Slape & Howard
How the Kansas Workers' Compensation Act Is Harmful
The Kansas Workers' Compensation Act (KWCA) of 2011, which increased the hurdles for injured workers to file claims and receive benefits while enriching the insurance companies liable for those benefits, has been under legal attack since its enactment.
A decision by the Kansas Court of Appeals in Johnson v. U.S. Food Service declared that the legislation had “emasculated” workers' compensation “to the point where it is no longer an adequate quid pro quo” for injuries suffered at work. In other words, the act not only hampered the rights of the injured but also reduced the benefits that injured victims can receive, putting employers at odds with their employees.
That decision, based upon the act’s use of guidelines (updated by the American Medical Association) that curtailed “physician discretion” in evaluating injured workers, is currently pending before the Kansas Supreme Court.
We at Slape & Howard, however, have long been advocating for changes to the Kansas Workers' Compensation Act. We believe the KWCA launched a full-frontal assault on the rights of employees in Kansas, specifically their right to be fairly compensated for injuries and illnesses suffered at work. We are diligently at work drafting legislation that can be presented to lawmakers in 2021 that we believe is fair for both employers and employees alike.
If you find yourself injured at work in Wichita, Kansas, we stand ready to help you through the various challenges placed in front of you by the KWCA. We remain committed to helping individuals file a workers’ compensation claim so that they can start receiving the benefits they deserve. Likewise, if you’re an employer and the KWCA has eroded the loyalty of your workforce and put them on edge, we stand ready to help.
Setbacks for Both Employees and Employers Under the KWCA
According to the Kansas Department of Labor, the number of injuries and illnesses suffered on the job statewide reaches about 50,000 each year. Of these, however, the latest statistics show that only 1,401 claims have been successfully filed so far in 2020, with just 371 of those currently receiving benefits. This low figure is due to several new restrictions and re-definitions found in the KWCA.
Here are some of the major changes enacted by the KWCA:
- The period for filing claims for workplace injury and illness has been reduced to 20 days. If the physician evaluation takes 21 or more days, the employee could be out of luck.
- The new law says that any injury must be the “prevailing factor” in causing a disability or impairment. Before the KWCA, mere “aggravation” of a preexisting condition would qualify someone for compensation.
- The injury, in addition, must occur during the scope of employment — meaning injuries that occur during break time may be excluded, as well as injuries driving to and from work.
- Claimants in disability cases must now have a minimum permanent partial disability of 7.5 percent of the body caused solely by the injury, or a minimum of 10 percent functional disability if there is a preexisting impairment.
- The act excludes conditions occurring as a result of the natural aging process or normal activities of daily living.
- Certain medical conditions, such as coronary disease, vascular injury, or stroke, are excluded from compensation unless it is shown that “the exertion of the work that caused the injury was beyond that required by the employee’s usual job duties.”
- The act allows employers to screen for drug and alcohol use after the injury, and a positive finding could result in denial of benefits.
How the New Law Impacts Lost Wages
From a financial standpoint, the KWCA is also no friend to the injured worker. Whereas injured employees might expect to receive 100 percent of their weekly compensation while unable to work, the new law says they’ll get only "the difference between the average weekly wage the employee was earning at the time of the injury and the average weekly wage the employee is capable of earning after the injury."
The law also no longer presumes that a workweek is 40 hours. Instead, the claimant’s total gross wages can be calculated by as low as a 26-hour workweek. Also, if the employee quits or is terminated for cause, the employer can stop payment altogether.
While it may seem like these modifications clearly favor the employer over the employee, such analysis does not include the damage to worker morale that can result in companywide distrust and even lead to productivity losses. Regardless of which side you fall on, the insurance companies who are liable for paying out the benefits appear to benefit the most from the KWCA legislation — as the new changes have led to fewer claims being successfully processed.
At Slape & Howard, We Stand with You
Insurance companies now possess more ways to limit or deny employee claims, while the law makes the process of filing a claim so tedious and challenging that many workers often stall in their efforts to pursue compensation. At Slape & Howard, our attorneys have been helping both employers and employees in Wichita and across the state of Kansas navigate the complicated hurdles set up by the KWCA since its enactment. We are now also on the forefront of seeking legislative changes to the law that will restore both employee and employer rights that have been scaled back by the 2011 statute.
If you are looking for reliable legal counsel for your workers’ compensation case, please contact us today for a consultation — but remember the new and more limiting time-frame to file a claim. At Slape & Howard, we can investigate your accident, establish fault and liability, and assess your damages. We will fight aggressively to protect your rights and help you pursue fair compensation. If you’re an employer or an employee, we encourage you to reach out and communicate with us your ideas for how the current workers' compensation system in Kansas can be improved. Contact us today to find out more about how we can help you.