What’s In A Comma?

Divided Kansas Supreme Court Argues Over Workers’ Comp Act’s “Failure to Move Forward” Statute

In a divided decision, the Supreme Court of Kansas held that Kan. Stat. Ann. § 44-523(f)(1) 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 [Glaze v. Williams, 2019 Kan. LEXIS 75 (Apr. 19, 2019)]. The majority stated that the statute unambiguously prohibited an ALJ from granting an extension unless a motion for extension had been filed within the three-year period and it stressed that any other interpretation strained the common reading of the statute's ordinary language. The dissent argued, in relevant part, that the majority's reasoning was based "upon a comma.”


On December 5, 2012, Glaze filed an application for hearing with the Kansas Division of Workers Compensation, asserting that he fell and injured himself while working for the employer. On January 4, 2016, the employer filed an application for dismissal, stating that the ALJ should dismiss Glaze's claim pursuant to Kan. Stat. Ann. § 44-523(f), because Glaze had failed to move the claim towards regular hearing or settlement within three years of filing his application for hearing.

On January 29, 2016, Glaze filed a “request for extension of time to schedule out of state deposition and to schedule regular hearing.” Glaze asserted that the case was not ready to proceed to final hearing because, due to factors beyond the control of either claimant or his counsel, claimant had not been able to depose his psychologist.

Claimant Dismissed; Dismissal Affirmed

Following a hearing, the ALJ dismissed the claim, explaining that under the relevant statute, the dismissal was required because Glaze had not moved for an extension within three years of filing his application for hearing. The Board affirmed, with one member dissenting. A panel of the Court of Appeals affirmed.

Majority of Supreme Court: No Ambiguity

Initially, the majority noted that when statutory language was clear and unambiguous, the Court simply interpreted the words used by the Legislature. Glaze had challenged the statute’s third sentence:

The administrative law judge may grant an extension for good cause shown, which shall be conclusively presumed in the event that the claimant has not reached maximum medical improvement, provided such motion to extend is filed prior to the three year limitation provided for herein.

Did the Third Clause Modify the Second, or the First?

The majority noted that the Board had consistently interpreted this sentence to mean that, when a claim has not proceeded to a regular or settlement hearing or a final award within three years from the filing of an application for hearing, an ALJ may grant an extension only if the claimant moved for an extension within the three years [emphasis added]. The majority added that the Court of Appeals had agreed with that interpretation, although the majority found the path pursued by the Court of Appeals had been faulty.

The issue boiled down to whether the third clause modified the second, or rather if it modified the first (as had been the consistent view of the Board). The majority said it should be clear that the third clause modified the first. The majority said further that the provision in question unambiguously prohibited an ALJ from granting an extension unless a motion for extension has been filed within three years of filing the application for hearing. The majority stressed that any other interpretation strained the common reading of the statute's ordinary language.

The majority acknowledged the argument put forth in the dissent with a biting tone:

The dissent's assertion that “we should look beyond rules of grammar and punctuation when considering ambiguity” is puzzling. Slip op. at 10. Rules of grammar and punctuation (and usage, syntax, etc.) give structure to our written language, without which we would have nothing from the Legislature but useless word salad. We have often said that the plain, written language of the Legislature is our best and only safe tool for divining its intent. See, e.g., State v. Gensler, 308 Kan. 674, 677, 423 P.3d 488 (2018). With these points as undeniable givens, it seems the wisest course is to keep this tool sharp, rather than letting it degrade under the advancing, reedy surf of declining standards.

Sharpening “the tool” with its words, the majority also observed:

Finally, before concluding, we respond in one further way to the dissent. At least some of us might swallow hard and overlook the dissent's hamfisted handling of the English language but for our inability to understand how it can lead to its outcome. Even if the third clause of the sentence under scrutiny somehow should “modify” the second clause, a claimant still needs to seek an extension within three years, unless the third clause is completely ignored. We are not willing to depart from our routine reluctance to add or subtract language from a statute.

Spirited Dissent

Justice Rosen offered a long and spirited defense, noting—in relevant part—that “the majority's interpretation stands on the presence of a single comma” [Opinion, p. 13]. Justice Rosen offered examples of experts in the use of English grammar and offered a host of textual examples in which the final clause, in a list of clauses, would indeed modify the penultimate, and not the first. Justice Rosen stressed also that the statute’s legislative history did not support the position that had been taken by the Court’s majority.

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