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2025 Kansas Legislature: The 2025
Kansas legislative session has now ended.
There were no significant changes to Kansas workers compensation
statutes in 2025. The Kansas workers compensation pro-employer 2011 reform laws
remain in place through the 2025 legislative session. The significant 2024
legislative changes (see below) which increased benefits to claimants have now had one year
to play out, and while we do not have any significant Kansas appellate court
decisions interpreting those 2024 changes, on the employer/carrier claim
handling ground level for new injury claims occurring after July 1, 2024,
employers are seeing increased compensation payouts, particularly for high wage
earners.
2024 Key Statutory Changes Recap:
1. Increased Caps (previous caps in parentheses):
a. Death benefit cap increases to $500,000 ($300,000).
i. Benefits can exceed death benefit cap for dependent children until the
later of
1.
age 18.
2.
age 19 or graduation if still in high school at age 18; or
3.
until age 23 if in vocational school or college.
b. Permanent Total
Disability Cap increases to $400,000 ($155,000).
i. To be eligible to pursue permanent total disability benefits, an injured worker must prove the work accident resulted in at least a 10% permanent partial impairment to the body as a whole or, if the injured worker has preexisting impairment, the injured worker’s total permanent partial impairment to the whole body must be at least 15%.
ii.
The injured worker must still prove they are realistically and essentially
unemployable as a result of the accident.
c. Permanent Partial
Disability Cap increases to $225,000 ($130,000).
i. Injured worker
must prove permanent partial impairment to the whole body from the work accident of at least 7.5% or, if the
injured worker has preexisting impairment, the injured
worker’s combined permanent partial impairment to the whole body must be at least 10%.
ii. Work
disability is still determined by the average of wage loss, and task loss,
related to the work injury.
d. If the work accident results
in only permanent partial impairment, an injured worker’s recovery is capped at
$100,000. ($75,000).
e. Caps will remain fixed until
July 1, 2027, at which time a cost-of-living adjustment will kick in to raise
caps on a yearly basis. The annual percentage increase will be based on a
5-year average of the percentage increase in the State’s average weekly wage.
2. Preliminary Hearings:
a. Injured workers shall provide
records to opposing counsel at least 20 days before a preliminary hearing. If records are not provided at least 20 days
before the preliminary hearing, the court can grant additional time for the
employer to provide evidence which may controvert the employee’s records.
a. The authorized
treating physician’s opinion as to the need for future medical is presumed determinative
on the issue of whether future medical will be awarded in cases where there
have been no invasive procedures. This presumption can only be overcome with
clear and convincing evidence. What
constitutes “invasive” will be the subject of litigation.
b. If the injured worker had
invasive treatment as a result of the work injury, the authorized treater’s
assessment that no future treatment will be needed is still presumed
determinative of the issue. However, that presumption may be overcome if
claimant proves it is more likely than not that future medical will be needed.
4. Court-ordered independent medical examinations (COIME):
a. The Administrative
Law Judge may only order one COIME without agreement of the parties.
i. If the ALJ does
order a COIME, the COIME must be done prior to Prehearing Settlement Conference.
ii. In addition,
the COIME may not be used for the purposes of a rating, permanent restrictions, or opinions on permanent
total disability.
b. Parties are still
free to agree to a joint IME.
5. Post award medical and attorney fees:
a. The only procedure allowed to
pursue post award medical treatment will be under the provisions of KSA
44-510k. An injured worker may not pursue post-award medical benefits under
preliminary hearing procedures of K.S.A. 44-534a.
b. If post-award benefits sought
are provided within 30 days after an application for post award medical is
filed, no attorney fees should be awarded without showing, by clear and
convincing evidence, that the claimant attorney made significant legal effort.
6. Medical records:
a. Upon receipt of notice from
the Division of the setting of a Regular or Post-Award Hearing, the parties
shall exchange medical reports including those by examining and treating health
care providers. The exchange shall be at least 30 days before the hearing.
b. The testimony of a treating or
examining health care provider may be submitted into evidence without
additional foundation by submission to the opposing side of a complete medical
report that complies with procedural rules set forth in the statute.
c. Upon receipt of a proposed
complete medical report, a party has ten days to file a written objection to
the offering party stating the grounds for the objection. The ALJ shall then
conduct a hearing on the objections as to whether the proposal meets the
requirements of a complete medical report.
7. Notice of injury:
a. An injured worker must notify
the employer of the accident within 30 days (was 20 days) from date of accident
or 20 days (was 10 days) from last date of employment, whichever is earlier.
8. Stipulated awards:
a. If the employee is represented by counsel, a settlement can be completed without the need for a settlement hearing. The Division created the appropriate stipulations and Award documentation. The Administrative law judge is given five days from receipt of the signed stipulation to approve the agreed award or settlement. Note however, there are significant employer/carrier advantages to formalizing the settlement before a Special Settlement Judge.
9. Social security offset:
a. An award of permanent partial
or permanent total disability shall be subject to an offset equal to 50% of the
claimant’s Social Security retirement benefits.
b. An award of TTD and TPD
benefits shall not be subject to an offset for Social Security Retirement
benefits.
10. Average Weekly Wage Computation:
a. The calculation of average
weekly wage shall include vacation, sick leave and PTO paid during 26 weeks
before accident.
b. In addition, the average
weekly wage calculation eliminates the first week of wages from
calculations if the
employee did not work a full week.
11. Unauthorized Medical Allowance:
a. The allowance per
case for unauthorized medical is raised to $800 (was $500).
12. Per Diem for medical trips:
a. If an employee is required to
be away from home all day to obtain medical treatment, the employer shall pay
the employee a $30 (was $15) per diem.
b. The employer shall be
responsible for reimbursement of the reasonable expenses of overnight
accommodation as needed to avoid undue hardship on the employee. This is a completely new benefit that did not
exist in previous law.
13. Transcription of Hearing:
a. The Director may order
hearings to be recorded by digital recording or other means and later transcribed
by a certified shorthand reporter or notary public who shall attest to the transcription’s
accuracy.
14. 2024 Rates Update (2025 rates come out after July 1, 2025):
a. The maximum weekly indemnity benefit rate
increased to $835.00, effective for injuries occurring 7/1/2024 through
6/30/2025, based upon annual indexing to the state average weekly wage. Likewise for the same period, the minimum
weekly survivor benefit rate for fatalities increased to $556.71. Effective for medical travel after July 1,
2024, the medical mileage reimbursement rate increased from $.655 cents per
mile to $.67 cents per mile.
About the
Author: This update was prepared by National Workers’ Compensation Defense
Network Kansas member Kim R. Martens of the Wichita, KS firm MARTENS
WORK COMP LAW LLC, a law firm dedicated to representing self-insured
employers, insurance carriers, and third-party administrators in all matters
related to workers’ compensation before the Kansas Division of Workers’
Compensation and the Kansas appellate courts. If you have any questions about
this submission or Kansas workers’ compensation in general, please contact Mr.
Martens by either e-mailing him at Kim@MartensWorkCompLaw.com or by calling him
directly at 316-461-0135.
A. Lifetime Benefit Caps Increases: SB 430 increases the following lifetime maximum benefits as follows:
1. Death benefit cap will increase from current $300,000 to $500,000. Benefits can exceed death benefit cap for dependent children until the later of: 1) Age 18; 2) If enrolled in high school, May 30th of the senior year, or until such child becomes 19, whichever comes first; or 3) Until age 23 if enrolled in vocational school or college.
2. Permanent Total Disability cap will increase from current $155,000 to $400,000.
a. To be eligible pursue permanent total disability benefits, an injured worker must prove the work accident resulted in at least a 10% permanent partial impairment to the body as a whole or, if the injured worker has preexisting impairment, the injured workers total permanent partial impairment to the whole body must be at least 15%.
b. The injured worker must still prove they are essentially and realistically unemployable as a result of the accident.
3. Permanent Partial Disability
cap will increase from $130,000 to $225,000
a. Injured worker must prove permanent partial impairment to the whole body from the work accident of at least 7.5% or, if the injured worker has preexisting impairment, the injured worker’s combined permanent partial impairment to the whole body must be at least 10%.
b. Work disability is still determined by the average of wage loss and task loss related to the work injury.
4. Functional Only Cap: If the workers compensation accident results in only permanent partial impairment, an injured worker’s recovery cap is increased from $75,000 to $100,000.
5. Built In Cap Modifier: Caps will remain fixed until July 1, 2027, at which time a cost of living adjustment will kick in to raise caps on a yearly basis. The annual percentage increase will be based on a 5-year average of the percentage increase in the State’s average weekly wage.
B. Note: This is a basic summary of some of the key SB 430 work comp law changes. As of the date of this writing (April 2, 2024), SB 430 has passed both the Kansas House and Senate, but has not yet been signed into law by Governor Kelly. Details concerning additional changes in SB 430 will be updated once Governor Kelly has signed SB 430 into law. Effective date of these new law changes will be for work injuries occuring after July 1, 2024.
Update On Requirement Of Kansas Work Comp Impairment Ratings Being Based On The AMA Guides To The Evaluation Of Permanent Impairment 6th Ed. – Latest Word From Kansas Appellate Courts For 2023. This update follows the 2021 Kansas Supreme Court decision in Howard Johnson III vs. U.S. Food Service and American Zurich Insurance Co., 312 Kan. 597, 478 P.3d 776 (2021) and several Kansas Court of Appeals decisions following, interpreting, and applying Johnson. On January 8, 2021, the Kansas Supreme Court issued a much-anticipated decision reversing an August 2018 decision of the Kansas Court of Appeals (56 Kan. App. 2d 232, 427 P.3rd 996), that had struck down as unconstitutional the use of the 6th Edition of the AMA Guides to the Evaluation of Permanent Impairment, for measuring permanent impairment of function of injured workers with general body disabilities under the Kansas Workers Compensation Act. The Kansas Supreme Court held the language of K.S.A. 2019 Supp. § 44-510e(a)(2)(B) referencing the use of the AMA Guides 6th Ed. could reasonably be interpreted as a "guideline" rather than a "mandate." Therefore, the high court found the statutory provision requiring use of the 6th Ed. constitutional under section 18 of the Kansas Constitution Bill of Rights. The court stressed the statutory reference to the 6th Ed. did not alter the additional statutory requirement that any impairment rating must also be "established by competent medical evidence" which rendered sufficient the constitutionality of the statute as worded by the legislature when referencing the use of the 6th Ed. in Kansas workers compensation cases.
The court went on to indicate that use of the 6th Ed. is the starting point for a determination of permanent impairment under the statutory language for general body disability work injuries. With this language, the Court opened the door for administrative law judges to consider use of other editions of the AMA Guides and perhaps even no edition of the AMA Guides, as long as the 6th Ed. is at minimum a starting point.
The initial application of the Supreme Court’s Johnson decision by administrative law judges appeared to adopt the approach that Justice Stegall, writing for the Supreme Court in Johnson, delivered something for everyone in the Supreme Court’s Johnson decision. For the employer and carrier side, the 6th Ed. language in the statute was deemed to be constitutional and therefore retained as at least a starting point for an impairment rating analysis. For the injured worker side, the decision is being interpreted as opening the door for formulations of rating opinions outside of the four corners of the 6th Ed. of the AMA Guides, if the rating opinions also qualify under part-two of the legal test as “competent medical evidence.”
The statutory context of the Johnson issue of whether use of the 6th Ed. was constitutional in relation to determining impairment for general body disability injuries under K.S.A. 2019 Supp. § 44-510e(a)(2)(B). In Kansas, general body disability injuries are considered the exception, and scheduled disabilities as listed in the statute are considered the general rule. A follow up question after the Supreme Court’s Johnson decision was whether in the context of scheduled injuries and disabilities found in K.S.A. 44-510d(b)(23), the requirement of using the AMA Guides 6th Ed. in determining permanent impairment of function is constitutional, and both the starting and ending point for the analysis. The statutory language mandating the use of the AMA Guides in K.S.A. 44-510e(a)(B) for scheduled disabilities is different than the language of K.S.A. 44-510d(b)(23) for general body disabilities. The scheduled disability statute requires impairment of function related to a scheduled injury shall be determined using the 6th Ed. if the impairment is contained therein. The scheduled disability statute, K.S.A. 44-510d(b)(23), does not contain the phrase by "competent medical evidence" that the Johnson court cited in the general body disability statute. The plain language of K.S.A. 44-510d(b)(23), the scheduled disability statute, requires the functional impairment to be based upon the 6th Ed. There is no explicit requirement in that statutory language that the impairment rating be based upon any other criteria, including substantial competent medical evidence.
In Butler v. The Goodyear Tire and Rubber Company, OSCAR CS-00-0285-928 (WCAB May 2021) the Kansas Workers Compensation Appeals Board addressed this issue in the context of whether the plain language of the scheduled disability statute mandates the use of the AMA Guides 6th Ed. for a shoulder injury. The Appeals Board affirmed the ruling of the administrative law judge that the plain language of the scheduled injury statute is different than the plain language of the general body disability statute relied upon by the Johnson court. That difference in the plain language of the scheduled disability statue was held to leave no room for the court to consider or apply any other AMA Guide edition other than the 6th Ed. as required by the plain language of the statute.
Several notable Kansas Court of Appeals decisions in late 2021, early 2022 and 2023 illustrate that the question of whether the Johnson Court’s pronouncement that the AMA Guides 6th Ed. is “just the starting point” is still somewhat up in the air regarding whether general body claims can be awarded impairment of function compensation based on any version of the AMA Guides other than just the Sixth Edition.
On October 1, 2021, the Kansas Supreme Court granted publication of the Court of Appeals decision in Zimero v. Tyson Fresh Meats, 61 Kan. App. 2d 1, 490 P.3d 86 (2021). Zimero held that for a general body disability compensation claim, “any reference to the 4th Edition for injuries occurring after January 1, 2015, is irrelevant. The Court of Appeals rejected claimant’s argument holding that “Parties and courts do not choose between the 4th Edition or the 6th Edition. The 6th Edition is statutorily required.”
Next, on December 3, 2021, a separate panel of the Kansas Court of Appeals issued an unpublished opinion in Morris v. Shilling Construction Co., Inc., No. 123,297, 2021 WL 5751704 (Kansas Court of Appeals unpublished opinion filed Dec. 3, 2021). The Morris opinion which appeared to affirm the Zimero position that the Supreme Court decision in Johnson while requiring that the starting point being use of the 6th Edition and then using competent medical evidence to determine the compensable impairment, does not leave room for use of the 4th Edition which the legislature expressly removed and replaced with the now required AMA Guides 6th Edition.
Then on January 28, 2022, yet another panel of the Kansas Court of Appeals issued its published opinion in Garcia v. Tyson Fresh Meats, Inc., 61 Kan. App. 2d 520, 506 P.3d 283 (2022) seeming to be critical of an Appeals Board decision that did not appear to consider medical evidence which was based on the AMA Guides 4th Edition when awarding permanent impairment of function compensation. Zimero clearly holds that the 4th Edition can no longer be used to determine permanent impairment while Garcia appears to hold that not considering the 4th Edition may be reversable error.
Th most recent Kansas Court of Appeals application of the Johnson court two-part test following the published Court of Appeals decision in Garcia is the unpublished decision issued by a three-judge panel of the Court of Appeals on February 24, 2023, in Ortega v. Encore Rehabilitation Services LLC, No. 124,824 (Kan App 2023) (unpublished opinion). In Ortega, the Court of Appeals followed part-one of Justice Stegall’s two-part test and held that it must, under Johnson, “start with the AMA Guides 6th Ed.” Under part-two of the Johnson test, the Ortega majority held that other competent medical evidence supported that the 6th Ed. rating should be more heavily weighted over the claimant’s expert 4th Ed. rating opinion. In short, the Ortega majority more closely followed the Zimero approach but without stating that the 4th Ed. can no longer be considered, as Zimero held. A dissenting opinion in Ortega articulated that the case should be remanded back for additional medical evidence for a re-evaluation of the “competent medical evidence” part of the two-part legal test.
The bottom line as of 2023 is that for general body disability claims Kansas law requires that Justice Stegall’s Johnson two-part test is still controlling and in effect, and all impairment rating opinions must: 1) start by using the AMA Guides 6th Ed.; and 2) to the extent there is deviation from the AMA Guides 6th Ed., the impairment rating opinion must satisfy part-two of the legal test that for any medical expert impairment rating opinion not using the AMA Guides 6th Ed., that opinion must be explained under the “competent medical evidence” prong of the test. As a practical matter for parties currently in disability compensation litigation in general body disability claims, this situation means that it is likely medical rating opinion evidence which uses other editions of the AMA Guides, other than the 6th Edition, will not be automatically excluded (as Zimero seemed to hold), but can be attacked factually using the “competent medical evidence” prong of the two-part test. The practical effect of this for parties in litigation is it will likely increase the cost and scope of workers’ compensation final award litigation in Kansas.
The bottom line as of 2023 for scheduled disability claims in Kansas, is that the rating opinions must be based upon the AMA Guides 6th Ed. or the party risks that the rating opinions will not be considered by the court in issuing a disability compensation award.
2023 Kansas Work Comp Legislative Update. There were no substantive Kansas work comp legislative changes of import in 2023 to the Kansas Workers Compensation Act.
2023 Rates Update. The maximum weekly indemnity benefit rate increased to $804.00, effective for accidents occurring 7/1/2023 through 6/30/2024, based upon annual indexing to the state average weekly wage. Likewise for the same period, the minimum weekly benefit rate for fatalities increased to $536.00. Effective for medical travel after July 1, 2023, the medical mileage reimbursement rate increased from $.585 cents per mile to $.655 cents per mile.
© Copyright 2023 by Kim R Martens, MARTENS WORK COMP LAW LLC. All rights reserved. Reprinted with permission.