(b) Except as provided in the workers compensation act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under the workers compensation act nor shall an employer be liable to any third party for any injury or death of an employee which was caused under circumstances creating a legal liability against a third party and for which workers compensation is payable by such employer.
(c) The employee shall not be entitled to recover for the aggravation of a preexisting condition, except to the extent that the work-related injury causes increased disability. Any award of compensation shall be reduced by the amount of functional impairment determined to be preexisting.
(d) (1) If the injury to the employee results from the employee's deliberate intention to cause such injury; or from the employee's willful failure to use a guard or protection against accident required pursuant to any statute and provided for the employee, or a reasonable and proper guard and protection voluntarily furnished the employee by the employer, any compensation in respect to that injury shall be disallowed.
(2) The employer shall not be
liable under the workers compensation act where the injury, disability or death
was contributed to by the employee's use
or consumption of alcohol or any drugs, chemicals
or any other compounds or substances, including but not limited to,
any drugs or medications which are available to the public without a
prescription from a health care provider, prescription drugs or medications,
any
form or type of narcotic drugs, marijuana, stimulants, depressants or
hallucinogens. In the case of drugs or medications which
are available to
the public without a prescription from a health care provider and prescription
drugs or medications, compensation shall not be denied
if the employee can show that such drugs or medications were being taken or
used in therapeutic doses and there have been no prior incidences of the
employee's impairment on the job as the result of the use of such drugs or
medications within the previous 24 months. It shall be conclusively presumed
that the employee was impaired
due to alcohol or drugs if it is shown that at the time of the injury
that the
employee had an alcohol concentration of .04 or more, or a GCMS
confirmatory
test by quantitative analysis showing a concentration at or above the levels
shown on the following chart for the drugs of abuse listed:
Confirmatory test cutoff levels (ng/ml)
Marijuana metabolite 1.................15
Cocaine metabolite 2.................150
Opiates:
Morphine.................2000
Codeine.................2000
6-Acetylmorphine4.................10 ng/ml
Phencyclidine.................25
Amphetamines:
Amphetamine.................500
Methamphetamine 3.................500
1 Delta-9-tetrahydrocannabinol-9-carboxylic acid.
2 Benzoylecgonine.
3 Specimen must also contain amphetamine at a concentration greater
than or equal to 200 ng/ml.
4 Test for 6-AM when morphine concentration exceeds 2,000 ng/ml.
An employee's refusal to submit to a chemical test
shall not be admissible evidence to prove impairment unless there was probable
cause to believe that the employee used, possessed or was impaired by a
drug or alcohol while working. The results of a chemical test
shall not be
admissible evidence to prove impairment unless the following conditions were
met:
(A) There was probable cause to believe that the employee used, had
possession of, or was impaired by the drug or alcohol while
working;
(B) the test sample was collected at a time contemporaneous with the
events establishing probable cause;
(C) the collecting and labeling of the test sample was performed by or
under the supervision of a
licensed health care professional;
(D) the test was performed by a laboratory approved by the United States
department of health and human services or licensed by the department of health
and environment, except that a blood sample may be
tested for alcohol content by a laboratory commonly used for that purpose by
state law enforcement agencies;
(E) the test was confirmed by gas
chromatography-mass
spectroscopy or other comparably reliable analytical method, except that no
such confirmation is required for a blood alcohol sample; and
(F) the foundation evidence must establish, beyond a reasonable doubt,
that the test results were from the sample taken from the employee.
(3) For purposes of satisfying the probable cause requirement of
subsection (d)(2)(A) of this section, the employer shall be deemed to have met
their burden of proof on this issue by establishing any of the following
circumstances:
(A) The testing was done as a result of an employer mandated drug testing
policy, in place in writing prior to the date of accident, requiring any worker
to submit to testing for drugs or alcohol if they are involved in an accident
which requires medical attention;
(B) the testing was done in the normal course of medical treatment for
reasons
related to the health and welfare of the injured worker and was not at the
direction of the employer; however, the request for GCMS testing for purposes
of
confirmation, required by subsection (d)(2)(E) of this section, may have been
at the
employer's request;
(C) the worker, prior to the date and time of the accident, gave written
consent to the employer that the worker would voluntarily submit to a chemical
test for drugs or alcohol following any accident requiring the worker to
obtain medical treatment for the injuries suffered. If after suffering an
accident requiring medical treatment, the worker refuses to submit to a
chemical test for drugs or alcohol, this refusal shall be considered evidence
of impairment, however, there must be evidence that the presumed impairment
contributed to the accident as required by this section; or
(D) the testing was done as a result of federal or state law or a federal or
state rule or regulation having the force and effect of law requiring a post
accident testing program and such required program was
properly implemented at the time of testing.
(e) Compensation shall not be paid in case of coronary or coronary artery
disease or cerebrovascular injury unless it is shown that the exertion of the
work necessary to precipitate the disability was more than the employee's usual
work in the course of the employee's regular employment.
(f) Except as provided in the workers compensation act, no construction
design professional who is retained to perform professional services on a
construction project or any employee of a construction design professional who
is assisting or representing the construction design professional in the
performance of professional services on the site of the construction project,
shall be liable for any injury resulting from the employer's failure to comply
with safety standards on the construction project for which compensation is
recoverable under the workers compensation act, unless responsibility for
safety practices is specifically assumed by contract. The immunity provided by
this subsection to any construction design professional shall not apply to the
negligent preparation of design plans or specifications.
(g) It is the intent of the legislature that the workers compensation
act shall be liberally construed for the purpose of bringing employers and
employees within the provisions of the act to provide the protections of
the workers compensation act to both. The provisions of the workers
compensation act shall be applied impartially to both employers and
employees in cases arising thereunder.
(h) If the employee is receiving retirement
benefits under the
federal social security act
or retirement benefits from any other retirement system, program or plan which
is provided by the employer against which the claim is being made, any
compensation benefit payments
which the employee is eligible to
receive under the workers compensation act for such claim shall be reduced by
the weekly equivalent amount of
the total amount of all such retirement benefits,
less any portion of any
such retirement benefit, other than retirement benefits under the federal
social security act, that is attributable to payments or contributions made
by the employee,
but in no event shall the
workers compensation benefit be less than the
workers compensation benefit payable for the employee's
percentage of functional impairment.
History: L. 1927, ch. 232, § 1;
L. 1967, ch. 280, § 1;
L. 1974, ch. 203, § 1;
L. 1975, ch. 258, § 1;
L. 1979, ch. 156, § 1;
L. 1985, ch. 175, § 1;
L. 1987, ch. 187, § 1;
L. 1990, ch. 182, § 1;
L. 1993, ch. 286, § 24;
L. 1996, ch. 79, § 1;
L. 2000, ch. 160, § 5;
L. 2005, ch. 54, § 1; July 1.
History: L. 1996, ch. 79, § 2;
Repealed, L. 2000, ch. 160, § 25; July 1.
History: L. 1927, ch. 232, § 2; June 30.
(b) Where the principal is liable to pay compensation under this
section, the principal shall be entitled to indemnity from any
person who would have
been liable to pay compensation to the worker independently of
this
section, and shall have a cause of action
under the workers compensation act for indemnification.
(c) Nothing in this section shall be construed as preventing a
worker from recovering compensation under the workers
compensation act from the
contractor instead of the principal.
(d) This section shall not apply to any case where the accident occurred
elsewhere than on, in or about the premises on which the principal has
undertaken to execute work or which are otherwise under the
principal's control or
management, or on, in or about the execution of such work under the
principal's control
or management.
(e) A principal contractor, when sued by a worker of a
subcontractor,
shall have the right to implead the subcontractor.
(f) The principal contractor who pays compensation to a
worker of a
subcontractor shall have the right to recover over against the
subcontractor in the action under the workers compensation act if the
subcontractor has been impleaded.
(g) Notwithstanding any other provision of this section, in any case
where the contractor (1) is an employer who employs employees in an
employment to which the act is applicable, or has filed a written
statement of election with the director to accept the provisions of the
workers compensation act pursuant to subsection (b) of K.S.A. 44-505, and
amendments thereto, to the extent of such election, and (2) has secured
the payment of compensation as required by K.S.A. 44-532, and
amendments thereto, for all persons for whom the contractor is required
to or elects to secure such compensation, as evidenced by a
current certificate of workers compensation insurance, by a certification
from the director that the contractor is currently qualified as a self-insurer
under that statute, or by a certification from the commissioner of
insurance that the contractor is maintaining a membership in a qualified
group-funded workers compensation pool, then,
the principal shall not be liable for any compensation under this or any
other section of the workers compensation act for any person for which
the contractor has secured the payment of compensation which the principal
would otherwise be liable for under this section and such person shall have no
right to file a claim against or
otherwise proceed against the principal for compensation under this or
any other section of the workers compensation act. In the event that the
payment of compensation is not secured or is otherwise unavailable or in
effect, then the principal shall be liable for the payment of compensation.
No insurance company shall charge a principal a premium for workers
compensation insurance for any liability for which the contractor has
secured the payment of compensation.
History: L. 1927, ch. 232, § 3; L. 1974, ch. 203, §
2;
L. 1993, ch. 286, § 25;
L. 1994, ch. 288, § 1;
L. 1996, ch. 1, § 1;
L. 1998, ch. 75, § 1;
L. 1999, ch. 149, § 4; July 1.
History: L. 1974, ch. 203, § 15; July 1.
History: L. 1927, ch. 232, § 3; L. 1974, ch. 203, §
2;
L. 1993, ch. 286, § 25;
L. 1994, ch. 288, § 1;
L. 1996, ch. 1, § 1;
L. 1998, ch. 120, § 1;
Repealed, L. 1999, ch. 149, § 14; July 1.
(2) As used in this subsection:
(A) "Motor vehicle" means any automobile, truck-trailer, semitrailer,
tractor, motor bus or any other self-propelled or motor-driven vehicle used
upon any of the public highways of Kansas for the purpose of transporting
persons or property;
(B) "licensed motor carrier" means any person, firm, corporation or other
business entity that holds a certificate of convenience and necessity, a
certificate of public service, an
interstate
license as a common or exempt carrier from the state
corporation
commission or is required to register motor carrier equipment pursuant to 49
U.S.C. § 11506; and
(C) "owner-operator" means an individual who is the owner of a single motor
vehicle that is driven exclusively by the owner under a lease agreement or
contract with a licensed motor carrier.
(b) Notwithstanding any other provision of this act, a licensed motor
carrier may by lease agreement or contract secure workers compensation
insurance for an owner-operator, otherwise subject to the act by statute or
election, and may charge-back to the owner-operator the premium for such
workers compensation insurance, and by doing so does not create an
employer-employee relationship between the licensed motor carrier and the
owner-operator, or subject the licensed motor carrier to liability under
subsection (d)(1) of K.S.A.
44-5,120 and amendments thereto.
(c) For purposes of subsection (b) of this section only, "owner-operator"
means a person, firm, corporation or other business entity that is the owner of
one or more motor vehicles that are driven exclusively by the owner or the
owner's employees or agents under a lease agreement or contract with a licensed
motor carrier; provided that neither the owner-operator nor the owner's
employees are treated under the term of the lease agreement or contract with
the licensed motor carrier as an employee for purposes of the federal insurance
contribution act, 26 U.S.C. § 3101 et seq.,
the federal social security
act, 42 U.S.C. § 301 et seq., the federal unemployment tax
act, 26
U.S.C. § 3301 et seq., and the federal statutes prescribing
income
tax
withholding at the source, 26 U.S.C. § 3401 et seq.
History: L. 1998, ch. 75, § 2;
L. 2003, ch. 124, § 6; July 1.
(b) In the event of recovery from such other person by the injured worker
or the dependents or personal representatives of a deceased worker by judgment,
settlement or otherwise, the employer shall be
subrogated to the extent of the compensation and medical aid provided by
the employer to the date of such recovery and shall have a lien therefor
against
the entire amount of such recovery, excluding any recovery, or portion thereof, determined
by a court to be loss of consortium or loss of services to a spouse. The
employer shall
receive notice of the action, have a
right to intervene
and
may participate in the action. The district court shall determine the extent
of participation of the intervenor, including the apportionment of costs and
fees.
Whenever any judgment in any such
action, settlement or recovery otherwise is recovered by the injured worker
or the worker's dependents or personal representative prior to the completion
of compensation or medical aid payments, the amount of such judgment,
settlement or recovery otherwise actually paid and recovered which is in
excess of the amount of compensation and medical aid paid to the date of
recovery of such judgment, settlement or recovery otherwise shall be
credited against future payments of the compensation or medical aid. Such
action against the other party, if prosecuted by the worker, must be
instituted within one year from the date of the injury and, if
prosecuted by the dependents or personal representatives of a deceased worker,
must be instituted within 18
months from the date of
such injury.
(c) Failure on the part of the injured worker, or the dependents or
personal representatives of a deceased worker to bring such action within
the time specified by this section, shall operate as an
assignment to the employer
of any cause of action in tort which the worker or the dependents or
personal representatives of a deceased worker may have against any other
party for such injury or death, and such employer may enforce the cause
of action in the employer's name or in the name of the worker, dependents or personal
representatives for their benefit as their interest may appear by proper
action in any court of competent jurisdiction. The court shall fix the attorney
fees which shall be paid proportionately by the
employer and
employee in the amounts determined by the court.
(d) If the negligence of the worker's employer or those for whom the
employer
is responsible, other than the injured worker, is found to have contributed
to the party's injury, the employer's subrogation interest or credits against
future payments of compensation and medical aid, as provided by this section,
shall be diminished by the percentage of the recovery
attributed to
the negligence of the employer or those for whom the employer is responsible,
other than the injured worker.
(e) In any case under the workers compensation act in which the workers
compensation fund has paid or is paying compensation, the workers compensation
fund is hereby subrogated to the rights of the employer under this section
and shall have all the rights of subrogation or to credits against future
compensation payments which are granted to the employer by this section.
The commissioner of insurance may exercise all such rights for the fund
to the same extent that such rights may be exercised by the employer under
this section, including the right to intervene, to enforce a lien or to
bring any cause of action, all as provided in this section.
(f) As used in this section, "compensation and medical aid" includes
all payments of medical compensation, disability compensation, death
compensation,
including payments under K.S.A. 44-570 and amendments thereto, and any other
payments made or provided pursuant to the workers compensation act.
(g) In any case under the workers compensation act in which the
workers compensation fund or an insurer or a qualified group-funded
workers compensation pool, as provided in K.S.A. 44-532 and amendments
thereto, is subrogated to the rights of the employer under the workers
compensation act, the court shall fix the attorney fees which shall be paid
proportionately by the workers compensation fund, insurer or qualified
group-funded workers compensation pool and the worker or such worker's
dependents or personal representatives in the amounts determined by the
court based upon the amounts to be received from any recovery pursuant to
an action brought under this section.
History: L. 1927, ch. 232, § 4; L. 1938, ch. 50, § 1; L. 1947,
ch. 287, § 1; L. 1955, ch. 250, § 1; L. 1961, ch. 243, § 10; L.
1967, ch. 280, § 2; L. 1974, ch. 203, § 3; L. 1982, ch. 212, § 1;
L. 1988, ch. 166, § 1;
L. 1993, ch. 286, § 26; July 1.
(1) Agricultural pursuits and employments incident thereto, other than those
employments in which the employer is the state, or any department,
agency or authority of the state;
(2) any employment, other than
those employments in which the employer is the state, or any department,
agency or authority of the state, wherein the employer had a total gross
annual payroll for the preceding calendar year of not more than
$20,000 for all employees and wherein the employer
reasonably estimates that such employer will not have a total gross annual
payroll for the current calendar year of more than $20,000 for
all employees,
except that no wages paid to an employee who is
a member of the employer's family by marriage or consanguinity shall be
included as part of the total gross annual payroll of such employer for
purposes of this subsection;
(3) any employment, other than those
employments in which the employer is the state, or any department,
agency or authority of the state, wherein the employer has not had a
payroll for a calendar year and wherein the employer reasonably
estimates that such employer will not have a total gross
annual payroll for
the current calendar year of more than
$20,000 for all employees, except that no wages paid to
an employee who is a member
of the employer's family by marriage or consanguinity shall be included
as a part of the total gross annual payroll of such employer for
purposes of this subsection;
(4) the employment of any
firefighters who are members of a firemen's relief association for whom
a valid statement of election to except such members from the provisions
of the workers compensation act has been filed with the
director by
the governing body of such firemen's relief association as provided in
K.S.A. 44-505d and amendments thereto; or
(5) services performed by a qualified real estate agent as an
independent
contractor. For the purposes of this act a qualified real estate agent
shall be deemed to be an independent contractor if such qualified real estate
agent is
licensed by the Kansas real estate commission as a salesperson under the
real estate brokers' and salespersons' license act and for whom: (A)
Substantially all of the remuneration, whether or not paid in cash, for the
services performed by such individual as a real estate salesperson is
directly related to sales or other output, including the performance of
services, rather than to the number of hours worked; and (B) the services
performed by the individual are performed pursuant to a written contract
between such individual and the person for whom the services are performed
and such contract provides that the individual will not be treated as an
employee with respect to such services for state tax purposes.
(b) Each employer who employs employees in employments which are
excepted from the provisions of the workers compensation act
as
provided in subsection (a) of this section, shall be entitled to come
within the provisions of such act by: (1) Becoming a member in and by
maintaining
a membership in a qualified group-funded workers' compensation pool, as
provided by K.S.A. 44-581 to 44-591, inclusive, and
amendments thereto; or (2) filing
with the director a written
statement of election to accept thereunder. Such written statement of
election shall be
effective from the date of filing until such time as the employer files
a written statement withdrawing such election with the director. All
written statements of election or of withdrawal of election filed
pursuant to this subsection shall be in such form as may be required by the
director by rules and regulations.
(c) This act shall not apply in any case where the accident occurred
prior to the effective date of this act. All rights which accrued by
reason of any such accident shall be governed by the laws in effect at
that time.
History: L. 1927, ch. 232, § 5; L. 1935, ch. 202, § 1;
L. 1953,
ch. 243, § 1; L. 1955, ch. 250, § 2; L. 1959, ch. 219, §
1; L.
1974, ch. 203, § 4; L. 1974, ch. 204, § 8;
L. 1975, ch. 259, § 1; L. 1977, ch. 174, § 1; L. 1983, ch. 166,
§ 13;
L. 1986, ch. 188, § 1;
L. 1993, ch. 286, § 27;
L. 1997, ch. 125, § 2;
L. 1998, ch. 120, § 2; Apr. 30.
History: L. 1959, ch. 219, §
2; Repealed, L. 1974, ch. 203, §
58; July 1.
If the board of county commissioners shall determine on an actuarial basis
that money which has been credited to such fund, or any part thereof,
is no longer needed for the purposes for which it was established, the board
may transfer such amount not needed to the fund from which the money was
received. Any money so transferred shall be budgeted in accordance with
the provisions of K.S.A. 79-2925 to 79-2937, inclusive, and acts amendatory
thereof or supplemental thereto.
History: L. 1968, ch. 170, § 1; L. 1974, ch. 203, § 5; L. 1980,
ch. 145, § 3; July 1.
History: L. 1974, ch. 203, § 57; L. 1977, ch. 110, § 5; L.
1978, ch. 296, § 15; L. 1978, ch. 163, § 5; L. 1979, ch. 157, § 1;
L. 2003, ch. 116, § 5; July 1.
(b) Prior to August 1 in any year thereafter, the governing body of any
firemen's relief association which has been excepted from the provisions of
the workmen's compensation act under subsection (a), may conduct an
election among all of the members of such association to determine whether
such members shall be covered by the provisions of the workmen's
compensation act in the manner otherwise provided by law. If a majority of
the members of such association vote in such election to come within the
provisions of the workmen's compensation act, the governing body of the
association shall file with the director of workers' compensation a written
statement of election to come within the provisions of the workmen's
compensation act. Upon the filing of such statement, the members of such
association shall be covered by the provisions of the workmen's
compensation act.
(c) Subsequent to an election resulting in coverage under the workmen's
compensation act under subsection (b) and prior to August 1 of any year
thereafter, the governing body of any such firemen's relief association may
conduct an election in the manner provided in subsection (a) to except
again the members of such association from the provisions of the workmen's
compensation act as provided in subsection (a).
History: L. 1975, ch. 259, § 2, L. 1976, ch. 370, § 17; July 1.
If the school district, area vocational-technical school or community junior
college shall determine on an actuarial basis that money which has been
credited to such fund, or any part thereof, is no longer needed for the
purposes for which it was established, the school district, area vocational-technical
school or community junior college may transfer such amount not needed to
the funds or accounts from which the money was received. Any money so transferred
shall be budgeted in accordance with the provisions of K.S.A. 79-2925 to
79-2937, inclusive, and acts amendatory thereof or supplemental thereto.
History: L. 1977, ch. 180, § 3; L. 1980, ch. 145, § 4; July 1.
(b) If the governing body of any city shall determine on an
actuarial basis that money which has been credited to such fund, or any
part thereof, is no longer needed for the purposes for which it was
established, said governing body may transfer such amount not needed to
the funds or accounts from which the money was received. Any money so
transferred shall be budgeted in accordance with the provisions of
K.S.A. 79-2925 to 79-2937, inclusive, and acts amendatory thereof or
supplemental thereto.
(c) The provisions of this section shall be construed as
supplemental to and as part of the workmen's compensation act.
History: L. 1980, ch. 145, § 1; July 1.
History: L. 1927, ch. 232, § 6; L. 1970, ch. 190, § 1; L. 1974,
ch. 203, § 6; July 1.
History: L. 1927, ch. 232, §
7; L. 1957, ch. 293, §
1; L. 1968, ch. 102, §
1; L. 1969, ch. 246, §
1; Repealed, L. 1974, ch. 203, §
58; July 1.
(a) "Employer" includes: (1) Any person or body of persons, corporate or
unincorporate, and the legal representative of a deceased employer or
the receiver or trustee of a person, corporation, association or
partnership; (2) the state or any department, agency or authority of
the state, any city, county, school district or other political
subdivision or municipality or public corporation and any instrumentality
thereof; and (3) for the purposes of community service work, the entity for
which the community service work is being performed and the governmental agency
which assigned the community service work, if any, if either such entity or
such governmental agency has filed a written statement of election with the
director to accept the provisions under the workers compensation act for
persons performing community service work and in such case such entity and such
governmental agency shall be deemed to be the joint employer of the person
performing the community service work and both shall have the rights,
liabilities and immunities provided under the workers compensation act for an
employer with regard to the community service work, except that the liability
for providing benefits shall be imposed only on the party which filed such
election with the director, or on both if both parties have filed such election
with the director; for purposes of community service work, "governmental
agency" shall not include any court or any officer or employee thereof and any
case where there is deemed to be a "joint employer" shall not be construed to
be a case of dual or multiple employment.
(b) "Workman" or "employee" or "worker" means any person who has
entered into the employment of or works under any contract of service or
apprenticeship with an employer. Such terms shall include but not be
limited to: Executive officers of corporations; professional athletes;
persons serving on a volunteer basis as duly authorized law enforcement
officers,
attendants, as defined in subsection (d) of K.S.A. 65-6112, and
amendments
thereto, drivers of ambulances as defined in subsection (b) of K.S.A.
65-6112, and amendments thereto,
firefighters, but only to the extent and during such periods as they are so
serving in such capacities; persons employed by educational, religious and
charitable organizations, but only to the
extent and during the periods that they are paid wages by such
organizations; persons in the service of the state, or any department,
agency or authority of the state, any city, school district, or other
political subdivision or municipality or public corporation and any
instrumentality thereof, under any contract of service, express or
implied, and every official or officer thereof, whether elected or
appointed, while performing official duties; persons in the service of
the state as volunteer members of the Kansas department of civil air patrol,
but only to the extent and during such periods as they are officially engaged
in the performance of functions specified in K.S.A. 48-3302 and
amendments thereto; volunteers in any employment, if the employer has filed an
election to extend coverage to such volunteers; minors, whether such minors are
legally or illegally employed; and persons performing community service work,
but only to the extent and during such periods as they are performing community
service work and if an election has been filed an election to extend coverage
to such persons. Any reference to an employee who has been injured shall, where
the employee is dead, include a reference to the employee's dependents, to the
employee's legal representatives, or, if the employee is a minor or an
incapacitated person, to the employee's guardian or conservator. Unless there
is a valid election in effect which has been filed as provided in K.S.A.
44-542a, and amendments thereto, such terms shall not include individual
employers, limited liability company members, partners
or self-employed persons.
(c) (1) "Dependents" means such members of the employee's family as were
wholly or in part dependent upon the employee at the time of the accident.
(2) "Members of a family" means only surviving legal spouse and
children; or if no surviving legal spouse or children, then parents or
grandparents; or if no parents or grandparents, then grandchildren; or
if no grandchildren, then brothers and sisters. In the meaning of this
section, parents include stepparents, children include stepchildren,
grandchildren include stepgrandchildren, brothers and sisters include
stepbrothers and stepsisters, and children and parents include that
relation by legal adoption. In the meaning of this section, a surviving
spouse shall not be regarded as a dependent of a deceased employee or as
a member of the family, if the surviving spouse shall have for more than
six months willfully or voluntarily deserted or abandoned the
employee prior to the date of the employee's death.
(3) "Wholly dependent child or children" means:
(A) A birth child or adopted child of the employee except
such a child whose
relationship to the employee has been severed by adoption;
(B) a stepchild of the employee who lives in the employee's household;
(C) any other child who is actually dependent in whole or in part on the
employee and who is related to the employee by marriage or consanguinity; or
(D) any child as defined in subsections (3)(A), (3)(B) or (3)(C) who
is less than 23 years of age and who is not physically or mentally capable
of earning wages in any type of substantial and gainful employment or who
is a full-time student attending an accredited institution of higher
education or vocational education.
(d) "Accident" means an undesigned,
sudden and unexpected event or
events, usually of an afflictive or unfortunate nature and often, but
not necessarily, accompanied by a manifestation of force. The elements of an
accident, as stated herein, are not to be construed in a strict and literal
sense, but in a manner designed to effectuate the purpose of the workers
compensation act that the employer bear the expense of accidental injury to a
worker caused by the employment. In cases where the accident occurs as a
result of a series of events, repetitive use, cumulative traumas or
microtraumas, the date of accident shall be the date the authorized physician
takes the employee off work due to the condition or restricts the employee from
performing the work which is the cause of the condition. In the event the
worker is not taken off work or restricted as above described, then the date of
injury shall be the earliest of the following dates: (1) The date upon which
the employee gives written notice to the employer of the injury; or (2) the
date the condition is diagnosed as work related, provided such fact is
communicated in writing to the injured worker. In cases where none of the above
criteria are met, then the date of accident shall be determined by the
administrative law judge based on all the evidence and circumstances; and in no
event shall the date of accident be the date of, or the day before the regular
hearing. Nothing in this subsection shall be construed to preclude a worker's
right to make a claim for aggravation of injuries under the workers
compensation act.
(e) "Personal injury" and "injury" mean any lesion or change in the
physical structure of the body, causing damage or harm thereto, so that
it gives way under the stress of the worker's usual labor. It is not
essential that such lesion or change be of such character as to present
external or visible signs of its existence.
An injury shall not be deemed to have been directly
caused by the employment where it is shown that the employee suffers disability
as a result of the natural aging process or by the
normal activities of day-to-day living.
(f) The words "arising out of and in the course of employment" as
used in the workers compensation act shall not be construed to include
injuries to the employee occurring while the employee is on the way to
assume the duties of employment or after leaving such duties, the
proximate cause of which injury is not the employer's negligence. An
employee shall not be construed as being on the way to assume the duties
of employment or having left such duties at a time when the worker is on
the premises of the employer or on the only available route to or from
work which is a route involving a special risk or hazard and which is a
route not used by the public except in dealings with the employer.
An employee shall not be construed as being on the way to assume the
duties of employment, if the employee is a provider of emergency services
responding to
an emergency.
The words, "arising out of and in the course of employment" as used in the
workers compensation act shall not be construed to include injuries to
employees while engaged in recreational or social events under
circumstances where the employee was under no duty to attend and where the
injury did not result from the performance of tasks related to the employee's
normal job duties or as specifically instructed to be performed by the
employer.
(g) "Burden of proof" means the burden of a party to persuade the
trier of facts by a preponderance of the credible evidence that such
party's position on an issue is more probably true than not true on the
basis of the whole record.
(h) "Director" means the director of workers compensation as
provided for in K.S.A. 75-5708 and amendments thereto.
(i) "Health care provider" means any person licensed, by the
proper
licensing authority of this state, another state or the District of Columbia,
to practice medicine and surgery, osteopathy, chiropractic, dentistry,
optometry, podiatry, audiology or psychology.
(j) "Secretary" means the secretary of labor.
(k) "Construction design professional" means any person who is an
architect, professional engineer, landscape architect or land surveyor who
has been issued a license by the state board of technical professions to
practice such technical profession in Kansas or any corporation organized
to render professional services through the practice of one or more of such
technical professions in Kansas under the professional corporation law of
Kansas or any corporation issued a certificate of authorization under
K.S.A. 74-7036, and amendments thereto, to practice one or more
of such
technical professions in Kansas.
(l) "Community service work" means: (1) Public or community service
performed as a result of a contract of diversion or of assignment to a
community corrections program or conservation camp or suspension of
sentence or as a condition
of probation or in lieu of a fine imposed by court order; or (2) public or
community service or other work performed as a requirement for receipt of any
kind of public assistance in accordance with any program administered by the
secretary of social and rehabilitation services.
(m) "Utilization review" means the initial evaluation of
appropriateness in
terms of both the level and the quality of health care and health services
provided a patient, based on accepted standards of the health care profession
involved. Such evaluation is accomplished by means of a system which identifies
the utilization of health care services above the usual range of utilization
for such services, which is based on accepted standards of the health care
profession involved, and which refers instances of possible inappropriate
utilization to the director for referral to a peer review committee.
(n) "Peer review" means an evaluation by a peer review committee of the
appropriateness, quality and cost of health care and health services provided a
patient, which is based on accepted standards of the health care profession
involved and which is conducted in conjunction with utilization review.
(o) "Peer review committee" means a committee composed of health care
providers licensed to practice the same health care profession as the
health care provider who rendered the health care services being reviewed.
(p) "Group-funded self-insurance plan" includes each group-funded workers
compensation pool, which is authorized to operate in this state under K.S.A.
44-581 through 44-592, and amendments thereto, each municipal
group-funded pool
under the Kansas municipal group-funded pool act which is covering liabilities
under the workers compensation act, and any other similar group-funded or
pooled plan or arrangement that provides coverage for employer liabilities
under the workers compensation act and is authorized by law.
(q) On and after the effective date of this act, "workers compensation
board" or "board" means the workers compensation
board established under K.S.A. 44-555c and amendments
thereto.
(r) "Usual charge" means the amount most commonly charged by health care
providers for the same or similar services.
(s) "Customary charge" means the usual rates or range of fees charged by
health care providers in a given locale or area.
History: L. 1927, ch. 232, § 8;
L. 1965, ch. 319, § 1;
L. 1968, ch. 102, § 2;
L. 1974, ch. 203, § 7;
L. 1976, ch. 370, § 18;
L. 1977, ch. 175, § 2;
L. 1979, ch. 156, § 2;
L. 1983, ch. 167, § 1;
L. 1985, ch. 175, § 2;
L. 1986, ch. 189, § 1;
L. 1987, ch. 187, § 2;
L. 1988, ch. 167, § 5;
L. 1990, ch. 183, § 1;
L. 1991, ch. 144, § 2;
L. 1993, ch. 286, § 28;
L. 1995, ch. 1, § 4;
L. 1996, ch. 79, § 3;
L. 1997, ch. 125, § 3;
L. 1998, ch. 120, § 3;
L. 2000, ch. 160, § 6;
L. 2001, ch. 121, § 1;
L. 2002, ch. 122, § 1;
L. 2004, ch. 179, § 15;
L. 2005, ch. 55, § 1; July 1.
History: L. 1927, ch. 232, § 8; L. 1967, ch. 280, §
3; Repealed, L. 1968, ch. 102, § 11; July 1.
History: L. 1967, ch. 280, § 9; Repealed, L. 1974, ch. 203, § 58; July 1.
History: L. 1927, ch. 232, § 9; L. 1939, ch. 213, § 1; L. 1955, ch. 250, § 3;
L. 1965, ch. 319, § 2; L. 1974, ch. 203, §
8; July 1.
History: L. 1927, ch. 232, § 10;
L. 1931, ch. 217, § 1; L.
1939, ch. 213, § 2; L. 1947, ch. 288, § 1; L. 1951, ch. 305,
§ 1; L.
1953, ch. 244, § 1; L. 1955, ch. 250, § 4; L. 1957, ch. 293,
§ 2; L.
1959, ch. 220, § 1; L. 1961, ch. 243, § 1; L. 1963, ch. 275,
§ 1; L.
1967, ch. 280, § 4; L. 1968, ch. 102, § 3; L. 1970, ch. 190,
§ 2; L.
1974, ch. 203, § 9; L. 1977, ch. 174, § 2; L. 1979, ch. 156,
§ 3; L.
1980, ch. 146, § 1; L. 1981, ch. 203, § 1; L. 1987, ch. 187,
§ 3; L.
1987, ch. 188, § 1; L. 1990, ch. 183, § 2;
L. 1991, ch. 144, § 3;
L. 1993, ch. 286, § 29;
L. 1996, ch. 79, § 4;
L. 1997, ch. 125, § 4;
L. 1998, ch. 114, § 1;
Repealed, L. 2000, ch. 160, § 25; July 1.
(b) The percentage of contribution that the prior disability
contributes to the later disability shall be applied to the money rate
actually collected or collectible for the prior injury and
the amount so
determined shall be deducted from the money rate awarded for the later
injury. This reduced amount of compensation shall be the total amount
payable during the period of time provided in subsection (a), unless the
disability award is increased under the provisions of K.S.A.
44-528 and amendments thereto.
History: L. 1967, ch. 280, § 5; L. 1970, ch. 190, § 3; L.
1974, ch. 203, § 10; L. 1979, ch. 156, § 4;
L. 1993, ch. 286, § 30; July 1.
(a) If an employee leaves any dependents wholly dependent upon the
employee's earnings at the time of the accident, all compensation
benefits under this section shall be paid to such dependent persons.
There shall be an initial payment of $40,000 to the surviving legal spouse
or a wholly dependent child or children or both. The initial payment shall not
be subject to the 8% discount as provided in K.S.A. 44-531 and amendments
thereto. The initial payment shall be immediately due and payable and
apportioned 50% to the surviving legal spouse and 50% to the
dependent children. Thereafter, such
dependents shall be paid weekly compensation, except as otherwise
provided in this section, in a total sum to all such dependents, equal
to 66 2/3% of the average gross
weekly wage of the employee at the time of the accident, computed as
provided in K.S.A. 44-511 and amendments thereto, but in no
event shall such weekly benefits exceed the maximum
weekly benefits provided in K.S.A. 44-510c and
amendments thereto,
nor be less than a minimum weekly benefit of the dollar amount nearest to
50% of the state's average weekly wage as determined pursuant to K.S.A. 44-511
and amendments thereto
subject to the following:
(1) If the employee leaves a surviving legal spouse or a wholly
dependent child or children, or both, who are eligible for benefits
under this section,
then all death benefits shall be paid to such surviving spouse
or children, or both, and no benefits shall be paid to any other
wholly or partially
dependent persons.
(2) A surviving legal spouse shall be paid compensation benefits for
life, except as otherwise provided in this section.
(3) Any wholly dependent child of the employee shall be paid
compensation, except as otherwise provided in this section, until such
dependent child becomes 18 years of
age. A wholly dependent child of the
employee shall be paid compensation, except as otherwise provided in this
section, until such dependent child becomes 23 years of age during any period
of time that one of the following conditions is met:
(A) The wholly dependent child is not physically or mentally capable of
earning wages in any type of substantial and gainful employment; or
(B) the wholly dependent child is a student enrolled full-time in an
accredited institution of higher education or vocational education.
(4) If the employee leaves no legal spouse or dependent children
eligible for benefits under this section but leaves other dependents
wholly dependent upon the employee's earnings, such other dependents
shall receive weekly compensation benefits as provided in
this subsection until death, remarriage or so long as such other
dependents do not receive more than 50% of their support
from any other earnings or income or from any other source, except that
the maximum benefits payable to all such other dependents, regardless of
the number of such other dependents, shall not exceed a maximum amount
of $18,500.
(b) Where the employee leaves a surviving legal spouse and
dependent
children who were wholly dependent upon the employee's earnings and are
eligible for benefits under this section 50% of the maximum
weekly benefits payable shall be apportioned to such spouse and
50%
to such dependent children.
(c) If an employee does not leave any dependents who were
wholly
dependent upon the employee's earnings at the time of the accident but
leaves dependents, other than a spouse or children, in part dependent on
the employee's earnings, such percentage of a sum equal to three
times the employee's average yearly earnings but not exceeding $18,500
but not less than $2,500, as such employee's average annual
contributions which the employee made to the support of such dependents
during the two years preceding the date of the accident, bears to
the employee's average yearly earnings during the contemporaneous
two-year period, shall be paid in compensation to such dependents, in
weekly payments as provided in subsection (a), not to
exceed $18,500 to all such
dependents.
(d) If an employee does not leave any dependents, either
wholly or
partially dependent upon the employee, a lump-sum payment of $25,000 shall be
made to the legal heirs of such employee in accordance with Kansas law.
However under no circumstances shall such payment escheat to the state.
Notwithstanding the provisions of this subsection, no such payment shall be
required if the employer has procured a life insurance policy, with
beneficiaries designated by the employee, providing coverage in an amount not
less than $18,500.
(e) The administrative law judge, except as otherwise
provided in this section,
shall have the power and authority to apportion and reapportion the
compensation allowed under this section, either to wholly dependent
persons or partially dependent persons, in accordance with the degree of
dependency as of the date of the accident, except that the weekly
payment of compensation to any and all dependents shall not exceed the
maximum nor be less than the minimum weekly benefits provided in
subsection (a).
(f) In all cases of death compensable under this section,
the
employer shall pay the reasonable expense of burial not exceeding
$5,000.
(g) The marriage or death of any dependent shall terminate
all
compensation, under this section, to such dependent
except the marriage of the surviving legal
spouse shall not terminate benefits to such spouse. Upon the death
of the surviving legal spouse or the marriage or death of
a dependent child, the compensation payable to such spouse or child
shall be reapportioned to those, among the surviving legal spouse and
dependent children, who remain eligible to receive compensation under
this section.
(h) Notwithstanding any other provision in this section to
the
contrary, the maximum amount of compensation benefits payable under this
section, including the initial payment in subsection (a) to any and all
dependents by the employer shall not exceed a
total amount of $250,000 and when such
total amount has been paid the liability of the employer for any
further compensation under this section to dependents, other than minor
children of the employee, shall cease except that the payment of
compensation under this section to any minor child of the employee shall
continue for the period of the child's minority at the weekly rate in
effect when the employer's liability is otherwise terminated under this
subsection and shall not be subject to termination under this
subsection until such child becomes 18 years of age.
(i) Persons receiving benefits under this section shall submit an annual
statement to the insurance carrier, self-insured employer or group-funded
workers compensation pool paying the benefits, in such form and containing such
information relating to eligibility for compensation under this section as may
be required by rules and regulations of the director. If the person receiving
benefits under this section is a surviving spouse or a dependent child who has
reached the age of majority, such person shall personally submit an annual
statement. If the person receiving benefits under this section is a dependent
child subject to a conservator, the conservator of such child shall submit the
annual statement. If such person fails to submit an annual statement, the payer
of benefits may notify the director of such failure and the director shall
notify the person of the failure by certified mail with return receipt. If such
person fails to submit the annual statement or fails to reasonably provide the
required information within 30 days after receipt of the notice from the
director, all compensation benefits paid under this section to such person
shall be suspended until the annual statement is submitted in proper form to
the payer of benefits.
History: L. 1968, ch. 102, § 4;
L. 1970, ch. 190, § 4;
L. 1972, ch. 161, § 11;
L. 1974, ch. 203, § 11;
L. 1977, ch. 177, § 1;
L. 1977, ch. 175, § 1;
L. 1979, ch. 156, § 5;
L. 1983, ch. 167, § 2;
L. 1987, ch. 187, § 4;
L. 1993, ch. 286, § 31;
L. 1997, ch. 125, § 5;
L. 1998, ch. 120, § 4;
L. 2000, ch. 160, § 7;
L. 2002, ch. 122, § 2; July 1.
(a) (1) Where permanent total disability results from the injury, weekly
payments shall be made during the period of permanent total disability in a sum
equal to 66 2/3% of the average gross weekly wage of the injured employee,
computed as provided in K.S.A. 44-511 and amendments thereto, but in no case
less than $25 per week nor more than the dollar amount nearest to 75% of the
state's average weekly wage, determined as provided in K.S.A. 44-511 and
amendments thereto, per week.
The payment of compensation for permanent total
disability shall continue for the duration of such disability,
subject to
review and modification as provided in K.S.A. 44-528 and amendments
thereto.
(2) Permanent total disability exists when the employee, on account
of the injury, has been rendered
completely and permanently incapable of
engaging in any type of substantial and gainful employment.
Loss of both
eyes, both hands, both arms, both feet, or both legs, or any combination
thereof, in the absence of proof to the contrary, shall
constitute
a
permanent total disability. Substantially total paralysis, or incurable
imbecility or insanity, resulting from injury independent of all other
causes, shall constitute permanent total disability. In all other cases
permanent total disability shall be determined in accordance with the
facts.
(b) (1) Where temporary total disability results from the injury, no
compensation shall be paid during the first week of disability, except that
provided in K.S.A. 44-510h and 44-510i and amendments
thereto, unless the temporary total
disability exists for three consecutive weeks, in which case compensation shall
be paid for the first week of such disability. Thereafter weekly payments shall
be made during such temporary total disability, in a sum equal to 66 2/3%
of
the average gross weekly wage of the injured employee, computed as provided in
K.S.A. 44-511 and amendments thereto, but in no case less than $25 per week nor
more than the dollar amount nearest to 75% of the state's average weekly wage,
determined as provided in K.S.A. 44-511 and amendments thereto, per week.
(2) Temporary total disability exists when the employee, on account
of the injury, has been rendered completely and temporarily incapable of
engaging in any type of substantial and gainful employment. A release issued by
a health care provider with temporary medical limitations for an employee may
or may not be determinative of the employee's actual ability to be engaged in
any type of substantial and gainful employment, except
that temporary total disability compensation shall not be awarded unless the
opinion of the authorized treating health care provider is shown to be based on
an assessment of the employee's actual job duties with the employer, with or
without accommodation.
(3) Where no award has been entered,
a return by the
employee to any type of substantial and gainful employment or, subject to
the provisions of subsection (b)(2), a release by a treating health care
provider or examining health care provider, who is not regularly employed or
retained by the employer, to return to any type of substantial and gainful
employment, shall suspend the employee's right to the payment of temporary
total disability compensation, but shall not affect any right the employee may
have to compensation for partial disability in accordance with K.S.A. 44-510d
and 44-510e and amendments thereto.
(c) When any permanent total disability or temporary total disability is
followed by partial disability, compensation shall be paid as provided in
K.S.A. 44-510d and 44-510e and amendments thereto.
History: L. 1968, ch. 102, § 5;
L. 1970, ch. 190, § 5;
L. 1974, ch. 203, § 12;
L. 1979, ch. 156, § 6;
L. 1987, ch. 187, § 5;
L. 1990, ch. 183, § 3;
L. 1993, ch. 286, § 32;
L. 2000, ch. 160, § 8; July 1.
(1) For loss of a thumb, 60 weeks.
(2) For the loss of a first finger, commonly called the index
finger, 37 weeks.
(3) For the loss of a second finger, 30 weeks.
(4) For the loss of a third finger, 20 weeks.
(5) For the loss of a fourth finger, commonly called the little
finger, 15 weeks.
(6) Loss of the first phalange of the thumb or of any finger shall
be considered to be equal to the loss of 1/2 of such thumb or
finger, and the compensation shall be 1/2 of the amount
specified above. The loss of the first phalange and any part of the
second phalange of any finger, which includes the loss of any part of
the bone of such second phalange, shall be considered to be equal to the
loss of 2/3 of such finger and the compensation shall be 2/3 of
the amount specified above. The loss of the first
phalange and any part of the second phalange of a thumb which includes
the loss of any part of the bone of such second phalange, shall be
considered to be equal to the loss of the entire thumb. The loss of the
first and second phalanges and any part of the third proximal phalange
of any finger, shall be considered as the loss of the entire finger.
Amputation through the joint shall be considered a loss to the next
higher schedule.
(7) For the loss of a great toe, 30 weeks.
(8) For the loss of any toe other than the great toe,
10 weeks.
(9) The loss of the first phalange of any toe shall be considered to
be equal to the loss of 1/2 of such toe and the compensation
shall be 1/2 of the amount above specified.
(10) The loss of more than one phalange of a toe shall be considered
to be equal to the loss of the entire toe.
(11) For the loss of a hand, 150 weeks.
(12) For the loss of a forearm, 200 weeks.
(13) For the loss of an arm,
excluding the shoulder joint, shoulder girdle, shoulder musculature or any
other shoulder structures,
210 weeks, and for the loss of an arm, including the shoulder joint, shoulder
girdle, shoulder musculature or any other shoulder structures, 225 weeks.
(14) For the loss of a foot, 125 weeks.
(15) For the loss of a lower leg, 190 weeks.
(16) For the loss of a leg, 200 weeks.
(17) For the loss of an eye, or the complete loss of the sight
thereof, 120 weeks.
(18) Amputation or severance below the wrist shall be considered as
the loss of a hand. Amputation at the wrist and below the elbow shall be
considered as the loss of the forearm. Amputation at or above the elbow
shall be considered loss of the arm. Amputation below the ankle shall be
considered loss of the foot. Amputation at the ankle and below the knee
shall be considered as loss of the lower leg. Amputation at or above the
knee shall be considered as loss of the leg.
(19) For the complete loss of hearing of both ears, 110 weeks.
(20) For the complete loss of hearing of one ear, 30 weeks.
(21) Permanent loss of the use of a finger, thumb, hand, shoulder, arm,
forearm, toe, foot, leg or lower leg or the permanent loss of the sight
of an eye or the hearing of an ear, shall be equivalent to the loss
thereof. For the permanent partial loss of the use of a finger, thumb,
hand, shoulder, arm, toe, foot or leg, or the sight of an eye or the
hearing of an
ear, compensation shall be paid as provided for in K.S.A.
44-510c and amendments thereto, per week during that proportion of the
number of weeks in the foregoing schedule provided for the loss of such
finger, thumb, hand, shoulder, arm, toe, foot or leg, or the sight of an
eye or
the hearing of an ear, which partial loss thereof bears to the total
loss of a finger, thumb, hand, shoulder, arm, toe, foot or leg, or the
sight of an
eye or the hearing of an ear; but in no event shall the compensation
payable hereunder for such partial loss exceed the compensation payable
under the schedule for the total loss of such finger, thumb, hand, arm,
toe, foot or leg, or the sight of an eye or the hearing of an ear,
exclusive of the healing period. As used in this paragraph (21), "shoulder"
means the shoulder joint, shoulder girdle, shoulder musculature or any other
shoulder structures.
(22) For traumatic hernia, compensation shall be limited to the
compensation under K.S.A. 44-510h and 44-510i and amendments
thereto,
compensation for temporary total disability during such period of time
as such employee is actually unable to work on account of such hernia,
and, in the event such hernia is inoperable, weekly compensation during
12 weeks, except that, in the event that such hernia is
operable, the unreasonable refusal of the employee to submit to an
operation for surgical repair of such hernia shall deprive such employee
of any benefits under the workers compensation act.
(23) Loss of a scheduled member shall be based upon permanent impairment
of
function to the scheduled member as determined using
the fourth edition of the American Medical Association Guides to the
Evaluation
of Permanent Impairment, if the impairment is contained therein.
(b) Whenever the employee is entitled to compensation for a specific
injury under the foregoing schedule, the same shall be
exclusive of all
other compensation except the benefits provided in K.S.A. 44-510h and 44-510i
and amendments thereto, and no additional
compensation shall be
allowable or payable for any temporary or permanent, partial
or total disability,
except that the director, in proper cases, may allow additional
compensation during the actual healing period, following
amputation. The healing period shall not be
more than 10% of the total period allowed for the
scheduled injury in question nor in any event for longer than 15 weeks.
The return of the employee to the
employee's usual occupation
shall terminate the healing period.
History: L. 1968, ch. 102, § 6;
L. 1970, ch. 190, § 6;
L. 1974, ch. 203, § 13;
L. 1975, ch. 260, § 1;
L. 1979, ch. 156, § 7;
L. 1987, ch. 187, § 6;
L. 1993, ch. 286, § 33;
L. 1996, ch. 79, § 5;
L. 2000, ch. 160, § 9; July 1.
(1) Find the payment rate which shall be the lesser of (A) the amount
determined by
multiplying the average gross weekly wage of the worker prior to such
injury by 66 2/3% or (B) the maximum provided in K.S.A. 44-510c and
amendments thereto;
(2) find the number of
disability weeks payable by subtracting from 415 weeks the total number of
weeks of
temporary total disability compensation was paid, excluding the first 15 weeks
of temporary total disability compensation that was paid, and multiplying the
remainder by
the percentage of permanent partial general disability as
determined under this subsection (a); and
(3) multiply the number of disability weeks determined in paragraph (2) of
this subsection (a) by the payment rate determined in paragraph (1) of this
subsection (a).
The resulting award shall be paid for the number of disability weeks at the
full payment rate until fully paid or modified. If there is an award of
permanent disability as a result of the compensable injury, there shall be a
presumption that
disability existed immediately after such injury. In any case of permanent
partial disability under this section, the employee shall be paid
compensation for not to exceed 415 weeks following
the date of such injury, subject to review and modification as provided in
K.S.A. 44-528 and amendments thereto.
(b) If an employee has received an injury for which
compensation is being
paid, and the employee's death is caused by other and
independent causes, any
payment of compensation already due the employee at the time of death and then
unpaid shall be paid to the employee's dependents directly or
to the employee's legal
representatives if the employee left no dependent, but the
liability of the employer
for the payments of compensation not yet due at the time of the death of
such employee shall cease and be abrogated by the
employee's death.
(c) The total amount of compensation that may be allowed or awarded an
injured employee for all injuries received in any one accident shall in no
event exceed the compensation which would be payable under the
workers compensation act for 100% permanent total
disability resulting from such
accident.
(d) Where a minor employee or a minor employee's
dependents are entitled to compensation under
the workers compensation act, such compensation shall be
exclusive of all
other remedies or causes of action for such injury or death, and no claim
or cause of action against the employer shall inure or accrue to or exist
in favor of the parent or parents of such minor employee on account of any
damage resulting to such parent or parents on account of the loss of
earnings or loss of service of such minor employee.
(e) In any case of injury to or death of an employee, where
the employee or the employee's dependents are entitled to
compensation under
the workers compensation act, such compensation shall be
exclusive of all
other remedies or causes of action for such injury or death, and no claim
or action shall inure, accrue to or exist in favor of the surviving
spouse
or any relative or next of kin of such employee against such
employer on account of any damage resulting to such surviving
spouse or
any relative or next of kin on account of the loss of earnings, services,
or society of such employee or on any other account resulting from
or growing out of the injury or death of such employee.
History: L. 1968, ch. 102, § 7; L. 1970, ch. 190, § 4; L. 1974,
ch. 203, § 14;
L. 1987, ch. 187, § 7;
L. 1993, ch. 286, § 34;
L. 1996, ch. 79, § 6; Apr. 4.
(1) For permanent total disability, including temporary total,
temporary partial, permanent partial and temporary partial disability
payments paid or due, $125,000 for an
injury or any aggravation thereof;
(2) for temporary total disability, including any prior permanent
total, permanent partial or temporary partial disability payments paid
or due, $100,000 for an injury or any
aggravation thereof;
(3) subject to the provisions of subsection (a)(4), for permanent or
temporary partial disability, including any
prior temporary total, permanent total, temporary partial, or permanent
partial disability payments paid or due, $100,000 for an injury or any
aggravation thereof; and
(4) for permanent partial disability, where functional impairment only is
awarded, $50,000 for an injury or aggravation thereof.
(b) If an employer shall voluntarily pay unearned wages to an
employee in addition to and in excess of any amount of disability
benefits to which the employee is entitled under the
workers compensation act, the excess amount paid shall be allowed as a credit
to
the employer in any final lump-sum settlement, or may be withheld from
the employee's wages in weekly amounts the same as the weekly amount or
amounts paid in excess of compensation due, but not until and unless the
employee's average gross weekly wage for the calendar year exceeds 125%
of the state's average weekly wage,
determined as provided in K.S.A. 44-511 and amendments
thereto. The provisions of this subsection shall not apply to any
employer who pays any such unearned wages to an employee pursuant to an
agreement between the employer and employee or labor organization to
which the employee belongs.
History: L. 1974, ch. 203, § 16; L. 1977, ch. 176, § 1; L. 1979,
ch. 156, § 8;
L. 1987, ch. 187, § 8;
L. 1993, ch. 286, § 35; July 1.
(b) The director shall approve as qualified such individuals,
facilities,
institutions, agencies and employer programs as the director
finds are
capable of rendering competent vocational rehabilitation services and
which are referred to in this section as "providers." The
director shall continuously monitor the quality and timeliness of the services
of providers found qualified by the director to provide vocational
rehabilitation services. No such provider shall be
approved as
qualified unless
the provider is
equipped
with such physical facilities as the director deems necessary and is
staffed with personnel specifically trained and qualified, as the director
deems necessary,
to provide vocational rehabilitation services.
If the employer or the employer's insurance carrier do not agree to provide
vocational rehabilitation services, the employee may request the vocational
rehabilitation administrator to refer the employee to an appropriate provider
for vocational rehabilitation services to be provided at the employee's
expense.
Referrals for vocational
rehabilitation services shall not be made to a provider in which
the employer, the employer's insurance carrier or the claims
adjusting company handling the claim has a demonstrable financial
interest,
unless a full, written disclosure of the demonstrable financial interest has
been submitted
in writing by the provider to the employer, the employer's insurance carrier,
any claims adjusting company handling the claim, the employee and the
vocational rehabilitation administrator.
Medical management or medical
monitoring services
shall not be considered to be providing vocational
rehabilitation services and the costs thereof shall not be
considered as the payment of workers compensation benefits nor
medical benefits.
History: L. 1974, ch. 203, § 17; L. 1976, ch. 370, § 19; L.
1980, ch. 146, § 2; L. 1986, ch. 318, § 54; L. 1987, ch. 189, § 1; L.
1989, ch. 149, § 1; L. 1990, ch. 185, § 1; L. 1990, ch. 183, § 4;
L. 1991, ch. 144, § 4;
L. 1993, ch. 286, § 36; July 1.
(b) (1) If the director finds, upon application of an injured employee,
that the services of the
health care provider furnished as provided in subsection (a) and rendered on
behalf of the injured
employee are not satisfactory, the director may authorize the appointment of
some other health
care provider. In any such case, the employer shall submit the names of three
health care
providers who, if possible given the availability of local health care
providers, are not associated in practice together. The injured employee
may select one from
the list who shall be the authorized treating health care provider. If the
injured employee is
unable to obtain satisfactory services from any of the health care providers
submitted by the
employer under this paragraph, either party or both parties may request the
director to select a
treating health care provider.
(2) Without application or approval, an employee may consult a health care
provider of the
employee's choice for the purpose of examination, diagnosis or treatment, but
the employer shall
only be liable for the fees and charges of such health care provider up to a
total amount of $500.
The amount allowed for such examination, diagnosis or treatment shall not be
used to obtain a
functional impairment rating. Any medical opinion obtained in violation of this
prohibition shall
not be admissible in any claim proceedings under the workers compensation act.
(c) An injured employee whose injury or disability has been
established under the workers
compensation act may rely, if done in good faith, solely or partially on
treatment by prayer or
spiritual means in accordance with the tenets of practice of a church or
religious denomination
without suffering a loss of benefits subject to the following conditions:
(1) The employer or the employer's insurance carrier agrees thereto in
writing either before
or after the injury;
(2) the employee submits to all
physical examinations required by the workers
compensation act;
(3) the cost of such treatment shall
be paid by the employee unless the employer or
insurance carrier agrees to make such payment;
(4) the injured employee shall be
entitled only to benefits that would reasonably have been
expected had such employee undergone medical or surgical treatment; and
(5) the employer or insurance carrier that made an agreement under paragraph
(1) or (3) of
this subsection may withdraw from the agreement on 10 days' written notice.
(d) In any employment to which the workers compensation act applies, the
employer shall be
liable to each employee who is employed as a duly authorized law enforcement
officer,
firefighter, driver of an
ambulance as defined in subsection (b) of K.S.A. 65-6112, and amendments
thereto, an ambulance attendant as defined in subsection (d) of K.S.A. 65-6112,
and amendments thereto, or a member of a regional emergency medical response
team as provided in K.S.A. 48-928, and amendments thereto, including
any person who is
serving on a volunteer basis in such capacity, for all reasonable and necessary
preventive medical
care and treatment for hepatitis to which such employee is exposed under
circumstances arising
out of and in the course of employment.
History: L. 2000, ch. 160, § 1;
L. 2002, ch. 149, § 3; July 1.
(b) The medical administrator, subject to the direction of the
director, shall have the duty of
overseeing the providing of health care services to employees in accordance
with the provisions
of the workers compensation act, including but not limited to:
(1) Preparing, with the assistance of the advisory panel, the fee schedule
for health care
services as set forth in this section;
(2) developing, with the
assistance of the advisory panel, the utilization review program
for health care services as set forth in this section;
(3) developing a system for
collecting and analyzing data on expenditures for health care
services by each type of provider under the workers compensation act; and
(4) carrying out such other duties as may be delegated or directed by the
director or
secretary.
(c) The director shall prepare and adopt rules and regulations
which establish a schedule
of maximum fees for medical, surgical, hospital, dental, nursing, vocational
rehabilitation or any
other treatment or services provided or ordered by health care providers and
rendered to
employees under the workers compensation act
and procedures for
appeals and review of disputed charges or services
rendered by health care providers under this section;
(1) The schedule of maximum fees shall be reasonable, shall promote health
care cost
containment and efficiency with respect to the workers compensation health care
delivery
system, and shall be sufficient to ensure availability of such reasonably
necessary treatment, care
and attendance to each injured employee to cure and relieve the employee from
the effects of the
injury. The schedule shall include provisions and review procedures for
exceptional cases
involving extraordinary medical procedures or circumstances and shall include
costs and charges
for medical records and testimony.
(2) In every case, all fees, transportation costs, charges under this section
and all costs
and charges for medical records and testimony shall be subject to approval by
the director and
shall be limited to such as are fair, reasonable and necessary. The schedule of
maximum fees
shall be revised as necessary at least every two years by the director to
assure that the schedule is
current, reasonable and fair.
(3) Any contract or any billing or charge which any health care provider,
vocational
rehabilitation service provider, hospital, person or institution enters into
with or makes to any
patient for services rendered in connection with injuries covered by the
workers compensation
act or the fee schedule adopted under this section, which is or may be in
excess of or not in
accordance with such act or fee schedule, is unlawful, void and unenforceable
as a debt.
(d) There is hereby created an advisory panel to assist the director in
establishing a
schedule of maximum fees as required by this section. The panel shall consist
of the
commissioner of insurance and 11 members appointed as
follows: One
person shall be
appointed by the Kansas medical society; one member shall be appointed by
the Kansas
association of osteopathic medicine; one member shall be appointed by the
Kansas hospital
association; one member shall be appointed by the Kansas chiropractic
association; one member shall be appointed by the Kansas physical therapy
association, one member shall be appointed by the Kansas occupational therapy
association and
five members shall be appointed by the secretary. Of the
members appointed by
the
secretary, two shall
be representatives of employers recommended to
the secretary by the Kansas
chamber of
commerce and industry; two shall be
representatives of employees recommended
to the secretary
by the Kansas AFL-CIO; and one shall be a representative of providers of
vocational
rehabilitation services pursuant to K.S.A. 44-510g and amendments thereto. Each
appointed
member shall be appointed for a term of office of two years which shall
commence on July 1 of
the year of appointment. Members of the advisory panel attending meetings of
the advisory
panel, or attending a subcommittee of the advisory panel authorized by the
advisory panel, shall
be paid subsistence allowances, mileage and other expenses as provided in
K.S.A. 75-3223 and
amendments thereto.
(e) All fees and other charges paid for