1

NOT DESIGNATED FOR PUBLICATION

No. 122,239

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DANIEL WHITE,

Appellee,

v.

RGV PIZZA HUT and ARGONAUT INSURANCE CO.,

Appellants.

MEMORANDUM OPINION

Appeal from Workers Compensation Board. Opinion filed June 11, 2021. Affirmed and 

remanded with directions.

Kip A. Kubin, of Martin Pringle Attorneys at Law, of Overland Park, for appellants. 

Brian D. Pistotnik, of Pistotnik Law Offices, L.L.C., of Wichita, for appellee.

Before BRUNS, P.J., GREEN and ATCHESON, JJ.

PER CURIAM: RGV Pizza Hut contends that as a Texas corporation it cannot be 

liable under the Kansas Workers Compensation Act merely because it contracted with 

Shomberg, Inc., a Kansas corporation, to paint restaurants in its home state. Daniel 

White, an employee of Shomberg, fell and was seriously injured working at one of 

RGV's restaurants. But Shomberg had neither workers compensation insurance nor the 

financial resources or a legal obligation to pay benefits that might be due White. 

Although RGV has no ongoing ties to Kansas, the Workers Compensation Appeals Board 

ruled that the company can be legally liable for those benefits as a statutory employer. 

RGV has appealed that ruling.
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The Kansas Workers Compensation Act covers employees of Kansas corporations 

who are injured while working outside the state. K.S.A. 44-506. So Shomberg could be 

held to account for White's covered injuries. Likewise, under the Kanas Workers 

Compensation Act, a corporation that subcontracts out work that is an integral or inherent 

part of its business may be liable for benefits due employees of the subcontractor. K.S.A. 

44-503(a). On appeal, RGV has failed to show that, in tandem, those provisions do not 

impose workers compensation liability on it. Moreover, by contracting with a Kansas 

business for onsite labor, RGV submitted to personal jurisdiction in Kansas for workers 

compensation proceedings, consistent with the Due Process Clause of the Fourteenth 

Amendment to the United States Constitution.

The Board also found that White properly availed himself of the protections in 

K.S.A. 2020 Supp. 44-523(f)(2) to avert having his claim for benefits dismissed for lack 

of prosecution. 

We find no error in the Board's resolution of those points. We, therefore, affirm 

the Board's decision and remand this case for further proceedings consistent with this 

opinion.

FACTUAL AND PROCEDURAL BACKGROUND

For purposes of the issues on appeal, the underlying facts can be stated succinctly. 

RGV owns and operates 45 Pizza Hut restaurants in Texas. Under the franchise 

agreement with Pizza Hut, RGV must run the restaurants in conformity with detailed 

rules governing product preparation, physical layout and appearance, and other matters. 

Pertinent here, the agreement requires RGV to keep the roofs of the restaurants in good 

repair and specifies the color the roofs must be painted. Pizza Hut may terminate the 

franchise agreement if RGV violates its terms. 
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RGV has no restaurants in Kansas and does not otherwise extensively or regularly 

conduct business in this state. Over the years, RGV has contracted with Shomberg from 

time to time to clean, repair, and paint the roofs on its Pizza Hut restaurants. This is 

skilled work done with specialized equipment that requires some training and experience 

to operate. Likewise, the work is done on pitched roofs well above ground level, so there 

is a predictable, if statistically small, risk of injury for a literal misstep. RGV has never 

had its own employees do any work on the roofs. Nor does the company own equipment 

used to clean or paint the roofs.

In April 2016, Chris Wicker, the longtime general manager of RGV and a 

principal in the company, contacted Christian Shomberg, the owner of Shomberg, to 

arrange for the maintenance and painting of the roofs of about 10 of the Pizza Hut 

restaurants. Christian Shomberg had begun to wind down that business in favor of other 

commercial enterprises. Nonetheless, he agreed to have Shomberg do the roofing work 

for RGV. The communications between Wicker and Christian Shomberg consisted 

largely of e-mails; the two companies never signed a written contract for the 2016 work.

Christian Shomberg placed an advertisement for workers skilled in commercial 

roof maintenance and painting. White responded, and he was hired. Christian Shomberg 

and White apparently did a little work before heading to Texas—mostly so Christian 

Shomberg could assess White's skills. For this appeal, we consider White to be an 

employee of Shomberg under the Workers Compensation Act. That employment 

relationship was not in dispute before the Board. 

Christian Shomberg, White, and a third person went to Texas to do the work for 

RGV. In November 2016, White fell from the roof of one of the restaurants and seriously 

injured his leg. The injury required surgery. White later testified that he walked with a 

limp and began experiencing back and hip pain. Again, for purposes of this appeal, there 

is no dispute White's injury occurred in the scope and course of his employment with 
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Shomberg and is covered under the Workers Compensation Act. Everyone also agrees 

Shomberg is not available as a source of workers compensation benefits, and the 

company has been dismissed from this action. The principal issues before us are whether 

RGV may be substituted for Shomberg as a statutory employer under K.S.A. 44-503 and 

whether that substitution would offend the Due Process Clause by imposing personal 

jurisdiction over RGV despite its limited contacts with Kansas as the forum state. Given 

the procedural progression of the case, neither the administrative law judge nor the Board 

has considered what benefits, if any, White may be entitled to receive.

LEGAL ANALYSIS

RGV has appealed adverse rulings of the Board, so this appeal comes to us 

through the Kansas Judicial Review Act, K.S.A. 77-601 et seq. K.S.A. 2020 Supp. 44-

556(a). The scope of our review and the kinds of errors we may correct are set out in 

K.S.A. 77-621. RGV bears the burden of establishing reversible error. K.S.A. 77-

621(a)(1). We do not see that the primary issues turn on material factual disputes; we, 

therefore, exercise review without deference to the Board's resolution of what are 

functionally questions of law. See Mera-Hernandez v. U.S.D. 233, 305 Kan. 1182, 1185, 

390 P.3d 875 (2017).

RGV's Statutory Liability 

Shomberg and White had an employment relationship that triggered coverage 

under the Workers Compensation Act. As provided in K.S.A. 44-506, that coverage 

extended to the on-the-job injury White suffered in Texas.

The Workers Compensation Act also provides that commercial entities contracting 

out work may in some circumstances become liable for benefits due the subcontractor's 

employees for on-the-job injuries sustained while performing the subcontract. K.S.A. 44-
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503(a). The principal contracting out the work is then considered a "statutory employer" 

under the Workers Compensation Act. See Bright v. Cargill, Inc., 251 Kan. 387, 390, 837 

P.2d 348 (1992). The Board found RGV to be a statutory employer of White.

Under K.S.A. 44-503(a), a principal becomes a statutory employer if it 

subcontracts work that is "part of [its] trade or business" or that it "has contracted to 

perform." The Board found that RGV's business included maintaining and painting the 

roofs of the Pizza Hut restaurants, thus comporting with the first test for a statutory 

employer. One Board member concurred, finding that RGV had contracted with Pizza 

Hut to maintain and paint the restaurant roofs and, in turn, subcontracted that work to 

Shomberg, satisfying the second test in K.S.A. 44-503(a). We discount the concurrence. 

The franchise agreement obligates RGV to keep up the appearance of its restaurants but 

does not specify a means for accomplishing that obligation. In other words, RGV did not 

contract with Pizza Hut to perform the roof maintenance and painting with its own 

employees. So RGV wasn't contracting out specific work duties it had agreed to perform 

when it hired Shomberg.

The Kansas Supreme Court has developed two independent criteria for 

determining when a principal becomes a statutory employer under the first test set out in 

K.S.A. 44-503(a): (1) the subcontracted work is "inherent in and an integral part of [its] 

trade or business"; or (2) the subcontracted work "ordinarily [would] have been done by 

[its] employees." Hanna v. CRA, Inc., 196 Kan. 156, Syl. ¶ 1, 409 P.2d 786 (1966); see 

Bright, 251 Kan. 387, Syl. ¶ 3 (endorsing Hanna criteria). Either is sufficient to impose 

statutory employer status under the Workers Compensation Act. In Bright, the court 

refined the first criterion to focus the assessment of inherency and integrality on whether 

similar business entities perform the work with their own employees. 251 Kan. at 399. 

Thus, the first criterion looks at whether businesses in a particular industry or commercial 

field typically perform the work with their own employees. If so, a business 

subcontracting the work will be considered a statutory employer of the subcontractor's 
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workers. The second criterion looks at what the responding employer itself typically 

does. If it usually performs the work but subcontracted on a specific occasion, it becomes 

the statutory employer of the subcontractor's workers. Here, everyone agrees the second 

criterion does not apply to RGV, since it does not do roof maintenance and painting with 

its own employees and never has. 

The operative language in K.S.A. 44-503(a) has remained intact through multiple 

revisions of the Workers Compensation Act. The standards for a statutory employer 

continue to be those set out in Hanna as modified in Bright. See Ramirez v. Garay's 

Roofing, No. 119,948, 2019 WL 3367831, at *3-4 (Kan. App. 2019) (unpublished 

opinion). 

On appeal, RGV argues the Board erred in holding it to be White's statutory 

employer because maintaining and painting the roofs of the Pizza Hut restaurants is 

neither inherent in nor integral to its business. RGV submits its business is making and 

selling pizzas—something it can do with or without a Pizza Hut franchise. So if RGV 

declined to keep up the roofs or painted them an unapproved color, it might lose its 

franchise, but it could still sell pizzas. RGV, therefore, says what it does with the roofs 

cannot be so central to its business as to render it a statutory employer of White. 

As RGV has framed and argued the point, we disagree. The premise of the 

argument seems to be amiss. RGV is not simply in the business of selling pizzas; it is in 

the business of selling Pizza Hut pizzas. As a franchisee, RGV benefits from Pizza Hut's 

national marketing and its strategic development of innovative twists on pizza, calzones, 

and other menu items. More broadly, however, Pizza Hut intentionally cultivates a 

known and largely uniform customer experience across its flagged restaurants from 

exterior appearance to available menu items to the actual preparation and presentation of 

the food. The deliberate and exhaustive homogeneity invites people familiar with one 

Pizza Hut to patronize others precisely because of the comfortable predictability. The 
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exacting requirements in the franchise agreement are an integral part of the commercial 

enterprise that is Pizza Hut. 

RGV's argument, therefore, fails to undercut the Board's determination of statutory 

employer status under K.S.A. 44-503(a). In the absence of any other developed 

arguments from RGV challenging the Board's conclusion, we do not explore the point 

further. See State v. Bradford, 311 Kan. 747, 752-53, 466 P.3d 930 (2020).

Personal Jurisdiction Over RGV

RGV argues that it lacks sufficient minimum contacts with Kansas to be held to 

answer in adjudicatory proceedings here. Under the Due Process Clause, a party must 

have some demonstrable connection to the forum state establishing personal jurisdiction 

and, thus, permitting the proceedings to go forward. Otherwise, the proceedings against 

that party offend basic notions of "fair play" and should not be allowed. BNSF Railway 

Co. v. Tyrrell, 581 U.S. ___, 137 S. Ct. 1549, 1558, 198 L. Ed. 2d 36 (2017); 

International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 

(1945). Constitutionally sufficient personal jurisdiction may be based on a party's general 

contacts with the forum state or contacts arising specifically from the matter being 

adjudicated. Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. ___, 137 

S. Ct. 1773, 1779-80, 198 L. Ed. 2d 395 (2017). General jurisdiction derives from a 

corporation's "continuous and systematic" contacts with or presence in the forum state

and must be extensive. BNSF Railway, 137 S. Ct. at 1558. RGV does not have those 

kinds of ties to Kansas.

Here, there is no dispute that RGV sought out and entered into a contract with 

Shomberg knowing the company was based in Kansas. The contract was never reduced to 

writing, and all of its terms may have been difficult to tease out of the communications 

between Wicker and Christian Shomberg. But there plainly was an agreement requiring 
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Shomberg to perform labor-intensive work on a significant number of RGV's restaurants. 

Despite the nature of the contracted services, RGV did not require Shomberg to establish 

it had workers compensation insurance. White's workers compensation claim equally 

plainly related to the contractual relationship between RGV and Shomberg. That is 

enough to satisfy the requirements of the Due Process Clause for personal jurisdiction 

over RGV in Kansas to adjudicate White's workers compensation claim.

But simply because Party A, a Kansas resident, contracts with Party B, a Texas 

resident, Kansas does not automatically acquire personal jurisdiction over Party B to 

litigate a breach of contract claim against it. See Walden v. Fiore, 571 U.S. 277, 285-86, 

134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014). For example, a tourist from Kansas who 

ordered a pizza at one of RGV's restaurants presumably could not later sue the company 

in the Kansas courts for breach of contract or in tort because the food had been 

adulterated. See Dirks v. Carnival Cruise Lines, 642 F. Supp. 971, 973-74 (D. Kan. 

1986); Dunham v. Hunt Midwest Entertainment, Inc., 2 Neb. App. 969, 987, 520 N.W.2d 

216 (1994) (Missouri amusement park's general advertising in Nebraska insufficient to 

create personal jurisdiction there for injuries Nebraska residents sustained at the 

amusement park). RGV's interaction with the tourist would not entail any contact with 

Kansas itself, as the forum state. See Bristol-Myers, 137 S. Ct. at 1782-83. 

Other sorts of contracts between our Party A and Party B may create sufficient 

minimum contacts with Kansas based on their terms and the circumstances of their 

formation even if Party B remains in Texas and never physically enters Kansas. Walden, 

571 U.S. at 283-85. The due process analysis looks at the circumstances connecting Party 

B, as the defendant or respondent, to both the forum and the litigation rather than merely 

to Party A. Contact directed into the forum, as by "mail, or some other means," is 

relevant, so physical presence in the forum state is not a necessary condition for personal 

jurisdiction. 571 U.S. at 285. And the circumstances creating the minimum contacts 

necessary for personal jurisdiction in the forum state often will be "intertwined" with the 
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parties' interactions. 571 U.S. at 286. Ultimately, the existence of personal jurisdiction is 

heavily dependent upon the particular facts. See Burger King Corp. v. Rudzewicz, 471 

U.S. 462, 485-86, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985) (recognizing inquiry heavily 

fact based and "reject[ing] any talismanic jurisdictional formulas"); see also CFA Institute 

v. Institute of Chartered Financial Analysts of India, 551 F.3d 285, 294 (4th Cir. 2009) 

(recognizing assessment of personal jurisdiction to be "necessarily fact-based"). The 

United States Supreme Court recently reaffirmed the basic principles of general and 

specific personal jurisdiction. See Ford Motor Company v. Montana Eighth Judicial 

District Court, 592 U.S. ___, 141 S. Ct. 1017, 1024-25, 209 L. Ed. 2d 225 (2021).

RGV relies on Walden and International Shoe, the pioneering opinion setting out 

the modern doctrine of personal jurisdiction, to support its position. We are unpersuaded. 

The facts of Walden are inapposite—the Court found no personal jurisdiction in Nevada 

over a government agent for an intentional constitutional tort he allegedly committed in 

Georgia against two Nevada residents as they traveled through the Atlanta airport. The 

principles governing personal jurisdiction outlined in Walden do not support the 

argument this workers compensation action offends due process concepts of minimum 

contacts and fair play. 571 U.S. at 284-85 (Personal jurisdiction may exist when a party 

"creates" substantive contacts with the forum state itself extending beyond interactions 

with residents of the forum state that may occur elsewhere.). Entering into a contract that 

implicates contacts with the forum state may suffice. 571 U.S. at 285. 

The Court in International Shoe offered this much cited statement of the law: 

"[D]ue process requires only that in order to subject a defendant to a judgment in 

personam, if he be not present within the territory of the forum, he have certain minimum 

contacts with it such that the maintenance of the suit does not offend 'traditional notions 

of fair play and substantial justice.'" 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 

457, 463, 61 S. Ct. 339, 85 L. Ed. 278 [1940]. The Court rejected the notion of a 

"mechanical or quantitative" test for personal jurisdiction and opted for a more 
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individualized assessment "depend[ant] . . . upon the quality and nature of the activity in 

relation to the fair and orderly administration of the laws which it was the purpose of the 

due process clause to insure." 326 U.S. at 319; see also Burger King, 471 U.S. at 485-86.

But a state cannot exercise personal jurisdiction over a corporation having "no contacts, 

ties, or relations" to it. International Shoe, 326 U.S. at 319.

Expounding on those principles 40 years later, the Court recognized personal 

jurisdiction consistent with the Due Process Clause may be established when a party has 

"'purposefully directed'" its activities at the forum state and the resulting litigation arises 

from legal injuries associated with those activities. Burger King, 471 U.S. at 472-73. 

Accordingly, "the Due Process Clause may not readily be wielded as a territorial shield to 

avoid interstate obligations that have been voluntarily assumed." 471 U.S. at 474. If a 

party has purposefully established some minimum contact with the forum state, the courts 

may consider an array of factors to measure the due process fairness of the adjudication, 

including the litigation burdens imposed on the defending party and shared state interests 

in fostering "'fundamental substantive social policies.'" 471 U.S. at 477 (quoting WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S. Ct. 559, 62 L. Ed. 2d 490 

[1980]). Those remain guideposts for courts considering challenges to personal 

jurisdictions. See Ford Motor Company, 141 S. Ct. at 1030 (state's interest in enforcing 

its "own safety regulations" reflects form of "'interstate federalism'" favoring personal 

jurisdiction); Curry v. Revolution Laboratories, LLC, 949 F.3d 385, 402 (7th Cir. 2020); 

Packaging Systems and Enterprises, Inc. v. Operational Solutions, Inc., No. 117,930, 

2018 WL 2748501, at *5 (Kan. App. 2018) (unpublished opinion). 

Here, as we have indicated, RGV purposefully sought out Shomberg, as it had in 

the past, to perform the roof maintenance and painting. And, in doing so, RGV knew full 

well it was contracting with a Kansas corporation. There was nothing random or 

attenuated about that connection. It was not the result of RGV's general advertising or its 

solicitation of any interest bidders for the work. Likewise, RGV is a sophisticated 
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commercial entity; it was not an unsuspecting consumer snagged through some fine print 

in a take-it-or-leave-it agreement. Those are considerations cutting against a violation of 

due process fair play. See Burger King, 471 U.S. at 485-86.

In addition, the contract between RGV and Shomberg was considerably more than 

an incidental transaction. Shomberg agreed to perform substantial work on about 10 

restaurants. The work required skilled labor and entailed a foreseeable, if limited, risk of 

physical injury. Had RGV not contracted out the work, it presumably would have had to 

hire additional employees for that purpose. Workers compensation statutes are 

ubiquitous, so RGV knew or reasonably should have known Shomberg's employees were 

entitled to such benefits for on-the-job injuries—just as its own employees would have 

been. Although the statutory protections vary from state to state, RGV apparently chose 

not to require Shomberg to insure for payment of workers compensation claims as a 

shield against its own potential liability. 

As an action for workers compensation benefits, this proceeding substantively 

differs from a typical civil action in ways that bolster Kansas' interest as the forum state 

in exercising personal jurisdiction over RGV consistent with the considerations outlined 

in Burger King. Civil suits grounded in negligence or breach of contract redress private 

wrongs between the parties. Historically, workers compensation statutes have advanced a 

significant social welfare policy promoting the public good. Those statutes extend 

payments for medical care and as income replacement to persons injured on the job in a 

streamlined administrative process without regard to fault. The process displaced civil 

tort actions that depended on proving an employer's negligence and historically imposed 

harsh bars to recovery, such as contributory negligence. But under workers compensation 

schemes, employers no longer faced juries or potentially large verdicts for noneconomic 

damages in civil suits that were often both risky and expensive to defend. On balance, 

workers compensation was viewed as progressive legislation aimed at caring for injured 

workers and keeping them and their families from destitution or the public dole. See 
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Hawkins v. Southwest Kansas Co-op Service, 58 Kan. App. 2d 38, 44-45, 464 P.3d 14

(2020) (discussing history and purpose of workers compensation measures), aff'd in part, 

rev'd in part 313 Kan. __, 484 P.3d 236 (2021). Accordingly, the nature of these 

proceedings—advancing the objectives of the Kansas Workers Compensation Act, as a 

fundamental social policy—favor finding personal jurisdiction over RGV. Moreover, 

RGV has pointed to no actual prejudice or procedural disadvantage to it in having to 

litigate this administrative action in Kansas apart from having to answer at all.[1]

[1]Of late, some workers compensation claimants contend the Kansas process has 

become so skewed in favor of employers that it no longer adequately serves the socially 

progressive purposes that prompted its enactment and is, therefore, unconstitutional. The 

Kansas Supreme Court recently acknowledged but averted the constitutional issue by 

construing a portion of the Workers Compensation Act to vitiate a cornerstone attack on 

the current scheme. See Johnson v. U.S. Food Service, 312 Kan. ___, 478 P.3d 776, 778-

80 (2021). RGV and White have not joined that debate here. Especially given the ruling 

in Johnson, the competing views of the present worth of the Workers Compensation Act 

as a matter of public policy do not bear on our assessment of personal jurisdiction over 

RGV.

We also discount arguments RGV makes based on Abbey v. Cleveland Inspection 

Services, Inc., 30 Kan. App. 2d 114, 41 P.3d 297 (2002), and on K.S.A. 2020 Supp. 60-

308(b), the Kansas long-arm statute. In Abbey, an Oklahoma company hired a Kansas 

resident to do work on a project in New Mexico, where the individual suffered an on-thejob injury. The Oklahoma company was insured for workers compensation claims 

through the State Insurance Fund of Oklahoma. The only issue before the court in Abbey

was personal jurisdiction over the Insurance Fund for purposes of a Kansas workers 

compensation claim. The court held the Insurance Fund lacked minimum contacts with 

Kansas and could not have been subject to liability under K.S.A. 44-559, a specific 

statute governing insurance carriers. 30 Kan. App. 2d at 117-19. But RGV is neither 

factually nor legally situated similarly to the Insurance Fund in Abbey. Unlike the 

Insurance Fund, RGV contracted directly with Shomberg, a Kansas corporation, to do 

extensive work on its restaurants. And RGV's liability was based on its status as a 
13

statutory employer and not as an insurer of a covered employer. As such, RGV was 

legally more analogous to the Oklahoma company that hired the Kansas worker rather 

than to the Insurance Fund. 

RGV's reliance on the long-arm statute is similarly unavailing. Under K.S.A. 2020 

Supp. 60-308(b), persons or entities engaging in specified acts in Kansas thereby submit 

to the jurisdiction of this state's courts for civil proceedings arising from those acts. The 

long-arm statute, however, does not apply to workers compensation claims, since they are 

distinct administrative actions brought under the Workers Compensation Act rather than 

civil lawsuits. Nonetheless, RGV contends it failed to satisfy K.S.A. 2020 Supp. 60-

308(b)(1)(E) by entering into a contract with a Kansas resident to be performed in some 

part in this state. Even assuming the premise to be correct, the long-arm statute also 

applies to a party "having contact with [Kansas] that would support jurisdiction 

consistent with the constitutions of the United States and this state." K.S.A. 2020 Supp.

60-308(b)(1)(L). That subsection renders the long-arm statute coextensive with personal 

jurisdiction permissible under the Due Process Clause. We have already examined RGV's 

argument for lack of personal jurisdiction on due process grounds and found it legally 

wanting. So K.S.A. 2020 Supp. 60-308 would afford RGV no additional shield to these 

proceedings if it were applicable. 

Although RGV's contacts with Kansas have been limited, they include the direct 

solicitation of Shomberg to perform work with its employees on at least 10 of the 

company's restaurants with the known and ever present risk one or more of those workers 

might be injured on the job. RGV, as a sophisticated business enterprise, similarly knew 

or should have known an injury likely would trigger a workers compensation claim to be 

adjudicated administratively in Kansas. Those circumstances are enough to establish the 

minimum contacts necessary to satisfy the due process requirements for personal 

jurisdiction over RGV for this workers compensation proceeding. Nothing about that 
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exercise of personal jurisdiction has impeded RGV's ability to respond to the claim or 

otherwise suggests a lack of fair play in requiring a response. 

White's Timely Prosecution of Benefits Claim

Finally, RGV contends White did not timely pursue his claim for benefits and the 

administrative law judge erred in granting him an extension under K.S.A. 2020 Supp. 44-

523(f). If a claimant fails to proceed to a regular hearing within one year after a 

preliminary hearing denying the claim, an administrative law judge may entertain a 

motion from the respondent employer to dismiss the proceeding for a failure to prosecute. 

A dismissal is with prejudice. A claimant may avert dismissal if he or she "can prove a 

good faith reason for the delay." K.S.A. 2020 Supp. 44-523(f)(2). The parties have not 

directed us to any appellate cases construing K.S.A. 2020 Supp. 44-523(f)(2), and we 

have found none.

White's lawyer represented to the administrative law judge that the challenged 

delay arose primarily from difficulties in obtaining discovery from Shomberg and RGV 

bearing on the status of those businesses as covered employers under the Workers 

Compensation Act. The administrative law judge, of course, had full access to the claim 

file in assessing the obstacles to discovery. While disputes over a respondent's status as a 

covered employer come up from time to time, they are relatively rare. But the employer's 

status entails a gatekeeping issue: If an employer is not covered, it cannot be held to 

answer. Here, at the preliminary hearing, the administrative law judge found RGV and 

Shomberg were not covered employers, a decision a single Board member upheld on

review. The administrative law judge found White's continuing efforts to discover 

evidence bearing on the status of Shomberg and RGV as covered employers presented a 

good-faith reason to excuse the delay in moving the case forward to final determination, 

thereby precluding dismissal under K.S.A. 2020 Supp. 44-523(f)(2) for a failure to 

prosecute. In short, White needed the evidence to combat the adverse preliminary hearing 
15

ruling. The Board agreed, finding White "was litigating the case" for most of the 

applicable one-year period.

At the outset, we face a question over our standard of review on this issue. If there 

were disputed issues of fact the administrative law judge and the Board resolved, we 

presumably would apply a mixed standard. Under K.S.A. 77-621(d), we review an 

administrative agency's factual findings for substantial support in the evidentiary record 

as a whole, giving due deference to its credibility determinations and without reweighing 

conflicting evidence. See Ward v. Allen County Hosp., 50 Kan. App. 2d 280, 284-85, 324 

P.3d 1122 (2014). As we have indicated, we independently review the agency's legal 

conclusions in light of the established facts. Mera-Hernandez, 305 Kan. at 1185. We may 

reverse an agency ruling if it reflects an error of law; lacks factual support; or "is 

otherwise unreasonable, arbitrary[,] or capricious"; among other reasons. K.S.A. 77-

621(c). We decline to further label or characterize our standard of review.

As with the other issues RGV has raised on appeal, we perceive no material 

factual disputes on the propriety of the extension under K.S.A. 2020 Supp. 44-523(f)(2). 

We, therefore, approach this as a legal question without deference to the administrative 

law judge or the Board. Mera-Hernandez, 305 Kan. at 1185. RGV would be entitled to 

no more favorable a standard of review, so an error on our part inures to its benefit.[2]

[2]There is a substantive question about what amounts to a "good faith reason" 

under K.S.A. 2020 Supp. 44-523(f)(2). The parties have not delved into the meaning of 

the phrase. Conceptually, "good faith" may be subjective, objective, or both. Subjective 

good faith refers to the actor's desire or intent to act honestly or fairly. See United States 

v. Wallen, 874 F.3d 620, 629-30, 632 (9th Cir. 2017) (recognizing subjective good faith 

may be defense to criminal charge under Endangered Species Act). Conversely, objective 

good faith turns on the outward reasonableness or fairness of the actor's conduct without 

regard to the intent animating that conduct. Hammer v. Thompson, 35 Kan. App. 2d 165, 

175, 129 P.3d 609 (2006) (merchant's obligation of good faith under Uniform 

Commercial Code requires both honesty in fact and adherence to commercially 

reasonable standards); Wallen, 874 F.3d at 631 (good-faith exception to exclusionary rule 
16

based on objective reasonableness). We do not need to decide the issue because the 

administrative findings are consistent with both subjective and objective good faith.

On appeal, RGV makes two arguments challenging the extension granted White 

under K.S.A. 2020 Supp. 44-523(f)(2). First, RGV seems to say the administrative law 

judge and the Board erred in finding good cause, but it never precisely explains the error. 

We are unmoved. The contention consists of nothing more substantive than a conclusory 

retort: "No, that's not a good faith reason." White's articulated reasons were facially

sufficient, so we will not disturb those findings without something more.

RGV also latches on to the word "prove" in K.S.A. 2020 Supp. 44-523(f)(2) and 

submits White failed to sufficiently establish his reasons for the delay because he relied 

on the representations of his lawyer to the administrative law judge and did not offer 

testimony or documentary evidence at the hearing. The argument is untenable. RGV has 

only now on appeal objected to the quality of what White offered in support of the 

requested extension. RGV lodged no such contemporaneous objection with the 

administrative law judge. Nor did it argue then that the representations were substantially 

incorrect or legally insufficient. Through its inaction at the hearing level, RGV waived or 

forfeited the argument. To credit the argument now we would endorse an unacceptable 

form of sandbagging. See Finnegan v. Commissioner of Internal Revenue, 926 F.3d 

1261, 1272-73 (11th Cir. 2019) (characterizing raising new argument on appeal as 

sandbagging and declining to consider argument); Raich v. Gonzales, 500 F.3d 850, 868 

& n.18 (9th Cir. 2007).

Moreover, White's representations to the administrative law judge about the 

discovery disputes and resulting delays were corroborated through the motions and other 

papers the parties submitted in litigating those disputes. The administrative law judge and 

the Board are not bound by "technical rules of procedure" or strict adherence to the rules 

of evidence with aim of affording the parties a reasonable opportunity to be heard and a 
17

fundamentally fair hearing. K.S.A. 2020 Supp. 44-523(a); Chriestenson v. Russell Stover 

Candies, 46 Kan. App. 2d 453, 460, 263 P.3d 821 (2011) (rules of evidence not strictly 

applied in workers compensation proceedings). Under the circumstances, the 

administrative law judge properly relied on the representations of White's lawyer, 

especially in the absence of an objection from RGV, and the materials filed in the case. 

See In re K.H., 56 Kan. App. 2d 1135, 1141, 444 P.3d 354 (2019) (court may take 

judicial notice of its own records in given case).

RGV has failed to present grounds warranting reversal of the administrative law 

judge and the Board on the extension granted White under K.S.A. 2020 Supp. 44-

523(f)(2).

Conclusion

RGV has failed to show the Board erred in finding it to be a statutory employer of 

White. Requiring RGV to respond to White's claim for benefits does not offend 

fundamental due process considerations for personal jurisdiction, particularly given the 

purpose of the Workers Compensation Act and RGV's direct solicitation of a Kansas 

company to do labor-intensive work in Texas. Finally, White satisfied the good-faith

requirement justifying the delay in these proceedings consistent with K.S.A. 2020 Supp.

44-523(f)(2). 

We, therefore, affirm the Board and remand for further proceedings consistent 

with this opinion.