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44-510e. Compensation for temporary or permanent partial general disabilities; whole body injury; extent of disability; computation thereof; functional impairment defined; termination upon death from other causes; limitations; other remedies excluded. (a) In case of whole body injury resulting in temporary or permanent partial general disability not covered by the schedule in K.S.A. 44-510d, and amendments thereto, the employee shall receive weekly compensation as determined in this subsection during the period of temporary or permanent partial general disability not exceeding a maximum of 415 weeks.

(1) Weekly compensation for temporary partial general disability shall be 662/3% of the difference between the average weekly wage that the employee was earning prior to the date of injury and the amount the employee is actually earning after such injury in any type of employment. In no case shall such weekly compensation exceed the maximum as provided for in K.S.A. 44-510c, and amendments thereto.

(2) (A) Permanent partial general disability exists when the employee is disabled in a manner which is partial in character and permanent in quality and which is not covered by the schedule in K.S.A. 44-510d, and amendments thereto. Compensation for permanent partial general disability shall also be paid as provided in this section where an injury results in:

(i) The loss of or loss of use of a shoulder, arm, forearm or hand of one upper extremity, combined with the loss of or loss of use of a shoulder, arm, forearm or hand of the other upper extremity;

(ii) the loss of or loss of use of a leg, lower leg or foot of one lower extremity, combined with the loss of or loss of use of a leg, lower leg or foot of the other lower extremity; or

(iii) the loss of or loss of use of both eyes.

(B) The extent of permanent partial general disability shall be the percentage of functional impairment the employee sustained on account of the injury as established by competent medical evidence and based on the fourth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein, until January 1, 2015, but for injuries occurring on and after January 1, 2015, based on the sixth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein.

(C) An employee may be eligible to receive permanent partial general disability compensation in excess of the percentage of functional impairment ("work disability") if:

(i) The percentage of functional impairment determined to be caused solely by the injury exceeds 7½% to the body as a whole or the overall functional impairment is equal to or exceeds 10% to the body as a whole in cases where there is preexisting functional impairment; and

(ii) the employee sustained a post-injury wage loss, as defined in subsection (a)(2)(E) of K.S.A. 44-510e, and amendments thereto, of at least 10% which is directly attributable to the work injury and not to other causes or factors.

In such cases, the extent of work disability is determined by averaging together the percentage of post-injury task loss demonstrated by the employee to be caused by the injury and the percentage of post-injury wage loss demonstrated by the employee to be caused by the injury.

(D) "Task loss" shall mean the percentage to which the employee, in the opinion of a licensed physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the five-year period preceding the injury. The permanent restrictions imposed by a licensed physician as a result of the work injury shall be used to determine those work tasks which the employee has lost the ability to perform. If the employee has preexisting permanent restrictions, any work tasks which the employee would have been deemed to have lost the ability to perform, had a task loss analysis been completed prior to the injury at issue, shall be excluded for the purposes of calculating the task loss which is directly attributable to the current injury.

(E) "Wage loss" shall mean the difference between the average weekly wage the employee was earning at the time of the injury and the average weekly wage the employee is capable of earning after the injury. The capability of a worker to earn post-injury wages shall be established based upon a consideration of all factors, including, but not limited to, the injured worker's age, physical capabilities, education and training, prior experience, and availability of jobs in the open labor market. The administrative law judge shall impute an appropriate post-injury average weekly wage based on such factors. Where the employee is engaged in post-injury employment for wages, there shall be a rebuttable presumption that the average weekly wage an injured worker is actually earning constitutes the post-injury average weekly wage that the employee is capable of earning. The presumption may be overcome by competent evidence.

(i) To establish post-injury wage loss, the employee must have the legal capacity to enter into a valid contract of employment. Wage loss caused by voluntary resignation or termination for cause shall in no way be construed to be caused by the injury.

(ii) The actual or projected weekly value of any employer-paid fringe benefits are to be included as part of the worker's post-injury average weekly wage and shall be added to the wage imputed by the administrative law judge pursuant to K.S.A. 44-510e(a)(2)(E), and amendments thereto.

(iii) The injured worker's refusal of accommodated employment within the worker's medical restrictions as established by the authorized treating physician and at a wage equal to 90% or more of the pre-injury average weekly wage shall result in a rebuttable presumption of no wage loss.

(F) The amount of compensation for whole body injury under this section shall be determined by multiplying the payment rate by the weeks payable. As used in this section: (1) The payment rate shall be the lesser of: (A) The amount determined by multiplying the average weekly wage of the worker prior to such injury by 662/3%; or (B) the maximum provided in K.S.A. 44-510c, and amendments thereto; (2) weeks payable shall be determined as follows: (A) Determine the weeks of temporary compensation paid by adding the amounts of temporary total and temporary partial disability compensation paid and dividing the sum by the payment rate above; (B) subtract from 415 weeks the total number of weeks of temporary compensation paid as determined in (F)(2)(A), excluding the first 15 such weeks; and (3) multiply the number of weeks as determined in (F)(2)(B) by the percentage of functional impairment pursuant to subsection (a)(2)(B) or the percentage of work disability pursuant to subsection (a)(2)(C), whichever is applicable.

(3) When an injured worker is eligible to receive an award of work disability, compensation is limited to the value of the work disability as calculated above. In no case shall functional impairment and work disability be awarded together.

The resulting award shall be paid for the number of disability weeks at the payment rate until fully paid or modified. 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. 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. Under no circumstances shall the period of permanent partial disability run concurrently with the period of temporary total or temporary partial disability.

(b) If an employee has sustained 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; L. 2011, ch. 55, § 9; L. 2013, ch. 104, § 9; April 25.

Law Review and Bar Journal References:

Changes in this section concerning the institution of proceedings for compensation mentioned, Robert F. Bennett, 39 J.B.A.K. 107, 195 (1970).

"Potential Federalization of State Workmen's Compensation Law—The Kansas Response," James C. Wright and James P. Rankin, 15 W.L.J. 244, 260 (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 (1976).

"Workmen's Compensation—Permanent Partial Disability Benefits—The Dilemma," George E. McCullough, 24 K.L.R. 627, 628, 629, 635 (1976).

"Employer Liability to Third Parties under the Workmen's Compensation and Comparative Negligence Statutes," Ruth C. Nelson, 26 K.L.R. 485, 486 (1978).

"Permanent, Total and Partial Disability Under the Kansas Workmen's Compensation Act," Holly Nielson Keaton, 29 K.L.R. 121, 133 (1980).

"Expansion of the Disability Rating Test," Gary L. Jordan, 1 J.K.T.L.A. No. 2, 17, 18 (1977).

"Disability Test Following Successful Rehabilitation," Gary L. Jordan, 4 J.K.T.L.A. No. 4, 26, 27 (1981).

"Determining Compensation Due Under the Kansas Workmen's Compensation Act," Bryce B. Moore, 52 J.K.B.A. 214, 221, 222 (1983).

"Workers' Compensation: Reconsidering the 'Right to Control' as the Exclusive Test for Employment Status," Catherine M. Foster, 23 W.L.J. 379, 384 (1984).

"Analysis of Bill Drafted by Interim Committee on 1984 Labor and Industry," Gary L. Jordan, Vol. VIII, No. 3, J.K.T.L.A. 11 (1984).

"Workers' Compensation—A Salute to the Trial Lawyers of Kansas," Gary L. Jordan, 10 J.K.T.L.A. No. 6, 9, 10 (1987).

"Workers' Compensation: A New Era," Tom Hammond, 11 J.K.T.L.A. No. 2, 6 (1987).

"Work Disability Under the New Law," Gary L. Jordan, 12 J.K.T.L.A. No. 3, 11 (1989).

"Permanent Partial Disability Under the Kansas Workers Compensation Act," Hon. Steven J. Howard, J.K.T.L.A., Vol. XIII, No. 4, 15-16 (1990).

"Workers' Compensation Review," Patrick Nichols, XIV J.K.T.L.A. No. 2, Review p. 1 (1990).

"Workers' Compensation Review, Patrick Nichols, XIV J.K.T.L.A. No. 3, Review p. 1 (1991).

"Workers' Compensation Review," Patrick Nichols, XIV J.K.T.L.A. No. 4, Review pp. 1, 4 (1991).

"Workers' Compensation Review," Patrick Nichols, XIV J.K.T.L.A. No. 5, 1, 3 (1991).

"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XIV, No. 6, Review p. 2 (1991).

"Workers Compensation: Narrowing the Test for Determining Permanent Partial General Disability Under the Kansas Workers Compensation Act [ Hughes v. Inland Container Corp ., 247 Kan. 407, 799 P.2d 1011 (1990)]," Lowell B. Meeks, 31 W.L.J. 380, 383, 385 (1992).

"Workers Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XV, No. 6, Special section, 1, 3 (1992).

"Workers Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVI, No. 1, Special section, 2 (1992).

"An Overview of the 1993 Amendments to the Kansas Workers Compensation Act," David J. Rebein, 62 J.K.B.A. No. 5, 30, 33, 34 (1993).

"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 3, Work. Comp. Review Section, 1, 2, 6, 8 (1995).

"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 4, Work. Comp. Review Section, 1, 6 (1995).

"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 1, Review Section, 1, 2, 5, 7 (1995).

"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 3, Review Section, 1, 2, 5, 10 (1996).

"Proving Work Disability Under the 1993 Act," Shannon S. Krysl, J.K.T.L.A. Vol. XIX, No. 3, 21 (1996).

"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 4, Review Section, 3 (1996).

"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 5, Review Section, 1, 2, 5, 10, 11 (1996).

"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 6, Review Section, 3, 6 (1996).

"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 1, Review Section, 4 (1996).

"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 3, Review Section, 27 (1997).

"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 5, Review Section, 32 (1997).

"Combatting the Preexisting Impairment Defense," Kendra L. Walker, J.K.T.L.A. Vol. XX, No. 6, 16 (1997).

"Workers Compensation Review," J.K.T.L.A. Vol. XX No. 6, Review Section, 28 (1997).

"Workers Compensation Review," J.K.T.L.A. Vol. XXI, No. 2, Review Section, 21, 27, 28 (1997).

"Workers Compensation Law: Constitutionality of the 1993 Kansas Workers Compensation Act," Nicole M. Zomberg, 37 W.L.J. 829 (1998).

"Workers Compensation Review," J.K.T.L.A. Vol. XXI, No. 3, Review Section, 23 (1998).

"Workers Compensation Review," J.K.T.L.A. Vol. XXI, No. 4, Review Section, 32 (1998).

"Workers Compensation Review," J.K.T.L.A. Vol. XXII, No. 1, 21 (1998).

"Workers Compensation Review," J.K.T.L.A. Vol. XXII, No. 4, 26 (1999).

"Calculating Permanent Partial Disability Benefits Under Wheeler v. The Boeing Company ," Jan L. Fisher, J.K.T.L.A. Vol. XXII, No. 6, 13, 14, 15 (1999).

"Workers Compensation Review," J.K.T.L.A. Vol. XXII, No. 6, 21 (1999).

"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 25, No. 4, 22 (2002).

"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 26, No. 4, 26 (2003).

"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. 26, No. 5, 18 (2003).

"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 27, No. 1, 16, 17 (2003).

"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 27, No. 2, 21 (2003).

"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 27, No. 4, 18 (2004).

"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 27, No. 3, 25 (2004).

"Practicalities of Handling a Kansas Occupational Disease Case," Kelly W. Johnston, J.K.T.L.A. Vol. 27, No. 4, 6 (2004).

"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 29, No. 2, 24 (2005).

"Workers Compensation Review," Joseph Seiwert, J.K.T.L.A. Vol. 29, No. 4, 15 (2006).

"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 29, No. 5, 14 (2006).

"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 30, No. 1, 19 (2006).

"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 30, No. 2, 18 (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. 30, No. 6, 25 (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. 31, No. 4, 21 (2008).

"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. No. 3, 705 (2009).

"Workers Compensation Review," Joseph Seiwert, Editor, J.K.A.J. Vol. 33, No. 5, 20 (2010).

"Workers Compensation Review," Joseph Seiwert, Editor, J.K.A.J. Vol. 33, No. 6, 31 (2010).

"Workers Compensation Review," Joseph Seiwert, Editor, J.K.A.J. Vol. 34, No. 2, 18 (2010).

"Workers Compensation Review," Joseph Seiwert, Editor, J.K.A.J. Vol. 34, No. 3, 23 (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:

Employee benefits contribution fund; application to township officers. 85-171.

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 headings: "Non-Scheduled Disability"; "Miscellaneous Matters" (see subheads "Independent Cause of Death," "Previous Disability," "Maximum Time of Coverage" and "Exclusive Remedy").

1. Mentioned in determining sufficiency of evidence to support a scheduled injury. Brannum v. Spring Lakes Country Club, Inc., 207 Kan. 321, 322, 485 P.2d 226 (1971).

2. Upon second injury workman is entitled to compensation under section only when the effect of the two result in total permanent injury. Crouse v. Wallace Manufacturing Co., 207 Kan. 826, 828, 486 P.2d 1335 (1971).

3. 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.

4. Applied; functional disability as test for determining award for permanent partial disability (dissenting opinion). Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 199, 202, 558 P.2d 146.

5. Section applicable to occupational disease case; K.S.A. 44-510d inapplicable. Schubert v. Peerless Products, Inc., 223 Kan. 288, 293, 473 P.2d 1009.

6. Noted that time limit for application for hearing in K.S.A. 44-534 was formerly in this section. Childress v. Childress Painting Co., 3 Kan. App. 2d 135, 590 P.2d 1093. Reversed: 226 Kan. 251, 597 P.2d 637.

7. Time limitation now in K.S.A. 44-534 formerly in this section. Childress v. Childress Painting Co., 226 K.251, 252, 597 P.2d 637.

8. Construed; worker permanently unable to perform work of type and character performed at time of injury is permanently partiallly disabled. Grounds v. Triple J Constr. Co., 4 Kan. App. 2d 325, 328, 330, 606 P.2d 484.

9. Oral settlement agreement not submitted to and approved by director prior to claimant's death held compensation not yet due and therefore abrogated. Barncord v. Kansas Dept. of Transportation, 4 Kan. App. 2d 368, 369, 372, 374, 606 P.2d 501.

10. Apportionment of award between employer and workmen's compensation fund must take into account "work disability" and "functional disability" where both are involved. Razo v. Erman Corp., 4 Kan. App. 2d 473, 474, 608 P.2d 1025. Reversed: 228 Kan. 491, 618 P.2d 1161.

11. Award of partial disability following rehabilitation program under K.S.A. 44-510g 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, 57, 58, 60, 61, 612 P.2d 656.

12. General rules relating to appellate scope of review are reviewed and applied. Crabtree v. Beech Aircraft Corp. 5 Kan. App. 2d 440, 444, 445, 446, 447, 618 P.2d 849. Reversed: 229 Kan. 440, 625 P.2d 453.

13. 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).

14. Cited in holding administrative decision finding accidental injury where occupational disease claimed supported by substantial competent evidence. Bahr v. Iowa Beef Processors, Inc., 8 Kan. App. 2d 627, 631, 663 P.2d 1144 (1983).

15. Finding that claimant suffers permanent partial disability not inconsistent with finding claimant cannot return to job at time of injury. Ploutz v. Ell-Kan Co., 9 Kan. App. 2d 9, 14, 668 P.2d 196 (1983).

16. Compensation for partial loss of use of arm manifested by injury to body at other situs is scheduled injury, not permanent partial general disability. Fogle v. Sedgwick County, 9 Kan. App. 2d 129, 130, 673 P.2d 465 (1984).

17. Finding of permanent partial general disability not inconsistent with finding claimant cannot return to same job. Ploutz v. Ell-Kan Co., 234 Kan. 953, 955, 676 P.2d 753 (1984).

18. Situs of resulting disability, not situs of trauma, determines benefits under act. Fogle v. Sedgwick County, 235 Kan. 386, 680 P.2d 287 (1984).

19. Rule under K.S.A. 44-510c(a)(2) applies, by analogy, to partial disability to both hands; K.S.A. 44-510d inapplicable. Downes v. IBP, Inc., 10 Kan. App. 2d 39, 40, 691 P.2d 42 (1984).

20. Physiological capabilities lost from leg nerve transplant by skillful surgery to injured limb also compensable. Quinones v. MBPXL Corp., 10 Kan. App. 2d 284, 697 P.2d 891 (1985).

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. Test for determining permanent partial general disability iterated; pivotal question is, what portion of job can no longer be performed? Houston v. Kansas Highway Patrol, 238 Kan. 192, 194, 708 P.2d 533 (1985).

23. Though claimant may still engage in different gainful employment, 100% permanent partial disability finding may be proper. Bigger v. Kansas Dept. of Revenue, 11 Kan. App. 2d 108, 109, 715 P.2d 1038 (1986).

24. Cancellation under K.S.A. 44-528(b) for earning same or higher wages justified only if ability to engage in same type and character of work regained. Asay v. American Drywall, 11 Kan. App. 2d 122, 715 P.2d 421 (1986).

25. The situs of resulting disability, rather than situs of trauma, determines workers' compensation benefits available. Bryant v. Excel Corp., 239 Kan. 688, 692, 721 P.2d 579 (1986).

26. Methods used in quantifying extent of permanent partial general disability relative to claimant's job requirements examined. Johnson v. Kansas Neurological Institute, 240 Kan. 123, 129, 727 P.2d 912 (1986).

27. Simultaneous aggravation to hands and arms resulting in work-related injuries to both compensable as percentage of disability to body as a whole. Murphy v. IBP, Inc., 240 Kan. 141, 145, 727 P.2d 468 (1986).

28. Cited; effect of prior 100% permanent partial disability rating on second injury claim examined. Baxter v. L.T. Walls Constr. Co., 241 Kan. 588, 591, 738 P.2d 445 (1987).

29. Cited; evidence supporting 40% permanent partial disability to body as a whole examined. Ridgway v. Board of Ford County Comm'rs, 12 Kan. App. 2d 441 445, 748 P.2d 891 (1987).

30. Cited; award following claimant's oversight in filing claim after notice of second injury to respondent examined. Pyeatt v. Roadway Express, Inc., 243 Kan. 200, 208, 756 P.2d 438 (1988).

31. Proof of functional disability not a prerequisite for recovery hereunder. McLaughlin v. Excel Corp. 14 Kan. App. 2d 44, 47, 783 P.2d 348 (1989).

32. Statute inapplicable in apportioning lump-sum settlement between fund and insurer where two injuries suffered; computation formula outlined. Kansas Workers Compensation Fund v. W.F. Anderson Co., 14 Kan. App. 2d 755, 760, 798 P.2d 949 (1990).

33. 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).

34. Reasons for amendments effective July 1, 1987, stated; dual test to determine permanent partial general disability stated. Hughes v. Inland Container Corp., 247 Kan. 407, 413, 422, 789 P.2d 1011 (1990).

35. Nothing herein limits other qualified experts from rendering opinions on claimant's ability to perform work. Williams v. Beech Aircraft Corp., 15 Kan. App. 2d 685, 687, 815 P.2d 1113 (1991).

36. Determination of extent of permanent partial general disability; formula considered. Schad v. Hearthstone Nursing Center, 16 Kan. App. 2d 50, 816 P.2d 409 (1991).

37. 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).

38. Factors determining disability examined; voluntary retirement does not affect permanent partial general disability benefits. Brown v. City of Wichita, 17 Kan. App. 2d 72, 77, 832 P.2d 365 (1992).

39. Credit to be granted to workers compensation fund for overlapping disability payments examined. Miner v. M. Bruenger & Co., Inc., 17 Kan. App. 2d 185, 193, 836 P.2d 19 (1992).

40. Subsection (a) cited; "open labor market" defined. Scharfe v. Kansas State Univ., 18 Kan. App. 2d 103, 848 P.2d 994 (1992).

41. Whether physical and psychological injuries may be combined to determine permanent partial general disability examined. Adamson v. Davis Moore Datsun, Inc., 19 Kan. App. 2d 301, 309, 311, 868 P.2d 546 (1994).

42. Whether claimant who received comparable wage after injury overcame presumption of no work disability examined. Elliff v. Derr Constr. Co., 19 Kan. App. 2d 509, 510, 512, 875 P.2d 983 (1994).

43. Whether workers compensation board of review erred in determining carpal tunnel syndrome claimant's loss of wage examined. Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 223, 228, 232 885 P.2d 1261 (1994).

44. Whether injured worker's refusal to accept work at comparable pay allows worker to avoid no work disability presumption examined. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 282, 887 P.2d 140 (1994).

45. No work disability presumption may apply to a certain time period and be rebutted in a subsequent period. Lee v. Boeing Co., 21 Kan. App. 2d 365, 367, 899 P.2d 516 (1995).

46. Date of accident for micro-trauma injury was earlier than last day worked; disability computed under pre-1993 amendments. Condon v. Boeing Co., 21 Kan. App. 2d 580, 582, 903 P.2d 775 (1995).

47. Workers compensation board properly considered statutory factors in subsection (a) in awarding employee work disability. Guerrero v. Dold Foods, Inc., 22 Kan. App. 2d 53, 55, 913 P.2d 612 (1995).

48. Apparent conflict with K.S.A. 44-519 construed to allow admission of neutral medical report into evidence without supportive testimony. McKinney v. General Motors Corp., 22 Kan. App. 2d 768, 921 P.2d 257 (1996).

49. Workers compensation board holding that claimant suffered work-related injury supported by evidence. Bradford v. Boeing Military Airplanes, 22 Kan. App. 2d 868, 871, 924 P.2d 1263 (1996).

50. Workers compensation ALJ has discretion to assess costs of a neutral physician's examination to a party. Winters v. GNB Battery Technologies, 23 Kan. App. 2d 92, 97, 927 P.2d 512 (1996).

51. 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, 147, 151, 927 P.2d 958 (1996).

52. Compensation for injury for carpal tunnel syndrome to both hands and arms determined. Depew v. NCR Engineering & Mfg., 23 Kan. App. 2d 463, 468, 932 P.2d 461 (1997).

53. Workers compensation board committed reversible error in awarding compensation to carpal tunnel claimant for two separate scheduled injuries. Depew v. NCR Engineering & Manufacturing, 263 Kan. 15, 27, 947 P.2d 1 (1997).

54. K.A.R. 51-19-1 directly conflicts with subsection (d) of K.S.A. 44-528 and is held to be void. Ruddick v. Boeing Co., 263 Kan. 494, 495, 949 P.2d 1132 (1997).

55. Vocational expert could rely on medical reports of nontestifying physicians not introduced as evidence in proceeding. Roberts v. J.C. Penney Co., 23 Kan. App. 2d 789, 935 P.2d 1079 (1997).

56. Presumption of no work disability under previous version of statute applied where employee returned to unaccommodated job. Watkins v. Food Barn Stores, Inc., 23 Kan. App. 2d 837, 936 P.2d 294 (1997).

57. Prior statute's presumption of no work disability overcome where "feeble attempt" made to provide employee accommodating job. Tharp v. Eaton Corp., 23 Kan. App. 2d 895, 940 P.2d 66 (1997).

58. Finding whether good faith effort made to find appropriate employment required to determine appropriate procedure for wage calculation. Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 944 P.2d 179 (1997).

59. Method utilized by workers compensation board in apportioning functional impairment and work disability upheld as reasonable. Bohanan v. U.S.D. No. 260, 24 Kan. App. 2d 362, 367, 947 P.2d 440 (1997).

60. No loss of access to labor market attributable to work related injury will be credited if claimant fails to sustain burden of proof. Brobst v. Brighton Place North, 24 Kan. App. 2d 766, 778, 955 P.2d 1315 (1997).

61. Where claimant suffered injury and continued to work, date of injury was last day before work restrictions were implemented. Alberty v. Excel Corp., 24 Kan. App. 2d 678, 681, 951 P.2d 967 (1998).

62. Determination of wage earning capacity of claimant by workers compensation board reversed; issue regarding good faith effort to find work remanded. Cooper v. Mid-America Dairymen, 25 Kan. App. 2d 78, 80, 957 P.2d 1120 (1998).

63. Employee who refused accommodated position by claimant entitled to compensation based on stipulated impairment rating. Cabrera v. Casco, Inc., 25 Kan. App. 2d 169, 170, 959 P.2d 918 (1998).

64. Employee capable of accommodated work must attempt such work; refusal is sufficient to allow employee circumvention of subsection (a). Lowmaster v. Modine Mfg. Co., 25 Kan. App. 2d 215, 962 P.2d 1100 (1998).

65. Benefit calculation for employee whose permanent partial disability benefits change from work disability to functional impairment examined. Wheeler v. Boeing Co., 25 Kan. App. 2d 632, 633, 967 P.2d 1085 (1998).

66. Average weekly wage after injury to include weeks unemployed and earnings from another job. Edwards v. Klein Tools, Inc., 25 Kan. App. 2d 879, P.2d (1999).

67. Presumption of no work disability reevaluated when accommodated worker becomes unemployed. Niesz v. Bill's Dollar Stores, 26 Kan. App. 2d 737, 738, 993 P.2d 1246 (1999).

68. Employee did not make a good faith effort to find appropriate employment; final wage loss of 36%. Parsons v. Seaboard Farms, Inc., 27 Kan. App. 2d 843, 9 P.3d 591 (2000).

69. Economic conditions affecting employer not on the job injury caused worker's wages to be less than 90% of pre-injury gross average weekly wage. Hernandez v. Monfort, Inc., 30 Kan. App. 2d 309, 41 P.3d 886 (2002).

70. In calculating permanent partial general disability, work disability focuses on claimant's actual wage loss rather than on ability to earn wages. Sharp v. Custom Campers, Inc., 31 Kan. App. 2d 772, 74 P.3d 42 (2003).

71. Worker not entitled to work disability when later fired for poor job performance. Newman v. Kansas Enterprises, 31 Kan. App. 2d 929, 77 P.3d 492 (2003).

72. Section allows for aggregation of job tasks in determining an employee's task loss. Haywood v. Cessna Aircraft Co., 31 Kan. App. 2d 934, 79 P.3d 179 (2003).

73. Economic slowdown requiring less work may operate identically to an accommodated position in assessing whether there is a permanent partial disability. Tallman v. Case Corp., 31 Kan. App. 2d 1044, 77 P.3d 494 (2003).

74. Worker's refusal to undergo surgery for carpal tunnel syndrome was reasonable under facts of case. Martinez v. Excel Corp., 32 Kan. App. 2d 139, 79 P.3d 230 (2003).

75. Claimant suffered not only hernia but nerve damage; award of permanent partial disability was proper. Lozano v. Excel Corp., 32 Kan. App. 2d 191, 81 P.3d 447 (2003).

76. Findings of claimant's hepatitis C infection as job related and award of permanent partial disability compensation affirmed. Stutzman v. City of Lenexa, 33 Kan. App. 2d 160, 99 P.3d 145 (2004).

77. Statute does not distinguish between accommodated and unaccommodated employment in determining entitlement to benefits. Roskilly v. Boeing Co., 34 Kan. App. 2d 196, 116 P.3d 38 (2005).

78. Where no good faith effort to be reemployed, employer need not detail specifics of accommodated work available. Mahan v. Clarkson Constr. Co., 36 Kan. App. 2d 317, 321, 138 P.3d 790 (2006).

79. Wage loss not compensable based upon worker's self-imposed work restriction instead of physician's opinion. Graham v. Dokter Trucking Group, 36 Kan. App. 2d 521, 526, 141 P.3d 1192 (2006).

80. Discussed standards and evidence needed to determine if good faith effort to find appropriate work was made. Rash v. Heartland Cement Co., 37 Kan. App. 2d 175, 182, 154 P.3d 15 (2006).

81. Considered and applied. Edwards v. Boeing Co., 37 Kan. App. 2d 469, 154 P.3d 532 (2007).

82. Section requires employee's good faith effort to retain or find employment within employee's work restrictions. Deguillen v. Schwan's Food Manufacturing, Inc., 38 Kan. App. 2d 747, 751, 753, 172 P.3d 71 (2007).

83. Even if wage loss is increased by employee's loss of pre-injury job, there is no statutory requirement job loss be caused by injury. Stephen v. Phillips County, 38 Kan. App. 2d 988, 990, 996, 176 P.3d 197 (2008).

84. 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, 785, 787, 789, 189 P.3d 508 (2008).

85. 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).

86. Cited; board finds worker had been terminated for cause; work disability denied, functional impairment awarded. Gasswint v. Superior Industries Int'l-Kansas, Inc., 39 Kan. App. 2d 553, 555, 185 P.3d 284 (2008).

87. Cited; under K.S.A. 44-510e a worker's post-injury wage is to be based on actual hours worked. Nistler v. Footlocker Retail, Inc., 40 Kan. App. 2d 831, 835 to 837, 839, 196 P.3d 395 (2008).

88. Cited; board's factual findings supported by record, award based on K.S.A. 44-510e(a) correctly calculated. Gutierrez v. Dold Foods, Inc., 40 Kan. App. 2d 1135 to 1137, 1141 to 1143, 199 P.3d 798 (2009).

89. K.S.A. 44-510e(a) contains no requirement injured worker make good-faith effort to seek post-injury employment to mitigate employer's liability. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009).

90. Permanent partial general disability award affirmed in case involving scheduled and unscheduled injuries. McCready v. Payless Shoesource, 41 Kan. App. 2d 79, 200 P.3d 479 (2009).

91. 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).

92. Mentioned in discussion of applicability of compensation caps under K.S.A. 44-510f(a)(3) and (a)(4); board reversed. Roberts v. Midwest Mineral, Inc., 41 Kan. App. 2d 603, 204 P.3d 1177 (2009).

93. 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).

94. Worker's compensation modification proceeding does not offer a second opportunity to determine original award issues. Scheidt v. Teakwood Cabinet & Fixture, Inc., 42 Kan. App. 2d 259, 211 P.3d 175 (2009).

95. 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).

96. 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).

97. Casual relationship between an injury and wage loss not required. Tyler v. Goodyear Tire & Rubber Co., 43 Kan. App. 2d 386, 224 P.3d 1197 (2010).

98. In determining whether an injured worker has sustained a task loss, it does not matter that an examining physician does so in the form of advice as opposed to a command. Gustin v. Payless Shoesource, Inc., 46 Kan. App. 2d 87, 257 P.3d 1277 (2011).

99. Prior to statutory amendment, work disability provision of workers' compensation act did not exclude an otherwise eligible employee from receiving a work disability award based solely upon the employee's status as an unauthorized alien. Fernandez v. McDonald's, 296 Kan. 472, 292 P.3d 311 (2013).

100. Board had the authority to award a lump sum award for claimant's functional disability as well as her later work disability under the facts of case. Messner v. Continental Plastic Containers, 48 Kan. App. 2d 731, 298 P.3d 371 (2013).

101. Employee cannot receive work disability award if fired for cause. Dirshe v. Cargill Meat Solutions Corp., 53 Kan. App. 2d 118, 123, 382 P.3d 484 (2016).

102. Amendments adopting the 6 th edition of the AMA guides for measuring permanent impairment are facially unconstitutional as the act no longer comports with due process for injured workers who sustain permanent impairment as a result of an injury occurring on or after January 1, 2015; the unconstitutional provisions are severable and the remedy is to strike provisions mandating use of the 6 th edition, effectively reinstating the use of the 4 th edition. Johnson v. U.S. Food Service, 56 Kan. App. 2d 232, 427 P.3d 996 (2018).

103. When calculating a work disability award, the determination of whether an employee has a preexisting permanent restriction is based on the employee's status immediately prior to the new injury, and the word "permanent" in that subsection must be construed to avoid unreasonable or absurd results. Gilkey v. Frederick Waterproofing, 55 Kan. App. 2d 487, 495, 419 P.3d 49 (2018).

104. Amendment in 2013 referencing the 6 th edition of the AMA guides reflected an update to the most recent guidelines and did not change the legal standard requiring the rating be established by competent medical evidence. Johnson v. U.S. Food Service, 312 Kan. 597, 478 P.3d 776 (2021), rev'g 56 Kan. App. 2d 232, 427 P.3d 996 (2018).

105. Functional impairment rating shall not be derived solely from the sixth edition of the AMA guides; ratings are required to include a comprehensive assessment of competent medical evidence. Garcia v. Tyson Fresh Meats, Inc., 61 Kan. App. 2d 520, 532, 506 P.3d 283 (2022).


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