Kansas Statutory Changes

Kansas Statutory Changes
Effective for all cases arising after 05/15/11

Average Weekly Wage
  • 44-511
  • AWW is now based on wages actually earned divided by 26 (or the number of calendar weeks the employee actually worked).
  • Bonuses and gratuities are included in the definition of "Wages actually earned."
  • "Disability insurance" is added to the definition of "additional compensation" and is to be included in the A WW if discontinued.
  • AWW of voluntary law enforcement officers, ambulance attendants and drivers, firefighters or members of regional emergency medical response teams computed on the basis of 112.5% of the state's average weekly wage.
  • A WW of a person performing community service work shall be $37.50.
  • AWW of a volunteer member of the Kansas Department of Civil Air Patrol shall be $476.38.
  • AWW of any other volunteer computed on the basis of the usual wages paid by the employer for such services or, if the employer has no employees performing such services for wages, then by comparable employers.
  • Voluntary employment is not presumed to be full-time employment.

Retirement Benefits
  • 44-501(f):
  • In determining the 'weekly equivalent value" of a lump-sum retirement benefit, the payment shall be amortized at the rate at 4% per year over the employee's life expectancy.
Arising out of & in the Course of Employment
  • 44-508(f)(2)
  • Not compensable if work was a triggering or precipitating factor; 44-508(f)(2)
  • Not compensable if injury aggravates. accelerates or intensifies a pre-existing condition;
  • Not compensable if injury "renders a pre-existing condition symptomatic;" 44-508)(f)(2)
  • Not natural aging process or ADL's; 44-508(f)(3)(A)(i)
  • Not neutral risk (with no employment or personal character); 44-508(f)(3)(A)(ii)
  • Not risk personal to the worker; 44-508(f)(3)(A)(iii)
  • Not idiopathic causes (directly or indirectly). 44-508(f)(3)(A)(iv)
Accident
  • 44-508(d):
  • "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."
    • "Prevailing Factor” 44-508(g) is defined as "the primary factor, in relation to any other factor." The ALJ shall consider "all relevant evidence" in determining what constitutes the prevailing factor.
  • Definition of accident is amended to distinguish "accident" from "repetitive trauma." Accidents and repetitive traumas (and occupational diseases) are now separate and distinct occurrences.
  • "Accident shall in no case be construed to include repetitive trauma in any form."
  • Injury by accident arises out of employment only if:
    • causal connection between the work and the accident; and
  • The accident is the prevailing factor in causing the injury, medical condition and resulting disability or impairment.
Repetitive Trauma
  • 44-508(e)
  • Definition
    • "Result of repetitive use, cumulative traumas or microtraumas"
    • "Must be demonstrated by diagnostic or clinical tests"
    • "Repetitive trauma must be the prevailing factor in causing the injury"
    • "Repetitive trauma is never an occupational disease”
  • Date of accident – the earliest of
    • Date taken off work by a physician due to the diagnosed repetitive trauma (while employed for the employer against whom benefits are sought);
    • Date given modified or restricted duty by a physician due to the diagnosed repetitive trauma (while employed for the employer against whom benefits are sought);
    • Date advised by a physician that condition is work-related (while employed for the employer against whom benefits are sought); or
    • The last date worked (if employee no longer works for the employer against whom benefits are sought).
  • Repetitive Trauma Arises out of employment only if:
    • Increased risk or hazard v. non-employment life;
    • The increased risk or hazard is the prevailing factor in causing the repetitive trauma; and
    • The repetitive trauma is the prevailing factor in causing both the medical condition and resulting disability or impairment.
Notice
  • 44-520
  • Time Limit
    • Notice must be given to the employer by the earliest of the following dates:
    • 30 calendar days from the date of the accident or injury by repetitive trauma;
    • 20 calendar days from the date the employee seeks medical treatment (if still working for employer).
    • 20 calendar days after the employee's last day of work for the employer (if no longer working for the employer).
  • Oral Notice
    • Where notice is given and the employer has designated and communicated in writing an individual or department to receive notice, any notice to any other individual or department is insufficient.
    • If no employer designation, notice must be given to a "supervisor or manager."
  • Written Notice
    • When notice is given in writing, it must be sent to a "supervisor or manager" at the "employee's principal location of employment."
    • Burden of proof is on claimant.
  • Requirements
    • Notice must include 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 act or has suffered a work-related injury.
  • Waiver of Notice
    • Employers actual knowledge of the injury
    • The employer is unavailable to receive notice; or
    • Employee is physically unable to give notice.
Functional Impairment
  • 44-508(u)
  • Functional impairment "established by competent medical evidence" and based on the AMA Guides. 4th Ed. if the impairments contained therein.
Multiple Impairments to a Single Extremity
  • K.S.A. 44-510d(b)(24)
  • When an injury results in permanent impairments to more than one scheduled member within a single extremity, the functional impairments shall be combined pursuant to the AMA Guides and calculated to the highest scheduled member actually impaired.
Computation of PPD for Scheduled Injuries
  • K.S.A. 44-510d(b)
  • Temporary Partial Disability Benefits
    • The deduction from the schedule for TPD benefits paid is determined by dividing the total dollar amount of TPD benefits paid by the appropriate PPD rate. The net result is that TPD benefits are converted to full TTD benefit weeks resulting in a smaller number being subtracted from the overall schedule.
  • Under no circumstances shall the periods of TTD and PPD run concurrently.
Scheduled injuries resulting in Permanent Partial General Disability
  • 44-510e(2)(a)
  • The loss of or loss of use of a shoulder, arm. forearm or hand of one upper extremity, combined with the loss of or loss of use of a shoulder, arm, forearm or hand of the other upper extremity;
  • The loss of or loss of use of a leg, lower leg or foot of one lower extremity, combined with the loss of or loss of use of a leg, lower leg, or foot of the other lower extremity; or
  • The loss of or loss of use of both eyes.
Work Disability
  • 44-510e
  • Functional Impairment Threshold
    • The functional impairment of the current injury must exceed 7.5% or the overall functional impairment must equal or exceed 10% where there is pre-existing functional impairment.
    • Wage Loss calculation
    • Wage loss of at least 10%
    • Wage loss must be directly attributable to the work injury
    • Voluntary resignation or termination for cause is not wage loss caused by the injury
    • Post injury wage loss determined based on employee earning capacity after the injury
    • Earning capacity is based upon a consideration of all factors
    • The A.L.J. SHALL impute an appropriate post injury AWW
    • Rebuttable presumption that wage employee is actually earning is what employee is capable of earning
    • Refusal of accommodated work at 90% of pre-injury wage shall result in rebuttable presumption of no wage loss
  • Task Loss
    • 5 year task history
    • Task loss caused by the injury
    • Permanent restrictions imposed by a physician shall be used in determining task loss
    • Tasks eliminated by pre-existing permanent restrictions shall be excluded.
  • Illegal Aliens
    • To establish wage loss, employee must have "legal capacity to enter into a valid contract of employment.”
Permanent Total Disability
  • 44-510c(a)(2)
  • Eliminates the presumption of PTD for the loss of both eyes, hands, arms, feet, legs or any combination thereof.
  • Expert evidence shall be required to prove permanent total disability.
  • An injured worker is limited to one award of PTD.
Temporary Total Disability
  • 44-510c(B)(2)(a)
  • The opinion of the authorized treating physician regarding the employee's work status "shall be presumed to be determinative."
  • No TTD benefits if the employee refuses an offer of accommodated work.
    • 44-510c(b)(2)(B).
  • No TTD benefits if the employee quits or is terminated for cause if the employer could have accommodated employee.
    • 44-510c(b)(2)(C).
  • No TTD benefits if the employee is receiving unemployment benefits.
    • 44-510c(b)( 4).
Temporary Partial Disability
  • 44-510d(a)
  • Allows for an award of TPD benefits
Caps
  • 44-510b & f
  • PTD - $155,000
  • PPD - $130,000
  • Functional impairment - $ 75,000
    • Even if TTD or TPD paid
  • Death - $300,000
Excess Voluntary payments
  • Employer's voluntary payment of wages in excess of statutory benefits due shall be allowed as a credit against any final settlement or withheld from wages in weekly amounts equal to the weekly excess paid.
  • Excess can only be withheld from wages if the employee's AWW for the calendar year exceeds 125% of the state's AWW.
Medical Treatment
  • Refusal to submit to medical treatment
    • 44-515
    • Suspension of all benefits due an employee who refuses to submit to a medical examination requested by the employer until the employee complies with the employer's request.
    • The employer shall provide the employee with a copy of the report within a "reasonable period of time."
  • Court Ordered IME
    • 44-516
    • A.L.J. authorized to order IME if there are conflicting medical opinions regarding functional impairment
  • Future medical treatment
    • 44-510h
    • A rebuttable presumption that the employer's obligation to provide medical treatment terminates at MMI.
    • The presumption is rebutted with medical evidence "that is more probably true than not" that additional medical treatment will be necessary after MMI.
    • K.S.A. 44-525, the Form of Findings and Awards statute, is amended to require that no award shall include the right to future medical treatment unless it is proved by the claimant that it is more probably true than not that future medical treatment will be required.
  • Post Award Medical Benefits
    • 44-510k
    • Where future medical benefits have been awarded, either party may make application for the "furnishing, termination or modification of medical treatment."
    • The A.L.J. can make an award of additional medical treatment only if "more probably true than not true" that the original injury is the prevailing factor in the need for additional medical care; or
    • Terminate or modify an award of current or future medical care if the AU finds no further care is required, the original injury is not the prevailing factor, or that the care requested is not necessary to treat the effects of the original injury.
  • Termination of Future medical treatment
    • 44-510k(a)(3)
    • If claimant has not received medical treatment from an authorized health care provider within two years from the award or last authorized medical treatment, there is a rebuttable presumption that no further care is needed and the employer can make application for the permanent termination of the future medical benefits.
    • The presumption may be overcome by "competent medical evidence."
    • No modification or termination without all parties being given the opportunity to present evidence.
Going to & From Work
  • 44-508(f)(3)(B)
  • Injury must occur on "premises owned or under the exclusive control of the employer”
  • Injury must occur on "a route involving a special risk or hazard connected with the nature of the employment that is not a risk or hazard to which the general public is exposed.”
Guard or protection
  • 44-510(a)(1)(D)&(E)
  • No compensation if employee engages in a reckless violation of a workplace safety rule or regulation or fighting or horseplay
Alcohol or drugs
  • Impairment established by positive drug and/or alcohol tests creates a rebuttable presumption that the injury was contributed to by the impairment.
  • The presumption can be rebutted with "clear and convincing evidence." 44-501(b)(I)(D)
  • An employee's refusal to submit to testing shall result in forfeiture of benefits if the employer had sufficient cause to suspect drug or alcohol use or if employer's policy authorizes post-injury testing. 44-501 (b)( 1 )(E)
Pre-Existing impairment
  • 44-501(e)
  • The percentage basis of any prior settlement or award under Kansas law shall "conclusively establish" the amount of pre-existing functional impairment.
  • If not awarded through settlement or judicial determination in Kansas, then by "competent evidence."
  • If the pre-existing impairment is the result of an injury sustained while working for the current employer then any award shall be reduced by the "current dollar value" of the pre-existing functional impairment. "Current dollar value" is computed by multiplying the pre-existing functional impairment by the current accident's compensation rate.
  • In all other cases, the employer is entitled to a credit for the percentage of pre-existing impairment.
Dismissal for Lack of Prosecution
  • 44-523
  • If the claim is not concluded within 3 years from the date of the filing of the application for hearing, the employer can file an application for dismissal based on lack of prosecution.
  • Notice must be given to claimant's counsel or claimant, if not represented.
  • The A.L.J. may grant an extension for good cause shown.
  • Dismissal is with prejudice and shall be considered a final disposition for purposes of Fund reimbursement.
Dismissal Following a Preliminary Award Denying Compensability
  • 44-523 (f)(2)
  • Any claim that has not proceeded to a regular hearing within one year from the date of a preliminary award denying compensability shall be subject to dismissal for lack of prosecution.
  • Notice must be given to claimant's counsel or claimant, if not represented.
  • Dismissal is with prejudice and shall be considered a final disposition for purposes of fund reimbursement.