.S.A. 1997 Supp. 44-534a; K.S.A. 1997 Supp. 44-551. Id.

• August 1994. (Order) The decision rendered by the ALJ denying the claimant's request for an IME (Independent Medical Exam) referral for the purposes of obtaining a functional impairment rating pursuant to K.S.A. 44-510e is interlocutory in nature and subject to modification at any time prior to a final award being entered. Therefore, this subject matter cannot be reviewed by the Appeals Board pursuant to K.S.A. 44-551 as it is not a final order. Additionally, the relief requested was not in the nature of medical treatment benefits as contemplated by K.S.A. 44-534a but rather in the nature of an IME, specifically a rating examination. Therefore, there is no jurisdiction under K.S.A. 44-534a to hear this appeal. Moyer v. Cashco, Inc and Wausau Insurance and Kansas Workers Compensation Fund, Docket No. 176,129.

• See Also, Logan v. United Parcel Service and Liberty Mutual Insurance Company, Docket Nos. 183,888; 189,836; 189,837; 190,071; 190,072; 190,073 (February 1996); Wooldridge v. Sam's Wholesale Club and National Union Fire Insurance Company of New York, Docket No. 181,934 (May 1995); Jackson v. Boeing Military Airplanes and Aetna Casualty & Surety and Kansas Workers Compensation Fund, Docket No. 176,169 (August 1994); Sapata v. Southwestern Bell Telephone Company, Docket No. 133,971 (May 1996); Dickinson v. American Ingredients, Docket Nos. 163,348 & 170,439 (February 1995); and Flannery v. Trans Area, Docket No. 170,441 (January 1996).

Terminal Dates

• March 1999. (Award) Terminal dates not extended where respondent asked for extension to present evidence of a late job offer but did not explain the delay -- good cause to extend terminal dates was not shown. The Board notes that respondent has available the review and modification procedures under K.S.A. 44-528 if the evidence warrants. Surls v. Saginaw Quarries, Inc Neosho Construction Company, Inc & Liberty Mutual Insurance Company St. Paul Fire & Marine Insurance Company, Docket Nos. 211,321 & 123,766 [Affirmed by Court of Appeals, Docket No. 83,095, February 18, 2000.].

• May 1998. (Award) The administrative law judge may extend terminal dates under K.S.A. 44-523(b) on application for good cause shown. Cummings v. Kaylor Dental Laboratory, Inc and Berkley Administrators, Docket No. 211,637.

• March 1998. (Award) Extension of terminal dates denied where claimant had over one month to review a list of tasks he had completed over the last 15 years and the Administrative Law Judge did not believe claimant would be able to accomplish this if given a reasonable amount of time. Brott v. Breckco Construction Company, Inc and CNA Insurance Companies, Docket No. 214,230.

• ----- Dissent, the dissenting Board Member finds that by comparing the slight delay which would have resulted from extending claimant's terminal dates to the manifest injustice that will occur by restricting claimant' opportunity to present critical evidence causes him to find good cause to extend claimant's terminal dates. See K.S.A. 44-523(b)(4). Id.

• February 1998. (Award) Where the evidentiary deposition is taken outside claimant's terminal date, such deposition will not be considered as part of the record. Hargett v. W.A. Dunbar and CNA Insurance Company and Workers Compensation Fund, Docket No. 173,294.

• ----- K.S.A. 1997 Supp. 44-523(b) obligates an administrative law judge to set terminal dates for the parties to submit evidence in support of their positions. Claimant is granted 20 days from the date of first full hearing with the respondent being granted 30 additional days thereafter. Id.

• ----- Extension of terminal dates may be granted: (1) if the employee is being paid temporary or permanent total disability compensation; (2) for medical examination of the claimant; or (3) on application for good cause shown. Id.

• May 1997. (Award) Extension of terminal dates to admit a transcript allowed. The transcript of the proceedings would not have been a surprise to claimant or her counsel. Additionally, the interest of justice favors the admission of all relevant evidence. Therefore, the Appeals Board finds there was good cause for extending the terminal date as contemplated by K.S.A. 1992 Supp. 44-523(b)(4). Dombkowski v. IBP, Inc. and Kansas Workers Compensation Fund, Docket Nos. 177,397; 195,846 & 195,847. [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,516].



• August 1997. (Order) The Appeals Board has had the opportunity to review on a number of occasions the issue of whether terminal dates should be extended for good cause shown. In the majority of those decisions, the Appeals Board has affirmed the decision of the administrative law judge. In recognizing the extreme importance of the enforcement of terminal dates for the purpose of the administrative law judges controlling their dockets, the Appeals Board will rarely disturb the administrative law judge's decision on whether to extend terminal dates. Cummings v. Kaylor Dental Laboratory, Inc. and Berkley Administrators and Employers Mutual Insurance, Docket No. 211,637.



• See Also, Henning v. Fort Scott Family Physicians, Docket No. 147,308 (June 1996); Woodworth v. City of Wichita, Docket No. 183,485 (Jan. 1996); Newman v. Carlos O'Kellys, Docket No. 176,725 (Nov. 1995).

• November 1996. (Order) The ALJs order granting the extension of terminal dates is an interlocutory order which the Appeals Board lacks jurisdiction to review at this stage in the proceedings. Finlay v. UPS, Docket No. 206,858.

15.47b Nunc Pro Tunc

• May 1999. (Order) The Board can issue an order nunc pro tunc to correct errors of a clerical nature. See Parson's v. Attica Long Term Care Facility, Appeals Board Docket No. 196,412 (June 1997). The purpose of an order nunc pro tunc is to provide a means for entering the actual judgment of the trial court which for one reason or another was not properly recorded. See Wallace v. Wallace, 214 Kan. 344, 520 P.2d 1221 (1974). It may not be used to correct a judicial error involving the merits, to enlarge the judgement originally rendered, to supply a judicial omission or to show what the court should have decided, as distinguished from what it actually did decide. Book v. Everitt Lumber Co., Inc., 218 Kan. 121, 542 P.2d 669 (1975); See also Cushenberry v. Wal-Mart, Appeals Board Docket No. 199,674 (June 1997). Griffin v. Dale Wiley Pontiac-Cadillac-GMC Truck, Inc., Docket No. 175,244 [Affirmed by unpublished Court of Appeals opinion, Docket No. 83,373, February 4, 2000].



• ----- Respondent's motion for an order nunc pro tunc is denied where respondent asked the Board to make a new finding by changing claimant's average weekly wage by more than $70. Such a request is not the proper subject matter for an order nunc pro tunc. Id.

• June 1997. (P/A) A nunc pro tunc order cannot be used to alter a judgment actually rendered. See Norcross v. Pickrell Drilling Co., 202 Kan. 524, 449 P.2d 569 (1969). Cushenberry v. Walmart and National Union Fire Insurance Company of New York, Docket No. 199,674.

• June 1997. (Ph) The original order of the Administrative Law Judge made no mention of claimant's thoracic back even though it was clearly at issue. The Appeals Board finds the Administrative Law Judge, in issuing the Nunc Pro Tunc order to include the thoracic back injury, has done nothing more than correct what appears to be a clerical error. Therefore, the Appeals Board finds the Order Nunc Pro Tunc should be affirmed. Parsons v. Attica Long Term Care Facility and Cigna Insurance Companies, Docket No. 196,412.



• ----- The purpose of an order Nunc Pro Tunc is to provide a means for entering the actual judgment of the trial court which for one reason or another was not properly recorded. See Wallace v. Wallace, 214 Kan. 344, 520 P.2d 1221 (1974). It may not be used to correct a judicial error involving the merits, to enlarge the judgment originally rendered, to supply a judicial omission or to show what the court should have decided, as distinguished from what it actually did decide. See Book v. Everitt Lumber Co., Inc., 218 Kan. 121, 542 P.2d 669 (1975). Id.



• April 1997. (R/A) Respondent submitted an order labeled as an Order Nunc Pro Tunc, which changed a benefits calculation and reflected a change in the average weekly wage. The Appeals Board, however, found this procedure to be inappropriate both because it was done ex parte and because the changes were not the type of corrections intended to be done in a nunc pro tunc order. Lundry v. The Boeing Company and Aetna Casualty & Surety and Kansas Workers Compensation Fund, Docket No. 166,389.

15.48 Frivolous Appeals

• November 1997. (Ph) Where the Appeals Board finds there existed an arguable issue of whether the dispute went toward the nature and extent of claimant's injuries or whether the injuries arose from the accident, the appeal is not frivolous despite its being dismissed as non-jurisdictional. Additionally, no evidence was found in the record to support the claimant's allegation that the respondent's only purpose for such appeal was to stay the payment of temporary total disability payments ordered paid before the date of the Order. McGee, Jr. v. Capital Electric Construction of Kansas, Inc. and Builders Association Self-Insurers Fund, Docket Nos. 206,931 & 210,663.

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