7.07 Unauthorized Medical Expense Allowance

• April 2000. (Award) Claimant sought an examination from a physician. They paid the physician's examination charge from the unauthorized medical allowance. Claimant did not request an impairment rating during this examination. The Board concluded that claimant, if he or she wants, may obtain a functional impairment rating from this physician and pay for the rating separately. Claimant can then decide whether to enter the functional impairment rating into the record and this does not violate the provisions of K.S.A. 44-510(c)(2). Martha Castro vs. IBP, Inc., Docket No. 190,478 (April 2000).

• December 1999. (Award) If award provides for future medical expenses on proper application and claimant obtains non-emergency post-award treatment without first getting authorization or an order from the ALJ, the treatment will be considered unauthorized medical expense. Persyn v. Criss Optical Manufacturing Co., Docket No. 233,954.

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 (Remand - Award) [This case was originally remanded to the Board in an unpublished Court of Appeals decision; the Board issued an Order; the ALJ issued a subsequent Order in January 1998, which is the subject of this appeal].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



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

• July 1998. (Award) Pursuant to K.S.A. 44-510, the employer is obligated under the Workers Compensation Act to provide medical care reasonably necessary to relieve and cure the employee from the effects of injury. Subsection (c)(2) of that statute limits the employer's liability for unauthorized medical care to the current statutory limit of $500. Case law, however, provides an exception to the statutory provision when the employer neglects to provide medical care. If the employer has neglected to provide care, that employer may be liable for the costs of the care the employee obtains on his or her own. See Cross v. Wichita Compressed Steel Co, 187 Kan. 344, 356 P.2d 804 (1960). Milner v. American Drug Stores, Inc d/b/a Osco Drug and Kemper Insurance Company, Docket No. 198,875. [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,675, December 23, 1999.]

• May 1998. (Award) Unauthorized medical expense allowance denied on appeal where the Appeals Board finds claimant's low back injury to not be work-related. Killingsworth v. Premier Studios and Fireman's Fund Insurance Company and Kansas Workers Compensation Fund, Docket No. 189,097.



• November 1997. (Award) Where respondent did not authorize claimant's medical treatment under Dr. Lynch and where respondent had referred claimant to a different physician, the Appeals Board finds that the denial by the Administrative Law Judge of the payment of the medical treatment by Dr. Lynch is appropriate and claimant is entitled to up to $350 unauthorized medical treatment by Dr. Lynch. Anton v. Rolm Company and Travelers Insurance Company, Docket No. 195,009.

• August 1997. (Award) Respondent argues claimant should not be entitled to the unauthorized medical expense allowance set forth in K.S.A. 44-510(c)(2), where claimant, although not receiving a functional impairment rating from the physician, did receive an opinion regarding permanent restrictions. The Appeals Board has previously addressed this issue in Funk v. Sunflower Training Center, Docket No. 189,244 (May 1996), in which the Appeals Board found K.S.A. 44-510(c)(2) specifically prohibits the use of the unauthorized medical expense for the purpose of obtaining a functional impairment rating. However, the statute does not prohibit the unauthorized medical expense allowance to be used to obtain restrictions against future physical activities, nor does it specifically prohibit an opinion from a physician regarding a claimant's loss of ability to perform work tasks performed during the 15 years preceding claimant's accident. Therefore the Appeals Board affirms the Administrative Law Judge's conclusion that claimant is entitled to the unauthorized medical expense allowance. Stark v. Monfort, Inc., Docket No. 210,898.



• ----- The unauthorized medical expense allowance contained in K.S.A. 44-510(c)(2) allows the employee to choose a health-care provider for examination, diagnosis and treatment without authorization from the employer. The employer is obligated to pay such fees and charges of the health-care provider up to the statutory maximum, which is currently $500. Id.

• June 1997. (Award) Where claimant chose to go to a physician not authorized by the employer, the Appeals Board applies K.S.A. 1992 Supp. 44-510(c) to this 1992 injury case, which allows the employee, without application or approval, to consult a health-care provider of the employee's choice for the purposes of examination, diagnosis or treatment. However, based upon the 1992 amendment, the employer is only liable for fees and charges of the health-care provider up to $350 -- the unauthorized medical expense allowance cap. Griffin v. Dale Willey Pontiac-Cadillac-GMC and Kansas Motor Car Dealer WCF, Docket No. 175,244 [Affirmed by Supreme Court opinion, Docket No. 79,505].

• April 1997. (Award) Where the record indicates that respondent offered to provide claimant with several health care providers but claimant, nevertheless, sought out his own health care provider to perform his surgery, the Appeals Board finds claimant's surgery to be an unauthorized medical expense for which respondent is only liable for $350. See K.S.A. 44-510c (Ensley). Patee v. The Boeing Company and Aetna Casualty & Surety and Kansas Workers Compensation Fund, Docket No. 160,948.

• February 1997. (Award) Claimant's request for reimbursement for chiropractic treatment he received is denied, except as unauthorized medial within the statutory allowed limit, where respondent did not authorize the chiropractic treatment but did provide appropriate medical treatment for claimant. Denk v. State of Kansas, Docket No. 176,667.

7.08 Neutral Physicians

• May 1997. (Order) In appointing a neutral physician under K.S.A. 44-516 or an independent health care provider under K.S.A. 1996 Supp. 44-510e, the administrative law judge should be given wide latitude in selecting such physicians to evaluate injured workers and provide their unbiased opinions. Respondent, however, contends it should be given an opportunity to challenge the Asst. Director's appointment of a neutral health care provider on the grounds the physician lacked either "good standing" or "ability." Considering both K.S.A. 44-516 and also K.S.A. 1996 Supp. 44-510e(a), the Appeals Board finds the Workers Compensation Act does not contemplate the parties be permitted to challenge the administrative law judge's appointment of a neutral physician at the time of the appointment. Evidence of the physician's lack of ability, lack of credentials, lack of good standing or other pertinent evidence may be presented by the parties in their case in chief such as at the provider's deposition, and thus, it will be considered by the fact finder in determining how much weight, if any, should be given the provider's opinion. Therefore, when the administrative law judge appoints the neutral physician, he/she is not required to conduct an evidentiary hearing to address the physician's "good standing" or "ability." Findley v. Shawnee Mission Ford and Universal Underwriters, Docket No. 201,887.

• March 1997. (Award) K.S.A. 1994 Supp. 44-510e(a) provides that an administrative law judge must appoint an independent health care provider to issue an opinion regarding a worker's functional impairment when the worker and employer cannot agree upon the appropriate rating. That statute further provides that the administrative law judge must consider that opinion when determining the award. The recent case of McKinney v. General Motors Corp, 22 Kan. App.2d 768, 821 P.2d 257 (1996), held that the independent medical examiner's report becomes a part of the evidentiary record without supporting testimony. See Also K.S.A. 44-516. Haataja v. General Riggers & Erectors, Inc. and Liberty Mutual Insurance Company, Docket No. 173,814. [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,762].

7.09 Right to Designate Treating Physician

• July 1997. (Award). Where the employer and employee are the same individual, potential conflicts of interest arise. The Appeals Board concludes, under these unique set of circumstances, it is "appropriate" that the insurance carrier have the right to designate the authorized treating physician. Matney, D.C. v. Matney Chiropractic Clinic and State Farm Fire & Casualty Co., Docket No. 199,834 [Affirmed in part, reversed in part and remanded with directions by Court of Appeals, Docket No. 79,560; Affirmed in part and reversed in part by Kansas Supreme Court opinion, Docket No. 79,560, January 28, 2000].

7.10 Rehabilitation

• December 1997. (Award) Vocational rehabilitation benefits, as provided by K.S.A. 1991 Supp. 44-510g, would not be appropriate where claimant has demonstrated she possesses the ability to earn at or near a comparable wage. Gutierrez v. Parkview Manor/Beverly Enterprises and National Union Fire Insurance Company and Kansas Workers Compensation Fund, Docket No. 175,047.

• November 1997. (Award) When determining which facility should be utilized to provide an injured workers long term rehabilitation, the standard to be used is which facility would better provide the needed services, subject, of course, to the Director's fee schedule and the utilization and peer review procedures. See K.A.R. 51-24-2. Harrell v. Criqui Construction Company and Insurance Company of North America, Docket No. 190,912.

• October 1997. (Award) Per K.S.A. 44-510g, there are two alternative bases for qualifying for vocational rehabilitation. First, the claimant may qualify by being unable to perform work at a comparable wage for the same employer. Second, claimant may qualify if he/she is unable to enter the open labor market and earn a comparable wage based upon his education, qualifications or experience. See Discussion in, McLinn v. Commercial Sound Company and Commercial Union Insurance Company, Docket No. 173,709.

• September 1996. (Award) The Appeals Board interprets K.S.A. 1990 Supp. 44-510g(e) to allow the ALJ to award vocational rehabilitation benefits in a final award regardless of whether those benefits are retroactive or prospective. Abrams v. Joe Conroy Contractor, Inc and Aetna Casualty & Surety Company, Docket No. 150,733.

• ----- K.S.A. 1990 Supp. 44-510g(g) provides that those weeks of temporary total disability compensation which are paid during any period of vocational rehabilitation are not to be deducted from the 415 weeks of benefits, subject to a maximum of 26 weeks. The Appeals Board, therefore, found that claimant would be entitled to a total of 441 weeks of combined temporary total disability and permanent partial disability benefits. Id.

• ----- Vocational rehabilitation benefits awarded by ALJ are appropriate where training returned claimant to approximately 85 percent of his pre-injury average weekly wage and would enable claimant to earn even more when he becomes eligible for the health insurance benefits at his new employment. The Board found claimant's training allowed for a substantial improvement in claimant's wage-earning ability over that which he possessed after his injury and prior to the vocational training. The only part of the ALJ's award of vocational rehabilitation benefits which the Board denied were to the extent the award of benefits duplicated the money and funds claimant received from a Pell Grant to attend the vocational rehabilitation training. Id.

• December 1993. (Award) Vocational rehabilitation ordered where evidence showed there would be some jobs at a comparable wage in the open labor market which claimant could perform but evidence also established that in spite of his efforts, claimant had been unable to obtain employment. Branstetter v. Villa Del Mar Apartments, Docket No. 160,657.

7.11 Disability

7.12 Generally

7.13 Temporary Total

• July 1999. (Award) Claimant not awarded additional temporary total disability benefits where he was found not to have been temporary and totally disabled, as he could have worked an eight-hour day but chose not to. Edwards v. D & M Masonry and TIG Insurance Group, Docket No. 220,839.

• February 1999. (Award) Respondent argues that claimant should be denied the awarded 3.75 weeks of temporary total disability while participating in a work hardening program because claimant missed seven of the sixteen weeks. The Board acknowledges that claimant had some non work-related health problems separate from her work-related back injury and was in the process of resolving these problems when she missed the work hardening sessions. However, the Board does not find this sufficient reason to deny claimant temporary total disability. Leighty v. Aging Projects, Inc and Wausau Underwriters Insurance Company, Docket No. 216,983.



• 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.



• January 1999. (Award) The ALJ denied temporary total disability citing K.S.A. 1997 Supp. 44-510d(b) for his denial. While the Board acknowledges the language of K.S.A. 1997 Supp. 44-510d(b) is somewhat misleading in that it seems to indicate that temporary total disability should not be allowed when there is a scheduled injury, the Appeals Board does not find this to be the legislative intent. By looking at the plain language of K.S.A. 44-510c, the statute pertaining to temporary total disability, the Board finds it clear that the legislature contemplated an entitlement to temporary total disability followed by compensation under the scheduled injury statute. Additionally, it is clear from the Court of Appeals' opinion in Carter v Koch Engineering, 12 Kan. App.2d 74, 735 P.2d 247, rev. denied 241 Kan. 838 (1987), that the payment of temporary total disability compensation is proper in a scheduled injury award under K.S.A. 1997 Supp. 44-510d. Morris v. Lance, Inc and Travelers Insurance Company, Docket No. 237,383.



• October 1998. (Award) Claimant is not entitled to temporary total disability where it is determined from several physicians and a MMPI report that claimant's back pain may not stem from a physiological condition but mental condition known as symptom magnification disorder. Boyd v. Logan Manor Community Health and EMC Insurance Company, Docket No. 222,740.



• August 1998. (R/M) In some circumstances when cases are consolidated temporary total disability compensation may be deducted from multiple accidents when only one award is granted. However, in keeping with the intent of the parties Agreed Award, the Appeals Board finds that the temporary total disability compensation paid for the first date of accident should not be deducted from the permanent total running award in this multiple docketed case. 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].

• July 1998. (Award) Claimant awarded temporary total disability benefits for the time he was off work for an unauthorized surgery, where the Board concludes that claimant was nevertheless temporarily and totally disabled at that time. Milner v. American Drug Stores, Inc d/b/a Osco Drug and Kemper Insurance Company, Docket No. 198,875.

• June 1998. (Award) Temporary total disability is not awarded where claimant's work-related injuries temporarily disabled him from working for the respondent but did not disable him from continuing to work for another part-time employer. Claimant's injuries did not render him completely and temporarily incapable of engaging in any type of substantial and gainful employment. K.S.A. 44-510c(b)(2). Redgate v. Untied Parcel Service and Liberty Mutual Insurance Company, Docket No. 217,691.



• March 1998. (Ph) Under K.S.A. 44-510c, a release to return to work with temporary medical restrictions does not preclude an order of temporary total disability benefits when the health care provider, after considering the workers' job duties, indicates the worker is unable to perform those duties. Regnier v. Roadway Express, Inc., Docket No. 210,315



• ----- By its very definition, temporary total disability exists only as long as a worker's medical condition is temporary in nature. When the medical condition becomes permanent in nature and when temporary work restriction are removed, K.S.A. 44-510c provides that the right to temporary total disability benefits terminates. Id.

• ----- The language of the Preliminary Decision or Order should be understood to read that temporary total disability benefits may also be terminated upon a finding that claimant has reached maximum medical recovery, returned to work, the temporary restrictions have been removed, or for any other appropriate reason as set forth by either statute or case law, and upon further order of the administrative law judge. Id.

• January 1998. (Award) Claimant was not off work for three consecutive weeks and is, therefore, not entitled to temporary total disability benefits for the first week. See K.S.A. 44-510c. Paniagua v. National Beef Packing Co. L.P. and Wausau Insurance Companies, Docket No. 205,469 [Affirmed by unpublished Court of Appeals opinion, Docket No. 80,669].



• January 1998. (Ph) Where claimant only missed two weeks of work, claimant is only entitled to one week of temporary total disability per K.S.A. 44-510c(b)(1), which restricts the payment of temporary total disability compensation during the first week of disability unless temporary disability exists for three consecutive weeks. Garcia v. National Beef Packing Company and Wausau Underwriters, Docket No. 222,560. [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,459].

• October 1997. (Ph) K.A.R. 51-3-5a provides that except in highly unusual circumstances the Administrative Law Judge shall not award compensation prior to the filing date of the application. Therefore, the Appeals Board finds that the Administrative Law Judge's decision to defer temporary total disability until the regular hearing was appropriate where the claimant was released and returned to work prior to filing his application for preliminary hearing. Traylor v. Linscheid and ITT Hartford, Docket No. 225,445.



• May 1997. (Award) Temporary Total Disability benefits denied claimant who could not meet the burden of proving a disability existed. See Discussion in, Fahringer v. IBP, Inc., Docket Nos. 159,418 & 159,419.

• April 1997. (Award) The Administrative Law Judge awarded claimant temporary total and medical benefits for the period of time claimant was taken off work by one of his physicians, despite the fact claimant's work had not permanently aggravated his hip condition. The Administrative Law Judge opined that the benefits were voluntarily paid to claimant by the insurance carrier and there was no need for refund of the benefits. The Appeals Board agreed with the finding of compensability but not the rationale. The Appeals Board looked to the testimony of one of claimant's physicians who stated claimant's work had caused the temporary flare up in claimant's hip which forced him off work. The temporary total benefits, therefore, were for a condition which did arise out of and in the course of employment. Gregg v. Ford Motor Company and Cigna Insurance Company and Kansas Workers Compensation Fund, Docket No. 166,866.

• April 1997. (Award) Temporary total disability denied where evidence shows claimant missed work due to non work-related bronchitis. Wrigley v. Medicalodges, Inc. and Workers Compensation Fund, Docket No. 162,882.

• April 1997. (Ph) Held, the Administrative Law Judge did not exceed his jurisdiction when he ordered the respondent to pay a higher temporary total disability weekly compensation rate retrospectively to claimant's date of accident. Sevilla v. Ismael Calderon and Century Roofing and Commercial Union Insurance Company and Kansas Workers Compensation Fund, Docket No. 211,139.

• March 1997. (Ph) The granting of temporary total disability benefits is not mandatory. Spangler v. Dillon Companies, Inc., Docket Nos. 217,810; 217,811; and 217,812.

• March 1996. (Ph) Temporary total and temporary partial disability serve the same purpose under the Workers Compensation Act, that of acting as a wage replacement. Additionally, the calculations for computing both temporary total and temporary partial are basically the same. Brown v. Lawrence-Douglas County Board of Health & Aetna Casualty & Surety Company, Docket No. 205,848.



• See Also, Richardson v. Wichita Arms, Inc., Docket No. 176,396 (August 1994).

• December 1995. (Award) The ALJ declined to award temporary total disability (TTD), finding that the right to TTD benefits was limited to 415 weeks from the date of accident. The Board, however, disagreed with that conclusion. The Board finds the only limit on TTD is the dollar limited expressed in K.S.A. 44-510f(a)(2) (Ensley). As such, the Board finds claimant should be awarded TTD at the agreed rate until claimant is released to return to work by the treating physician or until claimant reaches maximum medical improvement, subject to the statutory maximum of $75,000. Cole v. City of Salina and Firemans Fund Insurance and Kansas Workers Compensation Fund, Docket No. 150,511.

• March 1995. (Award) Temporary total benefits are a wage replacement. Permanent partial general disability, on the other hand, compensate injured workers for the loss of ability to earn comparable wages in the open labor market. See Brown v. City of Wichita, 17 Kan. App.2d 72, 832 P.2d 365, rev. denied 251 Kan. 937 (1992). Holt v. North American Philips Lighting and Travelers Insurance and Kansas Workers Compensation Fund, Docket No. 163,562.

7.14 Permanent Partial

• February 1998. (Award) Permanent partial disability granted where claimant has suffered a substantial work disability but is still capable of performing work in the open labor market and earning an entry level wage. Hargett v. W.A. Dunbar and CNA Insurance Company and Workers Compensation Fund, Docket No. 173,294.

• March 1997. (Award) Although respondent argues claimant's physician stated her neck and back injuries could eventually resolve themselves, the Appeals Board awards permanent partial disability noting the physician also stated the injuries may not resolve themselves and that respondent could seek review and modification if they do. Martin v. IBP, Inc. and Workers Compensation Fund, Docket No. 165,267. [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,847].



• March 1997. (Award) Based upon the testimony of claimant and several physicians, the Appeals Board finds claimant is entitled to receive permanent partial disability benefits for a 68 percent work disability as a result of the injuries claimant sustained when a 900 pound beam fell 40 feet striking claimant on the head. See Discussion in, Haataja v. General Riggers & Erectors, Inc. and Liberty Mutual Insurance Company, Docket No. 173,814 [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,762].



• March 1994. (Award) Claimant is entitled to a healing period of 15 weeks in case involving hand surgery. Samms v. Abilene Nursing Home, Docket No. 168,071.

• January 1994. (Award) To calculate benefits for a repetitive trauma injury the last date worked is used where evidence does not support finding any other date. Gauld v. Koch Engineering, Docket No. 158,876.

7.15 Temporary Partial

• July 1999. (Award) Claimant not awarded temporary partial disability benefits where he was found not to have been temporary and partially disabled, as he could have worked an eight-hour day but chose not to. Edwards v. D & M Masonry and TIG Insurance Group, Docket No. 220,839.



• June 1998. (Award) Temporary partial disability rather than temporary total disability awarded where claimant's work-related injuries temporarily disabled him from working for the respondent but did not disable him from continuing to work for another part-time employer. See K.S.A. 1996 Supp. 44-510e(a). Redgate v. Untied Parcel Service and Liberty Mutual Insurance Company, Docket No. 217,691.

• ----- Discussion of the method to compute the weekly rate of temporary partial disability benefits where claimant works part-time for two different employers. K.S.A. 1996 Supp. 44-510e(a) controls the computation of the weekly compensation rate for temporary partial general disability. K.S.A. 44-511(b)(7) also provides that if claimant is employed at the same or a very similar type of work on a part-time basis for each of two or more employers, and is injured, his/her total average gross weekly wage will be the total of the part-time employments. By the language of this statute, the Appeals Board finds a policy decision was made by the legislature to not include the total of all part-time employers in an injured employee's pre-injury average gross weekly wage if the employee was not performing the same or similar work for both employers. Since claimant was not performing the same or similar work, claimant's pre-injury average gross weekly wage is based on the weekly wage claimant was earning while employed by respondent and not the total of the weekly wages earned from both and respondent and the other part-time employer. Id.



• ----- Claimant's temporary partial weekly compensation rate is determined to be $28.43. Claimant's average gross weekly wage while employed by the respondent was $221.79. After his injury, claimant was actually earning $179.14 per week while employed by the other part-time employer. The difference between those two average gross weekly wages is $42.65 and 66% of $42.65 is $28.43. See K.S.A. 1996 Supp. 44-510e(a). Id.



• ----- But See Dissent, the dissenting Board Member does not believe the legislature contemplated a factual situation like this. He would only consider claimant's pre- and post-injury wages earned directly from respondent when calculating temporary partial disability benefits; or in the alternative, include both respondent and the other employer's wages when calculating the pre- and post-injury wages. Id.



• ----- But See Second Dissent, the dissenting Board Member would affirm the decision of the ALJ awarding temporary partial disability benefits. He does not believe the legislature intended the general language of the temporary partial disability statute to be imposed when an employee is working two jobs at the time of the injury. [ The ALJ used the total average gross weekly wage of both part-time employments, pre-injury, when figuring the temporary partial disability rate]. Id.

• October 1996. (Ph) Temporary partial disability is not to be awarded in scheduled injury cases. The language in K.S.A. 44-510e specifically provides for temporary partial disability only in cases of "temporary or permanent partial general disability not covered by such schedule." K.S.A. 44-510e also contains the language or formula for calculating temporary partial disability. No such language appears in K.S.A. 44-510d, the "scheduled injury" statute. Ledbetter v. Constar Plastics and Cigna Property & Casualty, Docket No. 205,252.

• March 1996. (Ph) Temporary total and temporary partial disability serve the same purpose under the Workers Compensation Act, that of acting as a wage replacement. Additionally, the calculations for computing both temporary total and temporary partial are basically the same. Brown v. Lawrence-Douglas County Board of Health & Aetna Casualty & Surety Company, Docket No. 205,848.



• ----- An administrative law judge has authority to enter a preliminary hearing order for the payment of temporary partial disability. Id.

• December 1995. (Award) The proper method to account for the payment of temporary partial disability compensation is to convert the amount of temporary partial paid into a weekly equivalent by dividing the total sum of temporary partial disability benefits paid by the weekly temporary total disability benefit rate. Therefore, the 24.57 weeks of temporary partial disability benefits that respondent paid claimant during the pendency of this claim at the rate of $26.62 per week in the sum of $654.12, represents the equivalent of 3.16 weeks temporary total disability which was found to be the correct figure to be used in calculating claimant's award. Brobst v. Brighton Place North and Church Mutual Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 152,447; 152,448 & 152,449 [ Affirmed by Kansas Court of Appeals, 24 Kan. App.2d 766, 955 P.2d 1315 (1997)].



• See also, Richardson v. Wichita Arms, Inc., Docket No. 176,396 (August 1994).

• August 1994. (Award) Although the Workers Compensation Act limits the number of weeks that temporary partial and permanent partial disability benefits may be paid, it is silent in the method and manner that temporary partial is to be considered for the purposes of computation of an award. The Appeals Board finds the proper method to convert the temporary partial paid into a weekly equivalent is to divide the total sum of temporary partial disability benefits paid, or in the case at hand -- $721.42, by the weekly temporary total disability benefit rate -- $299. Using this method, the weekly equivalent of the temporary partial disability benefits paid in the proceeding is 2.41 weeks. Richardson v. Wichita Arms, Inc and Cigna, Docket No. 176,396.

7.16 Permanent Total

• August 1999. (Award) In the case at hand, the Board finds claimant entitled to a permanent total disability award rather than a work disability award as a result of her severe psychiatric condition and diagnosis of fibromyalgia. Smallwood v. Golf Enterprises, Inc. and Travelers Insurance Company and Kansas Workers Compensation Fund, Docket No. 206,399.

• April 1999. (Award) K.S.A. 44-501(c) requires that any award of compensation be reduced by the amount of functional impairment determined to be preexisting. In the case at hand, claimant had a preexisting impairment of 5 percent. A permanent total disability differs from a 100 percent permanent partial disability. A permanent total disability pays benefits of $125,000 at a weekly compensation rate based on the calculation set forth in K.S.A. 44-510c. A 100 percent disability, on the other hand, would pay the weekly compensation rate for 415 weeks, but not to exceed $100,000. K.S.A. 1996 Supp. 44-510e. As a result, one cannot deduct the percentage of impairment in exactly the same way one would with a permanent partial disability. One cannot deduct the percentage of preexisting disability from the percentage of disability found. The Board concluded, however, that the logical alternative would be to deduct the number of weeks represented by the preexisting disability, in this case 20.75 weeks for a 5 percent disability, from the number of weeks of benefits to be paid for the permanent total disability. In this case, the permanent total disability would be paid at $293.35 per week for 23.14 weeks of temporary total disability and 402.97 weeks of permanent disability for a total of $125,000. With the 20.75 weeks deducted, the award in this case was found to be for 23.14 weeks of temporary total disability at $293.35 per week and 382.22 weeks (402.97 - 20.75 = 382.22) of permanent total disability at $293.35 per week for a total award of $118,912.36. Horton v. Bob's Super Saver Country Mart Cadwell's Country Mart and Crum & Forster Insurance Company United States Fire Insurance North River insurance Company, Docket Nos. 220,167 &220,168 [Affirmed by unpublished Court of Appeals opinion, Docket No. 83,289, February 18, 2000].

• March 1999. (R/M) 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. Robison v. Presbyterian Manors-Mid America and Insurance Company of North America, Docket No. 112,416.



• January 1999. (Award) The Board reversed the ALJ's determination that claimant is entitled to permanent total disability benefits. First, claimant was able to return to work for respondent earning the same amount of compensation after her first work-related injury, and the medical evidence does not support a finding of any permanency for the second work-related injury in 1996. Further, claimant's removal from her employment and inability to perform the job stem from a 1996 hernia incident which, statutorily, limits claimant to a scheduled injury under K.S.A. 1996 Supp. 44-510d. Goodwin v. Southland Corporation, D.B.A. 7-Eleven and American Protection Insurance Company, Docket No. 216,691.

• December 1998. (Award) Claimant awarded permanent total disability benefits, where evidence warrants such an award, despite the fact claimant did not request such benefits before the Board or ALJ. Claimant only requested permanent partial be awarded. Lott-Edwards v. Americold Corporation and Wausau Underwriters Insurance Co and National Union Fire Insurance Co and Travelers Property Casualty, Docket Nos. 175,770; 175,771; and 223,800 [Affirmed by Court of Appeals opinion, Docket No. 82,555, June 23, 2000].



• ----- But See, Second Dissent, the Dissenting Board Member finds that claimant should be denied permanent total disability benefits since claimant did not state she was asking for such benefits and did not fulfill her burden of proving her entitlement to those specific benefits. Rather, claimant asked for permanent partial disability benefits and should be granted those benefits. The Board should not litigate workers compensation injuries for the parties or create issues which have not been raised. Id.

• ----- But See, Third Dissent, the Dissenting Board Member also finds that claimant should be denied permanent total disability benefits since claimant did not state she was asking for such benefits. Because claimant never alleged she was permanently and totally disabled as a result of her work-related injuries, the respondent never had notice she was seeking such benefits and consequently never had the opportunity to present evidence in an effort to defend the allegation. Id.

• December 1998. (Award) Permanent total disability means completely and permanently unable to engage in any substantial gainful employment. K.S.A. 44-510c. The statutory definition has been construed to include an employee who is essentially and realistically unemployable. See Wardlow v. ANR Freight Systems, 19 Kan. App.2d 110, 872 P.2d 299 (1993). In the case at hand, the Board finds that although one physician has testified that claimant is permanently and totally unable to work, the greater weight goes to the physicians who find claimant is capable of earning around $6 per hour. Claimant is not found to be permanently and totally disabled. Abbott v. Renzenberger, Inc and ITT Hartford, Docket No. 225,412.

• See also, Horton v. Bob's Super Saver Country Mart Cadwell's Country Mart and Crum & Forster Insurance Company United States Fire Insurance North River insurance Company, Docket Nos. 220,167 &220,168 (April 1999) [Affirmed by unpublished Court of Appeals opinion, Docket No. 83,289, February 18, 2000]..

• May 1998 (Award) Claimant found permanently and totally disabled after falling 12-15 feet from scaffolding while working for respondent. This work-related injury caused claimant severe disabling physical injuries, coupled with the psychological problems that arose out of the physical injuries, and renders claimant completely and permanently incapable of engaging in substantial gainful employment. Thomas v. Master Air Control, Inc and Federated Mutual Insurance Carrier Co, Docket No. 179,977.

• April 1998. (Award) While working for respondent, claimant tripped on the threshold of a hotel door and fell head first into a marble wall. Claimant's physician's testified that he was no longer capable of working full time and that his serious condition would continue to worsen, the Appeals Board finds that claimant is realistically unemployable. Therefore, the Appeals Board finds pursuant to K.S.A. 1992 Supp. 44-510c(a), that claimant is permanently totally disabled. Campbell v. Gunning Wholesale, Inc and Cincinnati Casualty Company and Kansas Workers Compensation Fund, Docket No. 187,424.



• ----- It would be difficult to comprehend a claimant who has lost 100 percent of his/her ability to perform work in the open labor market and 100 percent of his ability to earn comparable wages who is not permanently and totally disabled. Id.



• February 1998. (Award) An analysis of the definition of both permanent total disability and functional impairment finds the two not synonymous. Functional impairment focuses on the physiological losses to the human body. On the other hand, permanent total disability focuses upon a claimant's ability to engage in substantial and gainful employment, i.e. work disability. A claimant can be 100 percent permanently totally disabled and yet have certain physical abilities left which would render him less than 100 percent functionally impaired. The Appeals Board finds, based upon K.S.A. 44-510c(a)(2) & 44-510e(a), that the opinion by the Administrative Law Judge that claimant's 100 percent permanent total disability equates to a 100 percent functional impairment is error and is reversed. Dickens, Jr. v. Pizza Company, Inc. and Fireman's Fund Insurance, Docket No. 216,769 [Reversed by Kansas Supreme Court, Docket No. 80,858].

• February 1998. (Award) The Appeals Board affirms the Administrative Law Judge's findings that claimant, a 73 year old part-time pizza delivery person, who can no longer drive, stand, walk unassisted and easily becomes confused and disorientated following his work-related automobile injury, was not capable of engaging in "substantial and gainful employment." Claimant was therefore found to be permanently and totally disabled. See K.S.A. 44-510c(a)(2). Dickens, Jr. v. Pizza Company, Inc. and Fireman's Fund Insurance, Docket No. 216,769 [Reversed by Kansas Supreme Court, Docket No. 80,858].



• February 1998. (Award) Claimant's permanent total disability is reduced by his preexisting functional impairment under a K.S.A. 44-510a (Ensley) credit. See Discussion in, Smith v. Atchison Casting Corporation, Docket Nos. 173,077; 186,055; 186,618.

• But See, Daniels v. Americold Corporation and Travelers Property Casualty, Docket No. 189,238 (September 1998), questioning whether it is proper to reduce a permanent total disability award by any preexisting impairment.



• January 1998. (Award) The capacity to perform part-time sedentary work does not necessarily indicate that a person is capable of performing substantial and gainful employment. Quandt v. IBP, Inc. and Workers Compensation Fund, Docket No. 184,591.

• January 1998. (Award -- Dissent) Based upon the reasoning in Wardlow v. ANR Freight Systems, 19 Kan. App.2d 110, 872 P.2d 299 (1993), and claimant's uncontroverted testimony that she is unable to find any full time work, the dissenting Board member finds claimant is essentially unemployable and has established a permanent, total disability. Quandt v. IBP, Inc. and Workers Compensation Fund, Docket No. 184,591.

• ----- The capacity to perform part-time sedentary work does not necessarily indicate that a person is capable of performing substantial and gainful employment. Id.

• August 1997. (Award) Where claimant, who injured her back while moving a file cabinet in a work-related accident, was found to be completely and permanently incapable of engaging in any type of substantial employment per K.S.A. 1989 Supp. 44-510c(a)(2), the Appeals Board modifies the Administrative Law Judge's Award and finds claimant is entitled to receive permanent total disability benefits under the provisions of K.S.A. 44-510c. Woods v. State of Kansas and State Self-Insurance Fund and Workers Compensation Fund, Docket No. 157,026.

• March 1997. (Award) Claimant contracted bronchitis from sitting at respondent's front door greeting customers. Finding the bronchitis to be the primary reason she left her work with respondent and that her contracting bronchitis was not related to her on-the-job-injury, the Appeals Board decides an award of permanent total disability is not warranted. See K.S.A. 44-510c(a)(2). Cushenberry v. Walmart and National Union Fire Insurance Company of New York, Docket No. 199,674.

• March 1997. (R/M) Where medical testimony points to the fact claimant has little or no hope for employment, the Appeals Board finds claimant is permanently and totally incapable of engaging in any type of substantial and gainful employment per K.S.A. 1990 Supp. 44-510c(a)(2). Balguiti v. Marriott Hotel and Argonaut Insurance Company, Docket No. 148,415.



• ----- The term "substantial and gainful employment" as used in the definition of permanent total disability has not been defined in the Kansas Workers Compensation Act. See K.S.A. 1990 Supp. 44-510c(a)(2). Until recently, the Kansas appellate courts had likewise not provided a definition. However, a recent case of the Kansas Court of Appeals in Wardlow v. ANR Freight Systems, 19 Kan. App.2d 110, 872 P.2d 299 (1993), found being rendered unemployable is compatible with the legislative intent of the term permanent total disability. Id.

• See Also, Stout v. State of Kansas and State Self Insurance Fund and Kansas Workers Compensation Fund, Docket No. 210,402 (March 1997).

• November 1996. (Award) Claimant found to be permanently and totally disabled after suffering a crushing leg injury which subsequently aggravated a preexisting back condition. Additionally, claimant was found not to be able to re-enter the labor market since he had been left blind from his diabetes. Respondent argued claimant was not permanently and totally disabled since claimant was able to fly to Las Vegas to play the slot machines, but absent evidence in the record showing claimant's ability to re-enter the open labor market, the ALJ's award of permanent total benefits is affirmed. Shears v. City of Lawrence and Kansas Workers Compensation Fund, Docket No. 180,398.

• October 1996. (Award) Claimant determined to be permanently and totally disabled as his physicians testified that he, a 68 year old man, suffered extensive foot, arm and head injuries. As a result of his injuries, claimant lost 100 percent of his ability to perform work in the open labor market and earn a comparable wage. Further, claimant did not have the transferable skills necessary to make school or vocational rehabilitation an option. Montgomery v. Cap Farms, Inc and Insurance Company of North America, Docket No. 160,768.

• March 1994. (Award) Evidence examined and found to not support claim for permanent total disability where vocational expert gives opinion claimant lost 90% of access to labor market and physician indicated claimant could do some types of sedentary work. Saunders v. Osawatomie State Hospital, Docket No. 154,857.



• But See, Dissent, the Dissenting Board Member finds claimant is essentially unemployable under AMA Guides standard and therefore entitled to permanent total. Id.

• March 1994. (Award) Evidence examined and found to support award of permanent total disability where evidence indicated that at most claimant could work a few hours per day seated with no bending, twisting or lifting. Aaron v. Gary L. Bailey, Docket No. 158,858.

7.17 Length of Disability / Disability Lasting at least One Week

Boucher v. Peerless Products, Inc., 21 Kan. App.2d 977, 911 P.2d 198, rev. denied 260 Kan. 991 (1996)

Osborn v. Electric Corporation of Kansas City, 23 Kan. App.2d 868, 936 P.2d 297, rev. denied 262 Kan. (1997)

• November 1999. (Award) Where injury required claimant to work in accommodated job for more than one week, claimant was disabled for a week from earning full wages at the work at which she was employed and was not, therefore, limited under K.S.A. 44-501(c) to medical benefits only. Tatman v. IBP, Inc., Docket No. 202,962.

• See Also, Allen L. Throm vs. IBP, Inc. and Workers Compensation Fund, Docket Nos. 193,088 & 198,794; and Kenneth E. Lowe vs. PMI Food Equipment Group and Travelers Insurance Company, Docket No. 206,476 (March 1999). [Affirmed by unpublished Court of Appeals opinion, Docket 83,060, April 14, 2000.]

• June 1999. (Award) K.S.A. 44-501(c) states that en employer is not liable for permanent disability benefits for an injury which does not disable the employee for a period of one week from earning full wages at the work at which the employee is employed. In the case at hand, the Board found claimant was disabled for a week from the work at which he was employed, despite the fact claimant continued to work for respondent earning the same wage as prior to the accident, where he was not earning the same wage at the same job at which he was employed prior to the accident -- he has limited to a lighter-duty job for more than the requisite on week. Baltazar v. IBP, Inc, Docket No. 211,837.



• ----- The purpose of K.S.A. 44-501(c) is to remove certain minor injuries from eligibility for a permanent disability award. Id.

• ----- Where the injury requires a lighter-duty job for one week or more, the claimant should be eligible for permanent disability benefits if the evidence otherwise establishes that the injury otherwise caused permanent disability. Id.

• June 1999. (Award) When an injured work has hand surgery and returns to work restricted to using the other hand only for several weeks, the worker is found to have satisfied K.S.A. 44-501(c) and is entitled to receive permanent partial disability benefits. Brewer v. AFG Industries, Inc and National Union Fire Insurance Company, Docket No. 227,034.

• May 1999. (Ph) Missing work for medical treatment, even if paid sick leave or workers compensation leave, is the same as being disabled from work for purposes of K.S.A. 44-501(c). Time missed from work does not need to be consecutive days, it can be cumulative partial (½) days over time. Further, being paid sick or workers compensation leave does not constitute "wages." Bradfield v. Dearborn Mid-West Conveyor and Insurance Co. State of Pennsylvania, Docket No. 211,415,

• See also, Thomas v. The Boeing Company and Kemper Insurance Companies, Docket Nos. 204,971 & 204,972 (August 1999).

• April 1999. (Award)j K.S.A. 44-501(c) is construed by the Board as requiring the injury to exceed a minimum threshold of seriousness before permanent disability benefits can be awarded. Time missed from work for medical treatment should be treated as time claimant was disabled from earning full wages at the work at which s/he is employed. Time missed from work need not be consecutive days. Further, being paid "disability benefits" while off work is not the same as "wages." Hopper v. Dillon Companies, Inc, Docket Nos. 201,516 & 219,693.

• March 1999. (Award) When a claimant is on light duty, he/she is disabled from doing the job he/she was doing at the time of the injury; therefore, the Boucher rationale does not apply. Further, this rationale does not apply where a claimant's injuries eliminate his/her ability to perform the type of work he/she was performing when the injuries occurred, even thought claimant returned to work at a comparable wage. See Fuentes v. IBP, Appeals Board Docket No. 196,242 (October 1998); & Chavez v. IBP, Inc, Appeals Board Docket No. 204,408 (January 1999). Gillum v. Texaco Refining & Marketing and Cigna Workers Compensation, Docket Nos. 223,962 & 225,494.

• January 1999. (Award) Claimant owned the jewelry store where he worked and was also an employee. Claimant injured his elbow on a jewelry case. He did not initially seek medical treatment but took one week off; he paid himself his full wages during that week. Claimant eventually needed surgery and took another 2 weeks off; he again paid himself full wages. Respondent, or rather its insurance carrier, argues claimant should be denied permanent partial disability benefits under the rationale of K.S.A. 44-501(c), since claimant paid himself full wages while he was off work. The Board, however, finds K.S.A. 44-501(c) is inapplicable to this case as such a payment should not eliminate the obligation of respondent's insurance carrier to provide workers compensation benefits since claimant was not earning the wage "at the work at which the employee [was] employed." K.S.A. 44-501(c). Granier v. Gold & Silver Jewelers and Insurance Company of North America, Docket No. 217,259.



• January 1999. (Award) Where claimant terminated his employment and took early retirement due to his physical inabilities to continue working for respondent, the Appeals Board finds the application of K.S.A. 44-501(c) to be inapplicable in this instance. The Board finds the purpose of K.S.A. 44-501(c) is to avoid providing benefits to claimants who suffer minor injuries that necessitate no time off work, and which allow claimants to continue working in their regular jobs. In the case at hand, however, claimant suffered substantial injuries and despite the fact he did not have work restrictions at the time of his resignation, the record ultimately did confirm that restrictions and limitations were in order and that claimant was at risk in this circumstance. Moore v. Boeing Company and American Manufacturers Mutual Insurance Company, Docket No. 202,720 [Reversed and remanded by unpublished Court of Appeals opinion, Docket No. 82,737, February 18, 2000].

• January 1999. (Award) Boucher rationale is not applied where claimant missed work to undergo medical treatment for a work-related accident suffered under his previous employer. Wagner v. LaFarge Corporation and CNA Insurance Companies, Docket No. 205,642.
• ----- Respondent argues claimant should be denied entitlement to an award in excess of his medical treatment, pursuant to K.S.A. 44-501(c), as interpreted by Boucher and Osborn. The record shows claimant missed no work for respondent from the October 5, 1994, date of accident through his date of termination in April 1995. However, after his termination, claimant went to work for a different employer and, during this employment, claimant missed numerous days as a result of medical treatment necessitated by the injury suffered with respondent. The Board finds that K.S.A. 44-501(c) states that permanent benefits will be denied beyond medical treatment if the employee is not disabled for a period of at least one week from earning full wages at the work at which the employee "is" employed. The statute does not obligate that the employee be disabled from earning wages at the job claimant was working on the date of accident. Therefore, since claimant missed numerous days at his new job to undergo medical treatment for the injury suffered with respondent, K.S.A. 44-501(c) is not applicable. Id.

• January 1999. (Award) The Boucher rationale does not apply where claimant's injuries eliminated his ability to perform the type of work that he was performing when the injuries occurred. Chavez v. IBP, Inc, Docket No. 204,408

• January 1999. (Award) Where claimant returned to work with respondent at his regular job and wage, and without missing work, claimant is entitled to medical benefits only per K.S.A. 44-501(c). However, where claimant later suffered a second work-related injury and returned to work at an accommodated job, with lighter duties, then the limitations of K.S.A. 44-501(c) do not apply. Bauman v. Goodyear Tire & Rubber Company and Travelers Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 199,815 & 199,816.



• ----- But See Dissent, the Dissenting Board Member finds the limitations of K.S.A. 44-501(c) do apply to the second work-related accident suffered by claimant to limit his award to medical benefits only. The Dissent finds that claimant returned to his regular job, after suffering the second work-related injury, and performed that job for approximately one year before switching to the lighter duty job. In considering the principles outlined in Boucher v. Peerless Products, Inc. and Osborn v. Electric Corp. of Kansas City, the Dissent would find K.S.A. 44-501(c) applicable. Id.



• December 1998. (Award) K.S.A. 44-501(c) was satisfied where although claimant did not miss a week of work due to his injury, he did change jobs due to the injury. This satisfies the requirement that claimant be disabled from the job he was doing at the time of his accident "at the work at which the employee is employed." Wells v. Boeing Company and Kemper Insurance Companies, Docket No. 208,668.

• November 1998. (Award) Claimant worked 40 hours in a 3-day week and missed 3 nonconsecutive 3 day periods or three 40-hour periods due to steroid injections. Claimant's physician did not specifically take claimant off work but said taking off 3 days was reasonable. Respondent argued the 3 days did not equal one full week and that claimant could or should have scheduled her injections so claimant would not miss work. Therefore, 44-501(c) is not satisfied according to respondent. The Board held that missing work under these circumstances satisfied 44-501(c) and that claimant was disabled for at least 1 week from earning full wages and is therefore entitled to temporary total disability. Rauschenburg v. Cedar House, Inc and American States Insurance Company, Docket No. 222,151.

• October 1998. (Award) Although the Board did not need to address this issue, as it was not properly raised before the ALJ, had the Board considered the Boucher defense and the K.S.A. 44-501(c) issue it would have affirmed the ALJ. It is uncontradicted that claimant missed work in July of 1993 due to the pain in his head and jaw. There were also four additional days in August of 1993 when claimant was not at work. While respondent argues this is simply claimant's lackadaisical work attitude and not related to his injury, it is nevertheless uncontradicted that claimant was not at work on those days, and he testified that he missed work on those days as a result of the pain associated with his injuries. Thus, the Appeals Board would find that claimant missed those days from work because of his injury and is therefore not limited to medical compensation only per K.S.A. 44-501(c). Murdock v. Prime Roofing, Inc and CNA Insurance Companies, Docket No. 184,731.



• October 1998. (Award) Claimant was not limited to medical compensation where claimant was disabled from earning full wages for 3 days and then did not return to his regular job but was working "light duty" for another 5 days. Curran v. Lawrence Paper Company and Kansas Workers Compensation Fund, Docket No. 177,831 [Affirmed by Court of Appeals, Docket Nos. 82,282 & 82,317, February 4, 2000.]



• October 1998. (Award) Appeal from award denying disability benefits because the ALJ found claimant did not satisfy the requirement of K.S.A. 44-501(c) that claimant be disabled for a period of one week from receiving full wages. This finding was reversed by the Board because claimant missed work for medical treatment. Additionally, claimant was not paid, thus did not receive "full wages." Also, claimant was put on light duty for three weeks; thus, he was disabled from the job he was doing at the time of his injury by accident. Fuentes v. IBP, Inc., Docket No. 196,242.



• July 1998. (Award) K.S.A. 1990 Supp. 44-501(c) requires the injury disable the employee "for a period of at least one week from earning full wages at the work at which the employee is employed." Respondent argues claimant is not entitled to permanent partial disability compensation because he missed no work from his job at Boeing. The statute does not ,however, require claimant to miss work from the respondent/ the employer in whose employ claimant was injured. The evidence was that the claimant was employed by another employer in Florida and that he underwent surgery for his work-related condition. Claimant's physician testified that claimant would have been disabled for more than a week from the surgery. The Appeals Board, therefore, finds claimant was disabled from earning full wages at the work he was doing and is not limited to only medical compensation. Remmel, Jr. v. The Boeing Company and Aetna Casualty & Surety Company, Docket No. 170,813. [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,693].

• July 1998. (Award) One week as used in K.S.A. 44-501(c) does not need to be full, consecutive days. It can be the aggregate of hours, partial days, and missing work for medical treatment is equivalent to being disabled form work even if on sick leave or otherwise paid for the lost time. Claimant need not actually lose pay to comply with K.S.A. 44-501(c). Ebling v. City of Wichita, Docket No. 222,086. [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,740, December 30, 1999.]



• July 1998. (Award) Claimant was taken off work by her treating physician for 5 days. Respondent, however, required claimant to work 2 of those 5 days until claimant's physician phoned respondent about the need for claimant to be off work. The Appeals Board held that claimant was disabled for at least one week from earning full wages, per K.S.A. 44-501(c), based upon the physician's leave slip which specified claimant was to be off work for 5 days. Supsurit v. IBP, Inc., Docket No. 206,638.

• May 1998. (Award) K.S.A. 1992 Supp. 44-501(c) limited workers compensation awards to medical expenses only if the injury did not disable the employee for a period of at least one week from earning full wages at the work at which the employee was employed. In the case at hand, the employee was disabled for one week from earning full wages. In so finding, the Board concluded that sick leave pays is not wages as contemplated in K.S.A. 44-501(c). Additionally, sick leave pay is not "at the work at which the employee is employed" as stated in 44-501(c). The Board also found the disablement need not be consecutive days. Farrell v. U.S.D. #229 & Kansas Association of School Boards, Docket Nos. 196,839 & 196,840 [Affirmed by Court of Appeals, Docket No. 81,208, December 30, 1999.]



• February 1998. (Award) Claimant's quitting his employment with respondent due to his inability to perform his work within his restrictions satisfies the requirement of K.S.A. 44-501(c) that claimant be disabled for a period of at least one week from earing full wages. Also, had claimant chosen to decrease his work activities without quitting and this resulted in his earning less than full wage, the statutory requirements of K.S.A. 44-501(c) would have been satisfied as well. Gladelkarim v. Atlas Van Lines and Legion Insurance Co, Docket No. 199,449.

• February 1998. (Award) In order to receive permanent partial disability benefits, a claimant must be disabled for one week from earning full wages. Time missed for medical treatment may be time claimant is disabled from earning a wage. In addition, the time missed need not be consecutive days in order to satisfy the statute. Gomez v. Monfort, Inc., Docket Nos. 196,240 & 196,241 [Affirmed by Kansas Court of Appeals, unpublished opinion, Docket No. 80,818].



• January 1998. (Award) Claimant was not off work for three consecutive weeks and is, therefore, not entitled to temporary total disability benefits for the first week. See K.S.A. 44-510c. Paniagua v. National Beef Packing Co. L.P. and Wausau Insurance Companies, Docket No. 205,469 [Affirmed by unpublished Court of Appeals opinion, Docket No. 80,669].



• January 1998. (Award) Claimant injured his mid-back while lifting a vise for respondent. Claimant did not initially miss any work for this injury; however, he began having trouble with his back and respondent told claimant to take two weeks off and return to work with a release form authorizing his return to work. Based upon the preceding evidence, the Appeals Board found claimant was disabled for a period of at least one week form earning full wages. Case v. McGinty Machine Company, Inc. and Northwestern National Casualty and Workers Compensation Fund, Docket No. 190,066.



• January 1998. (Ph) Where claimant only missed two weeks of work, claimant is only entitled to one week of temporary total disability per K.S.A. 44-510c(b)(1), which restricts the payment of temporary total disability compensation during the first week of disability unless temporary disability exists for three consecutive weeks. Garcia v. National Beef Packing Company and Wausau Underwriters, Docket No. 222,560. [Affirmed by unpublished Court of Appeals opinion, Docket No. 79,459].

• December 1997. (Award) Where claimant did not miss at least one week of work due to her work-related injury, the Appeals Board finds the law in effect at the time of claimant's injury, K.S.A. 44-501(c), limits claimant's award to medical benefits only. See Osborn v. Electric Corp. of Kansas City, 23 Kan. App.2d 868, 936 P.2d 297, rev. denied 262 Kan. (1997). Adra v. Sears Roebuck & Company and Kemper Insurance Companies, Docket No. 186,683.



• December 1997. (Award) Where claimant proved he was off work because of his disability for more than one week, the Appeals Board concludes claimant's entitlement to workers compensation benefits is not limited to medical compensation as provided in K.S.A. 44-501(c). Jones v. Carrier Corp and Cigna, Docket No. 202,657.



• October 1997. (Award) Where claimant missed only 15 hours of work for medical treatment for his work-related injury but did not miss at least one week of work as a result of the injury, the Appeals Board finds the 15 hour time period does not constitute one week as required by K.S.A. 1991 Supp. 44-501(c). Roudybush v. Oldham's Farm Sausage, Docket No. 172,108.



• ----- But See Dissent. The Dissenting Opinion believes the phrase "disable the employee for a period of at least one week from earning full wages," as set forth in K.S.A. 1991 Supp. 44-501(c) should be interpreted as meaning either that compensation is limited to medical benefits unless the disability prevents the employee from working for a full one-week period or, that compensation is limited to medical benefits unless for any one-week period the employee missed work due to the injury and, therefore, does not earn a full week's wages. The Dissent would find the latter to be the correct determination. In the case at hand, claimant spent many hours traveling to and receiving medical treatment, including physical therapy , and he will likely continue to require medical treatment in the future. In addition, most of the medical treatment claimant received was scheduled at the employer's request during times which did not require the claimant to miss work. Furthermore, claimant had to change to a less demanding job in order to accommodate his restrictions and continue working. Therefore, the Dissent finds the provisions of K.S.A. 1991 Supp. 44-501 do not preclude claimant from receiving permanent partial disability benefits. Id.

• See Also Sawyers v. Palmer Trucking Inc. and General Accident Insurance Company of America and Workers Compensation Fund, Docket No. 170,144 (October 1997).

• September 1998. (Award) The ALJ exceeded his jurisdiction under K.S.A. 44-551 for granting a credit to be applied against future medical expenses for the permanent partial disability overpayment stipulated by the parties. There is no provision in the Workers Compensation Act which allows an offset of disability against medical benefits. Titus v. Halstead Hospital, Inc and ITT Hartford, Docket No. 131,220.



• October 1997. (Award) The Appeals Board finds no authority in the Workers Compensation Act which would authorize the respondent to take credit for disability benefits made under a separate private disability insurance policy. That separate policy is presumably the subject of a separate contract which entitled the individual to benefits under the circumstances specified in that agreement. Respondent continues to have the obligation to pay benefits specified under the Kansas Workers Compensation Act. Walker v. General Motors Corporation and Kansas Workers Compensation Fund, Docket Nos. 196,172 & 196,173.

• December 1996. (Award) The overpayment of temporary total disability payments should be deducted from the 415 weeks and not otherwise credited. The advance of permanent partial disability benefits, however, should be considered as payments previously made and credited toward the amount of permanent disability benefits owed under the Award. Hyde v. Allen Van and Storage and United States Fidelity and Guaranty Co and Kansas Workers Compensation Fund, Docket Nos. 173,376 & 184,959.

7.19 Credit for Preexisting Disabilities

See § 8.06, Preexisting Functional Impairment, Chapter VIII

7.20 Credit for Compensation from Prior Award / Any Amounts Previously Paid and/or Overpayments.

• January 1999. (Award) The Board finds respondent is entitled to a credit pursuant to K.S.A. 44-525(b) (Ensley), for the overpayments of temporary total disability or temporary partial disability , previously paid claimant, instead of seeking reimbursement from the Fund pursuant to K.S.A. 44-534a. Decker v. Continental Grain Company and Insurance Company of North America and Kansas Workers Compensation Fund, Docket Nos. 168,876 & 183,424.



• October 1998. (Award) Workers Compensation Fund is granted a credit for the overpayment of temporary total disability benefits. The amount of the credit will be deducted from the payment due and owing claimant, with the deduction occurring at the end of the Award payment schedule. Huff v. Sellman Kennels/Wichita Greyhound and National Union Fire Insurance Company and Kansas Workers Compensation Fund, Docket No. 175,588.



• 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.

• March 1998. (Award) If claimant is overpaid temporary total disability then the overpayment should be credited against claimant's final award of disability benefits pursuant to K.S.A. 44-525(b). Wogan v. Consolidated Freightways, Inc, Docket No. 201,820.

• July 1997. (Award) Where prior disability has been accounted for by deducting such disability from the total disability in determining the amount of benefits to be awarded, and the prior disability, therefore, does not contribute to the resulting disability awarded in the case, respondent is not entitled to a credit for amounts paid on the prior compensable injury award. Martin v. Heritage Flowers and Kansas Workers Compensation Fund, Docket No. 189,196.



• June 1997. (P/A) Where respondent's payment to claimant exceeded the amount of claimant's award, the Appeals Board finds respondent is entitled to a credit for the amounts previously paid in the proceedings which exceed the amount awarded claimant. Webb v. Andy's Restaurant and Tri-State Insurance Company and Kansas Workers Compensation Fund, Docket No. 137,625. [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,802].

• December 1996. (Award) The Board finds that claimant's benefits should be reduced under the provisions of K.S.A. 44-510a for any period that the permanent partial disability benefits payable for a 1988 compensable, work-related accident overlap with the permanent partial disability benefits payable for a 1990 compensable accident. Gugenhan v. Georgia Pacific Corporation and Workers Compensation Fund, Docket No. 162,711.

• December 1995. (Award) When there is a change in the disability rate the respondent is entitled to a credit for the permanent partial disability benefits previously paid. The latest disability rate, or amounts already paid, if higher, become the ceiling for the benefits awarded. Romeo v. Smith Temporary Services, Docket No. 184,711.

• March 1994. (Award) Where there has been an overpayment of benefits, the Administrative Law Judge cannot order reimbursement from claimant, but respondent may seek reimbursement from Fund. Collier v. Western Uniform & Towel Service, Docket No. 160,523.



• February 1994. (Award) Respondent is entitled to 100% credit during period of overlapping for payments on prior settlement award where second injury would not have occurred but for pre-existing disability. Rando v. Kaneb Pipeline Co., Docket No. 166,343.



• December 1993. (Award) Respondent is not entitled to a credit under K.S.A. 44-510a for prior injury even though evidence shows prior injury contributed to injury at issue, where record contained no evidence as to whether benefits were paid on the prior injury. Pfannenstiel v. Keebler and Workers Compensation Fund, Docket No. 167,515.

7.21 Offset for Retirement Benefits

7.22 Retirement Benefits Defined

• January 1999. (Award) Claimant, a firefighter for the City of Wichita, was injured while carrying a child out of a burning house. After his injury, claimant was unable to perform an accommodated job with the Fire Department as a result of his work restrictions. Claimant then elected to receive a disability annuity from the city. The issue currently before the Board is whether the disability annuity claimant receives from the City is a retirement benefit as contemplated by K.S.A. 44-501(h). The Board found that it was not. Disability benefits are distinct from retirement benefits. Disability benefits are those that are paid because of incapacity; whereas, retirement benefits are paid because of age and years of service. In the case at hand, the Board finds the evidence points to claimant's disability annuity as being a disability benefit, which should not reduce claimant's permanent partial. general disability benefits. Hodges, Jr. v. City of Wichita, Docket No. 213,161.



• October 1998. (Award) Regardless of the label respondent places on the benefits paid claimant, the Board has determined that if the benefits labeled as retirement benefits are really benefits because of disability, then an offset under K.S.A. 44-501(h) is not permissible. Retirement benefits are only those benefits based on age or longevity. See Green v. City of Wichita, Docket No. 190,467 (August 1997). Tippin v. Sedgwick County, Docket No. 204,191.

• August 1997. (Award) The Appeals Board finds the commonly accepted meaning of the term "retirement benefit" to be a benefit paid by reason of age and/or years of service. Retirement benefits are not dependent on disability. Green v. City of Wichita, Docket No. 190,467 [Affirmed by Court of Appeals in Docket No. 79,848].



• ----- Where claimant is eligible for and received retirement benefits only because of his injury and disability, the Appeals Board concludes the benefits paid claimant should not be treated as retirement benefits for purposes of K.S.A. 44-501(h). Id.

• See also, Russell v. City of Wichita, Docket No. 228,202 (March 1999).



• March 1995. (Award) While voluntary retirement may preclude recovery of temporary total disability benefits, it does not affect permanent partial general disability benefits. Temporary total benefits are a wage replacement. Permanent partial general disability, on the other hand, compensate injured workers for the loss of ability to earn comparable wages in the open labor market. See Brown v. City of Wichita, 17 Kan. App.2d 72, 832 P.2d 365, rev. denied 251 Kan. 937 (1992). Holt v. North American Philips Lighting and Travelers Insurance and Kansas Workers Compensation Fund, Docket No. 163,562

7.23 Retirement Offset

• December 1998. (Award) The retirement offset contained in K.S.A. 44-501(h) does not affect claimant's eligibility for work disability. See Gadberry v. R.L. Polk & Company, Docket No. 77,312 (Kan. App. 1998). Birney v. Medicalodge of Kinsley, Docket Nos. 206,808 & 206,809.



• October 1998. (Award) K.S.A. 44-501(h) provides for an offset when the claimant is receiving retirement benefits under the federal social security act and/or where a plan is provided by the employer. Claimant testified that she began drawing social security retirement benefits when she turned 62 years of age on March 14, 1996, at the rate of $842 per month. This equates to a weekly benefit of $194.31. Claimant's weekly permanent disability compensation should be reduced by this amount beginning with the week the social security benefits commenced. Respondent is also entitled to a reduction for the retirement benefits it provided claimant. Respondent's human resources coordinator testified that the pension was totally provided by respondent. There is no evidence to the contrary. Thus, the record establishes that all of the $7,700 retirement benefit claimant rolled over into an IRA was attributable to payments or contributions made by the employer. The maximum number of weeks of permanent total disability benefits that can be awarded is 383.44. This is determined by dividing the weekly compensation rate of $326 into the $125,000 maximum compensation benefit for a permanent total disability award. Dividing 383.44 into $7,700 results in a weekly credit of $20.08. This is the amount by which all weekly compensation benefits will be reduced for the employer provided pension benefits. Odle v. Cramer, Inc and Insurance Company of North America, Docket No. 206,313.

• May 1998. (Award) Where claimant made no contribution to the $68.31 per week retirement benefit he receives, claimant's permanent total weekly disability rate of $313 is required to be reduced by the $68.31 per week retirement benefit pursuant to K.S.A. 44-501(h). Wishon v. Helena Chemical Company and Reliance Insurance Company, Docket No. 203,808 [Affirmed by Supreme Court decision, Docket No. 81,341 (1999)].



• May 1998. (Award) Respondent's request for credit for retirement or sick leave is denied as K.S.A. 44-501(h) allows a reduction in retirement benefits (but not sick leave) but restricts the award to a minimum of the employee's functional impairment. In this instance, as claimant has been awarded 4 percent to the body as a whole which is claimant's functional impairment; therefore, no additional retirement or sick leave credit is allowable under K.S.A. 44-501(h). Tibbits v. Shawnee County, Docket No. 198,464. [Affirmed by unpublished Court of Appeals opinion, Docket No. 81,336, January 7, 2000.]

• March 1998 (Award) Retirement offset or credit per K.S.A. 44-501(h) cannot be computed where the Appeals Board cannot determine what percentage of claimant's weekly pension benefit is attributable to contribution made by the claimant versus what percentage are attributable to contribution made by the respondent or other employers. See Bohanan v. U.S.D. No. 260, 24 Kan. App. 2d 362, 947 P.2d 440 (1997). Meade v. Electrical Corporation of America and Insurance Company of North America, Docket No. 210,463.

• February 1998. (Award) Because claimant's accidental injury occurred after July 1, 1993, respondent is entitled to reduce claimant's permanent partial general disability benefits by the $1250 per month in retirement benefits when they began on August 1, 1994. The weekly offset amount would be $288.46. Therefore, for the period commencing August 1, 1994, claimant's permanent partial disability is reduced by the $288.46 per week. See K.S.A. 44-501(h). Treaster v. Dillon Companies, Inc. and Workers Compensation Fund, Docket No. 205,065. [Affirmed by Kansas Supreme Court, Docket No. 80,830, July 9, 1999].



• August 1997. (Award) K.S.A. 44-501(h) provides that an employee's compensation benefits under the Workers Compensation Act shall be reduced by the weekly equivalent amount of the total amount of all such retirement benefits paid by employer less any amount attributable to the employee's contributions. Green v. City of Wichita, Docket No. 190,467 [Affirmed by Court of Appeals in Docket No. 79,848].



• April 1997. (Award) The 1993 amendment to the Workers Compensation Act contained in K.S.A. 44-501(h) requires a weekly deduction for the amount of retirement benefits an employee is receiving from social security or any other retirement system offered by the employer from any compensation benefit payment the employee is eligible to receive under the Workers Compensation Act. Zinn v. The Boeing Company-Wichita and Aetna Casualty & Surety Company and Kansas Workers Compensation Fund, Docket No. 184,800.



• July 1996. (Award) The retirement offset contained in K.S.A. 44-501(h) does not affect claimant's eligibility for work disability. Gadberry v. R.L. Polk & Company, Docket No. 193,516; [Affirmed by Kansas Court of Appeals, Gadberry v. R.L. Polk & Company, Docket No. 77,312 (Kan. App. 1998).]

7.23a Offset for Social Security Benefits

• November 1998. (Award) Claimant argues the social security retirement offset in K.S.A. 44-501(h) does not apply in this case because the claimant was already receiving social security benefits on the date of her injury. The Appeals Board, however, concludes the statute is clear and unambiguous and the social security retirement offset applies whether claimant was receiving social security retirement benefits before the date of her injury or after the date of her injury. Johnson v. Hillcrest Manor and National Union Fire Ins. Co, Docket No. 217,751.

• ----- The social security offset does not apply to temporary total disability payments, because temporary total disability compensation is a temporary wage replacement benefit and the statute limits the offset to a minimum benefit based on permanent functional impairment. The Board finds the Legislature only intended to apply the K.S.A. 44-501(h) offset to permanent disability benefits and not temporary benefits. Id.

• October 1998. (Award) K.S.A. 44-501(h) provides for an offset when the claimant is receiving retirement benefits under the federal social security act and/or where a plan is provided by the employer. Claimant testified that she began drawing social security retirement benefits when she turned 62 years of age on March 14, 1996, at the rate of $842 per month. This equates to a weekly benefit of $194.31. Claimant's weekly permanent disability compensation should be reduced by this amount beginning with the week the social security benefits commenced. Odle v. Cramer, Inc and Insurance Company of North America, Docket No. 206,313.

• May 1998. (Award) Claimant received social security disability benefits for a period of time until he turned 65 when the benefits automatically converted to social security retirement benefits. Claimant argues the retirement benefits are still essentially disability benefits which respondent should not be allowed to offset against his weekly compensation benefits pursuant to K.S.A. 44-501(h). The Appeals Board, however, finds that the language in K.S.A. 44-501(h) is clear and unambiguous and requires an injured employee's weekly disability benefits payable under the workers compensation act be reduced by the weekly equivalent amount of social security retirement benefits. It is not relevant whether claimant received social security disability benefits before he reached the eligibility age for old age retirement benefits. The fact the social security benefits changed from disability to retirement does not negate the clear meaning of the statute which requires a reduction in workers compensation disability benefits at the time claimant starts receiving social security retirement benefits. Wishon v. Helena Chemical Company and Reliance Insurance Company, Docket No. 203,808 [Affirmed by Supreme Court decision, Docket No. 81,341 (1999)].



• March 1998 (Award) Although K.S.A. 44-501(h) provides for a credit against permanent disability compensation if the employee is receiving retirement benefits under the federal social security act or any other retirement system, no credit is allowed where claimant receives social security disability rather than social security retirement benefits. Meade v. Electrical Corporation of America and Insurance Company of North America, Docket No. 210,463.

• See Also, Gadberry v. R.L. Polk & Company, Docket No. 193,516 (July 1996) [\Affirmed by Kansas Court of Appeals, Gadberry v. R.L. Polk & Company, Docket No. 77,312 (Kan. App. 1998)]; Wishon v. Helena Chemical Company and Reliance Insurance Company, Docket No. 203,808 (May 1998) [Affirmed by Supreme Court decision, Docket No. 81,341 (1999)].

• February 1998. (Award) At the time of his injury, claimant was and had been receiving social security benefits. The Administrative Law Judge reasoned that the social security offset found in K.S.A. 44-501(h) did not apply to reduce claimant's award as claimant had been receiving these benefits for eight years prior to the accident and therefore the workers compensation benefits would not duplicate the social security benefits but merely restore claimant to the position he was in at the time of the accident. The Appeals Board, however, found the social security benefit offset applies regardless of whether the social security benefits were being paid prior to an accident or were started after the accident occurred. Therefore, K.S.A. 44-501(h) requires that the claimant's retirement benefits from social security be offset against his workers compensation benefits. However, K.S.A. 44-501(h) does restrict the offset and requires that the workers compensation benefits shall be payable for not less than the employee's percentage of functional impairment. Dickens, Jr. v. Pizza Company, Inc. and Fireman's Fund Insurance, Docket No. 216,769 [Reversed by Kansas Supreme Court, Docket No. 80,858].



• July 1996. (Award) Social security disability benefits are not retirement benefits as contemplated in K.S.A. 44-501(h). Gadberry v. R.L. Polk, Docket No. 193,516 (July 1996); [Affirmed by unpublished Court of Appeals opinion, Gadberry v. R.L. Polk, Docket No. 77,312 (1998)].

7.23b Subrogation Claim in Third Party Action

• October 1998. (Award) Under the Workers Compensation Act, the employer is subrogated to the extent an employee recovers damages from a third-party tortfeasor who was either responsible for or contributed to the work-related accident. K.S.A. 44-504(a). Kent v. Schmidtlein Electric Inc and Trinity Universal Insurance and Workers Compensation Fund, Docket No. 163,240.



• ----- The employer is subrogated to the extent that workers compensation benefits were paid from the date of accident up to the date of recovery of damages. If the recovery exceeds the total amount of workers compensation benefits that were paid to the date of recovery, the excess is to be credited against future payments of disability and medical compensation. K.S.A. 44-504(b). Id.



• ----- To protect and enforce its subrogation lien, the employer may intervene in the District Court proceeding that the employee initiates against the third party. The District Court shall determine the extent that the intervenor may participate and apportion the costs and fees. K.S.A. 44-504(b). Id.

• ----- There is no right to subrogation unless and until the injured worker has obtained a recovery against a third-party tort feasor. The date of recovery determines which version of an amended statute is applicable. See Anderson v. National Carriers, Inc, 240 Kan. 101, 727 P.2d 899 (1986); Lemery v. Buffalo Airways, 14 Kan. App.2d 301, 789 P.2d 1176, rev. denied 246 Kan. 767 (1990). In the case at hand, judgement was entered in November of 1994 and satisfied in August of 1995; therefore, K.S.A. 44-504 is the applicable statute. Id.

• ----- The Appeals Board interprets the subrogation statute, K.S.A. 44-504, as creating both a subrogation lien and a subrogation credit. The subrogation lien is limited in amount to the total of workers compensation benefits that were actually paid up to the date that damages are recovered. The subrogation credit is limited in amount to the sum that the actual recovery exceeds those benefits that were paid up to the date of recovery. Both the subrogation lien and credit are reduced to the extent that either the employer's negligence or the negligence of someone for whom the employer is responsible, other than the injured employee, contributed to the accident or injury. K.S.A. 44-504(d). Id.



• ----- The ONLY remedy the Worker Compensation Act gives the Division in subrogation claims is the authority to apply a subrogation credit against future disability and medical compensation. Id.

• ----- An employer does not waive its right to a subrogation credit against future workers compensation payments when it fails to either intervene or file its notice of lien in District Court. The Workers Compensation Act does not condition the subrogation credit given under the Act upon timely filing a notice of lien in the District Court. Id.

• May 1998. (Award) Respondent was not entitled to a subrogation lien or interest in claimant's loss of consortium damages received from a third party negligence suit. K.S.A. 44-504(b) specifically excludes any recovery designated by the court as loss of consortium or loss of services of a spouse from an employer's subrogation interest or lien. Additionally, the respondent and its insurance carrier had notice of the civil lawsuit and failed to exercise their statutory right to intervene in the lawsuit and protect their interest. Thomas v. Master Air Control, Inc and Federated Mutual Insurance Carrier Co, Docket No. 179,977.

• October 1997. (Order) After claimant settled a third party claim, respondent scheduled claimant to have both a physical and psychological evaluation to obtain expert medical opinions for use in the workers compensation litigation. Respondent stated it intended to credit the costs of these examinations against the proceeds from the settlement of the third party action. In so doing, respondent cited K.S.A. 1992 Supp. 44-504 and the case of Vaner v. Gulf Ins. Co., 18 Kan. App.2d 801, 859 P.2d 414 (1993), as authority for such a credit. In the Vaner decision, the Court ruled that the costs of vocational rehabilitation were costs subject to reimbursement or credit against the proceeds from the third party liability action. The Appeals Board, however, finds the Vaner case differs in at least two respects from the circumstances presented in the case at hand. First, the payments made in Vaner were for a benefit provided to the claimant. More importantly, however, the Vaner decision did not involve a statute which specifically prohibits assessing the costs against the claimant. That statute is K.S.A. 44-515, which states the employee shall not be liable for fees or charges for health care providers selected by the employer for examination purposes. As the provisions of K.S.A. 44-515 are found to control this action, the costs for claimant's examinations requested by the employer cannot, therefore, be credited against the proceeds from the third party claim. Boatwright v. State of Kansas and State Self Insurance Fund, Docket No. 184,367.

7.24 Death

7.25 Generally

7.26 Burial Benefits

7.27 Calculation of Death Benefits

• February 1998. (Award) The Appeals Board finds the purpose of the lump sum remarriage death benefit payment contained in K.S.A. 1984 Supp. 44-510b(b) is to lessen the disincentive for surviving spouses to remarry where the death benefits terminated immediately upon remarriage. See Lackey v. D & M Trucking, 9 Kan. App.2d 679, 687 P.2d 23 (1984). However, the Appeals Board also concludes the Legislature did not intend for a surviving spouse that remarries to receive more in death benefits than a surviving spouse that chooses not to remarry. The Appeals Board, therefore, finds the $100,000 maximum death benefit limit contained in K.S.A. 1984 Supp. 44-510b(h) applies to the 100 week remarriage death benefit contained in K.S.A. 1984 Supp. 44-510b(b). Since the surviving spouse has already reached the $100,000 limit for death benefits, she is not entitled to the remarriage death benefit. Pouncil, Deceased v. Martin K. Eby Construction Co., Inc. and United States Fidelity & Guaranty Co and Kansas Workers Compensation Fund, Docket No. 126,736. [Affirmed by unpublished Court of Appeals opinion, Docket No. 80,884, December 3, 1999.]

7.27a Dependents

7.28 Surviving Spouse, Abandonment or Desertion; Proof of Dependency

• November 1997. (Award) Claimant, the surviving legal spouse of the deceased employee, is asking for death benefits. Respondent, however, argues claimant is precluded from benefits under K.S.A. 1995 Supp. 44-508(c)(2) because claimant willfully or voluntarily deserted or abandoned the deceased employee for more than six months prior to the date of the employee's death. The parties agreed that other than a phone call from the decedent to claimant in 1986, the claimant and decedent had absolutely no direct contact with each other after 1978 or 1979 up and until the decedent's death in 1995. Additionally, claimant received no financial support from the decedent from 1985 until his death in 1995. In determining whether an abandonment of the marital relationship occurred, the Appeals Board looked to the logic of Tisdale v. Wilson & Co., 141 Kan. 885, 43 P.2d 1064 (1935), which stated the question of whether an abandonment occurred is a question of law and defined abandonment as occurring when one leaves the marital relationship with the intention of not returning. By focussing on the intentions of the parties, the Appeals Board found that the decedent was the first to have the intent to abandon or leave the marital relationship as evidenced by his leaving the marital home and having extramarital affairs. The fact that claimant did not seek a reconciliation of the marriage was immaterial as decedent was found to be the first to abandon the marriage. See Tatum v. Tatum, 736 P.2d 506 (Okla. 1982). Therefore, finding a valid marriage existed at the time of decedent's death and finding the decedent was the first to abandon the marital relationship, the Appeals Board found that claimant was entitled to death benefits and the provisions of K.S.A. 44-508(c)(2) did not bar claimant's recovery. Redditt v. McDonald's, Docket No. 211,963 [Remanded by Kansas Court of Appeals to review issue of mutual abandonment, Docket No. 80,396 (1999)].

• ----- Proof of dependency is not required of a surviving spouse on the deceased employee in order to award death benefits to the surviving spouse. See Brinkmeyer v. City of Wichita, 223 Kan. 393, 573 P.2d 1044 (1978). Id.

• ----- But See Dissent which would find that claimant and decedent reconciled the marriage in 1979 and then mutually abandoned the marriage in that same year. The Dissenting Board Member finds the mutual abandonment of the marriage would bar claimant from receiving death benefits under K.S.A. 44-508(c)(2). See eg City of Aurora v. Claimant in Death of Corr., 689 P.2d 659 (Colo. Ct.App. 1984); Bass v. Mooresville Mill, 11 N.C. App. 631, 182 S.E.2d 246 (1971), cert den., 281 N.C. 755, 191 S.E.2d 353 (1972). Id.

7.28a Wholly Dependent Child or Children

• July 1998. (Award) Decedent was killed in a work-related accident and his three nieces and one nephew, whom he sent money to on occasions in Mexico, now claim to be his "dependents." In considering the definition of "wholly dependent child or children" per K.S.A. 44-508(c)(3)(C), the Appeals Board does not find decedent's three nieces and one nephew to fit within that definition. The Board decides as such because it does not feel the Legislature intended so broad an application of "wholly dependent children" as used in K.S.A. 44-510b and K.S.A. 44-508(c) to include nieces and nephews even where those nieces and nephew could be deemed "wholly dependent children" under the specific definition set forth in subsection (c)(3)(C) of K.S.A. 44-508. To conclude otherwise would lead to an unreasonable and incongruous result. Reyes, Deceased v. Post & Mastin Well Service, Inc and Insurance Company of North America, Docket No. 210,519.

7.28b Benefits Terminated As a Result of Non Work-related Death

• March 1999. (Award) Decedent employee and respondent entered into a settlement agreement for benefits. Claimant died of cancer before all the benefits were paid for the injury pursuant to the agreement. Held: the Award denying benefits should be affirmed. The agreement between decedent and respondent did not include any provision that the weekly permanent partial general disability benefits would survive decedent , and in the absence of such an agreement, the Act provides that the death of a worker for causes unrelated to the work-related claim terminate the weekly benefits that would otherwise become due or accrue after the date of death. K.S.A. 44-510e(b). Parker v. State of Kansas and State Self Insurance Fund, Docket No.218,178.

7.29 Mileage Reimbursement

• March 1997. (Order) Respondent argues the provisions of K.S.A. 44-535 mandate that the right to compensation should be deemed to have accrued on the date of accident. Similarly, the Administrative Law Judge used the medical mileage rate in effect as of the date of accident to determine the amount claimant was to be reimbursed. Claimant, however, argues she should be entitled to medical mileage at the rate applicable at the time the miles are driven. The Appeals Board agrees with claimant's argument that medical mileage is a reimbursement, not a compensation right which accrues on the date of accident. She is, therefore, entitled to be reimbursed for her travel at the medical mileage rate in effect at the time the travel was undertaken. Holmes v. Medicalodges Inc. and Medicalodges Affiliated, Docket No. 211,917.