CHAPTER VII.
COMPENSATION & BENEFITS |
Note: Hyperlinks are currently being added to enable users to obtain both Board decisions and Appellate Court decisions by
clicking on the case name. This is a time-consuming process that may take several months to complete. In addition, not all
cases are currently available on the Internet for viewing, therefore there will be no hyperlink for those cases.
If you have any questions regarding this, please contact Jan Zimmers (Workers Compensation Board Research
Analyst/Webmaster) at 785-296-8484.
Go to Table of Contents, Keyword Index
§ 7.01 Generally
7.02 Medical & Rehabilitation
7.03 Generally
- August 2000 (Order) K.S.A. 44-510(a) definition of medical services does not include assistance in cleaning
claimant's house or doing her laundry. Vann vs. State of Kansas and State Self Insurance Fund, Docket No.
189,857.
- July 1999. (Award) Respondent argues that claimant should be denied preliminary hearing benefits because the
work activities only caused a temporary aggravation of a preexisting condition. However, the Board finds the
argument fails because at a preliminary hearing claimant is not seeking compensation for permanent disability -- but
medical treatment. That an injury be a permanent as opposed to a temporary aggravation is not a perquisite to the
duty to furnish medical treatment. Anderson v. Ford Motor Company and Liberty Mutual Insurance Company,
Docket No. 236,414.
- February 1999. (Award) Issue: Whether claimant is entitled to additional treatment from chiropractor despite the
fact that claimant has reached maximum medical improvement and the treatment will not cure or significantly
change her permanent condition and impairment. Held: Where the claimant suffers from chronic pain symptoms
and chiropractic treatments affords substantial relief for approximately two weeks after treatment, this constitutes
services that are reasonably necessary to relieve claimant from the effects of the injury, and respondent is ordered to
pay for such treatment under K.S.A. 44-510(a). Fox v. Topeka Plaza Inn and Travelers Insurance Company, Docket
No. 195,542.
- April 1998. (Award) K.S.A. 44-510(a) (1981) requires respondent to provide all reasonable and necessary
medical treatment. However, the problem with trying to separate what is a reasonable medical necessity from what
is dictated by convenience and/or lifestyle is that these two categories can sometimes overlap. Nevertheless,
respondent cannot reasonably be held responsible for all the expenses associated with the accommodations that a
claimant's disability may require. Some modifications, while easily justifiable as related to claimant's disability,
may nonetheless be outside the coverage of the Workers Compensation Act. The Board cannot require respondent
to provide more than what is provided for in the Act, even where the request addresses what could be considered a
basic need. Hedrick v. U.S.D. No. 259, 23 Kan. App. 2d 783, 935 P.2d 1083 (1997). Butler v. Jet TV and American
States Insurance Company, Docket No. 106,194.
- ----- What is reasonable and necessary medical treatment requires expert medical testimony. The Appeals Board
will not substitute its judgment on claimant's medical needs for the expert medical testimony in the record. Id.
- See Also, Rexann Davidson vs. Meadowbrook Lodge Nursing Home and Zurich American insurance Company,
Docket No. 210,158 (June 2000). The Board quoted Butler, in concluding that the purchase of a handicapped
assessable van is not medical treatment.
- February 1998. (Award) The Appeals Board finds claimant's request for reimbursement of certain medical
expenses including $900 to claimant's spouse for nursing services is not reasonable and necessary medical care as
defined by K.S.A. 1989 Supp. 44-510 or vocational rehabilitation under K.S.A. 1989 Supp. 44-510g. Hargett v.
W.A. Dunbar and CNA Insurance Company and Workers Compensation Fund, Docket No. 173,294.
- December 1997. (Ph) The Appeals Board finds a weight loss program may be reasonable, appropriate medical
treatment as contemplated by K.S.A. 1988 Supp. 44-510. Hadwick v. Dub's Dread Country Club and CNA
Insurance Companies, Docket No. 157,426
- August 1997. (Award) K.S.A. 44-510 places no limitation upon the amount of medical treatment a claimant is
allowed. The only qualifier is that the employer is obligated to provide the services of a health care provider as may
be reasonably necessary to cure and relieve the employee from the effects of the injury. Collins v. Providence
Medical Center and Aetna Casualty and Surety Insurance Company, Docket No. 198,933.
- See Also, Eggers v. Mid-Central/Sysco Food Services, Inc. and Wausau Insurance Companies and Kansas Workers
Compensation Fund, Docket No. 193,314 (September 1997).
- February 1994. (Award) Although respondent has authority to choose physician in first instance, when respondent
does not do so and medical care is ordered pursuant to a preliminary hearing order, the Administrative Law Judge
may either direct that respondent choose a physician or may, in the alternative, designate the provider requested by
claimant of from whom claimant has already obtained treatment. Waugh v. Parkway Care Home, Docket No.
180,719.
- February 1994. (Award) Where respondent does not voluntarily provide medical but medical care is ordered
following a preliminary hearing, the Administrative Law Judge may direct that the respondent choose a physician or,
in the alternative, may designate the physician requested by the claimant or physician who has already provided care.
Lynn v. Blue Cross and Blue Shield, Docket No. 158,680.
7.03a Medical Treatment, Types of
- March 1999. (Ph) Computer equipment fits definition of "medical treatment," where it provides a therapeutic
physical benefit to claimant. Fletcher v. Roberson Lumber Company & Fremont Compensation Insurance Group,
Docket No. 231,570.
- April 1998. (Award) K.S.A. 44-510(a) (1981) requires respondent to provide transportation to and from medical
treatment. It does not specify the method and respondent is free to determine the method of transportation. It does
not require respondent to furnish claimant with a personal motor vehicle. Moreover, the Kansas Court of Appeals
has held that a personal motor vehicle is not medical treatment under K.S.A. 44-510(a). See Hedrick v. U.S.D. No.
259, 23 Kan. App. 2d 783, 935 P.2d 1083 (1997). Therefore, the Board finds that the van claimant is requesting
itself is not medical treatment or a medical apparatus and cannot be ordered paid by respondent. The costs
associated with making the van handicapped accessible, however, do fit the definition of medical apparatus. Butler
v. Jet TV and American States Insurance Company, Docket No. 106,194.
7.03b Devises & Apparatuses
- October 1999. (Award) The Board found under the circumstances presented in this case a custom made brassiere
would not be considered an "apparatus" under K.S.A. 44-510(a) and held respondent was not obligated to provide
the brassiere even though it had been recommended by the physician. Van Gorden v. IBP, Inc., Docket Nos. 199,461
& 199,462. [Affirmed in part, reversed in part, and remanded with directions by Court of Appeals opinion October
27, 2000, Docket Nos. 84,110 & 84,173.]
- October 1998. (Award) K.S.A. 44-501(a) imposes a duty on the employer to provide their injured worker with a
prothesis or other apparatus reasonably necessary to cure and relieve the worker from the effects of the injury.
When a work related injury results in the need for a prothesis device being provided the injured worker, then the
employer is responsible for the maintenance, repair and replacement of the device regardless of whether the device
wears out form use of the worker elsewhere. Solis v. Brookover Ranch Feedyard, Inc and United States Fidelity &
Guaranty Co and Kansas Livestock Association, Docket Nos. 190,678 & 220,773 [Affirmed by Kansas Supreme
Court, Docket No. 82,298, March 10, 2000].
- October 1997. (Award) K.S.A. 44-510(a) states the employer has a duty to provide, among other things, any
medical apparatus "as may be reasonably necessary to cure and relieve the employee from the effects of injury."
Since claimant's physician testified that he believed a whirlpool would help relieve claimant's pain and may enable
claimant to decrease her medication, the Appeals Board finds the whirlpool is reasonably necessary to cure and
relieve the effects of claimant's injury and claimant is, therefore, entitled to the device under K.S.A. 44-510.
Harvey v. Hertzler Clinic, P.A. and Equity Mutual Insurance Company and Workers Compensation Fund, Docket
No. 187,637.
- May 1997. (Ph) Medical treatment includes any "apparatus" reasonably necessary to cure and relieve the
employee of injury. See K.S.A. 1996 Supp. 44-510(a). A prosthetic device or artificial member is an "apparatus"
per K.A.R. 51-9-2. Solis v. Brookover Feed Yards, Inc. and Kansas Livestock Association, Docket No. 220,773.
- June 1994. (Award) The Kansas Workers Compensation Act requires respondent to provide health care services,
including medical supplies and apparatus. In a compensable case, the ALJ has jurisdiction to determine what is
necessary to satisfy this requirement and order that it be provided. The order requiring payment for the two swim
suits so claimant could perform physical therapy in a pool does not exceed the jurisdiction of the ALJ and is not
subject to review on appeal. McGinn v. Binney & Smith, Inc and Binney & Smith, Inc and Kansas Workers
Compensation Fund, Docket No. 168,770.
7.03c Surgery
- January 1998. (P/A) Post award application for medical treatment. Claimant denied authorization for breast
reduction surgery to alleviate back pain. Claimant had surgery anyway and seeks payment by Fund. The Fund
argues the surgery was not necessary to cure or relieve the effects of the work related back injury but was for
cosmetic purposes. The Doctor involved did not say if the surgery was medically necessary but did say it was to
alleviate back pain and not cosmetic. Benefits granted. Cox v. Jostens Printing & Publishing and Travelers
Insurance Company and Kansas Workers Compensation Fund, Docket No. 177,100 [Affirmed by unpublished
Court of Appeals opinion, Docket No. 80,718].
7.04 Independent Medical Exam
- July 2000. (Award) An ALJ has the authority to reopen the record and order an IME. However, it is a violation of
due process rights if the ALJ does not give the parties the opportunity to respond and rebut the evidence. David E.
Hicks vs. Labor Ready and Gates McDonald, Docket No. 228,851.
- March 1999. (Award) The Appeals Board was asked to consider whether the medical reports of Dr. George Lucas
and Dr. Michael Estivo should be considered. Dr. Estivo's report was the result of an unauthorized medical
examination, not court-ordered. Under K.S.A. 44-519, this report cannot be considered as evidence, absent the
doctor's testimony. Since Dr. Estivo did not testify in this matter, his report was excluded. Dr. Lucas's report of
October 21, 1996, was obtained as a result of the Court's order of August 26, 1996, which required the independent
medical examination by Dr. Lucas, pursuant to K.S.A. 44-516. Pursuant to K.A.R. 51-9-6, if a neutral physician is
appointed, then the written report of that neutral physician shall be made a part of the record of hearings. Either
party is then granted the right to cross-examine the neutral physician. However, K.S.A. 44-519 prohibits the
consideration of a report of an examination of any health care provider unless the report is supported by the
testimony of the health care provider. However, the Board found that in certain circumstances, the Kansas
legislature has mandated that medical reports shall be considered in workers compensation litigation, even absent
the testimony of the physician. For instance, in K.S.A. 44-510e(a), if there is a dispute between the parties as to the
claimant's functional impairment, then the administrative law judge may appoint an independent health care
provider to examine claimant and issue an opinion regarding the employee's functional impairment. This opinion of
the health care provider "shall" be considered by the administrative law judge in making the final determination. In
that instance, the legislature mandated the testimony of the physician is not required, and the use of the report for the
purpose of claimant's functional impairment is not prohibited by K.S.A. 44-519. See also McKinney v. General
Motors Corp., 22 Kan. App. 2d 768, 921 P.2d 257 (1996). Therefore, the Appeals Board found little distinction
between a report generated under K.S.A. 44-510e and one generated pursuant to K.S.A. 44-516; and in applying the
ruling in McKinney, the Board determined that the report of Dr. Lucas could be admitted without his testimony.
Wiley v. Dillon Companies, Inc, Docket No. 205,235.
- See Also, Saxon v. U.S. Home Services, Docket No. 205,207 (March 2000) (Award); Barbara Shehane vs. Station
Casino and CNA Insurance Company, Docket No. 222,814 (June 2000).
- November 1998. (Ph) The Board affirms the ALJ's assessment of costs for an independent medical exam for
claimant's psychological condition, where evidence shows claimant was malingering, to respondent. Arnold v.
Meier's Ready Mix, Inc and Kansas Aggregate Ready Mix Assoc., Docket No. 205,689. [Affirmed by unpublished
Court of Appeals opinion, Docket No. 82,466, November 12, 1999.]
- June 1998. (Ph) The ALJ has the authority to order all respondents involved in the case to equally share the cost of
an independent medical evaluation. Matthews v. Four B Corporation d.b.a. Hen House Supermarket; Associated
Wholesale Grocers; and U.S.D. #500 and Wausau Insurance Companies, Docket Nos. 227,974; 228,635; 231,110.
- May 1998. (Ph) K.S.A. 44-516 authorizes the appointment of an independent medical examiner in the case of a
dispute as to the injury. Therefore, the Board finds that the ALJ did not exceed his jurisdiction in appointing an IME
(Independent Medical Exam) in the case at hand where respondent produced evidence of claimant's prior back
injuries, aggravations of the back away from work and inconsistencies in the way the claimant reported the injury
and/or failed to report the work connection. Cool v. The Boeing Company and Insurance Co. State of Pennsylvania,
Docket No. 230,610.
- September 1997. (Ph) The Board treated the ALJ's ordering an IME (Independent Medical Exam) as a request for
medical treatment for which the Board lacked jurisdiction to review under K.S.A. 44-534a. Marks v. U.S. Food
Service, Docket No. 222,709 (September 1997).
- See Also, Thomas v. Butler Transportation Company, Docket No. 230,756 (December 1998); Matthews v. Four B
Corporation d.b.a. Hen House Supermarket; Associated Wholesale Grocers; and U.S.D. # 500, Docket Nos.
227,974; 228,635; & 231,110 (June 1998).
- January 1997. (Order) Both K.S.A. 44-516 and K.S.A. 1996 Supp. 44-510e(a) grant the Administrative Law
Judge authority to appoint one or more physicians to conduct an independent medical examination of the claimant at
any point in the proceedings. Such examination may address, but is not limited to, the issues of permanent
functional impairment, need for medical treatment, and whether there exists a causal relationship between claimant's
injury and the employment. Diaz v. General Electric Company and Electric Mutual Liability Insurance Company,
Docket No. 198,638.
- See Also, Johnson v. Hillcrest Manor and National Union Fire Ins. Co, Docket No. 217,751 (November 1998).
- August 1994. (Ph) The majority of the Appeals Board cases treat the ALJ's ordering an IME (Independent Medical
Examination) as an interlocutory appeal which is not final in nature and cannot be reviewed by the Board pursuant
to K.S.A. 44-551. Moyer v. Cashco, Inc, Docket No. 176,129.
- See also, Logan v. United Parcel Service, Docket Nos. 183,888; 189,836; 189,837; 190,071; 190,072; 190,073
(February 1996); Wooldridge v. Sam's Wholesale Club, Docket No. 181,934 (May 1995); Jackson v. Boeing
Military Airplanes, Docket No. 176,169 (August 1994); Potter v. Kmart Corp., Docket No. 125,604 (October 1996);
Sapata v. Southwestern Bell Telephone Company, Docket No. 133,971 (May 1996) [Affirmed by unpublished Court
of Appeals opinion, Docket No. 81,429]; Dickinson v. American Ingredients, Docket Nos. 163,348 & 170,439
(February 1995); and Flannery v. Trans Area, Docket No. 170,441 (January 1996).
7.05 Disputes Regarding Medical Treatment
- March 2000. (Ph) ALJ appointed treating physician. A preliminary hearing order appointed the claimant's family
physician as the authorized treating physician for all treatments, tests, and referrals, except referrals to rehabilitation
hospitals. Respondent lacked the authority to withdraw and terminate the referring authority of the ALJ-appointed
physician. The only recourse for the respondent to have the physician's referral disapproved was to petition the ALJ
to either amend or clarify the order. Failure to pay the referred physician's charges subjected the respondent to
penalties under K.S.A. 44-512a. Barnett v. Nationsbank, Docket No. 237,412.
- June 1997. (Award) Where claimant's reluctance to attend a full-time work hardening program and physical
therapy program stemmed primarily from his desire to not lose wages while attending the full-time program and a
conflict with the day care for one of his children, the Appeals Board cannot find claimant unreasonably refused to
cooperate with the employer-offered medical treatment. The employer's request that claimant be denied benefits per
K.S.A. 44-518 or K.A.R. 51-9-5 is denied. Griffin v. Dale Willey Pontiac-Cadillac-GMC and Kansas Motor Car
Dealer WCF, Docket No. 175,244 [Affirmed by Supreme Court opinion, Docket No. 79,505].
7.05a Refusal to Accept Medical Treatment / Undergo Surgery
- April 2000. (Award) During the pendency of claimants' worker compensation proceedings, claimant was
incarcerated to serve two life sentences. Because of claimant's incarceration he was unable to attend a K.S.A. 44-515 examination scheduled in the physician's office. Respondent then sought relief under K.S.A. 44-518. The
Board concluded that under the circumstances of this case, claimant did not refuse to submit to an examination and a
reasonable time and place would have been the correctional facility in Cameron, Missouri. The term "refusal"
carries an element of willfulness or intent. Claimant did not decide not to go to the examination, he could not go.
The Board stated its unwillingness to have the prior criminal act substitute as the act of refusing to attend the
examination. Columbus W. Neal vs. Hy-Vee, Inc. and Hawkeye Security Insurance Company, Docket No. 217,766
(April 2000).
- May 1999. (Award) Failing to lose weight to alleviate a back condition, at least where claimant received no
support or assistance, does not constitute a refusal to submit to medical treatment under K.S.A. .44-518 or K.A.R.
51-9-5. Springer v. Sunshine Biscuits, Inc and Kansas Workers Compensation Fund, Docket No. 208,346
[Affirmed by unpublished Court of Appeals opinion, Docket No. 83,415, May 26, 2000].
- November 1998. (Award) An unreasonable refusal of the injured employee to submit to medical or surgical
treatment, where the danger to life would be small and the probabilities of permanent cure great, will justify
termination of compensation . K.A.R. 51-9-5. In the case at hand, however, the Board concludes claimant's refusal
to have surgery performed on her left knee was not unreasonable after considering her age, prior health conditions
and the expected risks and results of her surgery. Johnson v. Hillcrest Manor and National Union Fire Ins. Co,
Docket No. 217,751.
- See Also, Patricia Stewart vs. Midwest Staff Solutions and CNA Insurance Company, Docket No. 225,509 (August
1999). [Affirmed by unpublished Court of Appeals opinion, Docket Number 83,869, March 31, 2000.]
- June 1998. (Award) Where it was established that there were means other than surgery to treat claimant's carpal
tunnel syndrome and that claimant's functional impairment would only be reduced by 50 percent after the surgery,
the Board determines that claimant's decision to forego surgery for her carpal tunnel syndrome did not constitute an
unreasonable refusal to submit to medical treatment and benefits pursuant to K.A.R. 51-9-5 should not be denied or
terminated. See Larson's Workers Compensation Law, § 13.22(b); Morgan v. Sholom Drilling Co., 199 Kan. 156,
427 P.2d 448 (1967). Sponsel v. National Beef Packing Company and Wausau Underwriters Insurance Companies,
Docket No. 210,360. [Affirmed by unpublished, Court of Appeals decision, Docket No. 81,530].
- See Also, Long vs. Kansas University Hospital Authority and Kemper Insurance Companies, Docket No. 247,115
(December 2000).
- May 1997. (Ph) Termination of benefits for refusal to cooperate with medical treatment, when ordered without a
hearing, does exceed the authority of the administrative law judge. See K.A.R. 51-9-5. Shelton v. State of Kansas
and State Self Insurance Fund, Docket No. 217,936.
- December 1995. (Award) Claimant's refusal to undergo a second carpal tunnel surgery was not an unreasonable
choice under K.A.R. 51-9-5 so as to deny her benefits. The Board considered the fact that claimant's first surgery
had only temporarily alleviated her symptoms. Additionally, claimant's treating physician opined that claimant's
decision to forego the second surgery was reasonable under the circumstances. Weaver v. Warner Manufacturing
Company, Inc., Docket No. 187,468.
7.06 Medical Fees
7.07 Unauthorized Medical Expense Allowance
- April 2000. (Award) Claimant sought an examination from a physician. They paid the physician's examination
charge from the unauthorized medical allowance. Claimant did not request an impairment rating during this
examination. The Board concluded that claimant, if he or she wants, may obtain a functional impairment rating
from this physician and pay for the rating separately. Claimant can then decide whether to enter the functional
impairment rating into the record and this does not violate the provisions of K.S.A. 44-510(c)(2). Martha Castro vs.
IBP, Inc., Docket No. 190,478 (April 2000).
- December 1999. (Award) If award provides for future medical expenses on proper application and claimant obtains
non-emergency post-award treatment without first getting authorization or an order from the ALJ, the treatment will
be considered unauthorized medical expense. Persyn v. Criss Optical Manufacturing Co., Docket No. 233,954.
- October 1998. (Remand - Award) [This case was originally remanded to the Board in an unpublished Court of
Appeals decision; the Board issued an Order; the ALJ issued a subsequent Order in January 1998, which is the
subject of this appeal]. The Appeals Board found claimant was entitled to the use of the unauthorized medical
expense allowance for the purpose of examination, diagnosis or treatment associated with the injury. As those funds
had not yet been utilized, the Board finds it appropriate that the payment of a $339.95 medical bill be ordered paid
as unauthorized medical treatment. Chaplin v. USPCI, Inc and National Union Fire Insurance Co of New York,
Docket No. 193,893.
- ----- Dissent, the Dissenting Board Member notes that the Appeals Board has held on numerous occasions that the
parties are bound by their stipulations unless the administrative law judge allows a withdrawal of the stipulations. In
this instance, the Dissenting Board Member finds that claimant is bound by the stipulation entered into at the regular
hearing. The evidence regarding the additional medical expenses, neither raised nor offered at the time of the
regular hearing, and claimant's entitlement to payments for those expenses were not properly before the ALJ at any
time. There is no evidence that respondent was aware of the medical bills now in question. To grant claimant
unauthorized medical payments under K.S.A. 44-510(c)(2) under these circumstances violates K.A.R. 51-3-8 and
K.A.R. 51-3-5, which require claimant give notice of all medical expenses for which claimant seeks reimbursement
and supply submission letters to the ALJ containing an itemization of all medical expenses at issue. Id.
- July 1998. (Award) Pursuant to K.S.A. 44-510, the employer is obligated under the Workers Compensation Act to
provide medical care reasonably necessary to relieve and cure the employee from the effects of injury. Subsection
(c)(2) of that statute limits the employer's liability for unauthorized medical care to the current statutory limit of
$500. Case law, however, provides an exception to the statutory provision when the employer neglects to provide
medical care. If the employer has neglected to provide care, that employer may be liable for the costs of the care the
employee obtains on his or her own. See Cross v. Wichita Compressed Steel Co, 187 Kan. 344, 356 P.2d 804
(1960). Milner v. American Drug Stores, Inc d/b/a Osco Drug and Kemper Insurance Company, Docket No.
198,875. [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,675, December 23, 1999.]
- May 1998. (Award) Unauthorized medical expense allowance denied on appeal where the Appeals Board finds
claimant's low back injury to not be work-related. Killingsworth v. Premier Studios and Fireman's Fund Insurance
Company and Kansas Workers Compensation Fund, Docket No. 189,097.
- November 1997. (Award) Where respondent did not authorize claimant's medical treatment under Dr. Lynch and
where respondent had referred claimant to a different physician, the Appeals Board finds that the denial by the
Administrative Law Judge of the payment of the medical treatment by Dr. Lynch is appropriate and claimant is
entitled to up to $350 unauthorized medical treatment by Dr. Lynch. Anton v. Rolm Company and Travelers
Insurance Company, Docket No. 195,009.
- August 1997. (Award) Respondent argues claimant should not be entitled to the unauthorized medical expense
allowance set forth in K.S.A. 44-510(c)(2), where claimant, although not receiving a functional impairment rating
from the physician, did receive an opinion regarding permanent restrictions. The Appeals Board has previously
addressed this issue in Funk v. Sunflower Training Center, Docket No. 189,244 (May 1996), in which the Appeals
Board found K.S.A. 44-510(c)(2) specifically prohibits the use of the unauthorized medical expense for the purpose
of obtaining a functional impairment rating. However, the statute does not prohibit the unauthorized medical
expense allowance to be used to obtain restrictions against future physical activities, nor does it specifically prohibit
an opinion from a physician regarding a claimant's loss of ability to perform work tasks performed during the 15
years preceding claimant's accident. Therefore the Appeals Board affirms the Administrative Law Judge's
conclusion that claimant is entitled to the unauthorized medical expense allowance. Stark v. Monfort, Inc., Docket
No. 210,898.
- ----- The unauthorized medical expense allowance contained in K.S.A. 44-510(c)(2) allows the employee to choose
a health-care provider for examination, diagnosis and treatment without authorization from the employer. The
employer is obligated to pay such fees and charges of the health-care provider up to the statutory maximum, which
is currently $500. Id.
- June 1997. (Award) Where claimant chose to go to a physician not authorized by the employer, the Appeals
Board applies K.S.A. 1992 Supp. 44-510(c) to this 1992 injury case, which allows the employee, without application
or approval, to consult a health-care provider of the employee's choice for the purposes of examination, diagnosis or
treatment. However, based upon the 1992 amendment, the employer is only liable for fees and charges of the
health-care provider up to $350 -- the unauthorized medical expense allowance cap. Griffin v. Dale Willey Pontiac-Cadillac-GMC and Kansas Motor Car Dealer WCF, Docket No. 175,244 [Affirmed by Supreme Court opinion,
Docket No. 79,505].
- April 1997. (Award) Where the record indicates that respondent offered to provide claimant with several health
care providers but claimant, nevertheless, sought out his own health care provider to perform his surgery, the
Appeals Board finds claimant's surgery to be an unauthorized medical expense for which respondent is only liable
for $350. See K.S.A. 44-510c (Ensley). Patee v. The Boeing Company and Aetna Casualty & Surety and Kansas
Workers Compensation Fund, Docket No. 160,948.
- February 1997. (Award) Claimant's request for reimbursement for chiropractic treatment he received is denied,
except as unauthorized medial within the statutory allowed limit, where respondent did not authorize the
chiropractic treatment but did provide appropriate medical treatment for claimant. Denk v. State of Kansas, Docket
No. 176,667.
7.08 Neutral Physicians
- May 1997. (Order) In appointing a neutral physician under K.S.A. 44-516 or an independent health care provider
under K.S.A. 1996 Supp. 44-510e, the administrative law judge should be given wide latitude in selecting such
physicians to evaluate injured workers and provide their unbiased opinions. Respondent, however, contends it
should be given an opportunity to challenge the Asst. Director's appointment of a neutral health care provider on the
grounds the physician lacked either "good standing" or "ability." Considering both K.S.A. 44-516 and also K.S.A.
1996 Supp. 44-510e(a), the Appeals Board finds the Workers Compensation Act does not contemplate the parties be
permitted to challenge the administrative law judge's appointment of a neutral physician at the time of the
appointment. Evidence of the physician's lack of ability, lack of credentials, lack of good standing or other pertinent
evidence may be presented by the parties in their case in chief such as at the provider's deposition, and thus, it will
be considered by the fact finder in determining how much weight, if any, should be given the provider's opinion.
Therefore, when the administrative law judge appoints the neutral physician, he/she is not required to conduct an
evidentiary hearing to address the physician's "good standing" or "ability." Findley v. Shawnee Mission Ford and
Universal Underwriters, Docket No. 201,887.
- March 1997. (Award) K.S.A. 1994 Supp. 44-510e(a) provides that an administrative law judge must appoint an
independent health care provider to issue an opinion regarding a worker's functional impairment when the worker
and employer cannot agree upon the appropriate rating. That statute further provides that the administrative law
judge must consider that opinion when determining the award. The recent case of McKinney v. General Motors
Corp, 22 Kan. App.2d 768, 821 P.2d 257 (1996), held that the independent medical examiner's report becomes a
part of the evidentiary record without supporting testimony. See Also K.S.A. 44-516. Haataja v. General Riggers
& Erectors, Inc. and Liberty Mutual Insurance Company, Docket No. 173,814. [Affirmed by unpublished Court of
Appeals opinion, Docket No. 78,762].
7.09 Right to Designate Treating Physician
- July 1997. (Award). Where the employer and employee are the same individual, potential conflicts of interest
arise. The Appeals Board concludes, under these unique set of circumstances, it is "appropriate" that the insurance
carrier have the right to designate the authorized treating physician. Matney, D.C. v. Matney Chiropractic Clinic
and State Farm Fire & Casualty Co., Docket No. 199,834 [Affirmed in part, reversed in part and remanded with
directions by Court of Appeals, Docket No. 79,560; Affirmed in part and reversed in part by Kansas Supreme Court
opinion, Docket No. 79,560, January 28, 2000].
7.10 Rehabilitation
- December 1997. (Award) Vocational rehabilitation benefits, as provided by K.S.A. 1991 Supp. 44-510g, would
not be appropriate where claimant has demonstrated she possesses the ability to earn at or near a comparable wage.
Gutierrez v. Parkview Manor/Beverly Enterprises and National Union Fire Insurance Company and Kansas
Workers Compensation Fund, Docket No. 175,047.
- November 1997. (Award) When determining which facility should be utilized to provide an injured workers long
term rehabilitation, the standard to be used is which facility would better provide the needed services, subject, of
course, to the Director's fee schedule and the utilization and peer review procedures. See K.A.R. 51-24-2. Harrell
v. Criqui Construction Company and Insurance Company of North America, Docket No. 190,912.
- October 1997. (Award) Per K.S.A. 44-510g, there are two alternative bases for qualifying for vocational
rehabilitation. First, the claimant may qualify by being unable to perform work at a comparable wage for the same
employer. Second, claimant may qualify if he/she is unable to enter the open labor market and earn a comparable
wage based upon his education, qualifications or experience. See Discussion in, McLinn v. Commercial Sound
Company and Commercial Union Insurance Company, Docket No. 173,709.
- September 1996. (Award) The Appeals Board interprets K.S.A. 1990 Supp. 44-510g(e) to allow the ALJ to award
vocational rehabilitation benefits in a final award regardless of whether those benefits are retroactive or prospective.
Abrams v. Joe Conroy Contractor, Inc and Aetna Casualty & Surety Company, Docket No. 150,733.
- ----- K.S.A. 1990 Supp. 44-510g(g) provides that those weeks of temporary total disability compensation which are
paid during any period of vocational rehabilitation are not to be deducted from the 415 weeks of benefits, subject to
a maximum of 26 weeks. The Appeals Board, therefore, found that claimant would be entitled to a total of 441
weeks of combined temporary total disability and permanent partial disability benefits. Id.
- ----- Vocational rehabilitation benefits awarded by ALJ are appropriate where training returned claimant to
approximately 85 percent of his pre-injury average weekly wage and would enable claimant to earn even more when
he becomes eligible for the health insurance benefits at his new employment. The Board found claimant's training
allowed for a substantial improvement in claimant's wage-earning ability over that which he possessed after his
injury and prior to the vocational training. The only part of the ALJ's award of vocational rehabilitation benefits
which the Board denied were to the extent the award of benefits duplicated the money and funds claimant received
from a Pell Grant to attend the vocational rehabilitation training. Id.
- December 1993. (Award) Vocational rehabilitation ordered where evidence showed there would be some jobs at a
comparable wage in the open labor market which claimant could perform but evidence also established that in spite
of his efforts, claimant had been unable to obtain employment. Branstetter v. Villa Del Mar Apartments, Docket
No. 160,657.
7.11 Disability
7.12 Generally
7.13 Temporary Total
- July 1999. (Award) Claimant not awarded additional temporary total disability benefits where he was found not to
have been temporary and totally disabled, as he could have worked an eight-hour day but chose not to. Edwards v.
D & M Masonry and TIG Insurance Group, Docket No. 220,839.
- February 1999. (Award) Respondent argues that claimant should be denied the awarded 3.75 weeks of temporary
total disability while participating in a work hardening program because claimant missed seven of the sixteen weeks.
The Board acknowledges that claimant had some non work-related health problems separate from her work-related
back injury and was in the process of resolving these problems when she missed the work hardening sessions.
However, the Board does not find this sufficient reason to deny claimant temporary total disability. Leighty v. Aging
Projects, Inc and Wausau Underwriters Insurance Company, Docket No. 216,983.
- January 1999. (Ph) A review and modification proceeding is not required to terminate temporary total disability
benefits when the worker no longer meets the definition of being temporary and totally disabled. Morales v. Excel
Corporation, Docket No. 220,221.
- January 1999. (Award) The ALJ denied temporary total disability citing K.S.A. 1997 Supp. 44-510d(b) for his
denial. While the Board acknowledges the language of K.S.A. 1997 Supp. 44-510d(b) is somewhat misleading in
that it seems to indicate that temporary total disability should not be allowed when there is a scheduled injury, the
Appeals Board does not find this to be the legislative intent. By looking at the plain language of K.S.A. 44-510c,
the statute pertaining to temporary total disability, the Board finds it clear that the legislature contemplated an
entitlement to temporary total disability followed by compensation under the scheduled injury statute. Additionally,
it is clear from the Court of Appeals' opinion in Carter v Koch Engineering, 12 Kan. App.2d 74, 735 P.2d 247, rev.
denied 241 Kan. 838 (1987), that the payment of temporary total disability compensation is proper in a scheduled
injury award under K.S.A. 1997 Supp. 44-510d. Morris v. Lance, Inc and Travelers Insurance Company, Docket
No. 237,383.
- October 1998. (Award) Claimant is not entitled to temporary total disability where it is determined from several
physicians and a MMPI report that claimant's back pain may not stem from a physiological condition but mental
condition known as symptom magnification disorder. Boyd v. Logan Manor Community Health and EMC
Insurance Company, Docket No. 222,740.
- August 1998. (R/M) In some circumstances when cases are consolidated temporary total disability compensation
may be deducted from multiple accidents when only one award is granted. However, in keeping with the intent of
the parties Agreed Award, the Appeals Board finds that the temporary total disability compensation paid for the first
date of accident should not be deducted from the permanent total running award in this multiple docketed case. Hull
v. State of Kansas and State Self Insurance Fund and Kansas Workers Compensation Fund, Docket Nos. 129,511 &
129,512 [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,975, 1/14/2000].
- July 1998. (Award) Claimant awarded temporary total disability benefits for the time he was off work for an
unauthorized surgery, where the Board concludes that claimant was nevertheless temporarily and totally disabled at
that time. Milner v. American Drug Stores, Inc d/b/a Osco Drug and Kemper Insurance Company, Docket No.
198,875.
- June 1998. (Award) Temporary total disability is not awarded where claimant's work-related injuries temporarily
disabled him from working for the respondent but did not disable him from continuing to work for another part-time
employer. Claimant's injuries did not render him completely and temporarily incapable of engaging in any type of
substantial and gainful employment. K.S.A. 44-510c(b)(2). Redgate v. Untied Parcel Service and Liberty Mutual
Insurance Company, Docket No. 217,691.
- March 1998. (Ph) Under K.S.A. 44-510c, a release to return to work with temporary medical restrictions does not
preclude an order of temporary total disability benefits when the health care provider, after considering the workers'
job duties, indicates the worker is unable to perform those duties. Regnier v. Roadway Express, Inc., Docket No.
210,315
- ----- By its very definition, temporary total disability exists only as long as a worker's medical condition is
temporary in nature. When the medical condition becomes permanent in nature and when temporary work
restriction are removed, K.S.A. 44-510c provides that the right to temporary total disability benefits terminates. Id.
- ----- The language of the Preliminary Decision or Order should be understood to read that temporary total disability
benefits may also be terminated upon a finding that claimant has reached maximum medical recovery, returned to
work, the temporary restrictions have been removed, or for any other appropriate reason as set forth by either statute
or case law, and upon further order of the administrative law judge. Id.
- January 1998. (Award) Claimant was not off work for three consecutive weeks and is, therefore, not entitled to
temporary total disability benefits for the first week. See K.S.A. 44-510c. Paniagua v. National Beef Packing Co.
L.P. and Wausau Insurance Companies, Docket No. 205,469 [Affirmed by unpublished Court of Appeals opinion,
Docket No. 80,669].
- January 1998. (Ph) Where claimant only missed two weeks of work, claimant is only entitled to one week of
temporary total disability per K.S.A. 44-510c(b)(1), which restricts the payment of temporary total disability
compensation during the first week of disability unless temporary disability exists for three consecutive weeks.
Garcia v. National Beef Packing Company and Wausau Underwriters, Docket No. 222,560. [Affirmed by
unpublished Court of Appeals opinion, Docket No. 79,459].
- October 1997. (Ph) K.A.R. 51-3-5a provides that except in highly unusual circumstances the Administrative Law
Judge shall not award compensation prior to the filing date of the application. Therefore, the Appeals Board finds
that the Administrative Law Judge's decision to defer temporary total disability until the regular hearing was
appropriate where the claimant was released and returned to work prior to filing his application for preliminary
hearing. Traylor v. Linscheid and ITT Hartford, Docket No. 225,445.
- May 1997. (Award) Temporary Total Disability benefits denied claimant who could not meet the burden of proving
a disability existed. See Discussion in, Fahringer v. IBP, Inc., Docket Nos. 159,418 & 159,419.
- April 1997. (Award) The Administrative Law Judge awarded claimant temporary total and medical benefits for the
period of time claimant was taken off work by one of his physicians, despite the fact claimant's work had not
permanently aggravated his hip condition. The Administrative Law Judge opined that the benefits were voluntarily
paid to claimant by the insurance carrier and there was no need for refund of the benefits. The Appeals Board
agreed with the finding of compensability but not the rationale. The Appeals Board looked to the testimony of one
of claimant's physicians who stated claimant's work had caused the temporary flare up in claimant's hip which
forced him off work. The temporary total benefits, therefore, were for a condition which did arise out of and in the
course of employment. Gregg v. Ford Motor Company and Cigna Insurance Company and Kansas Workers
Compensation Fund, Docket No. 166,866.
- April 1997. (Award) Temporary total disability denied where evidence shows claimant missed work due to non
work-related bronchitis. Wrigley v. Medicalodges, Inc. and Workers Compensation Fund, Docket No. 162,882.
- April 1997. (Ph) Held, the Administrative Law Judge did not exceed his jurisdiction when he ordered the
respondent to pay a higher temporary total disability weekly compensation rate retrospectively to claimant's date of
accident. Sevilla v. Ismael Calderon and Century Roofing and Commercial Union Insurance Company and Kansas
Workers Compensation Fund, Docket No. 211,139.
- March 1997. (Ph) The granting of temporary total disability benefits is not mandatory. Spangler v. Dillon
Companies, Inc., Docket Nos. 217,810; 217,811; and 217,812.
- March 1996. (Ph) Temporary total and temporary partial disability serve the same purpose under the Workers
Compensation Act, that of acting as a wage replacement. Additionally, the calculations for computing both
temporary total and temporary partial are basically the same. Brown v. Lawrence-Douglas County Board of Health
& Aetna Casualty & Surety Company, Docket No. 205,848.
- See Also, Richardson v. Wichita Arms, Inc., Docket No. 176,396 (August 1994).
- December 1995. (Award) The ALJ declined to award temporary total disability (TTD), finding that the right to
TTD benefits was limited to 415 weeks from the date of accident. The Board, however, disagreed with that
conclusion. The Board finds the only limit on TTD is the dollar limited expressed in K.S.A. 44-510f(a)(2) (Ensley).
As such, the Board finds claimant should be awarded TTD at the agreed rate until claimant is released to return to
work by the treating physician or until claimant reaches maximum medical improvement, subject to the statutory
maximum of $75,000. Cole v. City of Salina and Firemans Fund Insurance and Kansas Workers Compensation
Fund, Docket No. 150,511.
- March 1995. (Award) Temporary total benefits are a wage replacement. Permanent partial general disability, on
the other hand, compensate injured workers for the loss of ability to earn comparable wages in the open labor
market. See Brown v. City of Wichita, 17 Kan. App.2d 72, 832 P.2d 365, rev. denied 251 Kan. 937 (1992). Holt v.
North American Philips Lighting and Travelers Insurance and Kansas Workers Compensation Fund, Docket No.
163,562.
7.14 Permanent Partial
- February 1998. (Award) Permanent partial disability granted where claimant has suffered a substantial work
disability but is still capable of performing work in the open labor market and earning an entry level wage. Hargett
v. W.A. Dunbar and CNA Insurance Company and Workers Compensation Fund, Docket No. 173,294.
- March 1997. (Award) Although respondent argues claimant's physician stated her neck and back injuries could
eventually resolve themselves, the Appeals Board awards permanent partial disability noting the physician also
stated the injuries may not resolve themselves and that respondent could seek review and modification if they do.
Martin v. IBP, Inc. and Workers Compensation Fund, Docket No. 165,267. [Affirmed by unpublished Court of
Appeals opinion, Docket No. 78,847].
- March 1997. (Award) Based upon the testimony of claimant and several physicians, the Appeals Board finds
claimant is entitled to receive permanent partial disability benefits for a 68 percent work disability as a result of the
injuries claimant sustained when a 900 pound beam fell 40 feet striking claimant on the head. See Discussion in,
Haataja v. General Riggers & Erectors, Inc. and Liberty Mutual Insurance Company, Docket No. 173,814
[Affirmed by unpublished Court of Appeals opinion, Docket No. 78,762].
- March 1994. (Award) Claimant is entitled to a healing period of 15 weeks in case involving hand surgery. Samms
v. Abilene Nursing Home, Docket No. 168,071.
- January 1994. (Award) To calculate benefits for a repetitive trauma injury the last date worked is used where
evidence does not support finding any other date. Gauld v. Koch Engineering, Docket No. 158,876.
7.15 Temporary Partial
- July 1999. (Award) Claimant not awarded temporary partial disability benefits where he was found not to have
been temporary and partially disabled, as he could have worked an eight-hour day but chose not to. Edwards v. D &
M Masonry and TIG Insurance Group, Docket No. 220,839.
- June 1998. (Award) Temporary partial disability rather than temporary total disability awarded where claimant's
work-related injuries temporarily disabled him from working for the respondent but did not disable him from
continuing to work for another part-time employer. See K.S.A. 1996 Supp. 44-510e(a). Redgate v. Untied Parcel
Service and Liberty Mutual Insurance Company, Docket No. 217,691.
- ----- Discussion of the method to compute the weekly rate of temporary partial disability benefits where claimant
works part-time for two different employers. K.S.A. 1996 Supp. 44-510e(a) controls the computation of the weekly
compensation rate for temporary partial general disability. K.S.A. 44-511(b)(7) also provides that if claimant is
employed at the same or a very similar type of work on a part-time basis for each of two or more employers, and is
injured, his/her total average gross weekly wage will be the total of the part-time employments. By the language of
this statute, the Appeals Board finds a policy decision was made by the legislature to not include the total of all part-time employers in an injured employee's pre-injury average gross weekly wage if the employee was not performing
the same or similar work for both employers. Since claimant was not performing the same or similar work,
claimant's pre-injury average gross weekly wage is based on the weekly wage claimant was earning while employed
by respondent and not the total of the weekly wages earned from both and respondent and the other part-time
employer. Id.
- ----- Claimant's temporary partial weekly compensation rate is determined to be $28.43. Claimant's average gross
weekly wage while employed by the respondent was $221.79. After his injury, claimant was actually earning
$179.14 per week while employed by the other part-time employer. The difference between those two average gross
weekly wages is $42.65 and 66% of $42.65 is $28.43. See K.S.A. 1996 Supp. 44-510e(a). Id.
- ----- But See Dissent, the dissenting Board Member does not believe the legislature contemplated a factual situation
like this. He would only consider claimant's pre- and post-injury wages earned directly from respondent when
calculating temporary partial disability benefits; or in the alternative, include both respondent and the other
employer's wages when calculating the pre- and post-injury wages. Id.
- ----- But See Second Dissent, the dissenting Board Member would affirm the decision of the ALJ awarding
temporary partial disability benefits. He does not believe the legislature intended the general language of the
temporary partial disability statute to be imposed when an employee is working two jobs at the time of the injury. [
The ALJ used the total average gross weekly wage of both part-time employments, pre-injury, when figuring the
temporary partial disability rate]. Id.
- October 1996. (Ph) Temporary partial disability is not to be awarded in scheduled injury cases. The language in
K.S.A. 44-510e specifically provides for temporary partial disability only in cases of "temporary or permanent
partial general disability not covered by such schedule." K.S.A. 44-510e also contains the language or formula for
calculating temporary partial disability. No such language appears in K.S.A. 44-510d, the "scheduled injury"
statute. Ledbetter v. Constar Plastics and Cigna Property & Casualty, Docket No. 205,252.
- March 1996. (Ph) Temporary total and temporary partial disability serve the same purpose under the Workers
Compensation Act, that of acting as a wage replacement. Additionally, the calculations for computing both
temporary total and temporary partial are basically the same. Brown v. Lawrence-Douglas County Board of Health
& Aetna Casualty & Surety Company, Docket No. 205,848.
- ----- An administrative law judge has authority to enter a preliminary hearing order for the payment of temporary
partial disability. Id.
- December 1995. (Award) The proper method to account for the payment of temporary partial disability
compensation is to convert the amount of temporary partial paid into a weekly equivalent by dividing the total sum
of temporary partial disability benefits paid by the weekly temporary total disability benefit rate. Therefore, the
24.57 weeks of temporary partial disability benefits that respondent paid claimant during the pendency of this claim
at the rate of $26.62 per week in the sum of $654.12, represents the equivalent of 3.16 weeks temporary total
disability which was found to be the correct figure to be used in calculating claimant's award. Brobst v. Brighton
Place North and Church Mutual Insurance Company and Kansas Workers Compensation Fund, Docket Nos.
152,447; 152,448 & 152,449 [ Affirmed by Kansas Court of Appeals, 24 Kan. App.2d 766, 955 P.2d 1315 (1997)].
- See also, Richardson v. Wichita Arms, Inc., Docket No. 176,396 (August 1994).
- August 1994. (Award) Although the Workers Compensation Act limits the number of weeks that temporary partial
and permanent partial disability benefits may be paid, it is silent in the method and manner that temporary partial is
to be considered for the purposes of computation of an award. The Appeals Board finds the proper method to
convert the temporary partial paid into a weekly equivalent is to divide the total sum of temporary partial disability
benefits paid, or in the case at hand -- $721.42, by the weekly temporary total disability benefit rate -- $299. Using
this method, the weekly equivalent of the temporary partial disability benefits paid in the proceeding is 2.41 weeks.
Richardson v. Wichita Arms, Inc and Cigna, Docket No. 176,396.
7.16 Permanent Total
- August 1999. (Award) In the case at hand, the Board finds claimant entitled to a permanent total disability award
rather than a work disability award as a result of her severe psychiatric condition and diagnosis of fibromyalgia.
Smallwood v. Golf Enterprises, Inc. and Travelers Insurance Company and Kansas Workers Compensation Fund,
Docket No. 206,399.
- April 1999. (Award) K.S.A. 44-501(c) requires that any award of compensation be reduced by the amount of
functional impairment determined to be preexisting. In the case at hand, claimant had a preexisting impairment of 5
percent. A permanent total disability differs from a 100 percent permanent partial disability. A permanent total
disability pays benefits of $125,000 at a weekly compensation rate based on the calculation set forth in K.S.A. 44-510c. A 100 percent disability, on the other hand, would pay the weekly compensation rate for 415 weeks, but not
to exceed $100,000. K.S.A. 1996 Supp. 44-510e. As a result, one cannot deduct the percentage of impairment in
exactly the same way one would with a permanent partial disability. One cannot deduct the percentage of
preexisting disability from the percentage of disability found. The Board concluded, however, that the logical
alternative would be to deduct the number of weeks represented by the preexisting disability, in this case 20.75
weeks for a 5 percent disability, from the number of weeks of benefits to be paid for the permanent total disability.
In this case, the permanent total disability would be paid at $293.35 per week for 23.14 weeks of temporary total
disability and 402.97 weeks of permanent disability for a total of $125,000. With the 20.75 weeks deducted, the
award in this case was found to be for 23.14 weeks of temporary total disability at $293.35 per week and 382.22
weeks (402.97 - 20.75 = 382.22) of permanent total disability at $293.35 per week for a total award of $118,912.36.
Horton v. Bob's Super Saver Country Mart Cadwell's Country Mart and Crum & Forster Insurance Company
United States Fire Insurance North River insurance Company, Docket Nos. 220,167 &220,168 [Affirmed by
unpublished Court of Appeals opinion, Docket No. 83,289, February 18, 2000].
- March 1999. (R/M) Although claimant's permanent restrictions had not materially changed since the date of the
injury, claimant's physician did opine that her low-back condition had deteriorated to the point she could no longer
work because of the frequency that she suffered exacerbations. Additionally, the physician recognized that claimant
had worsening low-back symptoms probably because of residual scaring or arachnoiditis caused by the 1985 injury.
Further, claimant's depression was found to be directly related to her 1985 low-back injury. Accordingly, the
Appeals Board found that claimant was essentially and realistically unemployable and modified her permanent
partial general disability award to a permanent total award. Robison v. Presbyterian Manors-Mid America and
Insurance Company of North America, Docket No. 112,416.
- January 1999. (Award) The Board reversed the ALJ's determination that claimant is entitled to permanent total
disability benefits. First, claimant was able to return to work for respondent earning the same amount of
compensation after her first work-related injury, and the medical evidence does not support a finding of any
permanency for the second work-related injury in 1996. Further, claimant's removal from her employment and
inability to perform the job stem from a 1996 hernia incident which, statutorily, limits claimant to a scheduled injury
under K.S.A. 1996 Supp. 44-510d. Goodwin v. Southland Corporation, D.B.A. 7-Eleven and American Protection
Insurance Company, Docket No. 216,691.
- December 1998. (Award) Claimant awarded permanent total disability benefits, where evidence warrants such an
award, despite the fact claimant did not request such benefits before the Board or ALJ. Claimant only requested
permanent partial be awarded. Lott-Edwards v. Americold Corporation and Wausau Underwriters Insurance Co
and National Union Fire Insurance Co and Travelers Property Casualty, Docket Nos. 175,770; 175,771; and
223,800 [Affirmed by Court of Appeals opinion, Docket No. 82,555, June 23, 2000].
- ----- But See, Second Dissent, the Dissenting Board Member finds that claimant should be denied permanent total
disability benefits since claimant did not state she was asking for such benefits and did not fulfill her burden of
proving her entitlement to those specific benefits. Rather, claimant asked for permanent partial disability benefits
and should be granted those benefits. The Board should not litigate workers compensation injuries for the parties or
create issues which have not been raised. Id.
- ----- But See, Third Dissent, the Dissenting Board Member also finds that claimant should be denied permanent
total disability benefits since claimant did not state she was asking for such benefits. Because claimant never
alleged she was permanently and totally disabled as a result of her work-related injuries, the respondent never had
notice she was seeking such benefits and consequently never had the opportunity to present evidence in an effort to
defend the allegation. Id.
- December 1998. (Award) Permanent total disability means completely and permanently unable to engage in any
substantial gainful employment. K.S.A. 44-510c. The statutory definition has been construed to include an
employee who is essentially and realistically unemployable. See Wardlow v. ANR Freight Systems, 19 Kan.
App.2d 110, 872 P.2d 299 (1993). In the case at hand, the Board finds that although one physician has testified that
claimant is permanently and totally unable to work, the greater weight goes to the physicians who find claimant is
capable of earning around $6 per hour. Claimant is not found to be permanently and totally disabled. Abbott v.
Renzenberger, Inc and ITT Hartford, Docket No. 225,412.
- See also, Horton v. Bob's Super Saver Country Mart Cadwell's Country Mart and Crum & Forster Insurance
Company United States Fire Insurance North River insurance Company, Docket Nos. 220,167 &220,168 (April
1999) [Affirmed by unpublished Court of Appeals opinion, Docket No. 83,289, February 18, 2000]..
- May 1998 (Award) Claimant found permanently and totally disabled after falling 12-15 feet from scaffolding while
working for respondent. This work-related injury caused claimant severe disabling physical injuries, coupled with
the psychological problems that arose out of the physical injuries, and renders claimant completely and permanently
incapable of engaging in substantial gainful employment. Thomas v. Master Air Control, Inc and Federated Mutual
Insurance Carrier Co, Docket No. 179,977.
- April 1998. (Award) While working for respondent, claimant tripped on the threshold of a hotel door and fell head
first into a marble wall. Claimant's physician's testified that he was no longer capable of working full time and that
his serious condition would continue to worsen, the Appeals Board finds that claimant is realistically unemployable.
Therefore, the Appeals Board finds pursuant to K.S.A. 1992 Supp. 44-510c(a), that claimant is permanently totally
disabled. Campbell v. Gunning Wholesale, Inc and Cincinnati Casualty Company and Kansas Workers
Compensation Fund, Docket No. 187,424.
- ----- It would be difficult to comprehend a claimant who has lost 100 percent of his/her ability to perform work in
the open labor market and 100 percent of his ability to earn comparable wages who is not permanently and totally
disabled. Id.
- February 1998. (Award) An analysis of the definition of both permanent total disability and functional
impairment finds the two not synonymous. Functional impairment focuses on the physiological losses to the human
body. On the other hand, permanent total disability focuses upon a claimant's ability to engage in substantial and
gainful employment, i.e. work disability. A claimant can be 100 percent permanently totally disabled and yet have
certain physical abilities left which would render him less than 100 percent functionally impaired. The Appeals
Board finds, based upon K.S.A. 44-510c(a)(2) & 44-510e(a), that the opinion by the Administrative Law Judge that
claimant's 100 percent permanent total disability equates to a 100 percent functional impairment is error and is
reversed. Dickens, Jr. v. Pizza Company, Inc. and Fireman's Fund Insurance, Docket No. 216,769 [Reversed by
Kansas Supreme Court, Docket No. 80,858].
- February 1998. (Award) The Appeals Board affirms the Administrative Law Judge's findings that claimant, a 73
year old part-time pizza delivery person, who can no longer drive, stand, walk unassisted and easily becomes
confused and disorientated following his work-related automobile injury, was not capable of engaging in
"substantial and gainful employment." Claimant was therefore found to be permanently and totally disabled. See
K.S.A. 44-510c(a)(2). Dickens, Jr. v. Pizza Company, Inc. and Fireman's Fund Insurance, Docket No. 216,769
[Reversed by Kansas Supreme Court, Docket No. 80,858].
- February 1998. (Award) Claimant's permanent total disability is reduced by his preexisting functional impairment
under a K.S.A. 44-510a (Ensley) credit. See Discussion in, Smith v. Atchison Casting Corporation, Docket Nos.
173,077; 186,055; 186,618.
- But See, Daniels v. Americold Corporation and Travelers Property Casualty, Docket No. 189,238 (September
1998), questioning whether it is proper to reduce a permanent total disability award by any preexisting impairment.
- January 1998. (Award) The capacity to perform part-time sedentary work does not necessarily indicate that a
person is capable of performing substantial and gainful employment. Quandt v. IBP, Inc. and Workers
Compensation Fund, Docket No. 184,591.
- January 1998. (Award -- Dissent) Based upon the reasoning in Wardlow v. ANR Freight Systems, 19 Kan.
App.2d 110, 872 P.2d 299 (1993), and claimant's uncontroverted testimony that she is unable to find any full time
work, the dissenting Board member finds claimant is essentially unemployable and has established a permanent,
total disability. Quandt v. IBP, Inc. and Workers Compensation Fund, Docket No. 184,591.
- ----- The capacity to perform part-time sedentary work does not necessarily indicate that a person is capable of
performing substantial and gainful employment. Id.
- August 1997. (Award) Where claimant, who injured her back while moving a file cabinet in a work-related
accident, was found to be completely and permanently incapable of engaging in any type of substantial employment
per K.S.A. 1989 Supp. 44-510c(a)(2), the Appeals Board modifies the Administrative Law Judge's Award and finds
claimant is entitled to receive permanent total disability benefits under the provisions of K.S.A. 44-510c. Woods v.
State of Kansas and State Self-Insurance Fund and Workers Compensation Fund, Docket No. 157,026.
- March 1997. (Award) Claimant contracted bronchitis from sitting at respondent's front door greeting customers.
Finding the bronchitis to be the primary reason she left her work with respondent and that her contracting bronchitis
was not related to her on-the-job-injury, the Appeals Board decides an award of permanent total disability is not
warranted. See K.S.A. 44-510c(a)(2). Cushenberry v. Walmart and National Union Fire Insurance Company of
New York, Docket No. 199,674.
- March 1997. (R/M) Where medical testimony points to the fact claimant has little or no hope for employment, the
Appeals Board finds claimant is permanently and totally incapable of engaging in any type of substantial and gainful
employment per K.S.A. 1990 Supp. 44-510c(a)(2). Balguiti v. Marriott Hotel and Argonaut Insurance Company,
Docket No. 148,415.
- ----- The term "substantial and gainful employment" as used in the definition of permanent total disability has not
been defined in the Kansas Workers Compensation Act. See K.S.A. 1990 Supp. 44-510c(a)(2). Until recently, the
Kansas appellate courts had likewise not provided a definition. However, a recent case of the Kansas Court of
Appeals in Wardlow v. ANR Freight Systems, 19 Kan. App.2d 110, 872 P.2d 299 (1993), found being rendered
unemployable is compatible with the legislative intent of the term permanent total disability. Id.
- See Also, Stout v. State of Kansas and State Self Insurance Fund and Kansas Workers Compensation Fund, Docket
No. 210,402 (March 1997).
- November 1996. (Award) Claimant found to be permanently and totally disabled after suffering a crushing leg
injury which subsequently aggravated a preexisting back condition. Additionally, claimant was found not to be able
to re-enter the labor market since he had been left blind from his diabetes. Respondent argued claimant was not
permanently and totally disabled since claimant was able to fly to Las Vegas to play the slot machines, but absent
evidence in the record showing claimant's ability to re-enter the open labor market, the ALJ's award of permanent
total benefits is affirmed. Shears v. City of Lawrence and Kansas Workers Compensation Fund, Docket No.
180,398.
- October 1996. (Award) Claimant determined to be permanently and totally disabled as his physicians testified that
he, a 68 year old man, suffered extensive foot, arm and head injuries. As a result of his injuries, claimant lost 100
percent of his ability to perform work in the open labor market and earn a comparable wage. Further, claimant did
not have the transferable skills necessary to make school or vocational rehabilitation an option. Montgomery v. Cap
Farms, Inc and Insurance Company of North America, Docket No. 160,768.
- March 1994. (Award) Evidence examined and found to not support claim for permanent total disability where
vocational expert gives opinion claimant lost 90% of access to labor market and physician indicated claimant could
do some types of sedentary work. Saunders v. Osawatomie State Hospital, Docket No. 154,857.
- But See, Dissent, the Dissenting Board Member finds claimant is essentially unemployable under AMA Guides
standard and therefore entitled to permanent total. Id.
- March 1994. (Award) Evidence examined and found to support award of permanent total disability where
evidence indicated that at most claimant could work a few hours per day seated with no bending, twisting or lifting.
Aaron v. Gary L. Bailey, Docket No. 158,858.
7.17 Length of Disability / Disability Lasting at least One Week
Boucher v. Peerless Products, Inc., 21 Kan. App.2d 977, 911 P.2d 198, rev. denied 260 Kan. 991 (1996)
Osborn v. Electric Corporation of Kansas City, 23 Kan. App.2d 868, 936 P.2d 297, rev. denied 262 Kan. (1997)
- November 1999. (Award) Where injury required claimant to work in accommodated job for more than one week,
claimant was disabled for a week from earning full wages at the work at which she was employed and was not,
therefore, limited under K.S.A. 44-501(c) to medical benefits only. Tatman v. IBP, Inc., Docket No. 202,962.
- See Also, Allen L. Throm vs. IBP, Inc. and Workers Compensation Fund, Docket Nos. 193,088 & 198,794; and
Kenneth E. Lowe vs. PMI Food Equipment Group and Travelers Insurance Company, Docket No. 206,476 (March
1999). [Affirmed by unpublished Court of Appeals opinion, Docket 83,060, April 14, 2000.]
- June 1999. (Award) K.S.A. 44-501(c) states that en employer is not liable for permanent disability benefits for an
injury which does not disable the employee for a period of one week from earning full wages at the work at which
the employee is employed. In the case at hand, the Board found claimant was disabled for a week from the work at
which he was employed, despite the fact claimant continued to work for respondent earning the same wage as prior
to the accident, where he was not earning the same wage at the same job at which he was employed prior to the
accident -- he has limited to a lighter-duty job for more than the requisite on week. Baltazar v. IBP, Inc, Docket No.
211,837.
- ----- The purpose of K.S.A. 44-501(c) is to remove certain minor injuries from eligibility for a permanent disability
award. Id.
- ----- Where the injury requires a lighter-duty job for one week or more, the claimant should be eligible for
permanent disability benefits if the evidence otherwise establishes that the injury otherwise caused permanent
disability. Id.
- June 1999. (Award) When an injured work has hand surgery and returns to work restricted to using the other hand
only for several weeks, the worker is found to have satisfied K.S.A. 44-501(c) and is entitled to receive permanent
partial disability benefits. Brewer v. AFG Industries, Inc and National Union Fire Insurance Company, Docket No.
227,034.
- May 1999. (Ph) Missing work for medical treatment, even if paid sick leave or workers compensation leave, is the
same as being disabled from work for purposes of K.S.A. 44-501(c). Time missed from work does not need to be
consecutive days, it can be cumulative partial (½) days over time. Further, being paid sick or workers compensation
leave does not constitute "wages." Bradfield v. Dearborn Mid-West Conveyor and Insurance Co. State of
Pennsylvania, Docket No. 211,415,
- See also, Thomas v. The Boeing Company and Kemper Insurance Companies, Docket Nos. 204,971 & 204,972
(August 1999).
- April 1999. (Award)j K.S.A. 44-501(c) is construed by the Board as requiring the injury to exceed a minimum
threshold of seriousness before permanent disability benefits can be awarded. Time missed from work for medical
treatment should be treated as time claimant was disabled from earning full wages at the work at which s/he is
employed. Time missed from work need not be consecutive days. Further, being paid "disability benefits" while off
work is not the same as "wages." Hopper v. Dillon Companies, Inc, Docket Nos. 201,516 & 219,693.
- March 1999. (Award) When a claimant is on light duty, he/she is disabled from doing the job he/she was doing at
the time of the injury; therefore, the Boucher rationale does not apply. Further, this rationale does not apply where a
claimant's injuries eliminate his/her ability to perform the type of work he/she was performing when the injuries
occurred, even thought claimant returned to work at a comparable wage. See Fuentes v. IBP, Appeals Board Docket
No. 196,242 (October 1998); & Chavez v. IBP, Inc, Appeals Board Docket No. 204,408 (January 1999). Gillum v.
Texaco Refining & Marketing and Cigna Workers Compensation, Docket Nos. 223,962 & 225,494.
- January 1999. (Award) Claimant owned the jewelry store where he worked and was also an employee. Claimant
injured his elbow on a jewelry case. He did not initially seek medical treatment but took one week off; he paid
himself his full wages during that week. Claimant eventually needed surgery and took another 2 weeks off; he again
paid himself full wages. Respondent, or rather its insurance carrier, argues claimant should be denied permanent
partial disability benefits under the rationale of K.S.A. 44-501(c), since claimant paid himself full wages while he
was off work. The Board, however, finds K.S.A. 44-501(c) is inapplicable to this case as such a payment should not
eliminate the obligation of respondent's insurance carrier to provide workers compensation benefits since claimant
was not earning the wage "at the work at which the employee [was] employed." K.S.A. 44-501(c). Granier v. Gold
& Silver Jewelers and Insurance Company of North America, Docket No. 217,259.
- January 1999. (Award) Where claimant terminated his employment and took early retirement due to his physical
inabilities to continue working for respondent, the Appeals Board finds the application of K.S.A. 44-501(c) to be
inapplicable in this instance. The Board finds the purpose of K.S.A. 44-501(c) is to avoid providing benefits to
claimants who suffer minor injuries that necessitate no time off work, and which allow claimants to continue
working in their regular jobs. In the case at hand, however, claimant suffered substantial injuries and despite the
fact he did not have work restrictions at the time of his resignation, the record ultimately did confirm that restrictions
and limitations were in order and that claimant was at risk in this circumstance. Moore v. Boeing Company and
American Manufacturers Mutual Insurance Company, Docket No. 202,720 [Reversed and remanded by unpublished
Court of Appeals opinion, Docket No. 82,737, February 18, 2000].
- January 1999. (Award) Boucher rationale is not applied where claimant missed work to undergo medical
treatment for a work-related accident suffered under his previous employer. Wagner v. LaFarge Corporation and
CNA Insurance Companies, Docket No. 205,642.
- ----- Respondent argues claimant should be denied entitlement to an award in excess of his medical treatment,
pursuant to K.S.A. 44-501(c), as interpreted by Boucher and Osborn. The record shows claimant missed no work
for respondent from the October 5, 1994, date of accident through his date of termination in April 1995. However,
after his termination, claimant went to work for a different employer and, during this employment, claimant missed
numerous days as a result of medical treatment necessitated by the injury suffered with respondent. The Board finds
that K.S.A. 44-501(c) states that permanent benefits will be denied beyond medical treatment if the employee is not
disabled for a period of at least one week from earning full wages at the work at which the employee "is" employed.
The statute does not obligate that the employee be disabled from earning wages at the job claimant was working on
the date of accident. Therefore, since claimant missed numerous days at his new job to undergo medical treatment
for the injury suffered with respondent, K.S.A. 44-501(c) is not applicable. Id.
- January 1999. (Award) The Boucher rationale does not apply where claimant's injuries eliminated his ability to
perform the type of work that he was performing when the injuries occurred. Chavez v. IBP, Inc, Docket No.
204,408
- January 1999. (Award) Where claimant returned to work with respondent at his regular job and wage, and without
missing work, claimant is entitled to medical benefits only per K.S.A. 44-501(c). However, where claimant later
suffered a second work-related injury and returned to work at an accommodated job, with lighter duties, then the
limitations of K.S.A. 44-501(c) do not apply. Bauman v. Goodyear Tire & Rubber Company and Travelers
Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 199,815 & 199,816.
- ----- But See Dissent, the Dissenting Board Member finds the limitations of K.S.A. 44-501(c) do apply to the
second work-related accident suffered by claimant to limit his award to medical benefits only. The Dissent finds
that claimant returned to his regular job, after suffering the second work-related injury, and performed that job for
approximately one year before switching to the lighter duty job. In considering the principles outlined in Boucher v.
Peerless Products, Inc. and Osborn v. Electric Corp. of Kansas City, the Dissent would find K.S.A. 44-501(c)
applicable. Id.
- December 1998. (Award) K.S.A. 44-501(c) was satisfied where although claimant did not miss a week of work
due to his injury, he did change jobs due to the injury. This satisfies the requirement that claimant be disabled from
the job he was doing at the time of his accident "at the work at which the employee is employed." Wells v. Boeing
Company and Kemper Insurance Companies, Docket No. 208,668.
- November 1998. (Award) Claimant worked 40 hours in a 3-day week and missed 3 nonconsecutive 3 day periods
or three 40-hour periods due to steroid injections. Claimant's physician did not specifically take claimant off work
but said taking off 3 days was reasonable. Respondent argued the 3 days did not equal one full week and that
claimant could or should have scheduled her injections so claimant would not miss work. Therefore, 44-501(c) is
not satisfied according to respondent. The Board held that missing work under these circumstances satisfied 44-501(c) and that claimant was disabled for at least 1 week from earning full wages and is therefore entitled to
temporary total disability. Rauschenburg v. Cedar House, Inc and American States Insurance Company, Docket
No. 222,151.
- October 1998. (Award) Although the Board did not need to address this issue, as it was not properly raised before
the ALJ, had the Board considered the Boucher defense and the K.S.A. 44-501(c) issue it would have affirmed the
ALJ. It is uncontradicted that claimant missed work in July of 1993 due to the pain in his head and jaw. There
were also four additional days in August of 1993 when claimant was not at work. While respondent argues this is
simply claimant's lackadaisical work attitude and not related to his injury, it is nevertheless uncontradicted that
claimant was not at work on those days, and he testified that he missed work on those days as a result of the pain
associated with his injuries. Thus, the Appeals Board would find that claimant missed those days from work
because of his injury and is therefore not limited to medical compensation only per K.S.A. 44-501(c). Murdock v.
Prime Roofing, Inc and CNA Insurance Companies, Docket No. 184,731.
- October 1998. (Award) Claimant was not limited to medical compensation where claimant was disabled from
earning full wages for 3 days and then did not return to his regular job but was working "light duty" for another 5
days. Curran v. Lawrence Paper Company and Kansas Workers Compensation Fund, Docket No. 177,831
[Affirmed by Court of Appeals, Docket Nos. 82,282 & 82,317, February 4, 2000.]
- October 1998. (Award) Appeal from award denying disability benefits because the ALJ found claimant did not
satisfy the requirement of K.S.A. 44-501(c) that claimant be disabled for a period of one week from receiving full
wages. This finding was reversed by the Board because claimant missed work for medical treatment. Additionally,
claimant was not paid, thus did not receive "full wages." Also, claimant was put on light duty for three weeks; thus,
he was disabled from the job he was doing at the time of his injury by accident. Fuentes v. IBP, Inc., Docket No.
196,242.
- July 1998. (Award) K.S.A. 1990 Supp. 44-501(c) requires the injury disable the employee "for a period of at least
one week from earning full wages at the work at which the employee is employed." Respondent argues claimant is
not entitled to permanent partial disability compensation because he missed no work from his job at Boeing. The
statute does not ,however, require claimant to miss work from the respondent/ the employer in whose employ
claimant was injured. The evidence was that the claimant was employed by another employer in Florida and that he
underwent surgery for his work-related condition. Claimant's physician testified that claimant would have been
disabled for more than a week from the surgery. The Appeals Board, therefore, finds claimant was disabled from
earning full wages at the work he was doing and is not limited to only medical compensation. Remmel, Jr. v. The
Boeing Company and Aetna Casualty & Surety Company, Docket No. 170,813. [Affirmed by unpublished Court of
Appeals opinion, Docket No. 81,693].
- July 1998. (Award) One week as used in K.S.A. 44-501(c) does not need to be full, consecutive days. It can be the
aggregate of hours, partial days, and missing work for medical treatment is equivalent to being disabled form work
even if on sick leave or otherwise paid for the lost time. Claimant need not actually lose pay to comply with K.S.A.
44-501(c). Ebling v. City of Wichita, Docket No. 222,086. [Affirmed by unpublished Court of Appeals opinion,
Docket No. 81,740, December 30, 1999.]
- July 1998. (Award) Claimant was taken off work by her treating physician for 5 days. Respondent, however,
required claimant to work 2 of those 5 days until claimant's physician phoned respondent about the need for
claimant to be off work. The Appeals Board held that claimant was disabled for at least one week from earning full
wages, per K.S.A. 44-501(c), based upon the physician's leave slip which specified claimant was to be off work for
5 days. Supsurit v. IBP, Inc., Docket No. 206,638.
- May 1998. (Award) K.S.A. 1992 Supp. 44-501(c) limited workers compensation awards to medical expenses only
if the injury did not disable the employee for a period of at least one week from earning full wages at the work at
which the employee was employed. In the case at hand, the employee was disabled for one week from earning full
wages. In so finding, the Board concluded that sick leave pays is not wages as contemplated in K.S.A. 44-501(c).
Additionally, sick leave pay is not "at the work at which the employee is employed" as stated in 44-501(c). The
Board also found the disablement need not be consecutive days. Farrell v. U.S.D. #229 & Kansas Association of
School Boards, Docket Nos. 196,839 & 196,840 [Affirmed by Court of Appeals, Docket No. 81,208, December 30,
1999.]
- February 1998. (Award) Claimant's quitting his employment with respondent due to his inability to perform his
work within his restrictions satisfies the requirement of K.S.A. 44-501(c) that claimant be disabled for a period of at
least one week from earing full wages. Also, had claimant chosen to decrease his work activities without quitting
and this resulted in his earning less than full wage, the statutory requirements of K.S.A. 44-501(c) would have been
satisfied as well. Gladelkarim v. Atlas Van Lines and Legion Insurance Co, Docket No. 199,449.
- February 1998. (Award) In order to receive permanent partial disability benefits, a claimant must be disabled for
one week from earning full wages. Time missed for medical treatment may be time claimant is disabled from
earning a wage. In addition, the time missed need not be consecutive days in order to satisfy the statute. Gomez v.
Monfort, Inc., Docket Nos. 196,240 & 196,241 [Affirmed by Kansas Court of Appeals, unpublished opinion, Docket
No. 80,818].
- January 1998. (Award) Claimant was not off work for three consecutive weeks and is, therefore, not entitled to
temporary total disability benefits for the first week. See K.S.A. 44-510c. Paniagua v. National Beef Packing Co.
L.P. and Wausau Insurance Companies, Docket No. 205,469 [Affirmed by unpublished Court of Appeals opinion,
Docket No. 80,669].
- January 1998. (Award) Claimant injured his mid-back while lifting a vise for respondent. Claimant did not
initially miss any work for this injury; however, he began having trouble with his back and respondent told claimant
to take two weeks off and return to work with a release form authorizing his return to work. Based upon the
preceding evidence, the Appeals Board found claimant was disabled for a period of at least one week form earning
full wages. Case v. McGinty Machine Company, Inc. and Northwestern National Casualty and Workers
Compensation Fund, Docket No. 190,066.
- January 1998. (Ph) Where claimant only missed two weeks of work, claimant is only entitled to one week of
temporary total disability per K.S.A. 44-510c(b)(1), which restricts the payment of temporary total disability
compensation during the first week of disability unless temporary disability exists for three consecutive weeks.
Garcia v. National Beef Packing Company and Wausau Underwriters, Docket No. 222,560. [Affirmed by
unpublished Court of Appeals opinion, Docket No. 79,459].
- December 1997. (Award) Where claimant did not miss at least one week of work due to her work-related injury,
the Appeals Board finds the law in effect at the time of claimant's injury, K.S.A. 44-501(c), limits claimant's award
to medical benefits only. See Osborn v. Electric Corp. of Kansas City, 23 Kan. App.2d 868, 936 P.2d 297, rev.
denied 262 Kan. (1997). Adra v. Sears Roebuck & Company and Kemper Insurance Companies, Docket No.
186,683.
- December 1997. (Award) Where claimant proved he was off work because of his disability for more than one
week, the Appeals Board concludes claimant's entitlement to workers compensation benefits is not limited to
medical compensation as provided in K.S.A. 44-501(c). Jones v. Carrier Corp and Cigna, Docket No. 202,657.
- October 1997. (Award) Where claimant missed only 15 hours of work for medical treatment for his work-related
injury but did not miss at least one week of work as a result of the injury, the Appeals Board finds the 15 hour time
period does not constitute one week as required by K.S.A. 1991 Supp. 44-501(c). Roudybush v. Oldham's Farm
Sausage, Docket No. 172,108.
- ----- But See Dissent. The Dissenting Opinion believes the phrase "disable the employee for a period of at least
one week from earning full wages," as set forth in K.S.A. 1991 Supp. 44-501(c) should be interpreted as meaning
either that compensation is limited to medical benefits unless the disability prevents the employee from working for
a full one-week period or, that compensation is limited to medical benefits unless for any one-week period the
employee missed work due to the injury and, therefore, does not earn a full week's wages. The Dissent would find
the latter to be the correct determination. In the case at hand, claimant spent many hours traveling to and receiving
medical treatment, including physical therapy , and he will likely continue to require medical treatment in the
future. In addition, most of the medical treatment claimant received was scheduled at the employer's request during
times which did not require the claimant to miss work. Furthermore, claimant had to change to a less demanding
job in order to accommodate his restrictions and continue working. Therefore, the Dissent finds the provisions of
K.S.A. 1991 Supp. 44-501 do not preclude claimant from receiving permanent partial disability benefits. Id.
- See Also Sawyers v. Palmer Trucking Inc. and General Accident Insurance Company of America and Workers
Compensation Fund, Docket No. 170,144 (October 1997).
- July 1997. (Award). In Boucher v. Peerless Products, Inc. and Home Indemnity Company, 21 Kan. App.2d 977,
Syl. ¶ 2, 911 P.2d 198, rev. denied 260 Kan. (1996), the Kansas Court of Appeals held that under the language of
K.S.A. 44-501(c), an employee is not entitled to permanent partial disability benefits if the injury did not disable
him/her for a period of at least one week from earning full wages. After the Boucher decision, the legislature
enacted Senate Bill No. 649, an amendment to K.S.A. 44-501(c). This Senate Bill allows claimant to recover for
permanent disability even if not disabled for a full week and specifically provides that it is to be applied
retroactively to all cases not fully adjudicated at the time of its enactment. But See below, Osborn v. Electric
Corporation of Kansas City, 23 Kan. App.2d 868, 936 P.2d 29 (1997), where the Court of Appeals found the
retroactive application of K.S.A. 1996 Sup.. 44-501(c) (Senate Bill No. 649) to be an unconstitutional violation of
due process. See Discussion in, Matney, D.C. v. Matney Chiropractic Clinic and State Farm Fire & Casualty Co.,
Docket No. 199,834 [Affirmed in part, reversed in part and remanded with directions by Court of Appeals, Docket
No. 79,560; Affirmed in part and reversed in part by Kansas Supreme Court opinion, Docket No. 79,560, January
28, 2000].
- See Also, Redford v. ANR Freight System and Planet Insurance Company, Docket No. 192,613 (January 1997)
[Redford, was reversed by an unpublished Court of Appeals opinion, Docket no. 79,655]; Hiles v. Thrash Floor
Maintenance and Aetna Casualty & Surety Company, Docket No. 202,486 (February 1997). [Note these pre-Osborn
cases apply 44-501(c) retroactively].
- May 1998. (Award) A job transfer to a lighter job obligated by the physical injuries suffered on the job would, in
most instances, allow a claimant to avoid the application of K.S.A. 44-501(c) and Boucher as claimant would have
been precluded from earning full wages at his/her customary work as a result of the injury. See Discussion in,
Amack v. Bontrager Express Service, Inc and Kansas Truckers Risk Management, Docket No. 216,357 & 216,358.
- See Also, Dissent Although claimant did not miss work from his job as a mechanic, K.S.A. 44-501(c) does not
preclude him from receiving permanent partial disability benefits where the injury forced him to discontinue that
work because he was physically unable to continue performing the job. Id.
- October 1997. (Award) Claimant contends the Boucher principles cannot be applied here because respondent did
not raise this issue before the Administrative Law Judge. Respondent, however, contends that it did raise a Boucher
issue by disputing the nature and extent of claimant's disability. The Appeals Board, however, does not consider
the Boucher issue to be one of nature and extent. The Board concedes that the Boucher issue does not fit squarely
within any of the typically addressed pretrial issues as identified in K.A.R. 51-3-8. However, the Board concludes
from the record in this case that the Boucher issue was not raised in a manner which would put claimant on notice of
its need to present evidence addressing this issue. For that reason, the Appeals Board concludes that the Boucher
issue is not properly before the Board. McLinn v. Commercial Sound Company and Commercial Union Insurance
Company, Docket No. 173,709.
- October 1997. (Award) K.S.A. 44-501 and the principles set forth in Boucher were applied to this 1985 date of
accident case. The Appeals Board finds the Court in Boucher , in interpreting the legislative changes made to
K.S.A. 44-501 in 1975 and 1987, found the 1975 modifications to be more significant and that the legislature was
clarifying its intention regarding the entitlement to compensation by an employee, when that employee does not lose
time from work but has incurred medical expenses. In applying the principles set forth in Boucher, the Appeals
Board finds claimant was not disabled for a period of at least one week from earning full wages at the work at which
he was employed as a result of the 1985 injury and, with the exception of medical compensation, the respondent
shall be relieved of liability for that injury. Ball v. Georgia Pacific Corporation and Kansas Workers Compensation
Fund, Docket No. 155,811.
- February 1997. (Award; Pre- Osborn case) Where claimant missed five days of work and lost wages for these five
days to receive treatment for his work-related injuries, the Appeals Board finds the provisions of K.S.A. 1992 Supp.
44-501(c) do not apply to claimant. Claimant is entitled to workers compensation benefits not limited to only
medical expenses. Rey v. Monfort, Inc., Docket Nos. 180,492; 180,935; and 183,718. [Affirmed by unpublished
Court of Appeals opinion, Docket No. 78,640].
- July 1997. (Award). In Osborn v. Electric Corporation of Kansas City, 23 Kan. App.2d 868, 936 P.2d 297 (1997),
the Court of Appeals found retroactive application of K.S.A. 1996 Supp. 44-501(c) (Senate Bill No. 649) to be an
unconstitutional violation of due process. Therefore, K.S.A. 1996 Supp. 44-501(c) can not be applied retroactively
to injuries occurring before the effective date of the statute. See Discussion in, Matney, D.C. v. Matney
Chiropractic Clinic and State Farm Fire & Casualty Co., Docket No. 199,834 [Affirmed in part, reversed in part
and remanded with directions by Court of Appeals, Docket No. 79,560; Affirmed in part and reversed in part by
Kansas Supreme Court opinion, Docket No. 79,560, January 28, 2000].
- ----- Where claimant's injury occurred in 1993 and claimant was not disabled from earning his regular wage for one
week, claimant is limited to medical benefits only in accordance with K.S.A. 44-501(c). Id.
- See Also, Overstreet v. Mid-West Conveyor Co., Inc. and Insurance Company State of Pennsylvania, Docket No.
208,733 (September 1997) [Affirmed by Court of Appeals in unpublished Court of Appeals opinion, Docket No.
80,036, August 27, 1999 (published December 1999)]; Rotramel (Wallace) v. Brite Voice Systems, Inc. and The St.
Paul Fire and Marine Insurance Company, Docket No. 179,341 (September 1997); Jones v. Carrier Corp and
Cigna, Docket No. 202,657 (December 1997); Boucher v. Peerless Products, Inc. and Home Indemnity Company,
Docket No. 184,576 (July 1997); Byrd v. Essex Group Inc. and National Union Fire Insurance Co NY, Docket No.
193,892 (July 1997).
7.18 Credits and Offsets
- September 1998. (Award) The ALJ exceeded his jurisdiction under K.S.A. 44-551 for granting a credit to be
applied against future medical expenses for the permanent partial disability overpayment stipulated by the parties.
There is no provision in the Workers Compensation Act which allows an offset of disability against medical
benefits. Titus v. Halstead Hospital, Inc and ITT Hartford, Docket No. 131,220.
- October 1997. (Award) The Appeals Board finds no authority in the Workers Compensation Act which would
authorize the respondent to take credit for disability benefits made under a separate private disability insurance
policy. That separate policy is presumably the subject of a separate contract which entitled the individual to benefits
under the circumstances specified in that agreement. Respondent continues to have the obligation to pay benefits
specified under the Kansas Workers Compensation Act. Walker v. General Motors Corporation and Kansas
Workers Compensation Fund, Docket Nos. 196,172 & 196,173.
- December 1996. (Award) The overpayment of temporary total disability payments should be deducted from the
415 weeks and not otherwise credited. The advance of permanent partial disability benefits, however, should be
considered as payments previously made and credited toward the amount of permanent disability benefits owed
under the Award. Hyde v. Allen Van and Storage and United States Fidelity and Guaranty Co and Kansas Workers
Compensation Fund, Docket Nos. 173,376 & 184,959.
7.19 Credit for Preexisting Disabilities
See § 8.06, Preexisting Functional Impairment, Chapter VIII
7.20 Credit for Compensation from Prior Award / Any Amounts Previously Paid and/or Overpayments.
- January 1999. (Award) The Board finds respondent is entitled to a credit pursuant to K.S.A. 44-525(b) (Ensley),
for the overpayments of temporary total disability or temporary partial disability , previously paid claimant, instead
of seeking reimbursement from the Fund pursuant to K.S.A. 44-534a. Decker v. Continental Grain Company and
Insurance Company of North America and Kansas Workers Compensation Fund, Docket Nos. 168,876 & 183,424.
- October 1998. (Award) Workers Compensation Fund is granted a credit for the overpayment of temporary total
disability benefits. The amount of the credit will be deducted from the payment due and owing claimant, with the
deduction occurring at the end of the Award payment schedule. Huff v. Sellman Kennels/Wichita Greyhound and
National Union Fire Insurance Company and Kansas Workers Compensation Fund, Docket No. 175,588.
- June 1998. (Award) Claimant was awarded a 65% work disability. However, following the entry of this award,
respondent learned that claimant had obtained new employment and was earning more than 90 percent of his pre-injury wages. Respondent filed for review and modification. A hearing was held and claimant's award was
modified to an award based upon a 15% functional impairment only. Respondent argues it overpaid claimant
$18,075.75 for which it now seeks reimbursement from the fund. K.S.A. 44-534a(b) and K.S.A. 44-556(b) provide
the exclusive remedies for an employer to seek reimbursement from the Fund for excess payment of compensation.
Kimber v. U.S.D. No. 418, 24 Kan. App.2d 280, 944 P.2d 169 (1997). However, neither statutes would authorize
reimbursement from the Fund for overpayment in this instance. Hunt v. Frito-Lay and Kansas Workers
Compensation Fund, Docket No. 189,862.
- ----- K.S.A. 44-534a(b) allows for reimbursement from the Fund when compensation is paid in the form of medical
benefits or temporary total disability benefits pursuant to the preliminary hearing statute. This statute does not apply
to the case at hand because respondent seeks reimbursement for permanent partial disability benefits paid pursuant
to a "final" award, not a preliminary hearing order. Id.
- ----- K.S.A. 44-556(d)(1) allows for reimbursement from the Fund for overpayments made while an award is
pending judicial review and then the compensation awarded by the Appeals Board is reduced or found inappropriate.
The situation in this case does not fit within that statute either because the Board did not enter an award that was
later reduced by an appellate court. "Review" as used in K.S.A. 44-556(d)(1) refers to judicial review of actions by
the Board by an appeal to the Court of Appeals. It does not refer to review under the review and modification
statute, K.S.A. 44-528. Id.
- March 1998. (Award) If claimant is overpaid temporary total disability then the overpayment should be credited
against claimant's final award of disability benefits pursuant to K.S.A. 44-525(b). Wogan v. Consolidated
Freightways, Inc, Docket No. 201,820.
- July 1997. (Award) Where prior disability has been accounted for by deducting such disability from the total
disability in determining the amount of benefits to be awarded, and the prior disability, therefore, does not contribute
to the resulting disability awarded in the case, respondent is not entitled to a credit for amounts paid on the prior
compensable injury award. Martin v. Heritage Flowers and Kansas Workers Compensation Fund, Docket No.
189,196.
- June 1997. (P/A) Where respondent's payment to claimant exceeded the amount of claimant's award, the Appeals
Board finds respondent is entitled to a credit for the amounts previously paid in the proceedings which exceed the
amount awarded claimant. Webb v. Andy's Restaurant and Tri-State Insurance Company and Kansas Workers
Compensation Fund, Docket No. 137,625. [Affirmed by unpublished Court of Appeals opinion, Docket No.
78,802].
- December 1996. (Award) The Board finds that claimant's benefits should be reduced under the provisions of
K.S.A. 44-510a for any period that the permanent partial disability benefits payable for a 1988 compensable, work-related accident overlap with the permanent partial disability benefits payable for a 1990 compensable accident.
Gugenhan v. Georgia Pacific Corporation and Workers Compensation Fund, Docket No. 162,711.
- December 1995. (Award) When there is a change in the disability rate the respondent is entitled to a credit for the
permanent partial disability benefits previously paid. The latest disability rate, or amounts already paid, if higher,
become the ceiling for the benefits awarded. Romeo v. Smith Temporary Services, Docket No. 184,711.
- March 1994. (Award) Where there has been an overpayment of benefits, the Administrative Law Judge cannot
order reimbursement from claimant, but respondent may seek reimbursement from Fund. Collier v. Western
Uniform & Towel Service, Docket No. 160,523.
- February 1994. (Award) Respondent is entitled to 100% credit during period of overlapping for payments on prior
settlement award where second injury would not have occurred but for pre-existing disability. Rando v. Kaneb
Pipeline Co., Docket No. 166,343.
- December 1993. (Award) Respondent is not entitled to a credit under K.S.A. 44-510a for prior injury even though
evidence shows prior injury contributed to injury at issue, where record contained no evidence as to whether benefits
were paid on the prior injury. Pfannenstiel v. Keebler and Workers Compensation Fund, Docket No. 167,515.
7.21 Offset for Retirement Benefits
7.22 Retirement Benefits Defined
- January 1999. (Award) Claimant, a firefighter for the City of Wichita, was injured while carrying a child out of a
burning house. After his injury, claimant was unable to perform an accommodated job with the Fire Department as
a result of his work restrictions. Claimant then elected to receive a disability annuity from the city. The issue
currently before the Board is whether the disability annuity claimant receives from the City is a retirement benefit as
contemplated by K.S.A. 44-501(h). The Board found that it was not. Disability benefits are distinct from retirement
benefits. Disability benefits are those that are paid because of incapacity; whereas, retirement benefits are paid
because of age and years of service. In the case at hand, the Board finds the evidence points to claimant's disability
annuity as being a disability benefit, which should not reduce claimant's permanent partial. general disability
benefits. Hodges, Jr. v. City of Wichita, Docket No. 213,161.
- October 1998. (Award) Regardless of the label respondent places on the benefits paid claimant, the Board has
determined that if the benefits labeled as retirement benefits are really benefits because of disability, then an offset
under K.S.A. 44-501(h) is not permissible. Retirement benefits are only those benefits based on age or longevity.
See Green v. City of Wichita, Docket No. 190,467 (August 1997). Tippin v. Sedgwick County, Docket No. 204,191.
- August 1997. (Award) The Appeals Board finds the commonly accepted meaning of the term "retirement benefit"
to be a benefit paid by reason of age and/or years of service. Retirement benefits are not dependent on disability.
Green v. City of Wichita, Docket No. 190,467 [Affirmed by Court of Appeals in Docket No. 79,848].
- ----- Where claimant is eligible for and received retirement benefits only because of his injury and disability, the
Appeals Board concludes the benefits paid claimant should not be treated as retirement benefits for purposes of
K.S.A. 44-501(h). Id.
- See also, Russell v. City of Wichita, Docket No. 228,202 (March 1999).
- March 1995. (Award) While voluntary retirement may preclude recovery of temporary total disability benefits, it
does not affect permanent partial general disability benefits. Temporary total benefits are a wage replacement.
Permanent partial general disability, on the other hand, compensate injured workers for the loss of ability to earn
comparable wages in the open labor market. See Brown v. City of Wichita, 17 Kan. App.2d 72, 832 P.2d 365, rev.
denied 251 Kan. 937 (1992). Holt v. North American Philips Lighting and Travelers Insurance and Kansas
Workers Compensation Fund, Docket No. 163,562
7.23 Retirement Offset
- December 1998. (Award) The retirement offset contained in K.S.A. 44-501(h) does not affect claimant's eligibility
for work disability. See Gadberry v. R.L. Polk & Company, Docket No. 77,312 (Kan. App. 1998). Birney v.
Medicalodge of Kinsley, Docket Nos. 206,808 & 206,809.
- October 1998. (Award) K.S.A. 44-501(h) provides for an offset when the claimant is receiving retirement
benefits under the federal social security act and/or where a plan is provided by the employer. Claimant testified
that she began drawing social security retirement benefits when she turned 62 years of age on March 14, 1996, at the
rate of $842 per month. This equates to a weekly benefit of $194.31. Claimant's weekly permanent disability
compensation should be reduced by this amount beginning with the week the social security benefits commenced.
Respondent is also entitled to a reduction for the retirement benefits it provided claimant. Respondent's human
resources coordinator testified that the pension was totally provided by respondent. There is no evidence to the
contrary. Thus, the record establishes that all of the $7,700 retirement benefit claimant rolled over into an IRA was
attributable to payments or contributions made by the employer. The maximum number of weeks of permanent total
disability benefits that can be awarded is 383.44. This is determined by dividing the weekly compensation rate of
$326 into the $125,000 maximum compensation benefit for a permanent total disability award. Dividing 383.44
into $7,700 results in a weekly credit of $20.08. This is the amount by which all weekly compensation benefits will
be reduced for the employer provided pension benefits. Odle v. Cramer, Inc and Insurance Company of North
America, Docket No. 206,313.
- May 1998. (Award) Where claimant made no contribution to the $68.31 per week retirement benefit he receives,
claimant's permanent total weekly disability rate of $313 is required to be reduced by the $68.31 per week
retirement benefit pursuant to K.S.A. 44-501(h). Wishon v. Helena Chemical Company and Reliance Insurance
Company, Docket No. 203,808 [Affirmed by Supreme Court decision, Docket No. 81,341 (1999)].
- May 1998. (Award) Respondent's request for credit for retirement or sick leave is denied as K.S.A. 44-501(h)
allows a reduction in retirement benefits (but not sick leave) but restricts the award to a minimum of the employee's
functional impairment. In this instance, as claimant has been awarded 4 percent to the body as a whole which is
claimant's functional impairment; therefore, no additional retirement or sick leave credit is allowable under K.S.A.
44-501(h). Tibbits v. Shawnee County, Docket No. 198,464. [Affirmed by unpublished Court of Appeals opinion,
Docket No. 81,336, January 7, 2000.]
- March 1998 (Award) Retirement offset or credit per K.S.A. 44-501(h) cannot be computed where the Appeals
Board cannot determine what percentage of claimant's weekly pension benefit is attributable to contribution made
by the claimant versus what percentage are attributable to contribution made by the respondent or other employers.
See Bohanan v. U.S.D. No. 260, 24 Kan. App. 2d 362, 947 P.2d 440 (1997). Meade v. Electrical Corporation of
America and Insurance Company of North America, Docket No. 210,463.
- February 1998. (Award) Because claimant's accidental injury occurred after July 1, 1993, respondent is entitled to
reduce claimant's permanent partial general disability benefits by the $1250 per month in retirement benefits when
they began on August 1, 1994. The weekly offset amount would be $288.46. Therefore, for the period commencing
August 1, 1994, claimant's permanent partial disability is reduced by the $288.46 per week. See K.S.A. 44-501(h).
Treaster v. Dillon Companies, Inc. and Workers Compensation Fund, Docket No. 205,065. [Affirmed by Kansas
Supreme Court, Docket No. 80,830, July 9, 1999].
- August 1997. (Award) K.S.A. 44-501(h) provides that an employee's compensation benefits under the Workers
Compensation Act shall be reduced by the weekly equivalent amount of the total amount of all such retirement
benefits paid by employer less any amount attributable to the employee's contributions. Green v. City of Wichita,
Docket No. 190,467 [Affirmed by Court of Appeals in Docket No. 79,848].
- April 1997. (Award) The 1993 amendment to the Workers Compensation Act contained in K.S.A. 44-501(h)
requires a weekly deduction for the amount of retirement benefits an employee is receiving from social security or
any other retirement system offered by the employer from any compensation benefit payment the employee is
eligible to receive under the Workers Compensation Act. Zinn v. The Boeing Company-Wichita and Aetna Casualty
& Surety Company and Kansas Workers Compensation Fund, Docket No. 184,800.
- July 1996. (Award) The retirement offset contained in K.S.A. 44-501(h) does not affect claimant's eligibility for
work disability. Gadberry v. R.L. Polk & Company, Docket No. 193,516; [Affirmed by Kansas Court of Appeals,
Gadberry v. R.L. Polk & Company, Docket No. 77,312 (Kan. App. 1998).]
7.23a Offset for Social Security Benefits
- November 1998. (Award) Claimant argues the social security retirement offset in K.S.A. 44-501(h) does not apply
in this case because the claimant was already receiving social security benefits on the date of her injury. The
Appeals Board, however, concludes the statute is clear and unambiguous and the social security retirement offset
applies whether claimant was receiving social security retirement benefits before the date of her injury or after the
date of her injury. Johnson v. Hillcrest Manor and National Union Fire Ins. Co, Docket No. 217,751.
- ----- The social security offset does not apply to temporary total disability payments, because temporary total
disability compensation is a temporary wage replacement benefit and the statute limits the offset to a minimum
benefit based on permanent functional impairment. The Board finds the Legislature only intended to apply the
K.S.A. 44-501(h) offset to permanent disability benefits and not temporary benefits. Id.
- October 1998. (Award) K.S.A. 44-501(h) provides for an offset when the claimant is receiving retirement
benefits under the federal social security act and/or where a plan is provided by the employer. Claimant testified
that she began drawing social security retirement benefits when she turned 62 years of age on March 14, 1996, at the
rate of $842 per month. This equates to a weekly benefit of $194.31. Claimant's weekly permanent disability
compensation should be reduced by this amount beginning with the week the social security benefits commenced.
Odle v. Cramer, Inc and Insurance Company of North America, Docket No. 206,313.
- May 1998. (Award) Claimant received social security disability benefits for a period of time until he turned 65
when the benefits automatically converted to social security retirement benefits. Claimant argues the retirement
benefits are still essentially disability benefits which respondent should not be allowed to offset against his weekly
compensation benefits pursuant to K.S.A. 44-501(h). The Appeals Board, however, finds that the language in
K.S.A. 44-501(h) is clear and unambiguous and requires an injured employee's weekly disability benefits payable
under the workers compensation act be reduced by the weekly equivalent amount of social security retirement
benefits. It is not relevant whether claimant received social security disability benefits before he reached the
eligibility age for old age retirement benefits. The fact the social security benefits changed from disability to
retirement does not negate the clear meaning of the statute which requires a reduction in workers compensation
disability benefits at the time claimant starts receiving social security retirement benefits. Wishon v. Helena
Chemical Company and Reliance Insurance Company, Docket No. 203,808 [Affirmed by Supreme Court decision,
Docket No. 81,341 (1999)].
- March 1998 (Award) Although K.S.A. 44-501(h) provides for a credit against permanent disability compensation if
the employee is receiving retirement benefits under the federal social security act or any other retirement system, no
credit is allowed where claimant receives social security disability rather than social security retirement benefits.
Meade v. Electrical Corporation of America and Insurance Company of North America, Docket No. 210,463.
- See Also, Gadberry v. R.L. Polk & Company, Docket No. 193,516 (July 1996) [\Affirmed by Kansas Court of
Appeals, Gadberry v. R.L. Polk & Company, Docket No. 77,312 (Kan. App. 1998)]; Wishon v. Helena Chemical
Company and Reliance Insurance Company, Docket No. 203,808 (May 1998) [Affirmed by Supreme Court
decision, Docket No. 81,341 (1999)].
- February 1998. (Award) At the time of his injury, claimant was and had been receiving social security benefits.
The Administrative Law Judge reasoned that the social security offset found in K.S.A. 44-501(h) did not apply to
reduce claimant's award as claimant had been receiving these benefits for eight years prior to the accident and
therefore the workers compensation benefits would not duplicate the social security benefits but merely restore
claimant to the position he was in at the time of the accident. The Appeals Board, however, found the social
security benefit offset applies regardless of whether the social security benefits were being paid prior to an accident
or were started after the accident occurred. Therefore, K.S.A. 44-501(h) requires that the claimant's retirement
benefits from social security be offset against his workers compensation benefits. However, K.S.A. 44-501(h) does
restrict the offset and requires that the workers compensation benefits shall be payable for not less than the
employee's percentage of functional impairment. Dickens, Jr. v. Pizza Company, Inc. and Fireman's Fund
Insurance, Docket No. 216,769 [Reversed by Kansas Supreme Court, Docket No. 80,858].
- July 1996. (Award) Social security disability benefits are not retirement benefits as contemplated in K.S.A. 44-501(h). Gadberry v. R.L. Polk, Docket No. 193,516 (July 1996); [Affirmed by unpublished Court of Appeals
opinion, Gadberry v. R.L. Polk, Docket No. 77,312 (1998)].
7.23b Subrogation Claim in Third Party Action
- October 1998. (Award) Under the Workers Compensation Act, the employer is subrogated to the extent an
employee recovers damages from a third-party tortfeasor who was either responsible for or contributed to the work-related accident. K.S.A. 44-504(a). Kent v. Schmidtlein Electric Inc and Trinity Universal Insurance and Workers
Compensation Fund, Docket No. 163,240.
- ----- The employer is subrogated to the extent that workers compensation benefits were paid from the date of
accident up to the date of recovery of damages. If the recovery exceeds the total amount of workers compensation
benefits that were paid to the date of recovery, the excess is to be credited against future payments of disability and
medical compensation. K.S.A. 44-504(b). Id.
- ----- To protect and enforce its subrogation lien, the employer may intervene in the District Court proceeding that
the employee initiates against the third party. The District Court shall determine the extent that the intervenor may
participate and apportion the costs and fees. K.S.A. 44-504(b). Id.
- ----- There is no right to subrogation unless and until the injured worker has obtained a recovery against a third-party tort feasor. The date of recovery determines which version of an amended statute is applicable. See Anderson
v. National Carriers, Inc, 240 Kan. 101, 727 P.2d 899 (1986); Lemery v. Buffalo Airways, 14 Kan. App.2d 301, 789
P.2d 1176, rev. denied 246 Kan. 767 (1990). In the case at hand, judgement was entered in November of 1994 and
satisfied in August of 1995; therefore, K.S.A. 44-504 is the applicable statute. Id.
- ----- The Appeals Board interprets the subrogation statute, K.S.A. 44-504, as creating both a subrogation lien and a
subrogation credit. The subrogation lien is limited in amount to the total of workers compensation benefits that
were actually paid up to the date that damages are recovered. The subrogation credit is limited in amount to the sum
that the actual recovery exceeds those benefits that were paid up to the date of recovery. Both the subrogation lien
and credit are reduced to the extent that either the employer's negligence or the negligence of someone for whom the
employer is responsible, other than the injured employee, contributed to the accident or injury. K.S.A. 44-504(d).
Id.
- ----- The ONLY remedy the Worker Compensation Act gives the Division in subrogation claims is the authority to
apply a subrogation credit against future disability and medical compensation. Id.
- ----- An employer does not waive its right to a subrogation credit against future workers compensation payments
when it fails to either intervene or file its notice of lien in District Court. The Workers Compensation Act does not
condition the subrogation credit given under the Act upon timely filing a notice of lien in the District Court. Id.
- May 1998. (Award) Respondent was not entitled to a subrogation lien or interest in claimant's loss of consortium
damages received from a third party negligence suit. K.S.A. 44-504(b) specifically excludes any recovery
designated by the court as loss of consortium or loss of services of a spouse from an employer's subrogation interest
or lien. Additionally, the respondent and its insurance carrier had notice of the civil lawsuit and failed to exercise
their statutory right to intervene in the lawsuit and protect their interest. Thomas v. Master Air Control, Inc and
Federated Mutual Insurance Carrier Co, Docket No. 179,977.
- October 1997. (Order) After claimant settled a third party claim, respondent scheduled claimant to have both a
physical and psychological evaluation to obtain expert medical opinions for use in the workers compensation
litigation. Respondent stated it intended to credit the costs of these examinations against the proceeds from the
settlement of the third party action. In so doing, respondent cited K.S.A. 1992 Supp. 44-504 and the case of Vaner
v. Gulf Ins. Co., 18 Kan. App.2d 801, 859 P.2d 414 (1993), as authority for such a credit. In the Vaner decision, the
Court ruled that the costs of vocational rehabilitation were costs subject to reimbursement or credit against the
proceeds from the third party liability action. The Appeals Board, however, finds the Vaner case differs in at least
two respects from the circumstances presented in the case at hand. First, the payments made in Vaner were for a
benefit provided to the claimant. More importantly, however, the Vaner decision did not involve a statute which
specifically prohibits assessing the costs against the claimant. That statute is K.S.A. 44-515, which states the
employee shall not be liable for fees or charges for health care providers selected by the employer for examination
purposes. As the provisions of K.S.A. 44-515 are found to control this action, the costs for claimant's examinations
requested by the employer cannot, therefore, be credited against the proceeds from the third party claim. Boatwright
v. State of Kansas and State Self Insurance Fund, Docket No. 184,367.
7.24 Death
7.25 Generally
7.26 Burial Benefits
7.27 Calculation of Death Benefits
- February 1998. (Award) The Appeals Board finds the purpose of the lump sum remarriage death benefit payment
contained in K.S.A. 1984 Supp. 44-510b(b) is to lessen the disincentive for surviving spouses to remarry where the
death benefits terminated immediately upon remarriage. See Lackey v. D & M Trucking, 9 Kan. App.2d 679, 687
P.2d 23 (1984). However, the Appeals Board also concludes the Legislature did not intend for a surviving spouse
that remarries to receive more in death benefits than a surviving spouse that chooses not to remarry. The Appeals
Board, therefore, finds the $100,000 maximum death benefit limit contained in K.S.A. 1984 Supp. 44-510b(h)
applies to the 100 week remarriage death benefit contained in K.S.A. 1984 Supp. 44-510b(b). Since the surviving
spouse has already reached the $100,000 limit for death benefits, she is not entitled to the remarriage death benefit.
Pouncil, Deceased v. Martin K. Eby Construction Co., Inc. and United States Fidelity & Guaranty Co and Kansas
Workers Compensation Fund, Docket No. 126,736. [Affirmed by unpublished Court of Appeals opinion, Docket
No. 80,884, December 3, 1999.]
7.27a Dependents
7.28 Surviving Spouse, Abandonment or Desertion; Proof of Dependency
- November 1997. (Award) Claimant, the surviving legal spouse of the deceased employee, is asking for death
benefits. Respondent, however, argues claimant is precluded from benefits under K.S.A. 1995 Supp. 44-508(c)(2)
because claimant willfully or voluntarily deserted or abandoned the deceased employee for more than six months
prior to the date of the employee's death. The parties agreed that other than a phone call from the decedent to
claimant in 1986, the claimant and decedent had absolutely no direct contact with each other after 1978 or 1979 up
and until the decedent's death in 1995. Additionally, claimant received no financial support from the decedent from
1985 until his death in 1995. In determining whether an abandonment of the marital relationship occurred, the
Appeals Board looked to the logic of Tisdale v. Wilson & Co., 141 Kan. 885, 43 P.2d 1064 (1935), which stated the
question of whether an abandonment occurred is a question of law and defined abandonment as occurring when one
leaves the marital relationship with the intention of not returning. By focussing on the intentions of the parties, the
Appeals Board found that the decedent was the first to have the intent to abandon or leave the marital relationship as
evidenced by his leaving the marital home and having extramarital affairs. The fact that claimant did not seek a
reconciliation of the marriage was immaterial as decedent was found to be the first to abandon the marriage. See
Tatum v. Tatum, 736 P.2d 506 (Okla. 1982). Therefore, finding a valid marriage existed at the time of decedent's
death and finding the decedent was the first to abandon the marital relationship, the Appeals Board found that
claimant was entitled to death benefits and the provisions of K.S.A. 44-508(c)(2) did not bar claimant's recovery.
Redditt v. McDonald's, Docket No. 211,963 [Remanded by Kansas Court of Appeals to review issue of mutual
abandonment, Docket No. 80,396 (1999)].
- ----- Proof of dependency is not required of a surviving spouse on the deceased employee in order to award death
benefits to the surviving spouse. See Brinkmeyer v. City of Wichita, 223 Kan. 393, 573 P.2d 1044 (1978). Id.
- ----- But See Dissent which would find that claimant and decedent reconciled the marriage in 1979 and then
mutually abandoned the marriage in that same year. The Dissenting Board Member finds the mutual abandonment
of the marriage would bar claimant from receiving death benefits under K.S.A. 44-508(c)(2). See eg City of Aurora
v. Claimant in Death of Corr., 689 P.2d 659 (Colo. Ct.App. 1984); Bass v. Mooresville Mill, 11 N.C. App. 631, 182
S.E.2d 246 (1971), cert den., 281 N.C. 755, 191 S.E.2d 353 (1972). Id.
7.28a Wholly Dependent Child or Children
- July 1998. (Award) Decedent was killed in a work-related accident and his three nieces and one nephew, whom he
sent money to on occasions in Mexico, now claim to be his "dependents." In considering the definition of "wholly
dependent child or children" per K.S.A. 44-508(c)(3)(C), the Appeals Board does not find decedent's three nieces
and one nephew to fit within that definition. The Board decides as such because it does not feel the Legislature
intended so broad an application of "wholly dependent children" as used in K.S.A. 44-510b and K.S.A. 44-508(c) to
include nieces and nephews even where those nieces and nephew could be deemed "wholly dependent children"
under the specific definition set forth in subsection (c)(3)(C) of K.S.A. 44-508. To conclude otherwise would lead
to an unreasonable and incongruous result. Reyes, Deceased v. Post & Mastin Well Service, Inc and Insurance
Company of North America, Docket No. 210,519.
7.28b Benefits Terminated As a Result of Non Work-related Death
- March 1999. (Award) Decedent employee and respondent entered into a settlement agreement for benefits.
Claimant died of cancer before all the benefits were paid for the injury pursuant to the agreement. Held: the Award
denying benefits should be affirmed. The agreement between decedent and respondent did not include any provision
that the weekly permanent partial general disability benefits would survive decedent , and in the absence of such an
agreement, the Act provides that the death of a worker for causes unrelated to the work-related claim terminate the
weekly benefits that would otherwise become due or accrue after the date of death. K.S.A. 44-510e(b). Parker v.
State of Kansas and State Self Insurance Fund, Docket No.218,178.
7.29 Mileage Reimbursement
- March 1997. (Order) Respondent argues the provisions of K.S.A. 44-535 mandate that the right to compensation
should be deemed to have accrued on the date of accident. Similarly, the Administrative Law Judge used the
medical mileage rate in effect as of the date of accident to determine the amount claimant was to be reimbursed.
Claimant, however, argues she should be entitled to medical mileage at the rate applicable at the time the miles are
driven. The Appeals Board agrees with claimant's argument that medical mileage is a reimbursement, not a
compensation right which accrues on the date of accident. She is, therefore, entitled to be reimbursed for her travel
at the medical mileage rate in effect at the time the travel was undertaken. Holmes v. Medicalodges Inc. and
Medicalodges Affiliated, Docket No. 211,917.