10.18. Authority / Jurisdiction and Discretion of,.

• Court: Kansas

Kansas Workers Compensation Settlement Reporter 10.18. Authority / Jurisdiction and Discretion of, SummariesChapter 1010.18 Authority / Jurisdiction and Discretion of,November 2006. (Award) ALJ should not raise issue not raised by the parties without giving parties notice and an opportunity to present evidence. Bennett v. MV Transportation, Docket No. 1,021,544. September 2006. (Order) Empowered to compel the production of documents to the same extent as is conferred on the district courts, the administrative law judges, likewise, have the power to sanction. As a result, an attorney's argument that the ALJ lacks the jurisdiction to sanction fails where an attorney does not comply with an ALJ's order to provide the other attorney with requested documents. Hernandez v. Tyson Fresh Meats, Inc., Docket No. 258,902. May 2006. (P/A) Respondent was specifically ordered to provide ongoing treatment and although there was nothing in the record indicating claimant's plans to seek psychological or psychiatric treatment, the Board's Order specifically required that respondent provide such treatment. This differs from other ALJ and Board orders which require application and hearing before post-award medical treatment is authorized; therefore, it is appropriate for respondent to seek evidence to address that prospective issue and either get the Board's Order modified to reflect that claimant's future psychiatric treatment be upon application and hearing or, if warranted by the evidence, terminated. If a decision in a preliminary hearing is not timely entered, any party may request the director to assign the case to an assistant director or special administrative law judge for a decision. The filing of a request that a case be reassigned does not deprive the administrative law judge of jurisdiction to make an award. Bradford v. Boeing Military Airplanes, 22 Kan. App.2d 868, 924 P.2d 1263, rev. denied 262 Kan. 1082 (1996). Any modification under the review and modification statute is effective the date the claimant's functional impairment or work disability changed or no earlier than six months prior to the date the application for review and modification was made. A modified award only compensates for the remaining unpaid weeks, that are proven but not yet expired. A modified award does not offer further payment once the employer pays the maximum amount. Ponder-Coppage v. State, 32 Kan. App. 2d 196, 83 P.3d 1239 (2002). Any modification of an award is subject to the maximum pay ment limitation in K.S.A. 44-510f. Hutchens v. The Vine at Crestview, LLC, Docket No. 219,862. April 2006. (Award) The Board found there was no evidence that the Director appointed a Special ALJ to determine this matter; therefore, the Award is hereby set aside. Cervantes v. Safelite Glass Corp., Docket No. 1,012,477. But See Concurring, same result but since the parties did not receive timely notice of the assignment, the procedure was defective and violative of due process. But See, Dissent, two Board members agreed there is no demonstrated due process or other basis to set aside the Award and the Board should proceed to decide the remaining issues raised by the parties. December 2005. (Award) The ALJ determined the failure to file an Application for Hearing before the settlement resulted in the Division being without jurisdiction to conduct the settlement hearing. Here, the Division had both "subject matter jurisdiction" over this workers compensation dispute and personal jurisdiction over the claimant and the respondent confirmed when they voluntarily appeared at the settlement hearing and agreed to the proceedings. Conway v. Frito Lay, Inc., Docket No. 5,009,161. But See, Dissent, the majority, in determining what if any post-injury wage should be imputed to claimant, rejected the argument that claimant should be imputed the same wage that she would have received had she bid on the QCT job on respondent's first shift. This Board Member, in considering the policies set forth in Copeland, would impute to claimant the wage she would have earned on the QCT job. As that would have paid wages in excess of 90 percent of her post-injury average weekly wage, claimant would have been limited, pursuant to K.S.A. 44-510e, to her 10 percent functional impairment to the body as a whole. June 2004. (Order) An ALJ has the authority to modify an earlier preliminary hearing finding entered by the Board upon the receipt of new evidence. Brown v. Wal-Mart, Docket No. 1,005,445. April 2004. (Order) It is implicit within the authority conferred upon the ALJ by the Act, that the ALJ has the authority to assess the costs to a party or parties. The ALJ did not exceed his authority nor did he abuse his discretion in ordering respondent and its insurance carrier to pay the costs associated with Ms. Erlandson's appearance and testimony at the regular hearing. The Board agrees t hat it is appropriate for respondent and its insurance carrier to bear this cost which was incurred in connection with the administration of the Act. Butler v. Jet TV, Docket No. 106,194. April 2004. (Order) New evidence may materially alter the basis for a prior preliminary decision, whether made by an ALJ or the Board. Consequently, the ALJ has the jurisdiction and authority to amend, modify and/or clarify a preliminary order as the evidence may dictate. Robinson v. Life...