REGRESSION OF KANSAS WORKERS COMPENSATION LAW

Kansas Workers Compensation has undergone significant, you could say drastic, changes in the last 8 years.  For the first 100 years of work comp law in Kansas, an aggravation of a pre-existing condition was covered by workers compensation.  This has worked well since the inception of the first worker's compensation law in Kansas on July 1, 1911, and workers generally received the benefits they needed to get well and return to the workforce.  However, on May 15, 2011, a meddling Kansas Legislature puckered up and kissed the butts of the Chamber of Commerce and the insurance industry, and made an unwelcome change.  Kansas adopted a law which did away with covering aggravation of a pre-existing condition and substituted a prevailing factor analysis.  The purpose of the prevailing factor law was to greatly reduce the number of covered workers compensation cases in Kansas and drive down insurance costs for employers.  It has been highly effective.  The prevailing factor law went into effect on May 15, 2011, and now requires that the work accident be the prevailing factor in causing the injury, need for medical treatment, and resulting disability or impairment.  The new prevailing factor law is set forth in K.S.A. 44-508 and states that the workplace accident must cause more than an aggravation of a pre-existing condition.   It is now the claimant’s burden to obtain proof that the prevailing factor for the resulting injury is the workplace accident, more than any other factor, for the case to be compensable and covered by work comp in Kansas. 

 This has proven a difficult burden for claimants to overcome.  In all but the most blatantly obvious cases, the claimant must come forward with a medical opinion stating that the accident was the prevailing factor in causing the injury and need for medical treatment before benefits will be provided.  These medical opinions from an expert witness doctor cost a minimum of $500.00 and sometimes in the several thousands of dollars and it is difficult for most claimants, who are working people, many of whom live paycheck to paycheck, to come up with the money to pursue such an opinion after an injury which may have interrupted their income. 

WHO PICKS THE DOCTOR?

The Kansas Workers Compensation Act since its inception in 1911 has allowed the employer and its insurance carrier to choose the authorized treating physician to treat the injured workers injuries.  The rationale for this was that because the insurance company was paying for the medical treatment, they would have expertise in finding the appropriate doctor to treat work place injuries.  Unfortunately this has not proven to be the case.  Not even close.  In many cases what it has fostered is an industry which goes out of its way to find corrupt doctors who will go along with the insurance company’s position and deem legitimate work place injuries to be the result of the natural aging process, idiopathic causes, aggravations of pre-existing conditions, or caused by anything and everything except the accident at work.  There seems to be no shortage of doctors willing to accept large numbers of referrals from insurance companies and the hefty incomes these referrals generate, to side with the insurance company position.  The right to control who will provide treatment to the injured worker is one zealously protected through insurance industry lobbying of the Kansas Legislature because it never wants to lose that control.

PERMANENT TOTAL DISABILITY IN KANSAS IS A DISPICABLE TRAVESTY

Just how regressive is Kansas in protecting its injured workers?  One need only examine the benefits available for permanent total disability to understand how uncaring the State of Kansas is of its injured workers.  If a worker becomes paralyzed as the result of a workplace injury or becomes blind due to a workplace injury his or her indemnity (money paid to the injured workers for temporary and permanent disability) benefits are capped at $155,000.00.  This is the cap placed upon indemnity benefits for permanent total disability in the State of Kansas.  It is the lowest of any state in the United States.  Even the State of Missouri from which Kansas plagiarized its “prevailing factor law” has no cap on permanent total disability and a permanently totally disabled worker can collect indemnity benefits for his or her lifetime.  In some cases this can be millions of dollars but in Kansas, it's $155,000.00 with no exception to the rule.  Why this law hasn’t been challenged on constitutional grounds I cannot say, but it certainly should be because it would appear to violate the Equal Protection Clause of the 14th Amendment to the United States Constitution and also Section 18 of the Kansas Constitution Bill of Rights which both guarantee a person’s right to a remedy:  “All persons, for injuries suffered in person, reputation or property, shall have a remedy by due course of law.”[1]

The 14th Amendment of the United States Constitution state that no state shall “deprive any person of life, liberty, or property without due process of law.”  When the Kansas Legislature makes workers compensation an exclusive remedy and the only remedy available for injuries sustained at work, it must provide an adequate remedy as guaranteed by Section 18 of the Kansas Constitution Bill of Rights and the 14thAmendment to the United States Constitution guaranteeing equal protection of the law to all citizens. When the aforementioned remedy afforded injured workers under the Workers Compensation Act is inadequate it violates both the Kansas Constitution and the United States Constitution and the limit of $155,000.00 for permanent total disability I would argue is an inadequate remedy to a worker who becomes paralyzed or blinded or both, due to an accident on the job.

REDUCTION OF INSURANCE COSTS

I mentioned earlier that the prevailing factor law was proving highly effective in reducing the cost of employers paying for workers comp insurance.  The reason is obvious, that fewer claims are found compensable and more are being denied.  A recent study by the (NCCI) National Council on Compensation Insurance (NCCI prepares workers compensation rate recommendations and manages the nations largest database of workers compensation information)[2] found that major rate decreases for workers compensation insurance by Kansas business owners in 2015, 2016, 2017 and 2018 had dropped 49% in the voluntary base rate and 39% in the assigned risk rate.  The NCCI also found that 65% of workers compensation benefits were going toward medical treatment with only 35% going toward indemnity for injured workers.  The costs of workers compensation insurance coverage obviously dropped because insurance companies denied more claims of injured workers on the basis of a prevailing factor and are not hesitant about hiring corrupt doctors to blame injuries on everything except the work accident.  


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