State News : Kansas

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Kansas

MARTENS WORK COMP LAW LLC

  866-226-3494

VACCINE SIDE EFFECTS COMPENSABILITY OVERVIEW.

 

            Vaccines against COVID-19 have arrived and are readily available for Kansans to receive, and the virus appears to be morphing into multiple variants with no immediate end in sight.  Many employed Kansans have procured and received one or more doses of the COVID-19 vaccine on their own, unrelated to their employment status or any employer vaccine sponsorship.

 

            Kansas employers and employees routinely experience common annual non-occupational virus generated illnesses that can result in employees first experiencing symptoms while at work, such as common colds and the flu.  It is generally understood that an employee experiencing cold and flu symptoms while at work does not automatically present with a compensable work injury by accident, repetitive trauma, or occupational disease claim.  Some Kansas employers will, each year, offer employer sponsored illness prevention opportunities such as on premises opportunity to get a free flu shot.  Does Kansas work comp law provide any guidance on compensability of employee illnesses arising from employer sponsored efforts to prevent illnesses?

 

            This presentation analyzes the potential key compensability issues of an adverse reaction to any of the COVID-19 vaccines when received by the employee in the context of employer sponsorship of the vaccine needle jab.  Employer “sponsorship” is an intentionally vague and ambiguous term covering a wide spectrum of possible fact situations from absolute employer mandate at one end, to purely voluntary, but employer facilitated and loosely encouraged, at the other end.  Somewhere in the middle are the potential fact situations where the employer does not explicitly mandate or require, but strongly encourages the employee to get a COVID-19 vaccine jab.

 

LIKELY SMALL UNIVERSE OF POTENTIAL CLAIMS.

 

            The Centers for Disease Control (CDC) publishes information regarding likely possible currently known COVID-19 vaccine inoculation “reactions” which can be found at:

 

https://www.cdc.gov/coronavirus/2019-ncov/vaccines/expect/after.html#print

 

These typical reactions can include:

            ► Arm pain, redness or swelling at site of inoculation.

            ► General body chills, fever, nausea, muscle pain, tiredness, headaches.

 

            None of these short-term temporary vaccine inoculation reactions are likely to form the basis of a litigated compensable Kansas work comp claim.

 

            In very rare cases, and these are the ones that would most likely be the candidates for a possible Kansas work comp claim, the CDC references possible severe or immediate allergic reactions after vaccine inoculation.  Additionally, it must also be remembered that it is too early to rule out the possibility of other rare but long-term COVID-19 vaccine inoculation adverse reactions which could form the basis of future Kansas workers compensation claims.

           

ANALYSIS OF KEY KANSAS ELEMENTS OF COMPENSABILITY OF AN ADVERSE COVID-19 VACCINE REACTION CLAIM.

 

            A.        Select a claim theory – Injury by Accident, Injury by      Repetitive Trauma, or Occupational Disease.

 

            An adverse reaction to a COVID-19 vaccine needle stick inoculation could potentially, depending on the specific facts, fall under any of the three available claim theories of injury by accident, injury by repetitive trauma or occupational disease.  However, the most likely theory of claim to be used in an adverse needle stick vaccine inoculation situation is injury by accident.  K.S.A. 44-508(d) accidental injury elements are likely to be met by a vaccine needle stick inoculation:

                        1.         Sudden traumatic event.

                        2.         Identifiable by time and place of occurrence.

                        3.         Producing at the time symptoms of the injury and occurring                        during a single work shift.

 

            Should the facts of the case support that the claimant felt symptoms from the needle stick (including even slight pain sensation from insertion of the needle in the arm) at the time of the vaccine inoculation, but no real adverse symptoms appearing until a day or so later, such facts might draw a defense claim that the needle stick inoculation did not produce symptoms of the ultimate serious “injury” (resulting adverse vaccine reaction) during a single work shift.  Such a defense claim that the real injury was the resulting delayed serious adverse reaction symptoms, which did not first manifest on the actual date of the needle stick, would likely be met with the following claimant response.  Claimant would assert that the law does not require all injury symptoms to be manifest on the initial date of accident.  In Barber v. State of Kansas, No. 1,067,643 (WCAB May 2014), the Appeals Board found claimant met the element of compensable work accident even though not all resulting body part symptoms arose on the first day.  As long as some initial injury symptoms appeared on the first day, that was held sufficient to satisfy the statutory accident requirement of occurring on a single work shift.

 

            The other two claim theories of injury by repetitive trauma and occupational disease are not automatically excluded from possible compensability consideration and may be necessary for claimant attorney to explore in the event there are unique facts relating to nature of the afflictive vaccine reaction or potential lack of timely notice facts which might pose compensability problems under the injury by accident claim theory that would otherwise be overcome under the injury by repetitive trauma or occupational disease theories.

 

            B.        Personal Injury.

 

            The current definition of “injury” under the act found at K.S.A. 44-508(f)(1) provides that injury means: “… any lesion or change in the physical structure of the body, causing damage or harm thereto…”  Furthermore, the current act goes on to clarify at 44-508(f)(2) what a compensable injury does not include: “An injury is not compensable because work was a triggering or precipitating factor. An injury is not compensable solely because it aggravates, accelerates or exacerbates a preexisting condition or renders a preexisting condition symptomatic.”

 

            The Appeals Board has applied pre-2011 reform law and previously found that a work-related needle stick caused personal injury by accident resulting in Hepatitis C and awarded preliminary hearing benefits.  See Perrill v. Wesley Medical Center, Docket No. 233,702 (WCAB Oct. 1998).  There are several other Appeals Board Orders denying compensability of work claimed needle stick injuries for other reasons:  Smith v. Augusta Medical Complex, Inc., Docket No. 214,080 (WCAB Nov. 1996), where the Appeals Board found specific accident claims including a needle stick did not cause the claimed injuries of carpal tunnel syndrome or ulnar nerve entrapment.  Eshghi v. St. Joseph Medical Center and Riverside Hospital, Docket No. 204,375 (WCAB Aug. 2000), where the Appeals Board found the alleged needle stick event was not the likely cause of the claimant’s Hepatitis C infection.  Halverson v. St. Francis Hospital, Docket No. 184,956 (WCAB March 1997), where the Appeals Board held claimant failed to prove timely notice and timely written claim for compensation.

 

            None of the above needle stick Appeals Board decisions involved the post-2011 reform law provisions or the current definition of “injury.”  It is anticipated that new law “injury” issues and defenses raised, if any, will most likely center around what the post-2011 law language states are not a compensable injury – a sole aggravation of a preexisting condition where the preexisting condition is mere made symptomatic with the work being a triggering or precipitating factor.  Is an adverse reaction to a COVID-19 vaccine inoculation solely an acceleration or exacerbation of the body’s preexisting normal immune response?  Defense counsel will likely consult with medical experts to explore the best science and current medical understanding of the anatomical lesion or damage alleged in a particular claimant’s adverse reaction to a COVID-19 vaccine inoculation and whether the facts give rise to a sole exacerbation and/or prevailing factor cause defense.

 

            Thus, a serious and prolonged COVID-19 vaccine inoculation adverse reaction claim will likely be looked at, at minimum, as a temporary needle stick reaction injury claim.  In the absence of strong defense medical causation evidence, the vaccine needle stick will likely be seen as causing the claimed reaction injury even though the effects of the adverse reaction may not fully arise immediately on the identified single work shift of the jab. 

 

            C.        Arising Out Of (AOO) and In the Course Of (ICO)         Employment.

 

            A Kansas employer is liable to pay compensation to an employee where the employee incurs personal injury by accident arising out of and in the course of employment.  See K.S.A. 44-501b(b).  K.S.A. 44-508(f)(2)(B) further provides that an injury by accident shall be deemed to arise out of employment, and therefore compensable, only if: (i) There is a causal connection between the conditions under which the work is required to be performed and the resulting accident; and (ii) the accident is the prevailing factor causing the injury, medical condition, and resulting disability or impairment.

 

            Whether an accident arises out of and in the course of the worker’s employment depends upon the facts peculiar to the particular case.  Kindel v. Ferco Rental, Inc., 258 Kan. 272, 278, 899 P.2d 1058 (1995).  The two phrases arising "out of" and "in the course of" employment, as used in the Kansas Workers Compensation Act, have separate and distinct meanings; they are conjunctive, and each condition must exist before compensation is allowable.  The phrase "out of" employment points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment.  An injury arises "out of" employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Thus, an injury arises "out of" employment if it arises out of the nature, conditions, obligations, and incidents of the employment. The phrase "in the course of" employment relates to the time, place, and circumstances under which the accident occurred and means the injury happened while the worker was at work in the employer’s service.  Id. at 278.

 

            The AOO and ICO issues will likely play out as the key set of issues and defenses related to the compensability of an adverse reaction to a COVID-19 vaccine inoculation in Kansas.  Do the facts establish that the COVID-19 vaccine inoculation was sufficiently employer sponsored to render any resulting illness therefrom as arising out of and in the course of employment?

 

            In his seminal treatise on workers compensation law, Professor Larson writes a chapter on “Acts Outside Regular Duties” and within that chapter, addresses acts that benefit claimants including “Inoculations and Employment Health Tests.”  Larson, Workers’ Compensation Law, Section 27.03[2], p 26 (1995).  In Larson’s survey of workers compensation case law related to vaccine inoculations, Professor Larson boils it down to the following:

 

            “When inoculation is occasioned by the particular conditions of employment, injury resulting from inoculation should be deemed to have occurred in the course of employment.  If there is an element of actual compulsion emanating from the employer, the work connection is beyond question, as when the company requires the employee to submit to vaccination by the company’s doctor as soon as the employee is hired, or during an epidemic tells the worker that unless they are vaccinated they cannot work until the epidemic is over.” Id.

 

            Professor Larson’s treatise tacitly acknowledges that some jurisdictions being more employer friendly, hold that injuries from inoculation or medical tests are not compensable as arising out of and in the course of employment if the compulsion for the vaccination or test comes from state law or a government directive, or are undertaken by the employee on a purely voluntary basis.  Id., p. 28.  For example, where an employee voluntarily and beyond employer compulsion is injured during a hearing test done on the employee’s own time, said injury is not arising out of and in the course of employment. In this regard, Professor Larson highlights the Kansas appellate court decision of Wilson v. Mercy Health Center, 28 Kan. App. 2d 410, 15 P.3d 853 (2000).

 

            Claimant Wilson was a surgical nurse whose hearing had deteriorated apparently unrelated to her occupation, but instead related to previous illness and aging.  Her supervisor, at some point, suggested to her that her hearing troubles interfered with her work and posed a safety risk to patients.  Nurse Wilson visited an audiologist on her own time to be fitted for hearing aids in both ears.  In that medical evaluation process, nurse Wilson’s right ear drum was ruptured.  The Kansas Court of Appeals affirmed the Appeals Board denial of benefits to Wilson under the act because her injury did not arise out of or in the course of employment.  Id. at 411.  Without much discussion, the Court of Appeals concluded that her supervisor’s suggestion that her hearing loss was interfering with her job and becoming a safety risk to her patients did not render the need for hearing testing to be work related.  The Court of Appeals did not find her employer’s suggestion of a need for hearing testing to be a fact sufficient to trigger a causal connection between her need for hearing aids and the conditions under which her work was required to be performed.

 

            Would the denial of compensability under the arising out of and in the course of employment issue be different than the outcome of the Wilson case above, if the facts involved a claimed injury resulting from a vaccine inoculation where it is alleged that the employer either mandated or strongly encouraged the employee to get the vaccine inoculation?

 

            Perhaps the compensability holding in the Appeals Board preliminary hearing decision of Sauerwein v. Sedgwick County Area Educational Services Interlocal COOP, Docket No. 233,967 (WCAB July 1999) foretells a different compensability outcome where a Kansas employer is found to have either mandated or at least strongly encouraged an employee to get the jab as a condition of their continued employment.  Ms. Sauerwein worked as a paraprofessional with preschool aged children with disabilities.  The job involved direct physical contact with the children including changing diapers and wiping noses.  During orientation, Ms. Sauerwein was told the Hepatitis B vaccination was required under her job classification because of the level of physical contact with the children.  Ms. Sauerwein received three vaccine inoculations and subsequently experienced progressive and varied symptom reactions to each of the three vaccine inoculations.  Ms. Sauerwein’s doctor opined that the inoculation side effects she experienced were probably caused by the Hepatitis B vaccination.

 

            Both the Administrative Law Judge (Hon. Nelsonna Potts Barnes), and the Appeals Board, held for purposes of preliminary hearing that Ms. Sauerwein’s adverse Hepatitis B vaccine inoculation reactions were compensable as arising out of and in the course of her employment and awarded medical treatment and TTD benefits.  The employer argued that compensability should be denied because the vaccination inoculations were procured by Ms. Sauerwein voluntarily.  The Appeals Board decision appears to conclude her employment compelled her to get the jabs as a condition of her employment.

 

            The best answer we can glean at this time to the Kansas compensability of COVID-19 vaccine inoculation injuries question, posed in the title of this paper, is that the outcome of the arising out of and in the course of employment issue likely depends on the particular facts of any future claim concerning the level of employer compulsion or mandate as a condition of employment provided to the trier of fact.  Evidence of an explicit employer mandate or strong encouragement to get the COVID-19 vaccine inoculation as a condition of employment will likely result in a compensability finding assuming none of the other arising out of and in the course of post-2011 reform law defenses are found applicable (such as prevailing factor cause).

 

            On the other end of the factual spectrum, where compensability may be denied is the fact situation where uncontroverted evidence establishes that the employer did not mandate the COVID-19 jab, that the employee sought COVID-19 vaccine on their own time unrelated to employment and for personal health reasons.

 

            Factual grey areas that may cut in favor of a compensability finding, if present, include the following:

            ►        Employer providing on-site COVID-19 vaccine inoculations,                                  particularly if the jab is administered by company nurse or another                                 employee.

            ►        Employers providing time off work and free transportation to off-   site clinics to get the vaccine inoculation during a regular work     shift.

            ►        Other employer provided incentives to get the jab including direct money incentives or the imposition of employee benefit sanctions      such as decreases sick leave pay if unvaccinated employees lose            time from work due to a COVID-19 infection, but no such benefit decrease is invoked on employees who chose to get the jab.  

 

            Kansas employers hoping to avoid Kansas work comp liability for employee injuries or illness resulting from a COVID-19 vaccine inoculation that might be alleged as “merely suggested” or “at most loosely encouraged” by the employer, will want to make clear to employees that any employer suggestion of, or encouragement for, getting the COVID-19 vaccine inoculation is not mandated as a condition of employment, is purely voluntary on the part of the employee and is to be procured on the employee’s own personal time.  There appears to be a very fine line between the Wilson, supra, employer communication suggesting hearing aids because the hearing troubles were interfering with Wilson’s work and posing a safety risk to patients on the one hand (compensability denied), and on the other hand, the Sauerwein, supra, facts of the employer allegedly telling Sauerwein that the vaccine inoculations were “required” (compensability awarded).

 

            Finally, for Kansas employers mandating COVID-19 vaccines for employees in specific employments where the government has issued requirements that all employees in those certain designated employments must be vaccinated, defense counsel will likely assert that the mandate is not employer generated, but is instead government mandated, and therefore does not arise out of employment because the risk of exposure was government imposed, not employer mandated.  Larson, supra, at Section 27.03[2], p. 28.  However, this defense argument would most assuredly be met with intense factual scrutiny as to whether the employer took other and independent actions with employees in other job positions not subject to the government mandate to get vaccinated.  Facts establishing that the employer either mandated or strongly encouraged other employees not covered by any government mandate to get the COVID-19 vaccination inoculation would likely undercut this “blame the government” argument.

 

 

Kim R. Martens

MARTENS WORK COMP LAW LLC

P.O. Box 16967

Wichita, KS  67216

(316) 461-0135

Kim@MartensWorkCompLaw.com

September 28, 2021

2019 Kansas Legislature:  There were no substantive Kansas work comp legislative changes in 2019.

Constitutionality of Statute Requiring Use of AMA Guidelines 6th Ed. –Johnson case pending before the Kansas Supreme Court:  As of August 1, 2019, the Kansas Supreme Court is considering an appeal from a decision by the Kansas Court of Appeals which issued a broad constitutional rejection of Kansas’ use of the AMA Guides to the Evaluation of Permanent Impairment 6th Edition to determine permanent partial functional impairment in Kansas work comp cases.

In Johnson v. U.S. Food Serv., 56 Kan. App. 2d 232, 427 P.3rd 996 (2018), the Kansas Court of Appeals ruled across the board striking down all 2013 Kansas act amendments which substituted the use of the AMA Guides 6th Ed. for the AMA Guides 4th Ed. to both scheduled and general body disabilities.  The Court’s ruling broadly applies to all injured workers and all body part ratings.  In colorful literary prose, theJohnson Court focused in on the question of whether the 2013 legislative substitution of the 6th Ed. for the 4th Ed. finally so tipped the scales that the Act’s workers compensation legislative remedy is no longer an adequate substitute for the loss of the injured employee’s original common law tort remedy.  The Court held that the use of the 6th Ed. over the 4th Ed. so drastically cut the remedy and monetary recovery of Kansas’ injured workers, that there is no longer an adequate quid pro quo for injured workers suffering a permanent impairment of function for their work injury.

Approaching the issue from a historical perspective, the Court noted that multiple pro-employer legislative revisions to the Kansas Act over the years has resulted in injured workers seeing a gradual erosion of the fair exchange between rights granted under the Act verses the recovery rights lost under common law, equivalent to “death by a thousand paper cuts” for the permanently disabled worker in Kansas.

Note that Kansas never adopted the AMA Guides 5th Ed., going directly from use of the 4th Ed. to the required use of the 6th Ed. under the 2013 legislative paper cut.  Thus, the ultimate outcome of this issue will likely be the binary choice between whether the law mandates use of the 4th Ed. or the 6th Ed. of the AMA Guides.

The Johnson decision by the Kansas Court of Appeals was timely appealed to the Kansas Supreme Court and on February 28, 2019 the Supreme Court accepted the Petition for Review of the Court of Appeals decision.  As of August of 2019, the Court is towards the end of the briefing process and it is likely oral arguments will be scheduled for some time in late 2019 or early 2020.  It is anticipated that a decision by the Kansas Supreme Court will be issued by spring 2020.

During the pendency of this appeal, most parties to active ongoing litigated KS work comp cases are procuring both AMA Guides 4th Ed. and 6th Ed. impairment rating opinions, not knowing which Edition will apply after the Supreme Court decides the issue.  Employers, carriers and TPAs should consult with defense counsel when considering settling any Kansas work comp claim, particularly regarding what rating opinions would be needed to reliably accomplish a claim settlement before a Kansas settlement judge.

2019 Kansas Schedule of Medical Fees.  The updated 2019 Kansas Medical Fee Schedule effective on and after March 29, 2019 and applicable to Kansas work comp claims can be found on the Kansas Division of Workers Compensation web site at the following link:

https://www.dol.ks.gov/docs/default-source/workers-compensation-documents/schedule-of-medical-fees/2019-schedule-of-medical-fees.pdf?sfvrsn=b0a18e1f_12

2019 Rates Update.  The maximum weekly indemnity benefit rate was increased to $666.00, effective 7/1/2019 through 6/30/2020, based upon annual indexing to the state average weekly wage of $888.29.  The minimum weekly benefit rate for fatalities for the same period, pursuant to K.S.A. 44-510b, is increased to $444.00.  Medical mileage reimbursement rate for the same period increased to $.58 cents per mile.

KANSAS WORK COMP EMERGING ISSUES AND TRENDS - 2018

2018 Kansas Legislature:  The 2018 Kansas legislature enacted several substantive workers compensation law changes related to death benefit claims.  Highly summarized, while the overall $300,000.00 death benefit cap remains, key death benefit statute changes include:  1) the funeral benefit cap was increased from $5,000.00 to $10,000.00; 2) the up-front lump sum payment increases from $40,000 to $60,000.00; 3) clarification of statutory language regarding cut off of payments to minor dependent children when still in high school; 4) increase in caps for dependents, if any, where employee leaves no legal spouse or dependent children; and 5) increase in allowable Conservator expenses for minor dependents up to maximum of $2,500.

Constitutionality of Statute Requiring Use of AMA Guidelines 6th Ed. –Pardo Kansas Court of Appeals Ruling:  The 2013 Kansas Legislature amended the Kansas Workers Compensation Act to require use of the AMA Guides to the Evaluation of Permanent Impairment6th Ed. to determine an award of permanent partial disability compensation based on the extent of functional impairment.  Prior to January 1, 2015, the statutorily required AMA Guides edition was the4th Ed.  The change from use of the AMA Guides 4th Ed. to the 6th Ed. became effective for all injuries occurring on or after January 1, 2015.

Since 2015, Kansas claimants and the claimant’s bar have been heard to complained that the AMA Guides, 6th Ed. so significantly reduces impairment ratings and resulting compensation awards, as to effectively eliminate an adequatequid pro quo substitution of a work comp remedy for the workers’ original civil tort damage remedy.  In the original grand bargain, Kansas injured workers relinquished their common law civil court tort remedy of uncapped damage award potential from a jury of their peers, in exchange for a no-fault benefit remedy system that was intended to adjudicate work injury disputes and deliver medical treatment more quickly and predictably, but with capped disability benefit recovery potential for injured workers and lower costs to employers.

On June 1, 2018, the Kansas Court of Appeals (Kansas’ intermediate appellate court) handed down its ruling in the case ofPardo v. United Parcel Service, Inc., (No. 116,842) concerning the constitutionality of the Kansas Workers Compensation Act’s 2015 adoption of the AMA Guides 6th Edition in calculating permanent partial disability compensation benefits.

Claimant Pardo was a thirteen-year employee of UPS operating trucks, picking up and delivering loads, and working in the yard with a spotter.  The accidental work injury which was the subject of this claim occurred on March 18, 2015 while climbing on a piece of equipment.  Mr. Pardo slipped on an oil and grease buildup, causing his left arm to jerk, and he felt a pop and pull in his left shoulder.

The focus of Pardo’s constitutional challenge of the legislative requirement that permanent partial disability be computed based on the AMA Guides, 6th Ed. was a unique 6th Ed. rating limitation for shoulder injuries.  The 6th Ed. specifies for a certain type of rotator cuff tear, a 0% -2% permanent impairment rating can be given.  However, the 6th Ed. also adds the provision not found in the AMA Guides 4th Ed. that a rating in the range of 0% to 2%for these types of shoulder injuries can only be given once in an individual’s lifetime (AMA Guides, 6th Ed., Table 15-5, Page 402).

Pardo’s unique fact situation was that he had suffered a prior left shoulder rotator cuff tear in a previous 2013 work related injury, which resulted in a previous left shoulder surgical repair and disability compensation recovery.

When applying the AMA Guides 6th Ed. to this 2015 claim of left shoulder re-injury, the employer’s argument was that Pardo was entitled to no additional permanent partial disability compensation for this 2015 shoulder work injury.  This is in stark contrast to what permanent disability compensation Pardo would have received had the law allowed Pardo’s impairment and disability compensation to have been based on the old AMA Guides 4th Ed. language.

Under the previously required AMA Guides 4th Ed. shoulder rating provisions, had they still been in place in 2015, Pardo would likely have been awarded, for the 2015 re-injury, permanent disability compensation of an additional 10% permanent impairment above the previous 15% permanent impairment Pardo had been awarded for his first left shoulder work injury.

In short, because Kansas required the AMA Guides 6th Ed. to be used to determine his permanent disability compensation for the 2015 left shoulder re-injury, Pardo is now entitled to zero dollars ($0) additional permanent disability compensation above his previous 2013 original shoulder injury award.  Contrast the $0 permanent partial disability compensation award under the AMA Guides 6th Ed. for the Pardo 2015 re-injury claim, with the approximate $13,000.00 award he would have received for that 2015 re-injury claim had the old 4th Ed. version of the AMA Guides still been in place in the statute.

This compensation recovery differential under the AMA Guides 6th Ed. left Pardo with the obvious legal argument thatas applied to his case the legislative change from the AMA Guides 4th Ed. to the 6th Ed. was unconstitutional because not only was the amount of his permanent disability compensation significantly reduced for this second work related shoulder injury, he was actually completely denied any permanent disability compensation remedy under the 6th Ed. requirement applicable to his 2015 accidental re-injury claim.  Therefore, the quid pro quo basis of the original grand bargain was lost to Pardo as the amended law requiring the use of the 6th Ed. was applied to his 2015 re-injury claim situation.

The Pardo Kansas Court of Appeals decision reversed the Appeals Board denial of permanent disability compensation benefits.  In doing so, the Court of Appeals held thatas applied to Mr. Pardo, the use of the AMA Guides 6th Ed. was unconstitutional and remanded the case back to the administrative agency for a determination of permanent impairment and disability compensation entitlement based on the AMA Guides 4th Ed.

Interestingly, neither the employer nor Pardo filed with the Kansas Supreme Court, a timely Petition for Review by the Supreme Court of thisPardo Court of Appeals decision.  This is because while the outcome of thePardo Court of Appeals decision to reverse the Appeals Board favored claimant Pardo, the very narrow and limited rationale for the decision used by the Court in its opinion to reach that result could be seen as actually potentially benefiting employers in future AMA Guide 6th Ed. rating disputes.  It appears each side calculated the risks of further appealing this particular Court of Appeals outcome and decided the risks of further appeal to the Kansas Supreme Court were greater than simply living with the outcome of the Court of Appeals decision as written in Mr. Pardo’s case.

Claimant Pardo prevailed in the outcome of this decision in that his case will now return to the Appeals Board and instead of receiving $0 additional permanent disability compensation for the 2015 re-injury, he will likely receive a modest award of some additional permanent disability compensation.  Yet this is a far cry from what claimant Pardo argued for before the Kansas Court of Appeals in this appeal.

Pardo’s basic request to the Kansas Court of Appeals was that the Court determine the entire Kansas Workers Compensation Act unconstitutional and allow Kansas injured workers to regain their original civil tort remedy in Kansas general civil courts, before a jury of their peers.  Pardo argued that his $0 permanent disability compensation award was unconstitutional as it denied him due process, violated equal protection, violated separation of powers and was an unlawful delegation of the State’s legislative powers.

The rationale of the Pardo Court’s ruling did not grant claimant Pardo with the sweeping evisceration of the Kansas Workers Compensation Act his counsel requested of the Kansas Court of Appeals.  The Court rejected Pardo’s recommendation that he be allowed to purse civil tort damages for his 2015 work injury because the requirement of use of the AMA Guides 6th Ed. denied him a remedy under the Act.  The Court potentially limited the scope and future application of its decision to other Kansas injured workers through its holding that the Act’s use of the AMA Guides 6th Ed. was unconstitutional, by carefully restricting its determination of unconstitutionallyto this particular claimant’s fact situation as opposed to the entire Kansas Workers Compensation Act as applied to all other current and future injured worker claims.

The current and future impact of this limited Pardo Court of Appeals decision will be closely followed.  Undoubtedly, this will not end the claimants’ bar challenges to the constitutionally of the AMA Guides 6th Ed. in other fact situations, and other more general constitutional challenges as to the broader pro-employer 2011 reform amendments to the Act.  While other pending and future shoulder re-injury claims in Kansas will likely be resolved by the parties with a compromise consideration of AMA Guides 4th Ed. impairment ratings for specific rotator cuff re-injury claims, whether thisPardo Court of Appeals decision will impact the routine resolution of Kansas claims involving body part problems beyond just certain shoulder injury conditions is yet to be determined.

Kim R. Martens
MARTENS WORK COMP LAW LLC
Phone: 316.461.0135
E-mail:Kim@MartensWorkCompLaw.com
www.MartensWorkCompLaw.com

1.  NEW - Kansas Workers Compensation Claim Triage.

►        What Is Kansas Work Comp Claim Triage?

         • Kansas work comp claim triage is a new proactive approach for employers, carriers and TPAs in Kansas to act immediately upon receipt of notice of a work injury to utilize 2011 Kansas reform laws more effectively and to identify “red flag” claims for enhanced attention and action.

        • There are actions Kansas employers, carriers and TPAs can proactively take to utilize and apply 2011 reform law provisions which are not available in other states.  Kansas employers need to know about these proactive actions available to them and they need a place to go for a road map of how to proactively benefit from these new law opportunities.

►        Where Can I Get Claim Triage Help In Kansas?

            • On your PC, tablet or smart phone, go to www.wctriage.com

            • Contact Kim Martens at martens@hitefanning.com for the access code password

            • Use the access code password to gain access to the KS WC Claim Triage Web App

2.   2/1/2015 Start to the 2015 Kansas Legislative Session.

►        Anticipated Changes:  There is only one substantive workers compensation change currently rumored that the 2015 Kansas legislature might consider.  There is concern particularly among claimant bar members that the new 1/1/2015 rule that all new injuries by accident and repetitive trauma, and occupational disease claims are now rated and governed by theAmerican Medical Association, Guides to the Evaluation of Permanent Impairment,Sixth Ed. (previously Fourth Ed. controlled) will significantly lower injured worker impairment ratings and present difficulty for impaired and disabled workers to overcome the work disability thresholds of “greater than 7.5%” and “at least 10%” in cases where there is a preexisting impairment.&nbsnbsp; Stay tuned for more information on this as the 2015 session progresses because anything is possible.

3.  Final Results of the 2014 Kansas Legislative Session.

►        Lowered Proof Threshold For Certain Public Safety Personnel:  The traditional “heart amendment” in Kansas eliminated the recovery of workers compensation benefits by workers afflicted with a work related coronary or coronary artery disease or cerebrovascular disease to only situations where the work necessary to precipitate the disability was more than the employees’ usual work in the course of the employee’s regular employment.

That compensability limitation for all Kansas workers was lessened effective July 1 2014 for firefighters and law enforcement officers where the injury can be identified and was caused by a specific event and the coronary or cerebrovascular injury occurred within 24 hours of a specific event, and the specific event was the prevailing factor cause of the injury.

4.  Final Results of the 2013 Kansas Legislative Session.

In SB 187, the 2013 Kansas legislature accomplished passage of some additional improvements to the Kansas workers compensation statutes for employers, on top of the previously favorable 2011 reform laws:

►        Nominating Committee:  Changes the makeup of the nominating committee for administrative law judges and the appeals board member positionsfrom two entities (Kansas Chamber and AFL-CIO) to seven (KSIA, Kansas Chamber, National Federation of Independent Business, AFL-CIO, a public employee rep, the Society for Human Resource Management, and a designee of the Secretary of Labor).  Recommendations require a 2/3 majority of this newly comprised nominating committee.  The amendments also increase the pay of administrative law judges to a level equal to 85% of a state district court judge.

►        AMA Guides Sixth Edition:  Changes the requirement of use of AMA Guides 4th Edition to AMA Guides6th Edition for dates of injury on and after January 1, 2015.  That means that for all injuries occurringprior to January 1, 2015 the AMA Guides 4th Edition is still applicable.  Obviously this will require a ramp up educational period for everyone in the process, particularly the doctors; hence the law allows an educational period which mandates now that the change will not occur until on an after January 1, 2015.

►        Timely Notice Of Injury By Accident And Repetitive Trauma  Requirement Shortened:  The 2011 pro-employer amendments changes the timely notice requirement to 30 days from the date of accident or repetitive trauma or within 20 days of the last date worked in the event the employee no longer works for the employer.  That 30 day/20 day rule has now been changed to a 20 day/10 day rule.  The new shorted timely notice requirement is effective for date of injury claims occurring on or after April 25, 2013.

►        Technical Change To The Procedure To Appeal An ALJ Refusal To Recuse Himself/ Herself:  A common sense change was made in the procedure to appeal an ALJ’s refusal to recuse themselves.

►        Statute Of Limitation Tolling Provision Applicable To Employers Who Fail To File Accident Reports Was Removed:  The provision tolling any time limitation where the employer failed to file an accident report with the Division of Workers Compensation after being given notice of a work injury, was removed.

5.  New Law Case Update.

 Kansas’ 2011 pro-employer reform laws continue to play out favorably for employers in 2013, 20114 and 2015 with multiple favorable Appeals Board decisions received enforcing the reform law provisions.  Previous Kansas news updates included summaries of employer favorable Appeals Board decisions inShepard v. Big Lakes Development Center, Inc. Docket No. 1,058,184, (April 2012prevailing factor cause defense) andPrice v. Robert Todd Baker d/b/a Sunshine Lawn & Tree Service, Docket No. 1,058,417 (February, 2012reckless violation of a safety rule defense).  A brief sampling of additional more recent Appeals Board decisions favorably enforcing the Kansas reform laws include for employers include the following cases:

 ►        Reduce Awards And Settlements With New Preexisting Impairment Offset Rule:  InMark Jackson v. Amsted Rail Co. Inc., Docket #1,058,952 (September, 2013), the Appeals Board affirmed the Administrative Law Judge in applying the new preexisting impairment offset which had the effect of reducing the worker’s functional award from $24,292.35 to $2,430.90. Action Alert:  It is critical in every claim being considered for settlement now, that the employer, carrier and/or TPA have defense counsel research and analyze claimant’s prior award history, as numerous claims are now being overpaid because of a failure to proactively apply this new law provision.

 ►        Simple Aggravations Of Preexisting Conditions No Longer Compensable Work Injuries:  InCraig v. U.S.D. 465, Docket No. 1,059,210 (August, 2012) the Appeals Board denied compensation for a simple work aggravation of a preexisting degenerative condition when a maintenance and custodian worker heard a pop in his shoulder and felt sharp pain in his left wrist.  The Appeals Board found that the work activity may have caused his preexisting degenerative condition to become symptomatic, but that no longer qualifies as a compensable work accidental injury.

 6.  Updated Kansas Division of Workers Compensation Web Page: 

             http://www.dol.ks.gov/WorkComp/Default.aspx

 By Kim R. Martens of Hite, Fanning & Honeyman L.L.P. www.hitefanning.com

July 11, 2012 Kansas Workers Compensation Law Update.

1.  Final Results Of The 2012 Kansas Legislative Session.

The final results of the 2012 Kansas legislative session were no substantive or significant changes to the Kansas Workers Compensation Act.  Our 2011 pro-employer reform laws remain in place and are starting to take hold with great results for employers.

2.  Summary Of A Few Of The Significant 2011 Pro-Employer Kansas WC Law Reforms:

A) To be a compensable work accident, there must be an undesigned, sudden and unexpected traumatic event, identifiable by time, and place of occurrance, and must produce at the time of accident, symptoms of injury and must occur on a single work shift.

B) To be compensable, the work accident must be the prevailing factor cause of: a) the injury; b) the need for treatment; AND c) the resulting impairment or disability. If the accident causation proof fails in any of these three elements, the accident is deemed to "not arise out of employment."

C) The "simple aggravation of a preexisting condition" rule which previouly resulted in Kansas employers paying tens of millions of dollars in benefits and treatment for preexisting conditions, is gone.  In its place is a higher standard of injury and causation claimants must prove to establish a compensable personal injury by accident on the job.

D) "Arising out of and in the course of" employment does NOT include: a) injury by natural aging process or activities of day-to-day living; b) neutral risks; c) personal risks; d) accidents or injuries arising either directly or indirectly from idiopathic causes.

E) All compensation is disallowed in the case where the injury results from the employee's "reckless" (lower standard than "willful") disregard of an employer safety rule or regulation.

F) For the accidental injury to "arise out of" employment, the claimant must prove a causal connection between the "conditions under which the work is required to be performed" AND the work accident.

 3.  More Good News For Employers On Appeals Board Decisions Interpreting And Applying The New 2011 Pro-Employer Workers Compensation Law Reforms.

PREVAILING FACTOR CAUSE DEFENSE

In Shepard v. Big Lakes Development Center, Inc. Docket No. 1,058,184, (April 2012), the Kansas Workers Compensation Appeals Board reversed an administrative law judge preliminary hearing order awarding benefits on the prevailing factor cause defense.

While the Appeals Board acknowledged Shepard proved a work accident occurred on July 22, 2011, and she presented medical causation opinions from two separate doctors, the Board held that claimant failed to meet her burden of proof under the new prevailing factor cause requirement that her work accident resulted in her current need for medical treatment.

The key to the Board's denial of benefits in this case was that Board found that even though claimant procured two favorable expert opinions that the work accident was the prevailing factor cause of the injury and need for treatment, those experts had not been provided the full relevant medical histories of the claimant.  As such, those pro-claimant causation opinions were flawed and unreliable.  If fact, claimant Shepard had a long history of prior low back and knee problems and those facts were not provided to the doctors who provided claimant favorable causation opinions.

The refreshing take away from this favorable "new law" Appeals Board decision is that the intent of the new law reforms is in fact being enforced and carried out by the Appeals Board.  The new law reforms did away with the old law "simple aggravation of a preexisting condition" rule, that cost Kansas employers untold enormous sums of money in compensating workers for preexisting conditions which were not work injury related.

The Appeals Board Member writing the Shepard decision explicitly pointed this out in the following passage:  "The new law, placed into effect on May 15, 2011, requires additional elements of proof from a claimant.  No longer is the simple aggravation, acceleration or exacerbation of a preexisting condition sufficient."

This case points out to claimant attorneys in Kansas that they would be wise to do their due diligence regarding medical history discovery on their client prior to procuring medical expert causation opinions, to get their experts the full and complete medical histories of their clients.  This would allow that any pro-claimant expert opinions generated, can be relied on in court by the Judge.  The obvious question is why wouldn't this be standard operating procedure in the first place?

The flip side of that coin for employers, carriers and TPA's in Kansas is that it is now essential that they spend the money and time in the defense of a workers compensation claim to discover and procure all relevant medical history information concerning a claimant.  This case proves that such efforts can result in a total claim denial thereby saving significant workers compensation costs.

By Kim R. Martens of Hite, Fanning & Honeyman L.L.P.  www.hitefanning.com

April 9, 2012:             Kansas Workers’ Compensation Law Update.

1.         Results Of The 2012 Kansas Legislative Session.

As of April 9, 2012, while the Kansas Legislative Session for 2012 is not technically completed, it appears that there will be no significant substantive changes to the Kansas WC Act by the 2012 Legislature. The significant pro-employer revisions enacted in 2011 (see July 7, 2011 update below) remained intact, and are starting to work their way through the WC litigation system with actual administrative decisions (see discussion below) with great results for employers, TPA’s and carriers!

2.         Several Initial Preliminary Hearing Appeals Board Decisions Are Effectuating On The Pro-employer Changes In Kansas’ 2011 Reform Laws, And The Results Are Dramatic And Favorable For Employers And Carriers.

Several initial Kansas Workers Compensation Appeals Board decisions interpreting and applying the 2011 Reform Laws bear out the sea change of outcomes for employers, TPA’s and carriers doing business in Kansas. Below are several examples.

RECKLESS VIOLATION OF SAFETY RULE/REGULATION DEFENSE:

Price v. Robert Todd Baker d/b/a Sunshine Lawn & Tree Service, Docket No. 1,058,417 (February 21, 2012).  Claimant was a tree trimmer and sustained injury when he fell out of a tree hitting a power line and then falling to the ground.  The employer provided claimant with safety equipment including a safety harness, lanyard and rope.  Claimant appeared to be an experienced climber and was seen in the days prior to the accident, properly using the safety equipment.  A supervisor testified that the owner had caught claimant on one occasion not using the safety equipment, and reprimanded the claimant.  The employer denied claimant’s entitlement to workers compensation benefits because just after the accident, claimant was caught with his safety equipment in a position evidencing he had not been using it just prior to the fall; therefore the fall was caused by claimant failing to properly use his safety equipment.

New law K.S.A. 44-501(a)(1) provides:

Compensation for an injury shall be disallowed if such injury to the employee results from … (D) the employee’s reckless violation of their employer’s workplace safety rules or regulations. (Emphasis supplied)

The Administrative Law Judge (ALJ) awarded compensation over the employer’s defenses applying “pre-reform law” principles and old law case precedent.  Basically the ALJ refused to grant the employer’s defense because the employer failed to prove that the claimant’s actions in  failing to use the safety equipment did not amount to a “willful” refusal to use the safety equipment.  This is in fact the way the vast majority of cases were decided under the “old law” statutory language, with the employer never able to effectuate on the defense because the hurdle to achieve the defense was place so high by the application of the requirement that the employer had to prove that the claimant’s refusal to use the safety equipment was “willful.”  In practice, this “willfulness”  proof requirement necessary to succeed on the old law defense was almost like having to prove the employee intended to injure himself – a threshold almost never impossible for an employer to prove.

On appeal to the Kansas Workers Compensation Appeals Board, the ALJ’s compensability award was reversed and all compensation was denied for purpose of preliminary hearing.  The Appeals Board member writing the decision correctly cited to the “new law” provision quoted above and consulted other Kansas appellate court decisions for an interpretation of the proof requirements under the word “reckless.”  “Reckless” conduct has been defined as conduct that shows a realization of the imminence of danger and a conscious and unjustifiable disregard of that danger.  The Appeals Board member applied this lesser standard to the employer’s defense and concluded under the facts that claimant’s act of failing to use the provided safety equipment constituted a reckless violation of the employer’s workplace safety rule concerning the use of safety equipment.  All compensation was denied for purposes of preliminary hearing.

Analysis of the application of this new “reckless disregard” defense: The Price case summarized above illustrates the pro-employer sea change taking place in Kansas under our 2011 reform laws.  Claimant Price made a conscious decision not to use the safety equipment his employer safety rules required him to use, which resulted in him sustaining personal injury on the job.  Why should the employer in this case be punished by having to pay workers compensation benefits when the cause of the accidental injury was the claimant’s conscious choice to not use the safety equipment provided by the employer?  Under the “old law” principles and concepts existing in Kansas before our 2011 reforms, claimant Price would have surely been awarded benefits and the employer would consequently be penalized by having his business costs go up, simply because this claimant made the conscious decision to not use safety equipment the employer provided him, which if used, would have prevented the accident from happening.  The purpose and intent of the 2011 reforms was in part to bring back some reason and sanity to Kansas workers compensation, and the Price case illustrates that the Appeals Board is in fact applying those reforms as intended.

PREVAILING FACTOR CAUSE DEFENSE:

In Lowrey v. USD 259, Docket No. 1,056,645 (November 21, 2011), claimant alleged he fell off of a ladder hitting and injuring his left knee.   Claimant denied preexisting left knee problems or treatment, and the employer agreed it could not prove claimant suffered from prior left knee injury or pain.  However, a post accident MRI of the left knee was reviewed by the authorized treating doctor, and he opined in a written report (but was not deposed) that in addition to a meniscus tear, claimant clearly had some degenerative changes going on in the left knee as shown on MRI.  The doctor also wrote:  “I explained to him that this is pre-existing…”

Kansas’ new reform laws contain multiple new references to a new medical causation standard (prevailing factor cause) which replaces the old “simple aggravation” rule.  Under the old law “simple aggravation” rule, the only thing the claimant had to prove was that the work accident caused some “aggravation” of a pre-existing condition.  This “simple aggravation” rule was almost impossible for employer’s to defend against, and prevail.

New law K.S.A. 44-508 now specifically requires the claimant must prove that the work accident is the prevailing factor causing the injury, medical condition, and disability or impairment.  “Prevailing” as it relates to the term “factor” means the primary factor in relation to any other factor.

The ALJ in Lowery awarded preliminary hearing compensation benefits including the cost medical treatment, without any analysis or application of the new law statutory proof requirement that the work accident must be the prevailing factor cause of the need for treatment.

On appeal, the Appeals Board member reversed the ALJ’s award of benefits, and denied all compensation benefits including medical treatment for purpose of preliminary hearing.  The basis for the denial of benefits was that claimant failed in his burden of proof of proving that the work accident was the prevailing factor cause of the need for medical treatment.

Analysis of the application of this new “prevailing factor cause” defense:  The Lowery case summarized above illustrates another sea change of Kansas workers compensation – the death of the “simple aggravation” causation rule.  Prior to the new reform law “prevailing factor cause” defense, it was virtually impossible for an employer to prevail on a defense that the work accident did not really cause “an injury” because the “injury” proof requirement was met by the claimant simply testifying that the work accident caused “an aggravation” of a pre-existing condition (no pain before, but pain now after the work aggravation).  There is absolutely no question under the “simple aggravation” test that the outcome of claimant Lowery’s preliminary hearing would have been different, and he would have received a preliminary award of benefits.  However, with the new law prevailing factor cause proof requirement, the Lowery outcome suggests to Kansas claimants that they better come to court with at least some credible medical evidence or opinion that the work accident was the prevailing or primary factor cause of the need for medical treatment, or risk that their claim will be denied for failure to meet the burden of proof requirement.  This is a huge and significant pro-employer change arising from the 2011 reform laws.

3.         New Director Of Workers Compensation Appointed.

Anne Haught was recently appointed to replace former Director Larry Karns, as the new Kansas Director of Workers Compensation.  Anne replaces former Director Karns and continues the task of properly and fairly administering the Kansas Division of Workers Compensation in its implementation of the new law reforms.

July 7, 2011:               Kansas Workers’ Compensation Law Update.

1.         Results Of The 2011 Kansas Legislative Session.

Significant new pro-employer workers’ compensation law reforms passed the Kansas Legislature in 2011 and were signed into law by Governor Sam Brownback.  Sweeping new pro-employer workers’ compensation laws went into effect in Kansas for dates of accident or repetitive trauma occurring after May 15, 2011.

In essence, the new law reforms sweeten the pot at the finish line for claimants by modestly increasing our maximum benefit caps (for example lifetime permanent total cap went from $125,000 to $155,000 – relatively speaking, still a very low perm total exposure).  However, the new law reforms contain many new defenses which will likely act as hurdles preventing many more claimants from getting to that finish line.

In short, fewer claimants will successfully establish compensable claims, but those that do, could see slightly more money in the end.  For employers and carriers, while there will be increased litigation costs on the short term effectuating all the new defenses, over the long term, these new law reforms will likely reduce the overall number of claims and costs for employers.

These new statutory reforms legislatively reverse the holdings of four prior appellate court decisions discussed in previous Kansas Law Updates found below:  Casco, discussed below in the May 17, 2007 update was reversed by these new law reforms (this change is one of the few that is pro-employee); Bergstrom, discussed below in the September 25, 2009 update, was reversed by the new law reforms (this reform law reversal is really good for employers); and both the Redd and Mitchell cases discussed in the October 5, 2010 update, were also reversed by the new law reforms (again these new law reform reversals are pro-employer changes).

It is strong suggested that any employers, adjusters, claims professionals consult with legal counsel regarding assessing compensability and exposure of all Kansas claims with dates of accident or repetitive trauma occurring after May 15, 2011.  It is a whole new ballgame in Kansas after May 15, 2011 and the changes are so sweeping and comprehensive that professional assistance is required to benefit from all the new changes.

A very brief list of some of the most significant changes includes:

  • Multiple new compensability defenses including but not limited to:  new definitions for accident, injury and repetitive trauma which will provide new proof requirements for injured workers; sweeping new causation defenses (prevailing factor test) which heighten the worker’s proof requirements to establish compensability; new defense where worker’s injury results from reckless violation of employer’s work place safety rules and regulations; new beefed up horseplay/fighting on the job defense; new lack of timely notice rules; new easier to establish drug/alcohol impairment defense affording more chance of success for a complete denial of benefits.
  • New private insurer and self-insured employer obligation to issue written notice to all workers receiving TEMPORARY disability compensation benefits concerning fraud.
  • Multiple new defenses related to preexisting conditions, impairments and prior work restrictions which allow employers/carriers more opportunity for compensation denials, subtractions and offsets.
  • Multiple new defenses for employers against TTD liability where the worker has voluntarily terminated or been terminated for cause or refused accommodated work.
  • Increased importance and legal support of authorized treating physician opinions over worker’s hired gun doctor opinions in TTD entitlement context.
  • New average weekly wage calculation method and rules.
  • New limits on, and increased proof hurdles for, workers try to establish permanent total disability compensation.
  • New permanent partial disability compensation rule for calculating value of bilateral carpal tunnel syndrome and other bilateral injuries – reversing Casco decision.
  • Multiple new defenses to work disability compensation claims including higher hurdles (new minimum impairment threshold) for worker to claim work disability entitlement, and elimination of work disability compensation for undocumented workers.
  • Enhanced methods for employers to get slow moving or dormant cases dismissed.
  • Significant new defenses to future medical benefits exposure and new ways to get future medical liability cut off.
  • Several pro-worker new law changes including modestly increased benefit caps, elimination of the timely written claim statute of limitation and conversion of bilateral carpal tunnel type cases back to a general body disability allowing for work disability compensation potential.

2.         New Director of Workers Compensation appointed:  Larry           Karns, one of the drafters of the pro-employer new law reforms,         was appointed Kansas Director of Workers Compensation.  This           really concludes the “pro-employer” sweep of a new pro-     employer set of laws, and a new pro-employer administrator to      see that the new law reforms are properly and fairly   administered and implemented.

October 5, 2010: Kansas Workers’ Compensation Law Update.

1.         Results Of The 2010 Kansas Legislative Session.

In summary, there were no substantial changes to the law by the Kansas Legislature in 2010.  The 2010 Kansas Legislative Session ended much like 2007, 2008 and 2009 with no significant legislative change or amendments to the Kansas Workers’ Compensation Act.  Labor groups and the claimants’ bar continue to push to increase Kansas’ low benefit caps.  Business and industry sought to decrease the cost of workers’ compensation.  There were competing bills introduced, but nothing significant was passed.  The end result was no legislative change favoring either side.  The pro-business Republican 2010 Legislature did not aggressively move to try to change laws in favor of employers because the current Governor is a Democrat, and would likely have vetoed any sweeping reforms.  That scenario is likely to change in the 2011 legislative session.  Kansans will likely elect U.S. Senator Sam Brownback as the new Governor in the upcoming November 2010 election.  If this occurs as is expected, both the House and Senate will be controlled by Republicans and the Governor will be Republican.  Many in Kansas are projecting that this is the optimum political environment and opportunity for employers to pass pro-business legislation which would most certainly be signed into law by the next Governor.  Stay tuned for updates after the 2011 legislative session ends as there most likely will be good news for employers in Kansas.

2.         Significant New Legal Changes In 2010 Continue To Come From The Kansas Supreme Court.

Two recently released Kansas Supreme Court opinions will likely continue to push employer workers compensation costs up. Last year’s update regarding the Bergstrom case predicted increased employer settlement and award disability compensation costs.  While there are no official statistics published yet, most employers, observers and practitioners would agree that the effect of the Bergstrom decision discussed in 2009’s update increased employer settlement and disability compensation award payments.

Two new decisions issued by the Kansas Supreme Court in September, 2010 will likely continue to push up employer workers compensation costs.  These new decisions are very lengthy and space allows for only a very brief summary.

In the most pro-claimant outcome, the Kansas Supreme Court in Redd v. Kansas Truck Center, No. 101,137 (September 10, 2010), ruled that for multiple injuries to a single scheduled member (such as a wrist and elbow surgery on the same arm) the workers compensation judge must now make separate awards for each injury to that scheduled member.  The practical result of this decision is that before a wrist and elbow injury would be computed based on a combined impairment to the full arm.  Now, instead of one award for both injuries to the full arm, there will be two separate awards issued from the one accident.  It is possible that in some fact situations, this new “multiple award” decision will actually compute to a lower actual cost to the employer.  Employers and adjuster are cautioned to seek advice of counsel to update exposure estimates on currently pending and new scheduled injury claim.

Redd also set forth a new rule regarding $50,000 “functional impairment cap.”   The new rule says that the cap does not apply where the worker has been paid even the slightest amount of TTD benefits.  Thus, in certain circumstances, an employer will want to carefully evaluate potential challenges to TTD benefit entitlement where the claimant is a high wage earner and potentially subject to future application of the cap.

Finally, Redd clarified that the new “appellate standard of review” for the appellate courts which allows for more scrutiny of the fact findings of the Workers Compensation Appeals Board applies to Board decisions issued after July 1, 2009.  For any appeals to the Court of Appeals or Supreme Court from Board decisions issued prior to July 1, 2009, the more limiting “substantial competent evidence” standard from the old statute is still applicable.

Turning then to the other new Kansas Supreme Court decision in Mitchell v. Petsmart, Inc., No. 99,528 (September 10, 2010), we find a “mixed benefit” opinion from the Court with elements that are both favorable and unfavorable to employers. The pro-employer ruling in Mitchell is the smack down by the Supreme Court of the often championed argument by claimants that the administrative regulation (K.A.R. 51-7-8) which allowed for, in the computation of permanent disability compensation benefits, a subtraction of the number of weeks of TTD benefit already paid to the claimant.  The claimant’s bar has for several years tried to argue for a statutory interpretation that would effectively allow for double-dipping – taking TTD benefit weeks and then also taking PPD compensation for those same weeks.  The Kansas Supreme Court affirmed the position long held by employers and carriers that the regulation preventing double dipping is clearly within the authority granted by the statutory language.

The remaining two Mitchell rules are characterized here as negative to employers and carriers because they fly in the face of the plain language of the workers compensation act and will likely increase employer and carrier defense litigation costs because they will increase workers compensation litigation costs.  The first of these two rulings is the re-establishment of the “bright-line rule” for determining date of accidental injury in repetitive use micro-trauma injury claims such as carpal tunnel syndrome cases.  The re-established “bright-line rule” for determining date of accidental injury is “the last date worked.”  At first glance this would appear to be a helpful clarification of the very confusing and cumbersome statutory legal test.  The problem is that this new “bright-line rule” for determining date of accidental injury is not found in, and is contrary to, the plain language of the statutory test.  So, the administrative law judges are now faced with the decision, in every repetitive use injury case, of deciding which rule to follow – the “bright-line rule” of last date worked as provided by the Mitchell decision, or the plain language of K.S.A. 44-508(d) which does not contain as one of the choices, the last date worked, as a date of accidental injury.  Clearly this will cause less certainty and more litigation.

The other carrier unfriendly language in Mitchell which is likely to increase defense litigation costs is the language purporting to create a new barrier for carriers to litigate their disputes as to liability for payment of benefits in the workers compensation litigation.  The purported new rule is that where there are two or more carriers with separate coverage periods spanning the claimed repetitive use injury claim, those carriers will now be forced to take their “carrier verses carrier” dispute to the local district court for determination.  Workers compensation judges are purportedly allowed to issue “joint and several liability” orders against multiple carriers in a claim.  The result is that both carriers are jointly and severally liable for all the benefits ordered paid to the claimant.  This can, and likely will, create significant confusion and problems for carriers in assessing their exposure and reserves.  There are also multiple potential pitfalls to good companies who are assessed joint and several liability with not-so-good companies who are chronically late or tardy in paying benefits.  It is totally conceivable that Insurance Company A which diligently pays its compensation claims will be assessed penalty awards for the late payments of Insurance Company B.  Furthermore, to try to get out from this situation, Insurance Company A must purportedly file a separate action in a state district court to adjudicate its liability to pay benefits to claimant.  The obvious first question is where did this new rule come from and what statutory authority exists for a compensation judge to order “joint and several liability?”  The answer is that there is no statutory authority in the plain language of the Kansas Workers Compensation Act and, in fact, the Kansas Supreme Court technically dodged this question in the Mitchell decision saying that the precise issue of statutory authority for joint and several liability was not properly raised and preserved by the parties in Mitchell.  In summary, this joint and several liability exposure combined with the directive to take your carrier verses carrier disputes to district court is bound to create new and additional confusion and litigation in currently pending and new workers compensation repetitive use injury claims.

3.         Update On Kansas’ Move To Mandate ODG Guidelines.

The 2009 update below, asked the question of whether Kansas was on the verge of mandating the ODG (Official Disability Guidelines).  The answer in 2010 was no, Kansas did not mandate use of the ODG in workers compensation.

As reported below, it appeared in late 2009 that a push was being made to mandate the use of the ODG through the Kansas Medical Fee Schedule update.  However, it turned out that the push to “mandate” use of the ODG did not go forward and was not included in the January 1, 2010 Kansas Medical Fee Schedule update.  Any move to “mandate” use of the ODG in Kansas will likely occur via legislative changes in 2011.  Stay tuned for updates after the 2011 legislative session.

4.         New Interim Kansas Director Of Workers Compensation.

In September, 2010, Kansas Division of Workers Compensation Director, Paula Greathouse, resigned and Assistant Director Seth Valerius was appointed as Interim Director to replace her.

September 25, 2009: Kansas Workers’ Compensation Law Update.

1.         Results Of The 2009 Kansas Legislative Session.

In summary, there were no substantial changes to the law by the Kansas Legislature in 2009.  The 2009 Kansas Legislative Session ended much like 2008, with no significant legislative change or amendment to the Kansas Workers Compensation Act.  Labor groups and the claimants’ bar attempted to increase Kansas’ low benefit caps.  Business and industry attempted to hold the line and avoid any legislative roll back of the Kansas Supreme Court’s sweeping 2007 employer friendly strict constructionist decision in the Casco case, discussed below in the 2007 summary.  The end result was no legislative changes favoring either side.  The predominantly pro-business Republican 2009 House and Senate resisted any attempts to amend the workers compensation laws so as to avoid any change in the law which would have the effect of increasing workers compensation costs to Kansas businesses, as they are already struggling in tough economic times.

2.         SIZZLING HOT NEW TOPIC IN KANSAS – New judicially created increase in permanent disability compensation exposure for employers and carriers under Kansas law.

On September 4, 2009 the Kansas Supreme Court issued a sweeping decision in Bergstrom v. Spears Manufacturing Company et. al. (http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090904/99369.htm)  which will have an immediate impact on current exposure estimates in many pending, and future, general body disability injury cases.  The Kansas Supreme Court’s split decision in Bergstrom continues the same analytical movement departing from prior judicial precedent via a re-examination of previous statutory construction efforts, similar to what was seen in the 2007 Casco decision (discussed below).  However, the practical outcome of this version of the judicial statutory construction tsunami is the opposite of the outcome of CascoCasco created an immediate reduction in work disability compensation exposure for employers, whereas Bergstrom will likely create an immediate increase in the work disability compensation exposure for employers.

Highly summarized, Bergstrom was a production janitor for a manufacturer of plastic plumbing parts.  She sustained a back injury (general body disability claim) after picking up a heavy garbage can.  Her employer tried to provide her with accommodated work within her restrictions after her injury.

Unfortunately, claimant continued to experience pain during the several attempts to return to work and on the last attempt was only able to work three hours and then had to quit, according to her, due to the pain caused by the accommodated work activities.  She left work and was subsequently terminated by the employer.

The ALJ initially awarded a permanent total disability award ($125,000).  The Appeals Board ultimately reduced this permanent total award to a much smaller dollar award limited to claimant’s 10% functional impairment, on the rationale that Bergstom did not make a “good faith effort” to continue working in the accommodated position provided by the employer.  The Bergstrom majority threw out the “functional impairment” only award of the Board, and remanded the case back to the Board for what is likely to be a significant increase in the permanent disability compensation award owed by the employer.

The rationale of the Bergstrom majority was that the functional only award by the Board relied on the same inaccurate assumption made by previous judicial interpretations, that the work disability statute contained an implicit “good faith job search effort” requirement on the injured worker.  The majority opinion stated that it could not find anywhere in the plain language of the work disability statute, a “good faith” requirement imposed upon claimants by the legislature.  The majority opinion noted that the plain language of the statute contains no explicit requirement from the legislature that claimants are required to attempt to work or look for work.

This of course raises the question, to even the most casual observer, of to what degree the Kansas Supreme Court now expects the Kansas legislature, when writing or amending statutes, to set forth explicitly in the plain language of the statute, basic societal norms and applicable common law principles.  Here the obvious societal norm is a mitigation of damages requirement – that workers are expected to be able to show a good faith effort in returning to work before asking for an award of benefits because they are not working.

Common sense would appear to dictate that at some base level, the Kansas Supreme Court should allow certain commonly agreed to societal norms and legal principles to be “read into” statutes, including the societal norm that able bodied individuals are expected to work and if they voluntarily choose to avoid work, even the “plain language” of our laws should not be read to allow or require the disability compensation system to reward behavior amounting to sloth.  The Bergstrom majority’s analysis and “strict constructionist” fervor appear to divorce the application of common sense from the act of construing statutory language.

According to the Bergstrom majority decision, the Court will not read into the statute something not readily expressed therein.  The dissenting opinion written by Chief Justice McFarland expressed the view that the result of the judicial exercise of statutory construction analysis must always occur in the context of respect for the established judicial principle of stare decisis (adherence to judicial precedent so as to promote stability and predictability in the law).  Chief Justice McFarland asserted that the majority opinion “cavalierly” overruled a 15-year-old statutory construction that the law implicitly requires of a claimant “a good faith job search effort” for no other reason than it (the current Court majority) would have interpreted the statute differently had if been faced with the issue in the first instance.

The immediate effect of this decision is to require all employers and carriers to reevaluate their current and future exposures to pending work disability compensation awards.  For those employers and carriers in the midst of defending a case on the basis that the claimant did not make a good faith effort to seek employment or accept a light duty accommodated job offer within the restrictions, those defenses may now be useless, and the exposure to benefits much higher.

It is anticipated by most observers that the 2010 Kansas Legislature will now be asked by business and industry interests to look into possible statutory revisions which will re-impose a good faith requirement on claimants.  It is also anticipated that labor interests will counter this with resistance at re-imposing the good faith requirement, and at the same time ask the legislature for a long overdue increase in overall benefit compensation caps.  The clear conclusion is the next legislative session is likely to include multiple opposing and competing demands from polar opposite interest groups, all in the context of a continued strained economic environment.  Stay tuned for more updates on this topic!

3.         H1N1 Flu Virus – Employers Get Ready To Respond To Possible Workers Compensation Claims Arising From Claimed Employer Exposure To The H1N1 Flu Virus.

QUESTION: Are employees who contract H1N1 flu virus entitled to workers compensation benefits under Kansas law?

ANSWER:  Probably not, depending upon the facts.   The defense would argue the claim would fall under the Occupational Disease (OD) Act.  In Kansas, prerequisites to a compensable OD claim include: 1) The condition is not an ordinary disease of life to which the general public is or may be exposed outside of the particular employment and which only generally exposes the employee in the work environment; 2) Exposure from a work environment where there is attached a particular and peculiar risk of such disease which distinguishes that employment from other occupations and employments, and where the risk of getting the disease is greater than the otherwise general risk of getting the disease, and 3) That the disease was actually contracted while engaging in work activity.

THEORIES OF COMPENSABILITY TO WATCH FOR: (1) Accidental injury theory that there is a distinct single traumatic exposure and there is some neutral or increased risk associated with the employment that makes the exposure to H1N1 work related.  (2) Occupational Disease theory which focuses on the “means of transmission” in making the exposure to the H1N1 virus occupational.

4.         Is Kansas On The Verge Of “Mandating” Use Of The “ODG” (Official Disability Guidelines)?

Is Kansas on the verge of “mandating” the use of the Official Disability Guidelines? The “Official Disability Guidelines” as announced by the Work Loss Data Institute, are the prevailing evidence-based authority on expected disability and appropriate medical treatment in workers’ compensation and non-occupational disability cases.

A December 19, 2007 Work Loss Data Institute public relations release proclaimed:  “The Kansas workers’ comp regulatory agency, the Department of Labor, Division of Workers’ Compensation (DWC), has adopted Work Loss Data Institute’s “Official Disability Guidelines – Treatment in Workers’ Comp (ODG) as the standard of reference for evidence-based medicine used in caring for injured workers.” (Emphasis supplied).

The Kansas Division of Workers’ Compensation web site has posted, as of this date, the following statement concerning the ODG:  “The Official Disability Guidelines – Treatment in Workers Compensation (ODG), published by the Work Loss Data Institute (WLDI), is to be recognized as the primary standard of reference, at the time of treatment, in determining the frequency and extent of services presumed to be medically necessary and appropriate for compensable injuries under the Kansas Workers’ Compensation Act, or in resolving such matters in the event a dispute arises.” (Emphasis supplied).

The above rather “mandatory” sounding description on the Division’s web page of what Kansas “recognizes” concerning the ODG, does not entirely square with what the Kansas Statutes, Administrative Regulations and published Fee Schedule currently have to say on the subject.

First, there is no reference or mention anywhere in Kansas Workers Compensation Act or Kansas Administrative Regulations relating to workers’ compensation, to Kansas adopting or recognizing the ODG.  Second, if one goes to the current 2008 Kansas Medical Fee Schedule (next to be revised January 1, 2010), one finds on page two, itemized paragraph number “10” the following statement regarding the ODG:  “The Official Disability Guidelines-Treatment in Workers Compensation (ODG) that is published by the Work Loss Data Institute (WLDI) has been adopted as the primary standard of reference for evidence-based medicine used in caring for injured workers. Medical treatment guidelines are not requirements, nor are they mandates; they are to provide advice to help those who make health care decisions regarding the care of injured workers.” (Emphasis supplied).

Clearly the Fee Schedule paragraph quoted above has a specific statement indicating that the ODG is not a requirement or a mandate; instead it is merely advisory.  This language means anyone in Kansas can chose to use the ODG, or ignore the ODG.  As a practical matter in workers compensation litigation before administrative law judges across the State of Kansas, the ODG has not been a source or reference typically used or consulted to assist in the adjudication of medical disputes between employers and claimants before Kansas workers’ compensation administrative law judges.  However, this may be about to change.

At the September 2009 Annual Division of Workers’ Compensation Seminar, there was significant buzz among attendees concerning whether there will be some attempt in the final version of the soon to be revised Kansas Medical Fee Schedule which will go into effect January 1, 2010, to change the current “ODG is only advisory” language, to language making the ODG “mandatory” and “required.”  Another avenue to watch for change is whether proposals will be submitted in the upcoming legislative session to add statutory changes to the Workers Compensation Act explicitly mandating and requiring the use of the ODG in Kansas Workers Compensation.  Stay tuned for more updates on this topic!

May 17, 2007:            Kansas Workers’ Compensation Law Update – Significant 2007 Pro-Employer Change To Kansas Workers’ Compensation Law From The Kansas Supreme Court, But Not From The Kansas Legislature.

1.         Results of the 2007 and 2008 Kansas legislative session.

The 2007 and 2008 Kansas Legislative Sessions ended with no significant legislative change or amendment to the Kansas Workers’ Compensation Act.  Controversial provisions put forward in past legislative sessions by both management and labor went nowhere in 2007 or 2008.

2.         The 2007 Kansas Supreme Court dramatically reverses its 1931 decision of Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 that was the foundation for the “parallel injury rule” that for 76 years served as the basis for bilateral upper-extremity and lower extremity disabilities to be compensated as a general body disability, instead of separate scheduled disabilities.

In Casco v. Armour Swift-Eckrich, 283 Kan. 508, 154 P.3d. 494 (2007 Kan. LEXIS 235), the Kansas Supreme Court issued a dramatic reversal of its own precedent, abandoning the 76 year old “parallel injury rule” that originated from its 1931 decision in Honn v. Elliott.  In summary, the practical significance of Casco is it will likely result in an immediate and significant reduction in the disability compensation cost for employers of many pending and future bilateral upper-extremity and lower-extremity claims.

In place of a detailed technical legal analysis of the sweeping Casco decision, this limited discussion will focus on the likely practical effect this new change in the law will have on your existing and future bilateral upper-extremity and lower-extremity disability claims.

But first, in an effort to quell the shrill “sky is falling” cries from the claimant’s bar, that the Casco decision has tilted the earth off its axis, and eviscerated the essential “grand compromise” forming the basis for the entire Kansas Workers Compensation Act, remember what Casco does not change.  Casco does not change the unlimited lifetime right to payment of all causally related, reasonable and necessary, medical expenses, for all bilateral upper and lower extremity injuries, free of any co-payments or deductibles for injured workers.  Casco does nothing to ease the burden on employers of the cost of lifetime medical expenses for these injuries.  What the Kansas Supreme Court has said Casco will accomplish is bringing everyone back to a point that was originally intended by the legislature when it established the “schedule” of disabilities as the general rule, and “non-scheduled disabilities” (general body disabilities) as the exception for permanent partial disability compensation.

As a practical matter, the real issue involved here is whether “work disability” compensation benefits are available to injured workers with bilateral upper and lower extremity injuries.  Prior to Casco, the routine bilateral carpal tunnel syndrome injury to a high wage earner in Kansas, such as a highly paid aircraft industry worker who does not return to work after the injury, would typically expose the employer to a maximum $100,000.00 permanent partial general body “work disability compensation” award.  Under Kansas law, a general body disability award qualifies at minimum for an award based on the functional impairment, but that functional impairment percentage is but the compensation floor, for the potential ultimate compensation award.  Work disability compensation far in excess of the amount generated by the functional award would become available to the injured worker if he/she was not working at the time of the regular hearing, and that loss of employment was due to their bilateral carpal tunnel injury and disability.

A common pre – Casco 2007 work disability compensation award for a high wage aircraft or other industrial worker with bilateral carpal tunnel syndrome, which generates a 10% whole body impairment rating from the doctor, where the worker could not return to work after being issued permanent work restrictions, would be something similar to the following benefit computation: 415 maximum weeks of compensation x 50% work disability = 207.5 compensable weeks x $483 maximum compensation rate = $100,222,50.  This amount would automatically be reduced down to the $100,000.00 cap for any permanent partial general body disability.

While upper-extremity injuries generate “scheduled disabilities” under the Kansas statute, following the 76 year old pre – Casco “Honn precedent,” workers compensation administrative law judges would never have given the time of day to an argument by an employer that permanent disability compensation for bilateral carpal tunnel syndrome should be limited to that available to two separate scheduled disabilities.  The pre – Casco bilateral carpal tunnel syndrome awards would have almost always been calculated based on the much more economically generous general body work disability compensation entitlement formula.

After Casco, that same aircraft worker with a bilateral carpal tunnel syndrome injury with a functional impairment rating of 10% to each upper-extremity would likely receive something similar to the following permanent disability compensation benefit computation: Right Upper-Extremity: 190 maximum weeks x 10% impairment = 19 compensable weeks x $483 maximum weekly compensation rate = $9,177.00; Left Upper-Extremity: 190 maximum weeks x 10% impairment = 19 compensable weeks x $483 maximum weekly compensation rate = $9,177.00.  Adding together the right and left awards would result in a total permanent scheduled disability compensation award of $18,354.00.

In summary, this hypothetical illustrates that the pre – Casco bilateral carpal tunnel syndrome disability compensation award would likely cost the high wage paying employer $100,000.00 in permanent disability compensation benefits; whereas, under the Casco separate schedule disability compensation award, the same set of injuries would cost the employer $18,354.00.

One post Casco caveat regarding single injury (as opposed to repetitive micro-trauma injury) bilateral carpal tunnel and other similar combination extremity disability claims – under the plain language of the Kansas permanent total disability compensation statute, such combination disability claims could potentially, under certain fact situations, be presumed to constitute a $125,000.00 permanent total disability compensation award.  It can be expected that in certain currently pending, and future, bilateral upper and lower-extremity cases, claimants will utilize the plain language of the permanent total statute, and attempt to procure a $125,000.00 disability compensation award by invoking the permanent total disability presumption by putting on evidence that the worker is essentially and realistically unemployable from any type of substantial gainful employment because of the injury.  It is critical in such currently pending cases, and future cases, for the employer to put on evidence to rebut the presumption by putting on evidence that the claimant is capable of engaging in some type of substantial and gainful employment.

Employers should also be on the alert for separate body part conditions to be “combined” into a “single injury” via the “secondary injury” theory.  The “secondary injury” theory allows a subsequent, but separate, body part problem to be combined with the original injured body part via the “natural and probable consequence” rule to turn an otherwise inexpensive scheduled disability into a $125,000.00 permanent total disability compensation award.  An example of this would be a left knee injury that later causes an aggravation of a preexisting right knee condition.  Here the claimant would be favoring the original injury to the left knee, resulting in the “secondary” injury to the right knee by overcompensation.  Under the “secondary injury” rule, the right knee problem becomes a compensable injury and the date of this right knee injury relates back to the date of the original left knee injury via the natural and probably consequence doctrine.  The key for employers to avoid this often hidden but dangerous exposure is to always present lay and/or expert testimony that claimant is capable of engaging in some type of substantial and gainful employment.

In short, employers must now pay close attention to any bilateral or combination injury claims to see that they are properly compensated as separate scheduled disabilities, and if they are alleged as a single injury either directly, or indirectly through the “secondary injury” rule, that there is evidence to rebut the permanent total presumption that the claimant is incapable of engaging in any type of substantial and gainful employment.

July 7, 2011: Kansas Workers’ Compensation Law Update.

1.      Results Of The 2011 Kansas Legislative Session.

Significant new pro-employer workers’ compensation law reforms passed the Kansas Legislature in 2011 and were signed into law by Governor Sam Brownback.  Sweeping new pro-employer workers’ compensation laws went into effect in Kansas for dates of accident or repetitive trauma occurring after May 15, 2011.

In essence, the new law reforms sweeten the pot at the finish line for claimants by modestly increasing our maximum benefit caps (for example lifetime permanent total cap went from $125,000 to $155,000 – relatively speaking, still a very low perm total exposure).  However, the new law reforms contain many new defenses which will likely act as hurdles preventing many more claimants from getting to that finish line. 

In short, fewer claimants will successfully establish compensable claims, but those that do, could see slightly more money in the end.  For employers and carriers, while there will be increased litigation costs on the short term effectuating all the new defenses, over the long term, these new law reforms will likely reduce the overall number of claims and costs for employers.

These new statutory reforms legislatively reverse the holdings of four prior appellate court decisions discussed in previous Kansas Law Updates found below:  Casco, discussed below in the May 17, 2007 update was reversed by these new law reforms (this change is one of the few that is pro-employee); Bergstrom, discussed below in the September 25, 2009 update, was reversed by the new law reforms (this reform law reversal is really good for employers); and both the Redd and Mitchell cases discussed in the October 5, 2010 update, were also reversed by the new law reforms (again these new law reform reversals are pro-employer changes).

It is strong suggested that any employers, adjusters, claims professionals consult with legal counsel regarding assessing compensability and exposure of all Kansas claims with dates of accident or repetitive trauma occurring after May 15, 2011.  It is a whole new ballgame in Kansas after May 15, 2011 and the changes are so sweeping and comprehensive that professional assistance is required to benefit from all the new changes.

A very brief list of some of the most significant changes includes:

  • Multiple new compensability defenses including but not limited to:  new definitions for accident, injury and repetitive trauma which will provide new proof requirements for injured workers; sweeping new causation defenses (prevailing factor test) which heighten the worker’s proof requirements to establish compensability; new defense where worker’s injury results from reckless violation of employer’s work place safety rules and regulations; new beefed up horseplay/fighting on the job defense; new lack of timely notice rules; new easier to establish drug/alcohol impairment defense affording more chance of success for a complete denial of benefits.
  • New private insurer and self-insured employer obligation to issue written notice to all workers receiving TEMPORARY disability compensation benefits concerning fraud.
  • Multiple new defenses related to preexisting conditions, impairments and prior work restrictions which allow employers/carriers more opportunity for compensation denials, subtractions and offsets.
  • Multiple new defenses for employers against TTD liability where the worker has voluntarily terminated or been terminated for cause or refused accommodated work.
  • Increased importance and legal support of authorized treating physician opinions over worker’s hired gun doctor opinions in TTD entitlement context.
  • New average weekly wage calculation method and rules.
  • New limits on, and increased proof hurdles for, workers try to establish permanent total disability compensation.
  • New permanent partial disability compensation rule for calculating value of bilateral carpal tunnel syndrome and other bilateral injuries – reversing Casco decision.
  • Multiple new defenses to work disability compensation claims including higher hurdles (new minimum impairment threshold) for worker to claim work disability entitlement, and elimination of work disability compensation for undocumented workers.
  • Enhanced methods for employers to get slow moving or dormant cases dismissed.
  • Significant new defenses to future medical benefits exposure and new ways to get future medical liability cut off.
  • Several pro-worker new law changes including modestly increased benefit caps, elimination of the timely written claim statute of limitation and conversion of bilateral carpal tunnel type cases back to a general body disability allowing for work disability compensation potential.

 

2.         New Director of Workers Compensation appointed:  Larry Karns, one of the drafters of the pro-employer new law reforms, was appointed Kansas Director of Workers Compensation.  This     really concludes the “pro-employer” sweep of a new pro-employer set of laws, and a new pro-employer administrator to see that the new law reforms are properly and fairly administered and implemented.

October 5, 2010:        Kansas Workers’ Compensation Law Update.

1.         Results Of The 2010 Kansas Legislative Session.

In summary, there were no substantial changes to the law by the Kansas Legislature in 2010.  The 2010 Kansas Legislative Session ended much like 2007, 2008 and 2009 with no significant legislative change or amendments to the Kansas Workers’ Compensation Act.  Labor groups and the claimants’ bar continue to push to increase Kansas’ low benefit caps.  Business and industry sought to decrease the cost of workers’ compensation.  There were competing bills introduced, but nothing significant was passed.  The end result was no legislative change favoring either side.  The pro-business Republican 2010 Legislature did not aggressively move to try to change laws in favor of employers because the current Governor is a Democrat, and would likely have vetoed any sweeping reforms.  That scenario is likely to change in the 2011 legislative session.  Kansans will likely elect U.S. Senator Sam Brownback as the new Governor in the upcoming November 2010 election.  If this occurs as is expected, both the House and Senate will be controlled by Republicans and the Governor will be Republican.  Many in Kansas are projecting that this is the optimum political environment and opportunity for employers to pass pro-business legislation which would most certainly be signed into law by the next Governor.  Stay tuned for updates after the 2011 legislative session ends as there most likely will be good news for employers in Kansas.

2.         Significant New Legal Changes In 2010 Continue To Come        From The Kansas Supreme Court.

 

Two recently released Kansas Supreme Court opinions will likely continue to push employer workers compensation costs up.  Last year’s update regarding the Bergstrom case predicted increased employer settlement and award disability compensation costs.  While there are no official statistics published yet, most employers, observers and practitioners would agree that the effect of the Bergstrom decision discussed in 2009’s update increased employer settlement and disability compensation award payments.

Two new decisions issued by the Kansas Supreme Court in September, 2010 will likely continue to push up employer workers compensation costs.  These new decisions are very lengthy and space allows for only a very brief summary.

In the most pro-claimant outcome, the Kansas Supreme Court in Redd v. Kansas Truck Center, No. 101,137 (September 10, 2010), ruled that for multiple injuries to a single scheduled member (such as a wrist and elbow surgery on the same arm) the workers compensation judge must now make separate awards for each injury to that scheduled member.  The practical result of this decision is that before a wrist and elbow injury would be computed based on a combined impairment to the full arm.  Now, instead of one award for both injuries to the full arm, there will be two separate awards issued from the one accident.  It is possible that in some fact situations, this new “multiple award” decision will actually compute to a lower actual cost to the employer.  Employers and adjuster are cautioned to seek advice of counsel to update exposure estimates on currently pending and new scheduled injury claim.

Redd also set forth a new rule regarding $50,000 “functional impairment cap.”   The new rule says that the cap does not apply where the worker has been paid even the slightest amount of TTD benefits.  Thus, in certain circumstances, an employer will want to carefully evaluate potential challenges to TTD benefit entitlement where the claimant is a high wage earner and potentially subject to future application of the cap.

Finally, Redd clarified that the new “appellate standard of review” for the appellate courts which allows for more scrutiny of the fact findings of the Workers Compensation Appeals Board applies to Board decisions issued after July 1, 2009.  For any appeals to the Court of Appeals or Supreme Court from Board decisions issued prior to July 1, 2009, the more limiting “substantial competent evidence” standard from the old statute is still applicable.

Turning then to the other new Kansas Supreme Court decision in Mitchell v. Petsmart, Inc., No. 99,528 (September 10, 2010), we find a “mixed benefit” opinion from the Court with elements that are both favorable and unfavorable to employers. The pro-employer ruling in Mitchell is the smack down by the Supreme Court of the often championed argument by claimants that the administrative regulation (K.A.R. 51-7-8) which allowed for, in the computation of permanent disability compensation benefits, a subtraction of the number of weeks of TTD benefit already paid to the claimant.  The claimant’s bar has for several years tried to argue for a statutory interpretation that would effectively allow for double-dipping – taking TTD benefit weeks and then also taking PPD compensation for those same weeks.  The Kansas Supreme Court affirmed the position long held by employers and carriers that the regulation preventing double dipping is clearly within the authority granted by the statutory language.

The remaining two Mitchell rules are characterized here as negative to employers and carriers because they fly in the face of the plain language of the workers compensation act and will likely increase employer and carrier defense litigation costs because they will increase workers compensation litigation costs.  The first of these two rulings is the re-establishment of the “bright-line rule” for determining date of accidental injury in repetitive use micro-trauma injury claims such as carpal tunnel syndrome cases.  The re-established “bright-line rule” for determining date of accidental injury is “the last date worked.”  At first glance this would appear to be a helpful clarification of the very confusing and cumbersome statutory legal test.  The problem is that this new “bright-line rule” for determining date of accidental injury is not found in, and is contrary to, the plain language of the statutory test.  So, the administrative law judges are now faced with the decision, in every repetitive use injury case, of deciding which rule to follow – the “bright-line rule” of last date worked as provided by the Mitchell decision, or the plain language of K.S.A. 44-508(d) which does not contain as one of the choices, the last date worked, as a date of accidental injury.  Clearly this will cause less certainty and more litigation.

The other carrier unfriendly language in Mitchell which is likely to increase defense litigation costs is the language purporting to create a new barrier for carriers to litigate their disputes as to liability for payment of benefits in the workers compensation litigation.  The purported new rule is that where there are two or more carriers with separate coverage periods spanning the claimed repetitive use injury claim, those carriers will now be forced to take their “carrier verses carrier” dispute to the local district court for determination.  Workers compensation judges are purportedly allowed to issue “joint and several liability” orders against multiple carriers in a claim.  The result is that both carriers are jointly and severally liable for all the benefits ordered paid to the claimant.  This can, and likely will, create significant confusion and problems for carriers in assessing their exposure and reserves.  There are also multiple potential pitfalls to good companies who are assessed joint and several liability with not-so-good companies who are chronically late or tardy in paying benefits.  It is totally conceivable that Insurance Company A which diligently pays its compensation claims will be assessed penalty awards for the late payments of Insurance Company B.  Furthermore, to try to get out from this situation, Insurance Company A must purportedly file a separate action in a state district court to adjudicate its liability to pay benefits to claimant.  The obvious first question is where did this new rule come from and what statutory authority exists for a compensation judge to order “joint and several liability?”  The answer is that there is no statutory authority in the plain language of the Kansas Workers Compensation Act and, in fact, the Kansas Supreme Court technically dodged this question in the Mitchell decision saying that the precise issue of statutory authority for joint and several liability was not properly raised and preserved by the parties in Mitchell.  In summary, this joint and several liability exposure combined with the directive to take your carrier verses carrier disputes to district court is bound to create new and additional confusion and litigation in currently pending and new workers compensation repetitive use injury claims.

3.         Update On Kansas’ Move To Mandate ODG Guidelines. 

The 2009 update below, asked the question of whether Kansas was on the verge of mandating the ODG (Official Disability Guidelines).  The answer in 2010 was no, Kansas did not mandate use of the ODG in workers compensation.

As reported below, it appeared in late 2009 that a push was being made to mandate the use of the ODG through the Kansas Medical Fee Schedule update.  However, it turned out that the push to “mandate” use of the ODG did not go forward and was not included in the January 1, 2010 Kansas Medical Fee Schedule update.  Any move to “mandate” use of the ODG in Kansas will likely occur via legislative changes in 2011.  Stay tuned for updates after the 2011 legislative session.

4.         New Interim Kansas Director Of Workers Compensation.

In September, 2010, Kansas Division of Workers Compensation Director, Paula Greathouse, resigned and Assistant Director Seth Valerius was appointed as Interim Director to replace her.

September 25, 2009:  Kansas Workers’ Compensation Law Update.

1.         Results Of The 2009 Kansas Legislative Session.

In summary, there were no substantial changes to the law by the Kansas Legislature in 2009.  The 2009 Kansas Legislative Session ended much like 2008, with no significant legislative change or amendment to the Kansas Workers Compensation Act.  Labor groups and the claimants’ bar attempted to increase Kansas’ low benefit caps.  Business and industry attempted to hold the line and avoid any legislative roll back of the Kansas Supreme Court’s sweeping 2007 employer friendly strict constructionist decision in the Casco case, discussed below in the 2007 summary.  The end result was no legislative changes favoring either side.  The predominantly pro-business Republican 2009 House and Senate resisted any attempts to amend the workers compensation laws so as to avoid any change in the law which would have the effect of increasing workers compensation costs to Kansas businesses, as they are already struggling in tough economic times.

2.         SIZZLING HOT NEW TOPIC IN KANSAS – New judicially created increase in permanent disability compensation exposure for employers and carriers under Kansas law.

On September 4, 2009 the Kansas Supreme Court issued a sweeping decision in Bergstrom v. Spears Manufacturing Company et. al. (http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090904/99369.htm)  which will have an immediate impact on current exposure estimates in many pending, and future, general body disability injury cases.  The Kansas Supreme Court’s split decision in Bergstrom continues the same analytical movement departing from prior judicial precedent via a re-examination of previous statutory construction efforts, similar to what was seen in the 2007 Casco decision (discussed below).  However, the practical outcome of this version of the judicial statutory construction tsunami is the opposite of the outcome of CascoCasco created an immediate reduction in work disability compensation exposure for employers, whereas Bergstrom will likely create an immediate increase in the work disability compensation exposure for employers.

Highly summarized, Bergstrom was a production janitor for a manufacturer of plastic plumbing parts.  She sustained a back injury (general body disability claim) after picking up a heavy garbage can.  Her employer tried to provide her with accommodated work within her restrictions after her injury.

Unfortunately, claimant continued to experience pain during the several attempts to return to work and on the last attempt was only able to work three hours and then had to quit, according to her, due to the pain caused by the accommodated work activities.  She left work and was subsequently terminated by the employer.

The ALJ initially awarded a permanent total disability award ($125,000).  The Appeals Board ultimately reduced this permanent total award to a much smaller dollar award limited to claimant’s 10% functional impairment, on the rationale that Bergstom did not make a “good faith effort” to continue working in the accommodated position provided by the employer.  The Bergstrom majority threw out the “functional impairment” only award of the Board, and remanded the case back to the Board for what is likely to be a significant increase in the permanent disability compensation award owed by the employer.

The rationale of the Bergstrom majority was that the functional only award by the Board relied on the same inaccurate assumption made by previous judicial interpretations, that the work disability statute contained an implicit “good faith job search effort” requirement on the injured worker.  The majority opinion stated that it could not find anywhere in the plain language of the work disability statute, a “good faith” requirement imposed upon claimants by the legislature.  The majority opinion noted that the plain language of the statute contains no explicit requirement from the legislature that claimants are required to attempt to work or look for work.

This of course raises the question, to even the most casual observer, of to what degree the Kansas Supreme Court now expects the Kansas legislature, when writing or amending statutes, to set forth explicitly in the plain language of the statute, basic societal norms and applicable common law principles.  Here the obvious societal norm is a mitigation of damages requirement – that workers are expected to be able to show a good faith effort in returning to work before asking for an award of benefits because they are not working.

Common sense would appear to dictate that at some base level, the Kansas Supreme Court should allow certain commonly agreed to societal norms and legal principles to be “read into” statutes, including the societal norm that able bodied individuals are expected to work and if they voluntarily choose to avoid work, even the “plain language” of our laws should not be read to allow or require the disability compensation system to reward behavior amounting to sloth.  The Bergstrom majority’s analysis and “strict constructionist” fervor appear to divorce the application of common sense from the act of construing statutory language.

According to the Bergstrom majority decision, the Court will not read into the statute something not readily expressed therein.  The dissenting opinion written by Chief Justice McFarland expressed the view that the result of the judicial exercise of statutory construction analysis must always occur in the context of respect for the established judicial principle of stare decisis (adherence to judicial precedent so as to promote stability and predictability in the law).  Chief Justice McFarland asserted that the majority opinion “cavalierly” overruled a 15-year-old statutory construction that the law implicitly requires of a claimant “a good faith job search effort” for no other reason than it (the current Court majority) would have interpreted the statute differently had if been faced with the issue in the first instance.

The immediate effect of this decision is to require all employers and carriers to reevaluate their current and future exposures to pending work disability compensation awards.  For those employers and carriers in the midst of defending a case on the basis that the claimant did not make a good faith effort to seek employment or accept a light duty accommodated job offer within the restrictions, those defenses may now be useless, and the exposure to benefits much higher.

It is anticipated by most observers that the 2010 Kansas Legislature will now be asked by business and industry interests to look into possible statutory revisions which will re-impose a good faith requirement on claimants.  It is also anticipated that labor interests will counter this with resistance at re-imposing the good faith requirement, and at the same time ask the legislature for a long overdue increase in overall benefit compensation caps.  The clear conclusion is the next legislative session is likely to include multiple opposing and competing demands from polar opposite interest groups, all in the context of a continued strained economic environment.  Stay tuned for more updates on this topic!

3.         H1N1 Flu Virus – Employers Get Ready To Respond To Possible Workers Compensation Claims Arising From Claimed Employer Exposure To The H1N1 Flu Virus.

QUESTION: Are employees who contract H1N1 flu virus entitled to workers compensation benefits under Kansas law?

ANSWER:  Probably not, depending upon the facts.   The defense would argue the claim would fall under the Occupational Disease (OD) Act.  In Kansas, prerequisites to a compensable OD claim include: 1) The condition is not an ordinary disease of life to which the general public is or may be exposed outside of the particular employment and which only generally exposes the employee in the work environment; 2) Exposure from a work environment where there is attached a particular and peculiar risk of such disease which distinguishes that employment from other occupations and employments, and where the risk of getting the disease is greater than the otherwise general risk of getting the disease, and 3) That the disease was actually contracted while engaging in work activity.

THEORIES OF COMPENSABILITY TO WATCH FOR: (1) Accidental injury theory that there is a distinct single traumatic exposure and there is some neutral or increased risk associated with the employment that makes the exposure to H1N1 work related.  (2) Occupational Disease theory which focuses on the “means of transmission” in making the exposure to the H1N1 virus occupational.

4.         Is Kansas On The Verge Of “Mandating” Use Of The “ODG” (Official Disability Guidelines)?

Is Kansas on the verge of “mandating” the use of the Official Disability Guidelines? The “Official Disability Guidelines” as announced by the Work Loss Data Institute, are the prevailing evidence-based authority on expected disability and appropriate medical treatment in workers’ compensation and non-occupational disability cases.

A December 19, 2007 Work Loss Data Institute public relations release proclaimed:  “The Kansas workers’ comp regulatory agency, the Department of Labor, Division of Workers’ Compensation (DWC), has adopted Work Loss Data Institute’s “Official Disability Guidelines – Treatment in Workers’ Comp (ODG) as the standard of reference for evidence-based medicine used in caring for injured workers.” (Emphasis supplied).

The Kansas Division of Workers’ Compensation web site has posted, as of this date, the following statement concerning the ODG:  “The Official Disability Guidelines – Treatment in Workers Compensation (ODG), published by the Work Loss Data Institute (WLDI), is to be recognized as the primary standard of reference, at the time of treatment, in determining the frequency and extent of services presumed to be medically necessary and appropriate for compensable injuries under the Kansas Workers’ Compensation Act, or in resolving such matters in the event a dispute arises.” (Emphasis supplied).

The above rather “mandatory” sounding description on the Division’s web page of what Kansas “recognizes” concerning the ODG, does not entirely square with what the Kansas Statutes, Administrative Regulations and published Fee Schedule currently have to say on the subject.

First, there is no reference or mention anywhere in Kansas Workers Compensation Act or Kansas Administrative Regulations relating to workers’ compensation, to Kansas adopting or recognizing the ODG.  Second, if one goes to the current 2008 Kansas Medical Fee Schedule (next to be revised January 1, 2010), one finds on page two, itemized paragraph number “10” the following statement regarding the ODG:  “The Official Disability Guidelines-Treatment in Workers Compensation (ODG) that is published by the Work Loss Data Institute (WLDI) has been adopted as the primary standard of reference for evidence-based medicine used in caring for injured workers. Medical treatment guidelines are not requirements, nor are they mandates; they are to provide advice to help those who make health care decisions regarding the care of injured workers.” (Emphasis supplied).

Clearly the Fee Schedule paragraph quoted above has a specific statement indicating that the ODG is not a requirement or a mandate; instead it is merely advisory.  This language means anyone in Kansas can chose to use the ODG, or ignore the ODG.  As a practical matter in workers compensation litigation before administrative law judges across the State of Kansas, the ODG has not been a source or reference typically used or consulted to assist in the adjudication of medical disputes between employers and claimants before Kansas workers’ compensation administrative law judges.  However, this may be about to change.

At the September 2009 Annual Division of Workers’ Compensation Seminar, there was significant buzz among attendees concerning whether there will be some attempt in the final version of the soon to be revised Kansas Medical Fee Schedule which will go into effect January 1, 2010, to change the current “ODG is only advisory” language, to language making the ODG “mandatory” and “required.”  Another avenue to watch for change is whether proposals will be submitted in the upcoming legislative session to add statutory changes to the Workers Compensation Act explicitly mandating and requiring the use of the ODG in Kansas Workers Compensation.  Stay tuned for more updates on this topic!

May 17, 2007:            Kansas Workers’ Compensation Law Update – Significant 2007 Pro-Employer Change To Kansas Workers’ Compensation Law From The Kansas Supreme Court, But Not From The Kansas Legislature.

 

1.         Results of the 2007 and 2008 Kansas legislative session.

 

The 2007 and 2008 Kansas Legislative Sessions ended with no significant legislative change or amendment to the Kansas Workers’ Compensation Act.  Controversial provisions put forward in past legislative sessions by both management and labor went nowhere in 2007 or 2008.

2.         The 2007 Kansas Supreme Court dramatically reverses its 1931 decision of Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 that was the foundation for the “parallel injury rule” that for 76 years served as the basis for bilateral upper-extremity and lower extremity disabilities to be compensated as a general body disability, instead of separate scheduled disabilities.

 

In  Casco v. Armour Swift-Eckrich, 283 Kan. 508, 154 P.3d. 494 (2007 Kan. LEXIS 235), the Kansas Supreme Court issued a dramatic reversal of its own precedent, abandoning the 76 year old “parallel injury rule” that originated from its 1931 decision in Honn v. Elliott.  In summary, the practical significance of Casco is it will likely result in an immediate and significant reduction in the disability compensation cost for employers of many pending and future bilateral upper-extremity and lower-extremity claims.

In place of a detailed technical legal analysis of the sweeping Casco decision, this limited discussion will focus on the likely practical effect this new change in the law will have on your existing and future bilateral upper-extremity and lower-extremity disability claims.

But first, in an effort to quell the shrill “sky is falling” cries from the claimant’s bar, that the Casco decision has tilted the earth off its axis, and eviscerated the essential “grand compromise” forming the basis for the entire Kansas Workers Compensation Act, remember what Casco does not change.  Casco does not change the unlimited lifetime right to payment of all causally related, reasonable and necessary, medical expenses, for all bilateral upper and lower extremity injuries, free of any co-payments or deductibles for injured workers.  Casco does nothing to ease the burden on employers of the cost of lifetime medical expenses for these injuries.  What the Kansas Supreme Court has said Casco will accomplish is bringing everyone back to a point that was originally intended by the legislature when it established the “schedule” of disabilities as the general rule, and “non-scheduled disabilities” (general body disabilities) as the exception for permanent partial disability compensation.

As a practical matter, the real issue involved here is whether “work disability” compensation benefits are available to injured workers with bilateral upper and lower extremity injuries.  Prior to Casco, the routine bilateral carpal tunnel syndrome injury to a high wage earner in Kansas, such as a highly paid aircraft industry worker who does not return to work after the injury, would typically expose the employer to a maximum $100,000.00 permanent partial general body “work disability compensation” award.  Under Kansas law, a general body disability award qualifies at minimum for an award based on the functional impairment, but that functional impairment percentage is but the compensation floor, for the potential ultimate compensation award.  Work disability compensation far in excess of the amount generated by the functional award would become available to the injured worker if he/she was not working at the time of the regular hearing, and that loss of employment was due to their bilateral carpal tunnel injury and disability.

A common pre – Casco 2007 work disability compensation award for a high wage aircraft or other industrial worker with bilateral carpal tunnel syndrome, which generates a 10% whole body impairment rating from the doctor, where the worker could not return to work after being issued permanent work restrictions, would be something similar to the following benefit computation: 415 maximum weeks of compensation x 50% work disability = 207.5 compensable weeks x $483 maximum compensation rate = $100,222,50.  This amount would automatically be reduced down to the $100,000.00 cap for any permanent partial general body disability.

While upper-extremity injuries generate “scheduled disabilities” under the Kansas statute, following the 76 year old pre – Casco “Honn precedent,” workers compensation administrative law judges would never have given the time of day to an argument by an employer that permanent disability compensation for bilateral carpal tunnel syndrome should be limited to that available to two separate scheduled disabilities.  The pre – Casco bilateral carpal tunnel syndrome awards would have almost always been calculated based on the much more economically generous general body work disability compensation entitlement formula.

After Casco, that same aircraft worker with a bilateral carpal tunnel syndrome injury with a functional impairment rating of 10% to each upper-extremity would likely receive something similar to the following permanent disability compensation benefit computation: Right Upper-Extremity: 190 maximum weeks x 10% impairment = 19 compensable weeks x $483 maximum weekly compensation rate = $9,177.00; Left Upper-Extremity: 190 maximum weeks x 10% impairment = 19 compensable weeks x $483 maximum weekly compensation rate = $9,177.00.  Adding together the right and left awards would result in a total permanent scheduled disability compensation award of $18,354.00.

In summary, this hypothetical illustrates that the pre – Casco bilateral carpal tunnel syndrome disability compensation award would likely cost the high wage paying employer $100,000.00 in permanent disability compensation benefits; whereas, under the Casco separate schedule disability compensation award, the same set of injuries would cost the employer $18,354.00.

One post Casco caveat regarding single injury (as opposed to repetitive micro-trauma injury) bilateral carpal tunnel and other similar combination extremity disability claims – under the plain language of the Kansas permanent total disability compensation statute, such combination disability claims could potentially, under certain fact situations, be presumed to constitute a $125,000.00 permanent total disability compensation award.  It can be expected that in certain currently pending, and future, bilateral upper and lower-extremity cases, claimants will utilize the plain language of the permanent total statute, and attempt to procure a $125,000.00 disability compensation award by invoking the permanent total disability presumption by putting on evidence that the worker is essentially and realistically unemployable from any type of substantial gainful employment because of the injury.  It is critical in such currently pending cases, and future cases, for the employer to put on evidence to rebut the presumption by putting on evidence that the claimant is capable of engaging in some type of substantial and gainful employment.

Employers should also be on the alert for separate body part conditions to be “combined” into a “single injury” via the “secondary injury” theory.  The “secondary injury” theory allows a subsequent, but separate, body part problem to be combined with the original injured body part via the “natural and probable consequence” rule to turn an otherwise inexpensive scheduled disability into a $125,000.00 permanent total disability compensation award.  An example of this would be a left knee injury that later causes an aggravation of a preexisting right knee condition.  Here the claimant would be favoring the original injury to the left knee, resulting in the “secondary” injury to the right knee by overcompensation.  Under the “secondary injury” rule, the right knee problem becomes a compensable injury and the date of this right knee injury relates back to the date of the original left knee injury via the natural and probably consequence doctrine.  The key for employers to avoid this often hidden but dangerous exposure is to always present lay and/or expert testimony that claimant is capable of engaging in some type of substantial and gainful employment.

In short, employers must now pay close attention to any bilateral or combination injury claims to see that they are properly compensated as separate scheduled disabilities, and if they are alleged as a single injury either directly, or indirectly through the “secondary injury” rule, that there is evidence to rebut the permanent total presumption that the claimant is incapable of engaging in any type of substantial and gainful employment.