KANSAS WORKERS' COMPENSATION LAW CHANGES
ADD INSULT TO INJURED WORKERS
Are you knowledgeable about all of the Kansas Workers' Compensation Law changes? If not, protect your rights by contacting the workers' compensation attorneys at Ankerholz and Smith. The Kansas Legislature recently made the most significant changes in the Kansas Workers' Compensation Act since 1993. Governor Sam Brownback approved the law changes.
The changes apply to injuries that occur on or after May 15, 2011.
In all states, the insurance industry hires lobbyists to try to pass laws that are favorable to insurance companies. Kansas legislators gave in to that pressure, and enacted provisions that were designed to reduce employer liability instead of helping injured workers.
Under the old law, it was the stated intention of the Kansas legislature that the provisions of the workers' compensation Act were "to 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 "protection" language is now gone.
Insurance companies are so worried that they might pay out too much money that they convinced the Kansas legislature to add a fraud warning that must be sent to injured workers when they receive their first benefit 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. K.S.A. 44-501(2) (a).
The most important change to the Kansas Act adopts the same "prevailing factor" standard that was adopted by Missouri in 2005. This is a higher standard for compensability, and it is credited in Missouri with reducing employer liability and reducing workers' benefits.
For more information, please visit our firm's Kansas workers compensation site.
The new definition of Accident (K.S.A. 44-508(d)).
Accident means an undersigned, sudden, and unexpected traumatic event, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. An accident shall be identifiable by time and place of occurrence, at the time produce symptoms of an injury, and occur during a single work shift. The accident must be the prevailing factor in causing the injury. "Accident" shall in no case be construed to include repetitive trauma in any form.
An injury is compensable only if it arises out of and in the course of employment, and is not compensable because work is a triggering or precipitating factor. An injury is not compensable solely because it aggravates, accelerates or exacerbates a pre-existing condition or renders a pre-existing condition symptomatic.
The accident must be the prevailing factor causing the injury, medical condition and resulting disability or impairment. An injury which occurs as a result of natural aging or normal activities of day to day living, an accident or an injury which arose out of a neutral risk with no particular employment or personal character, an accident or injury which arose out of a risk personal to the worker, or an accident or injury which arose either directly or indirectly from idiopathic causes is not compensable. 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 Administrative Law Judge shall consider all relevant evidence submitted by the parties.
Definition of "Repetitive Trauma" (K.S.A. 44-508(e)).
"Repetitive trauma" refers to cases where an injury occurs as a result of repetitive use, cumulative traumas or 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. "Repetitive trauma" shall in no case be construed to include occupational disease.
An injury by repetitive trauma arises out of employment only if the employment exposed the worker to an increased risk or hazard, which the worker would not have been exposed to a normal non-employment life. The repetitive trauma must be the prevailing factor in causing both the medical condition and resulting disability or impairment.
Establishing the Date of Accident for Repetitive Trauma (K.S.A. 44-508(e)).
In cases of injury by repetitive trauma, the date of injury shall be the earliest of:
(1) The date the employee, while employed for the employer against whom benefits are sought, is taken off work by a physician due to the diagnosed repetitive trauma;
(2) The date the employee, while employed for the employer against whom benefits are sought, is placed on modified or restricted duty by a physician due to the diagnosed repetitive trauma;
(3) The date the employee, while employed for the employer against whom benefits are sought, is advised by a physician that the condition is work related; or
(4) The last day worked, if the employee no longer works for the employer against whom benefits are sought. In no case shall the date of accident be later than the last date worked.
Drug and Alcohol Penalties (K.S.A. 44-501(b)(1)).
The new law creates a situation in which injured employees may lose all of their benefits because he or she took too much of a non-prescription drug!
Kansas workers' compensation law provides a rebuttable presumption that an employee was impaired at the time of the injury, a rebuttable presumption is established that the impairment contributed to the accident, injury, disability or death. The presumption may be overcome by clear and convincing evidence.
An employee's refusal to submit to a chemical test at the request of the employer shall result in a 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.
Recreational Activities (K.S.A. 44-508(F)(2)(c)).
Daniel L. Smith of Ankerholz and Smith recently won an Award for a worker who was injured at a company "team-building" event. That case went to the Kansas Supreme Court. Now the law has been changed to specify situations when such injuries are not to be considered work-related. Accidents or injuries occurring while an employee is engaged in recreational or social events are not compensable when the employee was under no duty to attend, or the injury did not result from the performance of tasks related to the employee's normal job duties or unless specifically instructed to be performed by the employer.
Average weekly wage (K.S.A. 44-511).
The amount of money a worker makes plays a big part in how much compensation he or she will receive due to an injury. Even if an employee misses a day of work for good cause, the new law prevents a full-time employee from using a 40-hour week to calculate his or her average weekly wage. That means a worker's monetary benefits will be lower.
The Parallel Member Rule (K.S.A. 44-510e(2)(A)(i)(ii)).
When an injury results in loss of use of more than one scheduled member within a single extremity, the functional impairment attributable to each scheduled member shall be combined pursuant to the Fourth Edition of the AMA Guide. Compensation awarded is to be calculated to the highest scheduled member actually impaired.
Work Disability (K.S.A. 44-0510e(2)(A)).
A new threshold must be met before an injured worker can qualify for increased benefits under the concept of work disability. In order to receive a work disability, the percentage of functional impairment determined to be caused solely by the injury must exceed 7.5 percent to the body as a whole or an overall functional impairment equal to or exceeding 10 percent to the whole body in cases where there is pre-existing functional impairment.
The employee must sustain a post injury wage loss of at least 10 percent, which is directly attributable to the work injury and not any other causes or factors.
Task loss has now been cut back to the five-year period preceding the injury.
Wage loss is now defined to mean the difference between the average weekly wage the employee was earning at the time of the injury and the average weekly wage the employee is capable of earning after the injury. The capability to earn post-injury wages is established upon consideration of all factors, including but not limited to the injured worker's age, physical capabilities, education, training, prior experience and availability of jobs in the open labor market.
An Administrative Law Judge shall impute an appropriate post-injury average weekly wage based on all such factors. When an employee is engaged in post-injury employment for wages, there is a rebuttable presumption now established that the average weekly wage the injured worker is actually earning constitutes the post-injury average weekly wage the employee is capable of earning. This presumption may be overcome by competent evidence.
Wage loss caused by voluntary resignation or termination for cause shall in no way be construed to be caused by the injury.
Actual or projected weekly values of any employer paid fringe benefits are to be included as part of the worker's post-injury average weekly wage.
An injured worker's refusal to accept an accommodated employment within the worker's medical restrictions as established by the authorized treating physician and at a wage equal to 90 percent or more of the pre-injury wage shall result in a rebuttable presumption of no wage loss.
Post injury wage loss may only be claimed by injured workers who have the legal capacity to enter into an employment contract.
Credit for Pre-Existing Impairment on a Subsequent Claim(K.S.A. 44-501(e)).
In a situation where benefits have been previously awarded, the percentage basis of the prior settlement or award conclusively establishes that amount of pre-existing functional impairment. When benefits have not been previously awarded, then the pre-existing functional impairment shall be established by competent evidence.
If the pre-existing impairment is a result of an injury sustained while working for the same employer, any award of compensation shall be reduced by the current dollar value attributable under the Act to the percentage of functional impairment determined to be pre-existing. The current dollar value is calculated by multiplying the percentage of pre-existing impairment by the compensation rate in effect on the date of the accident or injury against which the reduction shall be applied.
In all other cases, the current employer is entitled to a credit based on the percentage of pre-existing impairment.
Future Medical Treatment (K.S.A. 44-525(a)).
No award shall include the right to future medical treatment unless it's proved by the claimant that it is more probable than not that future medical treatment will be required as a result of the work related injury.
Terminating Post-Award Medical Benefits (K.S.A. 44-510k).
If a claimant has not received medical treatment within two years from the date of the award or two years from the date the claimant last received medical treatment, the employer is permitted to make an application for permanent termination of future medical benefits. In such cases, there shall be a presumption that no further medical care is needed.
Statutory Maximums for Benefits Have Been Increased (K.S.A. 44-510F).
For permanent total disability including temporary total, temporary partial, permanent partial and temporary partial benefits, the cap has increased from $125,000.00 to $155,000.00.
For temporary total disability, the cap has increased from $100,000.00 to $130,000.00.
For permanent partial disability with functional impairment only, the amount is increased from $50,000.00 to $75,000.00 for such an injury. The $75,000.00 cap contained shall apply whether or not temporary total disability or temporary partial disability benefits were paid.
The burial expense is still $5,000.00. A new edition is that if a court appointed conservator is required, the employer shall pay an amount to retain a court ordered conservator or set up the same in a sum not to exceed $1,000.00.
The death benefit cap has been increased from $250,000.00 to $300,000.00.
Other Law Changes.
The Kansas Workers' Compensation statutory revisions listed above are not the only changes that were made. Other recent law changes may affect your rights. The attorneys at Ankerholz and Smith handle Kansas workers' compensation cases as well as Missouri workers' compensation cases. Free initial consultations are available. No attorney fee is charged if no recovery is made.