Kansas Benefits

Untitled Document

Dates

Max Rate

Qualifying Wage

Days Expressed as Decimals

07/01/06 – 06/30/07

$483.00

$724.50

1/7 = .14

07/01/07 – 06/30/08

$510.00

$765.00

2/7 = .28

07/01/08 – 06/30/09

$529.00

$793.50

3/7= .43

07/01/09 – 06/30/10

$546.00

$819.00

4/7 = .57

07/01/10 – 06/30/11

$545.00

$817.50

5/7 = .71

07/01/11 – 06/30/12

$550.00

$825.00

6/7 = .86

07/01/12 – 06/30/13

$570.00

$832.50


MAXIMUM BENEFITS/CAPS

Death benefits

  • Pre 05/15/11 $250,000 /$40,000.00 to be paid immediately
  • Post 05/15/11 $300,000 / $40,000.00 to be paid immediately

Permanent total benefits

  • Pre 05/15/11 $125,000
  • Post 05/15/11 $155,000


All other benefits PPD, TPD, TTD

  • Pre 05/15/11 $100,000
  • Post 05/15/11 $130,000

Medical expenses ..................................No Limit

Functional impairment

  • Pre 05/15/11 $50,000 but only if not TTD/TPD paid
  • Post 05/15/11 $75,000 irrespective if TTD/TPD paid

PPD SCHEDULE

Body as a whole
Shoulder
Arm
Forearm
Hand
Leg
Lower Leg
Foot
Eye
Hearing, both ears

WEEKS

415
225
210
200
150
200
190
125
120
110

 

Hearing, one ear
Thumb
First finger (index)
Second finger (middle)
Third finger (ring)
Fourth finger (little)
Great toe
Great toe (end joint)
Each other toe
Each other toe (end joint)

WEEKS

30
60
37
30
20
15
30
15
10
05

PPD Pre 05/15/11

  • Amputation through a joint treated as loss at next highest level.
  • For injuries which result in the loss of or loss of use of more than one scheduled member within a single extremity, the impairment attributable to each scheduled member shall be combined and compensation awarded shall be calculated to the highest scheduled member actually impaired.
  • Injury to hip joint regarded as general body disability.
  • Shoulder injury is scheduled injury.
  • No PPD for operated or operable traumatic hernias.
  • General body disability shall not be paid when there is loss of or loss of use of opposing upper or lower extremities.

PPD Post 05/15/11 –

  • Amputation through a joint treated as loss at that level.
  • For injuries which result in the loss of or loss of use of more than one scheduled member within a single extremity, the impairment attributable to each scheduled member shall be combined and compensation awarded shall be calculated to the highest scheduled member actually impaired.
  • Injury to hip joint regarded as general body disability.
  • Shoulder injury is scheduled injury.
  • No PPD for operated or operable traumatic hernias.
  • General body disability may be paid when there is loss of or loss of use of opposing upper or lower extremities and of both eyes.

OTHER BENEFITS:
Funeral Allowance: $5,000.00
Unauthorized Medical: $500.00 - cannot be used to obtain a functional rating report.
Medical Mileage: .55 cents per mile. Mileage due when round trip exceeds 5 miles.
(Call 785-296-3441 to confirm current medical mileage reimbursement rate.)
Per Diem: $15.00 per day plus payment of mileage, turnpike and parking expenses necessarily incurred if exam is out of town or city of employee's residence on the date of accident.
Disfigurement: No separate payment. This is included in the disability/impairment evaluation.
TTD Waiting Period: 1 Week. However, must go back and pay first week if employee is off 3 weeks or more.
Minimum Compensation Rate for TTD: $25.00 per week

NOTICE:

  • Pre 05/15/11
    • Employee required to give notice within 10 days after accident. Failure to give notice within 10 days shifts burden to claimant to show good cause for the delay.
    • Notice given after 75 days bars the claim unless the employer had actual knowledge, the employer was unavailable to receive notice or the employee was unable to provide notice.
  • Post 05/15/11
    • Employee required to give written notice of accident or repetitive trauma by the earliest of the following dates:
      • 30 days after accident date or the date of injury by repetitive trauma; or
      • 20 days from the date medical treatment is sought if still working for employer; or
      • 20 days from the last day worked if no longer working for employer.
      • Notice given orally must be given to supervisor or manager.

JURISDICTION: Kansas has jurisdiction of claims for accidents occurring in Kansas and for out of state accidents where the contract of employment was made in Kansas (unless the contract specifically provides otherwise) and for out of state accidents where the "principal place of employment" is within the State of Kansas. "Principal place of employment” refers to employee's principal place of employment.

STATUTE OF LIMITATIONS: No proceeding for compensation shall be maintained unless an application for hearing is on file in the office of the director within 3 years from the date of the accident or within 2 years from the date of the last payment of compensation, whichever is later. If any claim has not been resolved by regular hearing or settlement or agreed award within 3 years from the date of filing the application for hearing, the claim may be dismissed. If any claim has not gone to regular hearing within 1 year from a preliminary hearing denying compensability, the claim may be dismissed.

PERMANENT TOTAL DISABILITY:

  • Pre 05/15/11
  • Post 05/15/11
    • Expert evidence shall be required to prove PTD.
    • There is no presumption of PTD based upon a combination of injuries.
    • Employee is limited to one award of PTD.

REDUCTION FOR PRE-EXISTING IMPAIRMENT:

  • Pre 05/15/11
  • Post 05/15/11
    • A prior award of impairment establishes the percentage of pre-existing impairment.
    • If no prior award, pre-existing impairment is established by competent evidence.
    • If pre-existing impairment with same employer, get dollar for dollar credit.

DATE OF ACCIDENT – REPETITIVE TRAUMA:

  • Pre 05/15/11
    • In cases in which the accident occurs as a result of a series of events, repetitive use, cumulative traumas or microtraumas, the date of accident shall be the date the authorized physician takes the employee off work due to the condition or restricts the employee from performing the work which is the cause of the condition. In the event the worker is not taken off work or restricted as above, then the date of injury shall be the earliest of the following dates – Saylor v. Westar Energy, Inc., 207 P.3d 275 (Kan. Ct. App. 2009)
      • When the authorized physician (A/P) takes the claimant off work due to the condition;
      • A/P gives the employee work restrictions that prevent the employee from carrying out the work that caused the condition
      • The date the employee provides written notice to the employer of the injury
      • Date the condition is diagnosed as work related so long as this is communicated in writing to the employee.
  • Post 05/15/11
    • The earliest of the following dates:
      • Date the authorized physician takes employee off work due to the condition;
      • Date the authorized physician gives modified or restricted duty;
      • Date advised by a physician that the condition is work related; or
      • Date employee last worked.
      • In cases in which none of the above criteria are met, the 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.

ACCIDENT:

  • Pre 05/15/11
    • No specific statutory definition
  • Post 05/15/11
    • An undesigned sudden and unexpected traumatic event.
    • An accident shall be identifiable by time and place of occurrence, produce at the time symptoms of an injury, and occur during a single work shift.
    • The accident must be the prevailing factor in causing the injury, that is, the primary factor in relation to any other factor.
    • Repetitive trauma is when an injury occurs as a result of repetitive use, cumulative traumas or micro-traumas; it must be demonstrated by diagnostic/clinical tests; and it must be the prevailing factor in causing injury.
    • An injury is not compensable solely because it aggravates, accelerates or exacerbates a pre-existing condition or renders a pre-existing condition symptomatic.
    • An injury or physical condition is not compensable if it is as a result of the normal aging process, normal activities of daily living or idiopathic causes.

DRUG, ALCOHOL AND SAFETY VIOLATIONS:

  • Pre-05/15/11
    • Employer is not liable for benefits where alcohol or drug use contributed to the accident. Criteria must be met to establish proof of usage. Admissibility of testing dependent upon proof probable cause among other elements. Probable cause is met when drug/alcohol testing is accomplished in accordance with employer policy on mandatory drug testing.
  • Post 05/15/11
    • Compensation is denied if the injury results from:

      (1) employee’s deliberate intention to cause injury;

      (2) employee’s willful failure to use a safety guard or protection per statute or which is voluntarily furnished by employer;

      (3) employee’s reckless violation of safety rules;

      (4) employee’s voluntary participation in fighting or horseplay;

      (5) where the injury, disability or death was contributed to by the employee's use or consumption of alcohol or drugs.

        • It shall be conclusively presumed that the employee was impaired due to alcohol or drugs if it is shown that, at the time of the injury, the employee had an alcohol concentration of .04 or more, or a GCMS confirmatory test by quantitative analysis 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. (See 44-501 for testing requirements).

PERMANENT TOTAL DISABILITY:

  • Pre 05/15/11
    • Presumption of PTD with bilateral extremity injuries
  • Post 05/15/11
    • Expert evidence shall be required to prove PTD.
    • There is no longer a presumption of PTD based upon a combination of injuries.

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.” No TTD is due if employee terminated for cause or voluntarily resigns and employer had accommodated work. The opinion of the authorized treating physician as to employee’s work status is presumed determinative.

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. Example: 415 wks – 10 wks (25 wks TTD paid – 15 wks) = 405 wks x 25% PPI = 101.25 wks x $550.00 (current max rate) = $55,687.50. There is a presumption of functional impairment. Work disability is the extent expressed as a percentage to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks performed by the employee during the 5 years before the accident averaged with the percentage by which the employee’s AWW has been reduced. The wage loss must be directly attributable to the work injury and not other causes. Wage loss equals the difference between the pre-injury AWW and the AWW the employee is capable of earning after the injury. No work disability is due if the employee is earning 90% of pre-injury wage. Work disability is available only if thresholds met: (1) Current functional impairment > 7.5% or overall functional impairment equal to or greater than 10% if pre-existing impairment and (2) Wage loss > 10%.

CALCULATION OF SCHEDULED INJURIESWeeks 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 $550.00 (current max rate) = $11,825.00.

WORKERS' COMPENSATION FUND:  If employer is found liable for 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.

PRELIMINARY HEARING:  Emergency hearing for purpose of obtaining or terminating TTD or medical benefits. Any party may request a preliminary hearing. The Award in preliminary hearing is not dispositive of case. A preliminary award may be appealed to Appeals Board on limited grounds. Reversal at time of Regular Hearing may entitle employer/insurer to reimbursement from Kansas Fund.

OCCUPATIONAL DISEASE:  Disease resulting from the "nature of the employment” in which employee was engaged and which was actually 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.

FUTURE MEDICAL:

  • Pre 05/15/11
    • Future medical rights left over for life with entry of an Award
  • Post 05/15/11
    • No award shall include future medical unless it is proven that it is more probably true than not that future medical will be required.
    • After an award of future medical, 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.

PRE-HEARING SETTLEMENT CONFERENCE:  Before any matter is set for Regular Hearing, the parties must submit to a PHSC to review issues, enter into agreements as to those items which may be stipulated to, and to obtain a date for the regular hearing. If there is no agreement as to the functional impairment to be assigned, the ALJ may appoint a neutral physician to conduct an examination to determine the functional impairment of the employee. The ALJ will consider the opinion of the neutral physician in ruling on the case. Cost of the neutral is borne by the Respondent/Carrier.

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.

Copyright Stretz/Quinn P.C. 2016