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    ESTATE OF Terrill L. GRABER, Appellant, v. DILLON COMPANIES, Appellee.
    No. 113,412
    Supreme Court of Kansas.
    Opinion filed April 12, 2019
    Jan L. Fisher, of McCullough, Wareheim & LaBunker, of Topeka, argued the cause, and Matthew L. Bretz, of Bretz & Young, LLC, of Hutchinson, was with her on the briefs for appellant.
    Dallas L. Rakestraw, of McDonald Tinker P.A., of Wichita, argued the cause and was on the briefs for appellee.
   The opinion of the court was delivered by Biles, J.:

To obtain benefits under the Kansas Workers Compensation Act, K.S.A. 2018 Supp. 44-501 et seq., an injured worker must demonstrate that the worker suffered personal injury by accident, repetitive trauma, or occupational disease arising out of and in the course of employment. K.S.A. 2018 Supp. 44-501b(b). In 2011 the Legislature excluded from the events eligible for benefits an accident or injury that "arose either directly or indirectly from idiopathic causes ." (Emphasis added.) K.S.A. 2018 Supp. 44-508(f)(3)(A)(iv). In this case of first impression, we must define what the term "idiopathic causes" means.

This question presents itself because Terrill L. Graber was injured when he fell down a workplace stairway and the accident's cause remains a mystery. The Workers Compensation Appeals Board denied Graber compensation. It construed the statutory "idiopathic causes" exclusion broadly to cover all unknown causes. A Court of Appeals panel reversed, defining the term more narrowly. Graber v. Dillon Companies , 52 Kan. App. 2d 786, 377 P.3d 1183 (2016). Graber's employer, Dillon Companies, petitioned for review of that decision by this court, preferring the broader definition. As explained, our interpretation differs from the reading given by the Board and the panel. We hold the term "idiopathic causes" in this context means medical conditions or medical events of unknown origin that are peculiar to the injured individual. We remand Graber's case to the Board for reconsideration consistent with our interpretation.

FACTUAL AND PROCEDURAL BACKGROUND

Graber worked as a forklift operator at Jackson's Dairy, a Dillon Companies subsidiary. Jackson's required Graber to attend a paid safety meeting at the nearby Dillon headquarters. The meeting was on the second floor, so Graber had to go up and down a flight of stairs several times that day. Graber described the stairway as having concrete steps with metal hand railings.

When the meeting ended, Graber walked to a restroom near the stairs. He ended up face down on a landing at about the midpoint on the stairway, shattering or breaking three vertebra in his neck. He was hospitalized for several days, underwent surgery, and had to wear a neck brace for 11 weeks.

Graber said he did not remember leaving the restroom and there were no witnesses. There was no evidence tending to show exactly how the fall occurred. And there was no evidence of anything unusual about the stairs that might have caused Graber to trip or slip on them.

There was evidence that stairways generally pose a greater risk than flat surfaces. John Troyer, the instructor for the safety training, testified stairs are a potential safety issue because "people fall on them all the time." He explained the elevation change increases the risk. When asked if stairs themselves create a greater risk of injury than just a flat, level floor, he concluded "[a]nything that has an elevation change would increase the chance of, I mean, anything. If there's a crack in the sidewalk or ice or anything that is different than the flat level ground would increase it, yes." He agreed that when an employee must use stairs as part of a job, there is an increased risk for falling and being injured. This was echoed by Dr. Paul Stein, who did an independent medical evaluation of Graber. Stein agreed stairs are harder to navigate than flat walkways, noting they are "a more complex bodily activity." He also acknowledged there is a greater injury risk when someone falls on stairs, as compared to a flat walkway.

There also was evidence Graber suffered from diabetes, a condition requiring him to take insulin and check his blood sugar daily. And Graber testified he had not checked his blood sugar the day of the accident. But he said his blood sugar had gotten high sometimes, and he had noticed no adverse effects.

There was no evidence that Graber's diabetes contributed to the accident. Graber testified he felt great when the meeting was winding up and had experienced no fainting spells, numbness, tingling, or problems with feeling in his extremities from the diabetes. A coworker said Graber did not act strangely and did not seem to be in a fog, unconscious, dazed, confused, or stumbling. He did not observe anything unusual about Graber's behavior when he last saw him before the fall. And another coworker also denied seeing anything wrong with Graber during the meeting, such as dizziness, confusion, or unsteadiness.

Graber applied for workers compensation benefits, claiming his fall was a work-related injury. An administrative law judge awarded him benefits after finding the injury arose out of and in the course of his employment. The administrative judge reasoned the requirement to use the stairs increased the risk to Graber, and that the accident did not arise from an idiopathic or neutral risk, giving the injury a clear employment character. Dillon appealed, arguing the fall's cause was unknown, which meant Graber's injuries arose from an idiopathic cause and were not compensable.

The Board agreed with Dillon. After noting the fall was of unknown origin or cause, the Board found the accident did not arise out of and in the course of Graber's employment with Dillon. The Board noted that before the Legislature excluded what the Board described as "idiopathic falls" from compensation, unexplained falls in Kansas were considered compensable. The Board also noted that most jurisdictions compensate injured workers suffering from unexplained falls based on an understanding that an unexplained fall is a neutral risk and would not have otherwise occurred if the employee had not been working. But, it reasoned, the Act's 2011 changes showed the "legislature displayed a clear intent to exclude such unexplained and neutral risk injuries from compensation."

Graber appealed. A Court of Appeals panel reversed. The panel held "idiopathic" as used in the Act means "personal or innate to the claimant." Graber , 52 Kan. App. 2d at 795, 377 P.3d 1183. It concluded Graber's injuries could be compensable if the staircase posed an increased risk sufficient to supply the necessary causal connection between the employment and the injuries. The panel remanded the case to the Board to resolve the factual question whether Graber's injury arose out of and in the course of employment based on the panel's statutory interpretation. 52 Kan. App. 2d at 798, 377 P.3d 1183.

We granted Dillon's petition for review. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review). After review was granted, we substituted the Estate of Terrill L. Graber as the claimant/appellant.

ANALYSIS

An accidental workplace injury is compensable if it arises out of and in the course of employment. K.S.A. 2018 Supp. 44-501b(b). But the law provides exclusions from that general rule when an accident or injury arises directly or indirectly from idiopathic causes. K.S.A. 2018 Supp. 44-508(f)(3)(A)(iv). Dillon challenges the panel's decision solely on the disputed definition of "idiopathic causes."

Standards of review

The Board's decision is subject to review under the Kansas Judicial Review Act, K.S.A. 2018 Supp. 77-601 et seq. The party challenging it bears the burden of proving the agency action was invalid. See K.S.A. 2018 Supp. 77-621(a). The reviewing court may grant relief only for statutorily enumerated reasons, which include two relevant for this appeal: the agency erroneously interpreted or applied the law, and the agency action was based on a factual determination not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole. K.S.A. 2018 Supp. 77-621(c). The statutes further provide:

" '[I]n light of the record as a whole' means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record ... cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency's explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review." K.S.A. 2018 Supp. 77-621(d).

The interpretation or construction of the Workers Compensation Act is a question of law. But once that interpretation or construction occurs, the ultimate question of whether an accident arises out of and in the course of employment is a question of fact. Atkins v. Webcon , 308 Kan. 92, 95, 419 P.3d 1 (2018). The determination of whether the Board's findings of fact are supported by substantial competent evidence is a question of law. 308 Kan. at 95, 419 P.3d 1.

Additional background

An employer is liable to pay workers compensation "[i]f in any employment to which the workers compensation act applies, an employee suffers personal injury by accident, repetitive trauma or occupational disease arising out of and in the course of employment...." K.S.A. 2018 Supp. 44-501b(b). To obtain compensation,

"The burden of proof shall be on the claimant to establish the claimant's right to an award of compensation and to prove the various conditions on which the claimant's right depends. In determining whether the claimant has satisfied this burden of proof, the trier of fact shall consider the whole record." K.S.A. 2018 Supp. 44-501b(c).

Before 2011, the Act did not define "arising out of and in the course of employment" except to exclude injuries suffered while coming and going from work or sustained at recreational or social events. See K.S.A. 2010 Supp. 44-508(f). Caselaw construing the phrase "arising out of and in the course of employment" explained,

" ' "The two phrases arising 'out of' and 'in the course of' employment, as used in our Workers Compensation Act ... have separate and distinct meanings; they are conjunctive, and each condition must exist before compensation is allowable. The phrase 'out of' employment points to the cause or origin of the worker's accident and requires some causal connection between the accidental injury and the employment. An injury arises 'out of' employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Thus, an injury arises 'out of' employment if it arises out of the nature, conditions, obligations, and incidents of the employment. The phrase 'in the course of' employment relates to the time, place, and circumstances under which the accident occurred and means the injury happened while the worker was at work in the employer's service." ' [Citations omitted.]" Atkins , 308 Kan. at 98, 419 P.3d 1 (quoting Scott v. Hughes , 294 Kan. 403, 416, 275 P.3d 890 [2012] ).

The Legislature amended the Act in 2011. This legislation was touted as a compromise negotiated between business and labor. See Minutes of Sen. Commerce Committee, March 9, 2011, Att. 1 (Testimony of Frederick J. Greenbaum, attorney appearing on behalf of Kansas Chamber of Commerce, Kansas Society of Human Resource Management, and Kansas Self-Insurers Association). The testimony favoring revision does not specifically address the idiopathic cause exclusion.

According to the legislation's proponents, the "arises out of" component, meant to require a causal connection between work and injury but had obtained "a misguided interpretation of what injuries arise out of work." See Minutes of Sen. Commerce Committee, March 9, 2011, Att. 1, p. 1. Proponents meant their proposal to

"raise[ ] the standard for compensability. Under the compromise, the work incident must now be the 'prevailing facto' or the cause of both the accident and the injury. The 'prevailing factor' test will require employers to only compensate employees and treat conditions for which the work injury was the prevailing or primary factor in relation to all other factors." See Minutes of Sen. Commerce Committee, March 9, 2011, Att. 1, p. 2.

Proponents also singled out appellate court decisions they claimed "resulted in the need for significant modifications to the language in the Act." See Minutes of Sen. Commerce Committee, March 9, 2011, Att. 3, p. 2 (Testimony of Gary R. Terrill, Kansas Association of Defense Counsel). In their view, "Both newer and older case law have resulted in Kansas employers paying for compensation for physical conditions which were not caused by the work the employee performed for the employer against which the claim has been made." See Minutes of Sen. Commerce Committee, March 9, 2011, Att. 3, p. 2.

After the 2011 revisions, K.S.A. 2018 Supp. 44-508(f) now provides,

"(2) An injury is compensable only if it arises out of and in the course of employment. An injury is not compensable because work was a triggering or precipitating factor. An injury is not compensable solely because it aggravates, accelerates or exacerbates a preexisting condition or renders a preexisting condition symptomatic.
....
(B) An injury by accident shall be deemed to arise out of employment only if:
(i) There is a causal connection between the conditions under which the work is required to be performed and the resulting accident; and
(ii) the accident is the prevailing factor causing the injury, medical condition, and resulting disability or impairment.
"(3)(A) The words 'arising out of and in the course of employment' as used in the workers compensation act shall not be construed to include:
(i) Injury which occurred as a result of the natural aging process or by the normal activities of day-to-day living;
(ii) accident or injury which arose out of a neutral risk with no particular employment or personal character;
(iii) accident or injury which arose out of a risk personal to the worker; or
(iv) accident or injury which arose either directly or indirectly from idiopathic causes ." (Emphasis added.)

Discussion

Dillon contends Graber's accident arose directly from an idiopathic cause, so the accident did not arise out of his employment because there was no evidence establishing what caused him to fall. Dillon attributes two missteps to the panel: (1) ignoring the plain meaning of "idiopathic"; and (2) reaching a result that renders the "risk personal to the worker" exclusion in subsection (3)(A)(iii) superfluous. We reject each argument.

1. The panel's interpretation is consistent with the statute's plain language.

Legislative intent governs when courts interpret statutes if that intent can be determined. State v. Davey , 306 Kan. 814, 820, 397 P.3d 1190 (2017).

"When a statute is plain and unambiguous, a court must give effect to its express language, rather than determine what the law should or should not be. Graham v. Dokter Trucking Group , 284 Kan. 547, 554, 161 P.3d 695 (2007). We determine legislative intent by first applying the meaning of the statute's text to the specific situation in controversy. See State v. Phillips , 299 Kan. 479, 495, 325 P.3d 1095 (2014) (first task in construing statute is to ascertain legislative intent through analysis of language employed, giving ordinary words their ordinary meanings). A court does not read into the statute words not readily found there. Whaley [v. Sharp] , 301 Kan. [192] at 196, 343 P.3d 63 [ (2014) ] ; Graham , 284 Kan. at 554 [161 P.3d 695] ; see Casco v. Armour Swift-Eckrich , 283 Kan. 508, 525, 154 P.3d 494 (2007). When the language is unclear or ambiguous, the court employs the canons of statutory construction, consults legislative history, or considers other background information to ascertain the statute's meaning. Whaley , 301 Kan. at 196 [343 P.3d 63]." Hoesli v. Triplett, Inc. , 303 Kan. 358, 362, 361 P.3d 504 (2015).

A court presumes the Legislature expressed its intent through the statutory language used. And while words in common usage should be given their ordinary meaning, words and phrases that acquire a peculiar and appropriate meaning in law are construed accordingly. Foos v. Terminix , 277 Kan. 687, 695-96, 89 P.3d 546 (2004). State law also provides:

"In the construction of the statutes of this state the following rules shall be observed, unless the construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute:
....
"Second. Words and phrases shall be construed according to the context and approved usage of the language, but technical words and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings." K.S.A. 2018 Supp. 77-201.

The panel's analysis turned first to dictionary definitions of idiopathic. "Dictionary definitions are good sources for the 'ordinary, contemporary, common' meanings of words." Midwest Crane & Rigging, LLC v. Kansas Corporation Comm'n , 306 Kan. 845, 851, 397 P.3d 1205 (2017). The panel reasoned:

"Webster's Unabridged Third New International Dictionary 1123 (1993) defines idiopathic as being peculiar to the individual or arising spontaneously or from an obscure or unknown cause. The Merriam-Webster Dictionary (Online ed. 2016) defines idiopathic as arising spontaneously or from an obscure or unknown cause or as peculiar to the individual. The Concise Oxford English Dictionary 705 (10th ed. rev. 2002) defines idiopathic as it applies to medicine as a disease or condition which arises spontaneously or for which the cause is unknown.
"Unfortunately these definitions do not resolve the question of what idiopathic means." Graber , 52 Kan. App. 2d at 791, 377 P.3d 1183.

In Dillon's view, these definitions show a "unanimity of opinion" the panel ignored-"that 'idiopathic' means arising spontaneously from an unknown cause." But even if the panel placed insufficient stock in dictionary definitions, it was not in the way Dillon contends because the consistent connotation is medical in nature.

Closer analysis rebuts Dillon's claim that "idiopathic" means merely "spontaneous" and "unknown." Webster's New World College Dictionary 722 (2016) defines "idiopathic" as "designating or of a disease whose cause is unknown or uncertain." Webster's Unabridged Third New International Dictionary 1123 (1993), which the panel cited, defines "idiopathic" as "1: peculiar to the individual," in the sense of "innate," as in "[idiopathic] sensitivity"; and "2: arising spontaneously or from an obscure or unknown cause," in the sense of "primary," as in "[idiopathic] epilepsy." And Webster's II New Riverside University Dictionary 608 (1994) defines "idiopathic" as the adjective form of "idiopathy," which is defined as "1. A disease of unknown origin or cause. 2. A disease for which no etiology is known." See also Georgia Workers' Comp. Law & Practice § 6:5 n.1 (" 'Idiopathic' pertains to conditions without a clear pathogenesis [without a clear origin of the pathology] or to disease without a recognizable cause, of spontaneous origin.") (citing Taber's Cyclopedic Medical Dictionary [F.A. Davis Co., 1977] ).

Secondary authority also supports the panel's interpretation based on the term's meaning in caselaw. See Midwest Crane , 306 Kan. at 851, 397 P.3d 1205 (citing caselaw discussing "cargo" in the context of shipping goods as support for conclusion that to be "cargo" as used in federal motor carrier statute did not include movable property permanently affixed to mode of conveyance); see also Graber , 52 Kan. App. 2d at 791-94, 377 P.3d 1183.

Before the 2011 amendments, our caselaw employed the word "idiopathic" in connection with medical conditions. See Echord v. Rush , 124 Kan. 521, 525, 261 P. 820 (1927) (holding injury from occupational disease noncompensable because, citing Delaware court's rationale that "[s]low, gradual idiopathic disease, unaccompanied and unrelated to any injury by accident, but caused by exposure to acid and chemicals, is not embraced within the terms of workmen's compensation law" for the proposition that "accident" requires "suddenness"). And in a 1987 criminal case, the court commented that some researchers "consider alcoholic epilepsy to be only one of the many forms of epilepsy, most of which are idiopathic, meaning of unknown cause." State v. Massey , 242 Kan. 252, 747 P.2d 802 (1987). Similarly, in a 2008 tort case discussing "multiple-chemical sensitivity, also known as "idiopathic environmental intolerances," the Court of Appeals commented that "Doctors use the term idiopathic to refer to something for which the cause is unknown." Kuxhausen v. Tillman Partners , L.P. 40 Kan. App. 2d 930, 935, 197 P.3d 859 (2008) ; see also Calwell v. Hassan , 260 Kan. 769, 774, 925 P.2d 422 (1996) (expert witness in personal injury litigation against vehicle driver and driver's doctor testified driver probably "had idiopathic hypersomnolence").

Also, a handful of preamendment workers compensation cases used the word in connection with medical conditions. See Bennett v. Wichita Fence Co. , 16 Kan. App. 2d 458, 460, 824 P.2d 1001, 1002 (1992) (describing a workers compensation claimant's epileptic seizure as a " 'personal [idiopathic] condition of the employee' "); see also Burton v. Rockwell International , 266 Kan. 1, 4, 967 P.2d 290 (1998) (quoting ALJ decision noting doctor's written reports stated claimant had aggravations of his "idiopathic adult onset asthma"); Echord , 124 Kan. at 525, 261 P. 820. And in an unpublished decision, Bissen v. Hy-Vee Food Stores , No. 92,457, 2004 WL 3048953, at *3 (Kan. App. 2004), the Court of Appeals affirmed the Board's finding that a claimant "suffered an idiopathic/personal condition" when there was evidence she suffered dizziness right before a fall and reported to paramedics that she had fainted.

The panel noted other Court of Appeals decisions invoking Bennett 's idiopathic condition rule in circumstances involving claimant's preexisting medical conditions. See Anderson v. Scarlett Auto Interiors , 31 Kan. App. 2d 5, 6, 61 P.3d 81 (Kan. App. 2002) (lower back pain); Hirsi v. Tyson Fresh Meats, Inc. , No. 103,760, 2011 WL 169176, at *6 (Kan. App. 2011) (unpublished opinion) (tuberculosis ); Lietzke v. True-Circle Aerospace , No. 98,463, 2008 WL 2369908, at *9 (Kan. App. 2008) (unpublished opinion) (preexisting hip and groin injuries); Heller v. Conagra Foods, Inc. , No. 96,990, 2007 WL 1814293, at *5 (Kan. App. 2007) (unpublished opinion) (arthritis ); Prue v. Asplundh Tree Expert Co. , No. 95,139, 2006 WL 2129211, at *3 (Kan. App. 2006) (unpublished opinion) (degenerative arthritis ); see also Miller v. Board of Trustees of KPERS , 21 Kan. App. 2d 315, 320, 898 P.2d 1188 (1995) (citing Bennett in discussion whether police officer's hip injuries, heart attack, and psychological problems were service-related disabilities for purposes of drawing KPERS benefits).

Admittedly, these cases do not set out to define "idiopathic," including the two on which Dillon relies, Massey and Kuxhausen . But their common theme is that the term is used to signify a medical condition or medical event-not as a synonym for all unknown causes.

Also persuasive is recognition that our caselaw's repeated use of "idiopathic" in the medical context is consistent with the leading treatises' view of how workers compensation schemes consider "idiopathic." For example, Professor Larson maintains a distinction between cases involving unexplained falls and those "in which there was at least some possibility of a personal or idiopathic factor contributing to the fall." 1 Larson's Workers' Compensation Law § 7.04[1][b] (2018). He maintains that while a risk may be neutral either because the risk is known but not associated with the employment or the employee or because the cause of harm is unknown, "[w]henever personal disease or weakness contributes to the fall, an entirely new set of rules comes into play, since the risk is no longer neutral but either personal or, perhaps, 'mixed'...." 7.04[1][b]. He explains:

"When an employee, solely because of a nonoccupational heart attack, epileptic fit, or fainting spell, falls and sustains a skull fracture or other injury, the question arises whether the skull fracture (as distinguished from the internal effects of the heart attack or disease, which of course are not compensable) is an injury arising out of the employment.
"The basic rule, on which there is now general agreement, is that the effects of such a fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle. The long-standing controversial question is whether the effects of an idiopathic fall to the level ground or bare floor should be deemed to arise out of the employment." 1 Larson's Workers' Compensation Law § 9.01[1].

A recent section of Larson's treatise entitled "Danger of Confusion with Idiopathic Fall Cases," mentions the panel's Graber decision as one in which "a Kansas court had to remind the state's Workers' Compensation Board that 'idiopathic' and 'unknown' are not synonyms; they have completely different meanings." 1 Larson's Workers' Compensation Law § 7.04[1][b].

Similarly, in 2 Modern Workers Compensation § 116.10, it is said,

"When an employee brings to his or her job some idiopathic condition before any injury can be found to be compensable under the workers' compensation law the employee must demonstrate that it resulted from an exertion or strain beyond that which he or she normally encountered in nonworking life. The standard of compensability for employees suffering from idiopathic conditions is therefore more confining than the general requirements for an injury to arise out of and in the course of the employment."

And in 99 C.J.S. Worker's Compensation § 524, a fall from "idiopathic" causes is defined as "a fall due to a cause internal or personal in nature, or peculiar to the employee." C.J.S. cites Builder's Square, Inc. v. Industrial Com'n , 339 Ill. App. 3d 1006, 1009, 274 Ill.Dec. 897, 791 N.E.2d 1308 (2003) (evidence showed an employee fell because of "an idiopathic condition such as cardiac arrhythmia or a cerebral hemorrhage"), as a case exemplifying its definition. And it cites another case in which an employee fainted when it was possible that "the cause of the faint was idiopathic." Damis v. Cotter & Co. , 89 Or. App. 219, 221-22, 748 P.2d 166 (1988).

The panel did not ignore the plain meaning of the term "idiopathic causes" when it refused to adopt Dillon's view that the term encompasses all "unknown causes."

2. Dillon's favored interpretation is not mandated by the general rule that courts avoid interpretations that render portions of the statute meaningless.

Dillon argues the panel's interpretation is wrong because it renders K.S.A. 2018 Supp. 44-508(f)(3)(A)(iii) (the "risk personal to the worker" exclusion) meaningless and redundant. It points out the panel conceded the redundancy when it reasoned:

"If idiopathic were defined as personal, it appears it would overlap with the exception that injuries arising out of personal risk are not covered under the Act. K.S.A. 2015 Supp. 44-508(f)(3)(A)(iii). If idiopathic were defined as of unknown cause, however, then an idiopathic fall would be the same as an unexplained fall. Kansas courts have already held that unexplained falls are neutral risks. McCready v. Payless Shoesource , 41 Kan. App. 2d 79, 92, 200 P.3d 479 (2009). Defining idiopathic as unknown or unexplained, then, would overlap with the provisions excluding neutral risks. See K.S.A. 2015 Supp. 44-508(f)(3)(A)(ii). Either way, the provision appears redundant." Graber , 52 Kan. App. 2d at 794-95, 377 P.3d 1183.

But even if there is some redundancy with either the personal risk or neutral risk exclusions, that does not require a different definition of "idiopathic." The canon that a statute should be construed to give meaning to each word is "certainly ... one aid in construing statutory language, [but] it is neither the only one nor the cardinal one." See State v. Schreiner , 46 Kan. App. 2d 778, 784, 264 P.3d 1033 (2011). The "idiopathic" exclusion is a narrow one, certainly much narrower than the one proposed by Dillon.

In addition, Dillon's view that interpreting idiopathic to mean "unknown" would give meaning to each provision of K.S.A. 2018 Supp. 44-508(f)(3)(A) is flawed. Dillon suggests this progression of thought: (1) the "neutral risk" exclusion pertains only to accidents or injuries with known causes; and a (2) claimant's medical condition or other weakness is a personal risk; therefore (3) the only way to give effect to the term "idiopathic" is to define it as "unknown." But Dillon's first premise-that the neutral risk exclusion pertains only to accidents with known causes-is dubious. See McCready v. Payless Shoesource , 41 Kan. App. 2d 79, 92, 200 P.3d 479 (2009) (holding unexplained fall was compensable because it arose from a neutral risk, and therefore, the injury arose out of claimant's employment). Dillon cites three cases in which the court considered "known and established" reasons for the claimants' injuries to be "neutral risks." See Hensley v. Glass , 226 Kan. 256, 258, 597 P.2d 641 (1979) (declaring sniper assault a neutral risk); Siebert v. Hoch , 199 Kan. 299, 308, 428 P.2d 825 (1967) (employee killed by assailant whose motive was not known); Faulkner v. Yellow Transit Freight Lines, Inc. , 187 Kan. 667, 359 P.2d 833 (1961) (employee killed by tornado). Only Hensley characterizes the risk as "neutral," but the distinction Dillon advocates based on its facts ignores the source of Hensley 's "neutral" characterization-Larson's treatise.

The categories of risk referenced in the 2011 amendments-neutral and personal-appeared in Kansas caselaw in 1979. Hensley , 226 Kan. at 258, 597 P.2d 641. Citing 1 Larson, Workmen's Compensation Law § 7 (1978), the Hensley court explained,

"There are three general categories of risks in workmen's compensation cases: (1) those distinctly associated with the job; (2) risks which are personal to the workman; and (3) the so-called neutral risks which have no particular employment or personal character. The chance of being struck by sniper fire is not an ordinary risk associated with glass installers nor was the shooting of Hensley motivated by any personal connection with the sniper. The sniper's assault on Hensley falls into the category of neutral risks. See 1 Larson, Workmen's Compensation Law § 7 (1978)." 226 Kan. at 258, 597 P.2d 641.

Larson conceptualizes these risk categories as encompassing all possible risks that could result in a workplace injury. See 1 Larson's Workers' Compensation Law § 4.03 (2018) ("There are thus three categories of risk; but unfortunately, there are only two places where the loss may fall-on the industry or on the employee."). And Larson defines risks distinctly associated with employment and personal risks as the two ends of the risk continuum. The former "comprises all the obvious kinds of injury that one thinks of at once as industrial injury ... machinery breaking, objects falling, explosives exploding, tractors tipping, fingers getting caught in gears, excavations caving in, and so on...." 1 Larson's Workers' Compensation Law § 4.01. The latter includes "origins of harm so clearly personal that, even if they take effect while the employee is on the job, they could not possibly be attributed to the employment." 1 Larson's Workers' Compensation Law § 4.02. For example, Larson explains,

"[i]f the time has come for the employee to die a natural death, or expire from the effects of some disease or internal weakness of which he or she would as promptly have expired whether the employee had been working or not, the fact that the demise takes place in an employment setting rather than at home does not, of course, make the death compensable." 1 Larson's Workers' Compensation Law § 4.02.

Larson defines the third category, neutral risks, expansively to mean any risks that have no particular employment or personal character. This risk category is illustrated by

"a wide variety of controversial cases. A person hard at work in the middle of a factory yard may be hit by a stray bullet out of nowhere, bit by a mad dog, stabbed by a lunatic running amuck, struck by lightning, thrown down by a hurricane, killed by an enemy bomb, injured by a piece of tin blown from someone's roof, shot by a child playing with an air rifle, murdered as a result of mistaken identity, felled by debris from a distant explosion, or blinded by a flying beetle.
"Another kind of neutral-risk case is that in which the cause itself, or the character of the cause, is simply unknown . An employee may be found to have died on the job from unexplained causes, or he or she may suffer a slip or fall for no reason that anyone, including the employee, can explain . An employee may be attacked by unknown persons, whose motives may have been personal or related to the employment." (Emphases added.) 1 Larson's Workers' Compensation Law § 4.03.

According to Larson's, with respect to neutral risks

"the usual answer in the past has been to leave this loss on the employee, on the theory that he or she must meet the burden of proof of establishing affirmatively a clear causal connection between the conditions under which the employee worked and the occurrence of the injury. More recently, however, some courts have reasoned in the following vein: Either the employer or the employee must bear the loss; to show connection with the employment, there is at least the fact that the injury occurred while the employee was working; to show connection with the employee personally there is nothing; therefore, although the work connection is slender, it is at least stronger than any connection with the claimant's personal life." 1 Larson's Workers' Compensation Law § 4.03.

Notably, in McCready , which concluded that an unexplained fall was compensable, the Court of Appeals essentially applied this more recent rule about an unexplained workplace fall. The court held that the fall "was truly a neutral risk" because "[n]either party could explain the reason for [the claimant's] fall." 41 Kan. App. 2d at 79, 200 P.3d 479. And based solely on the fact the fall occurred at work, the court held "[t]he risk should ... be borne by [the employer]" and that the "injury arose out of [claimant's] employment." 41 Kan. App. 2d at 92, 200 P.3d 479.

Proponents of the 2011 amendments identified McCready as an impetus for the legislation. See Minutes of Sen. Commerce Committee, March 9, 2011, Att. 1, p. 2 (Testimony of Frederick J. Greenbaum) (noting proposed legislation "addresses the McCready case in that neutral falls or accidents will no longer be compensable. Again, it requires that there must be a causal connection between the work and the accident."). It seems the Legislature may have intended its new "neutral risk" exclusion to address unexplained workplace injuries-not the idiopathic causes exclusion. But we need not delve too deeply into this and do not decide the meaning of the "neutral risk" exclusion in this case, because Dillon does not claim it supports the Board's decision. Dillon asserts only that the evidence showed Graber's injury arose directly from an idiopathic cause.

We hold the plain language of K.S.A. 2018 Supp. 44-508(f)(3)(A)(iv) renders an injury noncompensable only upon proof the injury or accident arose directly or indirectly from a medical condition or medical event of unknown origin peculiar to the claimant. The term "idiopathic" as used in the caselaw and its definition in workers compensation treatises add persuasive heft to this conclusion.

3. There is not substantial competent evidence supporting the Board's finding.

In Bennett , the Court of Appeals discussed the rules applicable to idiopathic conditions when the record established the claimant's workplace accident was caused by a seizure. See 16 Kan. App. 2d at 460, 824 P.2d 1001. And in Bissen , 2004 WL 3048953, at *2-3, there was substantial competent evidence to support a finding that a fall was because of an "idiopathic/personal condition" when there was evidence the claimant fainted.

" ' "Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined." ' In re Equalization Appeal of Wagner , 304 Kan. 587, 599, 372 P.3d 1226 (2016) ; see Kotnour v. City of Overland Park , 43 Kan. App. 2d 833, 837, 233 P.3d 299 (2010) ('Although [ K.S.A. 77-621 ] does not define the term "substantial evidence," case law has long stated that it is such evidence as a reasonable person might accept as being sufficient to support a conclusion.')." Atkins v. Webcon , 308 Kan. 92, 96, 419 P.3d 1 (2018).

There was no evidence tending to show why Graber fell. Necessarily, there was no evidence he fell because of a medical condition or medical event. As a result, there was not substantial competent evidence to support the Board's finding the accident or injury arose directly or indirectly from an idiopathic cause under this statutory exclusion.

We affirm the Court of Appeals judgment reversing the Board's decision. We remand the case to the Board for reconsideration consistent with this interpretation of K.S.A. 2018 Supp. 44-508(f)(3)(A).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. James A. QUALLS III, Appellant.
    No. 115,648
    Supreme Court of Kansas.
    Opinion filed April 19, 2019.
    Kasper C. Schirer, of Kansas Appellate Defender Office, argued the cause, and Carol Longenecker Schmidt, of the same office, was on the brief for appellant.
    Rachel L. Pickering, assistant solicitor general, argued the cause, and Michael F. Kagay, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
   The opinion of the court was delivered by Rosen, J.:

In 2008, James Qualls shot a man to death following a dispute over a pool game. He was convicted of premeditated first-degree murder. This court reversed the conviction for failure to give lesser included offenses instructions. State v. Qualls , 297 Kan. 61, 298 P.3d 311 (2013). On retrial in 2014, a jury again found him guilty of premeditated first-degree murder. He takes this direct appeal.

FACTS

At the second trial, evidence of the following facts was introduced to the jury.

On the evening of July 16, 2008, Qualls and his wife, whom he had married five days earlier, and their children attended the Mexican Fiesta in Topeka. Qualls drank some beer there, and then the family returned to their house, where he drank some more. Qualls, his wife, and his sister then decided to go to a bar and, shortly after midnight, ended up at the Whiplash bar. Qualls was carrying a recently purchased 9 millimeter semi-automatic pistol in his pocket.

A dispute broke out over a pool game, when Qualls made a joking comment to Amber Martindale that she had made a lucky shot. As the dispute escalated, Qualls' wife bet Martindale $ 1000 that she could beat her in a fight. Qualls attempted to get between the women, and his wife went to the door and encouraged Martindale to come outside to fight. Martindale's fiancé, Joseph Beier, shouted at Qualls, telling him he had to get his "bitch" under control. The situation deteriorated, as Qualls' wife started yelling in Beier's face, and Beier hit Qualls in the face. Qualls grabbed hold of Beier and pushed him back against a wall.

The bartender, Cliff Cormier, attempted to break up the fight. From behind he grabbed Qualls around the neck and pulled him away from Beier. Beier hit him again, and then another bar patron, Mitchell McDonald, grabbed Beier and moved him against a wall.

What happened next is subject to some dispute. Qualls went to the ground as a result of Cormier's chokehold grip, and McDonald may have released Beier from his grip. Qualls got up and started to walk toward the door. Qualls testified that Beier's arms were free and he reached into his pants as if reaching for a gun. McDonald testified that he had a firm grip on Beier. In either event, Qualls pulled his pistol from his pocket and fired its contents, some 12 bullets, into Beier. Beier died from his wounds.

Multiple security cameras recorded the activities in the bar, and the recordings were introduced at trial. Unfortunately, the video recordings, although taken from different angles, are too choppy and indistinct to allow a clear understanding of what happened, and they neither confirm nor disprove Qualls' version of the events that prompted him to draw his gun and open fire.

Qualls and his wife then left the bar and drove off while someone fired shots at them, shooting out a car window and a tire as they left. Qualls dropped the gun somewhere in Topeka and later drove to Kansas City. He turned himself in to police a couple of weeks later. Following his conviction in the second trial, he took a direct appeal to this court, raising numerous claims of error. We address only his argument that the district court should have granted his request for a self-defense instruction.

ANALYSIS

Qualls requested an instruction on self-defense and an instruction on voluntary intoxication. The district court denied the requests, stating that the evidence did not support those defenses.

"[F]or instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in [ State v. ] Ward [, 292 Kan. 541, 565, 256 P.3d 801 (2011) ]." State v. Plummer , 295 Kan. 156, 163, 283 P.3d 202 (2012).

In Qualls I , the majority held that it was error not to give a voluntary manslaughter instruction under an imperfect self-defense theory. 297 Kan. at 72, 298 P.3d 311. This court held that Qualls' subjective claim that Beier was coming towards him and Qualls' testimony that he saw Beier reach for an object at his waist or believed Beier had a gun all sufficed to provide evidentiary support for the imperfect self-defense theory. 297 Kan. at 70-71, 298 P.3d 311. The court declined, however, to rule on Qualls' argument that he was entitled to an instruction on self-defense "because the evidence on retrial might change the analysis as to whether a self-defense instruction is appropriate." 297 Kan. at 73, 298 P.3d 311.

On retrial, the district court rejected Qualls' request for a self-defense instruction. The court explained that the evidence did not support such an instruction:

"I've heard no testimony that Mr. Qualls at any time prior to or up to this point believed or had seen any weapon in the bar. There is no indication that he was aware or that there was any weapons in that bar, from any testimony that came out. I mean we heard testimony from one person who said that later on someone came out of the bar later, but no indication that Mr. Qualls was aware of that, and I'm not even sure if there was weapons in the bar, but I'm trying to start with reasonable belief by the defendant. And there was no indication at the time that the shooting began that there were any weapons in the bar other than a pool cue perhaps.
....
"So defendant is permitted to use physical force against another person when, to the extent it appears and reasonably believes that physical force is necessary to defend himself against another person's imminent use of unlawful force. Reasonable belief requires both belief by the defendant and existence of facts that would persuade a reasonable-I just don't think that there's, it is, that you have facts that, that would suggest that Mr. Beiers [sic ], if he was reaching, that it is reasonable to believe that you should, that the amount of force that was used by Mr. Qualls was reasonable. I don't believe his, you know, this, I don't believe there is an existence of facts that would persuade a reasonable person to that belief, and that belief meaning Mr. Qualls was, had no option but to fire nine to, the number of times he fired."

The prosecution argued:

"[T]o qualify for an instruction in self-defense there must be some evidence presented the defendant reasonably believed. They've covered that the defendant believed this was necessary. He saw the victim's hand move. So he shot him nine to 12 times in the back. That's covered. He believed that. Whether it's reasonable, that's an objective analysis that a reasonable person would believe, and there is no evidence in front of the Court that Joseph Beier had any type of weapon, made any type of aggressive moves towards this defendant. This defendant's own testimony was he saw his hand move towards his waist.
....
"Joseph Beier could have been straightening his shirt because he just got picked up by a 400-pound guy and thrown against a wall, and this defendant believes that's reasonable to shoot him nine to 12 times in the back. There's no evidence of reasonableness of an objective standard, any evidence to put this theory to the jury."

Qualls' attorney responded:

"Well, here there is evidence, and it came from Mr. Qualls, he saw him reaching for something he believed it to be a weapon."

The district court rejected Qualls' argument and stayed with its original ruling.

It is undisputed that the issue of a self-defense instruction was preserved; Qualls requested the instruction and argued at length for it. The instruction would have been legally appropriate under K.S.A. 2017 Supp. 21-5222. See State v. Knox , 301 Kan. 671, 677-78, 347 P.3d 656 (2015) ; State v. Salary , 301 Kan. 586, 592-93, 343 P.3d 1165 (2015) (self-defense jury instruction can be legally appropriate for charge of first-degree murder). The next analytic question is whether the instruction was factually appropriate.

The elements to establish the right to use deadly force in self-defense are codified at K.S.A. 2017 Supp. 21-5222 :

"(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other's imminent use of unlawful force.
"(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.
"(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person."

Under this statute, deadly force can be justified only to the extent a person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm. Knox , 301 Kan. at 678, 347 P.3d 656. This court has recognized that the self-defense statute sets out a two-part test:

"The first is subjective and requires a showing that [the defendant] sincerely and honestly believed it was necessary to kill to defend herself or others. The second prong is an objective standard and requires a showing that a reasonable person in [the defendant's] circumstances would have perceived the use of deadly force in self-defense as necessary. [Citation omitted.]" State v. McCullough , 293 Kan. 970, 975, 270 P.3d 1142 (2012).

In State v. Haygood , 308 Kan. 1387, 1405-06, 430 P.3d 11 (2018), this court cautioned against confusing the subjective and objective requirements. Even if the only evidence supporting the defendant's theory consists of the defendant's own testimony, which may be contradicted by all other witnesses and by physical evidence, the defendant may have met his or her burden of showing that a reasonable person in his or her circumstances would have perceived the use of deadly force as necessary self-defense.

Haygood clarified both the requirements that a defendant must meet in order to receive a self-defense instruction and the kind of evidence that suffices to meet those requirements. In the present case, the district court did not have the benefit of the Haygood opinion, which was published in November 2018, to guide it in ruling on the instructional issues. Under Haygood , if Qualls' testimony was competent evidence that recited circumstances that could allow a reasonable juror to conclude that he was entitled to defend with deadly force, then he was entitled to a self-defense instruction.

K.S.A. 2017 Supp. 21-5108(c) requires a requested instruction on every affirmative defense that is supported by competent evidence:

"A defendant is entitled to an instruction on every affirmative defense that is supported by competent evidence. Competent evidence is that which could allow a rational fact finder to reasonably conclude that the defense applies. Once the defendant satisfies the burden of producing such evidence, the state has the burden of disproving the defense beyond a reasonable doubt."

Self-defense is such an affirmative defense. State v. Staten , 304 Kan. 957, 965, 377 P.3d 427 (2016).

The district court held that the evidence did not support the objective prong:

"The Court is going to deny offering the self-defense instruction to the jury, ... [ State v. Gonzalez , 282 Kan. 73, 145 P.3d 18 (2006) ] concluded that in that case fulfilling the objective prong requires more than the defendant's stated belief and requires evaluation of the evidence in light of the totality of the circumstances. In light of the totality of the circumstances the Court does not find that the objective prong of a reasonable belief has been met in this case. For those reasons the Court is going to deny use of that instruction."

Although the district court discounted the likelihood that a reasonable juror could have decided that Qualls was justified in using deadly force, Qualls' testimony, if believed, describes a scene in which he may well have justifiably felt threatened with imminent death or great bodily harm.

Qualls stated that after the confrontation began between Qualls' wife and Beier, Beier yelled at Qualls to get "his bitch" under control. The situation deteriorated into a physical fight. Beier hit Qualls. Qualls grabbed Beier, held his arms down, and pushed him back against a wall. Qualls expected other people to come to his help, but, instead, the bartender grabbed Qualls around the neck, causing him to fall backwards, and Beier punched Qualls again. Qualls got "choked out," fell to the floor, and "blacked out." Qualls came to, stood up, and was disoriented. Beier was shouting that Qualls should be getting his "bitch" out of there right now while he still could, before something else happened to him. Beier told him "to get the fuck out of here." Qualls took a couple of steps toward the door and tried to get his wife to leave with him. He then saw Beier "reaching for his waist as in a gesture like he had a gun." It was then that Qualls pulled his gun from his pocket and began firing, walking over to Beier and emptying all the bullets it contained. He was not sure whether he had even hit Beier, and, when shots were fired at him when he left the bar, he thought it was probably Beier shooting at him.

Answering his counsel's question why he shot Beier, Qualls testified:

"Protect my life and the life of the people that was with me. I thought that he was going to do something more to me. He never give me no reason to believe that he wasn't going to harm me at the present time. Everything that he did that night showed that he was being aggressive towards me. I did nothing wrong to that man."

On cross-examination, the prosecution asked Qualls whether he was trying to kill Beier that night, and Qualls said: "I was just trying to stop him. ... From killing me, from shooting me or hurting me or whatever. I mean, I don't know what he was planning on doing. But I didn't want to find out either."

This testimony describes a situation in which actions taken in self-defense could be justified: Beier hit Qualls twice; Qualls had been taken down in a choke-hold by someone else; Beier was shouting expletives at Qualls and was warning him to get out or something bad could happen; and Qualls saw Beier reach into his pants in a gesture suggesting he was reaching for a gun. Qualls found himself in a chaotic, threatening situation. Similar testimony in the first trial led this court to hold that the record, when viewed in the light most favorable to Qualls, was sufficient to let the jury "decide if Qualls had an unreasonable but honest belief that the use of deadly force was necessary to protect against Beier's alleged imminent use of unlawful force." 297 Kan. at 71, 298 P.3d 311.

The question in the present issue is whether the jury should have been allowed to consider whether he had a reasonable belief that deadly force was necessary. If Qualls reasonably believed Beier was threatening his life, self-defense would have been appropriate; if Qualls was responding to some other cue, then self-defense would not have been a legitimate defense.

Qualls' testimony sufficed to make the self-defense instruction factually appropriate. Haygood informs us, however, that the refusal to give the instruction is subject to harmless-error analysis. 308 Kan. at 1407, 430 P.3d 11.

To be sure, witnesses, including Qualls himself, agreed that Beier did not actually have a gun. Other witnesses did not see Beier reach into his pants. And Qualls fired 12 shots into Beier, which might appear to be more than he needed to protect himself. But we find that the refusal to give the requested instruction was error and that the error was not harmless. Even though Beier had no firearm, a reasonable person, under the described circumstances, might have believed a gun was soon coming into play. Although other witnesses did not see Beier reach into his pants, they were focused more on what Qualls was doing and whether he was leaving the bar. The surveillance video is much too choppy to confirm or repudiate Qualls' testimony, but it seems to support his contention that he was starting to move toward the exit just before he fired the shots. And there is no rule requiring those that are defending themselves against the reasonably perceived threat of imminent harm to cease that defense and stop to investigate whether they are still in danger.

CONCLUSION

We conclude that denying the requested self-defense instruction was error and the error was not harmless. It is therefore unnecessary for us to address the other issues that Qualls raised in his briefing to this court. We reverse and remand the case to the district court.

Beier, J., not participating.

Michael J. Malone, Senior Judge, assigned.

      REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 115,648 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.


text:
    STATE of Kansas, Appellee, v. Jimmy Lee MURDOCK, Appellant.
    No. 117,315
    Supreme Court of Kansas.
    Opinion filed April 19, 2019
    Samuel D. Schirer, of Kansas Appellate Defender Office, argued the cause, and Patrick H. Dunn, of the same office, was on the briefs for appellant.
    Steven J. Obermeier, assistant solicitor general, argued the cause, and Michael F. Kagay, district attorney, Brett Watson, deputy district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
   The opinion of the court was delivered by Stegall, J.:

This is Jimmy Lee Murdock's second appeal to this court. In his first appeal, Murdock argued the district court miscalculated his criminal history score when it classified his two out-of-state offenses as person crimes, resulting in a criminal history score of A. State v. Murdock , 299 Kan. 312, 313, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015). We agreed, holding Murdock's prior out-of-state convictions must be scored as nonperson offenses. Murdock , 299 Kan. at 319, 323 P.3d 846. At resentencing, the Shawnee County District Court followed our mandate in Murdock , scored Murdock's prior out-of-state convictions as nonperson felonies, and found he had a criminal history score of C. Shortly after, Keel overruled Murdock , and the State moved to correct Murdock's sentence. The district court granted the motion and sentenced Murdock a third time, finding a criminal history score of A.

On appeal, Murdock argues his second sentence was legally imposed under Murdock , and it did not become illegal after Keel changed the law. We agree and hold the legality of a sentence under K.S.A. 2018 Supp. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. Accordingly, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

As Murdock summarized:

"Murdock pleaded guilty to two counts of aggravated robbery and one count of robbery for crimes occurring in December 2008. To calculate his sentence, the district court found Murdock had two Illinois robbery convictions from 1984 and 1990 and a 1996 Kansas robbery conviction. It classified all three prior convictions as person offenses, which gave Murdock three or more adult convictions for person felonies. This treatment placed him in criminal history category A under K.S.A. 21-4709. Murdock was sentenced to 233 months' imprisonment for the first aggravated robbery conviction and concurrent 36-month sentences for the remaining two convictions. He would have fallen within criminal history category C if the two out-of-state convictions had been designated as nonperson offenses, resulting in a lesser sentence. See K.S.A. 21-4709 ; K.S.A. 21-4704." 299 Kan. at 313, 323 P.3d 846.

At the time of Murdock's current offense, K.S.A. 21-4711(e) governed the classification of out-of-state convictions for criminal history purposes. K.S.A. 21-4711(e) stated: "The state of Kansas shall classify the [prior out-of-state] crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime." The core question in Murdock was, when should the "comparable offense" under the Kansas Sentencing Guidelines Act (KSGA) be determined-on the date the prior out-of-state crime was committed, or on the date the current Kansas crime was committed? Following State v. Williams , 291 Kan. 554, 244 P.3d 667 (2010), overruled by Keel , 302 Kan. 560, 357 P.3d 251, the Murdock court declared "the comparable Kansas offense should be determined as of the date the out-of-state offenses were committed." Murdock , 299 Kan. at 317, 323 P.3d 846. Applying this rule, we held Murdock's out-of-state convictions must be scored as nonperson offenses because they were committed before the KSGA-and its distinction between person and nonperson crimes-was enacted. 299 Kan. at 319, 323 P.3d 846. Thus, we reversed and remanded with directions to "classify the prior out-of-state convictions as nonperson offenses." 299 Kan. at 319, 323 P.3d 846. The mandate issued in October 2014.

The Shawnee County District Court resentenced Murdock in February 2015. In accordance with our mandate, the district court classified Murdock's out-of-state robberies as nonperson felonies, found he had a criminal history score of C, and sentenced him to a total of 102 months' imprisonment. The State did not object to Murdock's new criminal history score or appeal his new sentence.

Six months later we decided Keel , which overruled Murdock and Williams to hold: "The comparable post-KSGA Kansas criminal statute is the one in effect at the time the current crime of conviction was committed," and as a result, "the classification of a prior conviction ... for criminal history purposes under the KSGA must be based on the classification in effect for the comparable offense when the current crime of conviction was committed." Keel , 302 Kan. 560, Syl. ¶¶ 8-9, 357 P.3d 251. A few days after we decided Keel , the State filed a motion to correct an illegal sentence, asking the district court to sentence Murdock (for the third time) and classify his out-of-state crimes as person felonies, which would result in a criminal history score of A (yet again).

The State argued Murdock's out-of-state robberies should have been scored as person felonies based on Keel . Alternatively, the State argued that recent amendments to the KSGA, which went into effect after Murdock was resentenced, dictated the same result. See K.S.A. 2015 Supp. 21-6810(d)(2) ("Prior adult felony convictions for offenses that were committed before July 1, 1993, shall be scored as a person or nonperson crime using a comparable offense under the Kansas criminal code in effect on the date the current crime of conviction was committed."); K.S.A. 2015 Supp. 21-6811(e)(3) ("The state of Kansas shall classify the [out-of-state] crime as person or nonperson. In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to. If the state of Kansas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state conviction shall be classified as a nonperson crime."); H.B. 2053 (2015); L. 2015, ch. 5, §§ 1 and 2 (effective April 2, 2015). To avoid retroactivity concerns, the State claimed Keel and H.B. 2053 did not change the law; instead, they merely recognized or clarified the KSGA's existing requirements.

Murdock replied that his new sentence was lawful at the time it was imposed, in accordance with the mandate; it was final because the State failed to appeal it; Keel and H.B. 2053 changed the law; and these changes could not apply retroactively to render his sentence illegal. He also claimed res judicata or law of the case barred the motion, and retroactive application of H.B. 2053 would violate the Ex Post Facto Clause. The State countered that preclusionary doctrines did not apply because an illegal sentence may be corrected "at any time." See K.S.A. 22-3504.

The district court held a hearing on the motion and took the matter under advisement. The court later issued a memorandum decision granting the State's motion on two grounds. First, the court treated the law of the case as the applicable preclusionary doctrine and ruled that "the law of the case does not appear to bar a claim which, if true, would render a sentence illegal." Second, the court concluded that Murdock's sentence was illegal under Keel , reasoning:

"Under the Keel interpretation of the KSGA, Murdock's two out-of-state robberies prior to 1993 should have been classified during the resentencing as person felonies (the classification determined by this court in the original sentencing of Murdock). In other words, Murdock's criminal history at the resentencing was incorrect and therefore his sentencing was illegal."

Thus, the district court seemed to adopt the State's view that Keel did not change the law, and Murdock's second sentence was illegal at the time it was imposed. The court declined to address H.B. 2053's retroactivity.

The district court sentenced Murdock for the third time in January 2017. Applying Keel , the court found Murdock had a criminal history score of A, and Murdock objected. Then the court sentenced Murdock to a total of 233 months' imprisonment, as before. Murdock promptly appealed.

While Murdock's case was pending in the Court of Appeals, the Legislature passed the following amendment to K.S.A. 22-3504 :

" 'Illegal sentence' means a sentence: Imposed by a court without jurisdiction; that does not conform to the applicable statutory provision, either in character or punishment; or that is ambiguous with respect to the time and manner in which it is to be served at the time it is pronounced. A sentence is not an 'illegal sentence' because of a change in the law that occurs after the sentence is pronounced ." (Emphasis added.) K.S.A. 2018 Supp. 22-3504(3) ; L. 2017, ch. 62, § 9 (effective May 18, 2017).

For the first time on appeal, Murdock argues the italicized portion above applies retroactively to prevent Keel and H.B. 2053 from making his second sentence illegal.

Before the Court of Appeals held oral argument, we transferred Murdock's case to our court sua sponte. A few months after we transferred the case, Murdock filed a motion for supplemental briefing based on our new decision in State v. Wetrich , 307 Kan. 552, 412 P.3d 984 (2018), which held that, "[f]or an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime ... must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." 307 Kan. at 562, 412 P.3d 984. Murdock now argues in the alternative that his out-of-state offenses must be classified as nonperson crimes because Kansas lacks offenses "comparable" to them. We granted Murdock's motion to raise this argument.

ANALYSIS

The threshold question in this case is whether the legality of a sentence under K.S.A. 22-3504 is fixed at a discrete moment in time or is a moving target. Put another way, can a once legal sentence become illegal when the law changes?

Murdock argues his second sentence was legal when imposed because it followed Murdock 's mandate, and it cannot become "illegal" after that point in time. The State does not contest that Murdock's second sentence conformed to Murdock 's mandate. Instead, the State argues Murdock misstated the law (or was, at least, an aberration of law), and as a result, Murdock's second sentence was illegal at the time it was imposed. Further, the State claims Keel controls without retroactive application because it did not change the law; in fact, the Keel holding was the law all along. In the alternative, the State argues Murdock's second sentence became illegal after Keel was decided.

The answer to this threshold question informs the applicability of preclusionary doctrines to K.S.A. 22-3504 motions. For that reason, we take the unusual step of analyzing the merits of the State's illegal sentence claim first.

Whether Murdock's prior convictions were misclassified, resulting in an incorrect criminal history score and thus an illegal sentence, is a question of statutory law over which we exercise unlimited review. See State v. Dickey , 305 Kan. 217, 220, 380 P.3d 230 (2016).

K.S.A. 22-3504(1) states, "The court may correct an illegal sentence at any time." The phrase "at any time" means there is no time restriction for filing a motion to correct an illegal sentence. State v. Conley , 287 Kan. 696, 698, 197 P.3d 837 (2008) ; see, e.g., State v. Neal , 292 Kan. 625, 631, 258 P.3d 365 (2011) (concluding "a motion to correct an illegal sentence may be raised at any time," and "it is not subject to the same time constraints as a K.S.A. 60-1507 motion"). In other words, this phrase simply answers the question, when can an illegal sentence be corrected? At any time. K.S.A. 22-3504 does not say a sentence may become illegal at any time.

Admittedly, our caselaw has not clearly stated whether the legality of a sentence under K.S.A. 22-3504 is based on the law in effect at sentencing or the law as it evolves indefinitely. Though we have not squarely confronted the question before, we came close in State v. Lee , 304 Kan. 416, 372 P.3d 415 (2016). There, the defendant argued his hard 40 sentence for murder was illegal because a judge, rather than a jury, determined the aggravating factors outweighed the mitigating factors, in violation of Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). We rejected this argument because the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision. Lee , 304 Kan. at 417-18, 372 P.3d 415. But the defendant also tried to frame his argument as a nonconstitutional challenge. We rejected this approach as well, stating:

"As artfully crafted as his arguments are, they all seek application of later caselaw to the statute that was in effect at the time that he was sentenced. Lee was sentenced under a statute that did not, at the time, conflict with any higher court decision on the jury-determination question." 304 Kan. at 418, 372 P.3d 415.

Thus, Lee indicated that the law in effect when a sentence was pronounced determines whether that sentence is "illegal" under K.S.A. 22-3504.

Indeed, our longstanding definition of an "illegal sentence" suggests a sentence that was legal at the time it was imposed cannot later become illegal when the law changes. For example, and most relevant here, we have often held an illegal sentence includes one "that does not conform to the statutory provisions, either in character or the term of the punishment authorized." State v. Sims , 306 Kan. 618, 620, 395 P.3d 413 (2017) ; see K.S.A. 2018 Supp. 22-3504(3) ; L. 2017, ch. 62, § 9 (effective May 18, 2017) (codifying the definition). According to the State, an illegal sentence would also include one that does not conform to a future, unwritten, unknown statute at sentencing (and at resentencing, and at the next resentencing, and so on, as long as applicable statutes are amended). This view stretches the definition of an illegal sentence beyond its reasonable bounds and provides no logical endpoint. On the contrary, our existing definition implicitly recognizes that a district court judge must sentence a defendant according to the law in effect at the time .

Today, we clearly state what we gestured toward in Lee : the legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. The legality of a sentence is fixed at a discrete moment in time-the moment the sentence was pronounced. At that moment, a pronounced sentence is either legal or illegal according to then-existing law. Therefore, for purposes of a motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law.

Here, we pause to note that today's holding does not disturb our longstanding rule that in a direct appeal, a defendant will receive the benefit of any change in the law that occurs while the direct appeal is pending. See, e.g., State v. Ford , 302 Kan. 455, 471, 353 P.3d 1143 (2015) ("[I]t is generally true that changes in the law apply prospectively and only to cases on direct review."). To the extent our prior caselaw confused the procedural mechanism of a direct appeal with a motion to correct an illegal sentence, we now clarify the distinction. Put simply, a party may seek and obtain the benefit of a change in the law during the pendency of a direct appeal, but a party moving to correct an illegal sentence is stuck with the law in effect at the time the sentence was pronounced. Because existing precedent dictates this outcome, we need not decide whether K.S.A. 2018 Supp. 22-3504(3) applies retroactively.

The holding we announce today-that the legality of a sentence is determined by the law in effect at the time the sentence was pronounced-is important for courts to consider when deciding the applicability of a preclusionary doctrine to a successive motion to correct an illegal sentence. As a general rule, a prior judicial determination of the legality of a sentence-based on the law in effect at the time the sentence was pronounced-will preclude later efforts to relitigate the identical claim. See State v. Alonzo , 296 Kan. 1052, 1057, 297 P.3d 300 (2013) ("[I]n the situation where a party seeks to correct an illegal sentence, claim preclusion doctrines have generally been applied only when the issue has been previously raised."); State v. Martin , 294 Kan. 638, 641, 279 P.3d 704 (2012) ("A motion to correct an illegal sentence cannot be used as a vehicle to 'breathe new life' into an appellate issue previously determined against the defendant."). There are times, however, when subsequent developments in the law might undermine an earlier merits determination. That is, true changes in the law cannot transform a once legal sentence into an illegal sentence, but developments in the law may shine new light on the original question of whether the sentence was illegal when pronounced. In the latter case, the "at any time" language of K.S.A. 22-3504(1) permits a party to advance a successive motion to correct an illegal sentence premised on developments in the law that show the earlier determination was wrong on the merits.

In sum, K.S.A. 22-3504 does not give either party the benefit of later changes in the law, but it does give both parties the opportunity to revisit a merits determination of legality in the limited circumstance when there is reason to think that determination was wrong in the first instance. A party filing a successive motion to correct an illegal sentence bears a threshold burden to prove that a subsequent development in the law undermines the earlier merits determination. A successive motion that merely seeks a "second bite" at the illegal sentence apple is susceptible to dismissal according to our longstanding, common-law preclusionary rules.

Here, we need not decide whether the State's motion is barred by a preclusionary doctrine because we can easily conclude that Murdock's second sentence was legal when pronounced. First, Murdock's second sentence was legally imposed according to our Murdock mandate. We reject the State's argument that Murdock was simply an aberration or "oops" in the law. Instead, Murdock was controlling law (albeit for a short window of time) and in effect when Murdock's second sentence was pronounced. Second, Keel changed the law because it explicitly overruled Murdock 's holding that prior out-of-state crimes must be scored as nonperson offenses. Keel , 302 Kan. at 589, 357 P.3d 251. As a result, Keel does not render Murdock's second sentence illegal, and his prior out-of-state crimes were correctly classified as nonperson felonies under Murdock . However, we acknowledge that Keel controls for defendants sentenced after Keel was decided.

In conclusion, we hold Murdock's second sentence was lawfully imposed, and our subsequent decision in Keel does not render that sentence illegal. Given this, we need not consider Wetrich 's applicability or H.B. 2053's retroactivity. We reverse and remand with directions to reinstate Murdock's lawful sentence.

Reversed and remanded.

Luckert, J., not participating.

Michael J. Malone, Senior Judge, assigned.

Biles, J., concurs in the result.

      REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 117,315 vice Justice Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616.


author: Per Curiam: Rosen, J., dissenting:

text:
    Helen Loree KNOLL, Appellee, v. OLATHE SCHOOL DISTRICT NO. 233, Appellant.
    No. 116,167
    Supreme Court of Kansas.
    Opinion filed April 19, 2019
    Kip A. Kubin, of Bottaro, Kubin & Yocum, P.C., of Leawood, argued the cause and was on the brief for appellant.
    James R. Shetlar, of James R. Shetlar Law Offices, of Overland Park, argued the cause and was on the brief for appellee.
   Per Curiam:

Helen 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, Olathe School District (school district) moved for the dismissal of the claim. The administrative law judge (ALJ) denied the motion, reasoning that Knoll had five years to proceed to final hearing or file a motion under K.S.A. 2009 Supp. 44-523(f). The Kansas Workers Compensation Board (the Board) affirmed. The Court of Appeals reversed, holding that K.S.A. 2011 Supp. 44-523(f)(1) controlled Knoll's claim and required its dismissal when Knoll did not file a motion for extension within three years of filing her application for hearing. Knoll challenges that decision. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Knoll was injured while working for the school district on October 29, 2009. Knoll filed an application for hearing with the Kansas Division of Workers Compensation on November 14, 2011. On February 15, 2015, the school district and its insurer moved to have Knoll's claim dismissed pursuant to K.S.A. 2011 Supp. 44-523(f)(1), because the claim had not proceeded to a final hearing within three years of the filing of an application for hearing.

On March 4, 2015, Knoll filed a motion for an extension of her claim, alleging good cause. The school district filed a motion in opposition and Knoll responded. In her response, Knoll acknowledged that K.S.A. 2011 Supp. 44-523(f)(1) governed her claim since it was the law in effect when she filed the application for hearing, but she argued that it did not create a time limit on filing a motion for extension. On May 4, 2015, Knoll amended this response. She argued that the motion to dismiss should be denied because K.S.A. 2009 Supp. 44-523(f) actually governed her claim and that version of the statute gives a claimant five years from the date of filing an application for hearing to file a motion for extension.

After considering the parties' motions, the ALJ concluded that the 2009 version of K.S.A. 44-523 governed Knoll's claim and, therefore, her motion for extension was timely. As a result, it denied the school district's motion to dismiss. The case proceeded to final hearing and the ALJ entered an award of compensation. The school district sought review with the Board of the ALJ's denial of the motion to dismiss. The Board affirmed the denial and the school district appealed. The Court of Appeals disagreed with the ALJ and the Board. It concluded that the 2011 version of K.S.A. 44-523 applied retroactively to Knoll's claim and required that Knoll file her motion for extension within three years. Because she had not filed her motion within that time limit, the panel held that the ALJ should have granted the motion to dismiss. It reversed the Board and the ALJ and remanded the case to the ALJ with directions to dismiss Knoll's claim. Knoll v. Olathe School District No. 233 , 54 Kan. App. 2d 335, 342, 398 P.3d 223 (2017).

Knoll petitioned for this court's review, arguing that K.S.A. 2009 Supp. 44-523(f) governs her claim and gave her five years to file her motion for extension. We granted Knoll's petition for review.

ANALYSIS

Standard of Review

A statute's applicability presents a question of law. This court reviews questions of law de novo. Edwards v. Anderson Engineering, Inc. , 284 Kan. 892, 900, 166 P.3d 1047 (2007).

Discussion

When Knoll suffered her injury, K.S.A. 2009 Supp. 44-523(f) was in effect. It read as follows:

"Any claim that has not proceeded to final hearing, a settlement hearing, or an agreed award under the workers compensation act within five years from the date of filing an application for hearing pursuant to K.S.A. 44-534, and amendments thereto, shall be dismissed by the administrative law judge for lack of prosecution. 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 five year limitation provided for herein. This section shall not affect any future benefits which have been left open upon proper application by an award or settlement." K.S.A. 2009 Supp. 44-523(f).

This statute remained the same until 2011, when the Legislature amended it and recodified it at K.S.A. 44-523(f)(1). The new statute, which became effective on May 15, 2011, provides the following language:

"In any claim that has not proceeded to a regular hearing, a settlement hearing, or an agreed award under the workers compensation act within three years from the date of filing an application for hearing pursuant to K.S.A. 44-534, and amendments thereto, the employer shall be permitted to file with the division an application for dismissal based on lack of prosecution. The matter shall be set for hearing with notice to the claimant's attorney, if the claimant is represented, or to the claimant's last known address. 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. If the claimant cannot establish good cause, the claim shall be dismissed with prejudice by the administrative law judge for lack of prosecution. Such dismissal shall be considered a final disposition at a full hearing on the claim for purposes of employer reimbursement from the fund pursuant to subsection (b) of K.S.A. 44-534a, and amendments thereto." K.S.A. 2011 Supp. 44-523(f)(1).

For our purposes, the relevant change is the reduction in time claimants have to proceed to a regular hearing, a settlement hearing, or an agreed award from five years to three years.

The parties agree 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. This stipulation comports with our decision in Glaze v. J.K. Williams , 53 Kan.App.2d 712, 390 P.3d 116 (2017), this day decided).

Knoll argues the 2009 statute governs her claim because the date of a claimant's injury triggers the applicable law in a workers compensation case, and that K.S.A. 2011 Supp. 44-523(f)(1) cannot be applied retroactively because it affects her substantive right to have five years to proceed to a final hearing.

In a workers compensation case, "[t]he substantive rights between the parties are determined by the law in effect on the date of injury." Lyon v. Wilson , 201 Kan. 768, 774, 443 P.2d 314 (1968). However, "[a]mendments to the compensation act which are merely procedural or remedial in nature, and which do not prejudicially affect substantive rights of the parties, apply to pending cases." Lyon , 201 Kan. at 774, 443 P.2d 314.

Knoll is partially correct-the beginning point for applicable law in a workers compensation case is the date of injury. But, when a law changes, it applies to a pending case when it has only procedural effect. Therefore, the determinant factor in this case is whether the 2011 amendments to K.S.A. 44-523(f) were procedural in nature.

Generally, statutes of limitations are considered procedural. White v. State , 308 Kan. 491, 500, 421 P.3d 718 (2018). A statute of limitations is "[a] law that bars claims after a specified period; specif[ically], a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued ...." Black's Law Dictionary 1636 (10th ed. 2014). This court has reasoned that a statute of limitations is considered procedural because it "cuts off the remedy," as opposed to "abolish[ing] [a] cause of action," Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992), and because it "can be waived, lost, or extended by statute." State v. Dupree , 304 Kan. 43, 53, 371 P.3d 862, cert. denied --- U.S. ----, 137 S.Ct. 310, 196 L.Ed.2d 227 (2016).

The 2011 amendment is not exactly a statute of limitations, but it is very similar. K.S.A. 2011 Supp. 44-523 establishes a time limit on completing a claim based on the date when the claim was filed. Similar to a statute of limitations, this statute cuts off a remedy and can be waived, lost, or extended by statute.

Furthermore, 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 argues, it did so before Knoll even asserted that right. Both of these observations lead us to conclude that, in this case, the 2011 amendment effected procedural change, not substantive change.

Knoll disagrees. She asserts that this amendment was substantive, and, as a result, its application to her claim would be impermissibly retroactive. She relies on Welty v. USD 259 , 48 Kan. App. 2d 797, 302 P.3d 1080 (2012), to support her argument. Knoll asserts that, if this court affirms the panel here, it should acknowledge this decision as a reversal of Welty . We reject her contention because Welty is distinguishable.

In Welty , a claimant filed an application for hearing in 2004, alleging that she sustained injuries in 2003 while working for U.S.D. 259. When she filed her application, there was no requirement that claims proceed to final hearing by a certain time. In 2006, the Legislature enacted K.S.A. 44-523(f), thereby requiring that all claims proceed to final hearing within five years from the filing of an application for hearing. The claim proceeded to final hearing in 2010. The Court of Appeals was tasked with deciding whether K.S.A. 2006 Supp. 44-523(f) applied to the claim, requiring its dismissal. The panel concluded that it did not, because it was "not persuaded that th[e] amendment to the law was a mere procedural change that had no effect to deprive some injured workers of benefits that were vested in them." Welty , 48 Kan. App. 2d at 802, 302 P.3d 1080.

We do not overrule Welty , because there is a significant difference between that case and Knoll's: the claimant in Welty filed her application before the applicable amendment. Here, Knoll filed her application after the amendment. By the time the amendment took effect in Welty , the claimant had already lost time in filing her application-time that she was not aware she had to lose. Here, because the amendment happened before Knoll filed her application for hearing, she was aware of how much time she had to lose the moment the clock began to run.

We conclude that K.S.A. 2011 Supp. 44-523(f)(1) applies 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. Accordingly, K.S.A. 2011 Supp. 44-523(f)(1) controlled her claim. Because Knoll did not file her motion for extension until after the three-year time limit provided for therein, 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.

The Court of Appeals decision reversing the Board and remanding to the ALJ with directions to dismiss Knoll's claim is affirmed.

Luckert, J., not participating.

William R. Mott, District Judge, assigned.

Rosen, J., dissenting:

In Glaze v. J.K. Williams , No. 115,763, this day decided, I concluded that the 2011 amendments did not create a three-year time limit on filing a motion for extension. Therefore, while I agree that K.S.A. 2011 Supp. 44-523(f)(1) governs Knoll's claim, I do not think this statute prohibited the administrative law judge (ALJ) from granting Knoll's motion for extension. Knoll's employer did not argue on appeal that Knoll lacked good cause for an extension or that the ALJ erred in calculating Knoll's award. I would affirm the Court of Appeals decision to reverse the Workers Compensation Board, but rather than remanding to the ALJ with directions to dismiss Knoll's claim, I would remand the case with directions to hold a hearing on good cause.

      REPORTER'S NOTE: District Judge Mott was appointed to hear case No. 116,167 vice Justice Luckert under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution.