Printable Format44-510c. Compensation for permanent total and temporary total disabilities. Where death does not result from the injury, compensation shall be paid as provided in K.S.A. 44-510h and 44-510i, and amendments thereto, and as follows:
(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 662/3% of the average weekly wage of the injured employee, computed as provided in K.S.A. 44-511, and amendments thereto, but in no case less than $50 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) (A) Permanent total disability exists when the employee, on account of the injury:
(i) Has been rendered completely and permanently incapable of engaging in any type of substantial and gainful employment;
(ii) suffers impairment as established by competent medical evidence and based on the 6th edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein; and
(iii) suffers a percentage of functional impairment determined to be caused solely by the injury that is equal to or exceeds 10% to the body as a whole or the overall functional impairment is equal to or exceeds 15% if there is a preexisting functional impairment.
(B) Expert evidence shall be required to prove permanent total disability.
(3) An injured worker shall not be eligible to receive more than one award of workers compensation permanent total disability in such worker's lifetime.
(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 662/3% 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 $50 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) (A) 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 healthcare provider with temporary restrictions 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, provided that if there is an authorized treating physician, such physician's opinion regarding the employee's work status shall be presumed to be determinative.
(B) Where the employee remains employed with the employer against whom benefits are sought, an employee shall be entitled to temporary total disability benefits if the authorized treating physician imposed temporary restrictions as a result of the work injury which the employer cannot accommodate. A refusal by the employee of accommodated work within the temporary restrictions imposed by the authorized treating physician shall result in a rebuttable presumption that the employee is ineligible to receive temporary total disability benefits.
(C) If the employee has been terminated for cause or voluntarily resigns following a compensable injury, the employer shall not be liable for temporary total disability benefits if the employer could have accommodated the temporary restrictions imposed by the authorized treating physician but for the employee's separation from employment.
(3) Where no award has been entered, a return by the employee 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.
(4) An employee shall not be entitled to receive temporary total disability benefits for those weeks during which the employee is also receiving unemployment benefits.
(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; L. 2011, ch. 55, § 7; L. 2024, ch. 27, § 5; July 1.
Law Review and Bar Journal References:
Increase in maximum weekly benefit mentioned in discussion of changes in Workmen's Compensation Act, Robert F. Bennett, 39 J.B.A.K. 107, 195 (1970).
Accelerated payment, Sheila R. Miller, 18 K.L.R. 940, 941 (1970).
"Potential Federalization of State Workmen's Compensation Law—The Kansas Response," James C. Wright and James P. Rankin, 15 W.L.J. 244, 258, 259, 260, 265, 267 (1976).
"Workmen's Compensation—An Introduction to Changes in the Kansas Statute," Bryce B. Moore, 24 K.L.R. 603, 604 (1976).
"Workmen's Compensation—Major Changes in Employments Covered, Benefits, Defenses, Offsets, and Other Changes," Alvin D. Herrington, 24 K.L.R. 611, 612, 614, 617 (1976).
"Workmen's Compensation—Permanent Partial Disability Benefits—The Dilemma," George E. McCullough, 24 K.L.R. 627, 629, 635 (1976).
"Survey of Kansas Law: Workers' Compensation," William A. Kelly, 27 K.L.R. 377, 379 (1979).
"Permanent, Total and Partial Disability Under the Kansas Workmen's Compensation Act," Holly Nielson Keaton, 29 K.L.R. 121, 122, 129 (1980).
"Major Legislative Changes in Workers' Compensation Law," Gary L. Jordan, 3 J.K.T.L.A. No. 1, 14, 15 (1979).
"Determining Compensation Due Under the Kansas Workmen's Compensation Act," Bryce B. Moore, 52 J.K.B.A. 214, 215, 216, 218 (1983).
"Worker Compensation; Attorney's Fees Under K.S.A. 44-536a," Gary L. Jordan, Vol. 6, No. 6, J.K.T.L.A. 21 (1983).
"Settlements and Verdicts," Robin Maxon, Vol. XIV, No. 4, J.K.T.L.A. 25 (1991).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XV, No. 1, Review p. 3 (1991).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVII, No. 6, Work. Comp. Review Section, 1, 5 (1994).
"Tort Action Or Workers' Compensation Claim? Private Animosity Defeats The Exclusive Remedy Rule," Frank D. Taff, J.K.T.L.A. Vol. XVIII, No. 6, 27, 28 (1995).
"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 3, Review Section, 1, 5 (1996).
"Proving Work Disability Under the 1993 Act," Shannon S. Krysl, J.K.T.L.A. Vol. XIX, No. 3, 21, 22 (1996).
"Calculating Permanent Partial Disability Benefits Under Wheeler v. The Boeing Company," Jan L. Fisher, J.K.T.L.A. Vol. XXII, No. 6, 13 (1999).
"Y2K: An active year for judicial legislation," Paul T. Davis, 69 J.K.B.A. No. 7, 12 (2000).
"Workers Compensation Review," Patrick R. Nichols, J.K.T.L.A. Vol. 24, No. 3, 28 (2001).
"Claims Under the Kansas Workers Compensation Act for Injuries Resulting in Delayed Death," Timothy A. Short, J.K.T.L.A. Vol. 26, No. 5, 16 (2003).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 27, No. 1, 16, 17 (2003).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 29, No. 4, 15 (2006).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 30, No. 5, 15 (2007).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 31, No. 1, 23 (2007).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.A.J. Vol. 31, No. 2, 16 (2007).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.A.J. Vol. 33, No. 2, 15 (2009).
"Workers' Compensation Benefits Go From Bad to Worse: The Kansas Supreme Court Eliminates the Parallel Injury Rule [Casco v. Armor Swift-Eckrich, 154 P.3d 494 (Kan. 2007)]," Brett M. Busch, 48 W.L.J. 705 (2009).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.A.J. Vol. 34, No. 2, 18 (2010).
"A New Guiding Principle: The Kansas Supreme Court's Trend to Review and Reconsider Legal Precedent," Ryan Farley and Nicole Romine, 77 J.K.B.A. No. 8, 16 (2011).
"Workers Compensation Review," Joseph Seiwert, Kathleen J. Cossairt, Jan Fisher, Jon W. Stapleton, Jr., Stephanie J. Wilson, and David H. Ferris, 36 J.K.A.J. No. 6 (2013).
Attorney General's Opinions:
Workers compensation; attorney fees; separation of powers. 96-30.
CASE ANNOTATIONS
For cases concerning subject matter of this section prior to its enactment, see the case annotations to K.S.A. 44-510 under the following index heading: "Injury Not Fatal."
1. Section requires determination of when total temporary disability began (dissenting opinion). Berger v. Hahner, Foreman & Cale, Inc., 211 Kan. 541, 552, 506 P.2d 1175.
2. Original award hereunder modified pursuant to K.S.A. 44-528 cannot thereafter be enforced. Brown v. Goodyear Tire and Rubber Co., 211 Kan. 742, 743, 508 P.2d 492.
3. No competent, substantial evidence to support reduction of award of permanent total disability by court; reversed. Hall v. O'Neil Tank Company, 217 Kan. 632, 538 P.2d 965.
4. No error in compensation award allowed hereunder from unscheduled secondary injury resulting from scheduled injury previously incurred. Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 202, 547 P.2d 751.
5. Substantial evidence supporting award of permanent total disability; not limited by K.S.A. 44-510d. Hardman v. City of Iola, 219 Kan. 840, 841, 842, 846, 549 P.2d 1013.
6. Award of permanent partial disability remanded to award of total permanent disability; sufficiency of evidence. Reichuber v. Cook Well Servicing, 220 Kan. 93, 551 P.2d 810.
7. Mentioned; award for partial loss of use of scheduled member based on functional disability affirmed. Gross v. Herb Lungren Chevrolet, Inc., 220 Kan. 585, 587, 552 P.2d 1360.
8. Referred to in holding K.S.A. 44-510e applicable to compensation rates for occupational diseases. Schubert v. Peerless Products, Inc., 223 Kan. 288, 293, 573 P.2d 1009.
9. Cited in reviewing factors involved in computing compensation. Horton v. Fleming Co., 3 Kan. App. 2d 121, 124, 590 P.2d 594.
10. Construed; worker permanently unable to perform any type of substantial employment is permanently totally disabled. Grounds v. Triple J Constr. Co., 4 Kan. App. 2d 325, 327, 328, 329, 330, 606 P.2d 484.
11. Apportionment of disability can be upheld when apportionment not based on specific percentages of disability established by medical evidence. Razo v. Erman Corp., 228 Kan. 491, 492, 496, 618 P.2d 1161.
12. Awards of temporary total and partial disability discussed and distinguished from permanent total and partial disability awards. Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 443, 625 P.2d 453.
13. Maximum recovery and medical stability are key factors in determining time demarcation between temporary and permanent disability. Rose v. Thornton & Florence Electric Co., 4 Kan. App. 2d 669, 671, 609 P.2d 1180.
14. Award of partial disability following rehabilitation program must reflect extent worker's ability to perform work of same type and character being done when injured has been reduced. Antwi v. C-E Industrial Group, 5 Kan. App. 2d 53, 59, 61, 612 P.2d 656.
15. Temporary total disability and demarcation between it and permanent disability discussed. Crabtree v. Beech Aircraft Corp., 5 Kan. App. 2d 440, 443, 445, 446, 447, 448, 449, 618 P.2d 849. Reversed: 229 Kan. 440, 625 P.2d 453.
16. Award of permanent partial loss supported by permanent sufficient evidence. Shank v. Mid-America Drilling Co., 5 Kan. App. 2d 618, 619, 621 P.2d 1019.
17. Absent express statutory authority, administrative agency cannot award compensatory or punitive damages. Woods v. Midwest Conveyor Co., 231 Kan. 763, 773, 648 P.2d 234 (1982).
18. Test of being completely and permanently unable to engage in substantial and gainful employment determines when disability is total. Ploutz v. Ell-Kan Co., 234 Kan. 953, 955, 676 P.2d 753 (1984).
19. Cited; lump-sum award upon remarriage under K.S.A. 44-510b(b) not weekly benefit. Lackey v. D & M Trucking, 9 Kan. App. 2d 679, 685, 687 P.2d 23 (1984).
20. Rule under (a)(2) applies, by analogy, to partial disability to both hands; K.S.A. 44-510e applicable, not K.S.A. 44-510d schedule. Downes v. IBP, Inc., 10 Kan. App. 2d 39, 40, 691 P.2d 42 (1984).
21. Brucellosis compensable as either occupational disease or accidental injury; no prejudice on notice where claim different from finding. Baldwin v. Jensen-Salsbery Laboratories, 10 Kan. App. 2d 673, 708 P.2d 556 (1985).
22. Cited; simultaneous aggravation to hands and arms resulting in work-related injuries compensable as percentage of disability to whole body (K.S.A. 44-510e). Murphy v. IBP, Inc., 240 Kan. 141, 143, 145, 727 P.2d 468 (1986).
23. Basis for measuring temporary total disability award contrasted with healing period and scheduled injury bases. Carter v. Koch Engineering, 12 Kan. App. 2d 74, 82, 735 P.2d 247 (1987).
24. Compensation limitations to loss of use of scheduled member (K.S.A. 44-510d) absent resulting injury to unscheduled area examined. Duncan v. City of Osage City, 13 Kan. App. 2d 364, 366, 770 P.2d 843 (1989).
25. Cited by dissent where majority found loss of services subject to subrogation in third-party action under act. McGranahan v. McGough, 15 Kan. App. 2d 24, 31, 802 P.2d 593 (1990).
26. Isolated injuries, compensation for separate scheduled injuries, simultaneous aggravation of prior injury not established. Rodriguez v. Henkle Drilling & Supply Co., 16 Kan. App. 2d 728, 731, 828 P.2d 1335 (1992).
27. Voluntary retirement as not affecting permanent partial general disability benefits noted. Brown v. City of Wichita, 17 Kan. App. 2d 72, 77, 832 P.2d 365 (1992).
28. Employer's nonliability noted where permanency of claimant's condition does not result from work-related injury. West-Mills v. Dillon Companies, Inc., 18 Kan. App. 2d 561, 567, 859 P.2d 392 (1993).
29. Whether evidence in record supports trial court's ruling that plaintiff is totally and permanently disabled examined. Wardlow v. ANR Freight Systems, 19 Kan. App. 2d 110, 112, 115, 869 P.2d 761 (1993).
30. Whether employee's claim for future wages was limited to period between discharge date disability benefits began examined. Hill v. IBP, Inc., 881 F. Supp. 521, 525 (1995).
31. Employee may not sue for retaliatory discharge because employer fails to modify job to accommodate injured employee. Griffin v. Dodge City Cooperative Exchange, 23 Kan. App. 2d 139, 144, 927 P.2d 958 (1996).
32. Compensation for injury for carpal tunnel syndrome to both hands and arms determined. Depew v. NCR Engineering & Mfg., 23 Kan. App. 2d 463, 466, 932 P.2d 461 (1997).
33. Employee was estopped from claiming she could perform essential functions of job without reasonable accommodation. Hiebert v. IFR Systems, Inc., 977 F. Supp. 1095, 1100 (1997).
34. Erroneous computation by ALJ of compensation award to claimant engaged in multiple employment constituted reversible error. Kinder v. Murray & Sons Constr. Co., 264 Kan. 484, 488, 957 P.2d 488 (1998).
35. Receipt of benefits under state's workers compensation statute not estoppel for pursuing ADA claim. Aldrich v. Boeing Co., 146 F.3d 1265 (1998).
36. Finding supported by substantial competent evidence will be upheld although record would have supported contrary findings. Watson v. Johnson Controls, Inc., 29 Kan. App. 2d 1078, 36 P.3d 323 (2001).
37. Obligation of employer does not extend to mental disorders or injuries unless such stems from physical injury. Nelson v. Capital City Moving & Storage, 32 Kan. App. 2d 566, 85 P.3d 728 (2004).
38. Prevention of wage-loss duplication not frustrated by allowing permanently disabled claimant to receive payments for duration of disability. McIntosh v. Sedgwick Co., 282 Kan. 636, 650, 147 P.3d 869 (2006).
39. Second injury rule discussed, rebuttable presumption injured worker permanently, totally disabled. Casco V. Armour Swift-Eckrich, 283 Kan. 508, 528, 529, 154 P.3d 494 (2007).
40. Cited; when two parallel scheduled injuries occur and presumption of permanent total disability rebutted award is calculated under K.S.A. 44-510d. Hall v. Dillon Companies, Inc., 286 Kan. 778, 786, 787, 189 P.3d 508 (2008).
41. Mentioned in case construing K.S.A. 44-501(c) and the reduction of award for preexisting functional impairment. Payne v. Boeing Co., 39 Kan. App. 2d 353, 356, 180 P.3d 590 (2008).
42. Mentioned in discussion of how compensation is computed differently depending on nature of disability; multiple scheduled injuries. Mitchell v. Petsmart, Inc., 41 Kan. App. 2d 523, 203 P.3d 76 (2009).
43. Lasting psychological effects of work-related injuries; permanent total disability award because of pain. Adams v. Ball's Food Stores, 41 Kan. App. 2d 799, 207 P.3d 261 (2009).
44. Person permanently and totally disabled is not required to seek work to preserve benefits. Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 212 P.3d 239 (2009).
45. Permanent-partial-disability award reduced for weeks claimant received temporary benefits. Barbury v. Duckwall Alco Stores, 42 Kan. App. 2d 693, 215 P.3d 643 (2009).
46. No authorized treating physician found the claimant experienced temporary total disability during the relevant time period under the facts of case. Messner v. Continental Plastic Container, 48 Kan. App. 2d 731, 298 P.3d 371 (2013).
47. The word "imbecile," which was removed from section in 2011, must be taken in the sense in which it was understood at the time the statute was enacted. Wimp v. American Highway Technology, 51 Kan. App. 2d 1073, 1082-84, 360 P.3d 1100 (2015).