Opinion
112,178.
08-14-2015
Celestino CARDENAS, Appellant, v. KANCO HAY CO., LLC, TQL Logistics LLC, Appellees, and Continental National Indemnity Co., and Travelers, Appellees.
Roger A. Riedmiller, of Law Office of Roger A. Riedmiller, for appellant. David A. Gellis, of Manz Swanson Hall Fogarty & Gellis, PC, of Kansas City, Missouri, for appellees Kanco Hay Co., LLC, and Continental National Indemnity Co. William L. Townsley, III, and Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellees TQL Logistics LLC and Travelers Insurance Co.
Roger A. Riedmiller, of Law Office of Roger A. Riedmiller, for appellant.
David A. Gellis, of Manz Swanson Hall Fogarty & Gellis, PC, of Kansas City, Missouri, for appellees Kanco Hay Co., LLC, and Continental National Indemnity Co.
William L. Townsley, III, and Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellees TQL Logistics LLC and Travelers Insurance Co.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Celestino Cardenas appeals from the order of the Workers Compensation Board (Board) affirming the Administrative Law Judge's (ALJ) finding after a preliminary hearing that Cardenas was an independent contractor and, therefore, not covered by the Kansas Workers Compensation Act (Act) at the time he was injured. Because the Board's review of the ALJ's ruling at the preliminary hearing was not a final and appealable order, we dismiss this appeal because we have no jurisdiction to consider it.
Cardenas was the owner and sole employee of Cardenas Trucking, based out of his home state of Nevada. Cardenas obtained jobs through the use of various freight brokers to haul freight for third parties to locations throughout the country. Here, Cardenas obtained a job through two freight brokers to haul a load of hay for Kanco Hay in Coolidge, Kansas, to a buyer in Mississippi. Cardenas was injured while placing a tarp over the hay bales in order to secure the load before leaving Kanco's facility.
Cardenas filed a claim for workers compensation benefits against Kanco and one of the brokers, and he applied for a preliminary hearing. Following the preliminary hearing, the ALJ issued an order denying Cardenas' requests for temporary compensation and medical treatment after finding that (1) Cardenas was self-employed as an independent trucker; (2) he had not provided himself with workers compensation insurance pursuant to the Act; and (3) he was not an employee of Kanco. Cardenas sought review by the Board, which affirmed the ALJ's findings and agreed with the ALJ that Cardenas was an independent contractor and not entitled to the benefits he sought. This appeal followed.
The first question we must address is whether we have jurisdiction to hear this appeal. Kanco moved to dismiss this appeal because the decisions by the ALJ and the Board following the preliminary hearing were not subject to judicial review. We may exercise jurisdiction only under circumstances allowed by statute, and we do not have discretionary power to entertain appeals from all lower court orders. Williams v. Lawton, 288 Kan. 768, 778, 207 P.3d 1027 (2009). To resolve this jurisdiction issue requires a review of the applicable statutes, a matter over which our review is unlimited. Mitchell v. Petsmart, Inc., 291 Kan. 153, 162, 239 P .3d 51 (2010).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Nationwide Mutual Ins. Co. v. Briggs, 298 Kan. 873, 875, 317 P.3d 770 (2014). We must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meaning. Cady v. Schroll, 298 Kan. 731, 738, 317 P.3d 90 (2014). When a statute is plain and unambiguous, we will not speculate about legislative intent and will refrain from reading something into the statute that is not readily found in its words. 298 Kan. at 738.
K.S.A.2014 Supp. 44–534a(a)(1) allows an employee or an employer to apply for a preliminary hearing on the issues of furnishing medical treatment and payment of temporary total or temporary partial disability compensation. Subsection (a)(2) provides that a preliminary hearing is summary in nature and
“[a] finding with regard to a disputed issue of whether the employee suffered an accident, repetitive trauma or resulting injury, whether the injury arose out of and in the course of the employee's employment, whether notice is given, or whether certain defenses apply, shall be considered jurisdictional, and subject to review by the board. Such review by the board shall not be subject to judicial review. ” (Emphasis added.) K.S.A.2014 Supp. 44–534a(a)(2).
Further, “[e]xcept as provided in this section, no such preliminary findings or preliminary awards shall be appealable by any party to the proceedings, and the same shall not be binding in a full hearing on the claim, but shall be subject to a full presentation of the facts.” K.S.A.2014 Supp. 44–534a(a)(2). Also important here is K.S.A.2014 Supp. 44–556(a), which states:
“Any action of the board pursuant to the workers compensation act, other than the disposition of appeals of preliminary orders or awards under K.S.A. 44–534a, and amendments thereto, shall be subject to review in accordance with the Kansas judicial review act by appeal directly to the court of appeals.” (Emphasis added.)
Cardenas asserts that the ALJ's order, made after the preliminary hearing, is a final order subject to our review because it completely denied the compensability of his injury and disposed of all of the issues. He relies on Rivera v. Cimarron Diary, 267 Kan. 865, 988 P.2d 235 (1999), for support.
In Rivera, two workers were injured while working on a dairy farm. One of the issues presented at the preliminary hearing was whether the dairy farm was subject to the Act. The ALJ determined that the dairy farm was subject to the Act and entered preliminary orders requiring it to furnish medical treatment and temporary total benefits to the claimants. The dairy farm appealed to the Board, and on appeal the Board determined that the dairy farm was exempt from the provisions of the Act and, therefore, the ALJ had no jurisdiction to award preliminary compensation. Accordingly, the Board set aside the ALJ's award of preliminary benefits and dismissed the case. The workers sought judicial review. The Supreme Court determined: “The Board's order dismissing the case ... was a final order. The workers are entitled to request judicial review of a final order. This court has jurisdiction to review the Board's order.” 267 Kan. at 869.
Unlike in Rivera, in which the Board's decision ended the agency proceedings, there is nothing in the record here indicating that the Board's decision was a final order. Neither the Board nor the ALJ dismissed Cardenas' case or otherwise denied him the opportunity to present further evidence at a full hearing. The ALJ's order specified that it pertained to Cardenas' application for preliminary hearing, and it merely denied Cardenas' request for preliminary compensation. The Board's order affirming the ALJ did nothing more than adopt and affirm the ALJ's findings. By all appearances, these are preliminary findings.
Pursuant to K.S.A.2014 Supp. 44–555c(j), Board hearings are to be heard by two or more members of the Board, “except that an appeal from a preliminary award entered under K.S.A. 44–534a, and amendments thereto, may be heard by a panel of one member.” Here, the review of Cardenas' claim was considered by only one Board member. By the express terms of K.S.A.2014 Supp. 44–534a(a)(2), the ALJ's findings are not binding and are subject to a complete presentation of the facts at a full hearing. If and when the Board has the opportunity to consider the ALJ's final decision, the matter will be heard by more than one Board member.
This determination finds support ir our decision in Butera v. Fluor Daniel Const. Corp., 28 Kan.App.2d 542, 543, 18 P.3d 278 (2001). There, the ALJ preliminarily found that the claimant's injury was not compensable because he was not acting within the scope of his employment when he was injured, and the Board affirmed that finding. The case proceeded to a final hearing before the ALJ, who again determined that the claimant was not within the scope of his employment when he was injured. But this time on Board review the Board reversed the ALJ and found that the injury was compensable. 28 Kan.App.2d at 543.
The employer appealed, arguing that the ALJ's preliminary finding had been a final order regarding the issue of jurisdiction. Thus, when the Board initially affirmed the ALJ's finding on this issue, Butera should have sought judicial review. Instead, he proceeded to a final hearing before the ALJ. From this, the employer argued that the court lacked jurisdiction to consider at this late date the question whether Butera was a covered employee because Butera should have sought judicial review of the original Board finding that his injury did not occur during the course of his employment.
Our court disagreed, noting that K.S.A.1999 Supp. 44–534a(a)(2) explicitly states that the preliminary order on whether the njury arose out of and in the course of the employee's employment is reviewable by the Board but not subject to judicial review and that preliminary orders are not binding and are subject to a later full presentation of the facts. Thus, Butera's failure to seek judicial review of the Board's initial order did not constitute a waiver of his right to argue the issue on appeal. 28 Kan.App.2d at 544–45.
Butera teaches that even when the ALJ's preliminary order denies the compensability of the injury, that factual determination is not binding or final. This is different than Rivera, in which the employer's exemption from the Act caused the Board to dismiss the case after the preliminary hearing.
The preliminary hearing allows an ALJ to make a summary determination as to whether the claimant should be receiving temporary total or partial compensation and medical treatment under the Act pending a full hearing. Quant v. IBP, 38 Kan.App.2d 874, 880, 173 P.3d 1149 (2008). Here, although the ALJ denied these benefits, that ruling and the Board's initial review of that ruling did not terminate the case. By the plain language of both K.S.A.2014 Supp. 44–534a(a)(2) and K.S.A.2014 Supp. 44–556(a), the Board's decision on the appeal of the ALJ's preliminary order cannot be reviewed by this court. Cardenas has not been foreclosed from presenting further evidence on this issue to the ALJ at the final hearing. Because we lack jurisdiction to entertain this appeal, it is dismissed.
Appeal dismissed.