• June 2000 (Award) Benefits for change in disability are calculated by determining the benefits payable based on the new disability rating and then deducting benefits previously paid or due before the change in disability. Linda Reynolds vs. JC Penney and Helmsman Management, Inc., Docket No. 208,153.

• June 2000 (Order) This decision is helpful in reviewing "change of condition" as good cause for the review and modification of an award. Additionally, the Board concluded that the ALJ did not err in compelling the claimant's testimony during the review and modification proceeding. Regarding the award of attorney fees under K.S.A. 44-536(g), the Board remanded the issue back to the ALJ pending the resolution of the application for review and modification. Juan Paniagua vs. National Beef Packing Company, L.L.P. and Wausau Insurance Company, Docket No. 205,469.

• 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. On remand, the ALJ voided the initial award after finding that the claimant obtained the award through fraud and serious misconduct. The Board affirmed the ALJ's decision stating that when a party has committed fraud or serious misconduct in obtaining an award of benefits the award may be set aside. See K.S.A. 44-528(a). Acosta vs. National Beef Packing Company, L.P. and Wausau Insurance Companies, Docket No. 206,691 (November 2000).



• June 1999. (Award) If circumstances change after the record is closed but before the Award is entered, the Award may be modified. Dominguez v. Seaboard Farms, Inc and Crawford & Company, Docket No. 214,520.

• March 1999. (R/M) An original award may be reviewed for good cause shown upon application by one of the interested parties. If the competent evidence establishes that claimant's functional impairment or work disability has increased or diminished the award may be modified by increasing or diminishing the compensation. K.S.A. 44-528(a). Robison v. Presbyterian Manors-Mid America and Insurance Company of North America, Docket No. 112,416.



• ----- The burden is on the party seeking review and modification of an award to establish a change in claimant's condition from the time the original award was entered. See Morris v. Kansas City Board of Utilities, 3 Kan. App.2d 527, 598 P.2d 544 (1979). Id.

• ----- Although claimant's permanent restrictions had not materially changed since the date of the injury, claimant's physician did opine that her low-back condition had deteriorated to the point she could no longer work because of the frequency that she suffered exacerbations. Additionally, the physician recognized that claimant had worsening low-back symptoms probably because of residual scaring or arachnoiditis caused by the 1985 injury. Further, claimant's depression was found to be directly related to her 1985 low-back injury. Accordingly, the Appeals Board found that claimant was essentially and realistically unemployable and modified her permanent partial general disability award to a permanent total award. Id.

• ----- The effective date of any modification of an award shall be the date the increase or diminishment actually occurred, except that in no event shall the effective date of any such modification be more than six months prior to the date the application was filed. See K.S.A. 44-536(g). Id.



• February 1999. (Order) Disability payments deferred because of stay provisions due to an appeal to the Court of Appeals do not fall within the 6 months look-back period for review and modification under K.S.A. 44-528 if they are for a period of disability before or beyond the six months. Hunsecker v. Enterprise Estates Nursing Center and Kansas Association of Homes for the Aging Insurance Group, Inc, Docket No. 186,229.



• January 1999. (Ph) A review and modification proceeding is not required to terminate temporary total disability benefits when the worker no longer meets the definition of being temporary and totally disabled. Morales v. Excel Corporation, Docket No. 220,221.



• October 1998. (R/M) The review and modification procedure of K.S.A. 44-528 requires a change in claimant's condition. See, Brandt v. Kansas Workers Compensation Fund, 19 Kan. App. 2d 1098, Syl. ¶ 2, 880 P.2d 796, rev. denied 256 Kan. 994 (1994). A modification due to a changed condition cannot be made without comparing claimant's condition at the time of the agreed award with his condition at the time modification is sought. Gile v. Associate Co., 223 Kan. 739, 741, 576 P.2d 663 (1978). In the case at hand, the record includes certain reports by physicians which primarily pertain to changes in claimant's condition between his 1988 injury and the settlement of this claim for the subsequent aggravation. They do not evidence a change in claimant's condition between the date of the settlement and the application for review and modification. Absent a change in claimant's physical condition, the same medical evidence that supported a finding of no work disability cannot subsequently form the basis for a work disability. Watkins v. Food Barn Stores, Inc., 23 Kan. App. 2d 837, 936 P.2d 294 (1997). Williams v. Koch Services and Planet Insurance Company and Workers Compensation Fund, Docket No. 196,562.

• September 1998. (R/M) K.S.A. 1989 Supp. 44-528 is intended to allow modification of an award by reason of a change in condition. It is intended to cover an award directed to the future. K.S.A. 1989 Supp. 44-528 is not intended to cover an award where the findings, upon which the award modification is claimed, were past facts. Coffee v. Fleming Company, Inc., 199 Kan. 453, 430 P.2d 259 (1967). K.S.A. 44-528 is not intended for the purpose of allowing parties to rectify past errors or omissions. It is intended for the purpose of showing a change in conditions. Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 (1931). The evidence presented in this case provides no change in condition subsequent to the original award. It merely shows what would have been available to the District Court and the Director had it been provided in a timely fashion. Eldredge v. Eldredge Well Service and Travelers Insurance Company and Kansas Workers Compensation Fund, Docket No. 147,130.



• August 1998. (R/M) Review and modification granted where claimant's testimony and medical opinion confirm that claimant's condition has substantially worsened since the implementation of the running award. Hull v. State of Kansas and State Self Insurance Fund and Kansas Workers Compensation Fund, Docket Nos. 129,511 & 129,512 [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,975, 1/14/2000].



• ----- The Fund's contention that the review and modification was filed untimely, as it was filed after the award was fully paid has been answered by a previous Board decision, where in the Board held that the 415-week limit applicable to permanent partial awards is not applicable to permanent total awards. The only limitation to permanent total disability is the dollar limitation. As claimant has not exceeded the statutory maximum for permanent total disability, the review and modification is timely filed. See Spillman v. General Printing & Paper, Inc., Docket No. 108,916 (Oct. 1995). Id.

• ----- But See, Dissent, The modification of an award is based upon the existence of new facts indicating a changed condition of the worker's incapacity which renders the former award either excessive or inadequate. Brewington v. Western Union, 163 Kan. 534, 183 P.2d 872 (1947). K.S.A. 44-528, the statute authorizing review and modification, contemplates a change of condition warranting a review and modification. Honn v. Elliott, 132 Kan. 454, 295 P.2d 719 (1931). Id.

• ----- The Dissenting Board Member finds that claimant has failed to prove a change in her condition and would deny her request for review and modification since both claimant's testimony and that of her physician are conflicting, untrustworthy and self-serving. Id.



• June 1998. (Remand) This case was remanded from the Kansas Supreme Court in Ruddick v. The Boeing Company, 263 Kan. 494, 949 P.2d 1132 (1997). The issue was whether respondent was obligated to continue paying permanent partial disability benefits until the date of the ALJ's award order on review and modification. Held: The modification was effective when claimant returned to work and earned a comparable wage, so respondent was not liable for benefits between that time and the date of the order. Interestingly, the Court found K.A.R. 51-19-1 was in direct conflict with K.S.A. 44-528(d) and therefore the regulation was void. Ruddick v. The Boeing Company and Aetna Casualty & Surety Company and Kansas Workers Compensation Fund, Docket Nos. 187,724 & 187,764.



• January 1998. (R/M) Where claimant receives an award of work disability and then approximately two months later shows he has the ability to earn more than the average weekly wage that he was earning at the time of the injury, the Appeals Board will apply the presumption of no work disability to claimant's case on review and modification and limits him to his functional impairment. Sedlak v. All Freight Systems and Travelers Insurance Company, Docket No. 175,444.



• See Also, Valley v. Peerless Products, Inc and Aetna Casualty & Surety Company, Docket No. 165,115 (March 1998).



• January 1998. (Award) In proceedings for review and modification, the principles set forth in Watkins v. Food Barn Stores, Inc., 23 Kan. App.2d 837, 936 P.2d 294 (1997), must be considered. In Watkins, the Court of Appeals held that where a worker returns to work in an unaccommodated job and earns wages comparable to what was earned before the injury, the presumption of no work disability applies and the presumption will not be rebutted without evidence of a change in the worker's physical condition. Mayhew v. Southwestern Bell Telephone Co., Docket No. 176,868. [Affirmed by unpublished Court of Appeals opinion, Docket No. 80,731].



• ----- Where claimant (1) returned to her regular job duties at work without accommodations, (2) earned a wage comparable to what she was earning at the time of her accidental injuries, and (3) did not prove a worsening of her work-related injuries, claimant's request for review and modification of her award must be denied. Id.

• November 1997. (Award) Claimant suffered a work-related injury but was able to return to work for respondent performing her former duties without accommodation. Claimant continued to work for respondent until she was laid off when the facility at which she was working closed down. Claimant now seeks review and modification of her running award because of the change in her employment status. Based upon the reasoning outlined in Watkins v. Food Barn Stores, Inc., 23 Kan. App.2d 837, 936 P.2d 294 (1997), the Appeals Board concludes that claimant's application for Review and Modification must be denied as the record contains no evidence that claimant's physical condition worsened after her return to work. Wagner v. Total Petroleum and Hartford Accident & Indemnity, Docket No. 189,269.



• ----- Claimant, who returned to an unaccommodated job at a comparable wage and then is laid off, is not entitled to a modified award absent evidence of a change in claimant's physical condition. Id.



• 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.

• April 1997. (R/M) By the plain language of K.S.A. 1991 Supp. 44-528(d) modifications of awards "are to be effective as of the date of the change in disability but in no event more than six months prior to the date of the application for review and modification." Although respondent argues an exception should be made under the circumstances where it has been alleged claimant intentionally or fraudulently concealed the fact of his return to work to obtain higher benefits, the Appeals Board finds no basis in the language of the statute for an exception to be made. Lundry v. The Boeing Company and Aetna Casualty & Surety and Kansas Workers Compensation Fund, Docket No. 166,389.

• April 1997. (Award) Application of Romeo v. Smith Temporary Service, Docket No. 184,711 discussed. Whisler v. The Boeing Company and Aetna Casualty and Surety and the Kansas Workers Compensation Fund, Docket No. 152,107.



• ----- Under Romeo, review and modification may, in some instances, result in the termination of benefits because the full number of weeks awarded on review and modification have already been paid. Id.

• ----- Review and modification adjusts the amount of weekly payments not the number of weeks. Id.

• March 1997. (Award) The purpose of K.S.A. 44-528 is not to provide a procedure to retry workers compensation cases based on the same set of facts and circumstances contained in the original award. An award may be reviewed and modified pursuant to K.S.A. 44-528 where there has been a change in circumstances. See Gile v. Associated Co., 223 Kan. 739, 576 P.2d 663 (1978). Carver v. Bekins Moving and Storage and National Union Fire Insurance Co and Kansas Workers Compensation Fund, Docket Nos. 169,565 & 175,483.

• January 1997. (R/M) In the absence of a specific stipulation, the evidentiary record to be considered in a review and modification proceeding includes the original evidence compiled to decide the original award as well as any new evidence presented for the purposes of review and modification. Sapata v. Southwestern Bell Telephone Company, Docket No. 133,971 [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,429].

• December 1996. (Award) While an award is pending review before the Board on review and modification, respondent is obligated to pay compensation pursuant to the initial award. K.A.R. 51-19-1. Ruddick v. The Boeing Company and Aetna Casualty & Surety Company and Kansas Workers Compensation Fund, Docket Nos. 187,724 & 187,764. [Reversed and remanded by Supreme Court opinion, 263 Kan. 494].

• But See, Dissent, the Dissenting Board Member opines that absent some provision for reimbursement to the respondent for an overpayment, the prohibitions of K.A.R. 51-19-1 should not be applied to the new award computation formula of K.S.A. 44-510e. Id.

• But See, Second Dissent, the second Dissenting Board Member finds that although K.A.R. 51-19-1 clearly provides that respondents are not to discontinue payments upon filing an application for review and modification, the regulations does not and may not override the provisions of K.S.A. 44-528(d). Id.

• October 1996. (Award) Case law and statutory language require that some change is indicated before review and modification applies. Vrbas v. Wanklyn Plumbing & Electric and American States Insurance Company, Docket No. 158,549.

• October 1995. (Award) Respondent argues since claimant's motion to review and modify pursuant to K.S.A. 44-528 was not filed until 415 weeks had run from the date of injury, the claimant was precluded from pursuing review and modification. The Appeals Board noted that with permanent partial disability compensation claimant is limited to 415 weeks of benefits. As such, were claimant seeking review and modification of a permanent partial disability award in order to increase the permanent partial disability and the review and modification was filed after the end of 415 weeks, the Appeals Board might, under those circumstances, consider claimant's time to have lapsed. However, with a permanent total disability no time limit is set by statute. The only limitation on permanent total disability compensation is the $100,000.00 limitation applicable on the date of claimant's injury. As claimant has not exceeded this $100,000.00 limitation her application for review and modification when seeking permanent total disability compensation is not limited in time. Spillman v. General Printing & Paper, Inc and Kemper Insurance Group and Kansas Workers Compensation Fund, Docket No. 108,916.




• February 1994. (Award) In case settled by entry of a running award, filing an E-1 application for preliminary hearing does not act as request for review and modification. Review and modification must be requested pursuant to K.S.A. 44-528 in order to give the administrative law judge jurisdiction to consider modification of a running award. Endicott v. The Boeing Company, Docket No. 166,959.





• December 1993. (Award) Record examined and found to support a modification from 13% to 77 % general disability. Pfannenstiel v. Dodge House Restaurant and Kansas Workers Compensation Fund, Docket No. 140,795.

• ----- Attorney fees for efforts in proceedings to review and modify are to be ordinary and customary or 25% increase of the award. Id.

14.03 Future Medical

• 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.

• September 1997. (Award) An order entitling claimant to future medical treatment only upon application and approval of the Director is appropriate because the respondent has the right to be heard on the question of necessity and reasonableness of the requested medical treatment. Note, although future medical is generally given in post award proceedings, this request for future medical was allowed in an Award. See Boucher v. Peerless Products, Inc., 21 Kan. App.2d 977, 911 P.2d 198, rev.denied 260 Kan. (1996). Eggers v. Mid-Central/Sysco Food Services, Inc. and Wausau Insurance Companies and Kansas Workers Compensation Fund, Docket No. 193,314.
• See Also, Bland vs. Boeing Company and Insurance Company St. of Pennsylvania, Docket No. 239,100 (October 2000).
• August 1997. (Ph) Future medical cannot be awarded in absence of permanent impairment, disability/injury. Ewing v. Unified School District 259, Docket No. 192,766.

• November 1996. (Award) The Board is very reluctant to ever terminate a claimant's entitlement to future medical and questions whether it even has the authority to do so. Dexter v. Atchison Casting, Docket No. 180,704.

• March 1994. (Award) Post award hearing on application for additional medical care could be heard on filing an E-3 application for preliminary hearing where award provided for future medical upon proper application. Andrews v. Blackburn, Inc., Docket NO. 158,135.

14.04 Other

14.04a Motion for Reconsideration

• July 1997. (P/A) Where respondent files a Motion for Reconsideration of an Appeals Board Order, the Appeals Board finds no authority within the Workers Compensation Act which would allow the Appeals Board to reconsider one of its opinions absent an appeal from an administrative law judge's decision or, in the alternative, a remand from the appellate courts. Potter v. K-Mart Corporation, Docket No. 125,604.



• ----- When considering motions for reconsideration of Appeals Board decisions, the Workers Compensation Act is even more restrictive than Chapter 60, which pertains to the Rules of Civil Procedure. Id.



• See also, Williams v. General Electric Company and Electric Mutual Liability Insurance Co., Docket No. 199,860 (September 1999). [Dismissed by unpublished Court of Appeals opinion, Docket No. 81,154, December 10, 1999; Motion to Publish granted 7/13/2000; Published .]

• 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. As such the Administrative Law Judge's denial of respondent's Motion for Reconsideration and to Reopen the Record is affirmed. Bannon v. Liggett Group and Royal Insurance Company of America, Docket No. 198,280.

• But See, December 1997. (Ph) 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, October 1997. (Ph) An administrative law judge may reconsider a decision made at a previous preliminary hearing. Zago v. Anderson Interiors and Allied Mutual Insurance Company, Docket No. 202,528.

14.04b Reopening of Awards

• 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. Sapata v. Southwestern Bell Telephone Company, Docket No. 133,971 [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,429].