Governor Brownback signed into law on April 18, 2011, the most sweeping changes in the Kansas Workers Compensation Act (the Act) since 1993. These changes were implemented in part to respond to recent case law holding that the Act must be strictly construed. One of the most important changes to the Kansas Act adopts the prevailing factor standard which was adopted in Missouri in 2005. This is a higher standard for compensability and is credited in Missouri with reducing employer liability to some extent.
The new Act was made effective as of May 15, 2011. All the changes will apply to INJURIES THAT OCCUR ON OR AFTER MAY 15, 2011.
Changes that are considered procedural may be applied to claims for injuries that occurred prior to May 15, but remain pending after that date. However, the vast majority of the changes approved are clearly substantive in nature, meaning they affect a claimant’s right to receive compensation.
I. NEW DEFINITION OF ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT
A. Accident (K.S.A. 44-508(d))
The new definition of accident is as follows:
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, produced at the time symptoms of an injury, and occurred 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.
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.
Regarding accidents, 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.
B. Definition of “Prevailing Factor” (K.S.A. 44-508(d) and 44-508(g))
The quote “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.
C. 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.
D. Establishing the Date of Accident for Repetitive Trauma
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.
E. Notice (K.S.A. 44-520)
Notice must be given within thirty calendar days of the date of accident or date of injury by repetitive trauma. Notice can be given orally or in writing.
When notice is provided orally, notice must be given to any individual the employer has designated as an individual or department to whom notice must be given and the designation has been communicated in writing to the employee. Notice to any other individual or department is insufficient. If the employer has not designated an individual or department to whom notice must be given, notice must be provided to a supervisor or manager.
When notice is provided in writing, the notice must be sent to a supervisor or manager at the employee’s principal location of employment. The burden is on the employee to prove that such notice was actually received by the employer.
The notice required by the subsection is waived if the employee can prove that the employer or employer’s representative had actual knowledge of the injury, the employer or agent was unavailable to receive such notice within the thirty day period or the employee was physically unable to give notice.
II. DEFENSES TO THE CLAIM
A. Civil Liability/Exclusive Remedy
No employer or other employee of such employer shall be liable for any injury for which compensation is recoverable under the act. Additionally, an employer shall not be liable to any third party for any injury or death of an employee that was caused under circumstances creating a legal liability against a third party and for which workers’ compensation is payable by the employer.
B. Drug and Alcohol Penalty (K.S.A. 44-501(b)(1))
The revisions establish 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.
C. Drug/Alcohol Testing (K.S.A. 44-501(b)(E)(2))
Chemical test results are admissible in evidence to prove impairment if the employer establishes that testing was the result of an employer mandated drug testing policy, in place and in writing prior to the date of accident, during an autopsy or during the normal course of medical treatment and not at the direction of the employer, the worker prior to the date and time of the accident or injury gave written consent to the employer that the worker would voluntarily submit to a chemical test for drugs or alcohol following an accident or injury, the worker voluntarily agrees to submit to a chemical test for drugs or alcohol following any accident or injury, or as a result of a federal or state law or regulation requiring post-injury testing.
In order for a chemical test to be admissible, it is required that the test sample be collected within a reasonable time following the accident or injury, the collecting and labeling of the test sample was performed by or under the supervision of a healthcare professional, the testing was performed by a laboratory approved by the United States Department of Health and Human Services, except that a blood sample may be tested for alcohol by a lab commonly used for that purpose by state law enforcement agencies, the test was confirmed by gas chromatography-mast spectroscopy or another reliable analytical method, however no such confirmation is required for a blood alcohol sample.
A new provision requires that a split sample sufficient for testing shall be retained and made available to the employee within 48 hours of a positive test. In other words, enough urine or blood needs to be collected that an amount in a sufficient supply for testing be furnished to the employee upon request within 48 hours of the positive test.
D. Recreational Activities (K.S.A. 44-508(F)(2)(c))
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.
A. Required Notice to be Contained with First Temporary Total Disability Benefit Check
The legislature has now mandated that the first TTD check delivered to the employee must contain a notice as follows:
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.
Average weekly wage is calculated using the add and divide method, using up to the 26 weeks preceding the accident, if the employee worked that duration.
“Money” means the gross remuneration earned, including bonuses and gratuities.
B. Temporary Total Disability Benefits
(K.S.A. 4-510d, K.S.A. 44-510c(b)(2))
Temporary total disability exists when the employee on account of the injury has been rendered completely and temporarily incapable of engaging in any type of substantial and gainful employment. Regarding temporary restrictions, a release issued by a healthcare provider may or may not be determinative of the employee’s actual ability to be engaged in any type of substantial and gainful employment. However, if there is an authorized treating physician, the authorized treating physician’s opinion regarding the employee’s work status is presumed to be determinative.
An injured worker is not eligible to receive more than one award of permanent total disability during the worker’s lifetime.
When the employee remains employed with the employer against whom benefits are sought, the employee is entitled to temporary total disability benefits if the temporary restrictions cannot be accommodated. However, a refusal by an employee of accommodated work within the temporary restrictions imposed by the authorized treating physician, results in a rebuttable presumption that the employee is ineligible to receive temporary total disability benefits.
An employee that has been terminated for cause or voluntarily resigns following a compensable injury is not eligible for temporary total disability benefits if the employer could have accommodated the temporary restrictions imposed by the authorized treating physician, but for the employee’s separation from the employment.
An employee is not entitled to receive temporary total disability during the weeks for which he is also receiving unemployment benefits.
C. Temporary Partial Disability Benefits (K.S.A. 44-510d)
An employee may now receive temporary partial disability benefits for scheduled injuries.
D. The Parallel Member Rule is Back (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.
Under no circumstances shall the period of permanent partial disability run concurrently with a period of temporary total or temporary partial disability.
The Casco decision has been legislatively overturned. The loss or loss of use of a shoulder, arm, forearm or hand, or the loss of use of a leg, lower leg or foot when combined with a loss on the other lower extremity makes the claimant eligible for a permanent partial general disability.
E. Work Disability-The End of Bergstrom and Tyler (K.S.A. 44-0510e(2)(A))
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.
F. Caps 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.
G. Calculation of Average Weekly Wage (K.S.A. 44-511)
The method of calculating the pre-accident average weekly wage shall no longer include multiplying the employee’s hourly rate by 40 hours when a full-time employee. Now all average weekly wages are calculated by the sum of all compensation earned by the employee for up to the 26 weeks immediately preceding the date of injury divided by the number of calendar weeks the employee actually work.
H. Impairment Rating-Still the AMA Guide Fourth Edition
The 2011 revisions to the statute still reference the AMA Guide Fourth Edition.
I. 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.
J. 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.
IV. THE END GAME-CLOSING OUT A FILE
A. 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 as a result of the underlying injury.
B. Dismissals (K.S.A. 44-523(F)(2))
If a claim has not proceeded to regular hearing, settlement hearing or an agreed award within three years from the date of filing the application for hearing, the employer shall be permitted to file with the Division, an application for dismissal based on lack of prosecution. The matter shall be set for hearing with notice to the claimant’s attorney if the claimant is represented or to the claimant’s last known address.
If a claim has not proceeded to regular hearing within one year from the date of a preliminary hearing award denying compensability, the employer shall be permitted to file with the Division, an application for dismissal based on lack of prosecution. Unless the claimant can prove a good faith reason for delay, the claim shall be dismissed with prejudice. The dismissal will be considered a final disposition at a full hearing on the claim for purposes of employer reimbursement from the Fund.
By: Foland, Wickens, Eisfelder, Roper & Hofer, P.C.
Workers Compensation Practice Group