Fighting Against the Kansas Workers Compensation Act
Jan. 29, 2021
The Kansas Workers Compensation Act (KWCA) of 2011 was enacted largely in response to a 2009 State Supreme Court ruling, Bergstrom v. Spears Manufacturing Co. That decision opened the door for workers with specific injuries to claim work disability if they ceased earning wages for any reason, including voluntarily leaving their job.
The KWCA tightened eligibility criteria. First, it stipulates that the injury must be the “prevailing factor” in the disability. Previously, if an injury exacerbated a pre-existing condition, that would qualify for disability claims; not necessarily so now under the prevailing factor rule. Second, the KWCA requires a threshold of 7.5% minimum permanent partial disability to be eligible for wage loss claims.
Those two factors, along with the state’s decision to adopt the sixth edition of the AMA’s Guide to Permanent Impairment in 2013, made it increasingly difficult to receive compensation for lost wages due to disability.
The sixth edition differs from the previously used fourth edition in its definition of impairment. Whereas the fourth edition based impairment ratings (such as the 7.5% threshold in Kansas) on one’s ability to perform at work, the sixth bases impairment on one’s capacity to take care of oneself — eating, sleeping, personal hygiene, etc.
Our team of attorneys at Slape & Howard in Wichita fights for workers in Kansas to receive just workers compensation benefits, including for lost wages and earning capacity, and advocate for huge changes to the KWCA.
If you find yourself being shortchanged or even ignored by the state’s worker’s compensation system, call us for an immediate consultation. We will utilize our knowledge and experience to investigate your accident, establish fault and liability, and assess your damages in an ongoing fight for fair compensation.
How Kansas Law Firms Are Fighting Back
At Slape & Howard, we have been leading the charge against both the KWCA and the adoption of the worker-unfriendly Sixth AMA edition. Other law firms have joined the fight to the point that the whole issue is now before the Kansas Supreme Court.
The case before the Supreme Court arose when a worker named Howard Johnson suffered a spinal cord injury in 2015. Using the AMA’s sixth edition resulted in him receiving nearly $47,000 less in workers’ compensation than he would have received under the fourth edition.
Using the sixth edition, his doctor gave him a 6% impairment rating, falling below the 7.5% threshold. However, Johnson had two other doctors evaluate him using the fourth edition, which resulted in an impairment rating of 25%.
His attorneys appealed the decision to the Court of Appeals, which sided with Johnson, but the favorable decision was challenged by the Kansas Attorney General and Howard’s employer, U.S. Food Service, landing the issue in the jurisdiction of the Supreme Court.
Our firm is on the side of Johnson and his appeal, arguing that an impairment rating should ultimately be based on the injured employees’ ability to do their jobs.
The Supreme Court issued a decision in January of 2021 that upheld the use of the 6th Edition of the Guides. Sort of. The decision allows a physician to deviate from the Guides using competent medical evidence. What does that mean? I assure you that the team here at Slape & Howard are working diligently to figure that out. We have spoken to a number of physicians to get that answer for our clients.
Another much-publicized case involves a worker named Sabrina Wassall, who injured her back in a food warehouse where she was lifting heavy containers of fruit. She couldn’t recover lost wages because her injury did not meet the 7.5% impairment rating threshold, and when her doctor restricted her to lifting no more than 35 pounds, that meant she could no longer do her job and was ultimately discharged.
Wassall was later able to find employment at another warehouse that didn’t require as much heavy lifting, but she had to take a pay cut. Now she is using her own health insurance, not workers’ compensation, to have surgery on her back.
Contact Us at Slape & Howard for Help
Workers throughout Wichita and Kansas who suffer injuries on the job can easily find themselves in situations similar to those of Johnson and Wassall. In addition to strict new eligibility requirements, the process of applying for workers’ compensation has also been made more arduous and difficult to understand. In most cases, you have only 20 days from the date of the injury to file, meaning you have little time to get a physician’s evaluation before the clock runs out.
At Slape & Howard, we will help and guide you every step of the way, from filing through insurance company negotiations and onto appeals. We won’t rest until we’ve exhausted every available resource to get you the just compensation you deserve.
If you’ve been injured on the job in Wichita, or really, anywhere in Kansas, contact us at Slape & Howard immediately, and let’s begin the process of exercising your rights and obtaining what’s due you.