• March 1997. (Ph) Despite claimant's argument that he notified his supervisor of his alleged work-related accident, where claimant's supervisor denies receiving such notice and where the emergency room hospital records state claimant denied any knowledge of his injuries, the Appeals Board finds claimant has failed to prove timely notice of accident as required by K.S.A. 1995 Supp. 44-520. Further claimant failed to prove just cause for extending the time for notice beyond 10 days to 75 days. Manns v. Liberty Fruit Company, Inc. and Kansas Chamber of Commerce & Industry c/o Thomas McGee & Sons, Docket No. 214,448.

• March 1997. (Award) Where claimant told her supervisor that she twisted her back the same day the incident occurred, the Appeals Board finds claimant did in fact give timely notice of the accident. Armstrong v. North American Philips Lighting and Travelers Insurance Company and Workers Compensation Fund, Docket No. 192,037.

• April 1997. (Ph) Where claimant's physician wrote a medical note notifying respondent of claimant's need to be restricted from working with electroplating chemicals due to her onset of dermatitis and where claimant gave this note to respondent, the Appeals Board finds the note sufficient to satisfy the notice requirement contained in K.S.A. 44-520. Andre v. Wilde Tool Co., Inc. and Employers Mutual Casualty Company, Docket No. 217,609.

• April 1997. (Ph) Held, timely notice provided to respondent where claimant filed an amended application for hearing indicating she was claiming injury to the left upper extremity. That document placed respondent on notice of claimant's accidental injury involving the left upper extremity which was ongoing in nature. Smith v. National Vision Center and Hartford Accident & Indemnity Co. & Travelers Indemnity Company, Docket Nos. 206,033 & 220, 001.

• April 1997. (Ph) Although claimant did not identify a specific incident that caused her increased symptoms, she complied with the intent of the notice statute, K.S.A. 44-520, since the information she gave her employer placed the employer on notice that she had re-injured her neck and back at work. Weber v. Beverly Rehabilitation Services and Christopher Manor and Insurance Company State of Pennsylvania and Phico Insurance Company, Docket No. 219,365.

• February 1997. (Ph) Despite the fact the person whom claimant reported his injury to was not claimant's supervisor, the Appeals Board finds notice given this person in respondent's personnel department, whom claimant believed was respondent's agent and was the person to whom such injuries were to be reported, satisfies the notice requirements of K.S.A. 44-520. Holt v. Scholfield Honda and Kemper Insurance Companies, Docket No. 213,437.



• February 1997. (Ph) Claimant told her supervisor that she was having back difficulties and needed to see a chiropractor. Respondent argued the notice was not sufficient because claimant did not specifically state she had a work-related injury. The Appeals Board concludes that even though claimant did not specifically advise respondent the symptoms were from an accident, the complaints of back pain were, in context, notice that the work was causing symptoms. Padgett v. Beech Aircraft Corporation, Docket No. 214,129.
• See Also, Trolle vs. Engineered Air and Fremont Compensation Insurance Group, Docket No. 255,283 (October 2000).
• April 1994. (Award) Notice considered adequate to include back injury where claimant did notify of fall off tractor even though claimant did not mention back but mentioned elbow. Lang v. J.W. Willis Contractors, Docket No. 183,116.

10.05 Actual Notice (Actual Knowledge) by Employer

• June 1999. (Ph) Where foreman witnesses claimant laying on the ground and helps him to his feet and claimant tells the foreman he fell from his truck, this constitutes actual knowledge by respondent even thought the foreman did not witness the fall himself. Howell v. Asphalt Construction Company and Liberty Mutual Insurance Company, Docket No. 241,333.

• March 1999. (Award) Where claimant's supervisors were aware of claimant's medical problems, including his ongoing back trouble, and where the supervisors placed claimant on light duty several times to alleviate any back trouble, the Appeals Board finds respondent had actual knowledge of claimant's ongoing physical injuries, and knowledge of a specific traumatic event is irrelevant. The requirements of K.S.A. 44-520 are found to have been met. Daniels v. Hubbards Milling Company and Zurich Insurance Company, c/o Gallagher Bassett Services, Docket No. 214,813.



• May 1998. (Ph) Claimant, the majority stockholder and president of respondent corporation, was found to be the ultimate authority to whom and notice of accident would be presented regarding work-related injuries. As such, the Appeals Board finds claimant's actual knowledge of the work-related injury constituted knowledge of the corporation and therefore notice under K.S.A. 44-520. This case was distinguished from the Court of Appeals' holding in Wietharn v. Safeway Stores, Inc., 16 Kan. App.2d 188, 820 P.2d 719, rev denied 250 Kan. 808 (1991), since the claimant in Wietharn, although a supervisor, had people in supervisory positions over him to whom he could have reported the accident. Atie v. Green Ways, Inc and Hartford Accident & Indemnity, Docket No. 228,769.



• -----But See, Dissent where the Dissenting Board Member, based upon the holdings in Wietharn v. Safeway Stores, Inc., 16 Kan. App.2d 188, 820 P.2d 719, rev denied 250 Kan. 808 (1991) and Renco Inc. v. Nunn, 474 P.2d 936 (Okla. 1970), would find notice by the president and CEO of a corporation to himself of a work-related accident does not constitute notice under K.S.A. 44-520. Id.



• ----- See Also, Second Dissent, where the Dissenting Board Member finds the holding in Wietharn v. Safeway Stores, Inc., 16 Kan. App.2d 188, 820 P.2d 719, rev denied 250 Kan. 808 (1991), is factually close enough to the case at hand that it must be followed. Id.



• May 1998. (Award) K.S.A. 44-520 requires notice of accident to be provided to the employer within 10 days after the date of accident except that actual knowledge of the accident by the employer or the employer's duly authorized agent shall render the giving of such notice unnecessary. Tibbits v. Shawnee County, Docket No. 198,464. [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,336, January 7, 2000.]



• See Also, Holloway v. Troutman Construction , Inc and Cigna Workers Compensation, Docket No. 236,466 (February 1999).



• February 1998. (Ph) Foreman's knowledge of claimant's knee pain at work did not constitute a actual knowledge or notice of the accident, where the foreman knew claimant had a prior workers compensation claim for a knee injury and claimant had never fully recovered from that injury. Phillips v. Ewell Construction Company, Inc. and Hartford Accident & Indemnity Company, Docket No. 228,547.

• August 1997 (Ph) Where claimant testified she repeatedly requested her employer provide medical treatment for repetitive injuries to her upper extremities, and where respondent referred claimant to a physician and did in fact understand the medical treatment was being provided as a worker compensation benefit, the Appeals Board finds respondent had notice claimant was claiming benefits for an on-the -job injury. Eldridge v. Champ Service Line Division and Zurich American Insurance Company, Docket No. 189,361.



• March 1997. (Ph) Respondent's knowledge that claimant was off work and seeing a physician for her injured leg does not establish or rise to the level of actual knowledge of a work-related accident. Simmons v. Jones Store Distribution Center and Liberty Mutual Insurance Company, Docket No. 217,928.

• March 1997. (Ph) Where the Appeals Board finds the evidence is uncontradicted that claimant notified his supervisors of his work related injury by telling them of his symptomatology, the Appeals Board finds the respondent had actual knowledge of claimant's accident and as such the requirement for the giving of notice under K.S.A. 44-520 has been satisfied. Stevens v. The Boeing Company and American Manufacturers Mutual Ins. Co., Docket No. 219,071.

• January 1994. (Award) Notice found adequate where claimant told respondent he had fallen and that his knees were bothering him. Flores, Jr. v. Cameron Drywall, Docket No. 152,948.

10.06 Timing of

• June 1999. (Ph) In a series of accidents, the date of accident is the last day worked before leaving work because of the injury. This is also the date for determining timeliness of notice and written claim. Pope v. Overnite Transportation Company, Docket No. 237,559.

• See Also, Ricky D. Blackman vs. U.S.D. No. 418 and Kansas Association of School Board's Self-Insured Fund, Docket Nos. 245,461 & 248,238 (May 2000).



• June 1999. (Ph) Ten days means ten working days, intermediate Saturdays, Sundays and holidays are not counted when determining the ten days to give notice under K.S.A. 44-520. Howell v. Asphalt Construction Company and Liberty Mutual Insurance Company, Docket No. 241,333.



• See Also, Susan J. Hicks vs. Wheatlands Health Care Center and Kansas Association Of Homes For The Aging Insurance Group, Inc., Docket No. 251,804 (July 2000).



• July 1998. (Award) Where date of accident is a series, notice given before the last day in the series is timely and satisfies the statutory requirement that notice be given within 10 days of the date of accident, ie notice given on 1/11 when date of accident was found to be 1/15 is nevertheless timely. Remmel, Jr. v. The Boeing Company and Aetna Casualty & Surety Company, Docket No. 170,813. [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,693].

• July 1998. (Ph) In computing the 10 days from the date of accident to give notice of accident per K.S.A. 44-520, the McIntyre v. A.L. Abercrombie, Inc, 23 Kan. App.2d 204, 929 P.2d 1386 (1996), decision applies K.S.A. 60-206(a) to the computation of time. This computation excludes the first day when considering the time within which an act is to be done, includes the last day, and excludes any intervening weekends or holidays. Gallmeister v. Christopher Manor and Ins. Co. State of Pennsylvania, Docket No. 220,767.



• March 1998. (Ph) Claimant sustained a work-related accident on November 20, 1997, and provided respondent with notice of such accident on December 3, 1997. The Appeals Board finds, pursuant to McIntyre v. A.L. Abercrombie, Inc, 23 Kan. App.2d 204, 929 P.2d 1386 (1996), that claimant has met the ten-day requirements of K.S.A. 44-520. Hubin v. The Boeing Company and Insurance Co. State of Pennsylvania, Docket No. 230,022.



• December 1997. (Award) Although claimant characterized his injury as having been caused by repetitive use each and every working day beginning in March of 1995 through November of 1995, the Appeals Board finds the greater weight of the credible medical evidence is that claimant's fractured arm was more likely than not caused by a single traumatic event. As such, the Appeals Board concludes that claimant's notice of accident given in August of 1995 was more than 10 days and more than 75 days after his March 1995 accident. The claim is time barred by the provisions of K.S.A. 44-520. Groh, Jr. v. United Parcel Service and Liberty Mutual Insurance Company, Docket No. 206,815.



• See Also, Burns v. Wiles Appliance Center, Inc and Fireman's Fund Insurance Company, Docket No. 213,589 (March 1998).

• December 1997. (Ph) The Appeals Board cites McIntyre v. A.L. Abercrombie, Inc., 23 Kan. App.2d 204, 929 P.2d 1386 (1996), in support of its finding that claimant provided notice within the statutory limitations of K.S.A. 44-520. This statutes obligates claimant to provide notice within ten days of the date of accident, and in computing this ten-day time limitation, the rules set forth in McIntyre must be considered. Korthanke v. Schwan's Sales Enterprises and Continental Casualty Company, Docket No. 220,101.

• ----- In McIntyre, the Court of Appeals found the method of computing a ten-day period under the Workers Compensation Act to be controlled by K.S.A. 60-206. The language of that statute provides that in computing any time when the time prescribed is less than 11 days, intermediate Saturdays, Sundays and legal Holidays are to be excluded from compensation. This method was incorporated into the Workers Compensation Act effective July 1, 1997, in House Bill No. 2011. Id.

• See Also, Martel v. Waste Management of Wichita and Continental Casualty Company, Docket No. 227,477 (December 1997); Johnson v. Ronnie Cox Flatwork and American States Insurance Company, Docket Nos. 225,959 & 225,960 (February 1998); Barlow v. Horizon Technology and Travelers Insurance Company, Docket No. 227,472 (June 1998).



• August 1997. (Ph) When dealing with injuries which are caused by overuse or repetitive micro traumas, it is sometimes difficult to determine the injury's etiology, and it is often difficult to determine the injury's commencement and conclusion. In those situations, injured workers should not be held to absolute precision when considering the notice requirements of K.S.A. 44-520. Rather, the test should be whether the employer was placed on reasonable notice of a work-related injury. Bonner v. Smith Construction Company, Inc. and Business Insurance Company, Docket No. 220,934.



• July 1997. (Ph) Claimant's failure to give his employer notice within 75 days of his single traumatic event, the longest period permitted by K.S.A. 44-520 for giving notice, bars his claim for compensation. Ross v. Shawnee County Refuse Dept., Docket No. 217,771.

10.07 Just Cause for Not Reporting in a Timely Manner

• November 1999. (Ph) The Board found there was just cause for failure to give notice within ten days as required by K.S.A. 44-520 where injury occurred gradually and even though claimant knew work caused pain, claimant thought pain was simply from old age or arthritis and not a compensable workers compensation injury. Fleming v. Ridgeway Controls, Inc., Docket No. 244,331.

• July 1999. (Ph) Just cause exists when circumstances are such that a worker does not realize their injury or illness is related to their work. Sauerwein v. Sedgwick County Area Educational Services Interlocal Coop (SCAES) and Employers Mutual Casualty Company, Docket No. 233,967.

• June 1999. (Ph) Just cause found for claimant's failure to give timely notice in 10 days where evidence supports finding that claimant was not aware he sustained a work-related injury to his hands and wrists. Johnson v. Doctor's Lawn & Landscape and Union Insurance Company, Docket Nos. 241,836 & 242,699.

• See Also, Turner D. Hubbard vs. Deffenbaugh Industries, Inc. and Zurich U S Insurance Company, Docket 250,432 (April 2000).

• May 1999. (Ph) Just cause not found for claimant's failure to give timely notice in 10 days where claimant's credibility is questioned as his explanations do not fit with the facts before the court. Lewis v. Ben Schreniner Construction and Allied Mutual Insurance, Docket No. 239,613.

• February 1999. (Award) Just cause found for claimant's not giving timely notice where claimant argued she was never told by respondent of the notice requirements associated with workers compensation. Westfall v. Kelly Services and CNA Insurance Companies, Docket No. 202,398. [Affirmed by unpublished Court of Appeals opinion, Docket No. 82,782, December 23, 1999.]



• January 1999. (Ph) Claimant suffered a single, traumatic injury not a series of repetitive traumas or overuse-type injury. The absence of a Spanish speaking supervisor alone does not constitute just cause for failure to give notice of accidental injury within 10 days where claimant knew of the requirements to immediately report accidents and could have done so through a bi-lingual co-worker like he did over 40 days later. Additionally, claimant's testimony that his symptoms worsened does not by itself establish an each and every day aggravation of the accidental injury so as to extend his time for giving notice, especially where claimant initially suffered injury by a single traumatic event. Just cause is not found, therefore, to extend the time for claimant to give notice of the work-related accident pursuant to K.S.A. 44-520. Macias v. Ritchie Paving, Inc, Docket No. 237,417.



• November 1998 (Ph) Just cause for not reporting notice within 10 days not found where the claimant contradicts himself in sworn testimony and is not found to be a credible witness. Gott v. Oxford Transportation Service, Inc and Kansas Truckers Risk Management Group, Docket No. 223,098.



• See Also, McMinn v. Forshee Paint Company and Petrosurance Casualty Company, Docket No. 234,911 (November 1998).



• October 1998. (Ph) Where there is a finding of just cause for not giving notice within 10 days, claimant's time is extended to 75 days, not 10 days from the date just cause exists. Bain v. Cormack Enterprises, Inc and Continental Western Insurance Co., Docket No. 222,967. [Affirmed by Supreme Court in Docket No. 82,200, July 9, 1999].

• ----- Under McIntyre v. A.L. Abercrombie, Inc, 23 Kan. App.2d 204, 929 P.2d 1386, intervening Saturdays, Sundays and holidays should be excluded when computing the 10 day notice requirement of K.S.A. 44-520. Id.

• August 1998. (Ph) Just cause not found for claimant's failure to provide notice of accident to respondent within 10 days despite the fact claimant stated he did not want to "cause waves" at work by filing a workers compensation claim. The Board finds that claimant suffered a previous workers compensation claim and was well aware of the requirements for filing notice. Smith v. Kenny's Electrical Company, Inc and Hawkeye-Security Insurance Company, Docket No. 233,435.

• August 1998. (Award) The Appeals Board finds claimant's testimony in regard to notice of accident and just cause for not reporting in a timely manner to be inconsistent. On the one hand, claimant testified he notified the respondent immediately he was injured at work. On the other hand, claimant argues he did not notify respondent within 10 days of the accident but had just cause for not reporting in a timely manner. The Appeals Board affirms the ALJ's finding that claimant failed to prove he gave respondent timely notice as required by K.S.A. 44-520. Sharp v. Tony's Pizza Service and Liberty Mutual Insurance Company and Kansas Workers Compensation Fund, Docket No. 193,077.

• June 1998. (Ph) Where notice is given 75 or more days beyond the date of accident, just cause for failure to report the accident in a timely manner is no longer an issue. Lawton v. Richman-Helstrom Trucking, Inc and KS Trucking Risk Mgmt Group Inc. Trust, Docket Nos. 228,799 & 228,800.



• February 1998. (Ph) Just cause shown because claimant did not know he had suffered a new, separate and distinct accident/injury. Claimant thought the pain was related to an aggravation of an old and prior injury. Phillips v. Ewell Construction Company, Inc. and Hartford Accident & Indemnity Company, Docket No. 228,547.

• See Also Hernandez v. Monfort, Inc., Docket No. 225,823 (April 1998).



• January 1998. (Ph) Just cause found for claimant not reporting the accident within 10 days, where claimant testified her neck and back pain initially went away and did not resurface until later. Weiland v. Colonial Manor and Travelers Insurance Company, Docket No. 225,092.



• November 1997. (Ph) When determining whether just cause exists for claimant's failure to notify respondent of an accident within 10 days of the date of accident, the Appeals Board considers several factors such as: (1) the nature of the accident, including whether the accident occurred as a single, traumatic event or developed gradually; (2) whether claimant was aware that he/she sustained an injury or accident on the job; (3) the nature and history of claimant's symptoms -- a specific onset with a severe result is significant; and (4) whether the employee was aware or should have been aware of the requirements for reporting a work-related accident and whether respondent posted notices as required by K.A.R. 51-13-1, now K.A.R. 51-12-2(a). Rasmussen v. Metric Construction and Zurich Insurance Company, Docket No. 225,773.



• ----- Where claimant was aware that a work-related accident needed to be reported to his employer immediately and where claimant had suffered a prior work-related accident which he did immediately report to his employer, the Appeals Board finds claimant was aware that he needed to notify respondent of the accident and finds just cause does not exist for claimant's failure to provide timely notice per K.S.A. 44-520. Id.

• June 1998. (Ph) When just cause is at issue, the factors set forth in Rasmussen, supra, should be considered on a case-by-case basis. In this instance, just cause is found for claimant's not notifying respondent of the accident within 10 days per K.S.A. 44-520, where claimant was not aware that the injury he suffered was work-related nor was he aware of the significance of his symptoms. This evidence was further supported by claimant's chiropractor who told claimant he had a muscle strain which would go away. Lash v. K-Mart Corporation, Docket No. 225,718.



• October 1997. (Ph) Where claimant did not know she had a hernia and further that such hernia was work related until the doctor diagnosed the hernia. The Appeals Board finds just cause for claimant's failure to notify respondent of the accident within 10 days as specified by K.S.A. 44-520. Traylor v. Linscheid and ITT Hartford, Docket No. 225,445.

• See Also Sanchez-Balderas v. National Beef Packing Company and Wausau Underwriters, Docket No. 222,162 (November 1997); Lane v. Payless Shoesourece, Docket No. 210,370 (October 1996).

• September 1997. (Ph) Where claimant suspected the bulge in his abdominal area to be a work-related hernia within ten days of its occurrence, but failed to notify his employer that the hernia may have been the result of a work-related accident, the Appeals Board finds claimant has not met his burden of proving just cause for his failure to give notice. Brown v. Blackburn Construction and United States Fidelity & Guaranty Co., Docket No. 223,210.



• August 1997. (Ph) The Administrative Law Judge found just cause for claimant's not giving notice of accident within 10 days, due to claimant's failure to attribute his injury to any specific "accident" or traumatic event(s) until after he learned the results of his MRI test. The Appeals Board, however, reversed this decision finding claimant did in fact have knowledge of his back and neck conditions as being possibly work-related within 10 days of the date of accident yet failed to give notice. Grill v. State of Kansas and State Self Insurance Fund, Docket No. 220,817.



• July 1997. (Ph) The Appeals Board finds just cause existed to extend the period for claimant to provide notice to 75 days , per K.S.A. 44-520, where claimant did not realize he sustained a back injury until 27 days after the injury when his symptoms had progressed to include groin numbness. Garcia v. Leisure Hotel, d/b/a/ Super 8 and Royal Insurance Company of America, Docket No. 219,732.



• June 1997. (Ph) Where claimant had a good faith belief that her right wrist pain was caused by her arthritis, just cause is found for claimant's failure to give notice of accident until such time that she became aware the condition was not arthritis but carpal tunnel syndrome, a condition more likely to be caused by the repetitive work activities she was performing. Van Velzer v. Levy and Craig, P.C. and St. Paul Fire & Marine Insurance Co., Docket No.219,718.



• June 1997 (Ph) Where claimant worked for respondent as a manager and was aware of the workers compensation notice requirements and where claimant went to his physician twice for the alleged work-related back problems, just cause is not found for claimant's lack of providing notice of accident to respondent. Sanders v. Carpet One Center and Kansas Building Industry Workers Compensation Fund, Docket No. 220,035.



• June 1997. (Ph) "Just Cause" found where aggravation of pre-existing, work-related injury caused by authorized medical treatment was not reported within 10 days of the injury. Claimant did not realize an "aggravation" of a pre-existing injury could be considered a new "accident" and "injury" requiring notice. Kiehl v. Allied Group Insurance and Cigna Property & Casualty Ins., Docket No. 217,855.



• May 1997. (Award) Where claimant failed to notify respondent of the alleged work-related accident within 10 days after the date of the accident, the Appeals Board does not find just cause for such failure to notify respondent, despite claimant's arguments that he did not realize the severity of the injury and that he feared losing his job for reporting the accident. Williams v. The Boeing Company - Wichita and American Manufacturers Mutual Insurance Company and Workers Compensation Fund, Docket No. 192,093.

• But See, August 1998. (Ph) Just cause found for claimant's not reporting the work -related accident within 10 days as set forth in K.S.A. 44-520. Claimant did not realize the severity of the accident and thought the symptoms would go away. Additionally, once claimant realized the severity of the accident, she did not immediately report it to her supervisor because she feared losing her job. While the Appeals Board has rejected these allegations for failure to provide timely notice in the past, the Board, in this particular case, finds there is some justification for claimant's concern. Those being a past experience in which claimant lost her job within two to three days after providing notice of a work-related accident, and the fact a charge nurse working for respondent told claimant she would be fired if she reported the accident. Evans v. Edwardsville Manor and Insurance Company State of Pennsylvania, Docket No. 231,762.



• May 1997. (Ph) Just cause found for claimant's failure to report the accident within 10 days of its occurrence, where the evidence shows claimant did not relate his low back pain to his work moving cement across rough terrain and where claimant was not aware of the ten-day reporting requirement. Rupe v. State of Kansas, Docket No. 219,225.



• April 1997. (Ph) Just cause for failure to notify the employer of the accident is not found where it is determined claimant was aware of respondent's policy on notice of accidents or injuries within 24 hours of such occurrence. Hull v. Magill Truck Lines, Inc. and Travelers Insurance Company, Docket No. 214,407.



• March 1997. (Ph) There are three instances when an injured worker may have more than 75 days to provide notice of accident: (1) when the employer has actual knowledge of the accident, (2) when the employer was unavailable to receive the notice, and (3) when the employee was physically unable to provide such notice. Simmons v. Jones Store Distribution Center and Liberty Mutual Insurance Company, Docket No. 217,928.



• March 1997. (Ph) Just cause for failure to notify the employer of a work-related accident is not found where claimant was aware of the symptomatology to his hands, including numbness and tingling, for the entire 14 month period he worked for respondent. The fact that claimant did not have a specific diagnostic label to place on the ongoing symptomatology is irrelevant. Harrelson v. First Data Resources, Inc. and Travelers Insurance Company, Docket No. 216,844.



• February 1997. (Award) Just cause found for claimant's failure to notify respondent of accident within 10 days per K.S.A. 44-520, where claimant did not realize his injury would require any medical treatment and where claimant did not know and respondent did not inform claimant that he had 10 days to give notice of his accident. VanNatta v. A & M Products, Inc. and Lumbermens Mutual Casualty Co., Docket No. 201,381.



• May 1996. (Ph) Although claimant did not tell the respondent he had definitely injured his back at work until more than ten days after the lifting incident, the Appeals Board finds claimant has established just cause for failing to comply with the ten-day notice requirement of K.S.A. 44-520. Just cause is established because the initial lifting incident did not immediately cause symptoms of such severity or character to cause claimant to believe he had suffered injury or accident as those terms are defined by the Kansas Workers Compensation Act. In addition, the initial resolution of claimant's symptoms and their later gradual progression prevented claimant from immediately associating his symptoms with the lifting incident. Claimant had no experience with the Workers Compensation Act and was unaware of its notice requirements. Further, there was no evidence presented that respondent had posted the required notices concerning on-the-job injuries as required by K.A.R. 51-13-1. Therefore, the claimant had 75 days from the date of accident to provide timely notice of the incident to the respondent. Ramsey v. Tow Service, Inc. and Wausau Underwriters Insurance Company, Docket No. 208,165.



• See Also, Sanderson v. Atchison County and Kansas Eastern Regional Insurance Trust, Docket No. 214,788 (November 1996).



• April 1996. (Award) The Appeals Board finds that claimant failed to provide respondent notice of either the accident or injury within ten days of its occurrence. However, the Appeals Board finds that claimant has established just cause to excuse that failure and extends the notice period to 75 days from the date of accident as provided by K.S.A. 44-520. Claimant was justified in believing her back condition would improve with chiropractic treatment and promptly reported the incident when the symptoms did not resolve as anticipated. Additionally, the evidence is uncontroverted that claimant was never advised by the respondent that she was required to report accidents within ten days of their occurrence and likewise unaware there was a company policy to immediately report work-related incidents. Ryan v. The Boeing Company-Wichita and Aetna Casualty & Surety and Workers Compensation Fund, Docket No. 181,628.



• October 1996. (Award) Claimant failed to give notice of her accident within 10 days as required by K.S.A. 44-520 but argued just cause should be found to extend the notice requirement to 75 days since she thought her back condition/injury would improve. The Appeals Board, however, found from the nature of the onset of claimant's back condition and the severity of her symptoms that claimant should have notified the respondent for medical treatment within 10 days of her accident; just causes is not found. Willmon v. Kelly Services, Inc. and Continental Casualty Company, Docket No. 196,199.



• July 1996. (Ph) The Appeals Board finds for preliminary hearing purposes that the claimant failed to give notice within ten days to the respondent that his work activities caused the carpal tunnel syndrome condition. The Appeals Board further finds that the preliminary hearing evidentiary record did not establish that claimant had just cause for not giving the respondent the required ten-day notice. Claimant knew on June 20, 1995, when Dr. Melhorn diagnosed carpal tunnel syndrome, that the condition was caused by his work activities. Claimant failed to notify the respondent of this fact until after he retired on June 30, 1995. Claimant's argument that he had just cause for not notifying the respondent fails because he knew the diagnosis prior to voluntarily retiring on June 30, 1995, his last day he was exposed to work activities which caused the carpal tunnel syndrome condition. Moore v. The Boeing Company and American Manufacturers Mutual Insurance Co., Docket No. 202,720.



• April 1996. (Ph) Where claimant is not regarded as a credible witness and her testimony consists of several inconsistencies, the Appeals Board does not find just cause exists to extend the period of giving notice of accidental injury as provided by K.S.A. 44-520. Murphy v. Kit Manufacturing Company, Docket No. 204,486.



• November 1996. (Ph) Where just cause for not reporting an accident in a timely manner is not alleged or argued by claimant, the Appeals Board will not address the issue. Hull v. Magill Truck Lines, Inc and Travelers Insurance Company, Docket No. 214,407.



• November 1996. (Ph) Just cause found for not reporting a work-related accident within 10 days, where claimant, an owner/operator of a trailer, fell while unloading his truck. Claimant proved that it was not unusual to fall while unloading his truck as the floor by his truck was purposely waxed and kept slick to ease in the sliding out of grain from the truck. As such, claimant felt it would be impossible and unproductive to report every single work-related slip and fall unless it was a major one. Additionally, claimant understood that he was to contact the insurance carrier and not respondent directly when a work-related accident occurred. Klubec v. Brigg's Trucking Inc and Continental Western Insurance Company, Docket No. 213,100.



• October 1996. (Ph) The Board finds it is most probable that claimant's present need for medical treatment is primarily due to the original injury of April 1, 1996, rather than the aggravations thereafter. Since more than 75 days had elapsed from the April 1, 1996, injury until it was reported on July 8, 1996, only those aggravations occurring after April 24, 1996, and before June 14, 1996, would be timely as being within the 75 days permitted by K.S.A. 44-520. There is no evidence as to what extent, if any, claimant's present back condition is attributable to aggravations during that time period. Therefore, in that regard, claimant has failed to meet her burden of proof. Even under the rules announced in Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 885 P.2d 1261 (1994) and Condon v. The Boeing Co., 21 Kan. App. 2d 580, 903 P.2d 775 (1995) for determining date of accident in repetitive trauma cases, the claimant's notice of accident was given out of time. Claimant's symptoms plateaued and her condition ceased to worsen by June 24, 1996. Utilizing this date as the date of accident, claimant still did not give notice within ten days thereof. Cisneros v. Wichita Wire, Inc and Hartford Accident & Indemnity, Docket No. 214,063.

10.07a Notice for Occupational Diseases

• July 1999. (Ph) Just cause not found for claimant's failure to report the accident to respondent within 10 days and time to report not extended where claimant told her supervisor prior to the day of the alleged work-related back accident that her back was hurting her, and where claimant noted her back injury was most likely caused by something she did at home over the weekend. Garcia-Aldrich v. Hallmark Cards, Inc. and Royal Insurance, Docket Nos. 222,834 & 222,835.



• March 1999. (Ph) Claim denied where notice of occupational disease was not given within 90 days from the disablement. K.S.A. 44-5a17. Smith v. Cornejo & Sons, Inc and Wausau Insurance Company, Docket No. 237,676.



• April 1998. (Ph) Under K.S.A. 44-5a17, claimant is obligated to provide written notice of occupational disease within 90 days after disablement. Under K.S.A. 44-520a, claimant is obligated to submit timely written claim within 200 days of the date of accident. In this case, claimant alleged accidental injury and/or occupational disease through each and every working day up to January 23, 1998. However, claimant's date of termination with respondent was January 22, 1998, which would be the last day upon which claimant could have alleged occupational disease or accidental injury. Respondent received written claim on or about February 10, 1998; under either statute, written claim for an accident date through claimant's last day worked would be timely. Frazier v. Midwest Truck Equipment, Inc and General Accident insurance Company, Docket No. 231,015

10.08 Written Claims for Compensation

• January 2000. (Award) In case where respondent settled with claimant and then sought reimbursement from Fund under K.S.A. 44-567, Fund held not entitled to defend on basis that claimant has not filed a timely application for hearing under K.S.A. 44-534. Munsch v. Dillon Companies, Docket No. 203,713.

• November 1999. (Ph) Where claimant suffers new accidental injury which aggravates an old injury, employer must file a new report of accident. Pursuant to K.S.A. 44-557, the failure to file the report of accident tolls time limit for filing application for hearing under K.S.A. 44-534. Edwards v. Foss Motor Company, Inc., Docket No. 244,923.

• August 1999. (Award) K.S.A. 44-534(b) requires an application for hearing be filed with the Director's office within three years of the date of accident or two years from the date of last payment of compensation, whichever is later. However, K.S.A. 44-509 provides that if the claimant is incapacitated, the time limits under the Act do not run until a guardian or conservator is appointed. Claimant argues that although he did not make a timely application for hearing, his incapacity tolled the time for making the application for hearing. The Board, however, found that claimant was not incapacitated for purposes of prosecuting his workers compensation claim and the time limits should not be treated as tolled. The Board based this conclusion on two factors: 1) claimant demonstrated that he was capable of managing the ordinary affairs of day-to-day living by his continuing to hold a job and perform the duties of that job from the date of accident until his termination; and 2), claimant's testimony at his deposition and regular hearing reflected a capacity to remember and present evidence sufficient to prosecute the claim. Therefore, the Board finds claimant did not render a timely application for hearing. Kincade v. Cargill, Inc., Docket No. 210,398 [Affirmed by unpublished Court of Appeals opinion, Docket No. 83,908, June 16, 2000; Motion to Publish Granted July 13, 2000].



• But See Dissent, the Dissenting Board Members would not address the issue concerning timely application for hearing, as the parties stipulated to a set of issues which did not include the timeliness of the application for hearing. Id.

• May 1997. (Award) Where claimant continued to receive authorized medical treatment for his work-related knee injury until October of 1993, the Appeals Board finds claimant's application for hearing filed with the Director in December of 1994 complies with the filing requirements set forth in K.S.A. 44-534(b). Gosal v. USC Industries Inc. and Hartford Accident & Indemnity Company, Docket No. 196,651. [Affirmed in part, reversed in part by unpublished Court of Appeals opinion, Docket No. 79,221].

• February 1997. (Award) Respondent argues the 1993 Legislature amended K.S.A. 44-557 (c) to require the filing of an application for hearing within one year of the date of accident, suspension of payment of benefits, or date of last authorized medical treatment, whichever is later, whenever an accident report is not filed as required by the Workers Compensation Act. Conversely, claimant contends K.S.A. 44-534(b) is controlling and affords an injured worker three years from the date of accident to two years from the date of last payment of compensation to file the application for hearing per K.S.A. 44-534(b). The Appeals Board found the 1993 modifications to K.S.A. 44-557 (c) placed that statute in direct conflict with K.S.A. 44-534(b). The Appeals Board also found it incongruous to strictly interpret K.S.A. 44-557 (c) to permit an employer to benefit from and avoid providing workers compensation benefits under a strict reading of K.S.A. 44-557 (c) but at the same time be penalized and rendered subject to criminal sanctions and civil litigation by failing to file a required accident report. See K.S.A. 44-5,120; 44-5,121; & 44-5,125. Therefore, because the legislative history did not indicate that the Legislature had any intent to modify the time period to file an application for hearing otherwise provided for in K.S.A. 44-534(b) and because applying K.S.A. 44-557 (c) in contravention of K.S.A. 44-534(b) yields an unreasonable and incongruous result which cannot be reasonably explained, the Appeals Board found that K.S.A. 44-534(b) controls the time for filing an application for hearing. Claimant's application for hearing, which was filed within three years of the date of accident, was timely. McClellan v. Harris Enterprises, Inc. and Cincinnati Insurance Company, Docket No. 213,940.

• See Also, Armstrong v. North American Philips Lighting and Travelers Insurance Company and Workers Compensation Fund, Docket No. 192,037 (March 1997).

10.10 Time Limitations & Notice of Hearings & Proceedings

10.11 Generally

10.12 Notice of Proceedings & Hearings

10.13 Generally

10.14 Notice of Preliminary Hearings

• October 1999. (Ph) In a case where it is alleged the Fund is liable for benefits pursuant to K.S.A. 44-532a because the employer is uninsured and unable to pay benefits, the Fund is entitled to notice and hearing on all issues under K.A.R. 51-15-2. If the Fund did not receive notice of the preliminary hearing the Fund is not bound by order for benefits and is entitled, at subsequent hearing, to present evidence on all issues, not only on issue of whether the employer is insured or able to pay. Havlik. v. Chalet Restaurant & Sports, Docket No. 245,968.

• October 1997. (Ph) Unless the parties agree otherwise, an administrative law judge must give all parties necessary statutory notice of preliminary hearings and hold such hearings before a certified court reporter appointed by the Director to make a complete record of the proceedings as required by K.S.A. 44-552(a). Fortner v. Home & Cabinet Designs, Inc. and Insurance Company of North America and Commercial Union Insurance Company and Kansas Workers Compensation Fund, Docket No. 195,470.

• September 1997. (Ph) K.S.A. 44-534a, as amended, obligates a party to provide notice to the adverse party of an intent to file an application for hearing. It further requires notice to the parties of the date set for the hearing. Glover v. McArthur Park Properties and Travelers Insurance Company, Docket No. 223,759.

• July 1997. (Ph) In Kansas, notice of a preliminary hearing need only be given to the respondent. K.A.R. 51-3-5a. Separate notice to the insurance carrier need not be given, as notice to the employer is notice to the insurance carrier. See Landes v. Smith, 189 Kan. 229, 368 P.2d 302 (1962). Martel v. Waste Management of Wichita and Continental Casualty Company, Docket No. 222,516.



• See Also, Smith v. Goodwill Industries and St. Paul Fire & Marine Insurance Company, Docket No. 237,140 (December 1998); Johnson v. J & J Maintenance and Insurance Company of North America, Docket No. 234,975 (January 1999).



• June 1997. (Order) Respondent received sufficient notice of the Preliminary Hearing, when its authorized agent--its insurance carrier-- received notice of the preliminary hearing. Church v. Wichita Janitorial Services and Patrons Insurance Company, Docket No. 220,425.

• May 1997. (Ph) A prerequisite of filing an application for preliminary hearing is the applicant shall give written notice to the adverse party of the intent to file such an application. The notice of intent shall contain a specific statement of the benefit change being sought . Therefore, the Appeals Board concludes the administrative law judge's jurisdiction at a preliminary hearing is limited to deciding the question specified as a benefit change in the notice of intent letter. The Asst. Director, therefore, did not have the authority to appoint an authorized treating physician for claimant because such a request was not specifically contained in claimant's notice of intent letter served upon respondent. Kane v. Westwood Animal Hospital and Commercial Union Insurance Companies, Docket No. 204,483.

• May 1997. (Ph) Respondent admits receiving notice of the March 12 preliminary hearing on March 4. Whether respondent received the statutorily required seven days advance notice of that hearing rests upon a determination of whether the computation of time is governed by the Workers Compensation Act or by the Code of Civil Procedure. Although the Appeals Board feels K.A.R. 51-17-1 should be applied to this case, the Appeals Board is bound by the doctrine of stare decisis to follow the rule announced by the Court of Appeals in McIntyre v. A.L. Abercrombie Inc., 23 Kan. App.2d 204, 929 P.2d 1386 (1996). The Appeals Board considers the McIntyre decision controlling because the Court therein determined that K.S.A. 60-206(a) applies to the computation of time in workers compensation cases where the period of time prescribed by a statute is less than 11 days. Following McIntyre, the Appeals Board finds notice of the March 12 preliminary hearing received by respondent on March 4 was deficient. The preliminary hearing could not proceed on that notice. Therefore, the Administrative Law Judge's Order must be set aside. Rayman v. Spears Manufacturing and Transportation Insurance Co., Docket No.213,649.



• November 1996. (Ph) Notice given to respondent's insurance carrier of an upcoming preliminary hearing found defective where the Board determines that the insurance carrier would have received only 6 days notice of the preliminary hearing after receiving notification of such proceeding in the mail. K.S.A. 44-534a, however, requires a party receive at least 7 days notice of a preliminary hearing. Rexrode v. Villa Maria Inc and Church Mutual Insurance Group, Docket No. 216,165.

10.15 Notice to Parties of Regular Hearings and Other Proceedings

• October 1997 (Order) K.S.A. 44-534 requires 20 days notice in any hearing "in regard to workers compensation benefits due the injured worker." Therefore, proper notice, as required by K.S.A. 44-534, must be given to parties before a hearing to access penalties can be held. Trosper v. MS News and Allied Mutual Insurance Company, Docket No. 217,183.



• June 1997. (Order) The Administrative Law Judge held a hearing on the issue of whether costs should be assessed against the claimant with only the respondent present. Claimant was not given notice of such hearing and, therefore, was not available to present evidence or arguments. The Appeals Board concludes the Administrative Law Judge violated the basic elements of procedural due process as he failed to give claimant notice of the hearing which deprived the claimant of an opportunity to be heard. Therefore, the order of the Administrative Law Judge assessing certain costs against the claimant is set aside as null and void. Vilaysing v. IBP, Inc., Docket No. 210,878.



• February 1997. (Ph) Respondent argues the ALJ lacked jurisdiction to award claimant temporary total disability since claimant's notice of intent to file a preliminary hearing letter to respondent only made reference t a demand for medical benefits. See K.S.A. 1996 Supp. 44-534a(a)(1), requiring notice of intent to file an application for preliminary hearing should contain a specific statement of the benefit change being sought which is the subject of the preliminary hearing. Respondent does not contend that it was denied the opportunity to present evidence on the issue of claimant's eligibility for TTD, and there was no showing that respondent was denied a due process opportunity to be heard. Therefore, although claimant did not adhere to the strict letter of the law by satisfying the procedural requirement of 44-534a(a)(1), the deficiency in claimant's notice of intent letter did not divest the ALJ of jurisdiction to award TTD at the preliminary hearing. Moehlman v. Crestview Nursing Home and Allied Mutual Insurance Company, Docket No. 216,288.



• ----- The deficiency in the notice of intent letter would be significant were respondent to claim surprise and prejudice. This could justify keeping the record open in order to give respondent the opportunity to present additional evidence. Id.

10.15a Time Limitations for Filing Application for Review

• October 1999. (Ph) The fact employer did not file a report of accident will not extend the time for a claimant to file an application for hearing. If the employer is not required to file a report of accident under K.S.A. 44-557 because the accident did not wholly or partially incapacitate the employee for more than the remainder of the day. In this case, an application for hearing filed more than three years after the date of accident or two years after the last compensation is not timely and the claim is denied. Urbano v. Coleman Company, Inc., Docket No. 242,424.

• September 1998. (Award) The Appeals Board finds the dispositive issue of this case is whether the K.S.A. 44-534 (Ensley) time limitations apply to issues between the Fund and respondent for compensation voluntarily paid to the claimant where there was no dispute as to claimant's right to compensation or any issue regarding benefits due claimant under the Act. K.S.A. 44-534 (Ensley) provides that whenever the employer, worker or insurance carrier cannot agree upon the worker's right to compensation or upon any issue in regard to benefits due the worker under the Act, the employer , worker or insurance carrier may file an application for hearing in the office of the Director of Workers Compensation as long as it is done so within three years of the date of accident or within two years of the date o f last payment of compensation, whichever is later. The Board finds these time limitations do not apply where, as in this case, there is no disagreement between the employee and the employer and its insurance carrier upon any issues regarding the claimant's rights to compensation benefits. The Fund is further ordered to reimburse respondent for the stipulated 50 percent of all workers compensation benefits paid by the respondent as set forth in the settlement hearing transcript. Hess v. Continental Plastic Containers and Aetna Casualty & Surety Company and Kansas Workers Compensation Fund, Docket No. 203,687. [Affirmed by unpublished Court of Appeals opinion, Docket No. 82,145, December 3, 1999.]

10.16 Administrative Law Judge (ALJ)

10.17 Generally

10.18 Authority / Jurisdiction & Discretion of,

• November 1999. (Ph) Temporary partial disability benefits may be ordered at a preliminary hearing. Fleischer v. Metropolitan Court Reporters, Docket No. 237,296.

• November 1999. (Award) In post award proceeding, respondent introduced evidence claimant had used false name and false social security number. Respondent filed pleadings requesting (1) review and modification of the Award, (2) that the Award of benefits be vacated, (3) that the payment of compensation be stayed, (4) that claimant be compelled to appear at deposition and produce documents, and (5) in addition, individual stating she is Victoria Acosta with social security number used in this claim asked that claim be dismissed. The Board denied motion to dismiss but held claimant could be compelled to attend deposition and produce documents. Board also held that where there is a preliminary showing of fraud which might make the award void, the ALJ could stay payment of benefits pending final resolution of the issues. Acosta v. National Beef Packing Company, L.P., Docket No. 206,691.

• October 1999. (P/A) An order for production of records is over broad if it requires claimant to produce all employment and vocational records without regard to time and without other limits. In this case, the order was determined to be void and unenforceable. Rhodeman v. Moore Management, Docket No. 234,890.

• March 1998 (Ph) Administrative law judges have jurisdiction to award temporary partial disability at a preliminary hearing. Buehler v. The Boeing Company and Ins. Co. State of Pennsylvania, Docket No. 228,765.



• February 1998. (Ph) Held, the Administrative Law Judge did not exceed his jurisdiction because the decision to award temporary total disability and medical benefits is discretionary not mandatory. Austin v. General Motors Corporation, Docket No. 199,074.



• ----- K.S.A. 1997 Supp. 44-534a makes the awarding of preliminary benefits discretionary and not mandatory. Id.

• December 1997. (Award) It is the function of the trier of fact to weigh the evidence to determine the credibility of witnesses, to decide which testimony is more accurate and/or credible and to adjust the medical testimony along with any other testimony that may be relevant. Guhr, Deceased v. Mennonite Bethesda Society, Inc. d/b/a Bethesda Home and Kansas Association of Homes for The Aging Insurance Group, Inc. and Kansas Workers Compensation Fund, Docket No. 210,727.

• November 1997. (Ph) Respondent asserts that a September 1996 hearing was held only in response to claimant's applications filed for civil penalties and to enforce the preliminary hearing Order. The hearing was not a preliminary hearing held pursuant to K.S.A. 44-534a, as amended. Procedural requirements found in the preliminary hearing statute, K.S.A. 44-534a, as amended, were not followed. Thus, the respondent argues the Administrative Law Judge exceeded his jurisdiction when he ordered temporary total disability compensation without complying with the procedures required of demand, application for hearing, and notice. In contrast, the claimant asserts the Administrative Law Judge, after the first preliminary hearing was held, retains continuing jurisdiction over preliminary hearing orders. The Appeals Board agrees with the claimant's argument that under some facts and circumstances the Administrative Law Judge does retain jurisdiction over the original preliminary hearing order, ie when all parties have notice of the specific issues to be addressed at a hearing. In this case, however, the Appeals Board finds the respondent did not have notice that new medical evidence would be offered and admitted on the issue of claimant's eligibility for temporary total disability compensation and did not have the opportunity to dispute this new medical evidence submitted by the claimant in that hearing. Therefore, the Appeals Board finds, under these facts and circumstances, the Administrative Law Judge should have held another preliminary hearing on the issue of claimant's eligibility for temporary total disability compensation after the necessary procedural requirements were followed by the claimant. See Discussion in McGee, Jr. v. Capital Electric Construction of Kansas, Inc. and Builders Association Self-Insurers Fund, Docket Nos. 206,931 & 210,663.

• See Also, May 1994. (Ph) Respondent filed a motion to terminate TTD; the ALJ scheduled a preliminary hearing. The hearing in question was to be a rehearing or reconsideration based upon new evidence on a previous preliminary hearing wherein the ALJ ordered TTD. The Board found that under the facts and circumstances of this case, the ALJ retained jurisdiction over the original preliminary order and had jurisdiction to conduct a hearing on a motion to terminate temporary total disability benefits without first following all the procedural requirements of a new preliminary hearing. Additionally, the Board found it lacked jurisdiction to review the appeal. Conti v. IBT, Inc / Sunrise Systems, Inc and Hartford Accident & Indemnity, Co, Docket No. 162,310.



• See Also, McGee, Jr. v. Capital Electric Construction of Kansas, supra, wherein the Appeals Board stated: "[C]laimant cites the case of Conti v. IBT, Inc. / Sunrise Systems, Inc., Docket No. 162,310 (May 1994), where the Appeals Board found the ALJ had jurisdiction to conduct a hearing on a motion to terminate temporary total disability benefits without first following all the procedural requirements of a new preliminary hearing. The reason a new preliminary hearing was not required in Conti was because it was in the nature of a continuation of the original preliminary hearing. The Appeals Board agrees . . . that under some facts and circumstances the Administrative Law Judge does retain jurisdiction over the original preliminary hearing order. However, the Appeals Board finds that in Conti the claimant had notice of the specific issue to be addressed at the hearing regarding respondent's motion to terminate temporary total disability compensation awarded at the original preliminary hearing." In McGee, however, the Board found that respondent did not have notice that new medical evidence would be offered and admitted on the issue of claimant's entitlement to TTD; thus, the ALJ should have held another preliminary hearing on the issue of claimant's entitlement to TTD after the necessary preliminary hearing procedural requirements were followed by claimant. McGee, Jr. v. Capital Electric Construction of Kansas, Inc. and Builders Association Self-Insurers Fund, Docket Nos. 206,931 & 210,663 (November 1997).

• See Also, January 1999. (Ph) The Board notes that it has previously held and continues to hold that the Division retains jurisdiction over the parties and those issues presented at the initial preliminary hearing. Later hearings conducted to address those same preliminary hearing issues are treated as a continuation of the initial hearing. This interpretation of the Act affords the parties an expeditions hearing and avoids cumbersome procedures that would only serve to delay prompt decisions. Morales v. Excel Corporation, Docket No. 220,221.

• See Also, February 1999. (Ph) The ALJ may conduct a rehearing of preliminary hearing issues without a new application for hearing (E-3) or notice of intent being filed as long as adequate notice of hearing and issues are given to the opposing parties. There is no limit to the number of preliminary hearings and no limit on issues within the discretion of the ALJ. Blue v. LSC and American Family Mutual Insurance Co, Docket No. 236,567

• November 1997. (Ph) The Workers Compensation administrative court has limited jurisdiction. Its subject matter jurisdiction is limited to cases involving accidental injury arising out of and in the course of employment. Whether claimant suffered accidental injury and whether the injury arose out of and in the course of employment are, therefore, designated in K.S.A. 44-534a as jurisdictional issues. Personal jurisdiction requires notice and timely written claim. Notice and written claim are designated as jurisdictional issues under K.S.A. 44-534a. Barrington v. Georgia Pacific Corporation, Docket No. 223,480.



• See Also Hopper v. The Boeing Company and Insurance Co. State of Pennsylvania and American Manufacturers Mutual Ins. Co., Docket No. 223,547 (November 1997); Bradshaw v. Presbyterian Manors, Inc., Docket No. 225,372 (January 1998).



• August 1997. (Ph) The Appeals Board followed its ruling in Sulaimon v. Woodland Health Center, Docket No. 192,021 (September 1995), in deciding that the decision whether to consider medical records and reports, at least where they were not available prior to the Application for Preliminary Hearing, does not exceed the jurisdiction of the Administrative Law Judge. Eldridge v. Champ Service Line Division and Zurich American Insurance Company, Docket No.189,361.



• July 1997. (Ph) Where the Administrative Law Judge disregarded a prior Appeals Board decision and claimant's uncontradicted evidence in denying claimant's request for ongoing medical treatment, the Appeals Board finds the Administrative Law Judge exceeded his jurisdiction. Banh v. The Boeing Company and Kemper Insurance Company, Docket No. 210,271.

• June 1997. (Ph) A decision to deny benefits based upon a release by the treating physician with no restrictions does not exceed the authority of the Administrative Law Judge. Chikwendu v. Evcon Industries, Inc. and Insurance Company State of Pennsylvania, Docket No. 220,159.

• June 1997. (Ph) The majority view of the Appeals Board is that the decision to change physicians without first allowing the respondent to provide a list of three physicians is not a question which goes to the jurisdiction of an administrative law judge. An administrative law judge does have jurisdiction to decide this question at a preliminary hearing. The Appeals Board is, therefore, without jurisdiction to consider this issue on appeal from a preliminary hearing order. Graham v. Rubbermaid Specialty Products and Rubbermaid Specialty Products, Inc., Docket No. 219,395.



• See Also, Dillard v. Davis, Unrein, Hummer & Buck and Hartford Accident & Indemnity, Docket No. 217,450 (June 1997); Rayman v. Spears Manufacturing and Transportation Insurance Co., Docket No. 213,649 (May 1997); Turkin v. EZ Shop & National Union Fire Insurance Company of New York, Docket No. 216,200 (April 1997).



• June 1997. (Order) The preliminary hearing statute only grants the administrative law judge authority to make an award of medical and temporary total disability compensation pending a full hearing on the claim. Vilaysing v. IBP, Inc., Docket No. 210,878.



• May 1997. (Ph) A prerequisite of filing an application for preliminary hearing is the applicant shall give written notice to the adverse party of the intent to file such an application. The notice of intent shall contain a specific statement of the benefit change being sought. Therefore, the Appeals Board concludes the administrative law judge's jurisdiction at a preliminary hearing is limited to deciding the question specified as a benefit change in the notice of intent letter. The Asst. Director, therefore, did not have the authority to appoint an authorized treating physician for claimant because such a request was not specifically contained in claimant's notice of intent letter served upon respondent. Kane v. Westwood Animal Hospital and Commercial Union Insurance Companies, Docket No. 204,483.

• May 1997. (Ph) K.S.A. 1996 Supp. 44-534a specifically allows an administrative law judge the jurisdiction to decide issues dealing with temporary total disability compensation and medical treatment at a preliminary hearing. Medical treatment includes any "apparatus" reasonably necessary to cure and relieve the employee of injury. See K.S.A. 1996 Supp. 44-510(a). Additionally, a prosthetic device or artificial member is an "apparatus" per K.A.R. 51-9-2. Therefore, it was well within the Administrative Law Judge's jurisdiction at the preliminary hearing to decide whether claimant's second prothesis was reasonable and necessary. Solis v. Brookover Feed Yards, Inc. and Kansas Livestock Association, Docket No. 220,773.

• May 1997. (Ph) Termination of benefits for refusal to cooperate with medical treatment, when ordered without a hearing, does exceed the authority of the administrative law judge. See K.A.R. 51-9-5. Shelton v. State of Kansas and State Self Insurance Fund, Docket No. 217,936.



• May 1997. (Award) K.S.A. 44-555 grants the administrative law judge the authority to assess all or part of the certified shorthand reporter's fee to any party to the proceedings. Pressley v. Mission Untied Super, Inc and Liberty Mutual insurance Company, Docket No. 141,570.



• See Also, Wenceslao Hernandez vs. Monfort, Inc., Docket No. 208,012 (May 2000); and Karen Nordquist vs. Wal-Mart and Insurance Company State of Pennsylvania, Docket No. 227,749 (June 2000). The Board concluded the ALJ's assessment of court reported fees against the claimant was appropriate under the circumstances..



• April 1997. (Remand) Administrative law judges have the authority to assess the cost of a neutral physician's exam to a party per K.S.A. 44-510(e), K.S.A. 44-516 and K.A.R. 51-9-6. Winters v. GNB Battery Technologies and Home Insurance Company, Docket No. 198,938.



• April 1997. (Award) Held, the Administrative Law Judge's giving equal weight to two differing opinions by claimant's examining physicians over the percent of functional impairment was proper. Roudybush v. Oldham's Farm Sausage, Docket No. 181,871.



• April 1997. (Ph) K.S.A. 1996 Supp. 44-534a grants the administrative law judge authority to make a preliminary award of temporary total disability; additionally, since an essential component of this determination is claimant's average weekly wage, then it was proper for the administrative law judge to determine claimant's average weekly wage as well. Sevilla v. Ismael Calderon and Century Roofing and Commercial Union Insurance Company and Kansas Workers Compensation Fund, Docket No. 211,139.

• ----- The Administrative Law Judge did not exceed his jurisdiction when he ordered the respondent to pay a higher temporary total disability weekly compensation rate retrospectively to claimant's date of accident. Id.

• See Also, Bryant v. USD No. 259 and Workers Compensation Fund, Docket No. 196,704 (December 1997)[Affirmed by unpublished Court of Appeals opinion, Docket No. 80,577; opinion was published 10/15/99]; Smith v. KC Fab Inc., Docket No. 217,487 (July 1997).



• April 1997. (Ph) Providing medical treatment and ordering the same falls within the power and jurisdiction of the administrative law judge. Turkin v. EZ Shop & National Union Fire Insurance Company of New York, Docket No. 216,200.

• See Also, Bryant v. USD No. 259 and Workers Compensation Fund, Docket No. 196,704 (December 1997) [Affirmed by unpublished Court of Appeals opinion, Docket No. 80,577; opinion was published 10/15/99]; Wilder v. Clean Tech and Commercial Union Insurance Company, Docket No. 201,124 (June 1997); Davis v. Montgomery Ward and National Union Fire Insurance Company, Docket No. 220,775 (September 1997).

• April 1997. (Ph) It is within the sound discretion of the administrative law judge to determine the number of preliminary hearings to be held and whether a preliminary hearing should be modified based on the evidence presented. Sevilla v. Ismael Calderon and Century Roofing and Commercial Union Insurance Company and Kansas Workers Compensation Fund, Docket No. 211,139.

• March 1997. (Ph) An administrative law judge has jurisdiction to determine the appropriate dates of temporary total disability benefits based upon K.S.A. 44-551 and K.A.R. 51-3-5a. Adams v. J.W. Trucking Inc. and Kansas Truckers Risk Management, Docket No. 217,823.

• December 1994. (Ph) Claimant disputes the authority of the ALJ to treat his request for a preliminary hearing for medical treatment as an application for a change of treating physician under K.S.A. 44-510(c)(1). Claimant argues that since respondent never offered medical treatment subsequent to claimant's notice of intent letter informing respondent that claimant would seek a Preliminary Hearing in the event medical treatment was not afforded claimant for his low back injury, then the court should have ordered Dr. James Holleman as the authorized treating physician. The Board, however, disagreed by noting: " While designating claimant's choice for authorized treating physician may have been one option available to the Administrative Law Judge, he was certainly not obligated to do so. In declining to accept this option the Administrative Law Judge clearly did not exceed his jurisdiction." At the time of claimant's notice of intent letter and the Preliminary Hearing, the respondent was under no obligation to provide medical treatment as the ALJ found that claimant's low back complaints were not compensable. Under these circumstances it would not have been improper for the ALJ to have simply permitted respondent to designate a physician to treat claimant's low back complaints. Instead, the ALJ pointed to the evidence that the services of the authorized treating physician originally provided by respondent were unsatisfactory as a reason to allow, in the alternative, that the parties be given the choice of treating the matter as an application for change of physician such that the claimant would be able to choose one of the three qualified specialists named by the respondent to examine claimant and determine whether claimant was in need of further treatment. The ALJ went on to give the parties as another option his naming a neutral physician pursuant to K.S.A. 44-516. Neither order exceeded the authority of an ALJ to determine issues concerning the furnishing of medical treatment pursuant to K.S.A. 44-534 and K.S.A. 44-534a. Yancey v. Johnson County and Thomas McGee and Sons and Kansas Workers Compensation Fund, Docket No. 159,922.



• June 1994. (Award) Respondent argues that the preliminary hearing in question was in effect a rehearing in violation of case law. Respondent cites case law prohibiting such rehearings, but the Appeals Board does not consider these decisions to be controlling of the question at hand. The case law pertains to final awards not preliminary hearings. As such, the ALJ's rehearing did not exceed his jurisdiction for two reasons: 1) there is no statutory limit on the number of preliminary hearings that might be held; and, 2) the hearing at hand was not a rehearing of an issue already decided. As such, the Board found the ALJ's decision did not exceed his jurisdiction. McGinn v. Binney & Smith, Inc and Binney & Smith, Inc and Kansas Workers Compensation Fund, Docket No. 168,770.

• May 1994. (Award) Under certain circumstances, ie. when the parties have notice of the specific issues to be addressed at the hearing, an administrative law judge has jurisdiction to conduct a hearing on a motion to terminate temporary total disability benefits without first following all the procedural requirements of a new preliminary hearing. Conti v. IBT, Inc./Sunrise Systems, Inc., Docket No. 162,310.

• April 1994. (Award) Request to reassign case where decision is not made within 30 days does not immediately deprive ALJ of jurisdiction and original ALJ retains jurisdiction until case is actually transferred. Morton v. Bartel Sales and Service, Docket No. 165,856.

10.19 Issues Related to

10.19a Generally

• October 1998. (Award) ALJ not found to have been biased or prejudiced when hearing and determining claimant's case. Claimant was not denied due process by ALJ's actions. See Discussion in, Boyd v. Logan Manor Community Health and EMC Insurance Company, Docket No. 222,740.



• November 1997. (Ph) K.S.A. 44-516 grants the administrative law judge the authority to appoint a neutral physician to examine claimant. McGee, Jr. v. Capital Electric Construction of Kansas, Inc. and Builders Association Self-Insurers Fund, Docket Nos. 206,931 & 210,663.

• October 1997. (Ph) Orders entered by Administrative Law Judge are reversed and remanded by the Appeals Board where no transcripts of the preliminary hearings from which the Orders were issued were made. Fortner v. Home & Cabinet Designs, Inc. and Insurance Company of North America and Commercial Union Insurance Company and Kansas Workers Compensation Fund, Docket No. 195,470.

• September 1997 (Order) Administrative Law Judges should insure the parties an expeditious hearing and act reasonably without partiality. Boyd v. Presbyterian Manors of Mid-America, Inc. and Workers Compensation Fund, Docket No. 163,905.

• August 1997. (Ph) The respondent argues the Assistant Director exceeded his jurisdiction when he considered a medical report which had not been attached to the notice of intent or otherwise provided to the respondent prior to the preliminary hearing. The Appeals Board followed its ruling in Sulaimon v. Woodland Health Center, Docket No. 192,021 (September 1995), in deciding that the decision whether to consider medical records and reports, at least where they were not available prior to the Application for Preliminary Hearing, does not exceed the jurisdiction of the Administrative Law Judge. Eldridge v. Champ Service Line Division and Zurich American Insurance Company, Docket No. 189,361.

• May 1997. (Award) Absent a remand from the Workers Compensation Appeals Board as authorized by K.S.A. 44-551(b) or a Motion for Review and Modification under K.S.A. 44-528, there is no procedure authorizing an administrative law judge to reconsider his or her award. Bannon v. Liggett Group and Royal Insurance Company of America, Docket No. 198,280.

• January 1997. (R/M) The Assistant Director, or Administrative Law Judge, on his/her own initiative can determine that good cause exists and reopen the record to accept additional evidence. The same public policy considerations outlined in K.S.A. 44-523(b)(4) which allows the named parties to reopen the record for good cause shown should also apply to the Assistant Director and the ALJs. Sapata v. Southwestern Bell Telephone Company, Docket No. 133,971 [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,429].

• February 1997. (Ph) An administrative law judge has the authority to appoint out-of-state doctors as authorized treating physicians. Hunter v. Manpower Temporary Service and Fireman's Fund Insurance Company, Docket No. 217,644.

• December 1996. (Award) The making of evidentiary rulings in a case is within the inherent authority granted the administrative law judges by the Workers Compensation Act. Kisner v. U.S.D. # 260 and Kansas Association of School Boards and Gallagher Woodsmall and Kansas Workers Compensation Fund, Docket Nos. 195,477; 196,093; 199,119; & 202,669.

10.19b Special Administrative Law Judge

• September 1997. (Order) Special local administrative law judges are statutorily authorized by K.S.A. 1996 Supp. 44-551(d), which provides that they shall "exercise the same powers as provided by this section for the regular administrative law judges." Arredondo, Jr. v. National Beef Packing Company and Wausau Insurance Companies, Docket Nos. 193,986; 196,210 & 196,451.

10.19c Delay in Issuance of Orders

• February 1998. (Ph) Exceeding the five-day period to issue a preliminary hearing order does not divest the Administrative Law Judge of jurisdiction. Austin v. General Motors Corporation, Docket No. 199,074.

• January 1998. (Ph) Whether the administrative law judge should, in a given set of circumstances, authorize medical treatment is not a question which goes to the jurisdiction of the administrative law judge. K.S.A. 44-534a grants the administrative law judge the authority to decide issues concerning the payment of such medical treatment at a preliminary hearing. Celuch v. Luce Press Clippings and Fireman's Fund Insurance Company and American home Assurance Company, Docket Nos. 214,959 & 222,711.



• May 1997. (Ph) While K.S.A. 44-534a does require that an administrative law judge's order be issued within five days, there is nothing in the statute which denies the administrative law judge jurisdiction should the order be issued at a later time. As such, claimant's appeal regarding this issue is dismissed. Jurado v. Poky Feeders Inc. and U.S.F. & G., Docket No. 201,482.

• ----- Claimant contends, per K.S.A. 44-523, entitlement to have this matter assigned to a different administrative body due to delay in issuance of the order by the ALJ. K.S.A. 44-523 deals with final awards which have been submitted to administrative law judges for decision. There is no indication in that statute of its application to a preliminary hearing which has not been decided within five days as required by K.S.A. 44-534a. The Appeals Board, in considering the application of K.S.A. 44-523 in past matters, has held that even after a motion to transfer has been made, the administrative law judge retains jurisdiction of the matter until such time as a reassignment is issued by the director's office. Regardless of whether K.S.A. 44-523 applies to preliminary hearings or not, the Administrative Law Judge's issuance of an order was prior to any action taken by the director. As such, the Appeals Board finds the Administrative Law Judge retained jurisdiction of this matter. Id.

• See Also, Reinhart v. Superior Industries Int'l , Docket No. 180,932 (June 1995); Reed v. City of Olathe, Docket No. 148,508 (June 1996).

10.19 ALJ's Failure to List Specific Findings of Fact in Decision or Reasons for Decision

• April 1997. (Award) Failure by ALJ to list specific findings of fact upon which his/her decision is based does not require a remand to the ALJ for a reissuance of the decision. Instead the findings of fact as specifically set out by the Appeals Board should be sufficient for the parties purpose to determine the basis for any decisions rendered. Zimmer v. Central Kansas Medical Center and Reliance National Insurance Company and Workers Compensation Fund, Docket No. 186,009.



• March 1997. (Ph) Where the Administrative Law Judge fails to state the reason for denying benefits, the Appeals Board will ordinarily remand that decision back to the Administrative Law Judge requesting he/she indicate the reason for denial. Then the Appeals Board will determine whether the basis for denial is jurisdictional and subject to review. Banh v. The Boeing Company and Kemper Insurance Companies, Docket No. 210,271.

• April 1994. (Award) Denial of vocational rehabilitation benefits at a preliminary hearing remanded to Administrative Law Judge for additional finding where decision by Administrative Law Judge did not reflect reason for decision in a manner which allowed the Appeals Board to determine whether it had jurisdiction to review the decision. Martinez v. Topeka Day Care Association, Docket No. 165,295.

• March 1994. (Ph) Where Administrative Law Judge (ALJ) simply took issues at preliminary hearing under advisement pending final decision and provided no explanation or justification for doing so, case remanded to ALJ for prompt determination of issues. Hawk v. Rubbermaid-Winfield, Docket No. 180,303.



• January 1994. (Ph) In this case, preliminary order considered unclear and remanded to ALJ for clarification regarding intent in limiting evidence considered as part of vocational assessment. Hagar v. Metal-Fab, Docket No. 180,160.

10.19e Management of Docket

• June 1998. (Award) Some exceptions should be made to the 30-day rule for administrative law judges' decisions to be entered where, in trying to comply with this 30-day rule, the terminal days set by the ALJ do or will not allow a reasonable amount of time for the depositions to be transcribed by the court reporter, sent to witnesses for reviewing and corrections and then signed and filed with the ALJ. By deciding the case and issuing an award without considering a relevant deposition, the ALJ did not consider the whole record (K.S.A. 44-501) and did not give the parties a reasonable opportunity to be heard and present evidence (K.S.A. 44-523). Ishman v. State of Kansas and State Self-Insurance Fund, Docket Nos. 198,342 & 204,554.



• May 1998. (Award) The administrative law judges should not be bound by technical rules of procedure. Rather, the Legislature intended (1) the parties to have a reasonable opportunity to be heard and to present their evidence and (2) fair and expeditious hearings. K.S.A. 44-523(a). Further, the administrative law judges should be given wide leeway in controlling their dockets and insuring the parties' rights to a fair hearing. Cummings v. Kaylor Dental Laboratory, Inc and Berkley Administrators, Docket No. 211,637.

• See Also, Beasley v. Terry Faelber d.b.a. AGD Security Company and Workers Compensation Fund, Docket No. 206,321 (August 1998). [Reversed by Court of Appeals in unpublished decision, Docket No. 81,985].

• April 1998. (Ph) It is the administrative law judge's responsibility to manage his or her docket. Little v. Cattle Empire, L.L.C. and Kansas Livestock Association, Docket No. 230,107.



• ----- The timing involved in the management of an administrative law judge's docket, including when the evidence is to be submitted and whether extensions are to be granted, are within the authority and jurisdiction of an administrative law judge. Id.



• April 1998. (Ph) It is the administrative law judge's responsibility to manage his or her docket. Little v. Cattle Empire, L.L.C. and Kansas Livestock Association, Docket No. 230,107.

10.19f Deference Given to ALJ's Conclusions

• August 1997. (Ph) When assessing the credibility of a witness' testimony, the Appeals Board does give some deference to the conclusions and findings of the administrative law judge who has the opportunity to personally observe the testimony. Newsom v. Lodging Enterprises, Inc. and Kemper Insurance Cos., Docket No. 222,875.

• See Also, Tucker v. Daka International, Inc. and National Union Fire Insurance of NY, Docket No. 219,169 (August 1997); Wilson v. Braum Inc. and Shalimar Plaza Nursing Home and Self-Insured and Business Insurance Company a.k.a. Bico, Docket Nos. 222,345 & 222,514 (August 1997); Clark v. Palmer Trucking, Inc. and Granite State Insurance Company, Docket No. 219,549 (August 1997); Bernasek v. Cambridge Place and Kansas Heath Care Association, Docket No. 217,109 (June 1997); Boyle v. Elek-Tek, Inc. and Atlantic Mutual Insurance Company, Docket No. 199,183 (April 1997); Adams v. J.C. Penny Company and Liberty Mutual Insurance Company, Docket No. 223,911 (October 1997); Madariaga v. Excel Corporation, Docket No. 219,537 (April 1997); Young v. Baker Drywall and Fireman's Fund Insurance, Docket No. 205,123 (April 1997); Aldrich v. McDonalds and Wausau Insurance Company, Docket No. 208,396 (December 1997); Slinkard v. Haven Steel Products, Inc. and Fireman's Fund Insurance, Docket No. 217,604 (April 1997); Spangler v. Dillon Companies, Inc., Docket Nos. 217,810; 217,811; and 217,812 (March 1997); Holliday v. H&C Insulation, Co. and Aetna Casualty & Surety Company, Docket No. 214,429 (January 1997); Young v. Tandem Truck Service, Inc. and Builders' Association Self-Insurers Fund, Docket No. 216,539 (January 1997); Lomack v. Service America Corporation and Wausau Insurance Company, Docket No. 216,924 (January 1997); New v. Mineral-Right, Inc. and Commercial Union Insurance Company, Docket No. 217,220 (February 1997); Otero v. Joe Mathews Construction and Hawkeye Security Insurance, Docket No. 217,140 (February 1997); Burdick v. Blackburn, Inc. and United States Fidelity & Guaranty Co., Docket No. 217,189 (February 1997); Williams v. Cessna Aircraft Company, Docket No. 228,821 (March 1998); Lynn v. Focus Packaging, Inc. and St. Paul Fire & Marine Insurance Company, Docket No. 211,074 (March 1997); Gonzales v. Allied, Inc and Maryland Casualty Company, Docket No. 233,046 (June 1998); Kasper v. Chris Truck Line and Cigna Insurance Companies, Docket No. 231,574 (June 1998); Wolf v. Luce Press Clippings, Inc and American Home Assurance Company, Docket No. 228,934 (September 1998); McMinn v. Forshee Paint Company and Petrosurance Casualty Company, Docket No. 234,911 (November 1998).

• April 1997. (Ph) When contradictory testimony clouds the record, the credibility of the witnesses becomes vital to the fact finders decision making process. The administrative law judge, having the opportunity to observe these witnesses, is in the enviable position of assessing the credibility of testimony of one witness over another. The administrative law judge has the advantage in assessing the credibility of the witness he/she personally observed. Backman v. E.J. Cody Company, Inc. and Hanover Insurance Company, Docket No. 219,240.

10.20 Burden of Proof

10.21 Generally

• December 1997. (Award) The burden of proof is upon the party claiming benefits, in this case the Workers Compensation Fund, to establish its right to an award for compensation by proving all the various conditions on which its right to a recovery depends. This must be established by a preponderance of the credible evidence. See Box v. Cessna Aircraft Co., 236 Kan. 237, 689 P.2d 871 (1984); K.S.A. 1995 Supp. 44-508(g). Guhr, Deceased v. Mennonite Bethesda Society, Inc. d/b/a Bethesda Home and Kansas Association of Homes for the Aging Insurance Group, Inc and Kansas Workers Compensation Fund, Docket No. 210,727.

• ----- The Workers Compensation Fund brought a claim for the statutory death assessment per K.S.A. 44-570(a). This decision is significant because it places the burden of proof on the Fund as the party prosecuting this claim. Id.

• March 1994. (Award) The burden of proof is upon the claimant to establish her right to an award for compensation by proving all the various conditions upon which her right to it depends. This must be established by a preponderance of the credible evidence. Box v. Cessna Aircraft Co., 236 Kan. 237, 689 P.2d 871 (1994). Rice v. Golden Acres Nursing Home and National Union Fire Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 163,517 & 165,668.

10.22 Defined

10.23 Liberal Construction

• April 1999. (Award) The Board acknowledged some confusion between the "liberal construction" case law of Kinder v. Murray & Sons Construction Co., Inc., 264 Kan. 484, 957 P.2d 488 (1988) and the "applied impartiality" statutory language of K.S.A. 1996 Supp. 44-501(g) and in the Court of Appeals decision in Boucher v. Peerless Products, Inc., 21 Kan. App. 2d 977, 911 P.2d 198, rev. denied 260 Kan. 991 (1996). However, the Board noted that the apparent conflict caused by Kinder was clarified by the more recent Supreme Court opinion in Nguyen v. IBP, Inc., Docket No. 79,240 (Kan. 1999). In Nguyen, the Kansas Supreme Court discussed the "liberal construction" versus "applied impartiality" conflict between the statute and case law and clarified that the liberal construction rule in the Workers Compensation Act is "no longer supported in law and has not been countenanced by the appellate courts in post-1987 cases." Derby v. University of Kansas Memorial Corporation and Crum & Forster Commercial Insurance, Docket Nos. 219,542 & 219,543.



• Kan. 1999 The principle that the Workers Compensation Act is to be liberally construed in favor of the claimant is no longer supported in the law. Nguyen v. IBP, Inc, Docket No. 79,240 (Kan. 1999).

10.24 Claimants

• June 1999. (Award) Claimant proved accidental injury arising out of and within the course of her employment caused by a shock received while operating respondent's folio machine, where respondent put on no evidence to the contrary. Claimant's testimony, which is not improbable or unreasonable, cannot be disregarded unless it is shown to be untrustworthy. See Anderson v. Kensley Sand & Gravel, Inc., 221 Kan. 191, 558 P.2d 146 (1976). High v. Deluxe Check Printers, Inc and Travelers Insurance Company, Docket No. 205,362.

• ----- Although claimant proved accidental injury which arose out of and within the course of her employment, she failed her burden to prove that the shock she received at work was related to her current diagnosis of fibromyalgia -- or in other words, she failed to prove the nature and extent of her injury -- benefits denied. Id.

• See Also, Agustin R. Contreras vs. Gilbert Central Corporation and Aetna Casualty & Surety Company, Docket No. 181,330 (March 1999). [Affirmed by unpublished Court of Appeals opinion, Docket Number 83,024, March 3, 2000.]

• June 1999. (Award) Claimant failed to prove accidental injury arising out of and within the course of his employment where, despite his extensive knowledge of reporting or giving notice to respondent when a work-related injury is suffered, claimant failed to give such notice and even marked "non work-related" to describe the injury in question on the accident form at the hospital. Erskin v. Smith Services, Inc (Sharp/Advantage Personnel) and RSKC (CNA), Docket No. 241,909.

• June 1999. (Award) Award limited to functional impairment (under Copeland and Lowmaster rationale) where claimant's credibility was severely damaged by videotapes showing claimant performing activities which he testified to not being able to perform and which were outside his work restrictions. Bryant v. Superior Industries International, Docket No. 227,113.

• See Also, Rando v. Texaco Refining & Marketing and Cigna and Kansas Workers Compensation Fund, Docket No. 187,546 (July 1999).

• April 1999. (Award) Claimant as the burden to persuade the trier of fact by a preponderance of the credible evidence that his or her position is more probably true than not. K.S.A. 1992 Supp. 44-508(g); Hughes v. Inland Container Corp., 247 Kan. 407, 410, 799 P.2d 1011 (1990). Zapata v. IBP, Inc and Kansas Workers Compensation Fund, Docket Nos. 168,210; 168,211; & 177,505.

• April 1999. (Award) Claimant's injuries suffered during an automobile accident found not to have arisen out of and within the course of his employment, where the Board found several inconsistencies in claimant's testimony and questioned claimant's credibility. Claimant did not meet his burden of proving a work-related injury occurred. Loftus v. Instant Delivery and Granite State Insurance Company, Docket No. 217,417 [Affirmed by unpublished Court of Appeals opinion, Docket No. 83,259, March 3, 2000].



• See also, Aguilar v. Cambridge Suites Hotel and Zurich American Insurance Company, Docket No. 244,434 (August 1999).



• December 1998. (Award) Claimant does not have the burden of proving insurance coverage or which insurance carrier has respondent's workers compensation insurance coverage on any given date. Claimant has the burden to prove his/her right to an award of compensation and to prove the various conditions on which his/her right depends against the employer only. Lott-Edwards v. Americold Corporation and Wausau Underwriters Insurance Co and National Union Fire Insurance Co and Travelers Property Casualty, Docket Nos. 175,770; 175,771; and 223,800 [Affirmed by Court of Appeals opinion, Docket No. 82,555, June 23, 2000].

• September 1998. (Ph) Claimant found to have minimally carried his burden of proving his entitlement to medical benefits, where claimant states his new symptoms and need for treatment is attributable to an older work-related injury. Claimant put on no medical evidence attributing these symptoms to the work-related injury. Conversely, there is no evidence refuting such a causal connection or pointing to any intervening causes. Pfannenstiel v. Allied, Inc and Maryland Casualty Company, Docket No. 225,409.

• August 1998. (Ph) Where claimant's testimony is contradicted on numerous occasions and claimant's credibility is called into question, the Appeals Board finds claimant has failed to prove entitlement to benefits by a preponderance of credible evidence. Hockenbury v. American Linen Supply Company and Risk Enterprise Management , Svc, Docket No. 233,830.



• June 1998. (Ph) Where no medical records, personnel records or testimony from any source other than claimant verify that claimant suffered an accidental injury to his right shoulder, and where the testimony of three representatives of respondent testify that claimant did not exhibit any limitations to his right shoulder, the Appeals Board finds claimant has failed to prove accidental injury arising out of and in the course of his employment with respondent. Lawton v. Richman-Helstrom Trucking, Inc and KS Trucking Risk Mgmt Group Inc. Trust, Docket Nos. 228,799 & 228,800.



• May 1998. (Award) It is claimant's burden in workers compensation litigation to prove his / her entitlement to benefits by a preponderance of the credible evidence. See K.S.A. 44-501 and K.S.A. 44-508(g). In this case, the Appeals Board found claimant had not proven that the wearing of a gun belt caused or contributed to claimant's back condition. The Appeals Board found, however, that claimant had proven the wearing of the gun belt caused or contributed to claimant's ongoing right leg and hip symptomatology. Tibbits v. Shawnee County, Docket No. 198,464. [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,336, January 7, 2000.]



• See Also, Little v. Cattle Empire, L.L.C. and Kansas Livestock Association, Docket No. 230,107 (April 1998); Timmons v. Western Resources, Docket No. 227,781 (December 1997); Brott v. Breckco Construction Company, Inc and CNA Insurance Companies, Docket No. 214,230 (March 1998); Cook v. Ashland Feeders and Travelers Insurance Company, Docket No. 165,691 (March 1998); Amack v. Bontrager Express Service, Inc and Kansas Truckers Risk Management, Docket No. 216,357 & 216,358; Holthus v. Smith County Memorial Hospital and Farm Bureau Mutual Insurance Company, Docket No. 210,714 (July 1997); Rotramel (Wallace) v. Brite Voice Systems, Inc. and The St. Paul Fire and Marine Insurance Company, Docket No. 179,341 (September 1997); Roland v. Deluxe Service Systems, Inc. and CNA Insurance Company, Docket No. 137,886 (January 1998); Browns v. Larochelle, Inc. and Kansas Workers Compensation Fund, Docket No. 196,123 (June 1997); Lambert v. Norcraft Companies, Inc. and Travelers Indemnity Company, Docket No. 219,236 (March 1997).

• February 1998. (Ph) Where claimant failed to mention injury to his right shoulder after claimant was struck by two pallets and where claimant's physician's notes do not mention any injuries or treatment for the right shoulder but only the left shoulder, the Appeals Board finds claimant has failed to prove his right shoulder injuries were sustained by a work-related accident involving his being struck by the pallets. Staggs v. IBP, Inc., Docket No. 217,367.



• February 1998. (Ph) Held, claimant has failed to prove by a preponderance of the credible evidence that the symptomatology to her right wrist was the result of her clerical work rather than an automobile accident claimant had previously been involved in. Myers v. Hallmark Cards, Docket No. 227,696.

• November 1997. (Ph) Claimant has the burden to prove by a preponderance of the evidence that his/her accident aggravated or accelerated an existing disease or intensified an existing affliction. See Perez v. IBP, Inc., 16 Kan. App.2d 277, 826 P.2d 520 (1991); K.S.A. 44-508(g). Anneler v. Goodyear Tire & Rubber Company and Travelers Insurance Company and Kansas Workers Compensation Fund, Docket No. 222,218.



• September 1997 (Ph) Held, claimant failed to prove his ongoing pulmonary symptomatology relates to an injury suffered while employed for respondent turning donuts. Markus v. Interstate Brands Corporation, Docket No. 220,038.



• August 1997. (Award) Where claimant's testimony concerning the extent of his disability was found to be inconsistent and contradicted by an unbiased third party, the Appeals Board finds claimant has failed to carry his burden of establishing a right shoulder injury and therefore limits claimant's award to a scheduled injury for the right upper extremity rather than a whole body injury for the right shoulder. Chavez v. Excel Corporation and Workers Compensation Fund, Docket No. 181,634.

• See Also, Smith v. Liberty Fruit Company, Inc., Docket No. 216,943 (September 1997); Dombkowski v. IBP, Inc. and Kansas Workers Compensation Fund, Docket Nos. 177,397; 195,846 & 195,847 (May 1997) [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,516] ; Wolfe v. National Gypsum Company and National Union Fire Insurance, Docket No. 187,478 (June 1997); Ewing v. Unified School District 259, Docket No. 192,766 (August 1997); McComas v. Home Office Reference Lab and Travelers Indemnity Company, Docket No. 151,939 (October 1997) [Affirmed by unpublished, Court of Appeals decision, Docket No. 80,256]; Lamar v. Stone Mason's , Inc and Northwestern National Casualty, Docket No. 205,894 (April 1997) [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,065]; Thomas v. Sunshine Biscuits, Inc and Industrial Indemnity Company and Continental Insurance Company, Docket No. 228,980 & 230,323.

• June 1997. (Ph) In proceedings under the Workers Compensation Act, claimant bears the burden of proving causation between the injury and employment. Such "burden of proof" means the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party's position on an issue is more probably true than not true. See K.S.A. 1996 Supp. 44-508(g). When determining whether claimant has satisfied this burden of proof, the trier of fact must consider the entire record. Hulse v. National Beef Packing Company, L.P. and Wausau Insurance Companies, Docket No. 219,937.

• ----- Where claimant does not know the cause of his injury, and medical expert opinion testimony states there is only a "possibility" of claimant's injury being related to his work, the Appeals Board finds claimant has failed to sustain his burden of proof that he suffered injury by accident arising out of and in the course of his employment. Therefore, benefits should be denied. Id.

• June 1997. (Ph) In order to receive workers compensation benefits, the claimant has the burden to show that the accidental injury arose out of and in the course of the employment. See K.S.A. 1996 Supp. 44-501(a); Hormann v. New Hampshire Ins. Co, 236 Kan. 190, 689 P.2d 837 (1984). Schultz v. Big A Auto Parts, Inc. and Travelers Insurance Company, Docket No. 217,859 & 222,319.

• June 1997. (Award) Where the Appeals Board finds claimant to not be a credible witness, ie. having misrepresented his identity, using false documents to obtain employment and having lied under oath, and where the only evidence of claimant's injury is his subjective complaints, the Appeals Board finds claimant has not proven permanent injury or impairment. Chavez, aka Gonzalez v. Hyplains Beef, L.C. and Wausau Insurance Companies, Docket No. 196,654.



• See Also, Burrous v. Open Meadows Homes and Fireman's Fund Insurance Company, Docket No. 219,811 (June 1997); Baker v. Eagle Picher Industries, Inc. and Liberty Mutual Insurance Company, Docket No. 181,984 (May 1997); Young v. Baker Drywall and Fireman's Fund Insurance, Docket No. 205,123 (April 1997); Thomas v. Butler Transportation Co and Kansas Trucker Risk Mgt. Group, Docket No. 230,756 (July 1998).



• June 1997. (Award) Claimant alleges a work-related back injury occurring on September 16, 1992. However, claimant failed to mention this alleged injury to his physician when he was examined and treated for the injury that very day. These omissions of the alleged injury from claimant's medical records raise serious doubts as to claimant's credibility. Therefore, the Appeals Board finds claimant has failed to carry his burden of proving that he suffered an accidental injury arising out of and within the course of his employment on September 16, 1992. Fruits v. Southwestern Bell Telephone Company and Kansas Workers Compensation Fund, Docket No. 175,557. [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,430].



• See Also, Rosas v. IBP, Inc., Docket No. 148,283 (May 1997); Byrd v. Eaton Corporation and Continental Insurance and Kansas Worker Compensation Fund, Docket No. 169,897 (June 1997). [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,256]; Hill v. Crane Rental & Erection and AIG Insurance Company, Docket No. 239,504 (August 1999).

• June 1997. (Award) Where two separate functional capacity evaluations were performed on claimant, and both found claimant to have provided inconsistent effort during the evaluations as well as exhibits of self-limiting behavior, the Appeals Board finds claimant has failed to carry his burden of proving a work disability. Madrigal v. Agricultural Carriers, Inc. and Liberty Mutual Insurance Company, Docket No. 202,450.



• June 1997. (Award) Where the record does not contain any evidence to support the claim of injury or to show the extent of any injury, the Appeals Board concludes claimant has not met his burden of proving the alleged shoulder accident arose out of and within the course of his employment. Hall v. Wallace and Sons Glass, Inc. and American Family Insurance, Docket No. 213,224.



• See Also, Siegrist v. Time Out Sports Lounge & Grill and Kansas Restaurant & Hospitality Association Self Insurance Fund, Docket No. 190,854 (September 1997).

• May 1997. (Award). Where medical evidence and testimony as well as testimony from claimant's employer is found to contradict claimant's allegations of a work-related injury and lack of preexisting back problems, the Appeals Board finds claimant has not met her burden of proving her case by a preponderance of the credible evidence. See Box v. Cessna Aircraft Co., 236 Kan. 237, 689 P.2d 871 (1984). Bannon v. Liggett Group and Royal Insurance Company of America, Docket No. 198,280.

• See Also, Carver v. Yoxall, Antrim & Yoxall and St. Paul Fire & Marine Insurance Company and Kansas Workers Compensation Fund, Docket No. 169,530 (May 1997); Carson v. Via Christi- Our Lady of Lourdes Campus, Docket No. 216,388 (January 1997); Reichenberger v. Piping Design Services and Liberty Mutual Insurance Company, Docket No. 217,814 (May 1997).



• March 1997. (Award) Where the Appeals Board determines that claimant did not spend her entire day on a keyboard typing but rather on the telephone or typing personal business or on a hourly ten minute cigarette break, it is found that the claimant has not met her burden of proving her injuries arose out of and within the course of her employment. Vines v. State of Kansas and State Self Insurance Fund and Kansas Workers Compensation Fund, Docket No. 172,700. [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,824].

• April 1997. (Ph) The Appeals Board determines at this stage in the preliminary hearing process that claimant has failed to prove his rash and skin irritation are the result of work-related dermatitis rather than porphyria cutanea tarda which would probably be the result of claimant's non work-related ethanol ingestion. Jacobs v. Pickens, Inc. and ITT Hartford, Docket No. 206,724.



• March 1997. (Award) Where claimant's doctor did not testify that in his opinion and to a reasonable degree of medical certainty claimant's carpal tunnel syndrome was caused by work activities and where claimant's testimony is inconsistent regarding the origin of his injuries, the Appeals Board finds claimant has not satisfied his burden of proving an injury arising out of and within the course of his employment. Stephens v. E & E Specialties and CNA Insurance Company, Docket No. 193,128.

• February 1997. (Award) Where claimant acted in a bizarre fashion during a medical exam and exaggerated his complaints and symptoms, the Appeals Board finds claimant has failed to prove he sustained permanent injury as result of the work-related accident. Permanent partial disability benefits are denied. Vanaman v. Blue Goose Drilling Co, Inc. and U.S.F. & G., Docket No. 199,439 [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,702].

• January 1997. (Award) Claimant was injured in the Vietnam; part of his arm and leg were amputated. Claimant now has a prothesis for both his arm and leg; however, the leg prothesis makes claimant more susceptible to falling. Claimant acknowledges that he has fallen several times both at work and home. In January and February of 1992, claimant testified that he fell at work while inspecting a correctional facility. He did not report these falls to anyone and did not miss work as a result of the falls. In September of 1992, claimant was helping a friend, away from work, install an overhead light fixture when he first noticed symptoms consistent with a cervical injury. At his regular hearing, claimant's physician noted a causal connection between his cervical injury and resulting surgery to his 1992 work-related falls. An independent medical examiner, however, found no causation between any of claimant's accidents, whether sustained at home or at work, with claimants's ultimate impairment to the cervical spine. Additionally, claimant's own testimony did not relate his fall to his cervical or left arm pain. The Appeals Board therefore concluded claimant failed to prove by a preponderance of the credible evidence continued in the record that his cervical condition and resulting surgery were causally connected with his employment. Sewell v. State of Kansas and State Self Insurance Fund and Kansas Workers Compensation Fund, Docket Nos. 181,932; 187,486; 187;487; 187,488 & 187,489. [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,418].

• ----- The general principles to be followed when determining whether a worker has met his burden of proving his injury arose out of or in the course of the employment are as follows: (1) An injury arises out of the employment where there is apparent to the rational mind, upon consideration of all circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury; (2) an injury is in the course of the employment when the injury occurs while the worker is at work in the employer's service. Claimant has the burden of proving both of the preceding factors. See Kindel v. Ferco Rental, Inc., 258 Kan. 272, 278, 899 P.2d 1058 (1995). Id.

• February 1994. (Award) Where claimant had told others she was not injured at work, the immediate supervisor denied claimant reported any accident, and the chiropractor's record did not indicate an accident at work, preliminary hearing benefits were denied on the basis of finding that claimant had failed to meet her burden of showing the injury arose out of and in the course of employment. Lomlofske v. Presbyterian Manors - Mid America, Docket No. 183,148.

• January 1994. (Award) Claimant met his burden of showing accidental injury arising out of and in the course of employment in spite of fact that he did not initially report accident and his wife called in saying he had a virus, where credible evidence established that he had been concerned about reporting the problem due to previous difficulties in obtaining employment which he attributed to a prior back injury. Newton v. Cromwell, Docket No. 145,831.

• January 1994. (Award) Claimant failed to meet burden of showing his injury arose out of and in the course of employment where evidence indicated claimant did not report injury, gave history of injury at home to hospital, and denied prior injury in spite of evidence of numerous prior injuries. Harris v. Newman Memorial, Docket No. 147,231.

10.24a Respondents

• September 1999. (Award) Burden shifted to respondent to prove how much of claimant's present impairment is related to her work-related accident, where respondent is required to prove the percentage of claimant's preexisting functional impairment. Sublett v. Intracorp and Cigna Workers Compensation and Kansas Workers Compensation Fund, Docket Nos. 186,917 & 219,875.



• But See Dissent, the Dissenting Board Member would shift this burden to claimant and require the claimant to prove how much of claimant's present impairment is related to her work-related accident. Id.

• August 1998. (Ph) Drug use, like intoxication is a defense. Respondent, not claimant, has the burden of proving the elements of the defense. Lowery v. Transam Trucking, Inc., Docket No. 231,264.

10.25 Admission of Evidence

10.25a Generally

• April 2000. (Award) For the purposes of admitting into evidence the IME report without the physician's deposition, the Board finds no distinction between an IME report ordered under K.S.A. 44-516 for a scheduled injury under K.S.A. 1997 Supp. 44-510d and one ordered under K.S.A. 1997 Supp. 44-510e. The respondent failed to make a timely objection to the ALJ's order for the IME and the admission of the IME's report. Additionally, at the time the ALJ ordered the IME there was no stipulation to a scheduled injury. Betty Lowe vs. The Jones Store Company and Liberty Mutual Insurance Company, Docket No. 239,741.

• October 1999. (Award) Medical reports from neutral physician appointed by the ALJ are not subject to the provisions of K.S.A. 44-519 and may, therefore, be admitted in evidence without the deposition of the physician. Provided, however, K.A.R. 51-9-6 states that either party will be allowed, if they choose, to cross examine a neutral physician appointed by the ALJ. Van Gorden v. IBP, Inc., Docket Nos. 199,461 & 199,462. [Affirmed in part, reversed in part, and remanded with directions by Court of Appeals opinion October 27, 2000, Docket Nos. 84,110 & 84,173.]



• September 1999. (Award) Issue: Whether the ALJ' appointed independent medical examiners' opinion is limited only to functional impairment, unless supported by the independent medical examiners's testimony? The Board held: In this case, before the independent medical examiner could determine functional impairment, the doctor had to make a determination of whether claimant had suffered a permanent back injury as a result of an altered gait caused by claimant's initial right leg injury. Accordingly, Appeals Board concluded, under these circumstances, in addition to the functional impairment rating, the independent medical examiner's opinion on whether claimant's low back was permanently injured as a result of the altered gait was also admissible without the supporting independent medical examiner's testimony White v. Payless Shoe Source and Kansas Workers Compensation Fund, Docket No. 180,691.

• July 1999. (Award) Generally, there is no privilege to prevent a health care provider from testifying, except where the provider fails to provide the injured worker with a copy of the evaluation report after a proper request. Bauer v. Utility Contractors, Inc. and Travelers Insurance Company, Docket No. 222,833.

• March 1999. (Award) Only opinions, not all medical records, are covered by K.S.A. 44-519. Treatment records provided to physicians who testified to opinions formed in part upon their review of those records are admissible where parties stipulated to foundation subject only to limitations of K.S.A. 44-519. Staggs v. Hunter Care Centers, Inc and National Union Fire Insurance Company, Docket No. 210,500.



• March 1999. (Award) Based on the restrictions determined by a physician who did not testify, the vocational rehabilitation expert testified about claimant's labor market loss. On appeal, claimant disputes the Asst. Director's finding as to the labor market loss as claimant asserts the Asst. Director erred when he considered the opinion of the rehabilitation expert because her opinion was premised on the restrictions recommended by a physician who did not testify in this case. The Board, however, determined that a timely objection is required before the opinion of the vocational rehabilitation expert could be excluded. Although claimant's counsel objected to the opinion of the rehabilitation expert immediately after she testified, counsel did not object when the rehabilitation expert's report was offered into evidence. McChristian v. Total Petroleum, Inc and ITT Hartford, Docket No. 193, 082.



• March 1999. (Award) The Appeals Board was asked to consider whether the medical reports of Dr. George Lucas and Dr. Michael Estivo should be considered. Dr. Estivo's report was the result of an unauthorized medical examination, not court-ordered. Under K.S.A. 44-519, this report cannot be considered as evidence, absent the doctor's testimony. Since Dr. Estivo did not testify in this matter, his report was excluded. Dr. Lucas's report of October 21, 1996, was obtained as a result of the Court's order of August 26, 1996, which required the independent medical examination by Dr. Lucas, pursuant to K.S.A. 44-516. Pursuant to K.A.R. 51-9-6, if a neutral physician is appointed, then the written report of that neutral physician shall be made a part of the record of hearings. Either party is then granted the right to cross-examine the neutral physician. However, K.S.A. 44-519 prohibits the consideration of a report of an examination of any health care provider unless the report is supported by the testimony of the health care provider. However, the Board found that in certain circumstances, the Kansas legislature has mandated that medical reports shall be considered in workers compensation litigation, even absent the testimony of the physician. For instance, in K.S.A. 44-510e(a), if there is a dispute between the parties as to the claimant's functional impairment, then the administrative law judge may appoint an independent health care provider to examine claimant and issue an opinion regarding the employee's functional impairment. This opinion of the health care provider "shall" be considered by the administrative law judge in making the final determination. In that instance, the legislature mandated the testimony of the physician is not required, and the use of the report for the purpose of claimant's functional impairment is not prohibited by K.S.A. 44-519. See also McKinney v. General Motors Corp., 22 Kan. App. 2d 768, 921 P.2d 257 (1996). Therefore, the Appeals Board found little distinction between a report generated under K.S.A. 44-510e and one generated pursuant to K.S.A. 44-516; and in applying the ruling in McKinney, the Board determined that the report of Dr. Lucas could be admitted without his testimony. Wiley v. Dillon Companies, Inc, Docket No. 205,235.



• March 1999. (Award) Respondent's objection to the admissibility of the report of an independent medical examiner fails, in part, due to the logic of the Kansas Court of Appeals in McKinney v. General Motors Corp., 22 Kan. App. 2d 768, 921 P.2d 257 (1996). In McKinney, the Court was asked to consider whether K.S.A. 44-519 prohibits the admissibility of reports submitted under K.S.A. 1996 Supp. 44-510e(a) which allows the administrative law judge to appoint a neutral health care provider to evaluate claimant and prepare a report regarding claimant's functional disability. K.S.A. 1996 Supp. 44-510e mandates that a referral, under that statute, resulting in a report, "shall be considered by the administrative law judge in making the final determination." In this instance, the ALJ specifically directed the independent medical examiner to evaluate claimant's impairment ratings resulting in the injury, and the report is therefore appropriate evidence to be considered for the purpose of determining claimant's functional impairment. Shehane v. Station Casino & CNA Insurance Company, Docket No. 222,814 [Affirmed in part & remanded by Court of Appeals opinion, Docket No. 83,083, March 24, 2000.]



• But See Dissent, the dissenting Board Member would find that the medical report of the physician should be excluded from evidence, pursuant to K.S.A. 44-519, or at the very least limited to a functional impairment opinion. Id.

• February 1999. (Award) Opinions formed by vocational rehabilitation experts, relying upon evidence from non-testifying health care providers, are based on an insufficient foundation and are prohibited by K.S.A. 1992 Supp. 44-519. See Roberts v. J.C. Penny Co., 263 Kan. 270, 949 P.2d 613 (1997). In the case at hand, the Appeals Board has held that it will not consider the opinion of the vocational rehabilitation expert in so far as that opinion was influenced by the opinion of a physician whose deposition was never taken in the matter. Thomas v. City of Wichita and Kansas Workers Compensation Fund, Docket Nos. 170,574 & 192,834.



• November 1998. (Award) Where respondent's and claimant's attorneys both asked a neutral physician for opinions on issues other than functional impairment, those opinions are admissible without the testimony. Both attorneys had opportunities to cross-examine the physician. Johnson v. Hillcrest Manor and National Union Fire Ins. Co, Docket No. 217,751.

• October 1998. (Award) Admission of an MMPI psychological test found appropriate and not to be inadmissible hearsay in workers compensation proceedings. An MMPI test is a well-recognized standardized test occasionally ordered by physicians to aid their diagnosis or treatment. Boyd v. Logan Manor Community Health and EMC Insurance Company, Docket No. 222,740.



• October 1998. (Award) Although medical records may be considered when other medical experts formulate their opinions, the chiropractic records in the case at hand, are inadmissable under K.S.A. 44-519 where the chiropractor did not testify as to the records and the parties did not stipulate as to their admission. Lowe v. Presbyterian Manors, Inc, Docket No. 208,653.



• May 1998. (Ph) The trier of facts is not bound by medical evidence presented in the case and has a responsibility of making its own determination. See Tovar v. IBP, Inc, 15 Kan. App.2d 782, 817 P.2d 212, rev. denied 249 Kan. 778 (1991). Fischer v. Haven Steel Products and Fireman's Fund Insurance, Docket No. 202,024.



• See Also, Overstreet v. Mid-West Conveyor Co., Inc. and Insurance Company State of Pennsylvania, Docket No. 208,783 (September 1997) [Affirmed by Court of Appeals in unpublished Court of Appeals opinion, Docket No. 80,036, August 27, 1999 (published December 1999)]; Goodwin v. Southland Corporation, D.B.A. 7-Eleven and American Protection Insurance Company, Docket No. 216,691 (January 1999); Robinson v. Stone Masons Inc and Northwestern National Casualty, Docket No. 205,004 (April 1999).

• April 1998. (Award) The Workers Compensation Act requires the health care provider to testify before a report of any examination of any employee is admissible as competent evidence in a claim. See K.S.A. 44-519. Additionally, K.A.R. 51-3-5a generally provides that medical reports or other records shall be considered at a preliminary hearing. However, the medical reports shall not be considered as evidence for a final award, unless all parties stipulate to the reports or unless the report is later supported by the testimony of the physician making the report. In this case, the medical record stipulation was not part of a preliminary hearing. Lay v. Aerotek, Inc and Reliance National Indemnity Company, Docket No. 198,981.



• ----- Recently, the Kansas Supreme Court held that opinions formed by vocational rehabilitation experts relying upon evidence from non-testifying health care providers are based on an insufficient foundation and are prohibited by K.S.A. 44-519. Roberts v. The J.C. Penney Co., 263 Kan.270, Syl. ¶ 5, 949 P.2d 613 (1997). Although medical experts may rely upon the reports of non-testifying physicians in forming their opinions, this differs from allowing a vocational rehabilitation expert to do so. Roberts at Syl. ¶ 6. Id.



• See Also, Ridder v. Topeka Truck Plaza, Inc. and Hartford Accident & Indemnity, Docket No. 177,364 (July 1997); Zimmer v. Central Kansas Medical Center and Reliance National Insurance Company and Workers Compensation Fund, Docket No. 186,009 (April 1997); Ruttinger v. Johnson County Kansas and Kansas Workers Compensation Fund, Docket No. 175,287 (October 1997) [Affirmed by unpublished Court of Appeals Opinion, Docket No. 80,085].

• April 1998. (Award) Where the parties stipulated the medical records into evidence without foundation, the Appeals Board finds the health care provider's opinions contained in such medical records are admissible without the necessity of their deposition testimony. Lay v. Aerotek, Inc and Reliance National Indemnity Company, Docket No. 198,981.



• January 1998. (Award) Medical reports attached to a settlement hearing and medical reports contained in one of respondent's exhibits found to be in violation of K.S.A. 44-519, as they were not stipulated into evidence by the parties and testimony of the health care providers was not taken to support the repots. The reports should, therefore, be excluded from the records. Woods v. Air Technologies, Inc. and Travelers Insurance company and Gulf Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 176,253 & 176,254.



• ----- K.S.A. 44-519 does not prevent a testifying physician from considering medical evidence generated by other absent physicians as long as the testifying physician is expressing his or her own opinion rather than the opinion of the absent physician. See Roberts v. The J.C. Penney Company, 263 Kan. 270, 9949 P.2d 613 (1997). Id.



• See Also, Kelly John Helm vs. Conklin Cars and Fire & Casualty Ins. Co. Of Connecticut, Docket No. 237,920 (May 2000).



• November 1997. (Award) In a workers compensation case medical testimony is not essential to the establishment of a worker's disability. See Chinn v. Gay and Taylor, Inc., 219 Kan. 196, 547 P.2d 751 (1976). The Appeals Board found, however, that while expert medical testimony is not essential, in this case, it was an important factor in determining whether claimant's symptoms and disability had a causal employment relationship. Hitchcock v. USD No. 214 and Trinity Universal Insurance, Docket No. 159,167.

• See Also, Wogan v. Consolidated Freightways, Inc, Docket No. 201,820 (March 1998).

• April 1997. (Award) Where the Appeals Board finds no justifiable reason to consider one vocational rehabilitation expert's opinion over that of another, the opinions will be given equal weight. Hatfield v. Metro Courier Service and Aetna Casualty & Surety, Docket No. 162,872.

• April 1997. (Award) When determining an award of work disability medical opinions are to be equally weighed. See Hughes v. Inland Container Corporation, 247 Kan. 407, 799 P.2d 1011 (1990). Zimmer v. M-C Industries, Inc and Maryland Casualty Insurance, Docket No. 187,540.



• August 1997. (Award) K.S.A. 1989 Supp. 44-519 precludes the use of a medical opinion on workers compensation matters absent a stipulation by the parties or absent the testimony of the health care provider being taken to support the medical opinion. O'Shea v. U.S. Shoe Corporation and Liberty Mutual Insurance Company and Kansas Workers Compensation Fund, Docket No. 187,861.

• August 1997. (Remand) It is the function of the trier of facts to decide which testimony is more accurate and/or credible and to consider the medical testimony along with the testimony of claimant and any other testimony which may be relevant to the question of disability. See Tovar v. IBP, Inc., 15 Kan. App.2d 782, 817 P.2d 212, rev. denied 249 Kan. 778 (1991). McIntyre v. A.L. Abercrombie, Inc. and Fireman's Fund Insurance Company, Docket No. 183,293.

• See Also, McComas v. Home Office Reference Lab and Travelers Indemnity Company, Docket No. 151,939 (October 1997) [Affirmed by unpublished, Court of Appeals decision, Docket No. 80,256]; Wogan v. Consolidated Freightways, Inc, Docket No. 201,820 (March 1998).

• August 1997. (Ph) The trier of fact may defer to the training and experience of the Certified Emergency Medical Technician on the question of what factors are relevant to a determination of whether a person may be under the influence of drugs. Thill v. Monfort, Inc., Docket No. 214,119.



• June 1997. (Award) K.A.R. 51-3-8 provides that the "parties shall exchange medical information and confer as to what issues are stipulated and what issues are to be in dispute in the case" prior to the first hearing. See Also, K.A.R. 51-9-10 which contains certain production requirements directed to health care providers. Chavez, aka Gonzalez v. Hyplains Beef, L.C. and Wausau Insurance Companies, Docket No. 196,654.



• May 1997. (Award) Medical evidence is not essential to the establishment of a work-related injury or percentage of disability in a workers compensation case. See Tovar v. IBP, Inc., 15 Kan. App.2d 782, ¶ 1, 817 P.2d 212, rev. denied, 249 Kan. 778 (1991). Therefore, the Appeals Board will look at the record as a whole, including the medical evidence as well as claimant's own testimony, and determine if a preponderance of the credible evidence establishes that claimant's injuries arose out of and within the course of the employment. Dixon v. IBP, Inc., Docket No. 165,613.

• See Also, March 1997. (R/M) The Appeals Board's function is to decide which testimony is more accurate and/or credible and to adjust the medical testimony along with testimony of claimant and any other testimony that may be relevant to the question of disability. See Tovar v. IBP, Inc., 15 Kan. App.2d 782, 817 P.2d 212, rev. denied 249 Kan. 778 (1991). Balguiti v. Marriott Hotel and Argonaut Insurance Company, Docket No. 148,415.



• March 1997. (Award) The medical report of a neutral physician or independent heath care provider becomes part of the evidentiary record as stated in K.A.R. 51-9-6 as well as K.S.A. 44-516 and K.S.A. 1994 Supp. 44-510e(a). Respondent's reliance upon K.S.A. 44-519 to preclude the admission of the report is mistaken. Haataja v. General Riggers & Erectors, Inc. and Liberty Mutual Insurance Company, Docket No. 173,814. [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,762].



• March 1997. (Award) Respondent's objections to admission of claimant's medical records sustained where claimant had not previously provided the records to respondent and respondent did not have an opportunity to cross-examine those health care providers. See K.S.A. 44-519. Alaniz v. Associated Wholesale Grocers, Docket No. 202,211.

• March 1996. (Award) A health care provider's report that is requested by the Administrative Law Judge pursuant to K.S.A. 44-510e(a) is admissible as evidence in a workers compensation case without the deposition testimony of the health care provider for the limited purpose of expressing the health care provider's opinion on the employee's functional impairment. Clem v. Rodeway Express, Docket No. 183,119.

• March 1994. (Award) Claimant's testimony together with medical evidence found to support claim that injury arose out of and in the course of employment and not considered to be outweighed by contrary opinion of one physician. Stephenson v. Sunshine Biscuit, Inc, Docket No. 173,930.



• March 1994. (Award) Where evidence does not show when medical reports were provided, they will not be excluded for being provided untimely. Newell v. FMC Corporation, Docket No. 177,945.

• January 1994. (Award) K.S.A. 44-515 not to be treated as an absolute bar to admission of medical testimony where report of physician not supplied within 15 days. Medical evidence may nevertheless be admitted where there has been no prejudice. Oldham v. J.C. Penney, Docket No. 159,047.

• January 1994. (Award) Medical opinion which relied upon Jamar tests performed by others at the direction of the testifying physician considered admissible without testimony of those performing the Jamar test. Humbert v. Goodyear, Docket No. 157,724.

• December 1993. (Award) Failure to make timely objection waives otherwise valid objection to admission of record, in this case, medical records. Pfannenstiel v. Dodge House Restaurant and Kansas Workers Compensation Fund, Docket No. 140,795.



• ----- A physician's opinions are not necessarily rendered inadmissable because the physician has relied upon the opinions of other physicians or other medial records and reports. Id.

10.25c Chemical Tests

• October 1999. (Award) Before drug screen results can be admitted in evidence, the employer must prove: (1) it had probable cause to believe the employee had used or was impaired by a drug; (2) the test sample was collected contemporaneously with the events establishing probable cause; (3) a licensed health care professional collected and labeled the test sample; (4) the test was performed by an approved or licensed lab; (5) the test was confirmed by a reliable analytical method; and (6) the test results were beyond a reasonable doubt taken from the employee. Bohannon v. Dynamic Drywall, Docket No. 230,500.



• ----- Results of drug test are not admissible in evidence unless there was probable cause to believe the employee had used or was impaired by drugs. Probable cause exists when there is sufficient information to form a reasonable belief that an employee had either used drugs or that the employee was impaired from drugs. Id.

• See Also, Val D. Carlow vs. Konza Construction Company, Inc. and Builders' Association Self-Insurers' Fund, Docket No. 227,051 (April 2000) [Affirmed by unpublished Court of Appeals opinion, Docket No. 85,275, February 9, 2001].



• April 1999. (Ph) Claimant was injured in an automobile accident which killed a passenger in the truck claimant was driving. Respondent argued the accident occurred as a result of claimant's cocaine use and obtained authorization from claimant, within 27 hours of the accident, to test claimant for cocaine. K.S.A. 1996 Supp. 44-501(d)(2) sets out specific criteria which must be followed before chemical tests can be admitted into evidence. Respondent provided several affidavits of expert witnesses dealing with the method by which the urine and blood test samples were collected, the labeling of the test samples, and the way the tests were performed by the laboratory which was approved by the United States Department of Health and Human Services. The use of the gas chromatography/mass spectroscopy, and affidavits regarding the chain of custody used, ensure that the test results were from claimant's sample. The statute further requires that probable cause to believe the employee had used, was in possession of or was impaired by drugs or alcohol, be established. In this instance, respondent provided affidavits from eyewitnesses at the scene, and a police report indicating claimant was driving erratically and at an excessive rate of speed immediately prior to the accident. The collecting procedures specified in the statute were followed, as well as the procedures required to properly identify the sample as being from claimant. Expert testimony provided that the levels of cocaine (benzoyl ecgonine) substantially exceeded the NIDA positive test levels. Expert testimony further established that claimant was under the influence of cocaine at the time of the accident, and that the use of cocaine by claimant was a major factor resulting in this accident. The Board, therefore, affirmed the ALJ's denial of benefits based upon K.S.A. 1996 Supp. 44-501(d)(2), which states the employer is not liable for workers compensation benefits where the injury results from the employee's use of drugs or alcohol. Brooks v. Midwest Express Corporation and Reliance National Insurance Company, Docket No. 237,755.



• July 1998. (Ph) The Appeals Board found that the Administrative Law Judge has the authority at a preliminary hearing to determine whether the respondent has met all the foundation requirements for a chemical test to be admitted into evidence. Therefore, the Appeals Board concluded it does not have jurisdiction to review the Administrative Law Judge's preliminary hearing finding regarding whether a party has proven the foundation requirements for the admission of a chemical test. Appeal dismissed. Deleon v. Boone Brothers Roofing and CNA Insurance Companies, Docket No. 228,525.



• See also, Anderson v. Bill Morris Construction Co., Inc., and Fireman's Fund Insurance Company, Docket No. 213,350 (May 1999).



• June 1998. (Ph) Claimant fell suffering a work-related injury and voluntary took a urine drug test which produced positive findings of marijuana use. Dr. Scanlan then analyzed the report and determined claimant's high level of cannabinoids would have contributed to his injury. The ALJ determined the drug test was not admissible under K.S.A. 44-501(d) but allowed Dr. Scanlan's opinion relating the drug test results to claimant's injury. Claimant objected. On appeal, the Board followed a prior holding in Frazier v. Steel & Pipe Supply Company, Inc., Docket No. 201,049 (September 1995), and determined the issue regarding the admissibility of evidence is not contained in K.S.A. 1997 Supp. 44-534a, and is not a jurisdictional issue under K.S.A. 1997 Supp. 44-551. The appeal was dismissed. Ogden v. Evcon Industries, Inc and American International Group, Docket No. 230,945.



• See Also, Valencia v. Capital City Pallet and Fremont Compensation Insurance Group, Docket No. 236,556 (December 1998).



• September 1995. (Ph) Issues regarding the foundation laid for the admissibility of a chemical test do not constitute appealable issues on appeal from a preliminary hearing. Such issues are not contained in K.S.A. 44-534a and are not jurisdictional under K.S.A. 44-551. Frazier v. Steel & Pipe Supply Company, Inc., Docket No. 201,049.



• But See, April 1998. (Ph) Claimant was injured when he fell from a ladder he had placed on top of some scaffolding to install drywall in a room. The ALJ's decision relies on a report by a physician interpreting results of a urine drug test. Claimant objected to the introduction and consideration of that drug test on the grounds that there was not probable cause that the claimant was in possession of or was impaired by a drug as set forth in K.S.A. 44-501(d). The Board finds that under the circumstances of this case, claimant's objection to the introduction of the physician's report of a urine analysis was a valid objection. Based upon the record, respondent only knew of claimant's fall. No other factors were contained in the record to establish probable cause for a urine analysis. The fall itself did not constitute probable cause. The Appeals Board, therefore, finds the chemical tests are not admissible. Bohannon v. Dynamic Drywall and American Family Mutual Insurance Co, Docket No. 230,500.

• See Also, August 1997. (Ph) K.S.A. 1996 Supp. 44-501(d)(2)(a) provides that the results of chemical tests are not admissible to prove impairment unless "there was probable cause to believe that the employee used, had possession of, or was impaired by the drug or alcohol while working." Thill v. Monfort, Inc., Docket No. 214,119.



• ----- Claimant was injured from a fall from a roof, and in following respondent's policies and procedures, was required to submit to a urine test following the slip and fall. Claimant now argues the urine test results were admitted into evidence without the necessary foundation having been laid. K.S.A. 501(d)(2)(F) provides that in order for the results of chemical tests to be admissible evidence to prove impairment "the foundation evidence must establish, beyond a reasonable doubt, that the test results were from the sample taken from the "employee." There are gaps in the chain of custody as claimant alleges; however, those gaps are covered by the testimony from respondent's agents and Corning Laboratory's technical director. Furthermore, the specimen was sealed in a container and marked with an identification number which was checked each time the specimen was handled and after the specimen was transported via Federal Express from respondent to Corning Laboratories. Such procedures are sufficient to ensure the integrity of the specimen and to verify that it was taken from claimant. Testimony from the Federal Express Delivery driver is not necessary. See State v. Tillman, 208 Kan. 954, 494 P.2d 1178 (1972). Additionally, it is not necessary that each and every person at the Corning Laboratories who was involved in the testing process testify. See, eg., State v. Treadwell, 223 Kan. 577, 575 P.2d 550 (1978). Id.

10.25d Testimony of Claimant

• June 1997. (Ph) Where the claimant's testimony is regarded as uncontradicted evidence, not improbable or unreasonable, it may not be disregarded unless shown untrustworthy. See Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 558 P.2d 146 (1976). Turner v. Joy Services, Inc. Kansas Workers Compensation Fund, Docket No. 217,063.

• See Also, Zimmer v. Central Kansas Medical Center and Reliance National Insurance Company and Workers Compensation Fund, Docket No. 186,009 (April 1997); Anneler v. Goodyear Tire & Rubber Company and Travelers Insurance Company and Kansas Workers Compensation Fund, Docket No. 222,218 (November 1997); Korthanke v. Schwan's Sales Enterprises and Continental Casualty Company, Docket No. 220,101; Stevens v. The Boeing Company and American Manufacturers Mutual Ins. Co., Docket No. 219,071 (March 1997); Wilson v. Casco Inc. and Liberty Mutual Insurance Company and Workers Compensation Fund, Docket No. 189,322 (March 1997); Holt v. Scholfield Honda and Kemper Insurance Companies, Docket No. 213,437 (February 1997) and Mader vs. ThunderCorp/Diamond Trucking and New York Underwriters Insurance Co. and Kansas Workers Compensation Fund, Docket No. 230,510 (December 2000).

10.25e Hearsay

• February 2000. (Award) Board did not consider it necessary for vocational expert to testify where claimant reviewed task list and testified to its accuracy. The Board also considered a second task list by second vocational expert to be admissible where the expert testified she obtained the information from the claimant but claimant did not testify to the accuracy of the second list. Pierson v. Three Rivers, Inc., Docket No. 222,808.

• October 1997. (Ph) K.A.R. 51-3-8 allows hearsay evidence to be admissible unless irrelevant or redundant. Therefore, the Appeals Board finds the Administrative Law Judge had the authority to admit the medical opinions of two physicians, regarding the causation of claimant's injury, which were hearsay. Gordon v. Oldham's Farms Sausage, Inc., Docket No. 223,537.

10.25f Transcripts

• February 1998. (Award) Where the evidentiary deposition is taken outside claimant's terminal date, such deposition will not be considered as part of the record. Hargett v. W.A. Dunbar and CNA Insurance Company and Workers Compensation Fund, Docket No. 173,294.

• May 1997. (Award) Chapter 60 of the K.S.A. generally does not apply to workers compensation actions. However, this does not prevent the admittance of a transcript into evidence at workers compensation proceedings when such a transcript is generally only admitted under the provisions set forth in K.S.A. 60-460(c) & (g). Since the transcript offered purports to be certified by the court reporter as a correct transcription of an official tape recording of the proceeding and claimant's counsel did not request additional time for rebuttal of either the substance of that testimony or the authenticity of the transcript, the Appeals Board finds the transcript it otherwise admissible. Dombkowski v. IBP, Inc. and Kansas Workers Compensation Fund, Docket Nos. 177,397; 195,846 & 195,847. [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,516].

10.25g Surveillance Videos

• March 1999. (Award) Three surveillance videotapes admitted into evidence despite the fact it was argued the identification of claimant in these videos was less than ideal. The Board concluded that the evidence established that is was more probably than not the claimant in the videos. Further, as a result of the videos, claimant's credibility was damaged to the point that the restrictions recommended by claimant's physician were deemed unreliable. Blurton v. LRM Industries, Inc and Continental National American Group, Docket No. 205,618.



• December 1998. (Ph) The Board did not find that the ALJ exceeded his jurisdiction by excluding the admission of a videotape offered after hearing testimony that the videotape was made from 8-millimeter film and that not all of the film was transferred onto the videotape. The admission of the evidence was objected to based on a chain of custody argument. The Board could not say that the tape might have changed the ruling on a jurisdictional issue or that the ALJ improperly excluded evidence which led to a ruling which exceeded his jurisdiction. Valencia v. Capital City Pallet and Fremont Compensation Insurance Group, Docket No. 236,556.



• September 1998. (Award) Videotape of claimant performing job tasks found unreliable and lacking in credible foundation, where there was no testimony from claimant or any of respondent's employees confirming accuracy of the videotape or as to how the job tasks it depicts relate to the jobs claimant performed. Therefore, the videotape is inadmissible as evidence. Morris v. Rubbermaid Specialty Products, Docket No. 213,651. [Affirmed by unpublished Court of Appeals opinion, Docket No. 82,083, December 10, 1999.]

• May 1998. (Award) Surveillance videotapes admitted into evidence contradicted claimant's testimony that his right knee injury has caused him to walk with a severe limp and left him severely disabled. Killingsworth v. Premier Studios and Fireman's Fund Insurance Company and Kansas Workers Compensation Fund, Docket No. 189,097.



• December 1997. (Award) Surveillance videotapes held admissible for impeachment after claimant testifies and during respondent's case in chief. Absent request, disclosure of videotapes is not necessary. The investigator who took the videos may give foundation testimony such as identifying claimant, date, time etc, but may not give opinions regarding what the tapes depict. Shepard v. Overnite Transportation Company, Docket No. 172,165.



• ----- The cost of reproducing a videotape that is to offered as an exhibit to a deposition should initially be borne by the respondent under K.A.R. 51-2-4. The cost of producing documents outside a deposition or hearing should generally be borne by the party requesting same. See K.S.A. 44-554 K.S.A. 44-555; and K.S.A. 60-245(b). Id.



• June 1997. (Award) After claimant denied working for an employer, respondent played a videotape depicting claimant working for such employer. The claimant later admitted to working for the employer. Under these circumstances, the Appeals Board finds respondent neither violated a provision of the Workers Compensation Act nor an order of the Administrative Law Judge in failing to disclose the existence of the videotape prior to the hearing. Respondent used the videotape to impeach claimant's testimony only after he had lied under oath. Chavez, aka Gonzalez v. Hyplains Beef, L.C. and Wausau Insurance Companies, Docket No. 196,654.

10.25h Unemployment Records

• November 1997. (Award) Respondent wished to introduce a document into evidence prepared in connection with an unemployment compensation proceeding in Kansas. To introduce this document, respondent scheduled for the deposition of an employee with the Texas Dept. of Human Resources. Claimant cited K.S.A. 44-714 to preclude the admission of the document and the deposition of the Texas Human Resources employee. The Administrative Law Judge cited the language of K.S.A. 44-714(f) and allowed the record relating to the unemployment compensation proceeding to be admitted into evidence in the current workers compensation action. The Appeals Board, however, determined that both the document prepared in connection with the unemployment proceeding and the testimony of the Human Resources employee should not be admitted in this proceeding. The Appeals Board based its decision on K.A.R. 50-4-2, the regulation governing disclosure of unemployment records. That regulation forbids unemployment records from being disclosed as evidence at a public hearing or as part of a record available to the public. As such, the Appeals Board finds records introduced in the workers compensation case must be considered evidence at a public hearing and as a record available to the public. The unemployment records cannot therefore be admitted into evidence at a workers compensation proceeding. Additionally, the Appeals Board finds the Administrative Law Judge was not able to consider all the factors relating to the disclosure rules of Texas; therefore, the deposition of the Texas Human Resources employee should not be admitted into evidence either. Infante v. IBP, Inc., Docket No. 204,462. [Appeal dismissed by unpublished Court of Appeals opinion, Docket No. 80,377].

10.25i Rebuttal Evidence

• January 1997. (Award) The Appeals Board finds claimant's failure to make a proffer of evidence on the record is not fatal and claimant should be allowed to introduce rebuttal evidence concerning her credibility within the parameters set by the Administrative Law Judge. The proceeding is therefore remanded to the Administrative Law Judge to provide the parties an opportunity to gather the complete evidentiary record for consideration and for claimant to offer rebuttal evidence to deposition testimony affecting her credibility. Evans v. The Boeing Company-Wichita and Aetna Casualty & Surety and Workers Compensation Fund, Docket No. 179,663.



• ----- Rebuttal testimony is evidence presented in denial of some fact which the adverse party has attempted to prove. See Enlow v. Sears Roebuck & Co, 249 Kan. 732, 742, 822 P.2d 617 (1991). Id.

10.25j Records Not Attached to the Application for Preliminary Hearing or Otherwise Formally Offered into Evidence

• May 1998. (Ph) An Administrative Law Judge has the discretion to either accept or exclude records and reports that were not attached to the application for preliminary hearing. The Legislature did not intend to bind the administrative law judges by technical rules of procedure, but rather desired expeditious and impartial hearings. K.S.A. 1997 Supp. 44-523. Hayes v. Raytheon Aircraft Company, Docket Nos. 230,784 & 230,785.

• November 1997. (Award) Held, the recorded statement of one of respondent's witnesses which was attached to respondent's submission letter is inadmissable as evidence and will not be considered as part of the record. The witness making the statement in question did not testify and was not available for cross examination. In addition, the statement was attached to the submission letter after the close of the time allowed for offering evidence. Waterhouse v. Pechin Construction, Inc. and American Family Insurance Company, Docket No. 172,404.

10.25k Employer Report of Accident

• August 1997. (Ph) An Employer's Report of Accident cannot be used as evidence in a workers compensation case for any purpose which would include being used as a written claim for compensation. See K.S.A. 44-557(b). Heaston v. Bennett Rogers Pipe Coating and Travelers Insurance Company, Docket No. 219,321.



• See Also, Wilcots v. County of Sedgwick and Kansas Workers Compensation Fund, Docket No. 177,216 (August 1997).

10.25l Business Records / Documents

• June 1998. (Ph) An issue dealing with the admissibility of a business document at a preliminary hearing does not fall under any of the jurisdictional issues specifically listed in K.S.A. 1997 Supp. 44-534a, and the Appeals Board finds the ALJ did not exceed his jurisdiction in allowing the document to be admitted into evidence for preliminary hearing purposes. Claimant's appeal regarding this issue is dismissed. Gonzales v. Allied, Inc and Maryland Casualty Company, Docket No. 233,046.

• December 1993. (Award) Wage record attached to respondent's submission letter not considered as evidence where contradictory evidence was introduced by claimant. Branstetter v. Villa Del Mar Apartments, Docket No. 160,652.

10.26 Due Process Considerations

• November 1998. (Award) Claimant alleged a denial of due process due to the Administrative Law Judge asking specific questions of claimant at both the preliminary hearing and the regular hearing. In reviewing the questioning process of the Administrative Law Judge, the Appeals Board found the Administrative Law Judge appeared to be attempting to clarify some of the inconsistencies presented by claimant in his testimony. This attempt, rather than denying claimant due process, was a positive attempt by the Administrative Law Judge to clarify the record. The Appeals Board, therefore, found no error on the part of the Administrative Law Judge and no prejudice or denial of due process to the claimant. McIntosh v. Carr Auto Electric, Docket No. 211,200.



• October 1998. (Ph) The Workers Compensation Fund was not denied due process of law or a fair hearing because neither the respondent nor claimant appeared at a preliminary hearing. K.S.A. 44-532a provides for the Fund to pay compensation where the employer cannot be located. Clearly, this statute contemplates circumstances where the employer may not be present at the hearing. The claimant's presence at the hearing is likewise not required if claimant has otherwise established his/her entitlement to benefits under the Act. Therefore, the ALJ's Order holding the Fund responsible for the payment of compensation previously ordered is affirmed. Athey v. Davis Roofing and Workers Compensation Fund, Docket No. 230,907.

• July 1997. (Award). In Osborn v. Electric Corporation of Kansas City, 23 Kan. App.2d 868, 936 P.2d 297 (1997), the Court of Appeals found retroactive application of K.S.A. 1996 Supp. 44-501(c) (Senate Bill No. 649) to be an unconstitutional violation of due process. Therefore, K.S.A. 1996 Supp. 44-501(c) can not be applied retroactively to injuries occurring before the effective date of the statute. See Discussion in, Matney, D.C. v. Matney Chiropractic Clinic and State Farm Fire & Casualty Co., Docket No. 199,834 [Affirmed in part, reversed in part and remanded with directions by Court of Appeals, Docket No. 79,560; Affirmed in part and reversed in part by Kansas Supreme Court opinion, Docket No. 79,560, January 28, 2000].

• June 1997. (Order) The Administrative Law Judge held a hearing on the issue of whether costs should be assessed against the claimant with only the respondent present. Claimant was not given notice of such hearing and, therefore, was not available to present evidence or arguments. The Appeals Board concludes the Administrative Law Judge violated the basic elements of procedural due process as he failed to give claimant notice of the hearing which deprived the claimant of an opportunity to be heard. Therefore, the order of the Administrative Law Judge assessing certain costs against the claimant is set aside as null and void. Vilaysing v. IBP, Inc., Docket No. 210,878.

• June 1997. ( Ph) Where the Administrative Law Judge addressed an issue not otherwise brought before him, the Appeals Board finds the Administrative Law Judge exceeded his jurisdiction. Regarding the issue, the parties did not have an opportunity to consider, present evidence or argue that issue, and therefore, the parties have been denied due process. The Administrative Law Judge's Order is set aside. Graham v. A+ Sweeping, Inc. and Commercial Union Insurance Companies, Docket No. 206,881.

• February 1997. (Ph) Although K.S.A. 44-566a(c)(2) required the administrate law judge to dismiss the Fund where there is insufficient evidence to indicate Fund liability, that statute must be read in light of K.S.A. 44-523 which required all parties be given reasonable opportunity to be heard and to present evidence. In this instance, the administrative law judge did not afford the respondent an opportunity to be heard and, therefore, the respondent was denied due process of law. Upon remand, the Administrative Law Judge should allow the parties an opportunity to present evidence and argument in support of their respective positions. Wray v. Oldham's Farm Sausage, Inc and Workers Compensation Fund, Docket No. 210,623.

• December 1995. (Order) Respondent switched insurance carriers during litigation. One of respondent's insurance carriers, who was not a party to the preliminary hearing in question, filed a motion for a rehearing of that preliminary hearing. The ALJ denied and the Board affirmed noting that the insurance carrier did not have standing to appeal that preliminary hearing order or file a motion for a rehearing; therefore, its due process rights were not affected by the denial of its motion for a rehearing. Palmer v. Carlson Systems and Cigna and Travelers Insurance Company and Kansas Workers Compensation Fund, Docket No. 172,333.

10.26a Preliminary Hearings

10.27 Generally

• January 2000. (Ph) Board construed a letter sent by the ALJ after the preliminary hearing and determined the letter did not amount to an order. Accordingly, there was no order for review by the Board and the Board remanded the case to the ALJ for decision. Neaderhiser v. Houlihan's Restaurant Group, Docket No. 242,079.

• November 1999. (Ph) The Administrative Law Judge retains jurisdiction over the parties and issues presented at a preliminary hearing. Later hearings conducted to address those same issues are treated as a continuation of the initial hearing and do not require that same procedures be followed to initiate the initial hearing. Frontado v. Rubbermaid Specialty Products, Docket No. 217,058 [Appeal dismissed by unpublished Court of Appeals opinion, Docket No. 84,478, February 16, 2001].

• November 1999. (Ph) Temporary partial disability benefits may be ordered at a preliminary hearing. Fleischer v. Metropolitan Court Reporters, Docket No. 237,296.

• September 1999. (Ph) The preliminary hearing statute was designed to expediently address issues of medical treatment and temporary total disability compensation. The preliminary hearing is summary in nature and evidentiary rules are relaxed, which aids in the prompt resolution of the issues. The need for an expedient resolution of the issues regarding medical treatment is just as compelling post-award as it is pre-award because, either way, the failure to obtain prompt treatment could result in needless suffering and even irreparable injury. Additionally, the Workers Compensation Act provides that preliminary hearings may be held after an award has been entered. Smith v. Perfekta, Inc. and ITT Hartford, Docket Nos, 201,337 & 201,338 & 201,339.



• August 1999. (Ph) Respondent argues the ALJ did not have jurisdiction because the record did not contain the proper demand or notice of intent per K.S.A. 44-534a(a)(1). Respondent acknowledged claimant's certification, stating she sent the notice of intent, is to be made part of the record but contends the ALJ did not have jurisdiction to proceed with the preliminary hearing because the notice of intent itself was not attached. In deciding this case, the Board acknowledged the Board's prior ruling in Kane v. Westwood Animal Hospital, Docket No. 204,486 (May 1997) [listed below], in noting that the notice of intent is necessary to assure that the employer will have an opportunity to address the claimant's demands and can, where it determines appropriate, avoid the litigation of a preliminary hearing. Claimant's counsel indicated and stated in her brief that she not only sent the demand in question but also sent a second demand specifically asking for change of physician -- claimant attached a copy of both to her brief. The Board therefore held that claimant made an appropriate demand and gave notice of her intent to request a change of physician. Respondent had full opportunity to address and answer the demand. The ALJ did not exceed her jurisdiction when she addressed claimant's request for change of physician. Wietrick v. Dream Homes, Inc and California Indemnity Insurance, Docket No. 237,389

• May 1997. (Ph) K.S.A. 1996 Supp. 44-534a authorizes an application for preliminary hearing to be filed on only the issues of furnishing medical treatment and payment of temporary total disability compensation. A prerequisite of filing an application for preliminary hearing is the applicant shall give written notice to the adverse party of the intent to file such an application. The notice of intent shall contain a specific statement of the benefit change being sought . Kane v. Westwood Animal Hospital and Commercial Union Insurance Companies, Docket No. 204,483.

• April 1997. (Ph) A preliminary hearing order does not become a final order when no appeal is taken. It retains its characteristics as a preliminary hearing order even after the time for review by the Appeals Board has passed. Sevilla v. Ismael Calderon and Century Roofing and Commercial Union Insurance Company and Kansas Workers Compensation Fund, Docket No. 211,139.

• December 1994. (Ph) K.S.A. 44-534 makes applicable to both claimant and respondent the specific criteria and procedures required to proceed to preliminary hearings for the purpose of medical treatment and payment of temporary total disability compensation pre- and post- award. Barlow v. Canteen Corporation and Continental National American Group, Docket No. 160,803.

• March 1994. (Ph) Where Administrative Law Judge (ALJ) simply took issues at preliminary hearing under advisement pending final decision and provided no explanation or justification for doing so, case remanded to ALJ for prompt determination of issues. Hawk v. Rubbermaid-Winfield, Docket No. 180,303.

10.28 Administrative Law Judge (ALJ), Jurisdiction of at Preliminary Hearings

(See § 10.18)

10.29 Appeals Board, Jurisdiction of

See Also, Preliminary Hearing Orders, Chapter XV; & § 15.27

10.30 Change of Physicians

• February 1994. (Award) Request for additional medical treatment after authorized treating physician has released claimant from treatment is not a request for change of physicians subject to requirements of K.S.A. 44-510(c). Waugh v. Parkway Care Home, Docket No. 180,719.

10.31 Disability Benefits (See also "Disability Benefits," § 15.43)

• July 1997. (Ph) Temporary total disability benefits are an appropriate issue for determination by the administrative law judge at preliminary hearings. Smith v. KC Fab Inc., Docket No. 217,487.

• June 1997. (Ph) Requests for temporary total disability benefits are both substantive issues and preliminary hearing issues to be determined by the administrative law judge under K.S.A. 1996 Supp. 44-534a. Graham v. A+ Sweeping, Inc. and Commercial Union Insurance Companies, Docket No. 206,881.

10.32 Medical Benefits (See also "Medical Benefits," § 15.42)

• July 1999. (Award) Respondent argues that claimant should be denied preliminary hearing benefits because the work activities only caused a temporary aggravation of a preexisting condition. However, the Board finds the argument fails because at a preliminary hearing claimant is not seeking compensation for permanent disability -- but medical treatment. That an injury be a permanent as opposed to a temporary aggravation is not a perquisite to the duty to furnish medical treatment. Anderson v. Ford Motor Company and Liberty Mutual Insurance Company, Docket No. 236,414.

10.32a Limitation on Number of Preliminary Hearings

• February 1999. (Ph) There is no limitation to the number of preliminary hearings an ALJ may conduct, but the Appeals Board believes that multiple preliminary hearings should not be conducted when there is no new evidence. Perrill v. Wesley Medical Center and Galen of Kansas, Inc, Docket No. 233,702.

• December 1997. (Ph) A pending appeal to the Board does not divest the administrative law judge of jurisdiction to conduct another preliminary hearing, even on the same issues. Hanna v. M. Bruenger & Co., Inc. and Leona Bruenger & Co., Inc. and New Hampshire Insurance Company and Business Insurance Company, Docket No. 222,182.



• ----- There is no limit to the number of preliminary hearings that an administrative law judge may conduct. Id.



• See Also, Zago v. Anderson Interiors and Allied Mutual Insurance Company, Docket No. 202,528 (October 1997); Sevilla v. Ismael Calderon and Century Roofing and Commercial Union Insurance Company and Kansas Workers Compensation Fund, Docket No. 211,139 (April 1997); Williams v. The Boeing Company and Aetna Casualty & Surety Company Kemper Insurance Companies and Kansas Workers Compensation Fund, Docket Nos. 186,109 & 223,159 (March 1998).



• December 1997. An administrative law judge may reconsider a decision made at a previous preliminary hearing. Hanna v. M. Bruenger & Co., Inc. and Leona Bruenger & Co., Inc. and New Hampshire Insurance Company and Business Insurance Company, Docket No. 222,182.



• See Also, Fischer v. Haven Steel Products and Fireman's Fund Insurance, Docket No. 202,024 (May 1998).



• October 1997. (Ph) An administrative law judge is not limited in the number of preliminary hearings that may be held in a case. Zago v. Anderson Interiors and Allied Mutual Insurance Company, Docket No. 202,528.

• ----- An administrative law judge may reconsider a decision made at a previous preliminary hearing. Id.

• April 1997. (Ph) It is within the sound discretion of the administrative law judge to determine the number of preliminary hearings to be held and whether a preliminary hearing should be modified based on the evidence presented. Sevilla v. Ismael Calderon and Century Roofing and Commercial Union Insurance Company and Kansas Workers Compensation Fund, Docket No. 211,139.

• November 1996. (Ph) There is no limit under K.S.A. 44-534a as to the number of preliminary hearings which can be taken before an ALJ. However, unlimited preliminary hearings revisiting the same issue based upon the same evidence would be inappropriate. There is no provision in the Workers Compensation Act allowing an ALJ to review and re-litigate his/her own decision in the absence of new evidence. Therefore, in the case at hand, it was appropriate for the ALJ to deny respondent's request to revisit issues already decided by a preliminary hearing until such time as a final award is entered or new evidence is presented before the ALJ. Anthony v. Sears Roebuck & Company and Kemper Insurance Companies, Docket No. 183,324.

10.33 Regular Hearings

10.33a Generally

10.33b Stipulations Entered Into at Regular Hearing

• August 1999. (Award) Stipulations of the parties entered into at the time of the regular hearing are binding upon the parties, absent permission from the administrative law judge to withdraw or amend those stipulations. Tapp, Jr. v. Ferrell Construction Company and Builders Association Self Insurers Fund, Docket No. 198,699.

• October 1998. (Remand - Award) [This case was originally remanded to the Board in an unpublished Court of Appeals decision; the Board issued an Order; the ALJ issued a subsequent Order in January 1998, which is the subject of this appeal]. The Appeals Board found claimant was entitled to the use of the unauthorized medical expense allowance for the purpose of examination, diagnosis or treatment associated with the injury. As those funds had not yet been utilized, the Board finds it appropriate that the payment of a $339.95 medical bill be ordered paid as unauthorized medical treatment. Chaplin v. USPCI, Inc and National Union Fire Insurance Co of New York, Docket No. 193,893.



• ----- Dissent, the Dissenting Board Member notes that the Appeals Board has held on numerous occasions that the parties are bound by their stipulations unless the administrative law judge allows a withdrawal of the stipulations. In this instance, the Dissenting Board Member finds that claimant is bound by the stipulation entered into at the regular hearing. The evidence regarding the additional medical expenses, neither raised nor offered at the time of the regular hearing, and claimant's entitlement to payments for those expenses were not properly before the ALJ at any time. There is no evidence that respondent was aware of the medical bills now in question. To grant claimant unauthorized medical payments under K.S.A. 44-510(c)(2) under these circumstances violates K.A.R. 51-3-8 and K.A.R. 51-3-5, which require claimant give notice of all medical expenses for which claimant seeks reimbursement and supply submission letters to the ALJ containing an itemization of all medical expenses at issue. Id.

10.34 Oral Arguments

• June 1997. (Award) Where claimant's counsel was adequately apprised of respondent's attorney's intention to personally appear before the Appeals Board at oral argument, the Appeals Board finds no unfair advantage was gained by respondent's attorney personally appearing at the oral argument and claimant's attorney appearing via telephone. Chavez, aka Gonzalez v. Hyplains Beef, L.C. and Wausau Insurance Companies, Docket No. 196,654.

10.35 Settlements

10.36 Generally

• July 1999. (Ph) Claimant signed a Form D -- settlement form -- which had the date of accident and description of accident left blank. Respondent later filled in these blanks and submitted the form to the Division of Workers Compensation. Claimant stated he believed the Form D was for the 8/19/94 accident but did not know it was a final release of liability when he signed it and therefore did not know his future benefits would be terminated. Respondent, on the other hand, filled in the date of accident for an October 1994 date of accident and described the accident as a different accident than that suffered by claimant. The Board found the Form D did not settle the claim for accidental injury on 8/19/94 since it stated a different date and description of accident than that which occurred. Further the Board found that even if parol evidence was considered to determine the intention of the parties, the Board could not, on the basis of the record presented, determine that the parties intended that the Form D apply to the 8/19/94 date of accident. Although respondent argues it applies, it offers no evidence beside the Form D document itself. Urbano v. Coleman Company, Inc and Continental Casualty Company, Docket No. 242,424.



• ----- Claimant failed to file a timely written claim within 200 days, but argues the Form D he signed is a claim for the accident. The Board, however, does not believe claimant can on the one hand argue the Form does not relate to the 8/19/94 date of accident, and, at the same time, contend the Form D constitutes written claim for the 8/19/94 date of accident. Id.



• July 1999. (Award) Where no evidence or allegation is presented that the settlement award was obtained by fraud, undue influence, serious misconduct or that is was made without authority, the Board determined there could be no mutual mistake of fact -- as was argued by respondent -- and upheld the settlement agreement, finding the amount agreed upon was not excessive. Prescott v. State of Kansas and State Self-Insurance Fund, Docket No. 230,434.



• May 1999. (Award). Issue: Does a settlement of a claim that alleges a specific accident date preclude a claim for a subsequent accident that occurred before the settlement hearing in the first claim, if that settlement was for all claims up to the date of the settlement? Held: No, because the second accident was never mentioned at the settlement hearing and K.S.A 44-531 requires an ALJ to approve a settlement only if it is determined to be in the best interests of the injured worker. The ALJ cannot do that if s/he is unaware of all the injuries alleged, ie., the medical reports in the case at hand dealt only with the first injury. Cockerham v. Nichols Fluid Service, Docket No. 201,867.



• January 1998. (Ph) Claimant suffered two work related injuries with respondent, one in 1995 and the other in 1997. At a settlement hearing, respondent described the settlement as a settlement of "all claims to date" and argues that claimant has settled claims for both the 1995 and 1997 injuries with respondent. However, this general language conflicts with the specific language of the settlement which refers only to the 1995 injury. The Board concludes that since the settlement refers only to the 1995 injury and the attached worksheet for the settlement refers only to the 1995 injury, then the settlement was only for the 1995 claim. The specific reference to one injury, one date of accident and one docket number controls. In spite of other general language, the settlement should not be construed to include the current 1997 claim. See Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 552 P.2d 917 (1976). Bernard v. R. Vickers Trucking, Inc. and Ulico Casualty Company, Docket No. 223,984.



• ----- A settlement agreement for one docketed claim does not settle a separately filed and docketed claim for a different accident merely by using general language indicating that the settlement is for all claims. If the parties intend to settle a claim which has been filed and docketed the agreement should expressly so state. Id.

• April 1997. (Award) Evidence placed into the record at a settlement hearing from a competent physician is required for purposes of a settlement per K.A.R. 51-3-9. Zimmer v. Central Kansas Medical Center and Reliance National Insurance Company and Workers Compensation Fund, Docket No. 186,009.

10.37 Lump Sum Settlements

10.37a Best Interests Hearing

• December 1997. (Award) According to K.S.A. 44-531(a) the administrative law judge should conduct a best interest hearing before approving a lump sum settlement. On this issue, the Supreme Court in Johnson v. General Motors Corporation, 199 Kan. 720, 433 P.2d 585 (1967), stated that some type of hearing on the matter is contemplated to determine if the lump sum settlement is in the better interest of the claimant. Chambers v. Berwind Railway Services Company and National Union Fire Insurance Company NY, Docket No. 212,478.



• ----- The legislature has established a clear public policy statement in K.S.A. 44-531(a) for protecting certain workers from abuses involved in the lump-sum settlement process. That statute precludes the approval of lump-sum settlements for two years "after an employee has returned to work in cases in which the employee, who would otherwise be entitled to compensation for work disability, is not entitled to work disability compensation because of being returned to work at a comparable wage by any employer." Id.



• ----- Had the claimant timely appealed the decision of the Special ALJ approving claimant's lump sum settlement to the Appeals Board, the Appeals Board would have had jurisdiction to determine whether the lump sum settlement was in fact in claimant's best interests as set forth in K.S.A. 44-531(a). Id.

10.37b Review & Modification of Lump Sum Settlements not Permitted

• February 1998. (Award) Claimant asserts the lump sum settlement agreement he entered into was based upon a mutual mistake of fact and asks the Appeals Board to set it aside. Both claimant and respondent believed that claimant had undergone surgery at L4-5 as recommended when in fact it was erroneously performed at L3-4. The Appeals Board notes that the mistake of fact in this instance was material as it relates to the nature and extent of claimant's disability. The Appeals Board, nevertheless, concludes that the settlement cannot be set aside based upon the language of K.S.A. 44-528. This statute specifically precludes review and modification of lump sum settlements approved by the Director or administrative law judge. Starr v. American Maplan Corporation and Travelers Insurance Company and Chubb & Son, Docket Nos. 178,856 & 225,368.



• See Also, Bowers v. Cardinal Building Services, Inc. and Insurance Company of North America, Docket No. 179,760 & 184,063 (January 1997).

• December 1997. (Award) Although K.S.A. 44-528 allows the administrative law judge to modify settlements for fraud and other just cause, the plain language of the statute specifically excludes lump sum settlements, approved by the Director or administrative law judge, from such review and modification. See Peterson v. Garvey Elevators, Inc., 252 Kan. 976, 850 P.2d 893 (1993). Chambers v. Berwind Railway Services Company and National Union Fire Insurance Company NY, Docket No. 212,478.

10.38 Penalties, Sanctions & Interest

• June 2000 (Order) The Board denied the claimant's request for post-award penalties for unpaid medical expenses because none of the requested expenses were awarded under the Workers Compensation Act. Rowena R. Goodwin vs. Southland Corporation d/b/a 7-Eleven Stores and American Protection Insurance, Docket No. 216,691.



• May 2000. (Award) When the parties stipulated to all elements of the case, except a defense not applicable on the date of the accident, no just cause existed for respondent not to pay benefits to the claimant. Consequently, the Board ordered the respondent to pay interest according to K.S.A. 44-512a. Jodell Glick vs. Mt. Carmel Medical Center and Phico Insurance Company, Docket No. 216,193.

• April 2000. (Order) Claimant sought post-award medical treatment and penalties for respondent's failure to pay medical expenses. The work related accident occurred on August 15, 1988. The award was entered on March 13, 1991, for an 8% partial permanent disability. During a sneezing episode in March 1995, claimant felt a pop in her lower back and numbness in her leg. Claimant received medical treatment for the pain and numbness. Claimant testified that she eventually returned to the same physical condition she was before the March 1991 incident. On December 8, 1995, claimant was involved in an automobile accident. The Board ordered respondent to pay unpaid medical expense and a 10% penalty to the claimant. The Board concluded that the March 1995 aggravation was compensable as a direct and natural consequence of the original August 15, 1988, work accident. An injury is not compensable where the worsening or new injury would have occurred even absent the primary injury or where an independent intervening cause produces it, such as the December 8, 1995, automobile accident. Patricia M. Henry vs. Shawnee County, Docket No. 131,761.

• March 2000. (Ph) ALJ appointed treating physician. A preliminary hearing order appointed the claimant's family physician as the authorized treating physician for all treatments, tests, and referrals, except referrals to rehabilitation hospitals. Respondent lacked the authority to withdraw and terminate the referring authority of the ALJ-appointed physician. The only recourse for the respondent to have the physician's referral disapproved was to petition the ALJ to either amend or clarify the order. Failure to pay the referred physician's charges subjected the respondent to penalties under K.S.A. 44-512a. Barnett v. Nationsbank, Docket No. 237,412.

• November 1999. (Ph) Claimant is not entitled to award of penalties under K.S.A. 44-512a based on late payment of medical expenses if the health care provider does not submit the bills in a form comparable to HCFA Form 1500 because fee schedule provisions adopted under K.S.A. 44-510 require HCFA Form 1500 or its equivalent and states that bills that do not comply with the schedule are void and unenforceable. Wright v. Lies Ready Mix & Paving, Docket No. 237, 557.

• August 1999. (Award) First request for penalties denied where issue of compensability remained on appeal with the Appeals Board. Second request for penalties also denied where claimant did not satisfy K.S.A. 44-512a and give respondent an itemization of expenses owed "with particularity." The information claimant sent respondent was illegible and incomplete. Norwood v. FF & P Partners d/b/a Taylor Food Mart and AIG Insurance Company, Docket No. 231,708.

• November 1998. (Award) A worker is not entitled to receive interest or penalties for the nonpayment of benefits that are deemed not payable during the pendency of an appeal to the Court of Appeals under K.S.A. 1997 Supp. 44-556(b). Landry v. Graphic Technology, Inc and ITT Hartford Insurance, Docket No. 216,166 [Affirmed by unpublished Court of Appeals opinion, Docket No. 80,087; Affirmed by Kansas Supreme Court opinion, Docket No. 80,087, January 28, 2000].



• See Also, Angela Wortham vs. Wal-Mart and Claims Management, Inc., Docket No. 213,499 (July 2000). The Board discusses the applicability of K.S.A. 44-512a and K.S.A. 1999 Supp. 44-556(b) to appeals to the Kansas Supreme Court.

• October 1998. (Award) An award of penalties is treated the same as a final award. See Waln v. Clarkson Constr. Co., 18 Kan. App.2d 729, 861 P.2d 1355 (1993). Rogers v. Service Trucking, Inc and Kansas Truckers Risk Management, Docket No. 228,803.



• ----- K.S.A. 44-512a requires, as a prerequisite to penalties, that claimant first serve by registered mail a written demand setting forth the specific items claimed to be past due. In the case at hand, claimant sent a letter dated January 1998, but the Board finds the ALJ was correct in concluding that letter was too general. It did not specify which medical bills were past due and it appears there was, in fact, no temporary total disability due at that time. The letter claimant sent in March of 1998 did satisfy the requirements of a demand letter. The letters claimant sent after March of 1998 all demanding payment of medical bills and mileage did not, however, satisfy the requirements of a demand letter as they were not sent by registered or certified mail. Id.

• January 2000. (Award) Where claimant terminates counsel before the claim is resolved, counsel is entitled to a fee based on quantum meruit but cannot enforce the contingency fee agreement. In this case, the record contained no evidence of the amount of time or other factors bearing on quantum meruit and accordingly the Board remanded the case for decision by the ALJ after providing an opportunity for additional evidence. Riggs v. The Boeing Company, Docket No. 223,954.

• December 1999. (Award) Where counsel employed on a contingency fee contract withdraws before the contingency occurs, counsel is entitled to attorney fees on a quantum meruit basis, not a fee based on a percentage of the recovery. Serrano v. Modern Air Conditioning Company, Docket No. 176,402 [Affirmed in part, reversed in part, and remanded with directions by unpublished Court of Appeals opinion, Docket No. 84,651, February 16, 2001].

• November 1999. (Ph) Claimant's counsel entitled to post award attorney fees even though respondent ultimately agreed to provide benefits where respondent did not agree until 20-day demand had been sent and matter had been set for preliminary hearing. In this case, hourly rate of $125 found to be reasonable. Also ALJ's decision to reduce hours reversed where the work resulted in benefits to the claimant and attorney services were not ministerial. Fye v. Landoll Corporation, Docket No. 227,904.

• September 1999. (Award) Attorney fees denied where claimant's action is barred by the principles of res judicata. Richards (Kelly) v. United Parcel Service and Liberty Mutual Insurance Company, Docket No. 205,054.

• August 1999. (Award) Although respondent argues that post-award attorney fees should be denied since they would constitute nothing more than an unjust enrichment, the Board found that under K.S.A. 44-536, post-award attorney fees would be proper. Haywood v. United Parcel Service and Liberty Mutual Insurance Company, Docket No. 214,870.



• The statutes regulating attorney fees under the Act were not enacted to benefit the attorney but rather, they were enacted to enable claimants to obtain competent counsel. See also, Hatfield v. Wal-Mart Stores, Inc, 14 Kan. App.2d 193, 786 P.2d 618 (1990). Id.

• Claimant's attorney's request for expenses to be awarded along with post-award attorney fees denied as K.S.A. 44-536 makes no provision for an award of post-award expenses. Id.

• May 1999. (Award) The Board found it would not be appropriate to charge respondent with the Fund's attorney fees in the case at hand, despite the fact that there was no Fund liability found, since pursuit of the claim by the respondent was reasonable under the circumstances. Springer v. Sunshine Biscuits, Inc and Kansas Workers Compensation Fund, Docket No. 208,346 [Affirmed by unpublished Court of Appeals opinion, Docket No. 83,415, May 26, 2000].

• March 1999. (Award) Claimant's counsel submitted an affidavit under cover of a letter to the ALJ, with a copy to respondent, requesting an award of $1900 for attorneys fees. Respondent at no time objected nor did it request a hearing. Therefore, the Board concluded that by failing to make an objection, respondent waived its right to a hearing. The Board also determined the ALJ's awarding of $1000 is appropriate. Harvey v. Hertzler Clinic, P.A. and Dodson Insurance Company, Docket No. 187,637.



• March 1999. (Award) The Workers Compensation Act provides that a worker's attorney may be entitled to receive fees from the employer and its insurance carrier for services rendered seeking additional medical treatment after the initial award. See K.S.A. 1998 Supp. 44-536(g); & Williams v. Koch Services, Docket No. 196,562 (October 1998), which held that the 1997 amendments to K.S.A. 44-536(g) were procedural. Stokes v. Waste Management of Wichita and CNA Insurance Company, Docket No. 213,595.



• ----- K.S.A. 44-536(g) is a procedural statute. Id.



• See Also, Brenda Lee Naff vs. Doval, Inc. and Lumbermen's Mutual Casualty Company, Docket No. 204,405 (June 2000); and Rome vs. Western Livestock Express and National American Insurance Company, Docket No. 170,650 (August 2000). The Board held attorney fees for recovery of additional compensation post-award are owed pursuant to K.S.A. 44-536(g) based on the attorney fee contract between the claimant and his attorney. .



• October 1998. (Award) In the case of attorney fees, it is the date of contract which controls which version of K.S.A. 44-536(g) is applicable. May v. University of Kansas, 25 Kan. App.2d 66, 957 P.2d 1117 (1998). Williams v. Koch Services and Planet Insurance Company and Workers Compensation Fund, Docket No. 196,562.

• ----- The Board finds the 1997 amendments to K.S.A. 44-536(g) to be remedial and can be retroactively applied. Id.

• ----- Although unsuccessful, the post-award attorney services in this case involved a claim for additional benefits. Those services were reasonable and necessary to prove the desired result. Therefore, the Board finds claimant's entitlement to attorney fees under either K.S.A. 44-536(g) or K.S.A. 1997 Supp. 44-536(g) to be appropriate. Id.



• September 1998. (R/M) K.S.A. 44-536(g) allows for claimant's attorney fees to be awarded where a respondent's motion to modify an award is denied. By the plain language of K.S.A. 44-536(g), that statute does not limit an award of attorney fees to any particular type of attorney service so long as it occurs subsequent to the ultimate disposition of the original claim. Attorney fees for review and modification are therefore proper. Daniels v. Americold Corporation and Travelers Property Casualty, Docket No. 189,238.



• August 1998. (Remand) Remand from Court of Appeals because attorney's lien did not attach to temporary total disability payments received before attorney fee contract was filed with the Division. The Board remanded it to the ALJ for a hearing to determine quantum meruit value of attorney's services. Garza v. Teeter Irrigation Company and CNA Insurance Companies and Kansas Workers Compensation Fund, Docket No. 179,344. [Reversed and remanded by unpublished Court of Appeals opinion, Docket No. 77,750].



• See also, Garcia v. Excel Corporation and Workers Compensation Fund, Docket Nos. 181,106; 183,478 & 186,639 (January 1997).



• May 1998. (Award) Claimant is not entitled to reasonable attorney fees under K.S.A. 44-536(g) where the Appeals Board has previously addressed the same issue claimant currently raises in his appeal. Byers v. Morton Buildings, Inc. and Insurance Company of North America and Kansas Workers Compensation Fund, Docket No.173,408. [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,537].



• But See, Dissent, the dissenting Board Members would award claimant reasonable attorney fees under K.S.A. 44-536(g) where although the Appeals board has previously decided the legal issue that prompted this appeal, the appellate courts have not. Id.



• April 1998. (P/A) An order for payment of attorney's fees pursuant to K.S.A. 44-536(g) is considered a final award. Therefore, the Appeals Board would have jurisdiction to review the portion of a post-award preliminary hearing order relating to attorney fees. Wilson v. Board of Public Utilities and Workers Compensation Fund, Docket No. 190,233.



• See Also, Shirley v. Vulcan Materials Company, Docket No. 165,635 (September 1995).



• January 1998. (Award) Attorney fees should be awarded despite the fact that an additional award of compensation is not rendered in a review an modification proceeding. See K.S.A. 44-534(g). Wolf v. Evcon Industries, Inc. and St. Paul Fire & Marine Insurance Company, Docket Nos. 155,949 & 155,950.



• ----- Where claimant's request for review and modification was not without merit or frivolous, the Administrative Law Judge's decision to award claimant's attorney zero dollars in attorney fees is reversed. Id.



• September 1997 (P/A) K.S.A. 44-536(g), in effect prior to July 1, 1997, requires that in post-award litigation attorney fees shall be awarded by the Director on the basis of reasonable and customary charges. However, it is the burden of the party requesting the benefit to prove the entitlement to the benefit and the amount of such benefit. While attorney fees were at issue before the Administrative Law Judge, there is no evidence to indicate the amount of attorney fees requested or the amount of time involved in the litigation . As such, the denial by the Administrative Law Judge of the attorney fees would be appropriate as no evidentiary basis was provided in the record upon which to base an attorney fee award. Debaeza v. Super 8 Motel and Allied Mutual Insurance Company, Docket No. 183,947.



• September 1997 (Order) The statutes regulating attorney fees under the Workers Compensation Act were not enacted for the benefit of the attorney; rather, they were enacted to enable claimants to obtain competent counsel. They are part of a statutory scheme intended primarily to benefit injured workers by securing prompt payment of the benefits provided by the Act. See Hatfield v. Wal-Mart Stores, Inc., 14 Kan. App.2d 193, 786 P.2d 618 (1990). Arredondo, Sr. v. National Beef Packing Company and Wausau Insurance Companies, Docket No. 195,169.



• September 1997. (Order) Disputes regarding attorney fees are addressed in K.S.A. 44-536(h). Special administrative law judges have authority to approve or disapprove expenses incurred during litigation as a part of the process of reviewing and approving attorney fees. See Madison v. Goodyear Tire & Rubber Co., 8 Kan. App.2d 575, 663 P.2d 663 (1983). Arredondo, Jr. v. National Beef Packing Company and Wausau Insurance Companies, Docket Nos. 193,986; 196,210 & 196,451.

• ----- Special Administrative Law Judges have authority to deny attorney reimbursement of fees. Id.



• June 1997. (P/A) Claimant's attorney spent 21.25 hours in connection with his attempts to obtain post-award medical treatment for claimant. The Appeals Board found claimant's counsel's hourly rate of $125 to be reasonable and customary in the locality per K.S.A. 44-536(g). Therefore, the Appeals Board raises counsel's award to $2,656.25, up from the $200 originally awarded counsel by the Administrative Law Judge. Fife v. Boeing Company and Aetna Casualty & Surety Company and Kansas Workers Compensation Fund, Docket No. 162,556.

• ----- The Appeals Board does not interpret either K.S.A. 44-536 or K.S.A. 1996 Supp. 44-555c to limit appeals from orders by an administrative law judge concerning post-award attorney fees. Id.

• June 1997. (P/A) K.S.A. 44-536 is the controlling statute when dealing with workers compensation attorney fee disputes. Pore v. Aero Sheet Metal, Inc. and Liberty Mutual Insurance Company and Workers Compensation Fund, Docket No. 140,311



• ----- K.S.A. 44-536(h) grants the administrative law judge jurisdiction over any and all disputes regarding attorney fees in workers compensation matters. Id.

• ----- K.S.A. 44-536(b) require that all contracts between the attorney and the employee be in writing and filed with the Director. Id.



• ----- The Appeals Board finds the appropriate jurisdiction for the resolution of an attorney's fee dispute, which has absolutely no bearing on the prior workers compensation litigation, to be in the district courts. Id.

• See Also, Heidi Trummel v. Cessna Aircraft Company and Pacific Employers Ins. Co. and Workers Compensation Fund, Docket No. 162,223 (June 1997); Gibson v. Harper Trucks and Harper Trucks, Inc., Docket No. 191,814 (June 1997).

• April 1997. (Award) The Appeals Board is reluctant to make a determination regarding the appropriateness of attorney fees without affording the parties an opportunity to have a hearing and to present any evidence they may wish to present on the issues relating to attorney fees. Therefore, the aspect of the claim regarding attorney fees is remanded to the Administrative Law Judge to make a decision after affording the parties an opportunity for hearing and presentation of the evidence. Lundry v. The Boeing Company and Aetna Casualty & Surety and Kansas Workers Compensation Fund, Docket No. 166,389.

• See Also, Whisler v. The Boeing Company and Aetna Casualty and Surety and the Kansas Workers Compensation Fund, Docket No. 152,107 (April 1997).

• April 1997. (Award) Attorney fees not assessed against respondent despite respondent's failure to prove fund liability, where the Appeals Board finds that under the facts and circumstances of the case it was appropriate to implead the Fund and litigate any Fund liability. Knox v. National Beef Packing Company and Lumbermen's Underwriting Alliance and Kansas Workers Compensation Fund, Docket No. 195,883.



• March 1997. (Order) An attorney representing a claimant in a post award matter is entitled to reasonable attorney fees and expenses in certain circumstances not otherwise connected with an application for review and modification or a hearing for additional medical benefits. However, where the record does not contain evidence that the services performed by a claimant's attorney were necessary to insure the respondent paid medical bills submitted and were not necessary to insure the respondent complied with the order the of Administrative Law Judge or were otherwise required as a part of the attorney's representation of the claimant, the Board finds claimant's request for attorney fees should be denied. May v. The University of Kansas and State Self-Insurance Fund, Docket No. 135,577. [Affirmed by Court of Appeals in 25 Kan. App.2d 66].

• January 1997. (Award) The Workers Compensation Act specifically provides in K.S.A. 44-536(a) that the attorney's claim for services shall be based upon a percentage of the total compensation recovered "in addition to actual expenses incurred." However, the Model Rule of Professional Conduct 1.5(d) adopted in Supreme Court Rule 226, makes general provisions for the regulation of contingency fee contacts and calls for the deduction of expenses prior to the application of the contingency fee percentage to the amount recovered. The general rule of statutory construction whereby the specific statute takes precedence over the general should be applied. Therefore, the Appeals Board finds the specific language of the statute in the Workers Compensation Act takes precedence over the general language of the Supreme Court Rule. The Administrative Law Judge's Order is reversed to the extent it requires expenses to be deducted before the attorney fee is calculated. Garcia v. Excel Corporation and Workers Compensation Fund, Docket Nos. 181,106; 183,478 & 186,639.



• January 1997. (Award) Neither the Administrative Law Judge nor the Appeals Board can approve an attorney fee in excess of the statutory limits found in K.S.A. 44-536. Glenn v. Kinko's and CNA Insurance Company and Kansas Workers Compensation Fund, Docket No. 193,097.

• January 1997. (P/A) Claimant's entitlement to attorney fees in this post-award matter is governed by K.S.A. 44-536(g). The Fund contends the Special Administrative Law Judge did not have the authority to assess the attorney fees against it. The Appeals Board, however, finds that the Special Administrative Law Judge did properly assess attorney fees against the Fund. The Appeals Board also finds that penalty proceedings initiated to collect those benefits that are due and payable during the pendency of an appeal is a proceeding that falls within the definition of K.S.A. 44-536(g) as being subsequent to the ultimate disposition of the initial claim. Notwithstanding the possibility that the initial award may be later modified as a result of the appeal, K.S.A. 44-551(b) and K.S.A. 44-556(b) specifically provide that certain benefits are payable during appeal to both the Appeals Board and appellate courts. The parties cannot stay those payments. The Appeals Board further finds that a proceeding for penalties under K.S.A. 44-512a is a proceeding that falls within the broad scope and application of K.S.A. 44-536(g) as a proceeding brought "otherwise". See K.S.A. 44-536(g). Simmons v. Sim Park Golf Course and Northwestern National Casualty and Workers Compensation Fund, Docket No. 186,887. [Affirmed by unpublished Court of Appeals opinion, Docket No. 76,620].

• See Also, Byers v. Morton Buildings, Inc. and Insurance Company of North America and Kansas Workers Compensation Fund, Docket No.173,408 (May 1998). [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,537].
• December 1993. (Award) Attorney fees for efforts in proceedings to review and modify are to be ordinary and customary or 25% increase of the award. Pfannenstiel v. Dodge House Restaurant and Kansas Workers Compensation Fund, Docket No. 140,795.

10.40 Statute of Limitations

10.40a Generally,

10.40b Tolling of, (ie. K.S.A. 44-509 -- incapacitation or incompetency of claimant)

• August 1999. (Award) K.S.A. 44-534(b) requires an application for hearing be filed with the Director's office within three years of the date of accident or two years from the date of last payment of compensation, whichever is later. However, K.S.A. 44-509 provides that if the claimant is incapacitated, the time limits under the Act do not run until a guardian or conservator is appointed. Claimant argues that although he did not make a timely application for hearing, his incapacity tolled the time for making the application for hearing. The Board, however, found that claimant was not incapacitated for purposes of prosecuting his workers compensation claim and the time limits should not be treated as tolled. The Board based this conclusion on two factors: 1) claimant demonstrated that he was capable of managing the ordinary affairs of day-to-day living by his continuing to hold a job and perform the duties of that job from the date of accident until his termination; and 2), claimant's testimony at his deposition and regular hearing reflected a capacity to remember and present evidence sufficient to prosecute the claim. Therefore, the Board finds claimant did not render a timely application for hearing. Kincade v. Cargill, Inc., Docket No. 210,398 [Affirmed by unpublished Court of Appeals opinion, Docket No. 83,908, June 16, 2000; Motion to Publish granted July 13, 2000].



• But See Dissent, the Dissenting Board Members would not address the issue concerning timely application for hearing, as the parties stipulated to a set of issues which did not include the timeliness of the application for hearing. Id.

• July 1995. (Award) Statute of limitations in workers compensation proceedings tolled due to claimant's incapacity / incompetency. In so doing, the Board made a finding that K.S.A. 44-509 was applicable to the case at hand and that "claimant was incapacitated within the meaning of that statute during the period in question." The Board noted that although claimant attempted to obtain counsel after suffering the injuries, he was still unable to effectively communicate or take reasonable action to pursue his claim and was only able to function at a marginal level; therefore, the Board made a finding that claimant was in fact incapacitated. Further, the Board rejected respondent's argument that one must be incapacitated on the date of accident before incapacity will stop the running of time. Hynson v. Farmland Industries, Inc, Docket No. 125,712.

• October 1994. (Award) Respondent argued that K.S.A. 60-515(a) applied to K.S.A. 44-509, which generally provides that no limitation of time shall run for an incapacitated person or minor under the Kansas Workers Compensation Act. The Appeals Board, however, rejected this argument as K.S.A. 60-515(a) does not classify a person in prison as an incapacitated person -- if the Legislature had intended incapacitated person to mean a person in prison, then the Legislature would have provided this specification in the statute. Mitts v. White Star Machinery and ITT Hartford, Docket No. 189,398.

10.41 Res Judicata

• September 1999. (Award) Principles of res judicata are available in workers compensation proceedings. See, ex., Neunzig v. Seaman U.S.D. No. 345, 239 Kan. 654 (1986). In order for res judicata to apply to litigation, there must be: (1) a judgment on the merits in the earlier action, (2) identity of parties or privies in two suits, and (3) identity of cause of action in both suits. In the case at hand, the Board finds the claimant is merely trying to re-litigate claimant's entitlement to a permanent award and future medical treatment; such an attempt is inappropriate. Richards (Kelly) v. United Parcel Service and Liberty Mutual Insurance Company, Docket No. 205,054.

• February 1999 (Ph) The defenses of res judicata and collateral estoppel are not defenses which go to the compensability of the claim. Therefore, the issue of whether respondent has proven either of those affirmative defenses is not a preliminary hearing issue that the Board may review at this juncture of the proceeding under K.S.A. 1998 Supp. 44-534a. Therefore, respondent cannot use the defenses of collateral estoppel and res judicata to argue that the ALJ should not have conducted a second preliminary hearing over what respondent deems to be the same issues. Perrill v. Wesley Medical Center and Galen of Kansas, Inc., Docket No. 233,702.



• May 1997. (Ph) In her Application for Review, claimant asks the Board to decide whether an original finding by the Administrative Law Judge and Appeals Board was correct. The Appeals Board finds the principles of res judicata apply to the issue at hand, as Review and Modification is not available to reexamine a finding of past fact. See Garrison v., Beech Aircraft Corp., 23 Kan. App.2d 221, 929 P.2d 788 (1996); and Randall v. Pepsi-Cola Bottling Co., Inc., 212 Kan. 392, 510 P.2d 1190 (1973). Wilk v. Toomey, Russel, Gregory & Pilgren and Farm Bureau Mutual Insurance Company and Kansas Workers Compensation Fund, Docket No. 190,312.

10.42 Bankruptcy Proceedings

• February 1998. (Ph) Automatic Stay provisions of the Bankruptcy Code held not to apply to workers compensation proceedings. See In re Mansfield Tire and Rubber Co, 660 F.2d 1108 (1981). Bishop v. Terry Lamb Pro Tree Service and Unknown and Kansas Workers Compensation Fund, Docket No. 225,386.

10.43 Termination of Proceedings

• January 1997. (Award) According to Director's Rule 51-3-1, there are only four ways to terminate a compensable workers compensation claim: (1) by filing a settlement agreement, final receipt, and release liability as provided by K.S.A. 44-527; (2) by hearing and written award; (3) by joint petition and stipulation subject to 51-3-16; or (4) by settlement hearing before an Administrative Law Judge. Bowers v. Cardinal Building Services, Inc. and Insurance Company of North America, Docket No. 179,760 & 184,063.

10.44 Applicability of the Code of Civil Procedure to the Kansas Workers Compensation Act

• July 1997. (Award) Applicability of the Code of Civil Procedure to the Kansas Workers Compensation Act discussed. See Jones v. Continental Can Co., 260 Kan. 547, Syl. ¶ 3, 920 P.2d 939 (1996), in which the Kansas Supreme Court recently reiterated the longstanding rule that the Workers Compensation Act is complete unto itself and the Code of Civil Procedure is not applicable thereto. Rodriguez v. IBP, Inc., Docket No. 169,337.

• See Also, Potter v. K-Mart Corporation, Docket No. 125,604 (July 1997); Scruggs v. Overland Park Regional Medical Center and Galen of Kansas, Inc. / Alexsis, Docket No. 225,060 (December 1997).



• But See, August 1997. (Remand) In McIntyre v. A.L. Abercrombie Inc., 23 Kan. App.2d 204, 929 P.2d 1386 (1996), the Court of Appeals, citing K.S.A. 44-551 and K.A.R. 51-18-2, found K.S.A. 60-206(a) is not limited to civil actions but also applies to any statutorily prescribed period of time where "the method for computing such time is not otherwise specifically provided." Thus, the court found the method of computing a ten-day period under K.S.A. 60-206(a) applies to the computation of the time period allowed under K.S.A. 44-551 for appeals from the administrative law judge to the Board, because the method for computing such time was "not otherwise specifically provided." See Discussion in, McIntyre v. A.L. Abercrombie Inc. and Fireman's Fund Insurance Company, Docket No. 183,293.

10.45 Promissory Estoppel

• June 1998. (Award) The decedent suffered a heart attack at work and died. Claimant, decedent's spouse, claims respondent advised her that decedent's death was not work related. Therefore, claimant did not file a written claim for compensation within the time limits set forth in K.S.A. 44-520a. However, claimant did file a malpractice action against respondent's physician assistants. The Court of Appeals in that case, Scott v. Wolf Creek Nuclear Operating Corp., 23 Kan. App. 2d 156, 928 P.2d 109 (1996), determined that claimant's claim could only be pursued as a workers compensation claim and recognized, for the first time, a workers compensation claim based on loss of chance of survival due to negligence by the employer. Additionally, the Court of Appeals, in dicta, appears to have said that the doctrine of promissory estoppel does apply to workers compensation cases. [This is so even though the Court of Appeals also ruled that the equitable doctrine of laches cannot be used in a workers compensation proceedings. Burnside v. Cessna Aircraft Co., 24 Kan. App.2d 684, 951 P.2d 1315 (1998)]. In the case at hand, promissory estoppel will not prevent the employer from relying on the timely written claim defense unless: (1) the employer acted in bad faith when it told claimant the injury was not a compensable workers compensation injury; or (2), the employer affirmatively induced claimant not to make written claim. The Board finds neither of these conditions occurred; therefore, the application of promissory estoppel is an inappropriate remedy. Additionally, once claimant spoke to an attorney regarding the malpractice civil action, workers compensation liability should have been explained to claimant as the two are necessarily interrelated. Therefore, the Board agrees with the ALJ that claimant's reliance on respondent's representations regarding the workers compensation matter became unreasonable at the point she had counsel for the potential malpractice action. Therefore, promissory estoppel would also be inappropriate. Scott, Deceased v. Wolf Creek Nuclear Operating Corporation, Docket No. 201,929 [Reversed and remanded by unpublished Court of Appeals opinion, Docket No. 81,605, March 3, 2000].



• ----- The legislature has addressed the circumstances presented in this appeal in K.S.A. 44-520a(b). That statute tolls the time limits for written claim in cases where the liability action actually is filed within 200 days from the date of accident. Id.

• See Also, Concurring Opinion. The concurring opinion does not believe the issue of whether the doctrine of promissory estoppel applies to workers compensation claims was addressed in Scott. With Burnside being good law, it would stand for reason that equitable estoppel should be unavailable in workers compensation claims as is the doctrine of laches. The dicta in Scott need not be followed. See Kissick v. Salina Manufacturing Co. Inc., 204 Kan. 849, 466 P.2d 344 (1970). Id.

10.46 Stipulations

• January 2000. (Award) Board affirmed ALJ's decision to allow Fund to withdraw stipulation where stipulation was inconsistent with the evidence and ALJ subsequently allowed respondent to submit additional evidence. Munsch v. Dillon Companies, Docket No. 203,713.

• April 1999. (Award) Respondent's request to withdraw a stipulation regarding whether claimant's injuries arose out of and within the course of employment was granted by the Board, where the request was made before evidence was taken and claimant was in no way prejudiced by the withdrawal. Hopper v. Dillon Companies, Inc, Docket Nos. 201,516 & 219,693.