Note: Hyperlinks are currently being added to enable users to obtain both Board decisions and Appellate Court decisions by clicking on the case name. This is a time-consuming process that may take several months to complete. In addition, not all cases are currently available on the Internet for viewing, therefore there will be no hyperlink for those cases.

If you have any questions regarding this, please contact Jan Zimmers (Workers Compensation Board Research Analyst/Webmaster) at 785-296-8484.

Go to Table of Contents, Keyword Index

§ 3.01 Generally

• January 1998. (Ph) Claimant was injured when the leg of the foster child she was helping into the bathroom gave out causing both claimant and the child to fall. Respondent contends claimant was not an employee and cites for support Mitzner v. State Dept. of SRS, 257 Kan. 258, 891 P.2d 435 (1995), which held foster parents were not employees of the State of Kansas. The Appeals Board does not consider this case controlling here as the foster parenting system has since changed and is a privatized system operated by such private organizations as the Kansas Children's Service League. See K.S.A. 39-708c et seq. The Appeals Board further finds the evidence in the case includes a written agreement between the claimant and the Kansas Children's Service League and that this agreement establishes the right to control indicative of an employment relationship. The Appeals Board therefore finds claimant to be an employee of respondent at the time of the accident. Whalen v. Kansas Children's Service League and Oak River Insurance Company, Docket No. 227,911.



• ----- Under Kansas law, employment is established through the right to control. See Falls v. Scott, 249 Kan. 54, 815 P.2d 1104 (1991). The right to control is established by agreement, ie an employment contract. Id.

• July 1997. (Ph) The primary test utilized in Kansas to determine whether an employee / employer relationship exists is whether the employer has the right of control and supervision of the employee. This involves the right to direct the manner in which the work is performed as well as the result which is to be accomplished. It is not the actual exercise of control, but the right to control which is determinative. See McCubbin v. Walker, 256 Kan. 276, 886 P.2d 790 (1994). McClellan v. Hutchinson Publishing Company, Victor Ruelas and Deborah Ruelas and Cincinnati Insurance Company, Docket No. 213,940.

• ----- Additional factors used to determine whether an employment relationship exists include: whether payment was by the piece of work or by the hour; the furnishing of tools and equipment; the right to employ assistants and supervise their activities; and whether the work was part of the regular business of the employer. Id.

• See Also Pickett v. DSI Transports, Inc. and Insurance Co. State of Pennsylvania, Docket No. 220,745 (November 1997).

3.02 The Contract of Employment

3.03 Generally

3.04 Illegal Employment

See Also § 8.22

• December 1997. (Award) Claimant, an illegal alien, was injured while on the job. Respondent argued claimant's employment contract was void and/or illegal as claimant fraudulently represented to the respondent that he was a legal alien with proper documents permitting him to work in the United States. The Appeals Board, however, concludes that for the employment contract to be void for the purposes of workers compensation coverage, the alleged fraud would have to have a causal relationship to claimant's injury. See White v. Thompson, 181 Kan. 485, 312 P.2d 612 (1957); 3 Larson's Workers' Compensation Law §47.51 (1997). The Appeals Board further finds the alleged fraud or misrepresentation did not have a causal relationship to claimant's injuries; therefore, claimant, an illegal alien, is covered under the Workers Compensation Act. Cordova v. Spice Merchant & Co. and State Farm Fire & Casualty Company, Docket No. 192,123.

• August 1997. (Award) Where the record is clear and uncontradicted that if claimant would have had a legal status, rather than being deemed an illegal alien, the respondent would have returned him to work at a comparable wage, the Appeals Board finds that a comparable wage should be imputed to the claimant as provided by K.S.A. 44-510e. The policy considerations outlined in Foulk apply to claimant's case. Claimant is therefore limited to the percentage of his functional impairment. Claimant's illegal alien status should not be a benefit to him and burden to his employer. Ortiz v. Nies Construction, Inc and CNA Insurance Company, Docket No. 199,812.

3.04a Employment Conditioned on Passing a Pre-Employment Screening Test

• February 1998. (Award) After completing the interview process, claimant was offered a job by respondent as a part-time social worker conditioned on claimant satisfactorily completing an employment physical examination. The exam was administered on respondent's premises and was conducted by physical therapists, all employees of respondent. Claimant testified she injured her back while completing the strength test section of the physical exam. The Appeals Board finds, under the circumstances of this case and for purposes of coverage under the Workers Compensation Act, that claimant was an employee of the respondent at the time she injured her back during the employment physical examination. This conclusion is supported by the fact respondent required claimant to undergo the physical examination and to satisfactorily pass this examination as a prerequisite for employment. The exam took place on the respondent' premises and was conducted by employees for respondent. Additionally, the exam benefitted respondent's interests by assuring its employees were physically qualified to perform their required work. Hazen v. Riverside Hospital and Phico Insurance Company, Docket No. 196,529.

3.04b Falsification of Pre-Employment Application

See Also, § 8.22

• April 1999. (Ph) Misrepresentation of physical condition is not a defense to a claim for workers compensation benefits. Hamilton v. Arby's Roast Beef Restaurant and National Union Fire Insurance Company, Docket No. 241,239.

• See also Hamilton v. Arby's Roast Beef Restaurant and National Union Fire Insurance Company, Docket No. 241,239 (July 1999), wherein respondent produced additional evidence to support its claim of misrepresentation and also argued the Court of Appeals in Ramirez v. Excel Corporation, Docket No. 80,670, Kan. App., rev. denied Kan. (1999), suggests that a misrepresentation made at the time of hiring will bar a workers compensation claim by an employee if there is a causal connection between the misrepresentation and the injury. However, the Board continued to hold that a misrepresentation made at the time of hiring does not bar a workers compensation claim even if the injury is causally related to that misrepresentation. The claimant is entitled to benefits if he suffered accidental injury arising out of and in the course of employment and otherwise meets the criteria of the Act. The Act does not make misrepresentation on an application for employment a defense. Further, in the Board's view, Ramirez does not hold otherwise. Id.

• June 1998. (Award) Claimant suffered a work-related injury but was later terminated when respondent discovered claimant had lied on his pre-employment application. Claimant did not disclose a prior employer and work-related injury. However, the Board concludes the fact claimant was terminated for lying on his employment application does not preclude work disability. The Board construes the Foulk and Copeland decisions as applicable to post-injury conduct, not pre-injury conduct. The underlying rationale of those decisions is to avoid the potential of manipulation inherent in claimant's post-injury conduct. The potential for manipulation of workers compensation benefits does not exist in termination for pre-injury conduct and for that reason the Board has not applied the Foulk and Copeland rationale to claimant's pre-injury conduct. Additionally, although termination for misconduct may be the event that places claimant into the open labor market, it is the restriction of the compensable work-related injury that then prevents claimant from performing the tasks he/she previously performed and may prevent claimant from obtaining work at a similar wage. The injury is in a practical sense disabling the claimant's efforts to work and is a work disability. Claimant is entitled to an 81% work disability. Figueroa v. Excel Corporation, Docket No. 211,777 [Affirmed in part and reversed in part by unpublished Court of Appeals opinion, Docket Nos. 81,420 & 81,433, February 4, 2000].



• January 1998. (Award) The Appeals Board awards a work disability in this instance despite claimant's falsification of his pre-employment application, with regard to a prior workers compensation injury in California, and concludes that the employment contract entered into between claimant and respondent did not change the employer/employee relationship with regard to claimant's entitlement to workers compensation benefits. For the employment contract to be void, sufficient for the purpose of denying workers compensation coverage, claimant's fraud would have had to have a causal relationship to claimant's injury. See White v. Thompson, 181 Kan. 485, 312 P.2d 612 (1957); 3 Larson's Workers' Compensation Law § 47.51 (1997); Cordova v. Spice Merchant & Co., Docket No. 192,123 (December 1997). Although claimant falsified his pre-employment application by failing to list prior workers compensation injuries and claims, the Appeals Board finds that neither Foulk nor Copeland apply to this scenario. In both Foulk and Copeland the improper actions of the claimant occurred after claimant suffered an injury arising out of and in the course of his or her employment with respondent. In the case at hand, the improper actions of claimant occurred at the time claimant applied for work with respondent. This was prior to the date claimant suffered his accidental injury. In addition, Foulk does not apply to this circumstance as claimant has not refused post-injury employment but instead is out of work as a result of his pre-injury actions. Copeland does not apply in this instance as claimant made a good faith effort to find work after his injury. Work disability is awarded. Ramirez v. Excel Corporation, Docket No. 198,826 [Reversed & Remanded by Court of Appeals opinion, Docket No. 80,670].



• ----- But See, Dissent, Based upon the Appeals Board's prior holdings in Ortiz v. Nies Construction, Inc., Docket No. 199,812 (August 1997) and Cano v. Andy Mackey Painting, Docket No. 202,489 (March 1997), the dissenting Board Member finds it would be inappropriate for claimant to be awarded a work disability based upon his loss of wages when respondent put forth the effort to return claimant to work at an accommodated position and claimant's loss of employment resulted purely from his own actions, ie., the falsification of his employment application at the time of hire. Id.



• See also, August 1999. (Remand) On remand the Board followed the Court of Appeals' opinion in Docket No. 80,670 and found that claimant would not be entitled to an award of work disability as a result of his loss of employment due to his own actions, ie. the falsification of his employment application. As a result, claimant's permanent partial disability award is limited to his functional impairment. Ramirez v. Excel Corp., Docket No. 198,826.



• 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.



• June 1994. (Award) The omission by claimant to "explain" his affirmative answers on his medical questionnaire, where it clearly stated to explain all answers, does not establish a knowing misrepresentation by the claimant where the Board concluded that claimant's omissions were most likely the result of insufficient information by the claimant followed shortly thereafter by an incomplete inquiry by the respondent. Respondent should have been alerted by claimant's responses to the medical questionnaire and inquired further. Shore v. City of Winfield and Self-Insured and Kansas Workers Compensation Fund, Docket No. 165,162.



• ----- Whether an employee has made a knowing misrepresentation of his condition requires a determination of whether the employee intended to misrepresent and conceal his condition at the time of the alleged misrepresentation. The key is the mental state of the claimant when he/she answered the employer's questions. Collins v. Cherry Manor Convalescent Center, 7 Kan. App. 2d 107, 626 P.2d 1223 (1981). Id.

• ----- It is significant that the concealment must be knowing. An employee who misrepresents the condition of his health to his employer solely by reason of accident or mistake without any awareness that he has done so cannot be said to have knowingly made the misrepresentation contemplated by K.S.A. 44-567(c). Krauzer v. Farmland Industries, Inc, 6 Kan. App.2d 107, 626 P.2d 1223 (1981). Id.

3.05 Employee Distinguished From Independent Contractor

3.06 Generally

• November 1999. (Ph) Claimant hauling load for Branson with tractor owned by Sheldon but under exclusive lease to Branson found to be employee of Branson even though Branson had required Sheldon to purchase workers compensation coverage for claimant. Other factors which supported this conclusion were fact that Branson paid claimant, Branson withheld taxes, and the fact that claimant was otherwise employed by Branson to drive Branson-owned tractors when other drivers were not available. Haggard v. Branson Truck Line, Inc. and Dennis Sheldon D/B/A Sheldon Trucking, Docket No. 244,540.

• September 1999. (Ph) Respondent determined to be subcontractor under K.S.A. 44-503, and claimant determined to be employee of respondent based on the following: 1) all the materials and tools were supplied by respondent, 2) respondent assigned the jobs, 3) claimant worked with a crew of employees hired by respondent, and 4) respondent determined when, how long and where claimant worked each day. Juarez v. Rock Construction Company and Premier Realty and Continental Western Insurance Co., Docket No. 242,177.

• September 1999. (Ph) Claimant leased her tractor trailer and then in turn leased it to respondent. Respondent argued claimant was an independent contractor and therefore compensation was precluded under K.S.A. 1998 Supp. 44-503b(h)(1), which excludes self-employed contractors from the definition of a worker. The ALJ found this statute inapplicable because claimant was not the "owner" of the truck; the Appeals Board agrees. The Kansas Supreme Court has considered instances where a claimant was a truck driver or owner-operator of a truck, contracting with companies whose business was to deliver goods throughout the Untied States. The Court has held the employer's right to control is an important element in determining what makes an employee or an independent contractor. The Board finds, in the case at hand, that the amount of control exercised by respondent and the level of supervision by respondent over the work of claimant satisfied the right of control test. Kern v. Ameritruck Refrigerated Transport, Inc. and Clarendon National Insurance Company, Docket No. 244,140.

• July 1999. (Award) Owner-operator of tractor trailer found to be employee of respondent where the Board determined the amount of control exercised by respondent and the level of supervision by respondent over the work of the claimant satisfied the right of control test. See also Knoble v. National Carriers, Inc., 212 Kan. 331, 510 P.2d 1274 (1973); and Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 198, 558 P.2d 146 (1976). Marley v. M. Bruenger & Company, Inc. and Legion Insurance Company, Docket No. 213,003 [Reversed by Court of Appeals opinion, Docket No. 83,699, May 5, 2000].



• ----- Application of 1996 amendment to K.S.A. 44-503 discussed. Id.

• February 1999. (Ph) The Appeals Board finds claimant to be an employee of respondent rather than an independent contractor. Based upon the language of K.S.A. 1997 Supp. 44-503(h)(2)(C), claimant cannot be the owner-operator of the truck he drives for respondent, since claimant has only a questionable 1 percent interest in that vehicle with respondent having a 99 percent interest. Further, the Board finds the contract respondent had claimant sign stating claimant was the owner-operator of the vehicle was intended to allow respondent to avoid the responsibility of providing workers compensation insurance to claimant. Stansbury v. John Walker and/or J & H Trucking, Inc, Docket No. 234,370.



• September 1998. (Ph) Claimant was to be paid $4700 to build cabinets for a home being constructed. Claimant was told that time was important and his work should be done by a specified time. Claimant furnished his own tools and performed the work in his own home. Although the evidence showed some control exhibited by respondent, the Board finds claimant was an independent contractor and not an employee. Baalmann v. Zeller Construction Company, Inc and Kansas Building Industry Workers Compensation Fund, Docket No. 225,575.



• August 1998. (Award) A worker who did not operate an independent business but maintained an ongoing relationship with an employer; who performed work that was an integral part of the employer's business; whose work was directed and controlled by the employer; who did not furnish the larger equipment and necessary components required to perform the work; and who was paid on an hourly basis rather than by the project, was found to be an employee rather than an independent contractor. 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].



• August 1998. (Ph) Claimant was injured in an automobile accident while driving a taxicab for respondent. The Appeals Board found claimant was an employee of respondent and not an independent contractor. That conclusion was reached for the following reasons: claimant's driving respondent's taxicab was an intricate and necessary part of respondent's business; respondent had the right to control the drivers by it's authority to hire and terminate the relationship for violation for certain rules; and although respondent's income was not directly tied to claimant's earnings, claimant nevertheless paid the amount charged by respondent to lease the taxicab from such earnings. Additionally, these facts are consistent with the holding in Read v. Warkentin Commissioner, 185 Kan. 286, 341 P.2d 980 (1959). Columbus v. American Cab, Inc and Travelers Insurance Company, Docket No. 228,937.



• July 1998. (Ph) Generally, an independent contractor is someone who contracts to perform a piece of work according to his own methods and without being subject to control of an employer, except as to final result. A master, however, is someone who employs another to perform services in his affairs and who controls or has the right to control the conduct of the other in performing those services. It is the right to control, not the actual exercise of that right that is important. See Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 689 P.2d 787 (1984). Russell v. H & K Delivery; Merchants Home Delivery; and Levitz Furniture Corp and Crawford & Company Travelers Property Casualty, Docket No. 192,809.



• ----- In addition to the right to control and the right to discharge the worker, other commonly recognized tests of the independent contractor relationship are (1) the existence of a contract to perform a certain piece or kind of work at a fixed price, (2) the independent nature of the worker's business or distinct calling, (3) the employment of assistants with the right to supervise their activities, (4) the worker's obligation to furnish necessary tools, supplies, and materials, (5) the worker's right to control the progress of the work, (6) the length of time for which the worker is employed, (7) whether the worker is paid by time or by job, and (8) whether the work is part of the regular business of the employer. See McCubbin v. Walker, 256 Kan. 276, 886 P.2d 790 (1994). Id.

• ----- The relationship of contracting parties depends on all the facts and the label that they choose to employ is only one of those facts. The terminology used by the parties is not binding when determining whether an individual is an employee or an independent contractor. See Knoble v. National Carriers, Inc., 212 Kan. 331, 510 P.2d 1274 (1973). Id.

• ----- Despite the fact claimant signed a contract with respondent labeling him as an independent contractor, claimant is found to be an employee of respondent where: claimant did not work for anyone other than respondent; respondent controlled the time claimant worked, the number of deliveries he made, what he wore, the use of his truck and to some degree the time he would finish each day. Id.

• See Also, Mike Newberry vs. Laforge & Budd Construction Company and Indemnity Insurance Company of North America, Docket No. 250,386 (April 2000).



• See Also, Olden v. Treescape & Irrigation, Inc and Travelers Insurance Company, Docket No. 233,582 (July 1998).



• February 1998. (Award) For a claimant to be eligible to receive benefits under the Workers Compensation Act, the claimant must be an employee of respondent. An employee is defined in K.S.A. 44-508 as any person who has entered into the employment or works under any contract of services or apprenticeship with an employer. Hazen v. Riverside Hospital and Phico Insurance Company, Docket No. 196,529.



• May 1997. (Ph) Claimant fell injuring his right wrist when the scaffolding on which he was standing collapsed. The sole issue for the Appeals Board was whether claimant was an employee of respondent and therefore covered under the Workers Compensation Act or whether he was an independent contractor. Although the Appeals Board found substantial evidence which could support finding claimant to be either an employee or an independent contractor, the evidence did show respondent, at a minimum, defined the job to be done and could reject the finished product. Furthermore, although the evidence that claimant was paid by the square rather than by the hour or by salary tends to show he was an independent contractor rather than an employee, both claimant and respondent testified that paying by the square was customary in the roofing industry regardless of the employment relationship. Similarly, although claimant's providing his own equipment tends to point to his being an independent contractor, the evidence showed it was also common for roofers to have their own tools. Therefore, the Appeals Board found the greater weight of evidence to be in support of claimant's being an employee of respondent rather than an independent contractor. Golden v. Tony Strunk Construction Co. and Wesley Haring Roofing and Kansas Workers Compensation Fund, Docket No. 214,249.



• ----- Independent contractor defined as "one who, in . . . [his/her] . . . exercise of an independent employment, contracts to do a piece of work according to his/her own methods and who is subject to the employer's control only as to the end product or final result of the work." See Danes v. St. David's Episcopal Church, 242 Kan. 822, 752 P.2d 653 (1988). Id.

• November 1994. (Award) Claimant entered into a rental contract with respondent to rent certain space from respondent in respondent's building for the purpose of rebuilding pallets--which would be sold to respondent. Claimant filled out no employment application. Claimant was not supervised by respondent nor given designated working hours. On her first day at work, claimant fell down a flight of stairs injuring her head and neck. Claimant requested her medical bills be paid by respondent under an employee-employer relationship. Respondent refuses to pay stating claimant is an independent contractor. Although respondent did not exercise any control over claimant by directing the manner in which claimant performed the work and respondent had never terminated anyone from the position, respondent did provide some of the tools and equipment necessary for claimant to perform the work. However, the Board does not find, based on the totality of the evidence, that the furnishing of some equipment is sufficient to find an employer - employee relationship. Claimant is found to be an independent contractor. Benefits denied. Johnson v. Richter Pallet Company and Unknown and Kansas Workers Compensation Fund, Docket No. 183,158.



• ----- The Board cites the case of Smith v Brown, 152 Kan. 758, 107 P.2d 718 (1940), for the proposition that even if a claimant is paid by the hour, an independent contractor relationship may nevertheless be found by looking at all the circumstances involved. Id.

• December 1993. (Award) Claimant, who was doing work as a handyman for St. Francis Home, was found not to be an employee where respondent did not control the manner or method of performing his work. Staley v. Sears Roebuck & St. Francis Home and Kansas Workers Compensation Fund, Docket Nos. 169,148 & 170,412.

3.07 Payment of Wage