1 No

. 11 6,167
IN THE COURT OF APPE ALS OF THE STATE OF KANSAS

H ELEN L OREE K NOLL , Appell ee ,

v. O LATHE S CHOOL D ISTRICT N O

. 233 ,

Appell ant

.

SYLLABUS BY THE COUR T

1. Appellate courts have unlimited review of questions involving the interpretation or construction of a statute, owing no deference to the agency's or the Board's interpretation or construction.

2. When a statute is plain and unambiguous, an appellate cour t should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. The court must give effect to the statute's express language rather than d etermine what the law should or should not be.

3. The 2011 amendment that changed t he time limit ation for dismiss ing a worker s compensation claim from 5 to 3 years and filing a motion to extend that time limit ation applie s retroactively to the claim for benefits filed in 2009 here because the 2011 amendment to K.S.A. 44

- 523(f) , which was originally enacted in 2006, is procedural in2

nature and retrospective application would not prejudicially affect any party's substantive or vested rights.

Appeal from Workers Compensation Board. Opinion filed June 23 , 201 7 . Reversed and remanded with directions.
Kip A. Kubin , of Bottaro, Kubin & Yocum, P.C., of Leawood , f or appellant.

James R. Shetlar , of James R. Shetlar Law Offices, of Overland Park, for appellee.

Before S TANDRIDGE , P.J

. , M C A NANY , J., and H EBERT , S. J.

S TANDRIDGE , J.: Olathe School District No. 233 (District) appeals from the Workers Compensation Board's (Board) de cision affirming the administrative law judge's (ALJ) determination t hat a claim by its former employee, Helen Loree Knoll, was not time

- barred under K.S.A. 200 9 Supp. 44

- 523(f) for lack of prosecution. On appeal, the District argues that the Board erred in failing to retroactively apply the version of the statute in effect at the time Knoll filed her application for hear ing . See K.S.A. 2016 Supp. 44

- 523(f)(1)

. For the reasons stated below, we agree that the changes made to the statute after Knoll's injury retroactively apply; therefore, we must reverse and remand the matter to the Board with directions to dismiss the claim.

F ACTS The relevant facts are not in dispute. On October 29, 2009, Knoll fell in a parking lot while workin g for the District. As a result, Knoll began receiving medical treatment, which included surger ies on her right knee and right hip.
At the time of the injury, the relevant portion of K.S.A. 2009 Supp. 44

- 523(f) directed the ALJ to dismiss any pending claim that had not proceeded to final hearing,3

settlement hearing, or an agreed awa rd within 5 years from the date the a pplication for h earing was filed. The statute permitted the ALJ, however, to grant an extension of this time limitation for good cause shown, provided the motion was filed before the 5

- year time limitation expired. K.S.A. 2009 Supp . 44

- 523(f).

Effective Ma y 15, 2011, K.S.A. 44

- 523(f) was amended to reduce from 5 years to 3 years the deadline before which the claimant had to proceed to final hearing. The ALJ was still permitted to grant an extension of this time limitation for good cause shown, provided the motion was filed before the 3

- year time limitation expired. K.S.A. 2011 Supp. 44

- 523(f) (1)

.
On November 14, 2011, after the amendment to the statute reducing the time period from 5 years to 3 years became effective, Knoll filed an application for hearing with the Division of Workers Compensation (Division)

.
On March 11, 2014, Knoll's treating doctor made a determination that she had reached maximum medical improvement

. On February 19, 2015, the District moved to dismiss Knoll's claim for lack of prosecution under 44

- 523(f)(1) because more than 3 years had passed since Knoll filed her applicat ion for hearing.
On March 4, 2015, Knoll filed a motion requesting an extension of time for good cause under 44

- 523(f)(1)

. Knoll later ame nded her argument, claiming that the District's motion to dismiss should be denied because the version of the statute in effect at the time of her injury, K.S.A. 2009 Supp. 44

- 523(f), applied to her claim ; thus, her motion for extension of time was timely because it was filed before the applicable 5

- year time limitation expired.
The ALJ agreed with Knoll, finding that K.S.A. 200 9 Supp. 44

- 523(f), the version of the statute in effect on the date of Knoll's injury, controlled. Because Knoll had filed a4

moti on for extension of time before expiration of the 5

- year time limit, the ALJ denied the District's m otion to dismiss. The case proceeded to a regular hearing before the ALJ, where the District renewed its motion to dismiss. The ALJ affirmed its prior rulin g that Knoll's case was not subject to dismissal and entered an award of compensation in Kn oll's favor.
The District applied for review with the Board, seeking review only of the ALJ's denial of its motion to dismiss under 44

- 523(f)(1)

. The Board affirmed the ALJ's ruling. Citing Welty v. U.S.D. No. 259 , 48 Kan. App. 2d 797, 799, 302 P.3d 1080 (2012), the Board found that the version of K.S.A. 44

- 523(f) in effect on the date of Knoll's injury applied, giving her 5 years within which to bring her claim to f inal hearing or to file her motion for extension of time. The Board also concluded that 44

- 523(f)(1) did not retroactively apply to ba r Knoll's claim.

A NALYSIS

The issue before the c ourt is whether the Board erred in this matter by applying the 20 09 version of K.S.A. 44

- 523 (f) , which has a 5

- year time limitation for bringing a claim to final hearing, as opposed to retroactively applying the 2011 amended version of the statute, which has a 3

- year time limitation. If the 2009 version of the statute is

a pplicable, then Knoll's motion for extension of time to bring her claim to final hearing was timely filed and the Board's decision must be affirmed on that issue. If the 2011 amended version of the statute retroactively applies, then Knoll's motion for ext ension of time was untimely and the ALJ did not have authority to proceed to final hearing but instead was required to dismiss the claim

. Appellate courts have unlimited review of questions involving the interpretation or construction of a statute, owing no deference to the agency's or the Board's interpretation or construction. Fernandez v. McDonald's , 296 Kan. 472, 475, 292 P.3d 311 (2013).5

When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behi nd that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Hoesli v. Triplett, Inc. , 303 Kan. 358, 362, 361 P.3d 504 (2015). The court must give effect to the statute's express language rat her than determine what the law should or should not be. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislati ve history to construe the legislature's intent. 303 Kan. at 362.
Enacted by the legislature in 2006, subsection (f) of K.S.A. 44

- 523 created a new require ment that the Division had to dismiss claims that ha d not proceeded to final hearing within 5 years from the date of filing an application for hearing when the claimant ha d failed to file a motion showing good cause to extend the deadline prior to the 5

- year limitation. When it originally was enacted, subsection (f) provided as follows:

"Any claim that has not proceeded to final hearing, a settlement hearing, or an agreed award under the workers compensation act within five years from the date of filin g an application for hearing . . . shall be dismissed by the administrative law judge for lack of prose cution. The administrative law judge may grant an extension for good cause shown, which shall be conclusively presumed in the event that th e claimant has not reached maximum medical improvement, provided such motion to extend is filed prior to the five yea r limitation provided for herein. This section shall not affect any future benefits which have been left open upon proper application by an award or settlement." K.S.A. 2006 Supp. 44

- 523(f).
Since Knoll's injury in 2009, however, the legislature amended K .S.A. 44

- 523(f). See L. 2011, ch. 55, sec. 17. Relevant here, this amendment changed t he time limit for lack of prosecution and the time for filing a motion for extension of time fr om 5 years to 3 years:6 " (f)(1) In any claim that has not proceeded to a regular hearing, a settlement hearing, or an agreed award under the workers compensation act within three years from the date of filing an application fo r hearing pursuant to K.S.A. 44

- 534, and amendments thereto, the employer shall be permitted to file wi th the division an application for dismissal based on lack of prosecution. The matter shall be set for hearing with notice to the claimant's attorney, if the claimant is represented, or to the claimant's last known address. The administrative law judge may grant an extension for good cause shown, which shall be conclusively presumed in the event that the claimant has not reached maximum medical improvement, provided such motion to extend is filed prior to the three year limitation provided for herein. If th e claimant cannot establish good cause, the claim shall be dismissed with prejudice by the administrative law judge for lack of prosecution. Such dismissal shall be considered a final disposition at a full hearing on the claim for purposes of employer reim bursement from the fund pursuant to subsection (b) of K.S.A. 44

- 534a, and amendments thereto. " K.S.A. 201 1 Supp. 44

- 523(f)(1).

In support of i ts argument that the court erred in ap plying the 2009 version of K.S.A. 44

- 523(f) (5

- year window) as opposed to r etroactively applying the 2011 amended version of the statute (3

- year limitation), the District alleges that it is the date the claimant filed the application for hearing that controls which version of K.S.A. 44

- 523(f) applies. Specifically, the District c ontends the original and amended versions of the statute both look to this filing date as the trigger to start the time period running and each version also makes reference to the possibility of future amendments. The District claims that if the legislatur e would have wanted the date of injury to control application of K.S.A. 44

- 523, it would have omitted the language about amendments

. The District's argument is premised on language from both versions of K.S.A. 44

- 523(f), which states that the time period set forth in the statute begins running "from the date of filing an application for hearing pursuant to K.S.A. 44

- 534, and amendments thereto." See K.S.A. 2006 Supp. 44

- 523(f); K.S.A. 2016 Supp. 44

- 523(f)(1). But the fact that the date of filing the applic ation for hearing starts the clock on the time period has no bearing on which version of the statute applies. And the language relating to amendments7

is merely a reference to the statutory provision under which an application for hearing is filed; we find nothing in this language to indicate that the legislature intended the application for hearing to trigger which version of the statute controls.
Alternatively, the District argues that even if the date of injury determines which version of K.S.A. 44

- 523( f) applies, the 2011 statutory amendments should apply retroactively to bar Knoll's cl aim. As a general rule, a statute operates prospectively unless (1) the statutory language clearly indicates the legislature intended the statute to operate retrospective ly or (2) the change is procedural or remedial in nature. See Norris v. Kansas Employment Security Bd. of Review , 303 Kan. 834, 841, 367 P.3d 1252 (2016). Under either exception, the statute may not be applied retrospectively if it would prejudicially affe ct a party's substantive or vested rights. Brennan v. Kansas Insurance Guaranty Ass'n , 293 Kan. 446, 460, 264 P.3d 102 (2011). "Procedural laws are those that concern 'the manner and order of conducting suits

— in other words, the mode of proceeding to enfor ce legal rights.' [Citation omitted.] Substantive laws establish the 'rights and duties of parties.' [Citation omitted.]" Rios v. Board of Public Utilities of Kansas City , 256 Kan. 184, 191, 883 P.2 d 1177 (1994).
K.S.A. 2016 Supp. 44

- 523(f)(1) does not e xpressly state that the amendments enacted in 2011 are to be applied retroactively. But the District asserts that the amendment at issue in this case is procedural and applies retroactively in that it "only deal[s] with the mechanics of how the claimant en forces her rights, and it does not define the legal right or create any rights or obligatio ns."
In response to this assertion, Knoll points out that the District's argument in favor of retroactive application is contrary to our decision in Welty . In that case, the claimant was injured in 2003 and filed an application for hearing in 2004, but the matter did not proceed to a final hearing until 2010. T he employer asked the ALJ to dismiss the case pursuant to K.S.A. 2006 Supp. 44

- 523(f) because the claimant's case had not proceeded8

to a final hearing within 5 years of the filing of the application for a hearing. The ALJ held that K.S.A. 2006 Supp. 44

- 523(f) should operate prospectively and did not affect the claimant's case because her accident occur red in 2003, prior to the effective date of the statute. The Board affirmed the ALJ's decision. 48 Kan. App. 2d 798

- 99. On review, we rejected the employer's argument that K.S.A. 2006 Supp. 44

- 523(f) was procedural and therefore should apply retroactively. Specifically, we noted the absence of language in the statute indicating a legislative intent that it be applied retroactively and found that the statutory amendment implicated the substantive rights of injured workers by extinguish ing rights and remedies the claimant had prior to its enactment. We concluded that the claimant's substantive rights were determined by the law in existence at the time of her injury and affirmed the Board's ruling. 48 Kan. App. 2d at 801

- 03.

The decision in Welty is sound base d on the facts presented in that case. But Knoll's reliance on the outcome in that case is misplaced. U nlike the facts presented here, the newly enacted subsection of the statute under consideration by the court in Welty was not a procedural amendment to a n existing statute but an entirely new subsection supplementing the existing statute

. Prior to the amendments in 2006, which created K.S.A. 44

- 523(f), there was no provision in the Kansas Workers Compensation Act that required the Division to dismiss a cla im for want of prosecution in the absence of a timely motion for extension of time for good cause shown . The 2006 amendment adding subsection (f) established that duty. In doing so, the legislature provided a window of time within which a claimant either must proceed to a hearing or file a motion for extension of time to do so. Thus , to a certain extent, the newly enacted subsection (f) extinguished rights the claimant had prior to its enactment by establishing a limitation on how long the claimant had to pursue a claim. Again, t he Division had no ability to dismiss a claim prior to 2006. Th erefore , the court was correct in holding that the statute

c ould not apply retroactively because it extinguished substantive rights the claimant previously held.9

But t he 2011 amendment to the already existing subsection (f) operate s differently. The substantive rights and duties of the parties

— the duty of the Division to dismiss a claim for want of prosecution in the absence of a timely motion for extension of time for good cause shown

—

remained unchanged. The 2011 amendment to subsection (f) did not affect Knoll's substantive right to file her application for h earing or to pursue her claim for compensation . Her claim was subject to dismissal for want of prosecution both before and after the 2011 amendment

. Instead, the legislature's decision to shorten the time period from 5 to 3 years merely c hanged the manner in which Knoll could proceed in enforcing those substantive rights. That change is procedural, not substantive. The court must give effect to the statute' s express language rather than determine what the law should or should not be. Hoesli , 303 Kan. at 362. It is up to the legislature to change the statute if it wants to avoid this clearly harsh result in the future

.
In sum, we conclude t he 2011 amendment t o K.S.A. 44

- 523(f) that changed from 5 to 3 years t he time limit ation for dismiss ing a workers compensation claim and filing a motion to extend that time limit ation is procedural in nature and retrospective applic ation of the statute as amended w ould not prejudicially affect Knoll's s ubstantive or vested rights

. Applying the 3

- year time limitation in the 2011 amendment retroactively to Knoll's claim, we find her March 4, 2015, motion requesting an extension of time to proceed to a hearing was un timely filed and therefore her claim was su bject to dismissal for lack of prosecution.

Reversed and remanded with direction to dismiss Knoll's claim for benefits.