• September 1997. (Ph) Notice to insurance carriers of hearings is not required under Kansas' Workers Compensation Act. Knoles v. Groendyke Transport, Inc. and Continental Casualty Company, Docket No. 223,341 [Affirmed by unpublished Court of Appeals opinion, Docket No. 82,792].

• August 1997. (Ph) Notice to the insurance carrier needs to be looked at separately from notice to the employer. The Act does not require the claimant to identify or notify the correct insurance carrier. Notice to the insurance carrier should be considered the responsibility of the respondent. Eldridge v. Champ Service Line Division and Zurich American Insurance Company, Docket No. 189,361.

• July 1997. (Ph) In Kansas, notice of a preliminary hearing need only be given to an employer. See K.A.R. 51-3-5a. Separate notice to the insurance carrier need not be given, as notice to the employer is notice to the insurance carrier. See Landes v. Smith, 189 Kan. 229, 368 P.2d 302 (1962). Martel v. Waste Management of Wichita and Continental Casualty Company, Docket No. 222,516.

• See Also, Villalobos v. Hayes Company, Inc and Fireman's Fund, Docket No. 228,349 (March 1998).



• But See, June 1997. (Ph) Where claimant's physician sent an office note to the insurance carrier stating claimant reported suffering an aggravation of his left shoulder injury as a direct result of the authorized medical treatment he was receiving for the work-related left knee injury, the Appeals Board finds the insurance carrier more probably than not received notice of the aggravated injury from the doctor's office note. Under these circumstances, notice to the workers compensation insurance carrier satisfies the statutory requirement for notice to the employer. Kiehl v. Allied Group Insurance and Cigna Property & Casualty Ins., Docket No. 217,855.



• See Also, June 1997. (Order) Respondent received sufficient notice of the Preliminary Hearing, when its authorized agent--its insurance carrier-- received notice of the preliminary hearing. Church v. Wichita Janitorial Services and Patrons Insurance Company, Docket No. 220,425.

12.03 Which Carrier is Liable / Whether Board Has Jurisdiction To Consider Insurance Coverage Issues

• May 2000. (Award) The Board's findings resulted in liability being assessed against an insurance carrier that did not participate in the proceedings. Liability for medical and temporary total disability compensation benefits are the responsibility of the insurance carrier on the risk when the medical expense or temporary disability occurred. Liability for a permanent partial disability compensation and future medical will be the responsibility of the insurance carrier on the risk on the accident date. Marsha L. Kelley vs. Kinedyne Corporation and American Home Assurance Company and Fremont Compensation Ins. Group, Docket No. 233,493.

But See, Dissent, by which this Board member argues that the Division of Workers Compensation does not have the authority or jurisdiction to decide the respective liability of two or more insurance companies. To the Dissent, the Award should be entered jointly and severally against both insurance carriers. Id.

• February 1999. (Ph) The ALJ found the workers compensation claim compensable and ordered two of respondent's workers compensation insurance carriers to split the cost of preliminary hearing benefits. One insurance carrier appealed. Held: there is no dispute about the compensability of claimant's injuries, so the Board has no jurisdiction to hear the appeal. The ALJ did not exceed his jurisdiction by ordering the two insurance carriers to split the costs. The only question is date of accident for purposes of assigning insurance carrier liability. This is not a proper question for an appeal from a preliminary hearing order. Burton v. Electrical Corporation of America and Liberty Mutual Insurance Company, Insurance Company of North America and Builders' Assoc. Self Insurance Fund, Docket Nos. 236,797; 236,798; 236,799; and 236,800.



• February 1999. (Ph) Since compensability of claim (claimant's entitlement to benefits) is not disputed, the appeal does not give rise to a jurisdictional issue. Which insurance carrier should pay is not an issue the Board can decide on an appeal from a preliminary hearing Order. Ireland v. Ireland Court Reporting and St. Paul Fire & Marine Insurance and Utica National Insurance Company and Kansas Workers Compensation Fund, Docket Nos. 176,441 & 234,974.



• December 1998. (Award) The insurance carrier on the risk during a period of accident for a repetitive trauma injury should be responsible for temporary total disability compensation and medical expenses incurred during its period of coverage. 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].



• ----- The case at hand involves a repetitive trauma injury occurring over a period of time in which respondent was insured by two separate insurance companies. The Appeals Board concludes, since it found claimant suffered from repetitive injuries over a period of time from June 1992 and culminating on claimant's last day of work on March 10, 1995, that National Union, the first insurance company, should be responsible for the temporary total disability compensation and medical expenses incurred during its period of coverage. Travelers, the subsequent insurance company and the insurance carrier on the risk on claimant's last day of work, then should be responsible for all temporary total disability compensation and authorized medical treatment incurred during its period of coverage plus permanent total disability compensation and any other benefits owed after March 10, 1995. Accordingly, Travelers should reimburse National Union for any temporary total disability compensation and medical treatment incurred and paid by National Union after Traveler's coverage commenced. See Kimber v. U.S.D. No. 418, 24 Kan. App. 2d 280, 283, 944 P.2d 169, rev. denied Kan. (1997). Id.

• But See, Concurring Opinion and Dissent, whereby this Board Member feels that the Division and Board have no jurisdiction to apportion liability as between insurance carriers, and that disputes as to which carrier is liable are not to be decided in workers compensation proceedings. See Kuhn v. Grant County, 201 Kan. 163, 439 P.2d 155 (1968); Hobelman v. Krebs Construction Co, 188 Kan. 825, 366 P.2d 270 (1961). The award should have been entered against respondent and its insurance carriers without apportioning liability. Id.

• December 1998. (Award) The Board reverses the decision to assess 50 percent of the award against each insurance carrier. The respective liability of insurance carriers is not to be decided in the workers compensation proceeding unless the employee's interests are involved. American States Ins. Co. v. Hanover Ins. Co., 14 Kan. App. 2d 492, 794 P.2d 662 (1990). Instead, the award in the workers compensation proceedings should be against both disputing carriers jointly and severally with their respective rights determined in a separate independent action. Hobelman v. Krebs Construction Co., 188 Kan. 825, 366 P.2d 270 (1961); Kuhn v. Grant County, 201 Kan. 163, 439 P.2d 155 (1968). The Board, therefore, finds this award should be made against State Farm and Continental jointly and severally. Fugate v. Stardust Feed, Inc and Continental Western Insurance Company State Farm Fire & Casualty, Docket No. 214,259.

• December 1998. (Ph) Respondent changed insurance carriers during the alleged period of injury. The parties agreed that claimant suffered a compensable, work-related injury. The issue for review is the date of accident for purpose of determining which insurance carrier is liable. Held: the issue does not go to a jurisdictional issue. Appeal dismissed. Gomez v. Thermal Equipment Corporation and American Assurance Company and Safeco Insurance Company of Illinois, Docket No. 236,062.

• ----- It is inconsistent with the intent of the Workers Compensation Act for a respondent to delay preliminary hearing benefits to an injured employee while its insurance carriers litigate their respective liability. Id.

• See also, Rogers v. Smith Construction Company, Inc and Insurance Company of North America, Wausau Underwriters Insurance Co and Business Insurance Co and Kansas Workers Compensation Fund, Docket No. 196,798.

• June 1998. (Ph) On appeal from a preliminary hearing order entered pursuant to K.S.A. 1997 Supp. 44-534a, the Appeals Board does not have jurisdiction to review an order by an ALJ where the issue is date of accident for purposes of determining which insurance carrier is responsible for the payment of benefits. Where compensability of the claim is not disputed, date of accident is not a jurisdictional issue. The appeal is dismissed. Linville v. Grandview Products Co., Inc and Wausau Business Insurance Company and Travelers Property Casualty, Docket No. 230,739.



• January 1998. (Ph) Generally, disputes between insurance carriers regarding their respective liabilities should not be litigated in workers compensation proceedings unless the claimant's interests are at stake. See Kuhn v. Grant County, 201 Kan. 163, 439 P.2d 155 (1968); and American States Ins. Co. v. Hanover Ins. Co., 14 Kan. App.2d 492, 794 P.2d 662 (1990). Celuch v. Luce Press Clippings and Fireman's Fund Insurance Company and American Home Assurance Company, Docket Nos. 214,959 & 222,711.

• See also, Scheier v. Scheier Masonry and American Family Mutual Insurance Co., Docket No. 236,919 (May 1999).

• November 1996. (Award) Claimant, who worked for multiple employers, is awarded benefits for a work-related injury. Any subsequent dispute between the two employers regarding what, if any, potential reimbursement will be due and owing is a matter to be decided in a court of appropriate jurisdiction. The Board is obligated to determine what benefits may or may not be due to an injured employee. The issues as to the contractual relationships between the two respondents and their various insurance carriers are not matters over which the Board retains jurisdiction. Schuler, Jr v. Schock Transfer Company, Inc and Schuler, Jr v. Crooks Driver Leasing and Aetna Casualty & Surety, Docket Nos. 204,130 & 204,131 [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,067].

• October 1996. (Award) The Board found that claimant sustained injury to her upper extremities during the period of December 1991 through June 1994, when she left work for surgery. Considering both Berry and Condon, the Board finds the appropriate date of accident to be June of 1994. As such, the Board finds that one insurance carrier is responsible for claimant's temporary total and permanent partial disability benefits and medical expenses incurred after 12/31/93 but another insurance carrier is responsible for medical expenses incurred before 1/1/94. Lund v. The Boeing Company and American Manufacturers Mutual Insurance Company and Aetna Casualty and Surety Co and Workers Compensation Fund, Docket No. 199,057.

12.04 Insurance Coverage / Whether The Board Has Jurisdiction to Review

• August 1999. (Ph) Where the existence or nonexistence of insurance coverage determined whether claimant's accident was compensable under the Act, the Board found it had jurisdiction to review the insurance coverage issue on appeal from a preliminary hearing order. Vanderwoude v. American Mobil Homes and Travelers Insurance Company, Docket No. 244,213

• March 1999. (Award) The Board finds it does not have jurisdiction to decide the insurance coverage issue concerning the nonrenewal or cancellation of respondent's insurance policy as the issue does not pertain to the rights of the claimant [Court of Appeals decision in Helms v. Tollie Freightways, Inc discussed. Corrigan v. Degginger's Foundry and Commercial Union Ins., Co. and Kansas Workers Compensation Fund, Docket No. 210,434.

• December 1998. (Award) Claimant does not have the burden of proving insurance coverage or which insurance carrier has respondent's workers compensation insurance coverage on any given date. 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].



• December 1997. (Ph) The issue of insurance coverage may, in certain circumstances, be jurisdictional and subject to review from a preliminary hearing. Sanchez v. Habaneros Mexican Restaurant and ITT Hartford, Docket No. 223,835.

• ----- The Appeals Board has jurisdiction to review the insurance issue at this stage of the proceeding because it directly addresses the question whether claimant's accident is covered under the Workers Compensation Act. Under K.S.A. 44-542a, self employed individuals may bring themselves within the provisions of the Act by securing insurance coverage. Therefore, if claimant is deemed to have obtained insurance coverage upon herself, her accident would be compensable under the Act. If not, the accident is not compensable. Therefore, in this specific instance, the insurance coverage issue is a jurisdictional issue which may be addressed in the review of a preliminary hearing order. Id.



• December 1997. (Award) Unless the Act otherwise expressly provides, the Division of Workers Compensation does not have jurisdiction to decide insurance coverage issues which do not affect a workers right to benefits. See Also American States Ins. Co. v. Hanover Ins.. Co., 14 Kan. App. 2d 492, 794 P.2d 662 (1990), and Hobelman v. Krebs Construction Co., 188 Kan. 825, 366 P.2d 270 (1961), which hold that insurance carriers may not litigate their respective liabilities in workers compensation proceedings when the claimant's interest is not at stake unless the act should otherwise expressly provide. Owings v. Walter A. Young Construction, Inc. and Steve Beyrle, d/b/a Beyrle Construction and Cigna and Travelers Insurance Company, Docket No. 192,579.

• See also, Remmenga, Jr v. Technical Irrigation Service and Hartford Accident & Indemnity Union Insurance Company, Docket Nos. 220,853 & 237,147 (March 1999).