How the Kansas Workers' Compensation Act Is Harmful to Injury Victims
Oct. 23, 2020
Workers' compensation is a program, mandated by the state, that compensates employees for illnesses and injuries that occur on or because of the job. Each state establishes different rules and requirements for the claims process. Unfortunately, in 2011, Kansas enacted rules that make it particularly difficult for injured or ill employees to obtain the benefits provided.
According to the Kansas Department of Labor, there were 45,281 total injuries reported in 2020. Of those, less than 10% resulted in non-medical compensation to the injured worker. The median total amount that was paid directly to those claimants that did get compensation was $5,688.52, which includes weekly payments while they were off work. For almost all injured workers, that is an unacceptable amount and shows just how important it is to get an attorney to protect your rights.
If you were injured on the job in Kansas, you may be fearful of filing a claim because of potential employer retaliation or because you’ve heard that most claims are denied. At Slape & Howard, we are experienced workers' compensation attorneys adept at navigating the claims process. We have in-depth knowledge of the rights and limitations under the law and are actively fighting against the injustice created by the 2011 revisions.
Ways the KWCA Is Harmful to Injury Victims
In 2011, the state legislature, buoyed by influential business groups, passed the Kansas Workers Compensation Act (KWCA), which was aimed at making claims more difficult and favorable employee results less obtainable. It reduced filing time and set new limits on medication and wage compensation rates. In short, it is not friendly to employees, but benefits employers and insurance companies.
Some of the more notable ways that the KWCA is harmful to injury victims include:
Shorter Reporting Time
The KWCA reduced the claims filing period to 20 days after the injury. We had one client whose doctor took 21 days to affirm a legitimate workplace injury, but when he went to file, it was too late.
Must Demonstrate “Prevailing Factor”
Before the KWCA, workers' compensation in Kansas covered aggravation of a pre-existing condition. Now a claimant must show that a workplace accident was the “prevailing factor” in causing the injury, the need for medical treatment, and any resulting disability or impairment. In other words, it must be the primary factor.
What's worse, there is a provision of the law that states injuries that accelerate, exacerbate, or aggravate a pre-existing condition are not covered undered the KWCA. Specifically, this excludes pre-existing conditions that were not sympotomatice prior to the injury. This is all too often used to deny claims based upon underlying arthritis or degenerative conditions, which is exactly what was intended when it was passed.
There is hope, though. We see cases all the time that have been initially denied citing this section of the law. You can fight back, and we can help. There are many ways to overcome these denials, and an experienced attorney can help you navigate this process and get the benefits that are being denied.
Exclusion of Medical Conditions
The Act excludes conditions occurring as a result of the natural aging process or normal activities of daily living; injuries that arise out of a neutral or personal risk with no particular employment characteristic; or injuries that arise either directly or indirectly from idiopathic (unknown) causes.
This is another popular way for insurance companies to deny your claim. Often they say something like "Well, you injured yourself while walking, and walking is normal day to day activity, so we are denying the claim." Simply put, this analysis is wrong. We often overcome these denials because the insurance company is simply wrong about how the law is applied. If you are in the course of your employment, and you are furthering the employer's interests, your claim may very well be comepnsable. An experienced attorney will certainly be able to advise you on the specifics, but don't let this type of denial discourage you.
Also, 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.”
Limited Scope of Employment
The injury must occur during the scope of employment, meaning injuries on break time may be excluded as well as injuries driving to and from work. In addition, insurance companies may deny payment in cases of:
Deliberate failure to protect yourself against the injury
Your voluntary participation in horseplay or fighting
Careless violation of your employer's workplace safety rules
Wage Loss Factors
Under the old law, wage loss was based on 100 percent of one’s existing weekly wage, but the new law set a tougher standard: "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."
Reduced Hours in The Workweek
The law also no longer presumes that a workweek is 40 hours. Now, the gross wage is calculated using the actual amount of money earned. Currently, all the earnings you make in the 26 weeks leading up to the accident are added together and averaged by the number of weeks that you actually worked. Had a slow week and only worked 20 hours? It will count. Only worked one day? Generally that will also count and will drive your average weekly wage down, allowing for less compensation. There are ways around this, and, as always, we recommend consulting an attorney if you think you are being underpaid.
Disability Eligibility Tightened
A work disability allows a claimant to seek compensation for lost wages due to the disability. After 2011, a work disability requires a claimant must have sustained a minimum of 7.5% functional impairment to the body as a whole (10% if there is pre-existing impairment). That is based upon what is called a "body as a whole" (or BAW) rating. Prior to 2011, there was no theshold for a disability percentage that a claimant had to overcome to seek wage loss comepnsation.
As of 2015, Kansas adopted the 6th Edition of the AMA Guides is used as a starting point to calculate this percentage, and it has been widely criticized as suppressing impairment values and making it harder for claimants to get compensation for their wage loss.
New Limits on Medical Treatment
New limits were established on medical treatment. For instance, physical therapy must be reauthorized after 21 visits.
Future Medical Treatments Limited
Future medical treatment under the pre-2011 law required both sides to agree to a closure, usually in favor of cash considerations. After 2011, the claimant must now prove the necessity for future treatment. Often this requires a claimant to play a guessing game as to how the injury will react in the years ahead, and places them in a difficult position when the insurance company doctor says that they are just fine.
Job Loss Results in Inability to Receive Payment
Wage loss due to voluntary resignation or termination for cause is not to be considered wage loss for the purposes of work disability. This can mean an employer can stop paying weekly benefits if they tried to accommodate the injured worker on the job and the worker opted out.
As a result of these changes brought about in 2011, injury victims are less likely to have their claims approved thus reducing the liability of employers and insurance companies. It has given employers a reason to try and either remove an injured worker, or force them to resign "voluntarily." If your employer is trying to play games with you after an injury, contact an attorney immediately.
Experienced Kansas Workers' Compensation Attorneys
While filing a workers' compensation claim should be a simple process, in Kansas, if you don’t know what’s required, you can quickly be denied benefits even if your injury was a direct result of your job. You need the guidance of a workers' compensation attorney who understands the law and potential pitfalls.
At Slape & Howard, we have extensive experience and knowledge of Kansas workers' compensation law. We’ll help guide you through the process and help you exercise your rights. You deserve to be compensated for your workplace injuries and we will fight for justice. Contact us today for a free consultation. We proudly represent clients in Wichita and throughout the state of Kansas.