Maximum Recovery for Permanent Total Disability
Jan. 13, 2022
The revised Kansas workers' compensation system continues to put the squeeze on employees who are injured or get sick at work. Revised in 2011, the Kansas Workers Compensation Act (KWCA) put in place new requirements and regulations that make the system harder to navigate, and make qualifying for compensation ever more challenging.
Any injury sustained at work must now be the “prevailing factor,” which means if you have a pre-existing condition that was aggravated or contributed to your injury, you may be denied compensation.
Couple that provision with the state’s subsequent adoption of the 6th edition of the AMA “Guides to the Evaluation of Permanent Impairment,” which limits physicians’ ability to make judgment calls as to the extent of one’s injuries, and suddenly you’re facing longer and longer odds as an injured employee in Kansas.
On top of that, if you’re permanently and totally disabled to the point that you cannot work any job ever again, Kansas is one of only six states that cap the benefits that you can receive. The Kansas cap is $155,000 lifetime, and the next lowest state, Mississippi, places their cap at almost double Kansas’s, at $270,000.
If you’re seeking a claim for permanent total disability (PTD) — or any other type of claim — anywhere in the state of Kansas, contact our team of workers' compensation attorneys at Slape & Howard. We have been fighting aggressively for the rights of workers ever since the adoption of the 2011 KWCA, which favors employers and their insurance companies at the expense of employees.
Determining Permanent Total Disability
K.S.A. 44-510c defines permanent total disability (PTD) as existing
“…when the employee, on account of the injury, has been rendered completely and permanently incapable of engaging in any type of substantial and gainful employment. Expert evidence shall be required to prove permanent total disability.”
Note that “expert evidence” is required, which means a physician or physicians must provide documentation that the worker’s injury has resulted in a disability that will prevent that person from “substantial and gainful employment” ever again.
Here, the AMA’s 6th edition of its “Guides” could have a major impact. The previously used 4th edition based impairment on an inability to perform the work to which the employee was accustomed. The 6th edition bases impairment on the worker’s ability — or inability — to take care of themselves — including eating, sleeping, personal hygiene, and the other necessities of daily living.
The question of pre-existing conditions may also come into play, as the law states that the workplace accident must be the “prevailing factor” in assessing a workers' compensation claim. Benefits may also be denied for a variety of other reasons, including the worker deliberately ignoring safety regulations, being involved in fighting or horseplay, or refusing to submit to a chemical test for drugs.
Maximum Recovery for PTD
As mentioned above, the lifetime cap in benefits for those on permanent total disability, or PTD, is $155,000, a figure that has not changed since the KWCA was enacted in 2011. Weekly wage replacement benefits, which are paid as part of that lifetime cap, do rise yearly in a nod to inflation and wage increases. An employee out on workers' compensation generally is entitled to 66.67% of that worker’s average weekly compensation at the time of the accident.
Maximum weekly benefits have risen from $570 in 2013 to $687 in 2021. To reach the $155,000 cap, a worker on PTD would only have to be paid $687 for 225.6 weeks, or about 4.39 years. The cap, in other words, can be reached fairly quickly. If you’re a 35-year-old just starting on PTD, the available funds could run out in less than five years. You will then be 40 years old with no financial support from workers' compensation.
Trust Attorneys with Experience: Slape & Howard
As you can see, the odds are stacked against workers under the 2011 KWCA. At Slape & Howard, in conjunction with other legal groups, we have been fighting to restore employee rights at the legislative level. In the meantime, if you’re facing a denial of a claim, or other obstacles to obtaining the benefits you have earned through your employment, especially if it’s for permanent total disability, contact us immediately.
We will guide you through the claims and appeals process so you can improve your chances of obtaining the benefits you deserve. We will fight alongside you as long as it takes with all the knowledge, experience, and resources at our disposal, wherever you are in Kansas.