Articles & Updates

Kansas Workers’ Compensation At-A-Glance – 2011 Amendments

 

Jurisdiction (K.S.A. 44-505, 44-506)

 

1.      Contract of hire

2.      Location where hurt

3.      Where employee does majority of work

 

Coverage

 

1.      Any employment that has gross payroll of at least $20,000.00.  44-505(a)(2).

2.      Any personal injury caused by accident arising out of and in the course of employment. 44-501.

a.       Burden of proof on claimant to show claimant’s right to benefits.

 

Statute of Limitations

 

Application for hearing must be filed within three years of the date of injury or two years of the date of last payment of compensation, whichever is later.  44-534(b).

 

Notice

 

Notice must be given be the earliest of the following dates:  (1) 30 days from the date of accident or date of injury for repetitive trauma, (2) if the employee is working for the employer against whom treatment is sought, 20 days from the day treatment is sought, (3) if the employee no longer works for the employer against whom benefits are sought, 20 days from the last day actually worked. 44-520(a)(1).  Notice may be provided orally to designated individual or department or in writing to supervisor, and must include time, date, and place of the injury.  44-520(a)(2)-(4).

 

Venue

 

All hearings are to be held by the ALJ in the county of accident, or by video or telephone conference, unless otherwise agreed.  44-549.

 

Injury

 

1.      The injury must be the prevailing factor in causing the injury.  44-508(d).

2.      Prevailing factor means the “primary factor.”  44-508(g).

3.      An injury that just aggravates, accelerates, or exacerbates a pre-existing condition is not compensable.  44-508(f)(2).

4.      An injury does not arise out of and in the course and scope of employment if the employee is on the way to assume the duties of employment or leaving such duties.  If the employee is on premises owned or exclusively controlled by the employer, then the employee will not be held to be on the way to assume the duties of employment or leaving such duties.  44-508(f)(3)(B).

 

Report of Accident

 

Required to be filed with the State within 28 days “if the personal injuries which are sustained by such accidents, are sufficient wholly or partially to incapacitate the person injured from labor or service for more than remainder of day, shift, or turn on which such injuries were sustained.” 44-557.

 

Average Weekly Wage/Comp Rate

 

1.      26 weeks preceding the DOA.  44-511(b). 

2.      Comp rate is lower of 66 2/3% of the AWW or max rate.  Only one rate for both TTD and PPD.

 

Benefits

 

1.      Medical – Employer directs medical and selects physicians.  Fee Schedule dictates how much providers can charge.

a.       Unauthorized medical – Claimant can receive up to $500 unauthorized medical care (not for rating).

b.      Mileage – Owed for anything over 5 miles (medical only).

2.      TTD – Employee is “completely and temporarily incapable of engaging in any type of substantial and gainful employment.”  44-510c(b)(2).

a.       Up to $130,000.00.  44-510f(a)(2).

b.      Waiting period of 1 week.  If TTD lasts for 3 weeks, then first week retroactive.   44-510c(b)(1).

c.       Return to or release by treating physician to any substantial and gainful employment terminates TTD. 44-510c(b)(3).

d.      No TTD for weeks unemployment received.  44-510c(b)(4).

3.      PTD – Employee has been “rendered completely and permanently incapable of engaging in any type of substantial and gainful employment.”  Cap of $155,000.00 in compensation.

4.      PPD

a.       According to schedule of 44-510d(a).

b.      Impairment to be determined according to Guides to Evaluation of Permanent Impairment, 4th Edition.

c.       Impairment to be reduced by the amount of pre-existing impairment.  44-501(e).

d.      Up to $130,000.00, including TTD paid. 44-510f(a)(2).

5.      TPD – No TPD for scheduled injuries.  Only for body as a whole.

 

Occupational Disease

 

1.      Date of injury is earliest of:  (1)  the date the employee, while employed for the employer against whom benefits are sought, is taken off work or placed on modified duty by a physician due to the alleged repetitive trauma, or told by a physician that the condition is work related, or (2) the last day worked, if the employee no longer works for the employer against whom benefits are sought.  508(e)

2.      Last employer solely responsible for occupational disease.

3.      Only compensable if exposure is the prevailing factor in the injury and the employment exposed the employee to an increased risk or hazard not found “in normal non-employment life.” 508(f).

 

 

Work Disability

 

1.      If claimant injures head, neck, back, or parallel extremities and has permanent restrictions employer cannot accommodate, then work disability triggered. 

2.      Can defeat claim if claimant finds work that pays 90% or more of pre-injury wage.

3.      Requires more than 7.5% impairment to the body as a whole, 10% impairment to the body as a whole if pre-existing impairment.

4.      Work Disability equals (Wage Loss + Task Loss)/2.  Wage loss based on wages employee is capable of earning.  

5.      Task Loss based on 5 years preceding date of accident.

6.      Must be able to legally enter employment contract to receive work disability.

 

Penalties

 

Employer is not liable when injury, disability, or death was contributed to by the use of drugs or alcohol.  If it is shown that the employee was impaired at the time of the injury, there is a rebuttable presumption that the impairment contributed to the injury, disability, or death.  44-501(b).

 

Future Benefits

 

1.      Future medical awarded if ALJ finds it is more probable than not that future medical treatment will be required as a result of the work injury.  44-525(a).   If future medical treatment has not been requested within two years from the award, application can be made to terminate future medical benefits.  44-510k(a)(3).

 

Death

 

1.      Benefits payable to dependents of deceased claimant. 44-510b(a).

a.       Initial payment of $40,000.00 to any surviving spouse or wholly dependent child. 44-510b(a).

b.      Weekly compensation to all dependents not to exceed PTD limits.  44-510b(a).

c.       Surviving spouse’s benefits capped at $300,000.00.

2.      Burial expense to not exceed $5,000.00.  44-510b(f).