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A. Workers' compensation is an insurance contract required by law intended to provide LESS than full compensation for injuries suffered which arise out of and during the course of employment. The insurance contract is required by law and is a compromise between no compensation for no-fault and adequate compensation for total fault. It provides some compensation even if the injuries are the worker's own accidental fault. It does not cover intentionally self inflicted injuries. hide
A. In Kansas a worker is required to orally report the fact of an accident or injury to the employer within 10 days, or under some unusual circumstances, up to 75 days if "just cause" is shown for the delay. A written claim must be served upon the employer within 200 days of the accident, or within 200 days of the last date "compensation" was provided without a break of benefits of 200 days. Within 3 years of the accident, or within 2 years of the last payment of compensation, an "Application For Hearing" or Form E-1 must be filed with the Division of Workers' Compensation. Some actions of the respondent or failure to act of the respondent may extend these time periods through estoppel or failure to file an accident report when notice has been properly given. hide
A. Kansas workers' compensation provides 100% of all medical expense caused by a covered injury including prescriptions, medical appliances, physical therapy, TNS units, etc. and transportation to and from medical care, if it's 5 miles or longer, The employer has the right to select the medical provider.
The employee has $500.00 of "unauthorized medical" to spend as they wish for medical evaluation and/or treatment. Medical opinions for functional impairment ratings are not payable under "unauthorized medical".
The Administrative Law Judge can require the employer to provide a list of three physicians, from which claimant may choose if the claimant is dissatisfied with the physician selected by the employer. The employer is obligated to provide prompt medical treatment and it's failure or refusal to do so after request allows an employee to obtain treatment of his own selection and thereafter have it paid as authorized by the employer. hide
A. Disability benefits, both temporary and permanent, are provided based upon a maximum benefit of two-thirds of the employees' average weekly wage up to a maximum amount (currently $440) which changes annually based upon the State average weekly wage. hide
A. Temporary disability covers the time between the injury and the time the medical profession determines "maximum medical improvement" has been reached. I.e. an amputation of a limb is "temporary" until the "stump" has healed. hide
A. Permanent disability is intended to provide compensation for the permanent damage - called functional impairment - resulting from an injury which causes limitations expected to last indefinitely or for a persons lifetime. hide
A. Temporary partial disability is the loss of some of an employee's average weekly wage/earnings because of a temporary reduction in their earning ability, such as being released to work only half days, or at a lighter duty job which has a lower pay rate. It is calculated based upon two-thirds of the actual wages loss due to partial incapacity for working. An example is the employee who is allowed to return to work on "light duty" and whose employer has a policy of no overtime while on light duty. The employee who previously averaged 10 hours a week overtime, is entitled to be paid two-thirds of their average weekly overtime which is lost due to the employer's policy and the employees light duty status. hide
A. Temporary total disability is the disability during the time a treating health care provider determines claimant is unable to work at substantial and gainful employment and has not attained maximum medical improvement. hide
A. Total permanent disability is the permanent and total loss of an employee's ability to perform substantial and gainful employment. The test is by statute equivalent to the Social Security Disability Insurance definition of total disability but in Kansas is interpreted by the administrative system as a more stringent test than total disability is interpreted in the social security administrative system. In Kansas, it is generally necessary to show a person is essentially unemployable. Substantial and gainful employment is not statutorily defined in Kansas. hide
A. Permanent partial disability benefits are compensation for either the damage to a person's body called "functional impairment" as determined by a physician making use of the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition, or a "work disability" which takes into consideration the loss of earning ability caused by the injury.
Certain injuries are listed on a "schedule" and are known as scheduled injuries. No "work disability" is allowed for a scheduled injury. Thus, the loss of a leg, the loss of an arm, the loss of an eye, the loss of hearing in both ears, etc., are only compensated based upon the physical damage or "functional impairment" and no additional compensation is allowed for loss of earning capacity. Because this provision of the law is generally seen as harsh and unfair, the system is reasonably liberal in stretching the determination of the effect of a very serious or amputation scheduled injury thereby making a leg amputation not solely a leg injury, but acknowledging the psychological effect or affliction of nonscheduled areas of the body i.e. hip or back, thus making the injury "body as a whole". Ordinarily, a lawyer is needed to assist in getting this accomplished.
Work disability is based upon the average between "task loss" and "wage loss". By statute, the pre-injury average weekly wage is compared with the post injury wage both calculated in the same manner. If the post injury wage is less than 90% of the pre-injury average weekly wage and it is a body as a whole injury, the percentage of wage loss, i.e., $500.00 a week versus $400.00 post injury = 20% wage loss is averaged with the task loss. Task loss is determined by a physician testifying which of the job tasks performed by the employee in the 15 years prior to the injury the employee should no longer perform. Generally, this requires the assistance of a vocational expert to determine "tasks" as well as the testimony of a physician commenting upon the employee's ability to perform the tasks. If a vocational analysis of the work tasks performed in the 15 years immediately preceding the accident establishes 20 tasks were performed and the doctor finds 10 of the tasks should no longer be performed, a 50% task loss has been sustained. It is averaged with the 20% wage loss (50 + 20 =70÷ 2) = 35% work disability. Most of the time the work disability percentage is substantially higher than the functional impairment percentage.
An employee is entitled to be compensated for either functional impairment, or work disability, whichever provides the greatest benefit to the employee. hide
A. "Accident" means an undesigned, sudden and unexpected event or events usually of an afflictive or unfortunate nature and often, but not necessarily accompanied by a manifestation of force. "Accident" is viewed from the standpoint of the injured person. The victim of an assault has suffered a "accidental injury". Intentionally self inflicted injuries are not accidents.
"Injury" and "personal injury" means any lesion or change in the physical structure of the body causing damage or harm thereto so that it gives way under the stress of the worker's usual labor. Physical changes due to the natural aging process, or the normal activities of day to day living are not considered injuries.
Cumulative trauma or repetitive use conditions such as carpal tunnel syndrome, tendonitis, etc., are injuries for workers' compensation purposes. The concept is that each bend of the wrist is a micro-trauma or micro-accident. The cumulative sum of which causes injury and is therefore compensable under the Workers' Compensation Act.
"Fault" does not detract from an injury being accidental. A person whose own clumsiness or own negligence causes their injury does not avoid the injury being "accidental", but intentional self-inflicted injuries are not accidental injuries. hide
A. "Arising out of" and "in the course of" employment are two different concepts. "rising out of" refers to some connection between the employment and the injury while "in the course of" refers to the injury occurring while in the course of one's employment. A typist suffering carpal tunnel from typing has an injury that arose out of the employment. The typist who suffered a heart attack or stroke while performing her usual duties did not have an accidental injury "arising out of" her employment, even though it may have occurred during the course of her employment. "Arising out of" requires there be a connection between the employment and the injury or condition suffered. hide
A. "In the course of" employment merely means that the injury occurred while at work or during the course of working. A person on a time clock who suffers an injury while punched in is in the course of their employment. Under some circumstances, a construction worker who picks up tools to take them to a job site and has an auto accident en route, is "in the course of their employment". The factory worker on their way to their production job is not in the course of their employment if involved in a motor vehicle accident. hide
A. Impairment under Kansas law is a determination by a health care provider of the damage to a person's body sustained as a result of accidental injury. The determination of impairment in Kansas is required to be based upon the 4th Edition of the AMA Guides to the Evaluation of Permanent Impairment. The aim is to have all persons with identical injuries receive the identical impairment percentage. The goal of the AMA Guides is to have a person's impairment determined to be the same or very close to the same regardless of which physician does the evaluating. The Guides provide standard criteria for determining impairment. In practice, the Guides are interpreted by different health care providers and markedly different results are reached just as different religious leaders derive different interpretations from the Bible or Old Testament.
"Impairment" per the Guides is a condition that interferes with an individual's "activities of daily living". Activities include, but are not limited to, self care and personal hygiene; eating and preparing food; communications; speaking; writing; maintaining one's posture; standing and sitting; caring for the home and personal finances; walking; traveling; and moving about; recreational social activities; and work activities. An impairment percentage derived by means of the AMA Guides is intended to represent an informed estimate of the degree to which an individual's capacity to carry out daily activities has been diminished. hide
A. Disability is an alteration of an individual's capacity to meet personal, social or occupation demands, or statutory or regulatory requirements because of an impairment. Disability refers to an activity or task the individual cannot accomplish, generally because of an impairment. Disability arises out of the inability to perform a desired activity.
Damage to the tip of a lawyer's forefinger on their dominate hand may create no disability. The same damage on a professional baseball pitcher may create a disability causing the pitcher to lose millions of dollars of income annually.
In Kansas, "disability" is based half on loss of actual wages comparing pre-accident wages with post-accident wages and half on loss of the ability to perform "job tasks" previously performed in the 15 years before the injury. A vocational expert is generally required to make a list of "tasks" which then must be provided to a physician who makes a determination as to which tasks, if any, a claimant cannot perform post injury. Frequently, both sides obtain a vocational expert and at least one medical expert with substantially differing opinions as to the number of tasks which cannot be performed. hide
