Kansas Supreme Court Confirms Strict Statutory Interpretation Rule for Determination of Date of Accident for Repetitive Injury Workers’ Compensation Claims

Saylor v. Westar Energy, Inc., No. 100, 012 (Ks. S.C., August 5, 2011).

The Kansas Supreme Court has determined the date of accident for repetitive use, micro-trauma and cumulative traumatic injuries shall be governed exclusively by the plain language contained in K.S.A. 44-508, in effect prior to the May, 2011 changes to the Workers Compensation Act.  The Court reiterated that its decisions are governed solely by the language of a statute as written.  If the statute language is plain and unambiguous, no inquiry into legislative intent or policy issues is permissible.

The employee saw a physician on January 4, 2006, who recommended a total knee replacement.  The last date worked was February 6, 2006, with knee surgery the following day.  While off work, Employee concluded that his knee problems could be work related.  A written claim on March 28, 2006, about 50 days after his last day worked

The Employer argued that a “strict interpretation” of K.S.A. 44-508(d) led to an “absurd result” because the Court fixed the date of accident as the date the employee gave employer written notice of the injury.  On that date, however, the employee had not worked for over 50 days, and was home recuperating from his unauthorized surgery on this “date of accident.”   The employer argued that using the “date of written claim” for the date of accident gave the claimant an unlimited time in which initiate a claim, rendering the statutory notice time period a nullity.  The employer argued that fixing the date of accident as the last day the claimant actually worked would give effect to the statutory notice provisions, and allow the employer time to investigate the claim and authorize or deny benefits.

The Supreme Court observed that the legislature held hearings on the Statute in 2005, and was made aware of this possible problem.  Yet the 2005 revisions to the statute were passed without adding a “last day worked” provision for the date of accident in repetitive injuries.  The court rejected the employer’s invitation to look beyond the statutory language and into the policy and/or unintended result of the omission of the “last day worked” provision.

The Court upheld the award of benefits, including the unauthorized knee surgery that happened before a claim was actually filed.   The Court observed:

So long as it remains within constitutional boundaries, the legislature has the authority to intentionally and knowingly enact statutory provisions that may lead to unreasonable results.” 

On May 15, 2011, major changes to the Kansas Workers’ Compensation statute went into effect, adding a “last day worked” provision.  For claims occurring after May 15, 2011, the date of accident for repetitive trauma is now governed by K.S.A. 44-508(e).  The date of accident is now the earliest of:

 (1)   The date the employee, while employed for the employer against whom benefits are sought, is taken off work by a physician due to the diagnosed repetitive trauma;

 (2)   The date the employee, while employed for the employer against whom benefits are sought, is placed on modified or restricted duty by a physician due to the diagnosed repetitive trauma;

 (3)   The date the employee, while employed for the employer against whom benefits are sought, is advised by a physician that the condition is work-related; or

 (4)   The last day worked, if the employee no longer works for the employer against whom benefits are sought.

 In no case shall the date of accident be later than the last date worked.

 K.S.A. 44-508(e) (2011)

In addition to the revision to K.S.A 44-508, K.S.A. 44-520 now imposes on an employee a strict, 30 calendar day time limit from the date of accident in which to provide notice to the employer for claims filed after May 15, 2011.  In this case, Saylor’s claim would have been barred for failure to provide notice within 30 days of his last day worked.

Practitioners and workers compensation professionals need to be aware that “strict interpretation” of statutory provisions is alive and well in the appellate courts.  Arguments grounded in “public policy” or “legislative intent” will most likely be unsuccessful.

By: Chris Werner
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