1

No. 114,605

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CINCINNATI INSURANCE COMPANY,

Appellant,

v.

LARRY G. KARNS, Director of Workers Compensation, Kansas Department of Labor,

Appellee.

SYLLABUS BY THE COURT

1.

The right to appeal is neither a vested nor a constitutional right. It is entirely 

statutory.

2.

The Kansas Workers Compensation Act is substantial, complete, and exclusive.

3.

The Kansas Workers Compensation Act does not provide for the right to appeal 

the Director of Workers Compensation's determination to deny reimbursement for 

overpayment of an award.

4.

Because the Kansas Workers Compensation Act is comprehensive and has its own 

provisions governing what orders may be appealed and when, the Kansas Judicial 

Review Act does not provide for the right to appeal the decision by the Director of 

Workers Compensation to deny reimbursement for overpayment of an award. 
2

5.

Mandamus is appropriate in the absence of a statutory right of appeal to redress 

illegal, fraudulent, or oppressive official conduct. It is available only for the purpose of 

compelling the performance of a clearly defined duty.

Appeal from Shawnee District Court; REBECCA W. CROTTY, judge. Opinion filed June 24, 2016. 

Affirmed.

Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Overland Park, for 

appellant. 

Glenn H. Griffeth, of Kansas Department of Labor, for appellee.

Before ARNOLD-BURGER, P.J., SCHROEDER, J., and JEFFREY E. GOERING, District Judge, 

assigned.

ARNOLD-BURGER, J.: Due to a miscalculation solely of its own making, 

Cincinnati Insurance Company (Cincinnati) overpaid a workers compensation award. 

Subsequently, the Director of Workers Compensation (Director) denied Cincinnati's 

request for reimbursement for its overpayment from the Kansas Workers Compensation 

Fund (Fund). Although the parties agree that the Kansas Workers Compensation Act 

(KWCA), K.S.A. 44-501 et seq., does not contain any provisions that would allow appeal 

of the Director's decision, Cincinnati contends that the Kansas Judicial Review Act 

(KJRA), K.S.A. 77-601 et seq., provides such a right. Because we find that the KJRA 

does not provide a right to appeal the Director's decision denying reimbursement, we 

affirm the district court's dismissal of this action for lack of jurisdiction.
3

FACTUAL AND PROCEDURAL HISTORY

Paul Young sustained on-the-job injuries while working for Mid-America Pipe 

Fabricating in July 2008. While his claim for workers compensation benefits was 

pending, Mid-America's insurer, Cincinnati, made temporary total disability payments to 

Young. After a hearing, an administrative law judge (ALJ) determined that Young was 

totally disabled and awarded him $125,000 minus any amounts that had already been 

paid. At the time of the hearing, Cincinnati stipulated to the fact that it had previously 

paid Young $43,245.72 in temporary total disability benefits. After the award was 

entered, Cincinnati paid Young an additional $81,754.28—the difference between the 

amount it had already paid and the total amount for which it was liable.

Sometime after the payment was made, Cincinnati realized that it had actually 

paid Young $79,765.72 in temporary total disability, resulting in an overpayment of 

$28,755.96 in temporary benefits. Cincinnati then sent a letter to the Director asking the 

Director to order the Fund to reimburse Cincinnati for its overpayment. The Director 

denied the request. After a letter seeking reconsideration, the Director again denied the 

request. The Director's position, stated simply, was that K.S.A. 2015 Supp. 44-534a(b) 

requires reimbursement from the Fund only when the employer has paid more in 

temporary disability than the final award or the final award was disallowed. In this case, 

the final award was more than the temporary disability the employer had paid, so no 

reimbursement was allowed. According to the Director, the fact that the employer failed 

to take credit for the total amount previously paid, even though it was allowed to do so 

under the ALJ's order, was irrelevant to the calculus. 

Cincinnati filed suit in district court seeking judicial review of the Director's 

decision, but the district court dismissed Cincinnati's claim after it found that it lacked 

subject matter jurisdiction to review the decision. Cincinnati appeals the district court's 

dismissal. 
4

ANALYSIS

The district court lacked subject matter jurisdiction to consider an appeal of the 

Director's decision.

Cincinnati argues that the district court erred when it dismissed the petition for 

judicial review for lack of subject matter jurisdiction. Whether jurisdiction exists is a 

question of law over which this court exercises de novo review. Sander v. State, 278 Kan. 

487, 490, 102 P.3d 1136 (2004). To the extent that resolution of this appeal requires this 

court to engage in statutory interpretation, such review is also unlimited. Schmidtlien 

Electric, Inc. v. Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005).

The right to appeal is neither a vested nor a constitutional right. It is entirely 

statutory. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609-10, 244 P.3d 642 

(2010). So we begin by determining if such a statutory right to appeal exists under these 

circumstances. 

Cincinnati contends that while the KWCA does not contain a mechanism for 

appealing a decision of the Director, the KJRA steps in and grants district courts 

jurisdiction to review such claims. The KJRA provides a statutory framework that sets 

out the rights of litigants to obtain judicial review of agency actions and grants courts the 

corresponding jurisdiction to consider such cases. K.S.A. 2015 Supp. 77-603(a). The dual 

goals of the KJRA are to increase accessibility to the courts and to standardize the way in 

which appeals from agency actions are handled. Bruch v. Kansas Dept. of Revenue, 282 

Kan. 764, 777, 148 P.3d 538 (2006), disapproved of on other grounds by Sloop v. Kansas 

Dept. of Revenue, 296 Kan. 13, 290 P.3d 555 (2012). The KJRA applies to all "agency 

actions not specifically exempted by statute from the provisions of th[e] act." K.S.A. 

2015 Supp. 77-603. Accordingly, we must determine whether the KWCA is exempted by 

statute from the provisions of the KJRA. 
5

The KWCA is a comprehensive set of statutes that define the rights of employees 

to compensation for work-place injuries and the procedures they must follow to obtain 

such compensation. Our Supreme Court, interpreting the KWCA, has concluded that it 

"'undertook to cover every phase of the right to compensation and of the procedure for 

obtaining it, which is substantial, complete and exclusive.'" Jones v. Continental Can Co., 

260 Kan. 547, 557, 920 P.2d 939 (1996). Included amongst the subjects covered by the 

KWCA is the jurisdiction of the courts to review claims brought under it. K.S.A. 2015

Supp. 44-556. 

The procedure for obtaining judicial review of a workers compensation claim 

under the KWCA begins with a hearing before an ALJ. K.S.A. 2015 Supp. 44-551(l)(1). 

ALJs have the power to conduct trial-like proceedings, determine the validity of claims, 

and make awards. K.S.A. 2015 Supp. 44-551(l)(1). If either party is dissatisfied with the 

ALJ's determination, it may appeal to the Workers Compensation Appeals Board 

(Board). K.S.A. 2015 Supp. 44-551(l)(1). The Board has the "exclusive jurisdiction to 

review all decisions, findings, orders and awards of compensation of [ALJs] under the 

workers compensation act." K.S.A. 2015 Supp. 44-555c(a). Decisions of the Board are 

then appealable directly to the Kansas Court of Appeals "in accordance with the 

[KJRA]." K.S.A. 2015 Supp. 44-556(a). So KJRA procedures are certainly incorporated, 

to some extent, in the KWCA appeal process. 

The role of the Director in the process is limited to oversight and enforcement. See

K.S.A. 2015 Supp. 44-534a(a)(1) (the Director assigns cases to ALJs); K.S.A. 2015 

Supp. 44-534a(b) and K.S.A. 2015 Supp. 44-556(d), (e) (if an award is entered for less 

than an employer has paid in temporary benefits, the Director determines the amount of

overpayment that may be reimbursed); K.S.A. 2015 Supp. 44-536(b) (Director reviews 

attorney fee agreements for compliance with statute); K.S.A. 2015 Supp. 44-549 (final 

decisions of the ALJ are filed with the Director). As the parties admit, there is no 

statutory provision in the KWCA for agency or judicial review of the Director's 
6

decisions. And although the legislature clearly included adherence to the KJRA 

procedures in the review of Board decisions, it failed to mention any right to appeal 

administrative decisions made by the Director under the KWCA or the KJRA. Including 

review under the KJRA in subsection (a) of K.S.A. 2015 Supp. 44-556 while excluding a 

discussion of such a review as it relates to the Director's decision regarding 

reimbursement in subsection (d)(1) seems to indicate a clear legislative intent that such a 

right to appeal does not exist. Therefore, Cincinnati's claim that the statute includes an 

implicit right to appeal is unpersuasive.

Our Supreme Court addressed a similar argument in Schmidtlien. There, the 

plaintiffs sought reimbursement from the Director under the same statute at issue here for 

temporary benefits paid to workers whose claims were later dismissed or disallowed for 

procedural reasons. The Director denied the requests. The plaintiffs filed petitions for 

writs of mandamus in district court seeking to compel the Director to issue 

reimbursements. The district court concluded that it had jurisdiction to consider the 

petitions, then denied them on the merits. 

Our Supreme Court assumed review of the consolidated cases on appeal. One of 

the issues that the Supreme Court considered was whether mandamus was the appropriate 

mechanism for relief. The Supreme Court concluded it was. In reaching this decision, it 

reviewed the legal principles surrounding mandamus. See 278 Kan. at 832-33. The 

Supreme Court specifically made note:

"Mandamus is a proceeding to compel some inferior court, tribunal, board, or some 

corporation or person to perform a specified duty, which duty results from the office, 

trust, or official station of the party to whom the order is directed, or from operation of 

law. [Citation omitted.]

"Mandamus is not available to require performance of an act that involves the 

exercise of discretion by the public official. [Citation omitted.] Nor does it lie to enforce 
7

a right which is in substantial dispute. [Citation omitted.] It is available only for the 

purpose of compelling the performance of a clearly defined duty." 278 Kan. at 832-33.

After reviewing the basic principles of mandamus relief, the Supreme Court 

determined that the district court had jurisdiction to consider the plaintiffs' requests and 

should have issued the writs of mandamus because the Director's duty to reimburse the 

plaintiffs was clear. 278 Kan. at 832-34. One of the legal foundations on which this 

decision rested was the determination that "[t]he [KWCA] does not provide for the right 

to appeal the Director's determination on reimbursement." 278 Kan. 810, Syl. ¶ 4. The 

KJRA was not discussed by the Supreme Court as a substitute legal remedy, but it 

contains the same language today as it did at the time of Schmidtlien. See K.S.A. 2015 

Supp. 77-603(a). The conclusion that mandamus was an appropriate remedy for a 

Director's refusal to provide reimbursement under K.S.A. 44-534a(b) is supported by and 

reinforces the Supreme Court's earlier determination that the KWCA is complete unto 

itself. See Jones, 260 Kan. at 557.

Additionally, while the Schmidtlien court did not expressly mention it, mandamus 

is generally only appropriate where there is no other adequate legal remedy available. 

Shehan v. Kansas Dept. of Corrections, No. 108,020, 2013 WL 781139, at *2 (Kan. App. 

2013) (unpublished opinion) (citing State v. McDaniels, 237 Kan. 767, 771-72, 703 P.2d 

789 [1985]); see also Board of Harvey County Comm'rs v. Whiteman, 23 Kan. App. 2d 

634, 639, 933 P.2d 771 (1997). This means mandamus is appropriate "'"[i]n the absence 

of a statutory right of appeal"'" to redress '""illegal, fraudulent or oppressive official 

conduct."'" Schmidtlien, 278 Kan. at 832.

Because the KWCA is comprehensive and has its own provisions governing what 

orders may be appealed and when, the KJRA does not provide for the right to appeal the 

decision by the Director to deny reimbursement for overpayment of an award. 
8

Accordingly, the district court was correct to dismiss Cincinnati's claim. Relief for 

Cincinnati, if available at all, can only be obtained through a writ of mandamus. Because 

the district court lacked jurisdiction to consider the merits of Cincinnati's claim, this court 

may not acquire jurisdiction on appeal. See Ryser v. State, 295 Kan. 452, 456, 284 P.3d 

337 (2012).

We do not issue advisory opinions. 

Cincinnati next asks this court, "[i]n the interests of judicial economy," to consider 

whether it would be entitled to a writ of mandamus ordering the Director to reimburse it 

for the amount it paid Young in excess of $125,000. This amounts to a request for this 

court to issue an advisory opinion, something it is not empowered to do, so we decline to 

do so. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 897-98, 179 P.3d 366 (2008). 

Affirmed.