The KWCA: Before & After the 2011 Changes
May 28, 2020
In 2011, the Kansas Workers Compensation Act (KWCA) was amended to make it significantly more difficult to recover and prove your injuries in the State of Kansas. During the Brownback administration, a coalition of businesses rammed through significant changes that ultimately served to severely cripple the benefits that insurance companies would owe to injured workers.
As a result, numerous changes were made to the KWCA that made it more difficult for injured workers to recover under its terms. In 2013, these changes were made even worse with the implementation of the 6th Edition of the AMA Guides to Permanent Impairment, which was a widely criticized version of the guidebook used to determine the compensation owed to injured workers. The 6th Edition slashed benefits owed to workers and made it more difficult to recover at all. In a recent case, Johnson v. U.S. Foods, the Kansas Court of Appeals found that the use of the 6th Edition was unconstitutional. That case will be in front of the Supreme Court later in the year.
However, we know how to fight these changes and are proven in getting benefits for our clients. If you have been injured, you may be eligible for help through workers compensation. However, due to the changes brought about by the Act, you will need an experienced workers compensation attorney to help you navigate the difficult process. At Slape & Howard, we will help you fight for fair compensation. We proudly serve clients throughout the state of Kansas.
How the KWCA Changed Workers Compensation
The Act implemented several provisions that resulted in negative consequences for employees. Some of the changes that occurred include:
The “Prevailing Factor”
Before the revised Act took effect, if a claimant that could show that their work injury aggravated, accelerated, or increased the symptoms of their injury, they would be eligible for coverage under the KWCA. Now, however, if you are injured on the job, you must provide substantial evidence that the accident or repetitive trauma was the "prevailing factor" in causing your injury. In practice, this is routinely used to deny legitimate claims where workers have pre-existing degenerative changes.
That's where we come in. We are experienced in dealing with these types of denials from insurance companies. If you have been denied because your injury is not the prevailing factor, call us for a free consultation today.
Exclusions of Certain Medical Conditions
The Act, as revised, specifies that 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.”
Percentage of Work Disability
Under the prior law, a person who was disabled or no longer working was considered to have a 100 percent wage loss. Under the 2011 reform, the Act defines wage loss as the difference between the average weekly wage while the employee was working and the average weekly wage the employee is capable of earning after the injury.
A judge can determine what a person will be paid based on additional factors such as the job market, experience, education, training, capabilities, and age. An injured worker must also try to seek or maintain employment to establish any percentage of wage loss.
Eligibility for Disability Claims
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 preexisting impairment. The time period for calculating the total loss of disability is five years. In the past, it was fifteen years prior to the injury.
In practice, this means that claimants with legitimate injuries resulting in permanent restrictions can be terminated because they cannot perform the job, and would be prevented from pursuing any type of wage loss claim because they do not meet the threshold. There is no medical basis for this threshold, and it only serves to limit the benefits a claimant may be eligible for.
Additional Changes in The Act
There are numerous other changes made to the 2011 revision of the Kansas Workers Compensation Act that may affect employees such as:
Workers cannot refuse work that falls within a treating physician’s restrictions. This can mean that en employee may be required to change locations, change shifts or even work for a non-profit if the company still volunteers payment.
Employees terminated for cause or who resign from employment are no longer entitled to receive payment from their employer for wage loss. This can even mean that an employer can stop paying weekly benefits if they tried to accommodate the injured worker.
An injured worker is no longer entitled to receive treatment if the physician reports that they are at maximum medical improvement. Because of the 2011 changes, a worker must prove that they will need future medical treatment. In practice, that means that the doctor that was picked by the insurance company gets to make the initial decision as to when you are done with treatment and if you will need anything further in the future.
The law no longer presumes that a workweek is 40 hours. Instead, the claimant’s total gross wages are calculated by as low as a 26-hour workweek.
How an Attorney Can Help You with Your Case
The changes in the 2011 Kansas Workers Compensation Act complicated the claims process. Sadly, you are now more likely to make mistakes that could hurt your case, while going up against an employer and insurance company who may adjust or deny your claim.
Experienced workers compensation attorneys can help you file your claim so that it complies with the requirements mandated under the Act. At Slape & Howard, we can investigate your accident, establish fault and liability, and assess your damages. We will help you fight for fair compensation.
Contact a Workers Compensation Lawyer in Wichita, Kansas
If you were injured while on the job, then you have the right to hire an attorney and pursue compensation for damages. Slape & Howard can help you with your case. We work with clients on all types of workers compensation cases. Contact us today and get a free case assessment from a workers compensation lawyer in Wichita, Kansas.