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44-534a. Preliminary hearings; orders for medical treatment and temporary total disability benefits; review of preliminary findings and orders; reimbursement from workers compensation fund. (a) (1) After an application for a hearing has been filed pursuant to K.S.A. 44-534, and amendments thereto, the employee or the employer may make application for a preliminary hearing, in such form as the director may require, on the issues of the furnishing of medical treatment and the payment of temporary total or temporary partial disability compensation. At least seven days prior to filing an application for a preliminary hearing, the applicant shall give written notice to the adverse party of the intent to file such an application. Such notice of intent shall contain a specific statement of the benefit change being sought that is to be the subject of the requested preliminary hearing. If the parties do not agree to the change of benefits within the seven-day period, the party seeking a change in benefits may file an application for preliminary hearing which shall be accompanied by a copy of the notice of intent and the applicant's certification that the notice of intent was served on the adverse party or that party's attorney and that the request for a benefit change has either been denied or was not answered within seven days after service. Copies of medical reports or other evidence which the party intends to produce as exhibits supporting the change of benefits shall be included with the application. The director shall assign the application to an administrative law judge who shall set the matter for a preliminary hearing and shall give at least seven days' written notice by mail to the parties of the date set for such hearing.

(2) Such preliminary hearing shall be summary in nature and shall be held by an administrative law judge in any county designated by the administrative law judge, and the administrative law judge shall exercise such powers as are provided for the conduct of full hearings on claims under the workers compensation act. Upon a preliminary finding that the injury to the employee is compensable and in accordance with the facts presented at such preliminary hearing, the administrative law judge may make a preliminary award of medical compensation and temporary total disability compensation to be in effect pending the conclusion of a full hearing on the claim, except that if the employee's entitlement to medical compensation or temporary total disability compensation is disputed or there is a dispute as to the compensability of the claim, no preliminary award of benefits shall be entered without giving the employer the opportunity to present evidence, including testimony, on the disputed issues. A finding with regard to a disputed issue of whether the employee suffered an accident, repetitive trauma or resulting injury, whether the injury arose out of and in the course of the employee's employment, whether notice is given, or whether certain defenses apply, shall be considered jurisdictional, and subject to review by the board. Such review by the board shall not be subject to judicial review. If an appeal from a preliminary order is perfected under this section, such appeal shall not stay the payment of medical compensation and temporary total disability compensation from the date of the preliminary award. If temporary total compensation is awarded, such compensation may be ordered paid from the date of filing the application, except that if the administrative law judge finds from the evidence presented that there were one or more periods of temporary total disability prior to such filing date, temporary total compensation may be ordered paid for all periods of temporary total disability prior to such date of filing. The decision in such preliminary hearing shall be rendered within five days of the conclusion of such hearing. Except as provided in this section, no such preliminary findings or preliminary awards shall be appealable by any party to the proceedings, and the same shall not be binding in a full hearing on the claim, but shall be subject to a full presentation of the facts.

(b) If compensation in the form of medical benefits or temporary total disability benefits has been paid by the employer or the employer's insurance carrier either voluntarily or pursuant to an award entered under this section and, upon a full hearing on the claim, the amount of compensation to which the employee is entitled is found to be less than the amount of compensation paid or is totally disallowed, the employer and the employer's insurance carrier shall be reimbursed from the workers compensation fund established in K.S.A. 44-566a, and amendments thereto, for all amounts of compensation so paid which are in excess of the amount of compensation the employee is entitled to less any amount deducted from additional disability benefits due the employee pursuant to subsection (c) of K.S.A. 44-525, and amendments thereto, as determined in the full hearing on the claim. The director shall determine the amount of compensation paid by the employer or insurance carrier which is to be reimbursed under this subsection, and the director shall certify to the commissioner of insurance the amount so determined. Upon receipt of such certification, the commissioner of insurance shall cause payment to be made to the employer or the employer's insurance carrier in accordance therewith. No reimbursement shall be certified unless the request is made by the employer or employer's insurance carrier within one year of the final award.

History: L. 1974, ch. 203, § 34; L. 1979, ch. 156, § 12; L. 1980, ch. 146, § 9; L. 1982, ch. 213, § 3; L. 1987, ch. 187, § 12; L. 1987, ch. 189, § 2; L. 1989, ch. 149, § 4; L. 1990, ch. 183, § 7; L. 1993, ch. 286, § 49; L. 1996, ch. 79, § 10; L. 1997, ch. 125, § 9; L. 2011, ch. 55, § 22; May 15.

Law Review and Bar Journal References:

"Potential Federalization of State Workmen's Compensation Law—The Kansas Response," James C. Wright and James P. Rankin, 15 W.L.J. 244, 255, 258 (1976).

"Workmen's Compensation—An Introduction to Changes in the Kansas Statute," Bryce B. Moore, 24 K.L.R. 603, 608, 609 (1976).

"Workmen's Compensation—The Preliminary Hearing, the Workmen's Compensation Fund, and Civil Penalties for Failure to Pay Compensation When Due," Albert M. Ross, 24 K.L.R. 623, 624, 625, 626 (1976).

"Workmen's Compensation—The Workmen's Compensation Fund," Charles J. Woodin, 24 K.L.R. 641 (1976).

"Major Legislative Changes in Workers' Compensation Law," Gary L. Jordan, 3 J.K.T.L.A. No. 1, 14, 16 (1979).

"Preparation and Presentation of the Claimant's Case," Gary L. Jordan, 3 J.K.T.L.A. No. 6, 17 (1980).

"Workers' Compensation—A Salute to the Trial Lawyers of Kansas," Gary L. Jordan, 10 J.K.T.L.A. No. 6, 9, 11 (1987).

"Maximizing for your Clients the Benefits of the New Kansas Vocational Rehabilitation Act," Kelly Johnston, 11 J.K.T.L.A. No. 6, p. 6 (1988).

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

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

"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XV, No. 3, Review p. 3 (1992).

"Workers Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XV, No. 6, 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, 35 (1993).

"Enforcement Remedies of Workers' Compensation Awards," Beth Regier Foerster, J.K.T.L.A. Vol. XVI, No. 3, 6, 7 (1993).

"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 1, Work. Comp. Review Section, 1, 2 (1994).

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

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

"Workers Compensation Review," J.K.T.L.A. Vol. XXI, No. 4, Review Section, 25, 26 (1998).

"Workers Compensation Review," Jan L. Fisher, Ed., J.K.T.L.A. Vol. 28, No. 5, 18 (2005).

"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).

CASE ANNOTATIONS

1. Court without jurisdiction to entertain action until administrative remedies exhausted. Short v. Witwer, 2 K.A.2d 441, 442, 443, 581 P.2d 399.

2. Preliminary hearing does not constitute "first full hearing" under 44-567(d). Hampton v. Professional Security Co., 5 K.A.2d 39, 42, 611 P.2d 173.

3. General rules relating to appellate scope of review are reviewed and applied. Crabtree v. Beech Aircraft Corp. 5 K.A.2d 440, 443, 449, 618 P.2d 849. Reversed: 229 K. 440, 625 P.2d 453.

4. A district court has no jurisdiction to decide appeal from a temporary award entered under this act. Lively v. MBPXL Corp., 7 K.A.2d 204, 205, 206, 207, 638 P.2d 999 (1982).

5. Trial court erred in ordering payment of PIP benefits by automobile liability insurer; question whether at time of accident insured and purported employer had an employee and employer relationship. Egy v. United States Fidelity & Guaranty Co., 8 K.A.2d 144, 146, 150, 151, 152, 651 P.2d 954 (1982).

6. Termination of preliminary award, the conclusion of a full hearing on the claim defined; review in 44-551(b) irrelevant. Sawyer v. Oldham's Farm Sausage Co., 246 K. 327, 333, 787 P.2d 697 (1990).

7. Date payment due on preliminary hearing award, when demand for payment effective, when appeal from such award available examined. Stout v. Stixon Petroleum, 17 K.A.2d 195, 200, 836 P.2d 1185 (1992).

8. Cited in holding that compensation award following settlement hearing before ALJ subject to review and modification under 44-528. Redgate v. City of Wichita, 17 K.A.2d 253, 262, 836 P.2d 1205 (1992).

9. Fund held not a proper party when not impleaded prior to hearing where handicapped claimant testified by direct examination (44-567(d)). West-Mills v. Dillon Companies, Inc., 18 K.A.2d 561, 564, 859 P.2d 392 (1993).

10. Whether administrative law judge's civil penalties order a preliminary award under this section examined. Waln v. Clarkson Constr. Co., 18 K.A.2d 729, 730, 731, 732, 861 P.2d 1355 (1993).

11. Whether appellate court lacks jurisdiction to review ALJ's order when no written request for review by appeals board filed; retroactive application of amendments discussed. Rios v. Board of Public Utilities of Kansas City, 256 K. 184, 186, 188, 883 P.2d 1177 (1994).

12. ALJ's order denying motion to dismiss is not considered a preliminary award and may be reviewed by workers compensation board. Shain v. Boeing Military Airplanes, 22 K.A.2d 913, 914, 924 P.2d 1280 (1996).

13. Which findings and awards of ALJ may be reviewed by workers compensation board discussed. Winters v. GNB Battery Technologies, 23 K.A.2d 92, 96, 927 P.2d 512 (1996).

14. Recovery of unnecessary medical payments authorized hereunder. Beisel v. Boeing Co., 23 K.A.2d 572, 574, 576, 578, 932 P.2d 1050 (1997).

15. Purchase of car not medical treatment under 44-510(a); board erred in dismissing appeal of ALJ's award. Hedrick v. U.S.D. No. 259, 23 K.A.2d 783, 784, 935 P.2d 1083 (1997).

16. Order requiring subsequent employer to reimburse prior employer for injury occurring during employment with subsequent employer reversed. Kimber v. U.S.D. No. 418, 24 K.A.2d 280, 283, 944 P.2d 169 (1997).

17. Excusable neglect under 60-2103 does not justify untimeliness of workers compensation appeal under subsection (b)(1). Anderson v. Bill Morris Constr. Co. Inc., 25 K.A.2d 603, 606, 966 P.2d 96 (1998).

18. ALJ's award misaddressed; not received before expiration of review application filing date; notice insufficient to satisfy due process. Nguyen v. IBP, Inc., 266 K. 580, 582, 585, 972 P.2d 747 (1999).

19. Workers compensation board dismissal of case for lack of jurisdiction is a final appealable order. Rivera v. Cimarron Dairy, 267 K. 875, 878, 988 P.2d 235 (1999).

20. Workers compensation board dismissal of insurer appeal on policy coverage issue upheld; term "certain defenses" construed. Carpenter v. National Filter Service, 26 K.A.2d 672, 674, 994 P.2d 641 (1999).

21. Section permits appeals to the Board of preliminary awards under 44-534a but appeal limited to "jurisdictional issues." Quandt v. IBP, 38 K.A.2d 874, 877, 878, 879, 173 P.3d 1149 (2008).

22. Claimant failed to demonstrate the compensability of medical compensation and her post-award medical benefits were incurred outside the relation back period; awards reversed. Roles v. Boeing Co., 43 K.A.2d 619, 230 P.3d 771 (2010).

23. No jurisdiction to review the board's decision that it did not have jurisdiction to review the ALJ's preliminary order. Siler v. U.S.D. No. 512, 45 K.A.2d 586, 251 P.3d 92 (2011).

24. Preliminary hearing order in workers compensation case does not satisfy elements of collateral estoppel and has no preclusive effect in subsequent proceedings. Miller v. KVC Behavioral Healthcare, 61 K.A.2d 512, 516, 506 P.3d 295 (2022).


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