GUIDE TO KANSAS WORKERS' COMPENSATION
This Guide to Workers' Compensation is provided to clients of the Ankerholz and Smith law firm for informational purposes. The rules that govern Kansas Workers' Compensation cases change somewhat each year. The rules are stated in the Kansas Statutes, in the Kansas Administrative Regulations, in Director's Rulings and in cases that are decided by the Appellate Courts of the State of Kansas. Although it is a rather complex procedure, we want you to understand how it affects you.
Although this is not a complete statement of the law, we hope the following questions and answers will help you understand Workers' Compensation. Because every person is different, we handle each of our Workers' Compensation cases individually. Our goal in handling your Workers' Compensation case is to help you make the best medical recovery possible, and then to maximize your financial recovery when concluding your claim. We look forward to working with you at all stages of this procedure.
How do I file a Workers' Compensation claim?
Kansas law requires that you notify your employer of an injury within 10 days of the accident. There are some exceptions to this rule. In addition, the law requires that you serve written notice on the employer that you are entitled to receive Workers' Compensation benefits because of your injury. This is not the same as filling out an accident report at the jobsite. The "written claim" must be filed with the employer within 200 days of the date of the accident or date of last payment of compensation for disability or authorized medical care. Our office has implemented a procedure to file the required notice with the employer, and that is done immediately after you employ us to proceed with your claim.
Can I sue my employer directly?
The general rule is that Workers' Compensation is the only remedy for job-related injuries, so you may not file a civil lawsuit against the employer. However, under certain circumstances the employer may have undertaken responsibilities that are not normally held by the employer. If a dual capacity is proved, an employer is subject to a civil lawsuit. The Kansas Court of Appeals adopted the "Dual Capacity Doctrine" when it was presented to the Court in the case of Kimzey vs. Interpace Corporation by Dan L. Smith of our office.
Can I make a claim against others for my job-related injury?
We often see injuries that occur when workers are using tools or machinery. If the injury was caused at least in part by a defective condition in the tool or machinery, the manufacturer of that product may be liable for damages. This is sometimes called a "third party claim". If a defective condition is proved, the award of damages may be substantially higher than any recovery under Workers' Compensation law. Both the employer's insurance company and the manufacturer's insurance company may have to pay some money for damages, but double recovery is not allowed.
What is the difference between a Workers' Compensation case and a civil lawsuit?
Workers' Compensation law restricts the types of damages that can be recovered by an injured worker. In theory, you are only entitled to have your medical bills paid and to recover your lost wages and loss of earning capacity. On the other hand, the damages in a civil lawsuit are much broader. In addition to the items of damage recoverable in a Workers' Compensation claim, a civil lawsuit allows recovery for pain and suffering both in the past and in the future. It allows recovery for disfigurement. In most civil lawsuits, there is no maximum award figure to limit an injured party's recovery.
I have already had a Workers' Compensation claim. Can I have another one?
Yes. Even if you have re-injured the same part of your body, you are entitled to make a new claim. In addition to medical benefits, you may recover compensation to the extent that the work-related injury causes increased disability.
My injury happened while I was on a business trip in my car. Should I make a claim on my automobile insurance?
If you do, the claim will likely be denied by your automobile insurance carrier. On a business trip, your Workers' Compensation insurance will provide the primary coverage for your injuries. If someone else was at fault and caused the accident, you may also have a claim against their automobile insurance coverage. Although double recovery is not allowed, your attorneys will discuss with you whether a "third party claim" against the party at fault would be beneficial for you.
Can I see a doctor to get treatment for my injuries?
Yes. An injured worker is entitled to medical treatment reasonably necessary to overcome the effects of the injury. The employer has the right to select the doctor who will treat the injury. That doctor is called the "authorized treating physician". A change of authorized treating physician will only be made if the Workers' Compensation Director finds that the services rendered have been unsatisfactory.
Can I get a second opinion from another doctor?
Unless the authorized treating physician requests a consultation with or referral to another doctor, a second opinion will be largely at your own expense. Kansas law states that the employer and its insurance company is liable to pay a maximum of $500.00 for the services of an unauthorized physician. Unless an emergency exists, you should consult your attorney before you seek treatment from an unauthorized physician.
Can I get paid for the expenses of trips to the doctor?
If your trip to the doctor or other treatment facility is five miles or more, you may claim reimbursement for mileage at a rate that is set by state law. The costs of necessary hired transportation may also be reimbursed. By keeping a log of your trips, you will not only document your medical treatment, but also help us recover your expenses.
How am I compensated for my lost wages?
If you are unable to work due to job-related injury, you are entitled to weekly disability benefits until the authorized treating physician releases you to return to work. These benefits are sometimes called "temporary total compensation." The first seven calendar days of lost time are a waiting period and compensation is not payable unless you are unable to work for twenty-one consecutive calendar days. Your weekly temporary total compensation rate is two-thirds of your average weekly wage, but not more than the maximum rate in effect on the date of your injury. The maximum rate changes on July 1 of each year.
What is meant by "average weekly wage?"
This is not just the amount of pay shown on your paystub each week. Your average weekly wage is calculated by adding together the base wage, the average weekly overtime and the weekly value of any fringe benefits that have been discontinued.
What is a "rating"?
A rating is a doctor's opinion of the amount of bodily impairment that you have sustained as a result of your injury. For example, a doctor may believe that you have lost 5% of the use and function of your arm due to injury. Different doctors may have different opinions concerning the same physical conditions.
What is a "scheduled injury"?
If you have sustained an injury to a single part of your body such as an arm, leg, shoulder, finger, toe, eye or ear, you have sustained a scheduled injury. Workers' Compensation law provides very specific rules that limit the amount of compensation that can be awarded for those injuries. In general, less compensation is payable for a scheduled injury than for a non-scheduled injury such as one to a back or neck.
What is "work disability"?
In some non-scheduled injury cases, Kansas law allows compensation for a worker's loss of ability to earn the same wages he or she earned prior to the injury. The calculation involves how much income is lost and what job tasks can no longer be performed. Normally, the job task analysis is performed by a vocational expert who we hire on your behalf. In many cases, work disability can produce a much more fair result and can greatly increase the compensation awarded to an injured employee. In most cases, if you are not working, you must be actively seeking employment to qualify for work disability.
How much is my claim worth?
The value of your claim is based on your average weekly wage, your permanent bodily impairment and your ability to perform work in the open labor market. All of these factors must be considered to accurately determine the value of your claim.
How long will it take to conclude my claim?
The time needed to process your claim depends primarily on the length of your medical treatment. After you have reached a point of maximum medical improvement, we will evaluate your claim and attempt to conclude it by negotiation. If no settlement is possible, a hearing will be scheduled. The hearing timetable depends on the number of witnesses to be produced and the status of the Judge's calendar. We strive to complete cases within four months.
Do insurance companies hire people to follow injured workers?
We are aware of cases wherein injured workers have been followed and videotaped with surveillance equipment. By heeding your doctor's restrictions on your physical activities and conducting yourself accordingly, this should not be a problem.
My employer does not have Workers' Compensation insurance. Am I out of luck?
No. If your employer was required to have Workers' Compensation coverage but does not, we can make application for benefits on your behalf through the Kansas Workers' Compensation Fund.
What is a Preliminary Hearing?
After a benefit review conference, if an employer or its insurance company is still wrongfully withholding benefits that are due to an employee, the benefits can be demanded at a proceeding called a Preliminary Hearing. The benefits that can be requested are medical treatment and temporary total compensation.
What is a Prehearing Settlement Conference?
Not less than ten days prior to the Regular Hearing of the claim, the Administrative Law Judge conducts an informal conference for the purpose of obtaining stipulations (agreements on details), determining the issues to be heard at the Regular Hearing and exploring settlement possibilities.
What is a Regular Hearing?
This is the actual trial of your case. No jury is involved; the case is heard by an Administrative Law Judge. You can be questioned by your own attorney, the attorney for the employer and perhaps the Judge. The hearings generally last about an hour. No doctors appear at the hearing. Their testimony is taken by sworn deposition in their own office at a later time. After all testimony is presented, the Administrative Law Judge reviews the evidence and issues a decision in written form.
What is a Settlement Hearing?
If your case is concluded by negotiation, it is necessary to make a record of the details of the settlement. Settlement hearings are rather informal proceedings that usually last about ten minutes. You will be asked whether you understand all of the terms of the settlement and whether you want to close the case. It is also the time when a settlement draft is presented. Once that draft is deposited in our bank trust fund account and is accepted for payment, you will receive the settlement proceeds, less attorneys fees.
Will I receive a lump-sum settlement?
Kansas law provides that Workers' Compensation awards be payable by the week until paid in full unless all parties agree to a lump sum payment to close the claim. However, most employers and insurance companies are agreeable to paying lump sums. They are entitled to a discount if they opt for payment of a lump sum instead of making smaller payments to you over a number of years.
What is the amount of my attorney's fee?
Kansas Law sets attorneys fees at 25% of the gross disability. There is no fee on medical expenses paid. A fee will be collected on temporary total benefits only if payment is refused, or if payments have been terminated and are later reinstated through efforts of your attorney.
Who is entitled to Vocational Rehabilitation?
Even though it is a stated goal of the Kansas Workers' Compensation Act to restore injured employees to work, the Kansas Legislature has now made it a voluntary choice for employers to decide whether to offer vocational rehabilitation benefits. If the employer does not agree to provide vocational rehabilitation services, the employee can request a referral to a provider for vocational rehabilitation services at the employee's own expense.
Is there a limit on the amount of money that can be paid on a Workers' Compensation claim?
No matter what you earned when you were working, the maximum amount payable for a permanent total disability is currently $155,000.00. If an employee returns to work and is earning at least 90% of the amount of the pre-injury wage, an award cannot exceed the amount of compensation based on the impairment rating. In that case, compensation is further limited to a maximum of $75,000.00. The maximum amount payable to a spouse or dependents of a deceased worker is $300,000.00.
Can I be fired for filing a Workers' Compensation claim?
Kansas law makes it illegal for your employer to fire you because you have asserted your rights under the Workers' Compensation Act. To do so may subject them to a wrongful discharge lawsuit. Failure of the employer to make accommodations for your physical impairments may also subject the employer to sanctions under the federal Americans with Disabilities Act.
Can I get help for a job-related accident that happened in a state other than Kansas?
Yes. By associating local counsel, we routinely handle Workers' Compensation matters in Missouri and other states. In the event your job circumstances provide you with jurisdiction in other states, we will be happy to assist you with the case or in locating appropriate representation. None of these arrangements will increase your attorneys fees.
Can I get Workers' Compensation benefits and Social Security disability benefits too?
If it appears that your physical condition will prevent you from doing any job for an extended period of time, we may suggest that you apply for Social Security disability benefits. Depending on your wage history, Social Security may pay you more than Workers' Compensation. If you have already received some Workers' Compensation benefits, those will be offset from your Social Security payments. No double recovery is permitted. Other special rules apply if you have been injured while receiving partial retirement benefits.
Can Workers' Compensation benefits be withheld to pay support orders?
Yes. Although Workers' Compensation benefits are not subject to garnishment on other types of debts, they can be withheld for payment of child support, or for support payments due to a spouse or former spouse. There are limits on the amounts that may be withheld.
Can ANKERHOLZ AND SMITH help me with legal matters other than Workers' Compensation?
Yes. In fact, we would like to be your family attorneys. If you have questions about other legal matters, including domestic relations actions or estate planning, please do not hesitate to ask us. We would also appreciate the opportunity to help your family and friends with their legal matters.
The Law Offices of
Ankerholz & Smith