How a Higher Disability Threshold Is Hurting Injured Workers
March 17, 2021
The workers’ compensation attorneys at Wichita-based Slape & Howard are working with other attorneys and legal groups throughout the state to roll back the onerous new standards that drastically curtail and even deny benefits to workers injured on the job. We are jointly working on a legislative push to restore balance to the workers’ compensation system in Kansas.
The Impact of the KWCA
In 2011, the state legislature passed the Kansas Workers Compensation Act (KWCA), which tightened compensation standards by requiring that any work-related injury must be the “prevailing factor” in a subsequent disability claim and that the injury must result in a minimum of 7.5 percent permanent partial disability to be eligible for lost-wage claims.
This “prevailing factor” provision ended most claims where it could be shown that the injury merely exacerbated a pre-existing condition. Additionally, as if the 7.5 percent floor wasn’t hard enough to meet, the state soon thereafter adopted the Sixth Edition of the Guides to the Evaluation of Permanent Impairment outlined by the American Medical Association (AMA).
In contrast to the previous Fourth Edition, the newer version curtails “physician discretion” in determining impairment level, which often results in much lower impairment ratings. Lower ratings mean lower compensation and benefit standards.
Along with our proposed changes to the whole statewide workers’ compensation system, we at Slape & Howard are pushing for a return to the Fourth Edition, which many states still use. In fact, the Pennsylvania Supreme Court recently struck down the use of the AMA guidelines as being unconstitutional. The issue of the adoption of the Sixth Edition here in Kansas has now been brought before the State Supreme Court.
The case, Johnson v. U.S. Food Service, was decided in the plaintiff’s honor by the Kansas Court of Appeals, which ruled that the KWCA had “emasculated” workers’ compensation “to the point where it is no longer an adequate quid pro quo” for injuries suffered on the job.
How Higher Standards Can
Hurt Workers and Limit Claims
In its report on workers’ compensation claims for the fiscal year of 2020, the Kansas Department of Labor (KDOL) continues to show a decline in the incident rate of injuries at work from a level of 4.51 incidents per 100 full-time workers in 2011 (the year the KWCA was passed), to 3.30 in 2020.
On the surface, this would appear that workplace safety standards are rising statewide, but these statistics mask the fact that a lot of the “decline” is due to new filing and eligibility restrictions. The unfortunate result is that more workers are left uncovered by workers’ compensation, despite having what many believe to be valid claims.
In addition to the prevailing factor provision and the 7.5 percent impairment level thresholds in place since 2011, there are a number of other factors that have led to fewer successful workers’ compensation claims. These factors include:
A Shortened Filing Period - You now have only 20 days to file a claim. If your medical evaluation takes 21 days, you could be denied.
More Stringent AMA Impairment Standards - While the Fourth Edition of the AMA based impairment on the ability to perform at work, the newly adopted Sixth Edition bases impairment on the capacity to take care of oneself — including eating, sleeping, and personal hygiene.
Where and When The Injury Occurred - The KWCA says the injury must occur during the “course and scope” of employment. If you’re injured on a break or commuting to and from work, you may not qualify.
Age and Aging Factors - The KWCA excludes conditions that result from the natural aging process or the normal activities of daily living.
Exclusion of Certain Medical Conditions - Coronary disease, vascular injury, and stroke are excluded unless it can be shown that “the exertion of the work that caused the injury was beyond that required by the employee’s usual job duties.”
Allow Slape & Howard to Fight for You
One of our clients has become a sort of local celebrity in the statewide workers’ compensation reform push. Sabrina Wassall, 49, made the news after being injured lifting heavy containers of fruit for her company, USD 259. She was represented by Attorney Jon Voegeli of Slape & Howard. Wassall lost wages because her physician placed her on work restrictions. After a 180-day employer limit on workplace accommodations, she was let go.
So, she lost her job, has this injury and pain, and there’s nothing she can do to pursue wage loss, at least not under the stated conditions of the KWCA. But we didn’t give up. Working with our firm, Ms. Wassall was able to negotiate a $45,000 settlement as opposed to the $3,400 that was originally offered to her under the Sixth Edition’s rating standards.
Our workers’ compensation attorneys at Slape & Howard stand ready to fight for you from the moment your injury occurs. We can help get you the medical evaluation you need and file all the necessary paperwork to have your claim filed on time. We will investigate every aspect of your accident, work to establish fault and liability, and assess your damages. We are prepared to do all that we can in the fight to obtain the just compensation that you deserve.
If you live in Wichita or anywhere else across the state of Kansas, and you’re facing an uphill struggle filing for workers’ compensation, call our firm immediately for a free case evaluation.