 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
WALN v. CLARKSON CONSTR. CO.6/25/1993
REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish by an order dated September 13, 1993, pursuant to Rule 7.04 (1992 Kan. Ct. R. Annot. 33).
Claimant Beth Ann Waln filed a workers compensation action against her employer, respondent Clarkson Construction Company (Clarkson). Clarkson and its insurance carrier appeal from a district court order which reversed the Director of Workers Compensation and reinstated an Administrative Law Judge's (ALJ) order assessing penalties pursuant to K.S.A. 1992 Supp. 44-512a. We reverse and remand with directions.
The facts are well known to the parties and will be cited here only as is necessary to identify the issues.
Clarkson appealed to the Director from an ALJ order directing payment of additional temporary total disability benefits during a second vocational rehabilitation evaluation. Clarkson did not pay the benefits while the appeal was pending but promptly paid the same lump sum when the Director upheld the ALJ ruling.
While the Director's appeal was pending, Waln sent a demand letter to Clarkson for the benefits. After the payments were made, Waln sought an assessment of penalties for late payment pursuant to K.S.A. 1992 Supp. 44-512a. After a hearing, the ALJ denied the application for penalties. Waln then filed a motion for rehearing on her application for penalties. The rehearing was held, and the ALJ assessed penalties pursuant to K.S.A. 1992 Supp. 44-512a in the amount of $40,320, using a pyramid formula.
Clarkson filed an application for Director's review of the penalty award, alleging numerous errors including lack of jurisdiction to rehear the penalty application after the initial ruling. The Director held the ALJ order imposing penalties was void ab initio because the ALJ had no authority to rehear a matter already ruled upon. The district court reversed the Director and reinstated the ALJ penalty award.
Waln contends this court has no jurisdiction over this appeal because the penalty order was preliminary in nature and, under K.S.A. 1992 Supp. 44-534a(a), preliminary findings and awards are not appealable. Lively v. MBPXL Corp., 7 Kan. App. 2d 204, 638 P.2d 999 (1982). Clarkson did not address this issue in its brief.
Preliminary orders and awards are not appealable because they are not binding at the full hearing on a claimant's compensation claim. K.S.A. 1992 Supp. 44-534a(a). K.S.A. 1992 Supp. 44-534a(b) provides that an employer or insurer can recover payments made pursuant to a preliminary order if the award is reduced or totally disallowed at the full hearing on the claim.
K.S.A. 1992 Supp. 44-512a provides a procedure quite independent of K.S.A. 1992 Supp. 44-534a whereby a claimant can seek assessment of civil penalties against recalcitrant employers and insurers. Though interrelated to the extent they both arise from the same injury, compensation proceedings and 44-512a actions are separate and distinct. Crow v. City of Wichita, 222 Kan. 322, 332, 566 P.2d 1 (1977).
This court reviewed assessment of 44-512a penalties prior to entry of a final award in Stout v. Stixon Petroleum, 17 Kan. App. 2d 195, 836 P.2d 1185, rev. denied 251 Kan. 942 (1992). In Stout, an ALJ assessed penalties because the respondent failed to make temporary total payments pursuant to a K.S.A. 1991 Supp. 44-534a preliminary award. 17 Kan. App. 2d at 196-97. No final award had been issued in the case at the time judicial review of the Director's order affirming assessment of penalties commenced.
K.S.A. 1992 Supp. 44-551(b)(1) and (2)(A) make all ALJ acts r
Page 1 2 Kansas Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|