KANSAS WORKERS' COMPENSATION CLAIM HANDLING GUIDELINES
- 1 DEFINITIONS
- 2 EXCLUSIVE REMEDY
3 JURISDICTION AND LIMITATIONS OF ACTIONS
- 3.1 General Rule
- 3.2 Extraterritorial Jurisdiction
- 3.3 Time Limitation
- 3.4 Statute of Limitations
- 3.5 Occupational Death Claims
- 3.6 Extension of Limitation Period
- 4 COMPENSABILITY
5 EXCLUSIONS AND DEFENSES
5.1 Course of Employment
- 5.1.1 Engaged in the Furtherance of Employer’s Business
- 5.1.2 Not in Furtherance of Employer’s Business
- 5.1.3 Traveling Employees
- 5.1.4 Commuting
- 5.1.5 Premises and Parking Lot Cases
- 5.2 Intentionally Self-Inflicted Injury or Death
- 5.3 Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs
- 5.4 Employee’s Violation of Positive Orders of Employer
- 5.5 Personal Animosity
- 5.6 Hostile Attacks
- 5.7 Retirement
- 5.1 Course of Employment
- 6.1 Calculation of Average Weekly Wage
- 6.2 Total Disability
- 6.3 Partial Disability
- 6.4 Amputation/Scheduled Injuries
- 6.5 Disfigurement/Scarring
- 6.6 Loss of Sight
- 6.7 Loss of Hearing
- 6.8 Penalties
- 6.9 Interest
- 6.10 Costs
- 6.11 Counsel Fees
- 6.12 Death Benefits
- 6.13 Medical Benefits
- 6.14 Refusal of Medical Treatment
- 7 SUBROGATION OR CREDIT
- 8 ATTORNEYS
- 9 CLAIMS PROFESSIONALS
10 LITIGATION AND APPEAL
- 10.1 Workers’ Compensation Procedure
- 10.2 Workers’ Compensation Appeal Board
- 10.3 Kansas Court of Appeals and Supreme Court
- 11 SETTLEMENT
- 12 INSURANCE
The Kansas Workers’ Compensation Act covers all Kansas employers except for those in certain agricultural pursuits or those with a gross annual payroll of $20,000 or less. All payroll is taken into account, including that paid outside Kansas. If the employer is a sole proprietor or a partnership, the wages paid to the owners and any of their family members are not used in the computation of the gross annual payroll.
Employment categories excluded from the law are:
• certain agricultural pursuits
• realtors who qualify as independent contractors
• firefighters belonging to a firefighters relief association which has waived coverage under the workers compensation law
• sole proprietors and partners
Certain owner-operator vehicle drivers covered by their own occupational accident insurance policy
K.S.A. 44-503 creates an employer/employee relationship for purposes of work comp where such a relationship would not be recognized under common law. The purpose of this statute is to give employees of a subcontract a remedy against the principal contract and to prevent employers from avoiding liability to an injured worker by contracting with an independent contractor to do a portion of the work undertaken by the principal. The principal, whether an owner or general contractor will be responsible for workers compensation payments to any injured employee on the job, if that employee is employed by a subcontractor. If the principal has to pay work comp benefits, they are entitled to indemnity from any person who would have been liable to pay compensation to the worker independent of K.S.A. 44-503. The principal shall not be liable for compensation if the contractor has secured workers’ compensation coverage.
Workman or Employee means any person who has entered into the employment of or works under any contract of service or apprenticeship with an employer. The technical definition is quite broad and lengthy and includes all employees whether or not they are full-time, part-time, seasonal, adults, minors or others who have been hired to do certain jobs. The critical test in determining whether or not someone is an employee is the degree of control the employer exercises over the worker
A common law legal doctrine recognized in Kansas which stipulates that if an employer (usually referred to in this rule as the special employer) borrows a worker from another employer (usually referred to in this rule as the general employer), the special employer can be held liable for the borrowed employee's actions, despite the fact that a permanent employee-employer relationship does not exist. The borrowed servant rule applies when an express or implied contract of hire exists between the special employer and the injured worker, the worker is engaged primarily in work for the special employer, and the special employer controls the details of the work.
The term "special employee" refers to a lent employee. Bendure v. Great Lakes Pipe Line Co., 199 Kan. 696, 701, 433 P.2d 558 (1967). A special employee becomes the servant of the special employer and assumes the same position as a regular employee under the Workers Compensation Act. Where the injured employee is determined to be both a special employee and a general employee, he or she may look to either or both of his or her employers for compensation.
When an employer lends an employee to another party, that party becomes liable for worker's compensation only if
(a) the employee has made a contract of hire, express or implied, with the second employer;
(b) the work being done is essentially that of the second employer; and
(c) the second employer has the right to control the details of the work.
When all three of the above conditions are satisfied in relation to both employers, both employers will be liable for workers' compensation and both will have the benefit of the exclusivity defense to tort claims." Scott v. Altmar, 272 Kan 1280 (2002).
Independent contractors are distinguished from employers for workers' compensation purposes. To be an employee a worker must be subject to the alleged employer's control with respect to the worker's physical conduct in the performance of the service in question. The right in question is the right to control the manner of the employee's service as distinguished from the right to control the ultimate result of that service. Factors considered by the Court include the actual exercise of control, the extent of control, the duration of the employment, the method of payment for services, the furnishing of equipment to the worker by the employer, the relationship of the services to the regular business of the employer and whether there is a contract of employment.
Under the exclusive remedy provision of the Workers Compensation Act, if an employee can recover workers compensation for an injury, he or she is barred from bringing a negligence suit for damages against an employer or coemployee. K.S.A. 44-501(b).
One such exception, the dual capacity doctrine, releases an employee from the exclusive remedy rule by allowing an employee to sue the employer acting in a third party capacity, such as a manufacturer or lessor of workplace products or provider of medical services.
Employees can also usually sue their employers for other types of harm not covered by workers' compensation, such as illegal discrimination, defamation, invasion of privacy, harm caused by a dangerous co-worker negligently retained by the employer, sexual harassment or damage to property.
Kansas first recognized the dual capacity doctrine in Kimzey v. Interpace Corp., 10 Kan. App. 2d 165, 167, 694 P.2d 907, rev. denied 237 Kan. 887 (1985)
"According to the dual capacity doctrine, an employer who is generally immune from tort liability to an employee injured in a work-related accident may become liable to his employee as a third-party tortfeasor if he occupies, in addition to his capacity as an employer, a second capacity that confers upon him obligations independent of those imposed upon him as an employer. It is in this second capacity that liability to an employee may be imposed."
JURISDICTION AND LIMITATIONS OF ACTIONS
The Kansas Division of Workers’ Compensation has jurisdiction over a claim for any injury which occurs within the state of Kansas.
K.S.A. 44-506 also confers jurisdiction in cases involving injuries outside of the state where:
(1) the principal place of employment is within the state; or
(2) the contract of employment was made within the state.
In Knelson v. Meadowlanders, Inc., 11 Kan. App. 2d 696 (1987), the Kansas Court of Appeals held the legislative history of K.S.A. 44-506 establishes that the phrase “principal place of employment” refers to the employee’s principal place of employment rather than the employer’s principal place of business. With regard to contract of employment as a jurisdictional basis, the most frequently raised issue has been where the contract was made. It has been held that when a job offer is made by telephone, the place of contracting is the location of the person as he speaks his acceptance. Pearson v. Electric Service Company, 166 Kan. 300 (1949). The general rule is that a contract is made when and where the last act necessary for its formation is done. Neumer v. Yellow Freight System, Inc., 220 Kan. 607 (1976).
Notice of Injury
For accidents occurring from 5/15/11 through 4/25/13:
Notice must be given by 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)(1)..
For accidents occurring after 4/25/13:
30 day rule abolished. Deadline is 20 days from date of accident and from date employee first sought treatment. 10 days if employee no longer works for the employer.
Statute of Limitations
Application for hearing must be filed within three years of date of injury or two years of the date of last payment of compensation, whichever is later K..S.A. 44-534(b).
Special Rules for Death Claims
Statute of limitations same as accidental injury.
Occupational Disease Death Claims
The date an employee becomes incapacitated by an occupational disease from performing their work shall be considered the date of the injury. If compensation is due, the employer at the time the worker was last exposed to occupational hazards shall be held liable. Written notice of an occupational disease needs to be given to the employer within 90 days after disablement. If death has resulted, notice still needs to be given to the employer within 90 days. If the employer is aware of the occupational disease, this shall be considered sufficient notice. If no claim for death or disability if filed within one year, the right to compensation shall be considered forfeited. However, the failure to file shall be deemed waived if:
(1) No objection has been made at a hearing before any award or decision thereon;
(2) The employer or insurance carrier makes compensation payments or the employer or insurance carrier by his or its conduct leads the employee or workman or claimant reasonably to believe that notice or claim has been waived.
Occupational Death Claims
Statute of limitations same as occupational disability claims. See above.
Extension of Limitation Period
If a claim has not proceeded to a regular hearing within three years of filing of the Application for Hearing, the employer may request dismissal with prejudice for lack of prosecution. The Administrative Law Judge can deny this for good cause. Claimant not at MMI is conclusively presumed to be good cause.
General Rule/Accidental Injury
(a) Sudden and unexpected traumatic event identifiable by time and place of occurrence, producing symptoms of an injury and occurring during a single work shift.
(b) The injury must be the prevailing factor in causing the injury.K.S.A. 44-508(d).
(c) Prevailing factor means the “primary factor”. K.S.A. 44-508(g).
(d) An injury that solely aggravates, accelerates or exacerbates a pre-existing condition is not compensable. K.S.A. 44-508(f)(2).
(e) “Accident” excludes repetitive trauma.
The following injuries are excluded:
(a) Injuries occurring as the result of natural aging process or normal activities of day to day living.
(b) Accident or injury arising out of neutral risk.
(c) Accident or injury arising out of personal risk to the worker.
(d) Accident or injury arising directly or indirectly from idiopathic causes.
(e) Triggering/precipitating factors.
(f) Aggravations/accelerations/ exacerbations.
General Rule/Repetitive Trauma
Occurs by repetitive use, micro traumas:
i. demonstrated by Repetitive nature diagnostic or clinical tests.
ii. The repetitive trauma must be the prevailing factor in causing the injury.
Repetitive trauma excludes occupational disease.
“Personal injury” and “injury” mean any lesion or change in the physical structure of the body, causing damage or harm thereto. Personal injury or injury may occur only by accident, repetitive trauma or occupational disease as those terms are defined. K.S.A. 44-508(f)(1).
Types of Injuries
Accident Not Required
A traumatic accident is not required for compensability to exist. This is particularly true in the case of repetitive trauma injuries which occur over time.
Infectious disease can be compensable if contraction of the disease arises out of and in the course of the employment. The employment must be the prevailing factor in causing the contraction of the disease.
Compensation shall not be paid in case of coronary or coronary artery disease or cerebrovascular injury unless it is shown that the exertion of the work necessary to precipitate the disability was more than the employee’s usual work in the course of the employee’s regular employment.
A psychological injury is not compensable under Kansas law unless it is directly traceable to a work-related physical injury.
K.S.A. 44-501(b) defines occupational disease as follows:
Occupational disease’ shall mean only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged. Nature of the employment’ shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee was engaged, there is attached a particular and peculiar hazard of such disease which extinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general. The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk.”
EXCLUSIONS AND DEFENSES
Course of Employment
The phrase “in the course of” employment relates to the time, place and circumstances under which the accident occurred, and means the injury happened while the employee was at work in the employer’s service.
The two phrases “arising out of” and “in the course of” employment have separate and distinct meanings. Both elements must be proved before a claim is compensable. The phrase “arising out of” employment points to the cause or origin of the accident and requires some causal connection between the accident and the employment. Before an accident arises out of employment it should be apparent to the rational mind a causal connection exists between the work and accident. An injury arises out of employment if it arises out of the nature, conditions, obligations, and incidents of the employment.
Engaged in the Furtherance of Employer’s Business
The courts will look to determine whether activities performed by the claimant are conducted in furtherance of the employer’s business. If the work activities arise out of the conditions, obligations of the employment or further the employer’s business interest, most often the claimant will be deemed to be within the course of his employment.
Not in Furtherance of Employer’s Business
To the contrary, if it is apparent to the rationale mind that a causal connection does not exist between the work activity and the accident, but rather was, for example, personal in nature, the injury will not arise out of and in the course of the employment.
The rule in Kansas when dealing with travel is that when traveling is an integral part, inherent in nature, or necessary to the employment, the “going and coming” rule does not apply.
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 the 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. K.S.A. 44-508(f)(3)(B).
No Fixed Place of Work Exception
Transportation Included in Employment Exception
Special Missions, Assignments, or Circumstances Exception
Accidents occurring while going and coming from work are compensable where travel is either (a) intrinsic to the job or (b) required to complete some special work-related errand or trip. Kansas case law recognizes a distinction between accidents incurred during the normal going and coming from a regular permanent work location and accidents incurred during going and coming in an employment in which the going and coming is an incident of the employment itself. Under this third qualification to the going and coming rule, injuries incurred while going and coming from places where work-related tasks occur can be compensable where the traveling is (a) intrinsic to the profession or (b) required in order to complete some special work-related errand or special-purpose trip in the scope of the employment.
Premises and Parking Lot Cases
Premises defined to include property owned or under the exclusive control of the employer. Special risks and hazards must be connected with the nature of the employment that is not a risk or hazard to which the general public is exposed.
Intentionally Self-Inflicted Injury or Death
Self-inflicted injury or death is not compensable in Kansas. K.S.A. 44-501(a)(1)(A).
Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs
Employer is not liable when injury, disability, or death was contributed to by the use of drugs or alcohol. If employee was impaired at the time of the injury, there is a rebuttable presumption that the impairment contributed to the injury, disability, or death. K.S.A. 44-501(b).
Refusal to submit to chemical test results in forfeiture of benefits if cause to suspect use of alcohol/drugs or if employer’s policy clearly authorizes post injury testing.
(b) Violation of Law
Compensation for an injury shall be disallowed if such injury to the employee results from:
(a) The employee’s deliberate intention to cause such injury;
(b) The employee’s willful failure to use a guard or protection against accident or injury which is required pursuant to any statute and provided for the employee;
(b) The employee’s willful failure to use a guard or protection against accident or injury which is required pursuant to any statute and provided for the employee;
(d) The employee’s reckless violation of their employer’s workplace safety rules or regulations; or
(e) The employee’s voluntary participation in fighting or horseplay with a co-employee for any reason, work related or otherwise.
Employee’s Violation of Positive Orders of Employer
If an employee is performing work which has been forbidden, as distinguished from doing his work in a forbidden manner, he is not acting in the course of his employment. An exception to the foregoing rule is to be made when the employer has previously accepted the benefit of the forbidden practice with knowledge that the prohibition has been violated. Another exception to the rule is to be made when the prohibition is so general in its terms that it is readily outweighed by the specific benefit to the employer of the doing of the prohibited act.
Voluntary participation in fighting or horseplay with a co-employee not compensable whether related to work or not. K.S.A. 44-501(a)(1)(E).
Compensability concentrates not on the peculiarity of the risk but on the increased exposure to the risk. The doctrine that the hazard must be peculiar to the employment (peculiar risk test) has been generally abandoned. The hazard itself need not be peculiar to the employment as long as the risk of exposure to the hazard is increased by the employment.
Voluntary retirement can be a defense to a work disability/wage loss claim. In the event of retirement, a wage can be imputed to the employee.
Calculation of Average Weekly Wage
Wage equals money plus additional compensation. “Money” includes gross payment on hourly, output, salary, commission or other basis. Includes bonuses and gratuities. Additional compensation includes board/lodging and employer paid fringe only; included only if discontinued.
Add total wages earned by worker in twenty-six (26) weeks preceding injury and divide by number of weeks actually worked.
(a) Exist when the employee on account of injury rendered completely and permanently incapable of engaging in any type of substantial and gainful employment.
(b) Removes presumption based upon certain injuries.
(c) Requires expert evidence to establish permanent total disability.
(d) Worker can only be perm total once in lifetime.
(e) Permanent total cap is $155,000.00 for injuries after 5/15/11. The permanent total cap is $125,000.00 for injuries before 5/15/11.
Permanent partial disability cap is $130,000.00 for injuries after 5/15/11. The permanent partial disability cap is $100,000.00 for injures before 5/15/11.
Functional impairment cap is $75,000.00. Functional impairment cap applies even if temporary total disability or temporary partial disability has been paid.
Since 1996, Kansas impairment ratings must be based on the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition. For injuries occurring on and after January 1, 2015, the AMA Guides, 6th Edition, will be used.
Kansas recognizes only voluntary vocational rehabilitation.
Return to Work with Loss of Earnings
If claimant suffers general bodily disability or injury to parallel extremities, is earning less than 90% of pre-injury wage and has permanent restrictions the employer cannot accommodate, then work disability triggered.
Work disability available only if certain thresholds met: Functional impairment greater than 7.5% or equal to or greater than 10% if pre-existing impairment exists. Wage loss must be greater than 10%.
Work disability equals (Wage Loss + Task Loss)/2. Wage Loss based on wages employee is capable of earning. Task Loss based on 5 years before date of accident. Must be able to legally enter employment contract to receive work disability.
Earning Power Assessment
Wage loss equals the difference between the average weekly wage the employee earned before the injury and the average weekly wage the employee is capable of earning after the injury.
Capability based on consideration of all factors including age, physical capabilities, education, training, prior experience and availability of jobs in the open labor market.
Administrative Law Judge shall impute an appropriate post injury average weekly wage based on such factors.
Actual post injury wages create rebuttable presumption of workers’ average weekly wage.
Post injury wage includes actual or projected weekly value of fringe benefits.
Employer Job Offer
Workers’ refusal of accommodated work within restrictions and at comparable wage results in a presumption of no wage loss.
Vocational experts are routinely used to establish earning capacity.
Scheduled injuries are identified at K.S.A. 44-510(d).
SCHEDULED INJURY EXAMPLE
Date of accident..........7/01/12
Shoulder injury, weeks..........225
Percent, loss of use..........20
Weeks of TT paid..........10
Average weekly wage..........$900
Temporary total rate..........$570
(225 Weeks on schedule) - (10 TT weeks paid) = 215
(215) * (20 Percent of disability) = 43 Weeks, permanent partial compensation
(43 )* ($570) Maximum weekly rate = $24,510.00 Lump sum
K.S.A. 44-510d(b) authorizes a healing period in cases of amputation. Claimant may be allowed a healing period of not more than 10 percent of the total period allotted for the scheduled injury in question and, in any event, not longer than 15 weeks.
Permanent Partial Scheduled Disability:
Exists when there is complete or partial loss of or loss of use of a body part, such as an arm, due to a job-related injury. Compensation for permanent partial scheduled disability is limited to a percentage of the following schedule. A healing period is available in cases of amputation. Benefits are 66.67 percent of an employee’s average gross weekly wage, but not less than $25 nor more than the statutory maximum cap of $130,000.
Benefit Information Schedule:
Loss of or loss of use of: Weeks Paid: Loss of or loss of use of: Weeks Paid:
Shoulder................................................ 225 Thumb.................................................. 60
Arm....................................................... 210 1st (index) finger.................................. 37
Forearm................................................. 200 2nd (middle) finger.............................. 30
Hand...................................................... 150 3rd (ring) finger.................................... 20
Leg........................................................ 200 4th (little) finger................................... 15
Lower leg.............................................. 190 Great toe............................................... 30
Foot....................................................... 125 Great toe, end joint.............................. 15
Eye........................................................ 120 Each other toe...................................... 10
Hearing, both ears................................. 110 Each other toe, end joint only................ 5
Hearing, one ear...................................... 30
Compensation is payable for scarring and disfigurement if ratable under the AMA Guides, 4th Edition. Section 13.5 of the AMA Guides provides a number of factors which should be considered in assessing impairment for scars and skin disorders, including whether the scar is atrophic or hypertrophic; whether the scarring is visible; and whether the scar interferes with activities of daily living.
Loss of Sight
For the loss of an eye, or the complete loss of the sight thereof, 120 weeks. Loss of both eyes, expert testimony needed to prove permanent total.
Loss of Hearing
For the complete loss of hearing both ears, 110 weeks. For the complete loss of hearing of one ear, 30 weeks.
K.S.A. 44-512(a). $100.00 penalty per week for past due indemnity compensation. $25.00 per bill or the sum equal to 10% of the amount which is past due on a medical bill.
K.S.A. 44-512(b). Failure to pay without just cause or excuse prior to an Award will result in interest on the amount of disability compensation found to be due and unpaid at the rate of interest prescribed pursuant to applicable Kansas usury rules.
Employer responsible for transcript fees and court-ordered medical evaluations. Otherwise, each party bears its own costs.
Attorney’s fees limited to 25% of recovery.
Benefits payable to dependents of deceased claimant. K.S.A. 44-510b(a).
(a) Initial payment of $40,000.00 to any surviving spouse or wholly dependent child. K.S.A. 44-510b(a).
(b) Weekly compensation to all dependents not to exceed permanent total disability limits. K.S.A. 44-510b(a).
(c) Surviving spouse’s benefits capped at $300,000.00 for accidents after 5/15/11.
(d) Burial expenses not to exceed $5,000.00. K.S.A. 44-510b(f).
Employer directs medical treatment and selects authorized treating physician. Fee schedule dictates how much providers can charge.
Unauthorized medical – claimant can receive up to $500.00 unauthorized medical care (not for rating).
Mileage – Owed for anything over 5 miles (medical only).
Refusal of Medical Treatment
An unreasonable refusal of the employee to submit to medical or surgical treatment when the danger to life would be small and the probabilities of a permanent cure great, may result in denial or termination of compensation beyond the period of time that the injured worker would have been disabled had the worker submitted to medical or surgical treatment. K.A.R. 51-9-2.
SUBROGATION OR CREDIT
The employer by statute can separately pursue reimbursement of workers’ compensation benefits paid and payable if the injured worker elects not to do so within 12 months of the accident or within 18 months in a wrongful death case. K.S.A. 44‐504. The employer can intervene in the injured worker’s action. K.S.A. 44‐504 (b). The injured worker is required to give notice of suit and no settlement or satisfaction of judgment is valid without the employer’s written consent.
Employer fault can result in a discount of the employer’s lien for the employer’s fault based upon all damages in the verdict, not just the employer’s lien. K.S.A. 44‐504(d).
The employer’s recovery of its subrogation lien can be reduced by those damages awarded for the spouse’s loss of consortium and loss of services. K.S.A. 44-504(b).
Pursuant to K.S.A. 44-504(g), the employer is responsible for a proportionate share of attorney fees and costs.
Motor Vehicle Accidents
Subrogation is available to the employer in motor vehicle accidents wherein third-party fault exists. Subrogation is not available against underinsured motorist benefits.
Kansas law does not recognize a workers’ compensation subrogation lien against health benefits.
Pursuant to K.S.A. 44-504(b), the employer is entitled to a credit against future compensation payments for any recovery received by the injured worker in excess of the amount of compensation and medical aid paid to the date of recovery.
Prior Disability Ratings/Pre-existing Condition:
Compensation for any permanent disability may be reduced by the existence of a rating on any applicable pre-existing disability. K.S.A. 44-501(e): An award of compensation for permanent partial impairment, work disability or permanent total disability shall be reduced by the amount of functional impairment determined to be pre-existing. Any such reduction shall not apply to temporary total disability, nor shall it apply to compensation for medical treatment. K.S.A. 44-501(e)(1): Where workers compensation benefits have previously been awarded through settlement or judicial administrative determination in Kansas, the percentage basis of the prior settlement or award shall conclusively establish the amount of functional impairment determined to be pre-existing. Where workers compensation benefits have not previously been awarded through settlement or judicial or administrative determination in Kansas, the amount of pre-existing functional impairment shall be established by competent evidence.
Attorneys must be licensed by the Kansas Supreme Court to practice workers’ compensation law in the State of Kansas.
Attorney’s representing injured workers are required to file a fee contract with the Division of Workers’ Compensation. Attorneys representing injured workers are also required to file a mandatory Attorney’s Fee Statement for any settlement.
Kansas law does not require any specific licensing for claims professionals adjusting workers’ compensation claims.
LITIGATION AND APPEAL
Workers’ Compensation Procedure
Preliminary Hearing: After application for hearing has been filed, the employee or employer may make application for preliminary hearing on the issues of medical treatment and payment of TTD benefits. Written notice of intent identifying benefit change sought or requested must be filed seven (7) days prior to filing application for preliminary hearing.
Prehearing Settlement Conference: Prehearing settlement conferences are mandatory pursuant to K.S.A. 44-523. The purpose of the prehearing settlement conference is to explore potential for settlement and to narrow issues for hearing. If parties cannot agree to functional impairment, administrative law judge can refer claimant for independent medical evaluation. Independent medical evaluations obtained pursuant to award at prehearing settlement conference is admissible upon regular hearing without further foundation evidence. Prehearing settlement conference will take place after claimant has reached maximum medical improvement and has received impairment rating.
Regular Hearing: A regular hearing is the equivalent of the trial of the case. The regular hearing takes place before an administrative law judge. Typically, only the claimant will testify at regular hearing.
Appointment of Workers’ Compensation Judge
See K.S.A. 44-551.
Qualifications of Workers’ Compensation Judge
Each Administrative Law Judge shall be an attorney regularly admitted to practice law in Kansas with at least five (5) years of experience as an attorney and at least one (1) year of experience practicing in the area of workers’ compensation. See K.S.A. 44-551.
Workers’ Compensation Appeal Board
All findings, awards and decisions of the administrative law judge are subject to review by the Board of Appeals. Request for review must be made within ten (10) days of the date of the ALJ’s Order.
Scope of Review of Workers’ Compensation Appeal Board
The Kansas Workers’ Compensation Appeals Board determines the case de novo and can make new findings of fact as well as legal determinations.
Kansas Court of Appeals and Supreme Court
Any actions of the Workers’ Compensation Appeal Board may be appealed directly to the Kansas Court of Appeals. Appeal must be filed within 30 days of the date of the order of the Board.
As amended in 2009, K.S.A. 77-621 defines “substantial evidence” “in light of the record as a whole” to include evidence both supporting and detracting from an agency’s finding. Courts must now determine whether the evidence supporting the agency’s factual findings is substantial when considered in light of all of the evidence. Redd v. Kansas Truck Center
All mediation in Kansas is voluntary. K.S.A. 44-5,117.
Informal Settlement Conferences
Prehearing settlement conferences are mandatory pursuant to K.S.A. 44-523.
Compromise and Release
K.S.A. 44-531 allows for the lump sum settlement of the workers’ compensation claim.
Most employers are required by law to provide for the payment of workers compensation claims, at no expense to the employee. Employers shall satisfy this requirement in one of three ways:
• Workers compensation insurance: obtained from a licensed insurance carrier; the employer pays the premiums and the insurance company pays the claims. The insurance carriers are regulated by the Kansas Insurance Department.
• Self-insurance: an individual employer must demonstrate to the State the financial ability to pay any claims that might arise. This program is administered by the Division of Workers Compensation.
• Group-funded pool: a group of employers meeting certain statutory requirements may form a self-insurance program to jointly insure their ability to pay claims. This program is administered by the Kansas Department of Insurance.
Intentional failure to provide for workers compensation payment in one of the above ways is a class A misdemeanor and subjects the employer to a civil penalty in an amount twice the annual premium the employer would have paid for insurance or $25,000.00, whichever amount is greater.
General Rule Where Employer is Uninsured
If an employer has no insurance to secure the payment of compensation and is financially unable to pay compensation to an injured worker, the injured worker may apply to the Director for an award of the compensation benefits to be paid from the Kansas Workers’ Compensation Fund.
Damages by Action at Law Where Employer is Uninsured
An insured employer remains entitled to the exclusive remedy provisions of the Workers’ Compensation Act. Garnishment actions, however, can be pursued by an injured worker in District Court for the recovery of workers compensation benefits order by an administrative law judge. The Workers’ Compensation Fund shall have a cause of action against the employer for recovery of any amounts paid from the Workers’ Compensation Fund in District Court.
Insolvent Insurers Guaranty Fund
K.S.A. 40-2901 Et.Seq., identifies the Kansas Guaranty Funds rules and regulations. The Kansas Guaranty Fund is designed to protect against loss due to insolvent insurance companies.