Session of 1999
SENATE BILL No. 236
By Committee on Commerce
2-4
9 AN ACT concerning workers compensation; relating to permanent par-
10 tial general disability; amending K.S.A. 1998 Supp. 44-510e and re-
11 pealing the existing section.
12
13 Be it enacted by the Legislature of the State of Kansas:
14 Section 1. K.S.A. 1998 Supp. 44-510e is hereby amended to read as
15 follows: 44-510e. (a) If the employer and the employee are unable to
16 agree upon the amount of compensation to be paid in the case of injury
17 not covered by the schedule in K.S.A. 44-510d and amendments thereto,
18 the amount of compensation shall be settled according to the provisions
19 of the workers compensation act as in other cases of disagreement, except
20 that in case of temporary or permanent partial general disability not cov-
21 ered by such schedule, the employee shall receive weekly compensation
22 as determined in this subsection during such period of temporary or per-
23 manent partial general disability not exceeding a maximum of 415 weeks.
24 Weekly compensation for temporary partial general disability shall be
25 662/3% of the difference between the average gross weekly wage that the
26 employee was earning prior to such injury as provided in the workers
27 compensation act and the amount the employee is actually earning after
28 such injury in any type of employment, except that in no case shall such
29 weekly compensation exceed the maximum as provided for in K.S.A. 44-
30 510c and amendments thereto. Permanent partial general disability exists
31 when the employee is disabled in a manner which is partial in character
32 and permanent in quality and which is not covered by the schedule in
33 K.S.A. 44-510d and amendments thereto. The extent of permanent partial
34 general disability shall be the extent, expressed as a percentage, to which
35 the employee, in the opinion of the physician, has lost the ability to per-
36 form the work tasks that the employee still had the ability to perform
37 immediately prior to the injury which is the subject of the claim and which
38 the employee had performed in any substantial gainful employment dur-
39 ing the fifteen-year period preceding the accident, averaged together with
40 the difference between the average weekly wage the worker was earning
41 at the time of the injury and the average weekly wage the worker is
42 earning after the injury. In any event, the extent of permanent partial
43 general disability shall not be less than the percentage of functional im-
44 pairment. A worker who is receiving work disability benefits must im-
45 mediately notify the respondent if the worker receives retirement benefits
46 under the federal social security benefits act or if the average weekly wage
47 the worker is earning increases by more than 10% of the average weekly
48 wage used to calculate the worker's work disability award. Functional
49 impairment means the extent, expressed as a percentage, of the loss of a
50 portion of the total physiological capabilities of the human body as estab-
51 lished by competent medical evidence and based on the fourth edition of
52 the American Medical Association Guides to the Evaluation of Permanent
53 Impairment, if the impairment is contained therein. An employee shall
54 not be entitled to receive permanent partial general disability compen-
55 sation in excess of the percentage of functional impairment as long as the
56 employee is engaging in any work for wages equal to 90% or more of the
57 average gross weekly wage that the employee was earning at the time of
58 the injury. If the employer and the employee are unable to agree upon
59 the employee's functional impairment and if at least two medical opinions
60 based on competent medical evidence disagree as to the percentage of
61 functional impairment, such matter may be referred by the administrative
62 law judge to an independent health care provider who shall be selected
63 by the administrative law judge from a list of health care providers main-
64 tained by the director. The health care provider selected by the director
65 pursuant to this section shall issue an opinion regarding the employee's
66 functional impairment which shall be considered by the administrative
67 law judge in making the final determination. The amount of weekly com-
68 pensation for permanent partial general disability shall be determined as
69 follows:
70 (1) Find the payment rate which shall be the lesser of (A) the amount
71 determined by multiplying the average gross weekly wage of the worker
72 prior to such injury by 662/3% or (B) the maximum provided in K.S.A. 44-
73 510c and amendments thereto;
74 (2) find the number of disability weeks payable by subtracting from
75 415 weeks the total number of weeks of temporary total disability com-
76 pensation was paid, excluding the first 15 weeks of temporary total disa-
77 bility compensation that was paid, and multiplying the remainder by the
78 percentage of permanent partial general disability as determined under
79 this subsection (a); and
80 (3) multiply the number of disability weeks determined in paragraph
81 (2) of this subsection (a) by the payment rate determined in paragraph
82 (1) of this subsection (a).
83 The resulting award shall be paid for the number of disability weeks at
84 the full payment rate until fully paid or modified. If there is an award of
85 permanent disability as a result of the compensable injury, there shall be
86 a presumption that disability existed immediately after such injury. In any
87 case of permanent partial disability under this section, the employee shall
88 be paid compensation for not to exceed 415 weeks following the date of
89 such injury, subject to review and modification as provided in K.S.A. 44-
90 528 and amendments thereto.
91 (b) If an employee has received an injury for which compensation is
92 being paid, and the employee's death is caused by other and independent
93 causes, any payment of compensation already due the employee at the
94 time of death and then unpaid shall be paid to the employee's dependents
95 directly or to the employee's legal representatives if the employee left no
96 dependent, but the liability of the employer for the payments of com-
97 pensation not yet due at the time of the death of such employee shall
98 cease and be abrogated by the employee's death.
99 (c) The total amount of compensation that may be allowed or
100 awarded an injured employee for all injuries received in any one accident
101 shall in no event exceed the compensation which would be payable under
102 the workers compensation act for 100% permanent total disability re-
103 sulting from such accident.
104 (d) Where a minor employee or a minor employee's dependents are
105 entitled to compensation under the workers compensation act, such com-
106 pensation shall be exclusive of all other remedies or causes of action for
107 such injury or death, and no claim or cause of action against the employer
108 shall inure or accrue to or exist in favor of the parent or parents of such
109 minor employee on account of any damage resulting to such parent or
110 parents on account of the loss of earnings or loss of service of such minor
111 employee.
112 (e) In any case of injury to or death of an employee, where the em-
113 ployee or the employee's dependents are entitled to compensation under
114 the workers compensation act, such compensation shall be exclusive of
115 all other remedies or causes of action for such injury or death, and no
116 claim or action shall inure, accrue to or exist in favor of the surviving
117 spouse or any relative or next of kin of such employee against such em-
118 ployer on account of any damage resulting to such surviving spouse or
119 any relative or next of kin on account of the loss of earnings, services, or
120 society of such employee or on any other account resulting from or grow-
121 ing out of the injury or death of such employee.
122 Sec. 2. K.S.A. 1998 Supp. 44-510e is hereby repealed.
123 Sec. 3. This act shall take effect and be in force from and after its
124 publication in the statute book.