Baum v. Greyhound Corp.

601 P.2d 6, 3 Kan. App. 2d 456, 1979 Kan. App. LEXIS 221

• Court: Court of Appeals of Kansas
• Decided: June 15, 1979
• Docket: 50,642
• Status: Published

Opinions

Meyer, J.:

This is an action by the claimant, Helen Baum, to recover compensation. The workmen’s compensation fund (fund) was made a party to the proceedings upon motion by the respondent and its insurance carrier. The workmen’s compensation examiner entered an order dismissing the fund from the case on the basis that respondent had failed to give notice of claimant’s preexisting handicap to the workmen’s compensation director as provided by statute. The district court sustained the examiner’s order dismissing the fund and the respondent and its insurance carrier appeal.

The issue herein is whether an employer who has paid the employee three prior settlement awards is required to file notice of handicap with the workmen’s compensation director as per K.S.A. 1977 Supp. 44-567(o).

Claimant was an employee of respondent at their plant in Topeka, Kansas. She had been employed continuously by respondent for approximately 23 years.

On January 22, 1958, claimant was injured and received a five percent disability settlement from respondent. This settlement was reduced to an award and filed in the office of the workmen’s compensation director on June 27, 1958.

On July 13, 1962, claimant was injured and received a seven percent settlement from respondent. That settlement award was also filed with the workmen’s compensation director’s office on May 7, 1963.

On December 13, 1968, claimant was again injured and received a ten percent disability settlement from respondent. This settlement award was entered and filed in the director’s office on August 20, 1969.

On or about September 15, 1977, while claimant was still working for respondent, she received the injury upon which the present action is based.

The fund was impleaded, but on February 1, 1978, it filed a motion to be dismissed for the reason that the respondent had failed to file a notice of handicapped employee with the office of the director of workmen’s compensation as required by K.S.A. 1977 Supp. 44-567(o) and the director’s rule 51-1-22.

On November 8, 1978, the district court found that since there was no statutory notice by the respondent in reference to claimant’s preexisting bad back, the respondent had failed to comply with the notice statute and that the fund should therefore be dismissed from these proceedings. The court denied the fund’s claim for attorney fees.

Respondent and its insurance carrier appealed from the district court’s order dismissing the fund, and the fund filed a cross-appeal on that part of the court’s order denying its request for allowance of attorney fees.

It is appellants’ theory herein that since the former awards (being in 1958, 1962, and 1968) were filed with the workmen’s compensation commissioner that this constituted notice, and that therefore the failure to give specific notice is irrelevant because the workmen’s compensation commissioner already had the proof of the preexisting condition in his files.

The gist of appellees’ argument on the other hand is (1) the preexisting settlements, while filed with the compensation commissioner, were not filed by the employer; and (2) that it would be ridiculous for the compensation commissioner to keep a running log of all previous injuries.

The pertinent statute, K.S.A. 1977 Supp. 44-567(c), in part, states as follows:

“An employer operating within the provisions of the workmen’s compensation act who employs a handicapped employee . . . and who prior to the occurrence of a compensable injury to a handicapped employee establishes knowledge of the preexisting handicap by filing a notice thereof, together with a description of the handicap claimed with the workmen’s compensation director . . . shall be relieved of liability for compensation awarded . . . (Emphasis added.)

The wording of the above statute is not ambiguous in any way. To us the meaning of this statute is clear and requires that the employer notify the workmen’s compensation director of a preexisting disability. Were we to adopt appellants’ view herein it would be tantamount to our changing that statute to include language to the effect that if prior claims had been allowed by the director that this would constitute knowledge. However, where there is a direct absence of following a clear requirement of an unambiguous statute, as in this case, we have no license to change the law by judicial interpretation. We conclude that the district court was correct.

Coming now to the fund’s cross-appeal complaining that the district court erred in denying attorney fees to the fund, we conclude as follows: K.S.A. 1977 Supp. 44-566a(f) states in part that “attorneys’ fees incurred by the workmen’s compensation fund may be assessed against the party who has impleaded the workmen’s compensation fund.” It is noted that the legislature has used the word “may” in this statute. To us this means that the matter of awarding attorney fees is at the discretion of the district court. We find no abuse of discretion on the part of the district court in denying these attorney fees.

Affirmed.