Printable Format44-520. Notice of injury. (a) (1) Proceedings for compensation under the workers compensation act shall not be maintainable unless notice of injury by accident or repetitive trauma is given to the employer by the earliest of the following dates:
(A) 20 calendar days from the date of accident or the date of injury by repetitive trauma;
(B) if the employee is working for the employer against whom benefits are being sought and such employee seeks medical treatment for any injury by accident or repetitive trauma, 20 calendar days from the date such medical treatment is sought; or
(C) if the employee no longer works for the employer against whom benefits are being sought, 10 calendar days after the employee's last day of actual work for the employer.
Notice may be given orally or in writing.
(2) Where notice is provided orally, if the employer has designated an individual or department to whom notice must be given and such designation has been communicated in writing to the employee, notice to any other individual or department shall be insufficient under this section. If the employer has not designated an individual or department to whom notice must be given, notice must be provided to a supervisor or manager.
(3) Where notice is provided in writing, notice must be sent to a supervisor or manager at the employee's principal location of employment. The burden shall be on the employee to prove that such notice was actually received by the employer.
(4) The notice, whether provided orally or in writing, shall include the time, date, place, person injured and particulars of such injury. It must be apparent from the content of the notice that the employee is claiming benefits under the workers compensation act or has suffered a work-related injury.
(b) The notice required by subsection (a) shall be waived if the employee proves that: (1) The employer or the employer's duly authorized agent had actual knowledge of the injury; (2) the employer or the employer's duly authorized agent was unavailable to receive such notice within the applicable period as provided in paragraph (1) of subsection (a); or (3) the employee was physically unable to give such notice.
(c) For the purposes of calculating the notice period proscribed in subsection (a), weekends shall be included.
History: L. 1927, ch. 232, § 19; L. 1974, ch. 203, § 25; L. 1993, ch. 286, § 42; L. 2011, ch. 55, § 16; L. 2013, ch. 104, § 11; April 25.
Source or prior law:
L. 1911, ch. 218, § 22; L. 1913, ch. 216, § 6; R.S. 1923, 44-520.
Law Review and Bar Journal References:
Symposium on statutes of limitation, 9 K.L.R. 214 (1960).
Survey of law of workmen's compensation, William A. Kelly, 10 K.L.R. 350 (1961).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XV, No. 3, Review p. 3 (1992).
"Taking Advantage of the One Year Written Claim Rule: A Review of K.S.A. 44-520 and 44-557(c)," Kelly W. Johnston, J.K.T.L.A. Vol. XV, No. 3, 8, 9 (1992).
"An Overview of the 1993 Amendments to the Kansas Workers Compensation Act," David J. Rebein, 62 J.K.B.A. No. 5, 30, 32 (1993).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVII, No. 6, Work. Comp. Review Section, 1, 7 (1994).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 5, Work. Comp. Review Section, 1, 2 (1995).
"Worker's Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 6, Work. Comp. Review Section, 1, 2 (1995).
"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 1, Review Section, 1, 4 (1995).
"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 3, Review Section, 1, 3 (1996).
"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 5, Review Section, 1, 7 (1996).
"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 6, Review Section, 3 (1996).
"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 1, Review Section, 3, 8 (1996).
"Workers Compensation Review," J.K.T.L.A. Vol. XXI, No. 1, Review Section, 24, 27, 30 (1997).
"Workers Compensation Review," J.K.T.L.A. Vol. XXI, No. 2, Review Section, 30 (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. 4, Review Section, 35 (1998).
"Workers Compensation Review," J.K.T.L.A. Vol. XXIII, No. 4, 21 (2000).
"Workers Compensation Review," J.K.T.L.A. Vol. XXIII, No. 5, 23 (2000).
"Workers Compensation Review," Patrick R. Nichols, J.K.T.L.A. Vol. 24, No. 1, 19 (2000).
"A Species unto Themselves: Professional Disciplinary Actions," Mary Feighny and Camille Nohe, 71 J.K.B.A. No. 6, 29 (2002).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 26, No. 6, 23 (2003).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 27, No. 4, 18 (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," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 28, No. 1, 19 (2004).
"Workers Compensation Review," J.K.T.L.A. Vol. 28, No. 6, 24 (2005).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 30, No. 4, 19 (2007).
"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.A.J. Vol. 33, No. 2 (2009).
"Workers Compensation Review," Joseph Seiwart, Editor, J.K.A.J. Vol. 33, No. 6, 31 (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).
"2013 Legislative Session Report," Callie Jill Denton, 36 J.K.A.J. No. 6 (2013).
CASE ANNOTATIONS
Explanation, see Revisor's Note under article title, chapter 44, article 5.
Cases through 1973
IN GENERAL (1-3)
1. Mentioned; time for filing compensation claim cannot be extended beyond one year from date of accident or receipt of last payment. Asp v. McPherson County Highway Dept., 192 Kan. 444, 447, 449, 388 P.2d 652 (1964).
2. Subsection (a) cited as being somewhat analogous to K.S.A. 44-551 with respect to "written" requirement. Shinkle v. Kansas State Highway Commission, 200 Kan. 191, 195, 434 P.2d 836 (1967).
3. Only requirement hereunder is knowledge of accident or notice to employer within ten days. Odell v. Unified School District, 206 Kan. 752, 755, 481 P.2d 974 (1971).
SUFFICIENCY OF NOTICE (4-9)
4. Notice to foreman was notice to employer; respondent's duly authorized agent had actual knowledge of the accident; formal notice unnecessary. Cross v. Wichita Compressed Steel Co., 187 Kan. 344, 348, 356 P.2d 804 (1960).
5. Notice gives "time and place"; claim sufficient without date of accident. Taylor v. Armour & Co., 186 Kan. 51, 52, 53, 348 P.2d 632 (1960).
6. Notice to employer required hereunder held properly given by injured employee. Justice v. Continental Can Co., 174 Kan. 539, 543, 257 P.2d 464 (1953).
7. Notice to immediate superior held sufficient; no prejudice to employer shown. Taylor v. Missouri Pac. Rld. Co., 146 Kan. 668, 669, 73 P.2d 62 (1937).
8. Not necessary that notice of injury be in writing. Davis v. Skelly Oil Co., 135 Kan. 249, 251, 10 P.2d 25 (1932).
9. Notice of accident to immediate superior by employee held to be sufficient notice to employer; employer claiming lack of notice has burden of proving prejudice. Phillips v. Helm's, Inc., 201 Kan. 69, 72, 73, 439 P.2d 119 (1968).
ACTUAL KNOWLEDGE (10-12)
10. If employer has actual knowledge of the accident, the injured workman is excused from giving the notice required. Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 736, 347 P.2d 235 (1959).
11. Record examined; held that respondent had actual knowledge of claimant's accidental injury. Rowton v. Rainbo Baking Co., 189 Kan. 74, 77, 366 P.2d 796 (1961).
12. Discussed; notice is unnecessary when employer or his agent has knowledge of accident. Magers v. Martin Marietta Corporation, 193 Kan. 137, 142, 392 P.2d 148 (1964).
PREJUDICE FROM LACK OF NOTICE (15-21)
15. Burden is on employer to prove he has been "prejudiced."
(a) Gales v. Kiewit Sons' Co., 184 Kan. 573, 574, 575, 576, 337 P.2d 669 (1959);
(b) Andrews v. Bechtel Construction Co., 175 Kan. 885, 889, 267 P.2d 469 (1954);
(c) McMillin v. City of Salina, 163 Kan. 575, 576, 184 P.2d 201 (1947);
(d) Hall v. Kornfeld-Harper Well Servicing Co., 159 Kan. 70, 75, 151 P.2d 688 (1944).
16. Failure to give statutory notice; prejudice to employer not proved; compensation erroneously denied. Gales v. Kiewit Sons' Co., 184 Kan. 573, 574, 575, 576, 337 P.2d 669 (1959).
17. Lack of notice of accident to employer not a bar to an award unless employer prejudiced thereby; whether employer prejudiced is a question of fact.
(a) Cooper v. Morris, 186 Kan. 703, 705, 352 P.2d 35 (1960);
(b) Gales v. Kiewit Sons' Co., 184 Kan. 573, 337 P.2d 669 (1959);
(c) Andrews v. Bechtel Construction Co., 175 Kan. 885, 888, 267 P.2d 469 (1954);
(d) Paul v. Skelly Oil Co., 134 Kan. 636, 639, 7 P.2d 73 (1932).
18. Finding that failure to file timely notice was not prejudicial to employer is a finding of fact. Anderson v. Air-Capitol Manufacturers, 190 Kan. 106, 108, 372 P.2d 294 (1962).
19. Provisos applied and lack of notice held non-prejudicial. Hall v. Kornfeld-Harper Well Servicing Co., 159 Kan. 70, 75, 151 P.2d 688 (1944).
20. Employer held not prejudiced by failure to give notice within ten days. Parker v. Farmers Union Mut. Ins. Co., 146 Kan. 832, 833, 840, 73 P.2d 1032 (1937).
21. Defense of no required notice not waived by pleading defense of intoxication. Sayers v. Colgate-Palmolive-Peet Co., 134 Kan. 872, 874, 875, 8 P.2d 383 (1932).
EFFECT ON EMPLOYER OF NOTICE (22-23)
22. Employer having notice of injury did not give notice thereof to commissioner; written claim filed within one year sufficient. Almendarez v. Wilson & Co., 188 Kan. 303, 304, 362 P.2d 1 (1961).
23. Knowledge of accident by employer or his agent or notice to employer within ten days of accident is all this section requires; all limitations in act suspended if employer then fails to report accident as provided in K.S.A. 44-557. Ricker v. Yellow Transit Freight Lines, Inc., 191 Kan. 151, 153, 154, 155, 379 P.2d 279 (1963).
OUTDATED CASES (25)
25. Notice and claim sections were combined until 1927 amendments; cases largely outdated as to notice and claim points of law are listed.
(a) Mortimer v. Edgar Zinc Co., 123 Kan. 259, 262, 255 P. 35 (1927);
(b) Doty v. Crystal Ice & Fuel Co., 122 Kan. 653, 661, 253 P. 611 (1927);
(c) Lovely v. Railway Co., 115 Kan. 784, 786, 225 P. 103 (1924);
(d) Brownrigg v. Swift & Co., 114 Kan. 115, 117, 217 P. 278 (1923);
(e) Vassar v. Swift & Co., 106 Kan. 836, 840, 189 P. 943 (1920).
Cases after 1973
26. Mentioned in case determining sufficiency of written claim for compensation. Ours v. Lackey, 213 Kan. 72, 75, 515 P.2d 1071.
27. Claim not barred for lack of notice where no determination that employer was prejudiced thereby. Pike v. Gas Service Co., 223 Kan. 408, 409, 410, 411, 412, 573 P.2d 1055.
28. Mentioned; case involving time limits under K.S.A. 44-534 and 44-557. Childress v. Childress Painting Co., 3 Kan. App. 2d 135, 136, 590 P.2d 1093.
29. Widow timely commenced proceedings under this section; employer filed later than 28 days; all time limits of act are tolled (dissenting opinion). Childress v. Childress Painting Co., 226 Kan. 251, 255, 597 P.2d 637.
30. Mentioned in authorizing retroactive payment for past medical expenses due to recurrence of medical condition. Morris v. Kansas City Bd. of Public Util., 3 Kan. App. 2d 527, 534, 598 P.2d 544.
31. Claim timely filed; knowledge of accident by employer who fails to file report operates to extend time for filing to one year from accident. Morgan v. Inter-Collegiate Press, 4 Kan. App. 2d 319, 321, 322, 606 P.2d 479.
32. 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, 632, 633, 663 P.2d 1144 (1983).
33. Where employer brings money suit, worker cannot claim offsets alleged due under act when provisions not utilized. Bethany Medical Center v. Knox, 10 Kan. App. 2d 192, 194, 196, 694 P.2d 1331 (1985).
34. 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).
35. Cited; claimant's oversight in filing claim following second injury notice with notice and claim for earlier injury examined. Pyeatt v. Roadway Express, Inc., 243 Kan. 200, 201, 756 P.2d 438 (1988).
36. Employer's agent for receiving notice of injury must give employer notice of agent's own injury. Wietharn v. Safeway Stores, Inc., 16 Kan. App. 2d 188, 191, 194, 820 P.2d 719 (1991).
37. Ten day notice of injury required in workers compensation cases computed under K.S.A. 60-206, not K.A.R. 51-17-1 which is more restrictive and invalid. Bain v. Cormack Enterprises, Inc., 267 Kan. 754, 757, 986 P.2d 373 (1999).
38. Back injury which occurred during treatment for claimant's primary injury was a natural and probable result of primary injury. Frazier v. Mid-West Painting, Inc., 268 Kan. 353, 355, 995 P.2d 855 (2000).
39. Notice of claim to be given employer not insurance carrier. Lott-Edwards v. Americold Corp., 27 Kan. App. 2d 689, 6 P.3d 947 (2000).
40. Whether claimant provided timely notice of accident is a question of fact; timely notice found. Myers v. Lincoln Center Ob/Gyn, 39 Kan. App. 2d 372, 375, 180 P.3d 574 (2008).
41. Repetitive use injury, law allows worker to designate date of accident as date employer notified. Saylor v. Westar Energy, Inc., 41 Kan. App. 2d 1042, 207 P.3d 275 (2009).
42. Just cause found to extend the notification period to 75 days. Kotnour v. City of Overland Park, 43 Kan. App. 2d 833, 233 P.3d 299 (2010).
43. Employer must provide medical treatment to an injured employee, provided that the employee gives notice to the employer of the work-related injury within a short time period after the accident. Deeds v. Wadell & Reed Invst. Mgmt. Co., 47 Kan. 499, 280 P.3d 786 (2012).