Anderson v. Bill Morris Construction Co.

Green, J.; This workers compensation case involves an appeal by Bill Morris Construction Co., Inc., (Morris Construction) and Fireman’s Fund Insurance Company (Fireman’s Fund) from a decision of the Workers Compensation Board (Board) dismissing their ap — 604 — plication for review as untimely. On appeal, they contend that the 10-day deadline under K.S.A. 1996 Supp. 44-551(b)(l) and K.A.R. 51-18-2 should be extended based on K.S.A. 77-613(e) and K.S.A. 60-205(b). In the alternative, they argue that the deadline should be extended based on excusable neglect. We disagree and affirm. The administrative law judge (ALJ) rendered an order in favor of the injured worker on January 31, 1997, after conducting a preliminary hearing on January 29,1997. Because of a mistake involving the current address of Morris Construction and Fireman’s Fund’s attorney, their attorney did not become aware of the order until February 24,1997. The Board noted that the ALJ’s order was issued on January 31,1997, and that the application for review was not filed until Februaiy 24, 1997. Finding that more than 10 days had elapsed between those two dates, excluding Saturdays, Sundays, and legal holidays, the Board determined that the application for review was untimely. The sole issue in this case is whether the Board correctly determined that Morris Construction and Fireman’s Fund’s application for review was untimely filed. This issue requires that we construe relevant statutes, which is a question of law upon which our appellate review is unlimited. Jones v. Continental Can Co., 260 Kan. 547, 550, 920 P.2d 939 (1996). The Board maintained that K.S.A. 1996 Supp. 44-551(b)(l) and K.A.R. 51-18-2 provide a 10-day period for filing an application for review of a workers compensation award. K.S.A. 1996 Supp. 44-551(b)(1) provides for Board review of ALJ decisions as follows: “All acts, findings, awards, decisions, rulings or modifications of findings or awards made by an administrative law judge shall be subject to review by the board upon written request of any interested party within 10 days.” K.A.R. 51-18-2 explains that the effective date of the ALJ’s actions shall begin the day after the date in the ALJ’s order. In applying this statute and regulation, the Board claimed that the time period began running on Februaiy 1,1997, and ended on Februaiy 14, 1997, excluding Saturdays, Sundays, and legal holidays. In addition, the Board applied K.S.A. 60-206(a) and McIntyre — 605 — v. A.L. Abercrombie, Inc., 23 Kan. App. 2d 204, 929 P.2d 1386 (1996), in arriving at this computation. On the other hand, Morris Construction and Fireman s Fund argue that because the ALJ’s order was not mailed to the last known address of their attorney, the 10-day time limit under K.S.A. 1996 Supp. 44-551(b)(l) did not begin to run until their attorney had received actual notice of the order, which was February 24,1997. They cite K.S.A. 77-613(e), K.S.A. 60-205(b), and K.S.A. 60-2103(a) in support of their argument. These statutes deal with service of pleadings and other papers and excusable neglect. Service K.S.A. 77-613(e) states: “Service of an order, pleading or other matter shall be made upon the parties to the agency proceeding and their attorneys of record, if any, by delivering a copy of it to them or by mailing a copy of it to them at their last known addresses.” (Emphasis added.) K.S.A. 60-205(b)(2) also states that service may be made by “mailing it to the attorney or a party at the last known address.” Nevertheless, the fact that K.S.A. 77-613(e) and K.S.A. 60-205(b)(2) require service of an order or other papers to be mailed to the last known address of the party or the parties’ attorney does not extend the 10-day rule under K.S.A. 1996 Supp. 44-551(b)(l) just because the notice was not mailed to the last known address of the parties’ attorney. Neither K.S.A. 77-613(e) nor K.S.A. 60-205(b)(2) requires an act to be done within a prescribed period of time after service of an order or other matter. Nevertheless; K.S.A. 1996 Supp. 44-551(b)(l) and K.A.R. 51-18-2 require an application for review to be made “on or before the tenth day after the effective date” of the ALJ’s decision. Because the 10-day rule runs from the day after the ALJ’s action, rather than from the date service is made, Morris Construction and Fireman’s Fund’s arguments fail. Excusable Neglect Morris Construction and Fireman’s Fund contend that the deadline of K.S.A. 1996 Supp. 44-551(b)(l) should be extended on the basis of excusable neglect. In arguing that an excusable neglect — 606 — standard should be applied, Morris Construction and Fireman’s Fund cite K.S.A. 60-2103(a). K.S.A. 60-2103(a) states that “upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.” Nevertheless, their reliance on this statute is misplaced. Morris Construction and Fireman’s Fund cite no case law, and we were unable to find any, where excusable neglect involving the deadline for filing an application for review under K.S.A. 44-551 (or K.S.A. 1996 Supp. 44-551) has ever been approved by our appellate courts. Although they cite McIntyre in support of their argument, their reliance on this case is flawed. McIntyre dealt with the applicability of 60-206(a) to 44-551. McIntyre neither dealt with nor discussed the applicability of 60-2103(a) to 44-551. Furthermore, the purpose of the 10-day rule under K.S.A. 1996 Supp. 44-551(b)(l) is to promote finality of workers compensation claims. The rule prevents an interested party from challenging the ALJ’s actions long after the ALJ’s decision has been made. As a result, excusable neglect cannot justify the untimeliness of Morris Construction and Fireman’s Fund’s application for review. Duty to Inquire Neither Morris Construction nor Fireman’s Fund argues that the ALJ or her staff misled them about the 10-day period under K.S.A. 1996 Supp. 44-551(b)(l) or extended the time for filing an application for review upon which either of them relied. To the contrary, the only argument of Morris Construction or Fireman’s Fund is the absence of service. Turning our attention to the record, we note that both Morris Construction and Fireman’s Fund were actively involved in this case. Because they participated in the preliminary hearing, they had notice that the ALJ would be making a decision in this matter shortly after the hearing. K.S.A. 1996 Supp. 44-534a requires ALJs to render a decision within 5 days from the conclusion of the preliminary hearing. In stating that once parties are put on guard, they have knowledge of everything to which an inquiry might have led, — 607 — the court in D. C. Transit System, Inc. v. United States, 531 F. Supp. 808, 812 (D.D.C. 1982), stated: “ ‘[W]hatever is notice enough to excite attention and put the party on his guard and call for inquiry is notice of everything to which such inquiry might have led. When a person has sufficient information to lead him to a fact, he shall be deemed to be conversant of it.’ ” See Armourdale State Bank v. Homeland Ins. Co., 134 Kan. 245, 249-50,5 P.2d 786 (1931). Had Morris Construction and Fireman’s Fund made a timely inquiry after the preliminary hearing in this matter, they would have discovered that the ALJ had issued her order on January 31,1997, and that the 10-day period under K.S.A. 1996 Supp. 44-551(b)(l) would begin to run on February 1,1997. Although Morris Construction and Fireman’s Fund argue that imposing a duty upon interested parties to continually inquire about possible court orders is too burdensome, we disagree. As stated earlier, K.S.A. 1996 Supp. 44~534a requires ALJs to render a decision within 5 days from the conclusion of the preliminary hearing. This statute severely limits the time period and the discretion of ALJs in rendering their decisions. As a result, the responsibility to inquire into the deadline for filing an application for review is not so burdensome as to outweigh the increasing need for the expeditious judicial administration of workers compensation cases. Finally, parties in litigation are presumed to know the law. See Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, 88, 367 P.2d 44 (1961); Knight v. Myers, 12 Kan. App. 2d 469, 475, 748 P.2d 896 (1988) (“Everyone is presumed to know the law . . . including relevant statutes of limitation.”). As a result, Morris Construction and Fireman’s Fund are charged with knowledge of the time limitations under K.S.A. 1996 Supp. 44-551(b)(l) and the time period for ALJs to render a decision under K.S.A. 1996 Supp. 44-534a. Morris Construction and Fireman’s Fund knew that the ALJ was required to render a decision by February 3, 1997. Consequently, they constructively knew that a timely application for review would have to be filed on or before February 14, 1997, which is coincidentally the deadline — 608 — date determined by the Board. Because Morris Construction and Fireman’s Fund constructively knew that on or before February 14, 1997, was the deadline to file a timely application for review, the application for review they filed on February 24,1997, is clearly time barred. Case Law Our Supreme Court considered a similar issue in Jones. In Jones, also a workers compensation case, the Commissioner of Insurance filed a notice of appeal just beyond the 30 days allowed by statute. In contending that the notice of appeal was timely, the Commissioner of Insurance argued that the 3-day mailing rule under K.S.A. 60-206(e) satisfied the timeliness of the appeal. Although acknowledging that K.S.A. 60-206(e) applied to workers compensation appeals from 1979 until 1986, and that K.S.A. 77-613(d) permitted an identical 3-day mailing extension from 1986 until 1993, our Supreme Court concluded that no 3-day mailing rule applied after the 1993 amendment to K.S.A. 44-556(a). In dismissing the appeal as untimely, our Supreme Court stated: “The Workers Compensation Act provides its own time limit for appeal without reference to Chapter 60 and in preemption of K.S.A. 1995 Supp. 77-613. The statutory basis for applying the provisions of the Code of Civil Procedure to workers compensation appeals was removed by the legislature. This leads us to a strict application of the wording of K.S.A. 1995 Supp. 44-556(a) and the dismissal of this appeal as untimely.” Jones, 260 Kan. at 557. The Jones holding, then, can be applied to the present case. From the above analysis, we conclude that when a statutory method has been furnished for seeking an appeal, it must be followed or the administrative board or court that is hearing the appeal is without jurisdiction. See Resolution Trust Corp. v. Bopp, 251 Kan. 539, 541, 836 P.2d 1142 (1992). Because Morris Construction and Fireman’s Fund failed to file their application for review within the time limitations of K.S.A. 1996 Supp. 44-551(b)(l), the Board had no jurisdiction, and this court has no jurisdiction to consider their appeal. Appeal dismissed.