What kinds of jobs are subject to the Workers Compensation Act?
The Kansas Workers Compensation Act applies to all employers in Kansas who have an annual total payroll in excess of $20,000 when all employees pay is added together. There are some other limited statutory exceptions, but most employers in Kansas are subject to the statute, even if they are “self-insured.”
What kinds of accidents are covered by the Workers Compensation Act?
The statute covers those accidents which arise out of and in the course of employment. There is a great deal of litigation over what accidents “arise out of and in the course of” employment. You will need a legal consultation of your facts to determine whether the accident is one that should be covered.
What kinds of injuries are covered under the Workers Compensation Act?
The statute defines injury as a physical change or lesion in the body. If you have suffered an injury you are entitled to medical treatment. If the injury results in any permanent residual effects you may also be entitled to compensation. Injuries may be physical injuries that result from a specific event in time, or injuries may be conditions that have progressed or worsened over time through repetitive activity.
Specific accidents and injuries through repetitive activity may also cause an aggravation, acceleration or exacerbation of a pre-existing condition. In this instance the injured worker may still be entitled to treatment and compensation.
Vision loss, hearing loss, respiratory injury and even psychological injury are all compensable if there is sufficient evidence to establish that work activities have caused damages in these areas.
What do I do first and how long do I have to do it?
The date of accident in a case is very important because there are time limitations you must comply with in order to preserve and pursue your workers compensation claim.
If you have suffered an injury you must notify your employer within 10 days of the date of accident. Notice may be verbal, but written notice is preferable. Ask to complete an accident report.
If the injury was the result of a specific event, then the date of accident is well defined, but if the injury is the result of activities over time, the date of accident is more difficult to define. However, the court will still make a determination for a “date of accident” because you must still comply with other timelines. So the court will look at several things to determine what the date of accident should be. First they will look at whether the injury resulted in any lost time from work. The court will also look at when medical treatment was sought, when work restrictions were first imposed, or whether you were ever taken off work by a doctor. In looking at these things the court is looking for when you knew, or should have known, the injury was work related. At this point the court would impose the “date of accident” and you are expected to give notice to the employer within 10 days.
Notice can be extended to 75 calendar days after the date of accident upon a showing of “good cause” for the delay. There is no statutory definition of “good cause” and is generally considered on a case-by-case basis. There have been few exceptions.
Failure to provide timely notice can result in an otherwise valid claim being denied.
If notice of injury is provided, you then have 200 days from the date of the accident to make a demand for any of the recognized workers compensation benefits. Written demand must be in writing, must have your name or signature and make a clear request for benefits. Although no particular form is required, a written claim form is available from the Division of Workers Compensation in Topeka, Kansas.
If, after the accident, treatment is initiated by the employer voluntarily, the written claim and 200 day period does not begin to run until the employer or insurance carrier has stopped providing benefits.
Failure to provide timely written claim can result in an otherwise valid claim being denied.
If a written claim / demand for benefits has been denied or there is no response, you will need to take legal action. You have 3 years from the date of accident, or 2 years from the date of last provided benefit to file a case with the Division of Workers Compensation. Any unnecessary delays will hurt your case even if eventually filed in time.
Failure to file a case in time can result in an otherwise valid claim being denied.
How do I get medical treatment?
Initially a request for medical treatment may be verbal, and made to your direct supervisor, lead or manager. If a verbal request does result in prompt action, make a written demand for treatment and provide copies to your supervisor, lead or manager and a copy to human resources or some other higher department within your employer’s company. If there is still no cooperation, you will need to take legal action.
Who pays for my medical treatment?
Whether the employer or its insurance carrier has voluntarily agreed to initiate medical treatment, or you have forced them to do so through legal representation, the employer or its insurance carrier are responsible to provide all reasonable and necessary medical treatment. Accordingly, they have the right to appoint the authorized treating doctor. The right to appoint the treating doctor is not the right to control the treating doctor. This is something frequently abused by the workers compensation insurance carrier and you may need legal representation to fight such abuse.
Any medical costs you incur from a source other than the authorized treating doctor, the employer or insurance carrier may not have to pay for and you may be responsible for the bill. Try to avoid unauthorized medical treatment without first seeking a legal consultation.
If the employer has terminated your authorized medical treatment and you wish to seek more treatment, you will need legal assistance.
What if I am missing work due to injury?
Time missed from work due to injury may entitle you to a weekly workers compensation check. This is referred to as temporary total disability compensation.
Following a one week statutory waiting period, you would be entitled to a weekly compensation check for time lost from work if the authorized doctor either takes you off work, or has given you temporary work restrictions that your employer cannot or will not accommodate. You cannot create time off from work and become eligible for workers compensation checks by missing work based upon your own determination, regardless of the severity of your injury.
The weekly workers compensation checks are paid at 2/3 of your gross average weekly wage as calculated from the wages for the 26 weeks immediately preceding your date of accident. There are maximums weekly benefits set each year.
If you are missing work due to injury and are not receiving weekly workers compensation checks, your job may be at risk. Do not place your job at risk. Seek legal consultation immediately.
Is my employer required to accommodate my restrictions with light duty work?
No. Under workers compensation laws, the employer is not required to provided accommodated employment. However, the failure to do so may entitle you to a weekly workers compensation check during treatment. It may also result in additional damages at the end of the claim if the employer unable to return you to work when treatment is completed. It may also expose your employer to possible liability for violations of the American’s with Disabilities Act and the Kansas Act Against Discrimination if their failure to return you to your job is deemed a discriminatory decision rather than a true overburdening inability to accommodate. If your employer is unable to accommodate your restrictions, you should seek legal consultation to determine the legal consequences in your particular set of facts.
What kind of compensation can I receive for my injuries?
There are many kinds of damages in a workers compensation case. First, there are weekly temporary total disability payments that pay for lost wages while you are off work, restricted duty and in treatment. Second, at the end of treatment there is also as assessment of physical damages, which is represented by a percentage of functional impairment in the opinion of the doctor, using the Fourth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. Typically, insurance company appointed physicians rate much lower than other doctors when using these guidelines, thus resulting in a lower value of compensation, and therefore lower settlement offer. You should not settle loss of physical function/disability claims without legal consultation.
Third, in some cases, if the employer is unable or unwilling to return you to work after you have been released from treatment, you may be able to seek damages for loss of the job. This is referred to as a Work Disability. You should never settle loss of job damages without legal consultation.
Finally, in some cases, additional money is paid toward future medical needs. You should never discuss settling future medical needs without legal consultation.
What rights do I have for future medical needs?
If your injuries have resulted in any permanent damage, or if the insurance carrier is making you any offer of settlement, then you potentially have the right to future medical treatment, which would continue to be the responsibility of the workers compensation insurance carrier.
If the judge were to enter an award in your favor, the judge’s award, according to the statute, would retain your right to seek additional medical treatment in the future should your condition change. To do so you must first have an award from the court. Thereafter you may file an application with the Division of Workers Compensation requesting that the judge hear your motion for additional medical treatment. The right to future medical is theoretically open indefinitely following an award, but there are a number of complications that could affect your ability to use it.
Additionally, the closure of future medical rights may expose you to negative consequences should you later seek the assistance of Medicare.
If you do not obtain an award, or a court approved settlement with open future medical, then your future medical rights have not been preserved.
Do not relinquish future medical rights in a settlement without legal consultation.
Can my award ever be changed / Can I seek any additional compensation if my injuries change in the future?
Under either an award from the judge, or through a court approved settlement, you can secure what is called the right to review and modification. The right to review and modification would allow any prior award or settlement to be reopened, reviewed and possibly changed, if your condition changes or your employment status changes.
Do not relinquish future review and modification rights in a settlement without legal consultation.