Kansas High Court Says Amendment to “Failure to Move Forward” Statute Applies Retroactively

In a second recent case construing the effects of Kan. Stat. Ann. § 44-523(f)(1), which, according to the first such case, Glaze v. Williams, 2019 Kan. LEXIS 75 (Apr. 19, 2019)[see my post of yesterday], requires a workers compensation claimant to move for an extension within three years of filing his or her application for hearing, if the claim is to survive a proper motion to dismiss, the Supreme Court of Kansas, in another divided decision, held that the 2011 amendment to the statute, which changed the limitations period from five years to three, was a procedural change and not a substantive change. Accordingly, the majority of the Court held the three-year time period applied to any cases pending during the statute’s enactment in which the claimant did not file an application for hearing until after the change took effect [Knoll v. Olathe Sch. Dist. No. 233, 2019 Kan. LEXIS 70 (Apr. 19, 2019)].

Background

Knoll filed an application for hearing with the Kansas Division of Workers Compensation. When the claim did not proceed to final hearing within three years from that filing and Knoll had not filed a motion for extension, the employer moved for the dismissal of the claim. The ALJ denied the motion, reasoning that Knoll had five years to proceed to final hearing or file a motion under the 2009 version of Kan. Stat. Ann. § 44-523(f). The Board affirmed. The Court of Appeals reversed, however, holding that the 2011 version of the statute—which reduced the time limit from five years to three—applied to the case. Knoll appealed.

The majority of the Supreme Court noted that the parties agreed that, if the 2011 version applies to this case, then Knoll’s claim should have been dismissed when she did not file a motion for extension within three years from filing her application for hearing, but if the 2009 version applies, then Knoll’s claim was not subject to dismissal because she had five years to file the motion and she met that deadline. The majority added that the stipulation comports with its decision in Glaze.

Was the Amendment Procedural?

The majority agreed with Knoll that the beginning point for applicable law in a workers compensation case is the date of injury. It added, however, that when a law changes, it applies to a pending case when it has only procedural effect. Therefore, the primary issue in this case was whether the 2011 amendments to K.S.A. 44-523(f) were procedural in nature.

Generally speaking, said the majority, statutes of limitations are considered procedural. While the 2011 amendment was not exactly a statute of limitations, it was “very similar,” said the majority. Similar to a statute of limitations, this statute cuts off a remedy and can be waived, lost, or extended by statute.

The majority continued that the 2011 amendment took effect before Knoll filed her application for hearing. If the amendment thwarted a right to have five years to proceed to final hearing from the time of filing, as Knoll argued, it did so before Knoll even asserted that right. Both of those observations lead the majority to conclude that, in this case, the 2011 amendment effected procedural change, not substantive change.

Majority’s Conclusion

The majority concluded that the 2011 version of Kan. Stat. Ann. § 44-523(f) applied to any cases that were pending during its enactment when the claimant did not file an application for hearing until after the 2011 amendments took effect. Though Knoll suffered her injury in 2009, she filed her application for hearing six months after the 2011 amendments became effective. controlled her claim. The majority concluded that because Knoll did not file her motion for extension until after the three-year time limit provided, the Court of Appeals was correct when it reversed the Board’s decision affirming the ALJ’s denial of the school district’s motion for dismissal.

Dissent Opinion

As was the case in Glaze, Justice Rosen dissented.

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