CHAPTER II.
COVERAGE UNDER THE KANSAS WORKERS COMPENSATION ACT |
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§ 2.01 Generally
- September 1998. (Award) Where the accident did not occur in Kansas, claimant's contract of employment was not
in Kansas, and claimant's principal place of employment was not in Kansas, the Kansas Workers Compensation Act
does not apply and benefits must be denied. K.S.A. 44-505 and K.S.A. 44-506. Graff v. Trans World Airlines,
Docket No. 176,398 [Reversed and remanded by Supreme Court, Docket No. 82,148].
- ----- K.S.A. 44-506 excludes activities so involved in interstate commerce as not to be subject to the legislative
power of the state. This exclusion has been applied only where the federal law provides an exclusive remedy as it
does in the case of railroad employees covered by the federal employer's liability act. Krous v. Lowden, 153 Kan.
181, 109 P.2d 138 (1941). Id.
- ----- Application of a state's worker's compensation act to a claim involving an injury which occurred within the
state is not considered to contravene requirements of the United States Constitution. Pacific Employers Insurance
Co. v. Industrial Accident Comm'n, 306 U.S. 493 (1939). Id.
2.02 Employers Included / Excluded
2.03 Generally
- September 1998. (Ph) The Board finds that although respondent corporation may have had a technical corporate
status under the corporation laws of the State of Kansas, the facts establish that claimant and his wife were simply
individuals using the corporation as an instrumentality, or as a sham, to conduct personal business. The Board
concludes the corporate entity should be disregarded as claimant and his wife were operating their business as a
partnership. An individual partner in a partnership is not considered an employee under K.S.A. 44-508(b) unless an
election has been filed pursuant to K.S.A. 44-542a. As there is no evidence in the record of an election being filed,
the Board affirms the ALJ's finding that the claimant and respondent corporation did not have an employee-employer relationship for coverage under the Workers Compensation Act. Piper v. A-1 Refuse and Farm Bureau
Mutual Insurance Company and Kansas Workers Compensation Fund, Docket No. 210,674.
2.04 Election to Come under the Act
- April 2000. (Award) Claimant was self-employed at the time he was killed. According to K.S.A. 44-542a, as a
self-employed individual claimant would not have been covered within the provisions of the workman's
compensation act unless the intention of the parties clearly indicated that claimant was covered. Under the facts of
this case, claimant although having applied for worker compensation coverage under the assigned risk plan, the
coverage did not indicate an intent to provide coverage for claimant as an employee. Therefore, there was no
coverage for the claimant. Bruce Harris (Deceased) vs. Home Helpers and Wausau Underwriters Insurance, Inc.,
Docket 236,032 (April 2000) [Affirmed by unpublished Court of Appeals opinion, Docket No. 85,276, December 8,
2000].
- August 1999. (Award) Self-employed individuals may bring themselves within the provisions of the Workers
Compensation Act by procuring insurance coverage. K.S.A. 44-542a. Vanderwoude v. American Mobil Homes and
Travelers Insurance Company, Docket No. 244,213.
- ----- The only issue on review was whether claimant, the owner and operator of a mobile homes service had
qualified for coverage under the Act by purchasing workers compensation insurance coverage. The Board affirmed
the ALJ's findings that claimant (based on his own testimony and insurance certificates submitted into evidence)
had insurance coverage on himself on the date of accident; therefore, the Board affirmed the ALJ's finding that the
accident was compensable under the Act. Id.
- July 1998. (Ph) Respondent was engaged in an "agricultural pursuit" as defined by K.S.A. 1997 Supp. 44-505(a)(1). Claimant alleges he suffered a work-related injury while cleaning a scale used to weigh diary cattle.
Respondent purchased workers compensation insurance coverage during an initial stage of construction of the dairy
facility but later terminated the policy. Respondent did not file an election. Claimant's injury occurred after
respondent had terminated the insurance coverage. The Appeals Board found there was no insurance coverage at the
time of the accident, no election filed, and no representation to the employees that they would be covered.
Therefore, the Board finds respondent was not covered by the Workers Compensation Act; claimant's injury is
likewise not covered. Ortega v. Cimarron Dairy and Uninsured and Kansas Workers Compensation Fund, Docket
No. 227,297. [Affirmed by Kansas Supreme Court, Docket Nos 81,691 & 81,692].
- See Also, Rivera v. Cimarron Dairy and Uninsured and Kansas Workers Compensation Fund, Docket No. 223,223
(July 1998). 227,297. [Affirmed by Kansas Supreme Court, Docket Nos 81,691 & 81,692].
- February 1994. (Award) Respondent advised its employees they would be covered by workers compensation
insurance and, in fact, purchased insurance. Respondent, however, did not file the necessary election. Claimant was
subsequently injured during the period of insurance coverage. The Board held that the purchase of insurance, even
in absence of a filed election, brought the respondent under the provisions of the Workers Compensation Act.
Schneider v. Hensleigh, Docket No. 170,986.
2.05 Payroll Requirement
- June 1999. (Ph) K.S.A. 1998 Supp. 44-505 requires that the total gross annual payroll for the employer be for "all
employees." Therefore, the Appeals Board adds the payroll of the Overland Park, Kansas, as well as the Wichita,
Kansas, offices together to come to the conclusion that respondent's total annual gross income exceeds $20,000.
Wolf v. Calendar Club and Insurance Company Unknown, Docket No. 239,893.
- May 1999. (Ph) When a principal has a $20,000 or more payroll, the Workers Compensation Act is applicable to a
subcontractor's injured employee even though the subcontractor may not have a payroll that equals or exceeds that
amount. Olivares v. Mid-Continent Specialties, Inc. and Workers Compensation Fund, Docket No. 237,793.
- ----- When a workers is seeking benefits from a principal; or "statutory employer," the issue is not whether the
immediate employer's payroll meets the threshold amount required by the Workers Compensation Act. Instead, the
issue is whether the principal's payroll meets the threshold amount. To do otherwise, the Board found, would be to
allow principals to avoid the act by contracting with small subcontractors having annual payrolls less than $20,000.
Id.
- October 1998. (Ph) Claimant testified he was paid $10 per week and worked 40 hours per week. This would
exceed the $20,000 payroll requirement in K.S.A. 1997 Supp. 44-505(a). Although the number of hours claimant
and other crew members could actually work was dictated somewhat by the weather and respondent's ability to
obtain roofing jobs, the fact that respondent employed several roofers that worked as a crew makes it more probable
that the gross annual payroll for all employees exceeded $20,000. Therefore, the Board finds that claimant has met
his burden of showing respondent had sufficient payroll to meet the jurisdictional requirements of the Act. Athey v.
Davis Roofing and Workers Compensation Fund, Docket No. 230,907.
- February 1998 (Ph) Held, claimant met his burden of proving respondent had a total gross annual payroll for the
preceding calendar year of at least $20,000, and that the respondent reasonably estimated its gross annual payroll for
the 1997 calendar year would likewise be more than $20,000. Therefore, claimant met his burden of proving
respondent had sufficient payroll to come under the Act. K.S.A. 44-505(a). Bishop v. Terry Lamb Pro Tree Service
and Unknown and Kansas Workers Compensation Fund, Docket No. 225,386.
- See Also Leija v. Commercial Gardener & Workers Compensation Fund, Docket No. 228,450 (February 1998).
- January 1998. (Ph) Where it is determined that respondent's payroll did not exceed $20,000 for the current year,
the Appeals Board affirms the decision of the Administrative Law Judge that claimant had not established the
requisite $20,000 payroll required under K.S.A. 44-505. Tubbs, Jr. v. Mike Tubbs and Kansas Workers
Compensation Fund, Docket No. 227,356.
- See Also, George E. Moody vs. Marvin Smith and Glenn Combs and Insurance Companies Unknown and Kansas
Workers Compensation Fund, Docket No. 239,624 (June 2000).
- March 1994. (Award) Even though the employer might not have expected its payroll to be in excess of $10,000 at
the beginning of the year, it is not unreasonable to require the estimate of annual payroll be reconsidered at
reasonable times throughout the year and where the employer could have later anticipated that payroll would exceed
the $10,000 threshold, the employer is considered to be covered by the Act. Holcomb v. M&R Detail Shop, Docket
No. 173,872.
2.06 Self Employment
2.07 Specific Employments Excluded
2.07a Agricultural Pursuits
- March 2000. (Ph) Claimant was injured while assisting in making mechanical repairs to a truck used on
respondent's farm and ranch operation. The issue before the Board was whether the repair work was an "activity
incident[al] to an agricultural pursuit." K.S.A. 44-505(a)(1). Claimant argued that minor repairs should be included
as part of the agricultural pursuit; however, major repairs requiring the work of an independent mechanic is not part
of the agricultural pursuit. The Board concluded that while some repairs might not fall within the parameters of
agricultural pursuit exclusion, the repairs here did fall within the exclusion as an integral part of the farm or
agricultural operation. The truck being repaired was used to move large hay bales with a hydraulic lift affixed to the
truck's bed. Because the existing leaf springs were not strong enough to withstand the weight, respondent requested
claimant's assistance in replacing the leaf springs. Milbrandt v. Sam Krehbiel, Docket No. 248,237.
2.08 The Place the Employment Contract Is Created
- January 2001 (Ph) For the Workers Compensation Act to apply, the contract of employment is "made" when and
where the last act necessary for its creation is done. By telephone from his Pittsburg, Kansas residence claimant
accepted respondent's offer of transfer to another company. The Board concluded that the last act necessary to form
an employment contract occurred in Kansas when claimant accepted the transfer by telephone. Baker vs. Legacy
Transport, LLC and ITT Specialty Risk Services, Docket No. 258,433.
- October 1999. (Ph) Jurisdiction exists in Kansas where claimant accepted offer of employment on phone while in
Kansas even though claimant still had to pass drug test in Missouri. Drug test may give rise to grounds for
termination but is considered to be after the contract of employment has been entered. Gaston v. Chicago Express,
Inc., Docket No. 245,523.
- See Also, Jim J. Perryman vs. Grand Island Contract Carriers, Inc., Docket No. 248,754 (April 2000).
- September 1999. (Ph) A contract is considered made when and where the last act necessary for its formation is
done. See Neumer v. Yellow Freight Systems, 220 Kan. 607 (1976). In the case at hand, claimant's principal place
of employment was in Missouri, but the employment contract was formed in Kansas; therefore, Kansas jurisdiction
was applicable. Claimant accepted respondent's offer for employment over the telephone while claimant was at his
home in Topeka, Kansas. The Board found that acceptance of the offer to be the last act necessary to form the
employment contract, despite the fact that claimant's employment was further conditioned upon certain
contingencies which would take place in the State of Missouri. Farmer v. AT&T and Gates McDonald, Docket No.
241,576.
- August 1999. (Ph) The last act necessary to form the contract of employment was found to be the interview
between claimant and respondent's representative in Missouri followed immediately by the administering of a blood
test which occurred in the State of Missouri. Therefore, there is no jurisdiction for the injury to fall under the
Kansas Workers Compensation Act. Martin v. Citicorp and Reliance Insurance Company and Travelers/Aetna,
Docket No. 237,951.
- March 1999. (Award) Although respondent's principal place of business was in Missouri, the Kansas Workers
Compensation Act applies to this injury where it is determined that the last act necessary to form the employment
contract--which was claimant's acceptance of the job offer over the phone from her home in Prairie Village, Kansas
-- occurred in Kansas. Respondent, on the other hand, contends the last act necessary in this instance was the drug
screening which occurred in Missouri. However, after construing the contract, the Board determined that a valid
contract of employment was in fact created prior to the drug screening, thus invoking the jurisdiction of the Kansas
Workers Compensation Act. Shehane v. Station Casino & CNA Insurance Company, Docket No. 222,814 [Affirmed
in part & remanded by Court of Appeals opinion, Docket No. 83,083, March 24, 2000].
- July 1998. (Ph) Claimant lived in Kentucky and was informed via telephone link from West Virginia that his
employment application had been approved. The Board finds this communication of acceptance to be the last act
necessary to form the contract. See Neumer v. Yellow Freight System, Inc., 220 Kan. 607, 556 P.2d 202 (1976),
stating a contract is considered made when and where the last act necessary for its formation is done. Accordingly,
the contract was not entered in Kansas and Kansas does not have jurisdiction. Mouser v. Topeka Machinery
Exchange, Inc and Aetna Casualty & Surety Company, Docket No. 231,772.
- March 1998. (Ph) Where respondent called claimant at her personal residence in Kansas City, Kansas, and offered
claimant a job, which she accepted, the Appeals Board finds the employment contract was created in Kansas and
Kansas' Workers' Compensation Act applies. Stewart v. Serv Tech and National Union Fire Insurance Company of
New York, Docket No. 222,290.
- December 1997. (Ph) Before the Kansas Workers Compensation Act applies, the contract of employment between
claimant and respondent must be determined to have been made in Kansas. See K.S.A. 44-506. Cox v. Mike Hagen
Electric and Granite State Insurance Company, Docket No. 223,481.
- ----- Despite claimant's allegations that he accepted employment while he was in Kansas and on the telephone with
respondent, the Administrative Law Judge determined claimant was not credible and found the contract of
employment was really accepted in Missouri; the Kansas Workers Compensation Act was held not to apply. The
Appeals Board affirmed. Id.
- See Also, Abbey vs. Cleveland Inspection Services, Inc. and State Insurance Fund of Oklahoma, Docket No.
208,691 (December 2000).
- February 1997. (Ph) Despite the fact claimant made initial contact with respondent while in Kansas, the last acts
necessary for the formation of the employment contract occurred while claimant was in Oklahoma. Therefore, the
Kansas Workers Compensation Act does not apply and neither the Administrative Law Judge nor the Appeals Board
has jurisdiction over this matter. Muchmore v. J.B. Hunt Transport, Inc., Docket No. 206,625.
2.09 The Principal Place of Employment
- February 1999. (Award) The Board finds "principal place of employment," as contained in K.S.A. 44-506, means
the claimant's principal place of employment. See Knelson v. Meadowlanders, Inc, 11 Kan. App.2d 696, 732 P.2d
808 (1987). Claimant did a portion of his repair work at locations in Kansas, and he reported to, and was dispatched
from, an office in Kansas. The Board considers these factors to establish claimant's principal place of employment
to be in Kansas. Watson v. Hobart Corporation and Travelers Insurance Company, Docket No. 220,529. [Affirmed
in part, reversed in part, and remanded by unpublished Court of Appeals opinion, December 10, 1999.]
- October 1997. (Award) Claimant alleges that while he suffered accidental injury on January 9, 1993, at his home
in Missouri, his principal place of employment is in Kansas for purposes of invoking the Kansas Workers
Compensation Act. However, the record revealed that claimant's base of operation was in the State of Missouri,
claimant's residence was in Missouri, he was paid in Missouri, he received his instructions from his employer in
Missouri, the injury in question occurred in Missouri, and the contract for employment was entered into in Texas.
While it is acknowledged that claimant's travel occurred in the State of Kansas it is also noted that a portion of
claimant's work duties were performed in Missouri and in Arkansas. As such, the Appeals Board does not find the
claimant's principal place of business is within the State of Kansas. Calvert v. UEC Equipment Company and St.
Paul Fire & Marine Insurance Co. and Kansas Workers Compensation Fund, Docket No. 176,835.
- September 1997 (Ph) Where claimant, a truck driver, is a resident of the State of Texas, received his paychecks in
Texas and created his employment contract in Texas, the Appeals Board finds claimant has not met his burden of
proving Kansas jurisdiction as claimant's principal place of employment has not been established as being in
Kansas. Eaton v. Allen Freight Services d/b/a P.A.M. Transportation and Great West Casualty Company, Docket
Nos. 220,451 & 220,452.
- September 1997. (Ph) Claimant, a truck driver, drove throughout the United States for respondent. Claimant
picked up each of his loads at respondent's Kansas City, Kansas, terminal. Additionally, claimant received his calls
from the Kansas City, Kansas, terminal. The record points to this terminal as being respondent's home base, despite
the fact claimant's employment contract was created in either California or Missouri. The Appeals Board affirmed
the Administrative Law Judge's finding that the evidence was sufficient to establish Kansas as the principal place of
employment. See Knelson v. Meadowlanders, Inc., 11 Kan. App.2d 696, 732 P.2d 808 (1987). Therefore, the
Kansas Workers Compensation Act applies to this case. Thompson v. Freight System and Protective Insurance
Company, Docket No. 222,540.
- March 1997. (Ph) Claimant was employed in Wichita, Kansas, until he was permanently transferred by respondent
to work in St. Louis, Missouri. Claimant's injury occurred in Missouri. Claimant's employment contract was
formed in Illinois. Claimant argued that since he was transferred to Missouri in violation of a collective bargaining
union contract, claimant's principal place of employment remained at all times in Kansas. The Appeals Board,
however, found claimant's principal place of employment was in Missouri at the time of his injury since he was
permanently transferred to Missouri. The Kansas Workers Compensation Act was found not to apply to this out-of-state injury. See K.S.A. 44-506. Wingett v. Trans World Airlines and Insurance Co. State of Pennsylvania, Docket
No. 219,064.
2.10 The Place of Injury
- September 1999. (Ph) The Board confers Kansas jurisdiction where it finds claimant's injuries occurred, at least in
part, in Kansas. Kern v. Ameritruck Refrigerated Transport, Inc. and Clarendon National Insurance Company,
Docket No. 244,140.
- September 1998. (Award) Claimant was an airline attendant for TWA who alleges she developed bilateral carpal
tunnel syndrome which was caused, aggravated or accelerated by her job duties as an attendant. Claimant's
residence was not in Kansas nor was her contract formed in Kansas or principal place of employment in Kansas.
Claimant alleges a Kansas connection merely because she flew over the State while working as an attendant.
Claimant cannot specifically point to when she would have flown over the State, but the Board finds it probable that
at some time a flight claimant was working on did fly over the State of Kansas. However, the Board does not find
claimant has proven she suffered an accidental injury in Kansas. The Board does not consider the thin and uncertain
connection between claimant's injuries and the State of Kansas sufficient to establish accidental injury in Kansas.
K.S.A. 44-501. Further, since the accident did not occur in Kansas, claimant's contract of employment was not in
Kansas, and claimant's principal place of employment was not in Kansas, the Kansas Workers Compensation Act
does not apply and benefits must be denied. K.S.A. 44-505 and K.S.A. 44-506. Graff v. Trans World Airlines,
Docket No. 176,398. [Reversed and remanded by Supreme Court, Docket No. 82,148].
- ----- But See Dissent, the dissenting Board Member finds the jurisdictional test for applying the Kansas Workers
Compensation Act is not which state has the greatest interest in the claim, but whether claimant has proven it is
more probably true that not that the claimant sustained injury by accident that arose out of and in the course of the
employment within this State. In the case at hand, the Dissent finds that although other states may have a stronger
interest in administering this workers compensation claim, claimant has proven she sustained an injury in Kansas
and the Kansas Act applies. Id.