KANSAS LAW SUMMARY

 

TABLE OF MAXIMUM BENEFITS, EFFECTIVE July 1, 2013

 

 Pre May 15, 2011

After May 15, 2011

 

Medical and hospital allowances (NO LIMIT) NO LIMIT

Death benefit to dependents, spouse($300,000)

$300,000

 

Burial allowance($5,000)

$ 5,000

 

Permanent total disability($125,000)

$155,000

 

Partial disability($100,000)

$130,000

 

Partial disability limited to functional impairment($50,000)

$ 75,000

 

Maximum weekly benefits(7-1-07 to 6-30-08)

$510.00

 

 (7-1-08 to 6-30-09)

$529.00

 

  (7-1-09 to 6-30-10) $546.00

 (7-1-10 to 6-30-11)

$545.00

 

 (7-1-11 to 6-30-12)

$555.00

 

 (7-1-12 to 6-30-13)

$570.00

 

  (7-1-13 to 6-30-14) $587.00

Medical  Mileage7-1-10 through 6-30-11

$ .50 cents

 

 7-1-11 through 6-30-12

$ .51 cents

 

  7-1-12 through 6-30-13 $ .55 cents

  7-1-13 through 6-30-14 $ .56 cents

 

Maximum Weeks

 

Shoulder 225

Arm 210

Forearm 200

Hand 150

Leg 200

Lower Leg 190

Foot 125

Eye 120

Hearing, both ears 110

Hearing, one hear 30

Thumb 60

Finger 1st (index) 37

Finger 2nd (middle) 30

Finger 3rd (ring) 20

Finger 4th (little) 15

Great toe 30

Great toe, end joint 15

Each other toe 10

Each other toe, end joint only 5

Allowance of 10%  and  not over 15 weeks  for healing  period  following  an amputation.

 

I. Accidental Injury Arising Out of and in the Course of  Employment

 

A. Accident:

 

1. An accident is an undesigned, sudden, unexpected traumatic event.  An accident shall be identifiable by the time and place of occurrence, produce symptoms of an injury at the time of the event and occur during a single work shift.  The accident must be the prevailing factor in causing the injury.  44-508(d).

 

2. The “prevailing factor” is defined as the primary factor, in relation to any other factor.  In determining what constitutes the prevailing factor in a given case, the ALJ shall consider all relevant evidence submitted by the parties. 44-508(g).

 

3. Intentional injuries to self are not compensable.

 

4. Injuries due to assault by co-employees are only compensable if assault was related to work issues.  Case law indicates that this applies even to injuries to the aggressor.

 

5. No compensation for an injury that is caused by employee’s deliberate intention to get hurt, willful failure to use a guard or protection against accident which is required by statute and provided by the employer or for an employee’s willful failure to use a reasonable guard or protection voluntarily furnished by the employer, or for the employee's reckless violation of their employer's workplace safety rules or regulations; or the employee's voluntary participation in fighting or horseplay with a co-employee for any reason, work related or otherwise.  44-501(a).

 

B. Arising out of and in the course of employment:

 

1. An injury is only compensable if it arises out of and in the course of employment.  An injury is not compensablebecause work was simply a triggering or precipitating factor or because it aggravated, accelerated or exacerbated a preexisting condition or rendered a preexisting condition symptomatic.  44-508(f)(2).

 

2. For repetitive use claims, the injury is deemed to arise out of employment only if the employment exposed the worker to an increased risk or hazard which the worker would not be exposed to in normal non-employment life, the increased risk is the prevailing factor (See below) in causing the repetitive trauma and the repetitive trauma is the prevailing factor (See below) in causing both the medical condition and resulting disability.  44-508(f)(2)(A)(i, ii, iii).

 

3. For injury by accident, the injury is deemed to arise out of employment only if there is a causal connection between the conditions under which the work is required to be performed and the resulting accident and the accident is the prevailing factor (See below) causing the injury or impairment.  44-508(f)(2)(B)(i, ii).

 

4. Arising out of employment does not include an injury which occurred as a result of the natural aging process or by the normal activities of day-to-day living, an accident which arose out of a neutral risk with no particular employment or personal character, an accident which arose out of a personal risk to the employee or an accident that arose either directly or indirectly from idiopathic causes.  44-508(f)(3)(A)(i, ii, iii, iv).

 

5. Pre-existing Medical Conditions/Reduction for Pre-existing Impairment:

 

a.  An award for compensation (PPD, PTD or work disability) shall be reduced by pre-existing functional impairment.  The reduction does not apply to TTD or medical benefits.  44-501(e).

 

b.    If there is a previous Kansas Award finding pre-existing impairment, it shall conclusively establish the amount of pre-existing functional impairment.  In all other cases, the amount of functional pre-existing impairment shall be established through competent evidence.  44-501(e)(1).

 

6. Calculating reduction for pre-existing impairment:

 

a.   If the pre-existing impairment was as a result of an injury with the same employer, the award of compensation shall be reduced by the current dollar value attributable to the percentage of pre-existing impairment.  In other words, you take the old impairment percentage and multiply it by the compensation rate in effect for the second injury.  44-501(e)(2)(A).

 

b.   In cases where there are different employers, the current employer shall be entitled to a credit for the percentage of pre-existing impairment.  44-501(e)(2)(B).

 

C.  In the Course of Employment

 

1.    Going and Coming Rule:

 

a.  Injuries sustained while going to and coming from work are not compensable if not caused by employer's negligence.

 

b.   Protection stops once employee is on employer's (exclusive) premises, or is on only route available for workers that is not used by general public.

 

c.  Exceptions:

 

i)    Provider of emergency services while responding to emergency;

 

ii)   Traveling that is incidental to work function and benefits the employer (e.g. sales representatives, regional managers).  This exception can be used to stretch compensability and     should be refuted in investigation, if possible.

 

2.  Deviation from Employment:  Deviation stops once the employee returns to path necessary to perform task of employment.

 

3.   Horseplay:

 

a. Horseplay injuries at work are compensable only if claimant can show that the horseplay has become a regular incident that is known to the employer and not stopped once they are aware.

 

b. “Innocent victim” of horseplay by others may have compensable claim.

 

4.  Recreational Activities:   An injury at a social or recreational event does not arise out of the course and scope of employment unless the employee was under a duty to attend or was a result of the performance of tasks related to the employee’s normal job duties or was specifically instructed to perform such tasks by the employer.  44-508(f)(3)(C)

 

III.  Procedural Defenses

 

A.  Notice of Accident:

 

1. Notice must be given to the employer by the earliest of the following date:

 

a.     20 calendar days from the date of accident or the date of injury by repetitive trauma;

 

b.     if the employee is working for the employer against whom benefits are being sought and such employee seeks medical treatment for any injury by accident or repetitive trauma, 20 calendar days from the date such medical treatment is sought; or

 

c.   if the employee no longer works for the employer against whom benefits are being sought, 10 calendar days after the employee's last day of actual work for the employer.

 

d.   Notice may be given orally or in writing.

 

2. Where notice is provided orally, if the employer has designated an individual or department to whom notice must be given and such designation has been communicated in writing to the employee, notice to any other individual or department shall be insufficient under this section. If the employer has not designated an individual or department to whom notice must be given, notice must be provided to a supervisor or manager.

 

3. Where notice is provided in writing, notice must be sent to a supervisor or manager at the employee’s principal location of employment. The burden shall be on the employee to prove that such notice was actually received by the employer.

 

4. The notice, whether provided orally or in writing, shall include the time, date, place, person injured and particulars of such injury. It must be apparent from the content of the notice that the employee is claiming benefits under the workers compensation act or has suffered a work-related injury.

 

5. The notice required by the statute shall be waived if the employee proves that (1) the employer or the employer’s duly authorized agent had actual knowledge of the injury; (2) the employer or the employer’s duly authorized agent was unavailable to receive such notice within the applicable period, or (3) the employee was physically unable to give such notice.

 

B. Required Notice language from an insurer or self-insured employer: The insurer or self-insured employer are required to provide the following notice to an insured worker on or with the first check for TTD benefits:

 

“Warning: Acceptance of employment with a different employer that requires the performance of activities you have stated you cannot perform because of the injury for which you are receiving temporary disability benefits could constitute fraud and could result in loss of future benefits and restitution of prior workers compensation awards and benefits paid.”

 

C.   Statute of Limitations:

 

1. An application for hearing (Form E-1) must be on file with the Division of Workers' Compensation within three years of the date of accident or within two years of the date of last payment of compensation, whichever is later.  44-534(b).

 

2. Time limitations will not begin unless the employer has filed a report of accident with the Division within 28 days from when the employer first  has knowledge of the claimed industrial accident.  The time  limitations are then extended to one year from the date of accident or  suspension of compensation in which to file an application. 44-557.

 

IV. Date of Accident

 

A. Repetitive Trauma Injuries:  Repetitive trauma is where an injury occurs as a result of repetitive use or cumulative micro-traumas.  The repetitive nature of the injury must be demonstrated by diagnostic or clinical tests.  The repetitive trauma must be the prevailing factor in causing the injury.  44-508(e).

 

B. Date of injury for repetitive trauma:

 

1.  The date of injury by repetitive trauma shall be theearliest of:

 

a.   While working for the employer against whom benefits are sought, the date the employee is taken off work by a physician due to diagnosed repetitive trauma.       44-508(e)(1).

 

b. While working for the employer against whom  benefits are sought, the employee is placed on modified duty by a physician due to diagnosed repetitive trauma.  44-508(e)(2).

 

c.  While working for the employer against whom benefits are sought, the date that the employee is advised by a physician that the condition is work related.  44-508(e)(3).

 

d..  The last day worked, if the employee no longer works for the employer against whom benefits are sought.  44-508(e)(4).

 

V. Psychiatric Conditions:

 

A. Psychological injuries, such as "conversion hysteria," "traumatic neurosis" and "psychological overlay" can be compensable if each of three basic elements are established:

 

1.  A work-related physical injury is suffered by the claimant;

 

2.   symptoms of the traumatic neurosis; and

 

3.   the traumatic neurosis is directly traceable to the physical injury.

 

See Love v. McDonald's Restaurant, 13 KA2d 397.

 

4. If these elements are proven, then there is no distinction between the physical injury and psychological injury in determining both functional impairment and work disability.

 

B. Aggravation of a preexisting mental disorder is compensable if each of the three elements above are proven.

 

VI. Drug Tests

 

A. If it is shown that the employee is impaired at the time of the injury by a drug test, there shall be a rebuttable presumption that the accident and injury were contributed to by such impairment.  The employee must overcome this presumption by clear and convincing evidence.  44-501(b)(1)(D).

 

B. If an employee refuses to submit to a chemical test at the request of an employer, it shall result in the forfeiture of benefits if the employer had sufficient cause to suspect the use of alcohol or drugs by the claimant or if the employer’s policy clearly authorizes post-injury testing.  44-501(b)(1)(E).

 

C. The results of the chemical test shall be admissible as evidence of impairment if the employer establishes the testing was done under any of the following circumstances  44-501(b)(2):

 

D. An employer mandated drug testing policy, in place in writing prior to the date of the accident, requiring an employee to submit to testing for drugs or alcohol post-accident 44-501(b)(2)(A):

 

or

 

E. Chemical test taken during an autopsy or in the normal course of medical treatment for reasons related to the health of the injured worker and not done at the direction of the employer 44-501(b)(2)(B);

 

or

 

F. The worker, prior to the date of the accident, gave written consent to the employer that he would voluntarily submit to a chemical test following an accident 44-501(b)(2)(C);

 

or

 

G. After the accident, the worker voluntarily agrees to submit to a chemical test 44-501(b)(2)(D) ;

 

or

 

H. As a result of federal or state law requiring a post-injury testing program and such program was properly implemented at the time of the testing. 44-501(b)(2)(E)

 

I. However, even if one of the conditions above are met, the results of the chemical test will still not be admissible unless the test sample was collected within a reasonable time following the accident, testing was done by a licensed professional in an approved laboratory, foundation establishes (beyond a reasonable doubt) that the test results were from a sample from the injured worker and a split sample sufficient for testing shall be retained and made available to the employee within 48 hours of a positive test.44-501(b)(3).

 

VII. Work disability

 

A. In order for work disability, an employee must have functional impairment determined to be caused solely by the injury in excess of 7.5% to the body as a whole or the overall functional impairment is equal to or exceeds 10% to the body as a whole in cases where there is preexisting functional impairment.  44-510e(a)(2)( C)(i)

 

and

 

B. The employee sustained a post-injury wage loss of at least 10% which is directly attributable to the work injury and not to other causes or factors.  44-510e(a)(2)( C)(i)

 

C. Task Loss: Task loss is the percentage to which the employee has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the five year period preceding the injury.  (Changes the look back period from fifteen years) If the employee has preexisting permanent restrictions, any work tasks which the employee would have been deemed to have lost prior to the injury shall be excluded for the purposes of calculating the current task loss.  44-510e(a)(2)( D)

 

D. Wage loss:

 

1. Wage loss is the difference between the AWW the employee was earning at the time of the injury and the AWW the employee is capable of earning after the injury.   The ALJ shall impute an appropriate post-injury wage based on a claimant’s age, physical capabilities, education and training, prior experience, and availability of jobs.  When an employee is actually working post-injury, there is a rebuttable presumption that the AWW the claimant is actually earning constitutes the post-injury AWW that the claimant is capable of earning. (Does away with theBergstrom case)  44-510e(a)(2)(E)

 

2. To establish post-injury wage loss, the employee must have the legal capacity to enter into a valid contract of employment.  (This provision is in regard to illegal aliens) Additionally, wage loss can not be caused by voluntary resignation from employment or termination for cause.  44-510e(a)(2)( E)(i)                      

3. Fringe benefits earned at a new job shall be included in the AWW calculation.  44-510e(a)(2)( E)(ii)

 

4. Refusal of accommodated employment within the worker’s restrictions and at a wage equal o greater than 90% of the pre-injury wage shall result in a rebuttable presumption of no wage loss.  44-510e(a)(2)(E)(iii)

 

VII.  MISCELLANEOUS

 

A.  Jurisdiction:

 

Accident occurred in Kansas - Occupational disease cases can still be in Kansas if only part of the exposure occurred in the state.

 

Principal place of employment of claimant is in Kansas.

 

Contract for employment was completed with claimant was in Kansas.

 

This becomes a factor where the last act necessary for the formation of the employment contract occurs in Kansas.  Shehane v. Station Casino, 267 Kan. 854 (1999).

 

B. Medical Treatment:

 

1. The employer has the duty to provide medical treatment that is reasonably necessary to cure and relieve the effects of the industrial injury.  If the employer has knowledge of the injury and fails to provide treatment, the employee may obtain reasonable and necessary treatment which the employer will then be responsible for.  K.S.A. 44-510(a).

 

2. Insurance carrier can designate treating physician where employer and claimant are same person.

 

C.        Unauthorized Medical Treatment: A claimant may submit bills for payment of unauthorized medical treatment for his injury for an amount up to $500.00 K.S.A. 44-510(c)(2).  This cannot be used by the claimant to obtain a 2nd opinion rating report.

 

D. Future medical benefits:

 

1. The employer’s obligation to provide medical benefits shall terminate upon the employee reaching MMI, unless there is medical evidence showing it is more probable than not that the employee will need additional medical treatment after reaching MMI.  This provision ends the blanket rule that all claims taken to regular hearing were guaranteed an award of future medical benefits.  44-510h(e).

 

2. In cases where there is an award made for future medical benefits, the employee, employer or insurance carrier may make an application to terminate or modify the future medical award.  If there has been no medical treatment received within two years of the award ordering future medical benefits, the employer shall be permitted to make application for permanent termination of such medical benefits.  There will be a presumption that no further medical benefits are needed that can only be overcome by competent medical evidence. 44-510k

 

3. 44-525(a)

 

E. Dismissal:

 

1. In any claim that has not proceeded to a regular hearing, settlement hearing or an agreed award within three years (changed this time frame from five years) from the date of filing of an application for hearing, the employer shall be permitted to file an application for dismissal for failure to prosecute.  The ALJ can grant an extension for good cause shown by the Claimant.         44-523(f)(1)

 

2. In any claim which has not proceeded to a regular hearing within one year from the date of a preliminary hearing denying compensability, the employer shall be permitted to file an application for dismissal for failure to prosecute.  The ALJ can grant an extension for good cause shown by the Claimant.  44-523(f)(2)

 

F. Death Benefits:  The maximum cap on death benefits increased from $250,000 to $300,000.  44-510b(h)

 

G.Permanent Total Disability:

 

1. Expert evidence shall be required to prove permanent and total disability.  44-510c(a)(2)

 

2. An injured worker shall not be eligible to receive more than one award of PTD in the worker’s lifetime.  44-510c(a)(3)

 

3. PTD cap raised from $125,000 to $155,000.  44-510f(a)(1)

 

H. Temporary Total Disability:

 

1. An authorized treating physicians opinion regarding the employee’s work status shall be presumed to be determinative.  44-510b(b)(2)(A).

 

2. Where an employee remains employed with an employer against whom benefits are sought, an employee shall be entitled to TTD if the authorized treating physician imposes temporary restrictions as a result of the work injury which the employer can’t accommodate.  A refusalby the employee of accommodated work within the authorized treating physician’s restrictions shall result in a rebuttable presumption that the employee is ineligible for TTD.  44-510b(2)(B)

 

3. If the employee is terminated for cause or voluntarily resigns, the employer shall not be liable for TTD if the employer could have accommodated the temporary restrictions but for the employee’s separation from employment.  44-510b(2)(C)

 

4. The employee shall not be entitled to TTD for those weeks during which the employee is also receiving unemployment benefits.  44-510b(4)

 

I. Temporary Partial Disability:

 

44-510d(a) The employee is now entitled to receive TPD for both body as a whole and scheduled injury claims.  44-510d(a)

 

J. Injuries to multiple parts of the same extremity:

 

Where an injury results in the loss or loss of use of more than one scheduled member within a single extremity, the functional impairment attributable to each scheduled member shall be combined for evaluation of impairment at the highest scheduled member actually impaired. Example: A claimant has injuries to the hand, wrist and shoulder.  Rather than getting three distinct awards, the injuries are combined and assessed at the highest level, in this case, the shoulder.  44-510d(b)(24)

 

K. Body as a whole injuries, reversing Casco: The loss or injury of a shoulder, arm, forearm or hand from one extremity combined with the loss or injury of a shoulder, arm, forearm or hand from the other extremity is once again a body as a whole injury.  Similarly, the loss or injury of a leg, lower leg, or foot of one extremity combined with the loss or injury of a leg, lower leg, or foot of the other extremity is a body as a whole injury.  The net result of this change is to reverse the case law established in the Cascodecision.  44-510e(a)(2)(A)

 

L. Permanent Partial Disability:

 

1. PPD cap raised from $100,000 to $130,000.  44-510f(a)(3)

 

2. For functional only impairment cases, the cap is raised from $50,000 to $75,000, whether or not TTD benefits were paid.  44-510f(a)(4) 

 

M. PPD Calculations:

 

1.         Examples

 

a. Scheduled Body as a Whole Injury, less than 15 weeks TTD, max wage rate

 

Date of accident, July 1, 2008, back injury, 415 weeks, 20% PPD, 9 weeks paid TTD, gross average weekly wage is $800.00.

 

415 weeks per schedule (no subtraction for TTD as less than 15 weeks pd)

 

x .20 PPD Percentage

= 83 Weeks of Compensation

   

 

83

 

 

x$529

Maximum weekly benefit rate for date of injury

 

=$43,907

Compensation Due

 

b. Scheduled Body as a Whole Injury, more than 15 weeks TTD paid, less than max rate

 

Date of accident, July 1, 2008, back injury, 415 weeks, 20% PPD, 40 weeks paid TTD, gross average weekly wage is $700.00.  NOTE: In body as a whole cases, every week of TTD paid after the first 15 weeks is subtracted from the available pool of 415 weeks

 

390 weeks per schedule after subtraction of 25 weeks of TTD, (40 - 15)

 

x .20 PPD Percentage

= 78 Weeks of Compensation

   

 

78

 

 

x$466.90

Compensation rate (2/3 of $700.00)

 

=$36,418.20

Compensation Due

 

c. Scheduled Injury, TTD paid, less than max rate

 

Date of accident, August 1, 2009, shoulder, 225 weeks, 15% PPD, 40 weeks paid TTD , gross average weekly wage $600.00.  NOTE: In cases not involving the body as a whole, every week of TTD paid is subtracted from the available pool of weeks

 

185 weeks per schedule after subtraction of 40 weeks of TTD (225-40)

 

x .15 PPD Percentage

= 27.75 Weeks of Compensation

   

 

27.75

 

 

x$400.20

Compensation rate (2/3 of $600.00)

 

=$11,105.55