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Neal v. Hy-Vee12/24/2003
carceration was legal justification for him to avoid his legal obligation to appear for a medical examination. The employee distinguishes the child support public policy considerations in Thurmond from this case in which the employer was seeking to be relieved of its workers compensation statutory obligations based upon an employee's unrelated incarceration. The employee points out that child support public policy considerations would be frustrated if the employer prevailed because child support obligations may be attached and paid from workers compensation benefits. See K.S.A. 44-514.
The employee is correct that the public policy considerations underlying child support in Thurmond bear little similarity to the policy underlying workers compensation benefits at issue in this case. Thurmond dealt with the effect of incarceration on the prisoner's legal obligation to pay child support rather than a prisoner's right to receive workers compensation benefits for an injury unrelated to his incarceration.
"It is the intent of the legislature that the workers compensation act shall be liberally construed for the purpose of bringing employers and employees within the provisions of the act to provide the protections of the workers compensation act to both. The provisions of the workers compensation act shall be applied impartially to both employers and employees in cases arising thereunder." K.S.A. 44-501(g)
K.S.A. 44-518 is designed to preserve the employer's right to discovery through examination by a doctor of the employer's choice. The examination provided for in 44-515 is the discovery tool for the benefit of the employer. It provides the employer an opportunity to seek independent medical opinions of an employee's condition during the pendency of the employee's claim for benefits. The statute does not provide that the employer has an absolute right to an examination at the time and place of its choosing; rather, the examination must be at a reasonable time and place. In protecting the employer's right to this discovery, K.S.A. 44-518 provides that if the employee refuses, obstructs, and prevents the employer from exercising its option for examination under 44-515, the employee's right to payment of compensation shall be suspended until the employee submits to an examination and such examination is completed.
The very nature of the language used in 44-518 suggests that before suspension of benefits, there must be an affirmative act on the part of the employee to frustrate the employer's discovery or examination. In our interpretation of 44-518, we follow a familiar maxim of statutory construction which provides: "Ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. [Citation omitted.]" GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
Black's Law Dictionary defines "refusal" as " he act of one who has, by law, a right and power of having or doing something of advantage, and decline it." Black's also indicates that the declination of a request or demand, or the omission to comply with some requirement of law, be "as the result of a positive intention to disobey." (Emphasis added.) Refusal is often coupled with "neglect," but Black's notes that neglect signifies a mere omission of a duty "while 'refusal' implies the positive denial of an application or command, or at least a mental determination not to comply." (Emphasis added.) Black's Law Dictionary 1286 (6th ed. 1990).
"Obstruct" is defined as " o hinder or prevent from progress, check, stop, also
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