KANSAS WORKERS’ COMPENSATION LAW SUMMARY 2018 – 2019

MAXIMUM BENEFITS/CAPS

Death benefits …………………………………….$300,000.00 ($40,000.00 to be paid immediately) 44-510b; Minimum survivor benefit $421.00 wk

Permanent total benefits ………………………$155,000.00 44-510b(h)

All other benefits (PPD, TPD, TTD) ……$130,000.00 44-510f(a)(2)&(3)

Medical expenses ……………………………….No Limit 44-510h(a)

Functional impairment………………………$75,000.0044-510f(a)(4)

PPD SCHEDULE 44-510d  WEEKS

Body as a whole 415

Shoulder 225

Arm 210

Forearm 200

Hand 150

Leg 200

Lower Leg 190

Foot 125

Eye 120

Hearing, both ears 110

Hearing, one ear 30

Thumb 60

First finger (index) 37

Second finger (middle) 30

Third finger (ring) 20

Fourth finger (little) 15

Great toe 30

Great toe (end joint) 15

Each other toe 10

NOTICE: Post 04/25/13 Proceedings shall not be maintainable unless notice of injury is given to employer by the earliest of: (A) 20 days D/I; (B) if still working for the employer, 20 calendar days from date medical treatment sought; or (C) if no longer works for employer, 10 days after the employee’s last day of work for employer. Notice oral or written. If oral, if the employer has designated to whom notice must be given and communicated such in writing to employee, notice to any other individual or department shall be insufficient. If employer has not designated to whom notice must be given, notice must be provided to a supervisor or manager. Where notice is written, it must be sent to a supervisor or manager at the employee’s principal location of employment. 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. 44-520

JURISDICTION: Accident occurred in Kansas; Out of state accident where contract of employment made in Kansas (unless contract provides otherwise) or where employee’s principal place of employment” is within the State of Kansas. 44-506

STATUTE OF LIMITATIONS: Application for hearing must be on file within3 years from the date of the accident or within 2 yearsfrom the date of the last payment of compensation, whichever is later.44-534(b) If claim not resolved within 3 years from filing the application for hearing, the claim may be dismissed. 44-523(f)(1) If claim has not gone to regular hearing within 1 year from a prelim hearing denying compensability, claim may be dismissed. 44-523(f)(2)

REDUCTION FOR PRE-EXISTING IMPAIRMENT:A prior award of impairment establishes the percentage of P.E. impairment. If no prior award, P.E. impairment established by competent evidence.If P.E. impairment with same employer, get dollar for dollar credit. 44-501(e)(1)&(2)

DATE OF ACCIDENT:

REPETITIVE TRAUMA INJURY – Date of accident is the earliest of the following dates:

1. Date the authorized physician takes employee off work due to the condition;

2. Date the authorized physician gives modified or restricted duty;

3. Date advised by a physician that the condition is work related; or

4. Date employee last worked.

If none of above criteria are met, date of accident shall be determined by the ALJ based on all the evidence and circumstances and in no event shall the date of accident be the date of, or the date before, the regular hearing. 44-508(e)

ACCIDENT:An undesigned sudden and unexpected traumatic event identifiable by time and place of occurrence, producing at the time symptoms of an injury, and occurring during a single work shift. Accident must be the prevailing factor causing the injury. 44-508(d) Injury not compensable because it aggravates/accelerates/ exacerbates a pre-existing condition or renders a pre-existing condition symptomatic. 44-508(f)(2) Injury not compensable if the result of normal aging, normal ADL’s or idiopathic causes. 44-508(f)(3)(A)

DRUG, ALCOHOL AND SAFETY: Compensation denied if injury results from: (1) employee’s deliberate intention to cause injury; (2) employee’s willful failure to use safety guard furnished by employer; (3) employee’s reckless violation of safety rules; (4) employee’s voluntary participation in fighting or horseplay; (5) where the injury was contributed to by the employee’s use of alcohol or drugs. 44-501(a)(1)(E)Conclusively presumed employee impaired if it is shown that the employee had an alcohol concentration of .04 or more, or a GCMS confirmatory test showing a concentration at or above the levels shown for the drugs of abuse listed in 44-501(d)(2); (6) employee’s failure to submit to a chemical test if employer had sufficient cause to suspect usage or per employer’s policy requiring testing. 44-501

CALCULATION OF AWW: Wages the employee earned while employed by employer up to 26 weeks divided by weeks worked. 44-511(b)(1)

PERMANENT TOTAL DISABILITY: Expert evidence shall be required to prove PTD. Employee is limited to one award of PTD. 44-510c

TEMPORARY TOTAL BENEFITS: An insurer or self-insured employer shall provide the following notice to the employee on or with the first TTD check – “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 total disability benefits could constitute fraud and could result in loss of future benefits and restitution of prior workers compensation awards and benefits paid.” 44-510l No TTD is due if employee terminated for cause or voluntarily resigns and employer had accommodated work. 44-510c(b)(2)(C) Opinion of the authorized treating physician as to employee’s work status is presumed determinative. 44-510(b)(2)(A)

CALCULATION OF BODY AS A WHOLE INJURIES / WORK DISABILITY: 415 wks minus TTD paid (no credit for first 15 weeks) x PPI % or work disability x Comp rate = PPD Due. There is a presumption of functional impairment. 44-510e

CALCULATION OF WORK DISABILITY: W/D is the extent to which the employee, in the opinion of a physician, has lost ability to perform work tasks performed by employee during the 5 years before the accident averaged with the percentage employee’s AWW has been reduced. The wage loss must be directly attributable to the work injury.Wage loss is difference between pre-injury AWW and AWW employee is capable of earningafter injury. W/D available only if thresholds met: (1) Current functional impairment > 7.5% BAW or overall functional impairment equal to or > 10% and (2) Wage loss > 10% caused by the injury. 44-510e(a)(C)

FUNCTIONAL IMPAIRMENT: For injuries arising before 01/01/15 functional impairment established based on the AMA Guides to the Evaluation of Permanent Impairment,4^th Edition. 44-508(u). For injuries arising on / after 01/01/15, the AMA Guides 6^th Editionshall be used unless no recovery – See Pardo v. UPS

CALCULATION OF SCHEDULED INJURIES: Weeks on schedule – TTD Weeks paid x PPI % x Comp Rate = PPD Due.

Example: 225 wks (shoulder) – 10 wks TTD paid = 215 wks x 10% rating = 21.5 wks x $610.00 = $13,115.00. 44-510d(d)

WORKERS’ COMPENSATION FUND: If employer is found liable for benefits, pays benefits, and upon review by either the board or an appellate court, the decision is overturned, the employer and insurance carrier may seek reimbursement from the Kansas Fund for benefits paid. 44-566a(e)

PRELIMINARY HEARING: Emergency hearing for purpose of obtaining or terminating TTD or medical benefits. 44-534a. Appeal to Appeals Board on disputed issues of: accident; injury; arising out of or in course of; and notice. 44-534a(2) Reversal at Reg. Hearing may entitle er/ins to reimbursement from Fund. 44-534a(b)

REPETITIVE TRAUMA: The injury must be demonstrated by diagnostic or clinical tests. “Repetitive trauma” shall not include occupational disease 44-508(e)

OCCUPATIONAL DISEASE: Disease resulting from the “nature of the employment” in which employee was engaged contracted while so engaged. “Nature of the employment” means there is attached a particular and peculiar hazard of such disease which distinguishes that employment from other employments and which creates a hazard in excess of the hazard of the disease in general. Employer is not liable unless disablement results within 1 year after the last injurious exposure. 44-5a01

FUTURE MEDICAL: No future medical unless more probably true than not that future medical will be required.If employee has not received medical treatment from an authorized physician within 2 years from award date or date employee last received medical treatment from an authorized physician, employer can request a hearing to terminate medical. 44-510k(a)(2)&(3)

DISMISSAL FOR LACK OF PROSECUTION: Employer can request a dismissal if: (1) Claim not concluded in 3 years from date of filing application for hearing; (2) Claim has not proceeded to regular hearing within 1 year from date of preliminary hearing award denying compensability. 44-523(f)(1)&(2)

CHANGE OF PHYSICIAN: Employer may be required to submit name of 2 providers not in practice together. 44-510h(b)(1)

OFFERS OF SETTLEMENT: Attorney may not be entitled to fee on offer made before defense is aware that employee is represented. 44-536(b)(1)

Copyright Stretz/Quinn, P.C. 2018