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§ 11.01 Generally

• June 2000 (Order) Where the Fund is named as a party under K.S.A. 44-532a, the Fund cannot implead a potential statutory employer during the workers compensation proceedings. The Fund's remedy against a statutory employer is in District Court. Chad Powell vs. Jameson Trucking Company, Inc. and Longhorn Produce, Inc. and Unknown Insurance Carrier and Kansas Workers Compensation Fund, Docket No. 244,711.

• January 1999. (Award) Liability for claimant's 1992 back injury assessed 100% against the Fund where medical evidence indicates claimant's 1992 work-related injury would not have occurred but for claimant's preexisting conditions. De La Paz v. Erman Corporation and National Union Fire insurance Company and Insurance Company of North American and Home Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 133,539; 154,373; and 172,398.



• See also, Kangas v. Kansas Christian Home, Inc and Wausau Underwriters Insurance Company and Kansas Workers Compensation Fund, Docket No. 205,230 (June 1999), regarding 100% fund liability for claimant's shoulder injury; Rando v. Texaco Refining & Marketing and Cigna and Kansas Workers Compensation Fund, Docket No. 187,546 (July 1999); and Emilie M. Moussa vs. St. Francis Hospital and Medical Center and Aetna Casualty & Surety Company and Kansas Workers Compensation Fund, Docket Nos. 175,837 & 180,891 (August 1998). [Affirmed by unpublished Court of Appeals opinion, Docket Number 82,028, January 21, 2000.]

• 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.

• September 1998. (Award) The Appeals Board concludes, but for different reasons, the Administrative Law Judge's Award that denied respondent's request for Fund liability in both docket numbers should be affirmed. The Appeals Board finds respondent settled both of these docketed claims for one date of accident, i.e., a series ending October 21, 1994. The Fund has the right to assert this accident date as a defense in the proceedings brought by respondent against the Fund for reimbursement. After the legislature amended K.S.A. 44-566a(e)(1) and K.S.A. 44-567 to eliminate Fund liability for injuries to handicapped employees effective July 1, 1994, the claimant's date of accident became a critical issue in proceedings between the respondent and the Fund for reimbursement. Further, since there is no evidence that respondent made the date of accident stipulation improvidently or mistakenly, then the respondent should not be relieved from the stipulation. See Morrison v. Hurst Drilling Co, 212 Kan. 706, 512 P.2d 438 (1973). Accordingly, Fund liability is denied and the respondent is responsible for all workers compensation benefits paid to the claimant in both docketed claims. Blue v. Concrete Materials, Inc and Wausau Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 196,163 & 196,164.



• April 1998. (Award) For pre-July 1, 1994 injuries, the Board established two separate dates of accident. The Board found fund liability for the latter injury. On appeal, the Court of Appeals in an unpublished opinion Docket Number 81,230, March 17, 2000, affirmed the Board's decision but did not adopt its rationale. Bridget C. Cozad vs. The Boeing Co.- Wichita and Aetna Casualty & Surety and Kansas Workers Compensation Fund, Docket No. 169,966.



• March 1998 (Order) The act does not provide for penalties against the Fund. Fought v. Carrol Ball Transport, Inc and Kansas Workers Compensation Fund, Docket No. 192,403.

• February 1998. (Award) The purpose of the Fund is to encourage the employment of persons handicapped as a result of mental or physical impairments by relieving employers, wholly or partially, from workers compensation liability resulting from compensable accidents suffered by these employees. See Morgan v. Inter-Collegiate Press, 4 Kan. App.2d 319, 606 P.2d 479 (1980); and Blevins v. Buildex, Inc., 219 Kan. 485, 548 P.2d 765 (1976). Oshel v. Dazey Corporation and Insurance Company of North America and Kansas Workers Compensation Fund, Docket No. 174,264 [Affirmed by unpublished Kansas Court of Appeals Opinion, Docket No. 80,867].



• ----- Whole and partial liability of employer who hires handicapped employee discussed. Id.



• April 1997. (Remand). Claimant suffered three separate mechanisms of injury. Because both upper extremities were simultaneously aggravated, these separate events were treated as one accident and as one injury to the body as a whole. See Murphy v. IBP, 240 Kan. 141, 727 P.2d 468 (1986). The Board then determined that where the injury is deemed to be a general body disability, and therefore "one" injury, K.S.A. 44-567 is not applicable and the Fund has no liability for the award. Diaz v. Beech Aircraft Corporation and Kansas Workers Compensation Fund, Docket No. 169,533. (Reversing Appeals Board's Order of March 31, 1995, insofar far as it apportions liability for the award against the Kansas Workers Compensation Fund). [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,064].

• ----- There can be Fund liability in repetitive trauma cases. Id.

• See Also, Walls v. Rubbermaid, Inc., Docket No. 184,221 (October 1996).

• April 1997. (Award) When attempting to pass liability on to the Kansas Workers Compensation Fund, the employer has the burden of proving all of the elements necessary to establish fund liability. See Box v. Cessna Aircraft Co., 236 Kan. 237, 689 P.2d 871 (1984). Ramsey v. Mitchell County and Travelers Insurance Company and Kansas Workers Compensation Fund, Docket No. 165,535 & 165,536.



• March 1997. (Award) Where it is determined that claimant suffered simultaneous aggravation to both upper extremities and thus one accident, there can be no Fund liability. The Fund's liability under K.S.A. 44-567 is based upon the occurrence of an injury after knowledge of preexisting impairment which constitutes a handicap. There must be an initial handicap followed by separate injury. Fund liability does not, for that reason, fit the circumstances presented here. Heminger v. The Boeing Co-Wichita and Aetna Casualty & Surety and Workers Compensation Fund, Docket Nos. 172,884 & 186,604.

• November 1995. (Award) The purpose of the Kansas Workers Compensation Fund is to encourage employment of persons handicapped as a result of specific impairments by relieving employers, wholly or partially, of workers compensation liability resulting from compensable accidents suffered by these employees. K.S.A. 44-567(e); Blevins v. Buildex, Inc, 219 Kan. 485, 548 P.2d 765 (1976). Bohanan v. USD 260 and KS Assoc of School Boards and Workers Compensation Fund, Docket No. 190,281 [Affirmed by Court of Appeals, 24 Kan. App.2d 362].

• ----- The employer has the burden of proving that it knowingly hired or retained a handicapped employee. Box v. Cessna Aircraft Co, 236 Kan. 237, 689 P.2d 871 (1984). Id.

• December 1993. (Award) The purpose of the workers compensation fund is to encourage employment of handicapped persons by relieving employer wholly or partially of liability resulting from compensable accidents. Pfannenstiel v. Keebler Company and Kansas Workers Compensation Fund, Docket No. 167,515.

11.02 Liability Defined

• September 1998. (Award) The statutory provisions regarding Fund liability are to be liberally construed to carry out the legislative intent of encouraging employment of handicapped employees. Morgan v. Inter-Collegiate Press, 4 Kan. App.2d 319, 606 P.2d 479 (1980). 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.]



• ----- 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 of 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. Id.



• February 1998. (Award) A specific requirement of K.S.A. 1989 Supp. 44-567 is that a claimant who is found to be handicapped in his or her ability to obtain or retain employment must suffer a subsequent compensable work-related injury. Without such a finding, no liability can be assessed against the Fund. Harris v. W.H. Braum, Inc. and National American Insurance Company and Kansas Workers Compensation Fund, Docket No. 159,606.

• See Also, Wampler v. The Boeing Co.- Wichita and Aetna Casualty & Surety and American Manufacturers Mutual Insurance Company and Workers Compensation Fund, Docket Nos. 179,834 & 192,445 (March 1997).

• February 1998. (Award) Although claimant's preexisting condition did not cause or contribute to his de Quervain's disease, the preexisting condition did, nevertheless, contribute 50 percent to claimant's resulting disability. Accordingly, the Appeals Board finds the respondent has met its burden of proving Fund liability. Oshel v. Dazey Corporation and Insurance Company of North America and Kansas Workers Compensation Fund, Docket No. 174,264 [Affirmed by unpublished Kansas Court of Appeals Opinion, Docket No. 80,867].



• January 1998. (Award) Where the Appeals Board finds that "but for" claimant's preexisting handicap she would not have suffered the work-related injuries with respondent, the Award by the Administrative Law Judge assessing 100 percent of the liability for this injury to the Workers Compensation Fund is appropriate and should be affirmed. Woods v. Air Technologies, Inc. and Travelers Insurance company and Gulf Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 176,253 & 176,254.



• ----- Liability will be assessed against the Workers Compensation Fund when an employer shows that it knowingly hired or retained a handicapped employee who subsequently suffered a compensable work-related injury. An employee is handicapped under the Act if the employee is afflicted with an impairment of such character as to constitute a handicap in obtaining or retaining employment. See Carter v. Kansas Gas & Electric Co., 5 Kan. App. 2d 602, 621 P.2d 448 (1980). Id.

• ----- The determination as to whether a handicap exits and whether the employer has knowledge of it is a question of fact that must be made on a case-by-case basis. See Ramirez v. Rockwell, Int'l, 10 Kan. App. 2d 403, 701 P.2d 336 (1985). Id.

• ----- The employer has the burden of proving it knowingly hired or retained a handicapped employee. See Box v. Cessna Aircraft Co., 236 Kan. 237, 689 P.2d 871 (1984). Id.



• See Also, Harris v. W.H. Braum, Inc. and National American Insurance Company and Kansas Workers Compensation Fund, Docket No. 159,606 (February 1998); Whitson v. Taco Grande and Wausau Underwriters and Kansas Workers Compensation Fund, Docket No. 183,316.

• October 1997. (Award) Claimant, a 66 year old sewing machine operator, suffered a work-related back injury by lifting a bundle of 100 aprons from a cart to a work table in 1994. The respondent argued claimant was a "handicapped person" as defined by K.S.A. 44-567. As evidence for this proposition, respondent points to claimant's 1978 work-related back injury suffered while working for a different employer. However claimant testified that she received medical treatment for the injury, did not have any restrictions placed on her, and returned to work asymptomatic. Claimant also testified she felt she did not have a bad back before her 1994 injury. In addition, one of claimant's physicians testified that claimant did have some degenerative conditions in her back but those changes were attributed to her old age and did not contribute to her resulting back strain. The Appeals Board, therefore, found that claimant was not a "handicapped" employee before the 1994 injury. Additionally, her single back injury in 1978 did not necessarily affect her work ability or employment possibilities nor could it be assumed to have recurring effects. See Carter v. Kansas Gas & Electric Co., 5 Kan. App.2d 602, 607, 621 P.2d 448 (1980). Williams v. W.I.S.B. and Cigna Property & Casualty Company and Kansas Workers Compensation Fund, Docket No. 193,296.



• August 1997. (Award) Under K.S.A. 44-567, Fund liability is predicated upon a preexisting impairment resulting in or contributing to a second injury or disability. Because claimant did not have an impairment to her arms before she began working for respondent in October 1992 or even before the stipulated period or accident, which began in October 1993, and further, because the evidence establishes that claimant's injuries resulting in micro traumas occurring over a period of time should be treated as one accident, the Appeals Board finds there is no Fund liability in this proceeding. Without a preexisting impairment, there is no Fund liability. Munsell-Wolf v. First Choice Support Services and Continental Loss Adjusting Services, Inc. and Workers Compensation Fund, Docket No. 189,400.

• July 1997. (Award) Two factors are required to assess liability to the Workers Compensation Fund: (1) the respondent and its insurance carrier must prove the respondent either hired or retained claimant in its employment with knowledge claimant had an impairment which constituted a handicap; and (2), respondent and its insurance carrier must prove the resulting injury or disability either "would not have occurred but for the preexisting physical or mental impairment" or the resulting disability "was contributed to by the preexisting impairment." See K.S.A. 44-567(a)(1), (2). Dry v. The Boeing Company and Aetna Casualty & Surety Company and Workers Compensation Fund, Docket No. 180,347.

• June 1997. (Award) In order to establish Fund liability, the respondent and its insurance carrier must prove it either hired or retained claimant in its employ despite its knowledge claimant had an impairment which constituted a handicap. Also, the respondent and insurance carrier must prove the preexisting impairment either caused or contributed to a subsequent work-related injury or disability. See K.S.A. 44-567a. Charbonneau v. The Boeing Company and Aetna Casualty & Surety Company and Workers Compensation Fund, Docket No. 183,426.

• See Also, Martinez v. Monfort, Inc. and City Insurance Company and Kansas Workers Compensation Fund, Docket No. 145,421 (May 1997).



• June 1997. (Award) Holding in Shain v. Boeing Military Airplanes, 22 Kan. App.2d 913, 924 P.2d 1280 (1996), discussed. The Kansas Workers Compensation Fund has no liability under K.S.A. 44-567(a)(1) or (2) for accidents arising on or after July 1, 1994. Garcia v. National Beef Packing Company and Wausau Underwriters Insurance Co. and Lumbermen's Underwriting Alliance and Kansas Workers Compensation Fund, Docket No. 201,067. [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,459].



• See Also, Maberry v. Rubbermaid Specialty Products and American Manufacturers Mutual Ins. and Kansas Workers Compensation Fund, Docket No. 186,053 (October 1997); Walker v. General Motors Corporation and Kansas Workers Compensation Fund, Docket Nos. 196,172 & 196,173 (October 1997); Johnson v. Salem Hospital, Inc and Liberty Mutual Insurance Company and Kansas Workers Compensation Fund, Docket No. 203,646 (August 1998) [Dismissed by unpublished Court of Appeals opinion, Docket No. 82,030, December 23, 1999.]; Blue v. Concrete Materials, Inc and Wausau Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 196,163 & 196,164 (September 1998); Jones v. The Boeing Company - Wichita, Docket No. 196,447 (1996).



• November 1996. (Award) K.S.A. 44-567(a)(2) directs the fact finder to determine the amount of preexisting disability an employee has and proportion the cost of the award which is attributable to the employee's preexisting disability. In the case at hand, the Fund is found liable for 50% of the preexisting disability. Pixler v. PKM Steel Services, Inc and Commercial Union Insurance Co and Workers Compensation Fund, Docket No. 189,936.



• November 1995. (Award) The Appeals Board found claimant's right shoulder condition to be the direct and natural result of claimant's previous right wrist injury, as it developed as a result of the immobilization of the right arm. Although the right shoulder injury is compensable as a natural consequence of the right wrist injury, it does not constitute a subsequent work-related injury; therefore, the Workers Compensation Fund bears no responsibility for benefits payable for this proceeding. The Fund should only be assessed liability when an employee sustains a subsequent work-related accident. Because these conditions to claimant's shoulder would have occurred regardless of whether respondent retained the employee in its employ, the Fund is not responsible for the natural and probable consequences or progression of an earlier injury. Latta v. Continental Airlines Corp and National Union Fire Ins. Co. and Workers Compensation Fund, Docket No. 189,201.



• April 1994. (Award) Board reviewed evidence and found Fund not liable where only evidence of Fund liability was in deposition not introduced into the record. McNeeme v. Hyplains Dressed Beef, Inc., Docket No. 155,767.



• April 1994. (Award) Appeals Board found Fund not liable for any portion of award where one physician testified claimant's preexisting dorsal spine injury did not cause or contribute to later lumbar spine injury and the only physician who testified that one did cause the other did not examine claimant after second injury. Lee v. Boeing Military Airplanes, Docket No. 157,744.



• February 1994. (Award) Evidence examined and found to support assessment of 50% of award against Fund where evidence established that claimant's's anorexia was a pre-existing handicap and although it could not be established that injury would not have occurred but for, evidence also indicated that 50% of final disability was attributable to pre-existing handicap. Durr v. George Leonard, M.D., Docket NO. 152,109.



• December 1993. (Award) Record is examined and evidence determined to establish that claimant's injury would not have occurred "but for" preexisting injury and the Fund is found liable for 100% of the award in this case. Peterson v. Tony's Pizza Service and Kansas Workers Compensation Fund, Docket No. 154,563.



• See also, Pfannenstiel v. Keebler Company and Workers Compensation Fund, Docket No. 167,515 (December 1993).

11.03 Insolvent Employer

• August 1998. (Award) The Workers Compensation Fund is responsible for the payment of benefits when an employer has no workers compensation insurance and the company is financially unable to pay the benefits required by the Act, as in the case at hand. The Fund is therefore responsible for the payment of benefits under this Award. The Fund may seek reimbursement from the employer for any amounts paid. K.S.A. 44-532a. Beasley v. Terry Faelber d.b.a. AGD Security Company and Workers Compensation Fund, Docket No. 206,321. [Reversed by Court of Appeals in unpublished decision, Docket No. 81,985].

• July 1997. (Award) Insolvent and uninsured employers are entitled to the benefits of K.S.A. 44-567, the statute imposing liability on the Kansas Workers Compensation Fund. Martin v. Heritage Flowers and Kansas Workers Compensation Fund, Docket No. 189,196.

11.04 Knowledge of Handicap or Misrepresentation

• December 1998. (Ph) Liability shifts to fund where respondent proves it knowingly hired claimant, who was handicapped, and but for claimant's preexisting impairment, his current disability would not have occurred. Baumgarner v. The Boeing Company and Aetna Casualty & Surety and Kansas Workers Compensation Fund, Docket No. 187,562.

• April 1998. (Award) Where respondent is uncertain as to when it became aware of claimant's 1992 surgery and more importantly whether it became aware of this surgery prior to or after claimant's 1994 injury, the Appeals Board cannot find that the respondent has carried its burden of proving that it "knowingly" hired or retained a handicapped employee before the 1994 injury. McGrady v. Delphi Automotive Systems and Kansas Workers Compensation Fund, Docket No. 199,358.

• January 1998. (Award) Claimant slipped on a piece of fat at work and injured her right knee and aggravated a preexisting condition of degenerative cervical disc and osteophytic disease in her neck. The Appeals Board found respondent had the requisite knowledge of claimant's preexisting neck and right knee impairments. Additionally, claimant's ultimate disability would not have occurred but for her preexisting impairments. Therefore, pursuant to K.S.A. 1992 Supp. 44-567(a)(1), the Workers Compensation Fund is responsible for the Award. Quandt v. IBP, Inc. and Workers Compensation Fund, Docket No. 184,591.

• See Also, Foreman v. Salvation Army and The Home Insurance Company and Kansas Workers Compensation Fund, Docket No. 169,430 (November 1997) [Reversed and remanded by unpublished Court of Appeals opinion, Docket No. 80,426].



• May 1997. (Award) Respondent argued claimant knowingly misrepresented the fact that he did not have a preexisting back condition or prior back injury when it hired claimant. Conversely, the Fund cites the case of Collins v. Cherry Manor Convalescent Center, 7 Kan. App.2d 270, 640 P.2d 875 (1982) in support of its argument that claimant's limited education and ability to speak English accounted for the confusion. The Appeals Board, however, finds the facts in this case distinguishable from those in Collins. The evidence contained in the record supports the conclusion that claimant knowingly misrepresented to respondent that he did not have a preexisting low back injury. The Appeals Board is mindful of the fact claimant had a limited ability to understand English and further was limited to a sixth grade education. Nevertheless, other than the information relating to his preexisting back injury, claimant was able to provide essentially all the information that was required on his employment application and also on his pre-employment history and physical form. Furthermore, claimant was able to furnish respondent with a list of his previous employers with the exception of Hyplains, who coincidently was his employer at the time he injured his back. All of which goes to establish knowing misrepresentation by claimant. Thus, the Board finds respondent has met its burden of proving knowledge of handicap by virtue of claimant's misrepresentation of his pre-existing condition. Martinez v. Monfort, Inc. and City Insurance Company and Kansas Workers Compensation Fund, Docket No. 145,421.

• July 1997. (Award) Where the employer has knowledge of the preexisting impairments, such impairments would have been a handicap, and the current injury would not have occurred "but for" the handicap, the employer is entitled to the benefits of K.S.A. 44-567, and the award shall be paid by the Kansas Workers Compensation Fund. Martin v. Heritage Flowers and Kansas Workers Compensation Fund, Docket No. 189,196.



• See Also, Tong v. The Boeing Company and Aetna Casualty & Surety Company and Workers Compensation Fund, Docket No. 193,114 (May 1997); Whitson v. Taco Grande and Wausau Underwriters and Kansas Workers Compensation Fund, Docket No. 183,316 (August 1997).



• July 1997. (Award) Claimant suffered two injuries: one to the right upper extremity in October, 1993, and the second to the left upper extremity in May, 1994. There is no evidence to support a finding that claimant was handicapped prior to October of 1993; therefore, no fund liability for the right upper extremity can be assessed. However, subsequent to the October, 1993, injury, claimant was a handicapped employee as defined by K.S.A. 44-566, and respondent had knowledge of that handicap. Therefore, the Appeals Board finds that "but for" the right upper extremity claimant would not have suffered the injury to the left upper extremity. The Workers Compensation Fund is liable for all medical treatment and any award assessed for the left upper extremity injuries. Atwood v. City of Wichita and Kansas Workers Compensation Fund, Docket No. 192,202.

• ----- K.S.A. 44-567 provides circumstances when an employer who: (1) knowingly employs or retains a handicapped employee, as defined by the Workers Compensation Act, and (2) such employee subsequently suffers a compensable work related injury, shall be relieved of liability for compensation awarded. The liability will be assessed to the Kansas Workers Compensation Fund. Id.



• ----- To be relieved of liability, an employer must prove either it had knowledge of the preexisting impairment at the time it employed the individual or that the employer retained the individual as an employee after acquiring knowledge of the preexisting impairment. K.S.A. 44-567(b). Id.



• July 1997. (Award) The fact the employer may have misdiagnosed claimant's previous condition is not relevant in determining whether the employer had "knowledge" of the "preexisting" condition. It is the employer's knowledge of the impairment and handicap rather than knowledge of a specific medical diagnosis which is germane. The Appeals Board therefore assesses liability on the Workers Compensation Fund. Dry v. The Boeing Company anc Aetna Casualty & Surety Company and Workers Compensation Fund, Docket No. 180,347.

• June 1997. (Award) Where respondent has no knowledge of claimant's impairment before the date of accident, no liability can be assessed to the Workers Compensation Fund. Charbonneau v. The Boeing Company and Aetna Casualty & Surety Company and Workers Compensation Fund, Docket No. 183,426.



• See Also, Knox v. National Beef Packing Company and Lumbermen's Underwriting Alliance and Kansas Workers Compensation Fund, Docket No. 195,883 (April 1997).

• April 1997. (Award) Employer's filing a Form 88 creates a presumption that the employer had knowledge of claimant's preexisting impairment. Zimmer v. Central Kansas Medical Center and Reliance National Insurance Company and Workers Compensation Fund, Docket No. 186,009.

• See Also, Wilson v. Casco Inc. and Liberty Mutual Insurance Company and Workers Compensation Fund, Docket No. 189,322 (March 1997).

• November 1995. (Award) Liability will be assessed against the Workers Compensation Fund when an employer shows that it knowingly hired or retained a handicapped employee who subsequently suffered a compensable work-related injury. An employee is handicapped under the act if that employee is inflicted with an impairment of such character as to constitute a handicap in obtaining or retaining employment. Carter v. Kansas Gas & Electric Co, 5 Kan. App.2d 602, 621 P.2d 448 (1980). Bohanan v. USD 260 and KS Assoc of School Boards and Workers Compensation Fund, Docket No. 190,281 [Affirmed by Court of Appeals, 24 Kan. App.2d 362].

• ----- Although claimant had experienced back problems in the past and had on several occasions obtained chiropractic treatment for her ongoing symptomatology, claimant returned to work after each occasion with no functional impairments and no physical restrictions prior to an injury sustained in October of 1993. As such , the Appeals Board finds that the respondent has failed in its burden of proving it retained a handicapped employee within the definition contained in K.S.A. 44-566(b). Absent a finding that claimant was handicapped prior to her work-related injury in October of 1993, liability cannot be assessed against the Kansas Workers Compensation Fund. Id.

• December 1996. (Award) Although one of claimant's supervisors had knowledge of claimant's alleged handicap prior to the work-related accident, such knowledge did not rise to the level of establishing that respondent knowingly employed or retained a handicapped employee as defined in K.S.A. 44-566(d). Respondent was not aware that claimant was under permanent restrictions prior to the accident which was the subject of this claim and claimant's job duties were never permanently changed to accommodate his back condition. McChristian v. Total Petroleum, Inc and Hartford Accident & Indemnity and Kansas Workers Compensation Fund, Docket No. 193,082.

• November 1996. (Award) Although respondent had knowledge of claimant's prior injury, where claimant did not even know the prior injury constituted an impairment, respondent could not have had knowledge of the preexisting impairment/handicap. Banuelos v. Prairieland Processors and ITT Hartford and Kansas Workers Compensation Fund, Docket No. 155,501 [Affirmed by unpublished Court of Appeals opinion, Docket Nos. 77,792 & 78,663].

• October 1996. (Award) The determination of whether an employer's knowledge was sufficient to constitute knowledge of a handicap is made on a case-by-case basis. It is not necessary that the employer's knowledge be of a particular and medically specific injury. Batson v. Precision Industries and Northwestern National Insurance Co and Kansas Workers Compensation Fund, Docket No. 170,395.

• ----- Where claimant never told respondent he suffered from preexisting disabilities or had prior workers compensation injuries and where no records of such prior disabilities or injuries were contained in claimant's personnel file, the Board finds respondent did not have the requisite knowledge that it was hiring and retaining a handicapped employee so as to shift liability for claimant's workers compensation injury to the Fund. Id.

• January 1994. (Award) Claimant considered to have intentionally mislead employer about prior handicap where claimant: (1) knew the work for respondent violated his work restrictions when he took the job; (2) completed an application for employment indicating he was physically able to do the job; and (3) testified he intended to mislead the employer about he prior condition when he completed the application for employment. Newton v. Cromwell, Docket No. 145,831.

• January 1994. (Award) Documents from personnel file relating to prior back injury, including documents reflecting claimant had been required to wear a brace at work for respondent, found to constitute knowledge on the part of the employer even though no evidence was presented to show any current employee of respondent was familiar with contents of file. Hearn v. Central Kansas Medical, Docket No. 163,347.

11.05 Reimbursement from

• 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].



• June 1998. (Award) Claimant was awarded a 65% work disability. However, following the entry of this award, respondent learned that claimant had obtained new employment and was earning more than 90 percent of his pre-injury wages. Respondent filed for review and modification. A hearing was held and claimant's award was modified to an award based upon a 15% functional impairment only. Respondent argues it overpaid claimant $18,075.75 for which it now seeks reimbursement from the fund. K.S.A. 44-534a(b) and K.S.A. 44-556(b) provide the exclusive remedies for an employer to seek reimbursement from the Fund for excess payment of compensation. Kimber v. U.S.D. No. 418, 24 Kan. App.2d 280, 944 P.2d 169 (1997). However, neither statutes would authorize reimbursement from the Fund for overpayment in this instance. Hunt v. Frito-Lay and Kansas Workers Compensation Fund, Docket No. 189,862.

• ----- K.S.A. 44-534a(b) allows for reimbursement from the Fund when compensation is paid in the form of medical benefits or temporary total disability benefits pursuant to the preliminary hearing statute. This statute does not apply to the case at hand because respondent seeks reimbursement for permanent partial disability benefits paid pursuant to a "final" award, not a preliminary hearing order. Id.

• ----- K.S.A. 44-556(d)(1) allows for reimbursement from the Fund for overpayments made while an award is pending judicial review and then the compensation awarded by the Appeals Board is reduced or found inappropriate. The situation in this case does not fit within that statute either because the Board did not enter an award that was later reduced by an appellate court. "Review" as used in K.S.A. 44-556(d)(1) refers to judicial review of actions by the Board by an appeal to the Court of Appeals. It does not refer to review under the review and modification statute, K.S.A. 44-528. Id.

• May 1997. (Remand) Claimant sustained an injury arising out of and in the course of employment. One of the authorized treating physicians prescribed narcotic medications which later were determined, by two other physicians, to have not been reasonably necessary to cure and relieve claimant of the effects of the injury. On the basis of those opinions, the Administrative Law Judge determined such medications were not necessary and ordered the Fund be responsible for any treatment associated with claimant's chemical dependency. The Appeals Board reversed, concluding the appropriate remedy for such a dispute over medications would be utilization review per K.S.A. 44-510. The Board also found no basis for awarding costs of the treatment for chemical dependency because the evidence did not establish claimant needed such treatment. The Court of Appeals, however, reversed and remanded for the current proceedings, concluding there was no utilization review procedures established under K.S.A. 44-510, and therefore, the provisions of K.S.A. 44-534a control. The Court did not reverse the Board on the issue of future treatment for chemical dependency. On remand, the Appeals Board concludes the costs of administration of narcotic medications after September 30, 1993 were not reasonably necessary. These costs should therefore be borne by the Kansas Workers Compensation Fund. Additionally, in the event the parties are not able to agree as to the other costs of the administration of these narcotic medications, the parties should seek a hearing under K.S.A. 44-534a. Beisel v. The Boeing Co. - Wichita and Aetna Casualty & Surety Co. and Worker Compensation Fund, Docket No. 159,286.

• ----- On remand, from the Court of Appeals' decision in Beisel v. The Boeing Company, 23 Kan. App.2d 572, 932 P.2d 1050 (1997), stating: (1) an employer and its insurance carrier may seek reimbursement from the Workers Compensation Fund for medical expenses paid to or on behalf of a claimant which have been found to be unnecessary or unreasonable and are disallowed on final hearing of the claim. This reimbursement may be pursued according to the relevant provisions of K.S.A. 44-534a. (2) The Director must prescribe procedural rules to be followed by the parties before the peer utilization review procedures of K.S.A. 44-510 may be utilized. Until the Director formulates those rules, the peer review procedures will remain inactive and ineffective. Id.

• May 1997. (Remand) The Administrative Law Judge in his Award denied respondent's request for reimbursement of certain medical treatment expenses by the Kansas Workers Compensation Fund pursuant to K.S.A. 1987 Supp. 44-534a(b). The Appeals Board affirmed the Administrative Law Judge's decision but for a different reason. The Appeals Board found that where a dispute arises concerning whether medical treatment already provided to the claimant by the respondent was reasonable and necessary, the proper procedures for seeking reimbursement are contained in K.S.A. 44-510. The Court of Appeals, however, in an unpublished opinion found the procedures under the utilization and peer review contained in K.S.A. 44-510, which were enacted in 1990, to be substantive and prospective. Therefore, the Court of Appeals found these procedures could not be applied retrospectively to this 1987 claim. In light of this Court of Appeals' opinion, the Appeals Board will remand the case back to the Administrative Law Judge to conduct a full hearing to determine if the medical benefits paid were reasonable and necessary, in accordance with the provisions of K.S.A. 44-534a and K.S.A. 44-566a, as they existed prior to 1990. Brumley v. Presbyterian Manors - Mid-America and Hartford Accident & Indemnity and Kansas Workers Compensation Fund, Docket No. 143,302; On remand, from the Court of Appeals unpublished opinion in Brumley v. Presbyterian Manors - Mid-America, No. 75,628 (1997).

11.06 Right to Litigate Issues

• 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.

• 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.

• December 1997. (Award) 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. 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.

• December 1997. (Award) The Workers Compensation Fund does not have the right or standing to litigate its liability under K.S.A. 1992 Supp. 44-534a(b) for the overpayment of benefits. The appeal is thereby dismissed. Wasson v. United Dominion Industries and United States Fidelity & Guaranty Co. and Workers Compensation Fund, Docket No. 198,285 [Affirmed by Kansas Supreme Court, Docket No. 80,539].

• ----- But See, the First Dissent believes the language in K.S.A. 44-566a(c)(1) grants the Workers Compensation fund the standing and right to litigate its liability under K.S.A. 1992 Supp. 44-534a(b). Id.



• ----- See Also, the Second Dissent finds the claimant did not prosecute his claim to an award "upon a full hearing on the claim" as contemplated by K.S.A. 1992 Supp. 44-534a(b). The respondent is prosecuting the claim and is, de facto, the claimant. The Fund should have a right to appear and defend the claim. Therefore, the Dissenting Board Member would concur with the First Dissent to the extent it holds that the Fund has standing to bring this appeal. Id.

11.07 Motion to Dismiss the Fund

• March 1997. (Order) A reasonable period time will be permitted after the April 4, 1996, effective date of the amendments to K.S.A. 44-566a(c)(3), which precludes procedures for dismissing the Fund from a case, for the parties to complete their records and submit the cases for decision. Nispel v. Thomasbrook Apartments and The Hoyt Group, LTD and The Hartford Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 143,397; 143,398; & 143,399.

• ----- For the purpose of determining whether the Fund's liability was established within five years of the date the employee filed written notice of claim per K.S.A. 1996 Supp. 44-566a(c)(3), the Appeals Board finds the date "written notice of claim" was "filed" means the date an application for hearing was filed with the director as contemplated by K.S.A. 44-534. Id.

• March 1997. (Order) When determining whether there has been a showing by a party that the case against the Fund should be left open, the trier of fact should look not only to what action was taken on the case before the expiration of the five-year period contemplated by K.S.A. 1996 Supp. 44-566a(c)(3), but may also look to what action was taken after the April 4, 1996, effective date of the statute and the date of the Fund's motion to dismiss under 44-566a(c)(3). Ellis v. Data Documents, Inc and The Hartford Insurance Company and Kansas Workers Compensation Fund, Docket No. 157,393.

• ----- Where respondent did take steps to prosecute the claim against the Fund prior to the expiration of the five-year period as contemplated by K.S.A. 1996 Supp. 44-566a(c)(3), the Appeals Board finds there is just cause for leaving this case open. Id.