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Neal v. Hy-Vee12/24/2003
ents thereto or if the employee or the employee's health care provider unnecessarily obstructs or prevents such examination by the health care provider of the employer, the employee's right to payment of compensation shall be suspended until the employee submits to an examination and until such examination is completed. No compensation shall be payable under the workers compensation act during the period of suspension. If the employee refuses to submit to an examination while any proceedings are pending for the purpose of determining the amount of compensation due, such proceedings shall be dismissed upon showing being made of the refusal of the employee to submit to an examination."
Although the Kansas courts have never considered the reasonableness of scheduling an examination for an incarcerated employee, or whether incarceration itself constitutes a refusal to submit to the examination, the interpretation of K.S.A. 44-515 and 44-518 in another situation is helpful to this analysis.
In Zimmerman v. O'Neill Tank Co., 188 Kan. 306, 362 P.2d 10 (1961), the Supreme Court found that an employer's request that the employee submit himself for further examination 18 days after the date on which the commissioner was required to file the award was unreasonable and improper and the employee's refusal to appear did not suspend his right to compensation . The court reasoned:
" e have no difficulty in concluding that before the provisions of 44-515, supra, and for that matter its supplementing section (44-518, supra), become operative, the request of an employer for further examination of a workman must fix a reasonable time at which the workman shall appear for the examination. Moreover, we are convinced that the date fixed for the holding of an examination must be at a time when the examination itself would serve some useful purpose in effectuating the purposes of the proceeding then pending under the Act, otherwise the time fixed for the holding of such examination is not to be construed as having been at a 'reasonable time,' within the meaning of those words as used in 44-515, supra. Indeed, such a conclusion is warranted under the clear and unequivocal language of 44-515, supra, providing for examination at any reasonable time, and the equally plain provisions of 44-518, supra, indicating that unless the employee refuses to submit himself for an examination provided for in section 15 (44-515), the penalties prescribed by 44-518 have no application." 188 Kan. at 310.
The Board concluded that the reasonable time and place for the examination was the correctional facility in Cameron rather than the doctor's office in Kansas City. This conclusion under K.S.A. 44-515 would result in a determination not to suspend the employee's benefits under K.S.A. 44-518 because the scheduled examination in Kansas City, according to the Board, was not a reasonable place for the examination. Such a determination by the Board could have ended the matter. However, the Board further concluded that the employee did not willfully or intentionally refuse or unnecessarily obstruct his attendance at the examination in Kansas City under K.S.A. 44-518.
There are two questions presented in regard to the issue we now consider. The first is a question of law regarding the interpretation of K.S.A. 44-518 and whether the provisions of the statute operate as a matter of law to suspend the employee's right to payment of compensation. In other words, does the employee's incarceration for felony convictions amount to a refusal, obstruction, or prevention of the scheduled examination as a matter of law? The second question addresses the reasonable time and place requirement under K.S.A. 44-515. This ques
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