KANSAS WORKERS' COMPENSATION

Workers' compensation statutes provide for chiropractic care, medical care, physical rehabilitation, lost wages, etc., when an employee is injured on the job. Most employers are required by state law to maintain workers' compensation insurance to cover such injuries.

Unlike other types of law, there is no consideration of fault in determining whether you will receive your benefits. With very few exceptions, if you are injured on the job, or have a debilitating injury caused by repeated traumas over time, you are entitled to workers' compensation benefits.

STATUTORY CHANGES

Because employers have seen increased costs and a lack of reduction in workplace injuries, there are constant debates going on in the Legislature about what can be changed to improve the system. Because of this, the workers' compensation act in Kansas has seen many amendments. Major revisions to the Act have been made in 1987, 1993, and 1996. This affects what law may apply to your injury and it is best to consult an attorney if you are unsure which law controls your claim.

HOW TO PROTECT YOUR INTEREST

There are a few requirements that you must meet in order to qualify for workers' compensation benefits and most importantly, file your claim. You normally cannot make a claim for workers' compensation unless you give your employer notice of the accident within 10 days after the accident. If you fail to do this, however, your claim may still be valid. If your employer has actual knowledge of the accident, formal notice is not necessary. Also, if you have a good reason for failing to give your employer notice within the 10 days, you may be allowed up to 75 days after the accident to give your employer notice. And, if you do not meet the 75 day requirement because you were physically unable to give your employer notice, or your employer was unavailable to receive notice, you still have a good claim. There may also be other exceptions. For example, if you do not know during the first 10 days after the accident that you were injured, your claim may still be compensable. If you feel that you may be out of time, or have a concern regarding whether you gave your employer adequate notice, you should consult with an attorney.

The second step is to give your employer a written claim for compensation. You must do this within 200 days after the date of the accident. Again, there are certain legal exceptions to this. If you find yourself in a situation where you are unsure, you may want to contact an attorney who can give you qualified advice.

There may be reasons that make you hesitant to file a claim. These can include: pressure from your employer, fear of being fired, or thinking it is going to be too complicated. You should know, however, that filing a claim is free and the application is simple. Furthermore, there are remedies available to you in the event your employer tries to retaliate against you for asserting your legal rights.

FAULT

As briefly explained above, workers' compensation generally does not involve fault; however, there are exceptions to this. If your injury results from your deliberate intention to cause the injury or if you willfully fail to guard against the accident, you will not receive compensation. Further, if you have consumed alcohol or drugs which contribute to your accidental injury (not including those taken by prescription or on the advice of a health care provider) you will not receive compensation. This can sometimes be a gray area and it is a good idea to consult with a qualified attorney to determine if you will be able to prove your claim.

EMPLOYERS WITHOUT WORKERS' COMPENSATION INSURANCE

If your employer does not have insurance covering work-related injuries, the State Workers' Compensation Fund will be responsible for paying you your benefits. Most employers are legally responsible for maintaining such insurance, but if it does not, that in no way affects your benefits. Everything will proceed as usual, but you will receive your benefits from the State Fund rather than your employer or your employer's insurance carrier.

If your employer goes out of business or cannot be found, you are still entitled to assert your claim for benefits. The insurance carrier for the former business will be obligated to pay, or if there was no insurance, the State Fund will be responsible.

OTHER REMEDIES

For the most part, workers' compensation is your exclusive remedy if you are injured on the job. For instance, you cannot collect workers' compensation benefits and file a civil suit against your employer because the workplace was unsafe. Workers' compensation is the only benefit you may collect. If, however, your accident was caused by a third party (not your employer), you are allowed to collect workers' compensation benefits and file a civil suit against the third party for damages. If you win, you will be required to pay back some of the money you collected from workers' compensation.

Do not confuse workers' compensation with employment law. As mentioned earlier, if your employer fires you because you assert your legal rights as an injured worker or pressures you not to file a workers' compensation claim, you may have other legal remedies that do not involve workers' compensation.

MULTIPLE OR SHORT TERM EMPLOYMENT

If you are working for more than one employer and you are not sure which job caused the injury, both employers may have to pay proportionate amounts for your injury. In this instance, you will need to give both employers notice and file separate claims with each employer.

If you have only worked for a short amount of time, you are still covered. There is no length of employment requirement. Further, if you are injured and do not want to return to work for the same employer, you are not obligated to do so. You will still be entitled to assert a workers' compensation claim for the injury sustained while you were employed.

STEPS TO TAKE AFTER GIVING NOTICE AND FILING A CLAIM

When you have been injured on the job, your employer is obligated by law to pay for your treatment, but your employer has the right to choose the doctor. After you give your employer notice that you have been injured, you should ask your employer whether there is a specific doctor to see or whether you may go to a health care provider of your own choice. You should also request that your employer notify its insurance carrier immediately so that you may start receiving your benefits.

WHAT DOCTOR TO SEE AND WHAT TO TELL THEM

If your employer is difficult or tells you that you do not need to see a doctor - go anyway. You have a right to seek treatment. Be sure to tell your employer that you are seeing a doctor, who it is, and when. You may even want to give your employer notes from your doctor regarding your condition (keep copies). Further, have your doctor send bills and treatment notes to your employer, as well.

If your employer tells you to see a specific physician and you are not happy with that person, the best thing to do is ask your employer if you may go elsewhere. If your employer agrees, you are still covered by your employer's workers' compensation insurance. If, however, your employer does not agree, you can see the doctor of your choice and the employer will be obligated to pay that doctor up to the current limit of $500.00.

You may see any type of health care provider appropriate for your condition if your employer does not specify one. These include chiropractic physicians, medical specialists, family practitioners, or any other type of treater appropriate for your injury. If the doctor authorized by your employer refers you to another facility or health care provider, the charges for that care must be paid by the employer and/or its workers' compensation insurance carrier, as well.

It is important that you discuss every problem you are having with your doctor. Even if you think the problem is minimal, you should tell your doctor. If a doctor ignores problems you are having, ask your employer to send you to another doctor. Finally, it is important that you follow all instructions the doctor gives you, including exercises, lifting restrictions, etc. And, you must keep your appointments! This is all important as you can lose your right to collect benefits if you refuse to reasonably cooperate with the treatment program.

If you are not satisfied with your treatment program and neither your employer or your doctor will agree to refer you elsewhere, you may file an application for a hearing before an Administrative Law Judge. Where appropriate, the judge will order the employer and/or its workers' compensation insurance carrier to give you a list of three (3) other doctors from which you may choose your new authorized care giver. If you decide to take your case to a hearing before an Administrative Law Judge, there are certain procedures which must be followed and documents which must be filed with the Division of Workers' Compensation. This can be tricky if you have never processed a claim on your own, and you may wish to contact an attorney for assistance.

UNAUTHORIZED CARE

If your employer or their insurance company tells you that your doctor is "unauthorized", it does not mean they will not pay for his or her care. Under Kansas law, you have the right to select your own doctor for examination and/or treatment up to $500.00. Your decision to seek unauthorized care does not affect your right to receive necessary treatment from doctors authorized by your employer. Those benefits remain intact without a limit on the amount incurred.

THE RATING SYSTEM AND FUTURE MEDICAL

If your injury is of a permanent nature, your condition will eventually come to a point where it is neither getting better or worse. Once you have reached that point, your doctor will give you what is called a "rating". This is expressed as a percentage of permanent impairment to your body you have sustained. This rating is used to determine the amount of benefits you should receive, but is not the only factor which will be considered.

If you are "rated and released", this means that your physician believes you are permanently impaired in some way and that he/she can no longer help you. Many people find chiropractic care helps ease their chronic pain. In fact, some find it necessary to allow them to continue working. In workers' compensation, you may be entitled to what is called "future medical" benefits which will pay for treatment of chronic conditions. There is no deadline for future medical benefits. You are entitled to receive them as long as your condition requires.

WORKERS' COMPENSATION BENEFITS - WHAT YOU MAY BE ENTITLED TO RECEIVE

A. Lost Wages

There are two forms of monetary compensation in workers' compensation. You may qualify to receive temporary total disability compensation or temporary partial disability compensation while you are either totally or partially unable to work. The amount of compensation is based on a statutory formula and is based in part, on the wage you were earning when you got hurt.

There is also compensation for permanent disabilities. This is paid based on your "rating" and in some instances, on your ability to work. If you have a permanent injury, you may be entitled to permanent partial or permanent total disability compensation benefits. These benefits are also based upon the wage you were earning at the time of the accident, the extent of permanent injury and whether you are restricted from performing all or any part of your job.

B. Vocational Rehabilitation

This is a benefit that is intended to assist you in finding new employment and/or to teach you a new trade if, you are unable to continue in your present employment and you know no other trade.

It is intended to allow you to work for the wages that you had prior to your injury. If your injury occurred after July 1, 1993, your employer does not have to provide these benefits, but may do so voluntarily. In addition, you may be able to obtain assistance from private agencies. Further, if you are denied employment due to your disability, you may have rights under the Americans with Disabilities Act.

C. Medical Benefits

You are entitled to receive benefits including chiropractic and medical care, hospital treatment, nursing, prescriptions, etc., for as long as "reasonably necessary" to cure and/or relieve you from your injuries. In addition to the actual treatment cost, you may be reimbursed by the employer or workers' compensation carrier for mileage associated with traveling for authorized care. You are entitled to reimbursement for trips which total more than five (5) miles round trip. You are also entitled to reimbursement for any prescriptions recommended by the authorized doctor that you pay for out of your own pocket. These benefits may last the rest of your life if that is what your condition requires.

RIGHT TO REVIEW

If your claim is not settled, it will be decided by an Administrative Law Judge. If for some reason your circumstances change after the judge enters the Award of workers' compensation, you have the right to have your claim reviewed by the judge again with the new information. This procedure could be used if your condition unexpectedly took a turn for the worse after the Judge already decided how much compensation you should receive.

FILING A CLAIM

Written claim must be served on your employer to preserve your claim. The claim should be delivered to your employer within 200 days of your accident. However, if your employer is providing workers' compensation benefits voluntarily, the deadline is extended. It is critical that the claim be given to your employer within the applicable time period. If you have missed the initial 200 day deadline, it is probably best to seek legal advice.

The written claim is very easy to file. It requires as little as writing a note to your employer saying that you want workers' compensation benefits for an injury at work. You should reference the accident date and sign the document. It is important that you retain proof of the date the written claim is given to your employer. The best way to achieve this is by sending it by certified mail, or delivering it personally and having your employer sign and date a receipt. Also, keep in mind that an employer's accident report is not the same thing as a written claim for compensation. A sample written claim form is included at the end of this booklet.

After you verbally notify your employer that you have been injured on the job, your employer is required to report your injury to the Division of Workers' Compensation. The Division will send you information, along with a form which may be used to serve your employer with the written claim for compensation.

PRIOR INJURIES

If you have suffered a previous injury to the same area of the body, it may have some impact on your workers' compensation claim. For example, if you previously injured your low back in an auto accident and you are now claiming a work injury which has made your low back even worse, you may file a workers' compensation claim for the new injury. However, the previous injury will likely affect the amount of compensation you may receive. Again, this is a complicated matter and if you find yourself in this situation, you may wish to consult an attorney.

SERIES OF INJURIES OR REPETITIVE USE INJURIES

Many workers suffer a series of minor traumas to the body over many months or years of labor. This may result in a compensable claim. These injuries occur when a worker's job requires repetitive physical motions which result in injury. Workers who work at conveyor belts may be subject to injury from continuous bending or use of hands to grasp. Employers in loud factories may have repetitive trauma to the eardrum that eventually causes an injury and/or loss of hearing.

NON-PAYMENT

If your employer or its insurance carrier purposely misleads you about your right to benefits, or refuses to pay benefits to which you are entitled, they may be subject to penalties under fraud and abuse laws. Penalties can range from fines to criminal sanctions depending on the circumstances.

INTERNAL GRIEVANCE PROCEDURES

Your employer may require that you use a grievance procedure for any complaints you may have. Do not confuse this with Workers' Compensation. They are two separate proceedings and you are not required to use the grievance procedure to receive Workers' Compensation benefits.

TERMINATION/POOR TREATMENT AFTER FILING YOUR CLAIM

If you believe you were terminated or treated poorly for filing a workers' compensation claim, you may be entitled to seek damages in a civil suit filed in district court. This is unrelated to your workers' compensation claim for benefits which is filed with the Division of Workers' Compensation as an administrative claim. You should immediately contact a lawyer if you feel your employer is not treating you fairly.

NONCOMPLIANCE WITH RESTRICTIONS

When receiving treatment for your injury, sometimes your doctor will place restrictions on the types of activities you can do at work. If your employer keeps you on as an employee but refuses to make reasonable accommodations for your doctor's recommendations for restrictions on your activities, you are entitled to quit and seek unemployment compensation. You may also file an internal grievance if this is an option within your company. In some cases, you may be entitled to assert a claim under the Americans with Disabilities Act. Do not put your health at risk by trying to continue performing work tasks your doctor has advised against. If you are faced with this situation, you should consult with an attorney before quitting your job or taking other action.

LOOK OUT FOR LOOKERS

Insurance companies often hire private investigators to go out and follow claimants like yourself to find out if they are really injured. They may legally videotape you and take photos. Be aware of what you are doing because pictures may not represent your true condition and can jeopardize your claim.

SETTLEMENT

If you settle your case, you must remember that you may be giving up your right to all future benefits. You may want to consult with an attorney to find out what you might be entitled to receive if you allowed an Administrative Law Judge to decide your case rather than settling. Further, remember that you will have the right to request review of your case in the event that your situation changes after the judge decides your case if you have not settled.

SEEKING AN ATTORNEY

Many situations have been presented to you in which you may want to consult with an attorney. Attorneys in workers' compensation cases usually charge a percentage of what you receive in benefits and that fee must be approved by the court. You will know the exact percentage that your attorney will take from your benefits when the attorney agrees to represent you. Attorneys are required by law to have a written contract with you setting out what percentage of the recovery he or she will retain as his or her fee.

There are other factors which may be taken into account and therefore, individual cases should obviously be discussed with your attorney. Many attorneys will provide an initial consultation free of charge and should explain to you at that time what fees will be required.

SUMMARY OF IMPORTANT DEADLINES

A. Report your work-related injury to your employer within 10 days of the accident.

B. Serve your employer with a written claim for compensation within 200 days of the accident.

C. File an Application for Hearing with the Division of Workers' Compensation within 3 years of the accident.

There are laws which may change these deadlines in particular circumstances. Thus, if you do not meet these initial deadlines, you should consult an attorney.

HELPFUL REMINDERS

* Immediately inform your employer that you were hurt on the job.

* Ask your employer where to go for authorized treatment of your injuries.

* File a written claim for compensation.

* Keep a copy of the written claim served on your employer or other proof of having made a written claim.

* Tell your doctor about all body parts injured.

* Keep your doctor appointments and follow the treatment

advice.

* Ask about having your own doctor authorized to treat you if you are not satisfied with the employer's doctor.

* Seek legal representation if you are not satisfied with your medical care and/or there is a delay in payments while you are unable to work.

* If you must hire an attorney, select one who is experienced in the area of workers' compensation law.

This information is intended to give you a general overview of your rights and obligations regarding workers' compensation. It is in no way intended to be construed as a substitute for competent legal advice.

If you would like to have a printed copy of this booklet or our booklet on Kansas No Fault Insurance, please contact our office and a copy will be sent to you free of charge.

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