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Neal v. Hy-Vee12/24/2003
ity to establish his claim. Given our conclusion that sufficient evidence supported the initial award of the ALJ, the Board was well within its authority to remand to the ALJ for further consideration of the employee's average weekly wage. Upon remand to the ALJ, the parties stipulated to the employee's average weekly wage and the Board then affirmed the ALJ's award based upon the stipulated average weekly wage. While the Board remanded based upon its determination that no evidence was presented concerning the employee's average weekly wage, we conclude this determination was inaccurate. However, remand by the Board was authorized and did establish the true and actual average weekly wage of the employee. Thus, the final determination of the Board based upon evidence developed upon remand is supported by the evidence and is, therefore, affirmed.
The employer further argues that no authority exists for the receipt of additional evidence before the ALJ upon remand by the Board. The employer acknowledges that K.S.A. 2002 Supp. 44-551 permits the Board to remand any matter to the ALJ for further proceedings, but it argues that the statute does not specify whether the remand may be for additional evidence or is restricted to directing the ALJ to make additional findings of fact and conclusions of law based upon the existing trial record. The employer's argument fails to take into account the evolution of the type of authority granted to the Board on appeal.
Prior to July 1, 1993, any action taken by the ALJ or the director was subject to review by the district court under the KJRA, K.S.A. 77-601 et seq. K.S.A. 1992 Supp. 44-556(a). The district court's scope of review was de novo but limited to the record available to the director. Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 185, 883 P.2d 1177 (1994). K.S.A. 1992 Supp. 44-556(b) provided: "On any such review the district court shall have jurisdiction to grant or refuse compensation , or to increase or diminish any award of the director as justice may require."
K.S.A. 1992 Supp. 44-556(b) was interpreted to mean that the district court did not have the authority to remand proceedings to the director for the hearing of further evidence or for taking additional action. Houston v. Kansas Highway Patrol, 238 Kan. 192, 196, 708 P.2d 533 (1985); Kuhn v. Grant County, 201 Kan. 163, 167, 439 P.2d 155 (1968); see also KBA Kansas Workers Compensation Handbook, ยง 13.06, 13.7 (1998) ("In a workers compensation case there is no second chance to present additional evidence. Neither the district court, the court of appeals, nor the supreme court has authority to take additional evidence nor to remand the case back to the administrative law judge for additional evidence.")
However, since 1993, all final orders, awards, modifications of awards, or preliminary awards made by the ALJ are subject to review by the Board. Nance v. Harvey County, 263 Kan. 542, 550, 952 P.2d 411 (1997). "The review by the board shall be upon questions of law and fact as presented and shown by a transcript of the evidence and the proceedings as presented, had and introduced before the ." K.S.A. 44-555c(a). "On any such review, the board shall have authority to grant or refuse compensation , or to increase or diminish any award of compensation or to remand any matter to the administrative law judge for further proceedings." (Emphasis added.) K.S.A. 2002 Supp. 44-551(b)(1).
Both the plain language of the statute and the legislature's decision to include this additional type of review support the Board's conclusion that it had the authority to remand the case for additional wage evidence. Without qualification, the plain language of the st
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