2011 Amendments to the Workers Compensation Act

Transcription

1 2011 Amendments to the Workers Compensation Act Comprehensive revisions to the Workers Compensation Act were passed by the 2011 Kansas Legislature and signed by the Governor. These changes went into effect on May 15, The revisions were, in large part, the culmination of months of negotiations between lawyers representing labor and industry groups. These revisions fundamentally change what is considered compensable under the Workers Compensation Act, what compensation is received, and the employee s rights to medical treatment. The Kansas practitioner should carefully review the Substitute for House Bill No as enacted to insure that he/she properly evaluates a workers compensation matter. The following is a summary of the primary Legislative changes: 1. Compensability: For an injury to be compensable under the Workers Compensation Act, Kansas requires that the accident arise out of and in the course of employment. By case law the term accident included both traumatic and repetitive injuries. Kansas courts have also long-held that if an employee s preexisting condition is aggravated, accelerated or exacerbated by a work event, the employer is liable for medical and disability benefits. a. Accidents and Repetitive Traumas K.S.A was amended to revise the definition of accident and create a new class of compensable injuries arising from a repetitive trauma. i. The definition of Accident now includes a requirement that the event be traumatic. K.S.A (d)} In addition, an accident must now be identifiable by time and place of occurrence, produce at the time symptoms of and injury and occur during a single work shift. Id. To arise out of employment, there must be a causal connection between the conditions under which the work is required to be performed and the accident is the prevailing factor in causing not only the injury but also the medical condition and the resulting disability or impairment. K.S.A (f)(2)(B). ii. Kansas courts have consistently found compensable injuries resulting from repetitive traumas or micro-traumas in the workplace. However, prior to the 2011 amendments, neither the Legislature nor the courts had provided a true definition of this type of injury. The 2011 amendments addressed this missing definition by legislating that a repetitive trauma is compensable if an injury occurs as a result of repetitive use, cumulative, traumas or microtraumas. K.S.A (e). The repetitive nature of the

2 injury must be demonstrated by diagnostic or clinical tests. Id. It also must be the prevailing factor in causing the injury. Id. A repetitive trauma is compensable only if: a) the employment exposed the worker to an increased risk or hazard which the worker would not have been exposed in normal non-employment life; b) the increased risk is the prevailing factor in causing the repetitive trauma; and c) the repetitive trauma is the prevailing factor in causing the medical condition and resulting disability or impairment. K.S.A (f)(2)(A) b. Date of accident in a repetitive trauma case The Kansas courts have long struggled with the date of accident for repetitive trauma cases. In 2005, the Legislature attempted to provide a bright-line test for determining this date but in practice, the date of accident was subject to manipulation. The 2011 amendments establish that in repetitive trauma cases, the date of accident is earliest of the following dates: i. The date the employee, while employed for the employer against whom benefits are sought, is taken off work{k.s.a (e)(1)}; ii. The date the employee, while employed for the employer against whom benefits are sought, is placed on modified or restricted duty{k.s.a (e)(2)}; iii. The date the employee, while employed for the employer against whom benefits are sought, is advised by a physician that the condition is workrelated {K.S.A (e)(3)}; iv. The last day worked, if the employee no longer works for the employer against whom benefits are sought. K.S.A (e) (4). c. Prevailing Factor The most significant change in workers compensation will be the addition of the requirement that the work be the prevailing factor in causing the injury, medical treatment and disability. Prevailing factor is defined as the primary factor in relation to any other factor. K.S.A (g). It is the injured workers burden to prove that the work was the prevailing factor in the injury, medical treatment and disability. d. Exclusions from compensability The inclusion of the prevailing factor requirement meant standards the court s had previously used to determine compensability had to be changed. The Legislature specified that the following events no longer rise to the level of a compensable workers compensation event: i. Triggering or precipitating events {K.S.A (f)(2)}; 2

3 ii. Aggravations, accelerations, or exacerbations of a preexisting condition {K.S.A (f)(2); iii. Neutral risks{k.s.a (f)(3)(A)(ii); iv. Personal risks {K.S.A (f)(3)(A)(iii)}; v. Idiopathic events{k.s.a (f)(3)(A)(iv); vi. Voluntary participation with a co-employee in horseplay {(K.S.A (a)(1)(E)}; vii. Voluntary participation with a co-employee in a fight, whether related to work or not{( K.S.A (a)(1)(E)}; and viii. Reckless violation of the employer s workplace safety rules. K.S.A (a)(1)(D) In another change, the Legislature did provide that and employee s willful failure to use a guard or protection required by statute or the employer may not be a complete bar to compensability if such willful failure was reasonable in the totality of the circumstances or if approved by the employer. K.S.A (a)(2). An example of such a circumstance is an undercover police officer that does not use a bulletproof vest while on assignment for fear of blowing his cover. e. Drug and alcohol defenses In addition to excluding certain cases from compensation under the Act, the Legislature beefed up the drug and alcohol defenses. The Legislature did not change the impairment levels of drugs or alcohol, but it did state that a person with a positive drug or alcohol test is presumptively impaired. K.S.A (b)(1)(D). The burden then shifts to the injured worker to prove that his/her impairment did not contribute to the workplace accident. Further, the amendments allow that drug tests taken under certain circumstances shall be admitted into evidence. A test taken a) as a part of an employer mandated drug testing policy in place before the accident; b) during an autopsy or in the normal course of medical treatment; c) pursuant to the written consent of a worker before the accident; d) pursuant to a post-injury consent by the worker; or e) as the result of a federal or state law, rule or regulation requiring a drug test shall be admissible. K.S.A (b)(2) If an employee refuses to submit to a chemical test at the request of an employer and the employer had sufficient cause to suspect the use of alcohol or drugs by the employee or if the employer s policy clearly authorizes postinjury testing, then there is a forfeiture of benefits under the Act. K.S.A (b)(1)(E). Finally, if the employer chooses to take a drug sample, the employer must abide by new rules for the collection and testing of those samples. The employer must collect the sample within a reasonable time following the accident or injury and the split sample sufficient for testing must be made available to the employee within 48 hours of a positive test. {(K.S.A (b)(3)}. 3

4 2. Permanent Partial Disability The second most significant change in the 2011 amendments to the Workers Compensation Act deals with the award of permanent partial disability benefits. The Legislature efforts in this area were aimed at addressing concerns raised by decisions of the Supreme Court and Court of Appeals in Casco v. Armour-Swift Eckrich, 154 P.3d 494 (Kan. 2007) Bergstrom v. Spears Manufacturing Co., 214 P.3d 676 (Kan. 2009) and Tyler v. Goodyear Tire and Rubber Company, 224 P.3d 1197 (Kan.App. 2010). The latter two decisions, while technically correct in strictly construing the words of K.S.A e, were highly criticized by employers and practitioners as missing of the central purposes of the Act i.e. to return injured workers to the workplace. Both cases provided disincentives to injured workers to do so. a. Work Disability i. Bilateral extremity and binocular injuries The amendments addressed Casco first. The loss of or loss of use of the bilateral upper extremities, bilateral lower extremities or both eyes will now be considered a general body injury under K.S.A e. Under the Casco rationale, these injuries were treated as separate scheduled injuries under K.S.A d. ii. Presumption of functional impairment Under the amendments to K.S.A e, the presumption is a general body injury results in a functional impairment award only. K.S.A e(a)(2)(B). The functional impairment shall still be determined by applying the principles and guidelines of the American Medical Association Guides to the Evaluation of Impairment, Fourth Edition. Id. However, if the employee can meet certain thresholds and show task and wage loss, a work disability may be awarded. K.S.A e (a)(2)(c). iii. Thresholds To qualify for a work disability, the functional impairment from the work injury must be in excess of 7.5% to the body-as-a-whole. K.S.A e(a)(2)(C)(i). If the injured worker has a preexisting impairment to the same body part, then the combined functional impairment from the preexisting impairment and the current injury must be in excess of 10% to the body-as-a-whole for a work Id. disability to be awarded. In addition, in both cases above, the injured worker must show that he/she is earning less than 90% of pre-injury wage. K.S.A e(a)(2)(C)(ii). iv. Task loss 4

5 b. Caps The test for evaluating task loss was also changed. Instead of looking at the job tasks a worker performed in the 15 years preceding the work accident at issue, the Legislature shortened the period to 5 years. K.S.A e(a)(2)(D). In addition, the Court is to determine only that portion of the tasks that were eliminated by the restrictions from the current work injury. Id. If the employee has preinjury restrictions that would have eliminated the worker s ability to perform job tasks during the past 5 years, those tasks are to be excluded for the purposes of calculating task loss. Id. v. Wage loss Another significant change occurred in the wage loss component of work disability. To determine wage loss, the Court is now directed to determine what the injured worker was earning before the injury and compare that with what the injured worker was capable of earning after the injury. K.S.A e(a)(2)(E). If an employee is engaged in post-injury employment for wages, there shall be a rebuttable presumption that the average weekly wage an injured worker is actually earning constitutes the post-injury wage that the worker is capable of earning. To establish post-injury wage loss, the employee must have the legal capacity to enter into a valid contract of employment. K.S.A e(a)(2)(E)(i). In addition, the actual or projected weekly value of fringe benefits is to be included in the post-injury wage-loss comparison. K.S.A e(a)(2)(E)(ii). Finally, if the employer offers accommodated work to the injured worker within the workers restrictions and at equal to or greater than 90% of preinjury wage and the worker refuses the position, there is now a rebuttable presumption against work disability. K.S.A e(a)(2)(E)(iii). Kansas caps on benefits have not changed significantly since The 2011 amendments addressed this situation by increasing the caps for the following types of claims: i. Death Claims K.S.A b. 1. $300,000 in death benefits; 2. $5,000 for burial expenses(this is not a change) 3. $1,000 to defray the cost of a conservator if one is needed. ii. Permanent Total Disability - $155,000. K.S.A f(a)(1) In addition, a person is now statutorily prohibited from receiving more than one award of permanent total disability. 5

6 iii. Temporary Total Disability - $130,000. K.S.A f(a)(2) iv. Permanent Partial Disability - $130,000. K.S.A f(a)(3) v. Functional only claims - $75,000. K.S.A f(a)(4) This cap applies even if there have been payments of temporary total or temporary partial disability. c. Voluntary payment of unearned wages If the employer has voluntarily paid unearned wages during the pendency of a workers compensation case, the unearned wages paid may be taken as a credit against any final settlement or withheld from the employee s wages after he/she returns to work. K.S.A f(b) 3. Temporary Total Disability Prior to the amendments, K.S.A c provided that temporary total disability existed only when an employee, on account of the injury, had been rendered completely and temporarily incapable of engaging in any type of substantial and gainful employment. In practice, that standard was rarely strictly applied. To harmonize the law with actual practice, the Legislature amended K.S.A c. a. If the injured worker is still employed for same employer, temporary total disability shall be awarded if the employee has been issued temporary restrictions by the authorized treating physician and the employer cannot accommodate those restrictions. K.S.A c(b)(2)(b). b. If the injured worker has been terminated for cause or voluntarily resigns following a compensable injury, the employer is only obligated to pay temporary total disability benefits if the employer could have accommodated the authorized treating physician s restrictions. c. The insurer or self-insurer shall provide on the first temporary disability check the following language: Warning: Acceptance of employment with a different employer that requires the performance of activities you have stated you cannot perform because of the injury for which you are receiving temporary disability benefits could constitute fraud and could result in loss of future benefits and restitution of prior workers compensation awards and benefits paid. 4. Temporary Partial Disability Benefits 6

7 Correcting a previous drafting oversight, the Legislature provided that temporary partial disability benefits may be obtained in cases where a worker has only a scheduled injury. K.S.A d. 5. Wage Calculation The formula for calculating an injured workers pre- and post-injury wages was also amended. Under the 2011 amendments, the wages, bonuses, and gratuities earned by employee during the 26 weeks before the accident are added together and divided by the number of calendar weeks actually worked. Fringe benefits are not to be added to the average weekly wage calculation until such benefits are terminated at which time the average weekly wage is to be recalculated. K.S.A Notice The 2011 amendments altered the requirements of an employee to give notice of the accident to the employer. Under the old Act, an employee had 10 days to give notice but such date could be extended to 75 days with just cause. a. Time of notice An injured worker now has 30 days after the date injury in which to notify the employer that he/she has been injured on the job. K.SA (a)(1)(A). The time for giving notice can be reduced to 20 days from the date of medical treatment if the employee seeks medical treatment prior to notifying the employer. If the employee no longer works for the employer against whom benefits are being sought, then the time for giving notice is also 20 days from the last date of employment if that is a shorter time frame than the 30 days discussed above. b. Manner of notice An employee s notice whether oral or in writing shall now include the time, date, place, person injured and particulars of the injury. It must be apparent from the content of the notice that the injured worker is claiming benefits under the Act. K.S.A (c)(4). c. Method of notice The method of giving notice has now been revised. Previously, an employee could tell any supervisor or manager and such notice would be sufficient. i. Employer designated representative If the employer designates a person or department to receive notice of a workers compensation injury and that designation is communicated in 7

8 writing before the injury to the employee, the employee must notify the designated person or department. K.S.A (a)(2) ii. No designation by employer If the employer does not so designate a person or department, the employee may notify a supervisor or manager. K.S.A (a)(2) iii. Written notice An employee can satisfy the notice provisions by providing written notice to his/her principal location of employment. K.S.A (a)(3). 7. Abolition of written claim The Amendments abolish the 200-day written claim requirements of the former K.S.A a. 8. Medical treatment Kansas law had long recognized that an employee s rights to future medical could not be extinguished judicially without the consent of the injured worker. The 2011 amendments change that long-held principle. a. Medical treatment ends at maximum medical improvement Under the 2011 amendments, an injured worker s rights to medical treatment presumptively end when the authorized treating doctor places the injured worker at maximum medical improvement. K.S.A h(e). The burden then shifts the employee that he/she is still in need of additional or future medical treatment. Id. The definition of future medical does not include home exercises or over-the-counter medications. b. Post-Award termination of medical If the employee is awarded future medical benefits and the injured worker does not use these benefits for a period of 2 years, the employer or carrier may ask for a hearing before the court to have the benefits terminated permanently. The injured worker shall be notified of the hearing and may put on evidence that he/she is still in need of treatment. However, the presumption will be against the injured worker if he/she has not accessed medical treatment through the authorized treater in the preceding 2 years. K.S.A k. c. Change of physician 8

9 Recognizing the difficulties in finding treating physicians, the 2011 amendments change the number of doctors that must be given by an employer/carrier if an injured worker asks the court for a change in treating physician. The employer carrier will be required to provide the names of 2 doctors, a reduction of one from the current requirement of Procedural changes There were many procedural changes in the 2011 Amendments. These include: a. Provision of medical report Employees and Employers are now required to provide a copy of a doctor s report within a reasonable period of time. Under the old law, the parties were required to share the report within 15 days of the evaluation, impossibility many times. b. Dismissal of dormant claims If an employee does not bring his/her case to trial or settlement within 3 years from the date of the filing of the application for hearing, the employer shall be allowed to ask for dismissal of the matter for lack of prosecution. If the injured worker cannot show good cause why the claim has not been brought to trial or settlement, then the matter shall be dismissed with prejudice. K.S.A (f)(1). c. Dismissal of denied claim at preliminary hearing If an employer prevails at a preliminary hearing that the injured workers claim is not compensable, the injured worker has 1 year from that decision, or the date the appeal was affirmed, whichever is later, to take the case to trial. Failure to do so permits the employer to file a motion to dismiss for lack of prosecution. K.S.A (f)(2). 10. Reduction of Award for preexisting conditions The 2011 amendments clarified the manner in which the credit for preexisting impairment is computed. If the preexisting impairment was as the result of an injury for the same employer, then the credit shall be the current dollar value of the preexisting condition. If the preexisting impairment is unrelated to an injury for the current employer, then the credit shall be the preexisting percentage of impairment. 11. Effective date of changes The effective date of the changes is May 15, Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions and requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and options of a specific situation. 9