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McINTYRE v. A.L. ABERCROMBIE12/20/1996
This is a workers compensation case. Michael K. McIntyre appeals from the decision of the Workers Compensation Board (Board) which dismissed his application for review as untimely.
Michael K. McIntyre worked for A.L. Abercrombie, Inc., as a truck driver and swamper. His primary activity was moving oil rigs. The parties stipulated that on June 30, 1991, McIntyre sustained a compensable injury. His left calf was crushed by a 5,000-pound swivel, which was being loaded on a hoist. The injury required McIntyre to undergo several surgeries.
McIntyre claimed that, as a consequence of the injury to his left leg, he began experiencing pain in his low back. He sought an award based on a general body disability. The administrative law judge (ALJ) determined McIntyre had failed to prove anything more than a scheduled injury to his left leg. The ALJ entered an award dated April 28, 1995, for a scheduled injury based on 35% permanent partial loss of the use of the left leg.
McIntyre filed an application for review by the Board. The Board dismissed the application as not timely filed.
The sole issue in this case is whether the Board correctly determined that McIntyre's application for review was untimely filed. Resolution of this issue requires interpretation of statutes involving review of compensation awards and computation of time periods. Interpretation of a statute is a question of law subject to unlimited review by an appellate court. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
The parties' positions may be summarized as follows: The Board says K.S.A. 44-551 and K.A.R. 51-18-2 provide a 10-day period for filing an application for review of a workers compensation award. The Board says the time period began running on April 29, 1995, and ended on May 9, 1995. Thus, the Board concludes an application for review filed on May 10, 1995, is untimely.
McIntyre says the 10 days allowed under 44-551 must be counted according to the method set forth in K.S.A. 60-205(a). McIntyre says the time period began running on April 29, 1995, and ended on May 12, 1995. Thus, McIntyre concludes an application filed on May 10, 1995, was timely.
K.S.A. 44-551(b)(1) provides for Board review of ALJ decisions as follows:
"All acts, findings, awards, decisions, rulings or modifications of findings or awards made by an administrative law judge shall be subject to review by the board upon written request of any interested party within 10 days and if no such request is made, then the board shall approve such actions, findings, awards, decisions, rulings or modifications of findings or awards of the administrative law judge."
K.A.R. 51-18-2 reiterates the effective date for ALJ awards set forth in K.S.A. 44-525(a) and the 10-day period for requesting review contained in 44-551:
"The effective date of the administrative law judges' acts, findings, awards, decisions, rulings, or modifications, for review purposes, shall be the day following the date noted thereon by the administrative law judge.
"Application for review shall only be considered as timely filed if received in the central office or one of the district offices of the Director on or before the tenth day after the effective date of the act of an administrative law judge."
K.S.A. 60-206(a) provides:
"In computing any period of time prescribed or allowed by this chapter, by the local rules of any district court, by order of court, or by any applicable statute, t
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