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No. 115,763

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TIMMY GLAZE,

Appellant,

v.

J.K. WILLIAMS, LLC, and COMMERCE & INDUSTRY INSURANCE COMPANY,

Appellees.

SYLLABUS BY THE COURT

1.

When a statute is plain and unambiguous, an appellate court 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 determine what the law should or 

should not be. Where there is no ambiguity, the court need not resort to statutory 

construction.

2.

K.S.A. 2011 Supp. 44-523(f)(1) is not ambiguous.

3.

If a claimant's workers compensation claim has not proceeded to a regular hearing, 

a settlement hearing, or an agreed award under the Workers Compensation Act within 

3 years from the date of filing an application for hearing, the employer may file a motion 

to dismiss the claim for lack of prosecution. In order to survive such a motion to dismiss, 

at a minimum, the claimant must have filed a motion to extend the claim prior to 
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expiration of the 3-year time limitation. Only then will the court proceed to determine 

whether there is good cause for the extension.

Appeal from Workers Compensation Board. Opinion filed February 24, 2017. Affirmed.

Daniel L. Smith, of Ankerholz and Smith, of Overland Park, for appellant. 

Ryan D. Weltz and Christopher J. McCurdy, of Wallace, Saunders, Austin, Brown & Enochs, 

Chartered, of Overland Park, for appellees.

Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, for amicus curiae Kansas 

AFL-CIO.

Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.

ARNOLD-BURGER, C.J.: Timmy Glaze's workers compensation claim was 

dismissed by the Kansas Workers Compensation Board (Board) pursuant to K.S.A. 2011 

Supp. 44-523(f)(1), because his claim had not proceeded to hearing within 3 years of 

filing and he had not requested an extension within that 3-year period. It was dismissed in 

spite of the fact that he had not been dilatory in pursuing his claim, he had not abandoned 

his claim, and there was no dispute that he had not reached maximum medical 

improvement. Unfortunately, the statute that requires this result, although inartfully 

drafted, is not ambiguous so we are required to uphold the Board's decision. It is up to the 

legislature to change the statute if it wants to avoid this clearly harsh result in the future. 

In addition, we cannot find that the dismissal of the case denies Glaze his right to be 

heard at a meaningful time and in a meaningful manner under § 18 of the Kansas 

Constitution Bill of Rights. The statute provides Glaze a sufficient opportunity to proceed 

with his claim if he does so under the time requirements of the statute. Accordingly, we 

affirm the decision of the Board dismissing Glaze's claim.
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FACTUAL AND PROCEDURAL HISTORY

In August 2011, Glaze slipped and fell at work, injuring his left side. Glaze filed 

an application for a workers compensation hearing in Kansas on December 5, 2012. 

Glaze lived in Alabama at the time of filing the application. In August 2013, Glaze sent 

respondent J.K. Williams (Williams) expert reports and a demand for the payment of 

permanent total disability benefits. Williams scheduled evaluations for Glaze to attend in 

October 2013 in Kansas City. Glaze refused to attend the evaluations and requested 

rescheduling because Williams had not prepaid the mileage for the trip. The parties 

appeared in court in July 2014 to settle issues related to payment for the trip. 

Williams filed a motion to dismiss on January 4, 2016. The basis for the motion to 

dismiss was that "[c]laimant has failed to move the claim towards Regular Hearing or 

settlement within three years after the date of the filing of the Application for Hearing." 

On January 29, 2016, Glaze filed a request for extension of time to schedule out of state 

depositions and schedule a regular hearing. A hearing on the motions occurred on 

February 3, 2016. The primary issue was whether K.S.A. 2011 Supp. 44-523(f) required 

dismissal of Glaze's claim because he did not file a motion for extension within 3 years of 

his application for a hearing. The administrative law judge (ALJ) ruled that K.S.A. 2011 

Supp. 44-523(f)(1) required her to dismiss the case because Glaze did not file a motion to 

extend time to proceed to regular hearing until after the 3-year limitation on filing such 

motions had passed. The Kansas Workers Compensation Appeals Board affirmed the 

ALJ's decision, with one Board member dissenting.

Glaze appealed.
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ANALYSIS

K.S.A. 2011 Supp. 44-523(f)(1) requires that the Board dismiss Glaze's claim. 

On appeal, Glaze argues that K.S.A. 2011 Supp. 44-523(f)(1) is ambiguous and 

does not require dismissal of his claim. The Kansas AFL-CIO filed an amicus curiae

brief in support of Glaze's argument. 

K.S.A. 2011 Supp. 44-556(a) directs that final orders of the Workers 

Compensation Board are subject to review under the Kansas Judicial Review Act, K.S.A. 

77-601 et seq., as amended. 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).

When a statute is plain and unambiguous, an appellate court 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. Hoesli v. Triplett, Inc., 

303 Kan. 358, 362, 361 P.3d 504 (2015). The court must give effect to the statute's 

express language rather than determine what the law should or should not be. 303 Kan. at 

362. 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 legislative history to construe the legislature's intent. 303 Kan. at 362.

K.S.A. 2006 Supp. 44-523(f) "provides a way for the workers compensation 

division to cleanse its house of stale claims." Welty v. U.S.D. No. 259, 48 Kan. App. 2d 

797, 800, 302 P.3d 1080 (2012). Subsection (f) was added to the statute during the 2006 

legislative session, 48 Kan. App. 2d at 800, and amended in 2011. L. 2011, ch. 55, sec.
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17. The 2011 version of the statute is the version of the statute under which the ALJ made 

her ruling in Glaze's case. The relevant amended language is as follows:

"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 for hearing . . . the employer shall be permitted to file with 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 the claimant cannot establish 

good cause, the claim shall be dismissed with prejudice by the administrative law judge 

for lack of prosecution." K.S.A. 2011 Supp. 44-523(f)(1).

Glaze breaks the statute down into individual sentences. He argues that the first 

sentence requires employers to establish a lack of prosecution as grounds for dismissal. 

Glaze says that this sentence "does not state that the mere passage of three years 

constitutes a lack of prosecution. Rather, the statutory language provides that the passage 

of three years is the minimum required before a respondent can assert a claim of lack of 

prosecution and seek dismissal of the claimant's case." However, this interpretation is 

faulty because the statute does not require the employer to establish lack of prosecution. 

The fourth sentence of the statute requires the ALJ to dismiss the claim for lack of 

prosecution if the claimant cannot show good cause, whether or not the employer proves 

that the claimant has failed to prosecute. "The statute equates a lack of prosecution with a 

claimant taking more than three years after the filing of an application for hearing to get 

to a regular hearing, settlement hearing or award." Hackler v. Peninsula Gaming 

Partners, LLC, No. 1,060,759, 2016 WL 858312, at *5 (Kan. Work. Comp. App. Bd.

February 25, 2016).
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Glaze also argues that that the third sentence of the statute is ambiguous. The third 

sentence gives the ALJ discretion to grant an extension for good cause, "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." K.S.A. 2011 Supp. 44-523(f)(1). Glaze argues that it is unclear 

whether the last clause in sentence three "applies to the immediate description of the 

conclusive presumption of good cause or is to be stretched somehow to apply to the 

initial independent main clause as the Board had found."

It is clear from the plain language of the statute that the last clause, requiring the 

claimant to make a motion to extend within 3 years, applies to the opening clause of the 

sentence. The opening clause gives the ALJ discretion to grant a motion for extension for 

good cause, but the final clause states that the motion for extension must be filed within 

3 years. The clause in the middle of the sentence simply provides the circumstances 

under which good cause will be presumed—when the claimant has not reached maximum 

medical improvement—and does not relate to the motion to extend. Accepting Glaze's 

interpretation of the statute would mean that the conclusive presumption of good cause 

would only apply if the claimant filed a motion to extend within the 3-year limit. We can 

think of no logical reason why the legislature would limit the use of the presumption in 

this manner.

This court recently reached the same conclusion in Breedlove v. Richardson 

Hauling Inc., No. 114,600, 2016 WL 5844575 (Kan. App. 2016) (unpublished opinion), 

examining K.S.A. 2007 Supp. 44-523. Breedlove was decided after the parties in this case 

wrote their briefs, so neither party discusses it. While it involves the 2007 statutory 

language, the analysis is still applicable to the 2011 statutory language. The 2007 

language was as follows:
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"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 

filing an application for hearing . . . shall be dismissed by the administrative law judge 

for lack of prosecution. 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 five year limitation provided for herein." K.S.A. 2007 Supp. 44-523(f). 

In Breedlove, the claimant's claim was dismissed for lack of prosecution under 

K.S.A. 2007 Supp. 44-523(f) because more than 5 years had passed since the claimant 

had made an application for a workers compensation hearing. The claimant had filed a 

motion for extension, but it was untimely because the motion was made after the 5-year 

time limit. The court relied upon the language in K.S.A. 2007 Supp. 44-523(f) that stated 

"that a motion for extension of time for good cause is timely 'provided such motion to 

extend is filed prior to the five year limitation provided for herein.'" 2016 WL 5844575, 

at *6. Based on this language, the court held that the claimant "needed to request an

extension of time before the 5-year time limit to prosecute the claim had elapsed. 

Otherwise, the ALJ would no longer have jurisdiction to consider the motion for 

extension of time." 2016 WL 5844575, at *6.

The Breedlove court noted that 44-523(f) had been revised since the notice of 

appeal was filed in the case and that the current revision simply changed the time limit 

for lack of prosecution from 5 years to 3 years. 2016 WL 5844575, at *4. However, the 

remaining statutory language that the Breedlove court relied upon, "provided such motion

to extend is filed prior to the [five/three] year limitation provided for herein," remains

unchanged. Compare K.S.A. 2007 Supp. 44-523(f) with K.S.A. 2011 Supp. 44-523(f)(1). 

This is exactly the portion of the statute that Glaze challenges as ambiguous. Because the 

statute contains the same operative language now as it did in the Breedlove decision, we 

find the court's interpretation of the statute in Breedlove to be persuasive.
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There have also been several Board decisions that interpreted K.S.A. 2011 Supp. 

44-523(f)(1) in the same way as the ALJ in this case interpreted it. See Hackler, 2016 

WL 858312, at *5 ("[A] motion to extend must be filed within the three years after an 

application for hearing is filed and claimant must prove good cause to warrant an 

extension. . . . In this case, claimant had good cause, but filed her motion outside of the 

three year time frame."); Hoffman v. Dental Central, P.A., No. 1,058,645, 2015 WL 

4071473, at *5 (Kan. Work. Comp. App. Bd. June 26, 2015) (noting that "the statute is 

very specific in its requirement that the motion to extend be filed prior to the running of 

the three year limitation"); Ramstad v. U.S.D. 229, No. 1,059,881, 2015 WL 5462026, at 

*2 (Kan. Work. Comp. App. Bd. August 31, 2015) ("The motion [for extension] must be 

filed prior to the expiration of the three-year period. No such motion was filed. The plain 

language of K.S.A. 2011 Supp. 44-523(f)(1) requires dismissal."). Appellate courts are 

not required to give significant deference to an agency or board's statutory interpretation. 

Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs., 290 Kan. 446, 457, 228 

P.3d 403 (2010). However, the Board decisions provide further evidence that the statute 

is not ambiguous.

Glaze points to a dissenting opinion in the Hackler case as evidence that the 

statute is ambiguous. Like Glaze, the dissenting Board member in Hackler—the same 

Board member who dissented in Glaze's case, Thomas D. Arnhold—looked at the 

sentences in the statute in isolation and concluded that "regardless of the inevitable 

passage of time, the first sentence of K.S.A. 2011 Supp. 44-523(f) clearly states a lack of 

prosecution is a condition necessary for a respondent to file a motion to dismiss." 

Hackler, 2016 WL 858312, at *6 (Arnhold, dissenting). Board member Arnhold also 

argued that the fourth sentence ("If the claimant cannot establish good cause, the claim 

shall be dismissed with prejudice by the administrative law judge for lack of 

prosecution.") requires a judge to find both a lack of prosecution and a lack of good cause 

before dismissing the case. 2016 WL 858312, at *7. While this is a creative interpretation 
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of the statute, it ignores the third sentence which states that a motion to extend for good 

cause must be filed within 3 years. K.S.A. 2011 Supp. 44-523(f)(1).

In sum, we find that K.S.A. 2011 Supp. 44-523(f)(1) is not ambiguous. If a 

claimant's workers compensation claim has not proceeded to a regular hearing, a 

settlement hearing, or an agreed award under the Workers Compensation Act within 3

years from the date of filing an application for hearing, the employer may file a motion to 

dismiss the claim for lack of prosecution. In order to survive such a motion to dismiss, at 

a minimum, the claimant must have filed a motion to extend the claim prior to expiration 

of the 3-year time limitation. Only then will the court proceed to determine whether there 

is good cause for the extension.

Because the 3-year time limitation in K.S.A. 2011 Supp. 44-523(f)(1) is not 

ambiguous, the statute authorized the dismissal of Glaze's claim. The Board's decision is 

affirmed. The court must give effect to the statute's express language rather than 

determine what the law should or should not be. See 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.

As applied to the facts of this case, K.S.A. 2011 Supp. 44-523(f)(1) does not represent a 

denial of due process under § 18 of the Kansas Constitution Bill of Rights.

Glaze also argues that the Board's application of K.S.A. 2011 Supp. 44-523(f)(1)

to dismiss his claim deprived him of his procedural and substantive due process rights in 

violation of § 18 of the Kansas Constitution Bill of Rights. The appellees argue that there 

was no procedural due process violation and that Glaze failed to preserve any substantive 

due process issue. Glaze does not make distinct procedural or substantive due process 

arguments; rather, his primary argument is that the application of K.S.A. 2011 Supp. 

44-523(f)(1) deprived him of an opportunity for a full and complete hearing. Glaze made 
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this same argument to the ALJ, so the issue of whether Glaze was given an opportunity to 

be heard is preserved for review.

Determining a statute's constitutionality is a question of law subject to unlimited 

review. The appellate courts presume statutes are constitutional and must resolve all 

doubts in favor of a statute's validity. Courts must interpret a statute in a way that makes 

it constitutional if there is any reasonable construction that would maintain the 

legislature's apparent intent. Solomon v. State, 303 Kan. 512, 523, 364 P.3d 536 (2015).

Section 18 of the Kansas Constitution Bill of Rights states: "All persons, for 

injuries suffered in person, reputation or property, shall have remedy by due course of 

law, and justice administered without delay." "The basic elements of procedural due 

process are notice and an opportunity to be heard at a meaningful time and in a 

meaningful manner." State v. Wilkinson, 269 Kan. 603, 608, 9 P.3d 1 (2000). Because 

Glaze is challenging his opportunity to be heard, he is making a procedural due process 

claim.

Glaze argues that he "was afforded a notice of a hearing" but that "the hearing 

itself did not afford an opportunity for a full hearing." Glaze is referencing the hearing 

mandated by K.S.A. 2011 Supp. 44-523(f)(1). The statute says that when an employer 

files an application for dismissal based on lack of prosecution the matter shall be set for 

hearing and the claimant notified. K.S.A. 2011 Supp. 44-523(f)(1). Glaze was provided 

notice of this hearing, but Glaze describes the hearing as a "meaningless exercise" 

because the ALJ did not consider his argument that he had good cause for an extension. It 

is true that Glaze did not have the opportunity to present his good cause for extension 

arguments at this hearing, but that does not mean that Glaze did not have the opportunity 

to present the arguments at all. K.S.A. 2011 Supp. 44-523(f)(1) gives claimants 3 years to 

proceed to a regular hearing or file a motion to extend. Glaze had ample opportunity 

within those 3 years to move forward with his case. But he did not. Due process 
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requirements were satisfied because Glaze was given this opportunity, and Glaze cannot 

now claim that his failure to take advantage of that opportunity violates his constitutional 

rights.

Affirmed.