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Kansas Workers’ Compensation Act Overhaul
Both the Kansas Senate and Kansas House of Representatives unanimously passed the overhaul to the Kansas Workers’ Compensation Act this past Friday, April 1, 2011.
The Bill will now be sent to the Governor, who is expected to sign it very soon. THE NEW LAW WILL BE EFFECTIVE MAY 15, 2011. Key changes are as follows.
1. Work Disability–Wage loss will be defined as the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker IS CAPABLE OF EARNING after the injury. Current statutory language, which gave rise to the Bergstrom v. Spears Manufacturing case, allows for comparison of the wage earned at the time of injury and the wage the worker IS ACTUALLY EARNING after the injury. Under the changes, an appropriate post-injury wage may be imputed to a worker who is not employed, based on his wage-earning capability. If an employee is working, the wage the worker is actually earning will be presumed to be the post-injury wage the worker is capable of earning. Task loss will be calculated using five years of job tasks preceding the date of accident as opposed to 15 years of job tasks. This change will enhance an employer’s ability to verify the job tasks reported by the worker to ensure the worker is not manipulating the task list to inflate task loss percentage. Further, any tasks which the worker would have been deemed unable to perform based on permanent restrictions in place prior to the injury in question cannot be included when calculating the current task loss. In any case, an injured worker would have to prove a minimum of 7.6% Permanent Impairment of Function to the Body as a Whole to be eligible to receive a Work Disability Award. If the worker has prior disability, the Total Permanent Impairment of Function must be equal to or greater than 10% to the Body as a Whole to qualify for a Work Disability Award. We believe this new Work Disability Standard will be far more fair and realistic.
2. Prevailing Factor Test–In order to be compensable, the work accident must be the prevailing factor relative to the injury or disability claimed. An accident will no longer be compensable just because it aggravates, accelerates or exacerbates a pre-existing condition. Rather, it will have to be the Prevailing–meaning primary–factor relative to injury and disability. Further, neutral risks and injuries due to idiopathic causes will no longer be compensable.
3. Future Medical–Instead of Future Medical being left open automatically as occurs now, the Claimant will have to prove it is more probable than not that future medical treatment will be necessary. Further, if future medical is awarded, and then there is a two year gap from the date of the Award or from the date of last treatment from an authorized provider, during which the claimant receives no medical treatment from an authorized provider, the Employer can seek a Hearing to permanently terminate future medical benefits. The employer will be afforded a presumption that no more medical treatment is necessary.
4. Average Weekly Wage –The current calculation for Average Weekly Wage for Full Time Hourly Employees will change from the artificial standard that has allowed workers to multiply their hourly rate by 40, whether they work 40 hours or not. Under the new standard we will look at the 26 weeks of earnings, including bonuses and overtime, prior to date of accident for both full and part-time workers, and average the earnings.
5. Bilateral Parallel injuries will return to pre-Casco status as Body as a Whole Injuries.
6. New caps will be in place–Death Benefits $300,000. Permanent Total Benefits– $155,000. Permanent Partial Benefits–$130,000. Functional Impairment– $75,000. The Functional Impairment cap had been virtually eliminated by the Appellate Courts, but we believe the loophole which allowed that has been closed. Caps had not increased in 17 years and those increases were inevitable.
Please contact your Power Group representative if you have any questions.