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§ 2.01 Generally

• September 1998. (Award) Where the accident did not occur in Kansas, claimant's contract of employment was not in Kansas, and claimant's principal place of employment was not in Kansas, the Kansas Workers Compensation Act does not apply and benefits must be denied. K.S.A. 44-505 and K.S.A. 44-506. Graff v. Trans World Airlines, Docket No. 176,398 [Reversed and remanded by Supreme Court, Docket No. 82,148].



• ----- K.S.A. 44-506 excludes activities so involved in interstate commerce as not to be subject to the legislative power of the state. This exclusion has been applied only where the federal law provides an exclusive remedy as it does in the case of railroad employees covered by the federal employer's liability act. Krous v. Lowden, 153 Kan. 181, 109 P.2d 138 (1941). Id.



• ----- Application of a state's worker's compensation act to a claim involving an injury which occurred within the state is not considered to contravene requirements of the United States Constitution. Pacific Employers Insurance Co. v. Industrial Accident Comm'n, 306 U.S. 493 (1939). Id.

2.02 Employers Included / Excluded

2.03 Generally

• September 1998. (Ph) The Board finds that although respondent corporation may have had a technical corporate status under the corporation laws of the State of Kansas, the facts establish that claimant and his wife were simply individuals using the corporation as an instrumentality, or as a sham, to conduct personal business. The Board concludes the corporate entity should be disregarded as claimant and his wife were operating their business as a partnership. An individual partner in a partnership is not considered an employee under K.S.A. 44-508(b) unless an election has been filed pursuant to K.S.A. 44-542a. As there is no evidence in the record of an election being filed, the Board affirms the ALJ's finding that the claimant and respondent corporation did not have an employee-employer relationship for coverage under the Workers Compensation Act. Piper v. A-1 Refuse and Farm Bureau Mutual Insurance Company and Kansas Workers Compensation Fund, Docket No. 210,674.

2.04 Election to Come under the Act

• April 2000. (Award) Claimant was self-employed at the time he was killed. According to K.S.A. 44-542a, as a self-employed individual claimant would not have been covered within the provisions of the workman's compensation act unless the intention of the parties clearly indicated that claimant was covered. Under the facts of this case, claimant although having applied for worker compensation coverage under the assigned risk plan, the coverage did not indicate an intent to provide coverage for claimant as an employee. Therefore, there was no coverage for the claimant. Bruce Harris (Deceased) vs. Home Helpers and Wausau Underwriters Insurance, Inc., Docket 236,032 (April 2000) [Affirmed by unpublished Court of Appeals opinion, Docket No. 85,276, December 8, 2000].



• August 1999. (Award) Self-employed individuals may bring themselves within the provisions of the Workers Compensation Act by procuring insurance coverage. K.S.A. 44-542a. Vanderwoude v. American Mobil Homes and Travelers Insurance Company, Docket No. 244,213.



• ----- The only issue on review was whether claimant, the owner and operator of a mobile homes service had qualified for coverage under the Act by purchasing workers compensation insurance coverage. The Board affirmed the ALJ's findings that claimant (based on his own testimony and insurance certificates submitted into evidence) had insurance coverage on himself on the date of accident; therefore, the Board affirmed the ALJ's finding that the accident was compensable under the Act. Id.

• July 1998. (Ph) Respondent was engaged in an "agricultural pursuit" as defined by K.S.A. 1997 Supp. 44-505(a)(1). Claimant alleges he suffered a work-related injury while cleaning a scale used to weigh diary cattle. Respondent purchased workers compensation insurance coverage during an initial stage of construction of the dairy facility but later terminated the policy. Respondent did not file an election. Claimant's injury occurred after respondent had terminated the insurance coverage. The Appeals Board found there was no insurance coverage at the time of the accident, no election filed, and no representation to the employees that they would be covered. Therefore, the Board finds respondent was not covered by the Workers Compensation Act; claimant's injury is likewise not covered. Ortega v. Cimarron Dairy and Uninsured and Kansas Workers Compensation Fund, Docket No. 227,297. [Affirmed by Kansas Supreme Court, Docket Nos 81,691 & 81,692].



• See Also, Rivera v. Cimarron Dairy and Uninsured and Kansas Workers Compensation Fund, Docket No. 223,223 (July 1998). 227,297. [Affirmed by Kansas Supreme Court, Docket Nos 81,691 & 81,692].



• February 1994. (Award) Respondent advised its employees they would be covered by workers compensation insurance and, in fact, purchased insurance. Respondent, however, did not file the necessary election. Claimant was subsequently injured during the period of insurance coverage. The Board held that the purchase of insurance, even in absence of a filed election, brought the respondent under the provisions of the Workers Compensation Act. Schneider v. Hensleigh, Docket No. 170,986.

2.05 Payroll Requirement

• June 1999. (Ph) K.S.A. 1998 Supp. 44-505 requires that the total gross annual payroll for the employer be for "all employees." Therefore, the Appeals Board adds the payroll of the Overland Park, Kansas, as well as the Wichita, Kansas, offices together to come to the conclusion that respondent's total annual gross income exceeds $20,000. Wolf v. Calendar Club and Insurance Company Unknown, Docket No. 239,893.

• May 1999. (Ph) When a principal has a $20,000 or more payroll, the Workers Compensation Act is applicable to a subcontractor's injured employee even though the subcontractor may not have a payroll that equals or exceeds that amount. Olivares v. Mid-Continent Specialties, Inc. and Workers Compensation Fund, Docket No. 237,793.



• ----- When a workers is seeking benefits from a principal; or "statutory employer," the issue is not whether the immediate employer's payroll meets the threshold amount required by the Workers Compensation Act. Instead, the issue is whether the principal's payroll meets the threshold amount. To do otherwise, the Board found, would be to allow principals to avoid the act by contracting with small subcontractors having annual payrolls less than $20,000. Id.

• October 1998. (Ph) Claimant testified he was paid $10 per week and worked 40 hours per week. This would exceed the $20,000 payroll requirement in K.S.A. 1997 Supp. 44-505(a). Although the number of hours claimant and other crew members could actually work was dictated somewhat by the weather and respondent's ability to obtain roofing jobs, the fact that respondent employed several roofers that worked as a crew makes it more probable that the gross annual payroll for all employees exceeded $20,000. Therefore, the Board finds that claimant has met his burden of showing respondent had sufficient payroll to meet the jurisdictional requirements of the Act. Athey v. Davis Roofing and Workers Compensation Fund, Docket No. 230,907.

• February 1998 (Ph) Held, claimant met his burden of proving respondent had a total gross annual payroll for the preceding calendar year of at least $20,000, and that the respondent reasonably estimated its gross annual payroll for the 1997 calendar year would likewise be more than $20,000. Therefore, claimant met his burden of proving respondent had sufficient payroll to come under the Act. K.S.A. 44-505(a). Bishop v. Terry Lamb Pro Tree Service and Unknown and Kansas Workers Compensation Fund, Docket No. 225,386.



• See Also Leija v. Commercial Gardener & Workers Compensation Fund, Docket No. 228,450 (February 1998).



• January 1998. (Ph) Where it is determined that respondent's payroll did not exceed $20,000 for the current year, the Appeals Board affirms the decision of the Administrative Law Judge that claimant had not established the requisite $20,000 payroll required under K.S.A. 44-505. Tubbs, Jr. v. Mike Tubbs and Kansas Workers Compensation Fund, Docket No. 227,356.

• See Also, George E. Moody vs. Marvin Smith and Glenn Combs and Insurance Companies Unknown and Kansas Workers Compensation Fund, Docket No. 239,624 (June 2000).

• March 1994. (Award) Even though the employer might not have expected its payroll to be in excess of $10,000 at the beginning of the year, it is not unreasonable to require the estimate of annual payroll be reconsidered at reasonable times throughout the year and where the employer could have later anticipated that payroll would exceed the $10,000 threshold, the employer is considered to be covered by the Act. Holcomb v. M&R Detail Shop, Docket No. 173,872.

2.06 Self Employment

2.07 Specific Employments Excluded

2.07a Agricultural Pursuits

• March 2000. (Ph) Claimant was injured while assisting in making mechanical repairs to a truck used on respondent's farm and ranch operation. The issue before the Board was whether the repair work was an "activity incident[al] to an agricultural pursuit." K.S.A. 44-505(a)(1). Claimant argued that minor repairs should be included as part of the agricultural pursuit; however, major repairs requiring the work of an independent mechanic is not part of the agricultural pursuit. The Board concluded that while some repairs might not fall within the parameters of agricultural pursuit exclusion, the repairs here did fall within the exclusion as an integral part of the farm or agricultural operation. The truck being repaired was used to move large hay bales with a hydraulic lift affixed to the truck's bed. Because the existing leaf springs were not strong enough to withstand the weight, respondent requested claimant's assistance in replacing the leaf springs. Milbrandt v. Sam Krehbiel, Docket No. 248,237.

2.08 The Place the Employment Contract Is Created

• January 2001 (Ph) For the Workers Compensation Act to apply, the contract of employment is "made" when and where the last act necessary for its creation is done. By telephone from his Pittsburg, Kansas residence claimant accepted respondent's offer of transfer to another company. The Board concluded that the last act necessary to form an employment contract occurred in Kansas when claimant accepted the transfer by telephone. Baker vs. Legacy Transport, LLC and ITT Specialty Risk Services, Docket No. 258,433.
• October 1999. (Ph) Jurisdiction exists in Kansas where claimant accepted offer of employment on phone while in Kansas even though claimant still had to pass drug test in Missouri. Drug test may give rise to grounds for termination but is considered to be after the contract of employment has been entered. Gaston v. Chicago Express, Inc., Docket No. 245,523.

• See Also, Jim J. Perryman vs. Grand Island Contract Carriers, Inc., Docket No. 248,754 (April 2000).

• September 1999. (Ph) A contract is considered made when and where the last act necessary for its formation is done. See Neumer v. Yellow Freight Systems, 220 Kan. 607 (1976). In the case at hand, claimant's principal place of employment was in Missouri, but the employment contract was formed in Kansas; therefore, Kansas jurisdiction was applicable. Claimant accepted respondent's offer for employment over the telephone while claimant was at his home in Topeka, Kansas. The Board found that acceptance of the offer to be the last act necessary to form the employment contract, despite the fact that claimant's employment was further conditioned upon certain contingencies which would take place in the State of Missouri. Farmer v. AT&T and Gates McDonald, Docket No. 241,576.

• August 1999. (Ph) The last act necessary to form the contract of employment was found to be the interview between claimant and respondent's representative in Missouri followed immediately by the administering of a blood test which occurred in the State of Missouri. Therefore, there is no jurisdiction for the injury to fall under the Kansas Workers Compensation Act. Martin v. Citicorp and Reliance Insurance Company and Travelers/Aetna, Docket No. 237,951.

• March 1999. (Award) Although respondent's principal place of business was in Missouri, the Kansas Workers Compensation Act applies to this injury where it is determined that the last act necessary to form the employment contract--which was claimant's acceptance of the job offer over the phone from her home in Prairie Village, Kansas -- occurred in Kansas. Respondent, on the other hand, contends the last act necessary in this instance was the drug screening which occurred in Missouri. However, after construing the contract, the Board determined that a valid contract of employment was in fact created prior to the drug screening, thus invoking the jurisdiction of the Kansas Workers Compensation Act. 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].

• July 1998. (Ph) Claimant lived in Kentucky and was informed via telephone link from West Virginia that his employment application had been approved. The Board finds this communication of acceptance to be the last act necessary to form the contract. See Neumer v. Yellow Freight System, Inc., 220 Kan. 607, 556 P.2d 202 (1976), stating a contract is considered made when and where the last act necessary for its formation is done. Accordingly, the contract was not entered in Kansas and Kansas does not have jurisdiction. Mouser v. Topeka Machinery Exchange, Inc and Aetna Casualty & Surety Company, Docket No. 231,772.



• March 1998. (Ph) Where respondent called claimant at her personal residence in Kansas City, Kansas, and offered claimant a job, which she accepted, the Appeals Board finds the employment contract was created in Kansas and Kansas' Workers' Compensation Act applies. Stewart v. Serv Tech and National Union Fire Insurance Company of New York, Docket No. 222,290.

• December 1997. (Ph) Before the Kansas Workers Compensation Act applies, the contract of employment between claimant and respondent must be determined to have been made in Kansas. See K.S.A. 44-506. Cox v. Mike Hagen Electric and Granite State Insurance Company, Docket No. 223,481.



• ----- Despite claimant's allegations that he accepted employment while he was in Kansas and on the telephone with respondent, the Administrative Law Judge determined claimant was not credible and found the contract of employment was really accepted in Missouri; the Kansas Workers Compensation Act was held not to apply. The Appeals Board affirmed. Id.

• January 1997. (Award) The Kansas Workers Compensation Act is applicable to this Nebraska accident because the last act necessary to complete the employment contract was claimant's acceptance of the offered position while speaking over the telephone from her home in Wamego, Kansas. Becker v. Gilbert Central Corporation and Aetna Casualty and Surety Company, Docket No. 172,229. [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,320].

• See Also, Abbey vs. Cleveland Inspection Services, Inc. and State Insurance Fund of Oklahoma, Docket No. 208,691 (December 2000).

• February 1997. (Ph) Despite the fact claimant made initial contact with respondent while in Kansas, the last acts necessary for the formation of the employment contract occurred while claimant was in Oklahoma. Therefore, the Kansas Workers Compensation Act does not apply and neither the Administrative Law Judge nor the Appeals Board has jurisdiction over this matter. Muchmore v. J.B. Hunt Transport, Inc., Docket No. 206,625.

2.09 The Principal Place of Employment