Session of 2000
SENATE BILL No. 644
By Committee on Ways and Means
2-22
9 AN ACT concerning the workers compensation act; relating to delivery
10 and payment of services delivered thereunder; amending K.S.A. 44-
11 510c and 44-516 and K.S.A. 1999 Supp. 44-501, 44-508, 44-510b, 44-
12 510d, 44-550b and 44-567 and repealing the existing sections; also
13 repealing K.S.A. 44-513 and K.S.A. 1999 Supp. 44-510.
14
15 Be it enacted by the Legislature of the State of Kansas:
16 New Section 1. (a) It shall be the duty of the employer to provide
17 the services of a health care provider, and such medical, surgical and
18 hospital treatment, including nursing, medicines, medical and surgical
19 supplies, ambulance, crutches, apparatus and transportation to and from
20 the home of the injured employee to a place outside the community in
21 which such employee resides, and within such community if the director,
22 in the director's discretion, so orders, including transportation expenses
23 computed in accordance with subsection (a) of K.S.A. 44-515 and amend-
24 ments thereto, as may be reasonably necessary to cure and relieve the
25 employee from the effects of the injury.
26 (b) (1) If the director finds, upon application of an injured employee,
27 that the services of the health care provider furnished as provided in
28 subsection (a) and rendered on behalf of the injured employee are not
29 satisfactory, the director may authorize the appointment of some other
30 health care provider. In any such case, the employer shall submit the
31 names of three health care providers who, if possible given the availability
32 of local health care providers, are not associated in practice together. The
33 injured employee may select one from the list who shall be the authorized
34 treating health care provider. If the injured employee is unable to obtain
35 satisfactory services from any of the health care providers submitted by
36 the employer under this paragraph, either party or both parties may re-
37 quest the director to select a treating health care provider.
38 (2) Without application or approval, an employee may consult a
39 health care provider of the employee's choice for the purpose of exami-
40 nation, diagnosis or treatment, but the employer shall only be liable for
41 the fees and charges of such health care provider up to a total amount of
42 $500. The amount allowed for such examination, diagnosis or treatment
43 shall not be used to obtain a functional impairment rating. Any medical
2
1 opinion obtained in violation of this prohibition shall not be admissible
2 in any claim proceedings under the workers compensation act.
3 (c) An injured employee whose injury or disability has been estab-
4 lished under the workers compensation act may rely, if done in good faith,
5 solely or partially on treatment by prayer or spiritual means in accordance
6 with the tenets of practice of a church or religious denomination without
7 suffering a loss of benefits subject to the following conditions:
8 (1) The employer or the employer's insurance carrier agrees thereto
9 in writing either before or after the injury;
10 (2) the employee submits to all physical examinations required by the
11 workers compensation act;
12 (3) the cost of such treatment shall be paid by the employee unless
13 the employer or insurance carrier agrees to make such payment;
14 (4) the injured employee shall be entitled only to benefits that would
15 reasonably have been expected had such employee undergone medical
16 or surgical treatment; and
17 (5) the employer or insurance carrier that made an agreement under
18 paragraph (1) or (3) of this subsection may withdraw from the agreement
19 on 10 days' written notice.
20 (d) In any employment to which the workers compensation act ap-
21 plies, the employer shall be liable to each employee who is employed as
22 a duly authorized law enforcement officer, ambulance attendant, mobile
23 intensive care technician or firefighter, including any person who is serv-
24 ing on a volunteer basis in such capacity, for all reasonable and necessary
25 preventive medical care and treatment for hepatitis to which such em-
26 ployee is exposed under circumstances arising out of and in the course
27 of employment.
28 New Sec. 2. (a) The director shall appoint, subject to the approval
29 of the secretary, a specialist in health services delivery, who shall be re-
30 ferred to as the medical administrator. The medical administrator shall
31 be a person licensed to practice medicine and surgery in this state and
32 shall be in the unclassified service under the Kansas civil service act.
33 (b) The medical administrator, subject to the direction of the direc-
34 tor, shall have the duty of overseeing the providing of health care services
35 to employees in accordance with the provisions of the workers compen-
36 sation act, including but not limited to:
37 (1) Preparing, with the assistance of the advisory panel, the fee sched-
38 ule for health care services as set forth in this section;
39 (2) developing, with the assistance of the advisory panel, the utiliza-
40 tion review program for health care services as set forth in this section;
41 (3) developing a system for collecting and analyzing data on expend-
42 itures for health care services by each type of provider under the workers
43 compensation act; and
3
1 (4) carrying out such other duties as may be delegated or directed by
2 the director or secretary.
3 (c) The director shall prepare and adopt rules and regulations which
4 establish a schedule of maximum fees for medical, surgical, hospital, den-
5 tal, nursing, vocational rehabilitation or any other treatment or services
6 provided or ordered by health care providers and rendered to employees
7 under the workers compensation act and procedures for appeals and re-
8 view of disputed charges or services rendered by health care providers
9 under this section;
10 (1) The schedule of maximum fees shall be reasonable, shall promote
11 health care cost containment and efficiency with respect to the workers
12 compensation health care delivery system, and shall be sufficient to en-
13 sure availability of such reasonably necessary treatment, care and attend-
14 ance to each injured employee to cure and relieve the employee from
15 the effects of the injury. The schedule shall include provisions and review
16 procedures for exceptional cases involving extraordinary medical proce-
17 dures or circumstances and shall include costs and charges for medical
18 records and testimony.
19 (2) In every case, all fees, transportation costs, charges under this
20 section and all costs and charges for medical records and testimony shall
21 be subject to approval by the director and shall be limited to such as are
22 fair, reasonable and necessary. The schedule of maximum fees shall be
23 revised as necessary at least every two years by the director to assure that
24 the schedule is current, reasonable and fair.
25 (3) Any contract or any billing or charge which any health care pro-
26 vider, vocational rehabilitation service provider, hospital, person or insti-
27 tution enters into with or makes to any patient for services rendered in
28 connection with injuries covered by the workers compensation act or the
29 fee schedule adopted under this section, which is or may be in excess of
30 or not in accordance with such act or fee schedule, is unlawful, void and
31 unenforceable as a debt.
32 (d) There is hereby created an advisory panel to assist the director in
33 establishing a schedule of maximum fees as required by this section. The
34 panel shall consist of the commissioner of insurance and seven members
35 appointed as follows: One person shall be appointed by the Kansas med-
36 ical society; one member shall be appointed by the Kansas association of
37 osteopathic medicine; one member shall be appointed by the Kansas hos-
38 pital association; one member shall be appointed by the Kansas chiro-
39 practic association; and three members shall be appointed by the secre-
40 tary. Of the members appointed by the secretary, one shall be a
41 representative of employers recommended to the secretary by the Kansas
42 chamber of commerce and industry; one shall be a representative of em-
43 ployees recommended to the secretary by the Kansas AFL-CIO; and one
4
1 shall be a representative of providers of vocational rehabilitation services
2 pursuant to K.S.A. 44-510g and amendments thereto. Each appointed
3 member shall be appointed for a term of office of two years which shall
4 commence on July 1 of the year of appointment. Members of the advisory
5 panel attending meetings of the advisory panel, or attending a subcom-
6 mittee of the advisory panel authorized by the advisory panel, shall be
7 paid subsistence allowances, mileage and other expenses as provided in
8 K.S.A. 75-3223 and amendments thereto.
9 (e) All fees and other charges paid for such treatment, care and at-
10 tendance, including treatment, care and attendance provided by any
11 health care provider, hospital or other entity providing health care serv-
12 ices, shall not exceed the amounts prescribed by the schedule of maxi-
13 mum fees established under this section or the amounts authorized pur-
14 suant to the provisions and review procedures prescribed by the schedule
15 for exceptional cases. A health care provider, hospital or other entity pro-
16 viding health care services shall be paid either such health care provider,
17 hospital or other entity's usual charge for the treatment, care and attend-
18 ance or the maximum fees as set forth in the schedule, whichever is less.
19 In reviewing and approving the schedule of maximum fees, the director
20 shall consider the following:
21 (1) The levels of fees for similar treatment, care and attendance im-
22 posed by other health care programs or third-party payors in the locality
23 in which such treatment or services are rendered;
24 (2) the impact upon cost to employers for providing a level of fees
25 for treatment, care and attendance which will ensure the availability of
26 treatment, care and attendance required for injured employees;
27 (3) the potential change in workers compensation insurance premi-
28 ums or costs attributable to the level of treatment, care and attendance
29 provided; and
30 (4) the financial impact of the schedule of maximum fees upon health
31 care providers and health care facilities and its effect upon their ability
32 to make available to employees such reasonably necessary treatment, care
33 and attendance to each injured employee to cure and relieve the em-
34 ployee from the effects of the injury.
35 New Sec. 3. When an employer's insurance carrier or a self-insured
36 employer disputes all or a portion of a bill for services rendered for the
37 care and treatment of an employee under this act, the following proce-
38 dures apply:
39 (a) (1) The employer or carrier shall notify the service provider
40 within 30 days of receipt of the bill of the specific reason for refusing
41 payment or adjusting the bill. Such notice shall inform the employer or
42 carrier that additional information may be submitted with the bill and
43 reconsideration of the bill may be requested. The provider shall send any
5
1 request for reconsideration within 30 days of receiving written notice of
2 the bill dispute. If the employer or carrier continues to dispute all or a
3 portion of the bill after receiving additional information from the pro-
4 vider, the employer, carrier or provider may apply for an informal hearing
5 before the director.
6 (2) If a provider sends a bill to such employer or carrier and receives
7 no response within 30 days as allowed in subsection (a) and if a provider
8 sends a second bill and receives no response within 60 days of the date
9 the provider sent the first bill, the provider may apply for an informal
10 hearing before the director.
11 (3) Payments shall not be delayed beyond 60 days for any amounts
12 not in dispute. Acceptance by any provider of a payment amount which
13 is less than the full amount charged for the services shall not affect the
14 right to have a review of the claim for the outstanding or remaining
15 amounts.
16 (b) The application for informal hearing shall include copies of the
17 disputed bills, all correspondence concerning the bills and any additional
18 written information the party deems appropriate. When anyone applies
19 for an informal hearing before the director, copies of the application shall
20 be sent to all parties to the dispute and the employee. Within 20 days of
21 receiving the application for informal hearing, the other parties to the
22 dispute shall send any additional written information deemed relevant to
23 the dispute to the director.
24 (c) The director or the director's designee shall hold the informal
25 hearing to hear and determine all disputes as to such bills and interest
26 due thereon. Evidence in the informal hearing shall be limited to the
27 written submissions of the parties. The informal hearing may be held by
28 electronic means. Any employer, carrier or provider may personally ap-
29 pear in or be represented at the hearing. If the parties are unable to reach
30 a settlement regarding the dispute, the officer hearing the dispute shall
31 enter an order so stating.
32 (d) After the entry of the order indicating that the parties have not
33 settled the dispute after the informal hearing, the director shall schedule
34 a formal hearing.
35 (1) Prior to the date of the formal hearing, the director may conduct
36 a utilization review concerning the disputed bill. The director shall de-
37 velop and implement, or contract with a qualified entity to develop and
38 implement, utilization review procedures relating to the services ren-
39 dered by providers and facilities, which services are paid for in whole or
40 in part pursuant to the workers compensation act. The director may con-
41 tract with one or more private foundations or organizations to provide
42 utilization review of service providers pursuant to the workers compen-
43 sation act. Such utilization review shall result in a report to the director
6
1 indicating whether a provider improperly utilized or otherwise rendered
2 or ordered unjustified treatment or services or that the fees for such
3 treatment or services were excessive and a statement of the basis for the
4 report's conclusions. After receiving the utilization review report, the di-
5 rector also may order a peer review. A copy of such reports shall be
6 provided to all parties to the dispute at least 20 days prior to the formal
7 hearing. No person shall be subject to civil liability for libel, slander or
8 any other relevant tort cause of action by virtue of performing a peer or
9 utilization review under contract with the director.
10 (2) The formal hearing shall be conducted by hearing officers, the
11 medical administrator or both as appointed by the director. During the
12 formal hearing parties to the dispute shall have the right to appear or be
13 represented and may produce witnesses, including expert witnesses, and
14 such other relevant evidence as may be otherwise allowed under the
15 workers compensation act. If the director finds that a provider or facility
16 has made excessive charges or provided or ordered unjustified treatment,
17 services, hospitalization or visits, the provider or facility may, subject to
18 the director's order, receive payment pursuant to this section from the
19 carrier, employer or employee for the excessive fees or unjustified treat-
20 ment, services, hospitalization or visits and such provider may be ordered
21 to repay any fees or charges collected therefor. If it is determined after
22 the formal hearing that a provider improperly utilized or otherwise ren-
23 dered or ordered unjustified treatment or services or that the fees for
24 such treatment or services were excessive, the director may provide a
25 report to the licensing board of the service provider with full documen-
26 tation of any such determination, except that no such report shall be
27 provided until after judicial review if the order is appealed. Any decision
28 rendered under this section may be reviewed by the workers compen-
29 sation board. A party must file a notice of appeal within 10 days of the
30 issuance of any decision under this section. The record on appeal shall
31 be limited only to the evidence presented to the hearing officer. The
32 decision of the director shall be affirmed unless the board determines
33 that the decision was not supported by substantial competent evidence.
34 (e) By accepting payment pursuant to this section for treatment or
35 services rendered to an injured employee, the provider shall be deemed
36 to consent to submitting all necessary records to substantiate the nature
37 and necessity of the service or charge and other information concerning
38 such treatment to utilization review under this section. Such health care
39 provider shall comply with any decision of the director pursuant to this
40 section.
41 (f) Except as provided in K.S.A. 60-437 and amendments thereto and
42 this section, findings and records which relate to utilization and peer
43 review conducted pursuant to this section shall be privileged and shall
7
1 not be subject to discovery, subpoena or other means of legal compulsion
2 for release to any person or entity and shall not be admissible in evidence
3 in any judicial or administrative proceeding, except those proceedings
4 authorized pursuant to this section. In any proceedings where there is an
5 application by an employee, employer, insurance carrier or the workers
6 compensation fund for a hearing pursuant to K.S.A. 44-534a, and amend-
7 ments thereto, for a change of medical benefits which has been filed after
8 a health care provider, employer, insurance carrier or the workers com-
9 pensation fund has made application to the medical services section of
10 the division for the resolution of a dispute or matter pursuant to the
11 provisions of this section, all reports, information, statements, memo-
12 randa, proceedings, findings and records which relate to utilization and
13 peer review including the records of contract reviewers and findings and
14 records of the medical services section of the division shall be admissible
15 at the hearing before the administrative law judge on the issue of the
16 medical benefits to which an employee is entitled.
17 (g) A provider may not improperly overcharge or charge for services
18 which were not provided for the purpose of obtaining additional payment.
19 Any dispute regarding such actions shall be resolved in the same manner
20 as other bill disputes as provided by this section. Any violation of the
21 provisions of section 2 or section 3, and amendments thereto, which is
22 willful or which demonstrates a pattern of improperly charging or over-
23 charging for services rendered pursuant to this act constitutes grounds
24 for the director to impose a civil fine not to exceed $5,000. Any civil fine
25 imposed under this section shall be subject to review by the board. All
26 moneys received for civil fines imposed under this section shall be de-
27 posited in the state treasury to the credit of the workers compensation
28 fund.
29 (h) Any health care provider, nurse, physical therapist, any entity pro-
30 viding medical, physical or vocational rehabilitation services or providing
31 reeducation or training pursuant to K.S.A. 44-510g and amendments
32 thereto, medical supply establishment, surgical supply establishment, am-
33 bulance service or hospital which accept the terms of the workers com-
34 pensation act by providing services or material thereunder shall be bound
35 by the fees approved by the director and no injured employee or de-
36 pendent of a deceased employee shall be liable for any charges above the
37 amounts approved by the director. If the employer has knowledge of the
38 injury and refuses or neglects to reasonably provide the services of a
39 health care provider required by this act, the employee may provide the
40 same for such employee, and the employer shall be liable for such ex-
41 penses subject to the regulations adopted by the director. No action shall
42 be filed in any court by a health care provider or other provider of services
43 under this act for the payment of an amount for medical services or
8
1 materials provided under the workers compensation act and no other
2 action to obtain or attempt to obtain or collect such payment shall be
3 taken by a health care provider or other provider of services under this
4 act, including employing any collection service, until after final adjudi-
5 cation of any claim for compensation for which an application for hearing
6 is filed with the director under K.S.A. 44-534 and amendments thereto.
7 In the case of any such action filed in a court prior to the date an appli-
8 cation is filed under K.S.A. 44-534 and amendments thereto, no judgment
9 may be entered in any such cause and the action shall be stayed until
10 after the final adjudication of the claim. In the case of an action stayed
11 hereunder, any award of compensation shall require any amounts payable
12 for medical services or materials to be paid directly to the provider thereof
13 plus an amount of interest at the rate provided by statute for judgments.
14 No period of time under any statute of limitation, which applies to a cause
15 of action barred under this subsection, shall commence or continue to
16 run until final adjudication of the claim under the workers compensation
17 act.
18 (i) As used in this section, unless the context or the specific provisions
19 clearly require otherwise, ``carrier'' means a self-insured employer, an
20 insurance company or a qualified group-funded workers compensation
21 pool and ``provider'' means any health care provider, vocational rehabil-
22 itation service provider or any facility providing health care services or
23 vocational rehabilitation services, or both, including any hospital.
24 Sec. 4. K.S.A. 1999 Supp. 44-501 is hereby amended to read as fol-
25 lows: 44-501. (a) If in any employment to which the workers compensa-
26 tion act applies, personal injury by accident arising out of and in the
27 course of employment is caused to an employee, the employer shall be
28 liable to pay compensation to the employee in accordance with the pro-
29 visions of the workers compensation act. In proceedings under the work-
30 ers compensation act, the burden of proof shall be on the claimant to
31 establish the claimant's right to an award of compensation and to prove
32 the various conditions on which the claimant's right depends. In deter-
33 mining whether the claimant has satisfied this burden of proof, the trier
34 of fact shall consider the whole record.
35 (b) Except as provided in the workers compensation act, no em-
36 ployer, or other employee of such employer, shall be liable for any injury
37 for which compensation is recoverable under the workers compensation
38 act nor shall an employer be liable to any third party for any injury or
39 death of an employee which was caused under circumstances creating a
40 legal liability against a third party and for which workers compensation is
41 payable by such employer.
42 (c) The employee shall not be entitled to recover for the aggravation
43 of a preexisting condition, except to the extent that the work-related injury
9
1 causes increased disability. Any award of compensation shall be reduced
2 by the amount of functional impairment determined to be preexisting.
3 (d) (1) If the injury to the employee results from the employee's
4 deliberate intention to cause such injury; or from the employee's willful
5 failure to use a guard or protection against accident required pursuant to
6 any statute and provided for the employee, or a reasonable and proper
7 guard and protection voluntarily furnished the employee by the employer,
8 any compensation in respect to that injury shall be disallowed.
9 (2) The employer shall not be liable under the workers compensation
10 act where the injury, disability or death was contributed to by the em-
11 ployee's use or consumption of alcohol or any drugs, chemicals or any
12 other compounds or substances, including but not limited to, any drugs
13 or medications which are available to the public without a prescription
14 from a health care provider, prescription drugs or medications, any form
15 or type of narcotic drugs, marijuana, stimulants, depressants or hallucin-
16 ogens. In the case of drugs or medications which are available to the
17 public without a prescription from a health care provider and prescription
18 drugs or medications, compensation shall not be denied if the employee
19 can show that such drugs or medications were being taken or used in
20 therapeutic doses and there have been no prior incidences of the em-
21 ployee's impairment on the job as the result of the use of such drugs or
22 medications within the previous 24 months. It shall be conclusively pre-
23 sumed that the employee was impaired due to alcohol if it is shown that
24 at the time of the injury that the employee had an alcohol concentration
25 of .04 or more. An employee's refusal to submit to a chemical test shall
26 not be admissible evidence to prove impairment unless there was prob-
27 able cause to believe that the employee used, possessed or was impaired
28 by a drug or alcohol while working. The results of a chemical test shall
29 not be admissible evidence to prove impairment unless the following con-
30 ditions were met:
31 (A) There was probable cause to believe that the employee used, had
32 possession of, or was impaired by the drug or alcohol while working;
33 (B) the test sample was collected at a time contemporaneous with
34 the events establishing probable cause;
35 (C) the collecting and labeling of the test sample was performed by
36 or under the supervision of a licensed health care professional;
37 (D) the test was performed by a laboratory approved by the United
38 States department of health and human services or licensed by the de-
39 partment of health and environment, except that a blood sample may be
40 tested for alcohol content by a laboratory commonly used for that purpose
41 by state law enforcement agencies;
42 (E) the test was confirmed by gas chromatography, gas chromatog-
43 raphy-mass spectroscopy or other comparably reliable analytical method,
10
1 except that no such confirmation is required for a blood alcohol sample;
2 and
3 (F) the foundation evidence must establish, beyond a reasonable
4 doubt, that the test results were from the sample taken from the
5 employee.
6 (e) Compensation shall not be paid in case of coronary or coronary
7 artery disease or cerebrovascular injury unless it is shown that the exertion
8 of the work necessary to precipitate the disability was more than the
9 employee's usual work in the course of the employee's regular
10 employment.
11 (f) Except as provided in the workers compensation act, no construc-
12 tion design professional who is retained to perform professional services
13 on a construction project or any employee of a construction design pro-
14 fessional who is assisting or representing the construction design profes-
15 sional in the performance of professional services on the site of the con-
16 struction project, shall be liable for any injury resulting from the
17 employer's failure to comply with safety standards on the construction
18 project for which compensation is recoverable under the workers com-
19 pensation act, unless responsibility for safety practices is specifically as-
20 sumed by contract. The immunity provided by this subsection to any
21 construction design professional shall not apply to the negligent prepa-
22 ration of design plans or specifications.
23 (g) It is the intent of the legislature that the workers compensation
24 act shall be liberally construed for the purpose of bringing employers and
25 employees within the provisions of the act to provide the protections of
26 the workers compensation act to both. The provisions of the workers
27 compensation act shall be applied impartially to both employers and em-
28 ployees in cases arising thereunder.
29 (h) If the employee is receiving retirement benefits under the federal
30 social security act or retirement benefits from any other retirement sys-
31 tem, program or plan which is provided by the employer against which
32 the claim is being made, any compensation benefit payments which the
33 employee is eligible to receive under the workers compensation act for
34 such claim shall be reduced by the weekly equivalent amount of the total
35 amount of all such retirement benefits, less any portion of any such re-
36 tirement benefit, other than retirement benefits under the federal social
37 security act, that is attributable to payments or contributions made by the
38 employee, but in no event shall the workers compensation benefit be less
39 than the workers compensation benefit payable for the employee's per-
40 centage of functional impairment.
41 Sec. 5. K.S.A. 1999 Supp. 44-508 is hereby amended to read as fol-
42 lows: 44-508. As used in the workers compensation act:
43 (a) ``Employer'' includes: (1) Any person or body of persons, corpo-
11
1 rate or unincorporate, and the legal representative of a deceased em-
2 ployer or the receiver or trustee of a person, corporation, association or
3 partnership; (2) the state or any department, agency or authority of the
4 state, any city, county, school district or other political subdivision or
5 municipality or public corporation and any instrumentality thereof; and
6 (3) for the purposes of community service work, the entity for which the
7 community service work is being performed and the governmental agency
8 which assigned the community service work, if any, if either such entity
9 or such governmental agency has filed a written statement of election
10 with the director to accept the provisions under the workers compensa-
11 tion act for persons performing community service work and in such case
12 such entity and such governmental agency shall be deemed to be the joint
13 employer of the person performing the community service work and both
14 shall have the rights, liabilities and immunities provided under the work-
15 ers compensation act for an employer with regard to the community serv-
16 ice work, except that the liability for providing benefits shall be imposed
17 only on the party which filed such election with the director, or on both
18 if both parties have filed such election with the director; for purposes of
19 community service work, ``governmental agency'' shall not include any
20 court or any officer or employee thereof and any case where there is
21 deemed to be a ``joint employer'' shall not be construed to be a case of
22 dual or multiple employment.
23 (b) ``Workman'' or ``employee'' or ``worker'' means any person who
24 has entered into the employment of or works under any contract of serv-
25 ice or apprenticeship with an employer. Such terms shall include but not
26 be limited to: Executive officers of corporations; professional athletes;
27 persons serving on a volunteer basis as duly authorized law enforcement
28 officers, ambulance attendants, mobile intensive care technicians, fire-
29 fighters, but only to the extent and during such periods as they are so
30 serving in such capacities; persons employed by educational, religious and
31 charitable organizations, but only to the extent and during the periods
32 that they are paid wages by such organizations; persons in the service of
33 the state, or any department, agency or authority of the state, any city,
34 school district, or other political subdivision or municipality or public
35 corporation and any instrumentality thereof, under any contract of serv-
36 ice, express or implied, and every official or officer thereof, whether
37 elected or appointed, while performing official duties; persons in the serv-
38 ice of the state as volunteer members of the Kansas department of civil
39 air patrol, but only to the extent and during such periods as they are
40 officially engaged in the performance of functions specified in K.S.A. 48-
41 3302 and amendments thereto; volunteers in any employment, if the em-
42 ployer has filed an election to extend coverage to such volunteers; minors,
43 whether such minors are legally or illegally employed; and persons per-
12
1 forming community service work, but only to the extent and during such
2 periods as they are performing community service work and if an election
3 has been filed an election to extend coverage to such persons. Any ref-
4 erence to an employee who has been injured shall, where the employee
5 is dead, include a reference to the employee's dependents, to the em-
6 ployee's legal representatives, or, if the employee is a minor or an inca-
7 pacitated person, to the employee's guardian or conservator. Unless there
8 is a valid election in effect which has been filed as provided in K.S.A. 44-
9 542a and amendments thereto, such terms shall not include individual
10 employers, limited or general partners or self-employed persons.
11 (c) (1) ``Dependents'' means such members of the employee's family
12 as were wholly or in part dependent upon the employee at the time of
13 the accident.
14 (2) ``Members of a family'' means only surviving legal spouse and
15 children; or if no surviving legal spouse or children, then parents or grand-
16 parents; or if no parents or grandparents, then grandchildren; or if no
17 grandchildren, then brothers and sisters. In the meaning of this section,
18 parents include stepparents, children include stepchildren, grandchildren
19 include stepgrandchildren, brothers and sisters include stepbrothers and
20 stepsisters, and children and parents include that relation by legal adop-
21 tion. In the meaning of this section, a surviving spouse shall not be re-
22 garded as a dependent of a deceased employee or as a member of the
23 family, if the surviving spouse shall have for more than six months willfully
24 or voluntarily deserted or abandoned the employee prior to the date of
25 the employee's death.
26 (3) ``Wholly dependent child or children'' means:
27 (A) A birth child or adopted child of the employee except such a child
28 whose relationship to the employee has been severed by adoption;
29 (B) a stepchild of the employee who lives in the employee's
30 household;
31 (C) any other child who is actually dependent in whole or in part on
32 the employee and who is related to the employee by marriage or consan-
33 guinity; or
34 (D) any child as defined in subsections (3)(A), (3)(B) or (3)(C) who
35 is less than 23 years of age and who is not physically or mentally capable
36 of earning wages in any type of substantial and gainful employment or
37 who is a full-time student attending an accredited institution of higher
38 education or vocational education.
39 (d) ``Accident'' means an undesigned, sudden and unexpected event
40 or events, usually of an afflictive or unfortunate nature and often, but not
41 necessarily, accompanied by a manifestation of force. The elements of an
42 accident, as stated herein, are not to be construed in a strict and literal
43 sense, but in a manner designed to effectuate the purpose of the workers
13
1 compensation act that the employer bear the expense of accidental injury
2 to a worker caused by the employment.
3 (e) ``Personal injury'' and ``injury'' mean any lesion or change in the
4 physical structure of the body, causing damage or harm thereto, so that
5 it gives way under the stress of the worker's usual labor. It is not essential
6 that such lesion or change be of such character as to present external or
7 visible signs of its existence. An injury shall not be deemed to have been
8 directly caused by the employment where it is shown that the employee
9 suffers disability as a result of the natural aging process or by the normal
10 activities of day-to-day living.
11 (f) The words ``arising out of and in the course of employment'' as
12 used in the workers compensation act shall not be construed to include
13 injuries to the employee occurring while the employee is on the way to
14 assume the duties of employment or after leaving such duties, the prox-
15 imate cause of which injury is not the employer's negligence. An em-
16 ployee shall not be construed as being on the way to assume the duties
17 of employment or having left such duties at a time when the worker is
18 on the premises of the employer or on the only available route to or from
19 work which is a route involving a special risk or hazard and which is a
20 route not used by the public except in dealings with the employer. An
21 employee shall not be construed as being on the way to assume the duties
22 of employment, if the employee is a provider of emergency services re-
23 sponding to an emergency.
24 The words, ``arising out of and in the course of employment'' as used
25 in the workers compensation act shall not be construed to include injuries
26 to employees while engaged in recreational or social events under cir-
27 cumstances where the employee was under no duty to attend and where
28 the injury did not result from the performance of tasks related to the
29 employee's normal job duties or as specifically instructed to be performed
30 by the employer.
31 (g) ``Burden of proof'' means the burden of a party to persuade the
32 trier of facts by a preponderance of the credible evidence that such party's
33 position on an issue is more probably true than not true on the basis of
34 the whole record.
35 (h) ``Director'' means the director of workers compensation as pro-
36 vided for in K.S.A. 75-5708 and amendments thereto.
37 (i) ``Health care provider'' means any person licensed, by the proper
38 licensing authority of this state, another state or the District of Columbia,
39 to practice medicine and surgery, osteopathy, chiropractic, dentistry, op-
40 tometry, podiatry, audiology or psychology.
41 (j) ``Secretary'' means the secretary of human resources.
42 (k) ``Construction design professional'' means any person who is an
43 architect, professional engineer, landscape architect or land surveyor who
14
1 has been issued a license by the state board of technical professions to
2 practice such technical profession in Kansas or any corporation organized
3 to render professional services through the practice of one or more of
4 such technical professions in Kansas under the professional corporation
5 law of Kansas or any corporation issued a certificate of authorization un-
6 der K.S.A. 74-7036 and amendments thereto to practice one or more of
7 such technical professions in Kansas.
8 (l) ``Community service work'' means: (1) Public or community serv-
9 ice performed as a result of a contract of diversion or of assignment to a
10 community corrections program or conservation camp or suspension of
11 sentence or as a condition of probation or in lieu of a fine imposed by
12 court order; or (2) public or community service or other work performed
13 as a requirement for receipt of any kind of public assistance in accordance
14 with any program administered by the secretary of social and rehabilita-
15 tion services.
16 (m) ``Utilization review'' means the initial evaluation of appropriate-
17 ness in terms of both the level and the quality of health care and health
18 services provided a patient, based on accepted standards of the health
19 care profession involved. Such evaluation is accomplished by means of a
20 system which identifies the utilization of health care services above the
21 usual range of utilization for such services, which is based on accepted
22 standards of the health care profession involved, and which refers in-
23 stances of possible inappropriate utilization to the director for referral to
24 a peer review committee.
25 (n) ``Peer review'' means an evaluation by a peer review committee
26 of the appropriateness, quality and cost of health care and health services
27 provided a patient, which is based on accepted standards of the health
28 care profession involved and which is conducted in conjunction with util-
29 ization review.
30 (o) ``Peer review committee'' means a committee composed of health
31 care providers licensed to practice the same health care profession as the
32 health care provider who rendered the health care services being
33 reviewed.
34 (p) ``Group-funded self-insurance plan'' includes each group-funded
35 workers compensation pool, which is authorized to operate in this state
36 under K.S.A. 44-581 through 44-592 and amendments thereto, each mu-
37 nicipal group-funded pool under the Kansas municipal group-funded pool
38 act which is covering liabilities under the workers compensation act, and
39 any other similar group-funded or pooled plan or arrangement that pro-
40 vides coverage for employer liabilities under the workers compensation
41 act and is authorized by law.
42 (q) On and after the effective date of this act, ``workers compensation
43 board'' or ``board'' means the workers compensation board established
15
1 under K.S.A. 1999 Supp. 44-555c and amendments thereto.
2 Sec. 6. K.S.A. 1999 Supp. 44-510b is hereby amended to read as
3 follows: 44-510b. Where death results from injury, compensation shall be
4 paid as provided in K.S.A. 44-510 sections 1 and 2 and amendments
5 thereto, and as follows:
6 (a) If an employee leaves any dependents wholly dependent upon the
7 employee's earnings at the time of the accident, all compensation benefits
8 under this section shall be paid to such dependent persons. Such de-
9 pendents shall be paid weekly compensation, except as otherwise pro-
10 vided in this section, in a total sum to all such dependents, equal to 662/3%
11 of the average gross weekly wage of the employee at the time of the
12 accident, computed as provided in K.S.A. 44-511 and amendments
13 thereto, but in no event shall such weekly benefits exceed, nor be less
14 than, the maximum and minimum weekly benefits provided in K.S.A. 44-
15 510c and amendments thereto, subject to the following:
16 (1) If the employee leaves a surviving legal spouse or a wholly de-
17 pendent child or children, or both, who are eligible for benefits under
18 this section, then all death benefits shall be paid to such surviving spouse
19 or children, or both, and no benefits shall be paid to any other wholly or
20 partially dependent persons.
21 (2) A surviving legal spouse shall be paid compensation benefits for
22 life or until remarriage, except as otherwise provided in this section.
23 (3) Any wholly dependent child of the employee shall be paid com-
24 pensation, except as otherwise provided in this section, until such de-
25 pendent child becomes 18 years of age, except that any such dependent
26 child who is not physically or mentally capable of earning wages in any
27 type of substantial and gainful employment, or who is enrolled as a full-
28 time student in an accredited institution of higher education or vocational
29 education shall be paid compensation until such dependent child be-
30 comes 23 years of age.
31 (4) If the employee leaves no legal spouse or dependent children
32 eligible for benefits under this section but leaves other dependents wholly
33 dependent upon the employee's earnings, such other dependents shall
34 receive weekly compensation benefits as provided in this subsection until
35 death, remarriage or so long as such other dependents do not receive
36 more than 50% of their support from any other earnings or income or
37 from any other source, except that the maximum benefits payable to all
38 such other dependents, regardless of the number of such other depend-
39 ents, shall not exceed a maximum amount of $18,500.
40 (b) Upon the remarriage of a surviving legal spouse receiving com-
41 pensation under this section, the benefits being paid to such spouse shall
42 terminate, except that upon such remarriage 100 weeks of benefits at the
43 highest rate paid to such spouse under this section shall be paid to such
16
1 spouse in one lump sum, except that such lump-sum payment shall be
2 subject to the maximum amount of compensation payable under this sec-
3 tion as prescribed by subsection (i).
4 (c) Where the employee leaves a surviving legal spouse and depend-
5 ent children who were wholly dependent upon the employee's earnings
6 and are eligible for benefits under this section 1/2 of the maximum weekly
7 benefits payable shall be apportioned to such spouse and 1/2 to such de-
8 pendent children.
9 (d) If an employee does not leave any dependents who were wholly
10 dependent upon the employee's earnings at the time of the accident but
11 leaves dependents, other than a spouse or children, in part dependent on
12 the employee's earnings, such percentage of a sum equal to three times
13 the employee's average yearly earnings but not exceeding $18,500 but not
14 less than $2,500, as such employee's average annual contributions which
15 the employee made to the support of such dependents during the two
16 years preceding the date of the accident, bears to the employee's average
17 yearly earnings during the contemporaneous two-year period, shall be
18 paid in compensation to such dependents, in weekly payments as pro-
19 vided in subsection (a), not to exceed $18,500 to all such dependents.
20 (e) If an employee does not leave any dependents, either wholly or
21 partially dependent upon the employee, a lump-sum payment of $25,000
22 shall be made to the legal heirs of such employee in accordance with
23 Kansas law. However under no circumstances shall such payment escheat
24 to the state. Notwithstanding the provisions of this subsection, no such
25 payment shall be required if the employer has procured a life insurance
26 policy, with beneficiaries designated by the employee, providing coverage
27 in an amount not less than $18,500.
28 (f) The administrative law judge, except as otherwise provided in this
29 section, shall have the power and authority to apportion and reapportion
30 the compensation allowed under this section, either to wholly dependent
31 persons or partially dependent persons, in accordance with the degree of
32 dependency as of the date of the accident, except that the weekly payment
33 of compensation to any and all dependents shall not exceed the maximum
34 weekly benefits provided in subsection (a).
35 (g) In all cases of death compensable under this section, the employer
36 shall pay the reasonable expense of burial not exceeding $5,000.
37 (h) The marriage or death of any dependent shall terminate all com-
38 pensation, under this section, to such dependent, but shall not increase
39 or decrease the compensation allowed to any other dependents except
40 that, upon the marriage or death of the surviving legal spouse or a de-
41 pendent child, the compensation payable to such spouse or child shall be
42 reapportioned to those, among the surviving legal spouse and dependent
43 children, who remain eligible to receive compensation under this section.
17
1 (i) Notwithstanding any other provision in this section to the contrary,
2 the maximum amount of compensation benefits payable under this sec-
3 tion to any and all dependents by the employer shall not exceed a total
4 amount of $200,000 and when such total amount has been paid the lia-
5 bility of the employer for any further compensation under this section to
6 dependents, other than minor children of the employee, shall cease ex-
7 cept that the payment of compensation under this section to any minor
8 child of the employee shall continue for the period of the child's minority
9 at the weekly rate in effect when the employer's liability is otherwise
10 terminated under this subsection and shall not be subject to termination
11 under this subsection until such child becomes 18 years of age.
12 (j) A surviving spouse shall submit an annual statement to the em-
13 ployer and to the director, in such form and containing such information
14 relating to eligibility for compensation under this section as may be re-
15 quired by rules and regulations of the director. If such spouse fails to
16 submit such an annual statement, the employer may notify the director
17 of such failure and the director shall notify such spouse of such failure
18 by certified mail with return receipt. If such spouse fails to submit the
19 annual statement or fails to reasonably provide the required information
20 within 30 days after receipt of the notice from the director, all compen-
21 sation benefits paid under this section to such spouse shall be suspended
22 until such statement is submitted in proper form to the employer and the
23 director.
24 Sec. 7. K.S.A. 44-510c is hereby amended to read as follows: 44-
25 510c. Where death does not result from the injury, compensation shall
26 be paid as provided in K.S.A. 44-510 sections 1 and 2 and amendments
27 thereto and as follows:
28 (a) (1) Where permanent total disability results from the injury,
29 weekly payments shall be made during the period of permanent total
30 disability in a sum equal to 662/3% of the average gross weekly wage of
31 the injured employee, computed as provided in K.S.A. 44-511 and
32 amendments thereto, but in no case less than $25 per week nor more
33 than the dollar amount nearest to 75% of the state's average weekly wage,
34 determined as provided in K.S.A. 44-511 and amendments thereto, per
35 week. The payment of compensation for permanent total disability shall
36 continue for the duration of such disability, subject to review and modi-
37 fication as provided in K.S.A. 44-528 and amendments thereto.
38 (2) Permanent total disability exists when the employee, on account
39 of the injury, has been rendered completely and permanently incapable
40 of engaging in any type of substantial and gainful employment. Loss of
41 both eyes, both hands, both arms, both feet, or both legs, or any combi-
42 nation thereof, in the absence of proof to the contrary, shall constitute a
43 permanent total disability. Substantially total paralysis, or incurable im-
18
1 becility or insanity, resulting from injury independent of all other causes,
2 shall constitute permanent total disability. In all other cases permanent
3 total disability shall be determined in accordance with the facts.
4 (b) (1) Where temporary total disability results from the injury, no
5 compensation shall be paid during the first week of disability, except that
6 provided in K.S.A. 44-510 sections 1 and 2 and amendments thereto,
7 unless the temporary total disability exists for three consecutive weeks,
8 in which case compensation shall be paid for the first week of such dis-
9 ability. Thereafter weekly payments shall be made during such temporary
10 total disability, in a sum equal to 66 2/3% of the average gross weekly
11 wage of the injured employee, computed as provided in K.S.A. 44-511
12 and amendments thereto, but in no case less than $25 per week nor more
13 than the dollar amount nearest to 75% of the state's average weekly wage,
14 determined as provided in K.S.A. 44-511 and amendments thereto, per
15 week. The payment of compensation for temporary total disability shall
16 continue for the duration of any such disability, subject to review and
17 modification as provided in K.S.A. 44-528 and amendments thereto.
18 (2) Temporary total disability exists when the employee, on account
19 of the injury, has been rendered completely and temporarily incapable of
20 engaging in any type of substantial and gainful employment. A release
21 issued by a health care provider with temporary medical limitations for
22 an employee may or may not be determinative of the employee's actual
23 ability to be engaged in any type of substantial and gainful employment,
24 except that temporary total disability compensation shall not be awarded
25 unless the opinion of the authorized treating health care provider is shown
26 to be based on an assessment of the employee's actual job duties with the
27 employer, with or without accommodation.
28 (3) Where no award has been entered, a return by the employee to
29 any type of substantial and gainful employment or, subject to the provi-
30 sions of subsection (b)(2), a release by a treating health care provider or
31 examining health care provider, who is not regularly employed or retained
32 by the employer, to return to any type of substantial and gainful employ-
33 ment, shall suspend the employee's right to the payment of temporary
34 total disability compensation, but shall not affect any right the employee
35 may have to compensation for partial disability in accordance with K.S.A.
36 44-510d and 44-510e and amendments thereto.
37 (c) When any permanent total disability or temporary total disability
38 is followed by partial disability, compensation shall be paid as provided
39 in K.S.A. 44-510d and 44-510e and amendments thereto.
40 Sec. 8. K.S.A. 44-516 is hereby amended to read as follows: 44-516.
41 In case of a dispute as to the injury, the director, in the director's discre-
42 tion, or upon request of either party, may employ one or more neutral
43 health care providers, not exceeding three in number, who shall be of
19
1 good standing and ability. The health care providers shall make such ex-
2 aminations of the injured employee as the director may direct. The report
3 of any such health care provider shall be considered by the administrative
4 law judge in making the final determination.
5 Sec. 9. K.S.A. 1999 Supp. 44-510d is hereby amended to read as
6 follows: 44-510d. (a) Where disability, partial in character but permanent
7 in quality, results from the injury, the injured employee shall be entitled
8 to the compensation provided in K.S.A. 44-510 sections 1 and 2 and
9 amendments thereto, but shall not be entitled to any other or further
10 compensation for or during the first week following the injury unless such
11 disability exists for three consecutive weeks, in which event compensation
12 shall be paid for the first week. Thereafter compensation shall be paid
13 for temporary total loss of use and as provided in the following schedule,
14 662/3% of the average gross weekly wages to be computed as provided in
15 K.S.A. 44-511 and amendments thereto, except that in no case shall the
16 weekly compensation be more than the maximum as provided for in
17 K.S.A. 44-510c and amendments thereto. If there is an award of per-
18 manent disability as a result of the injury there shall be a presumption
19 that disability existed immediately after the injury and compensation is to
20 be paid for not to exceed the number of weeks allowed in the following
21 schedule:
22 (1) For loss of a thumb, 60 weeks.
23 (2) For the loss of a first finger, commonly called the index finger,
24 37 weeks.
25 (3) For the loss of a second finger, 30 weeks.
26 (4) For the loss of a third finger, 20 weeks.
27 (5) For the loss of a fourth finger, commonly called the little finger,
28 15 weeks.
29 (6) Loss of the first phalange of the thumb or of any finger shall be
30 considered to be equal to the loss of 1/2 of such thumb or finger, and the
31 compensation shall be 1/2 of the amount specified above. The loss of the
32 first phalange and any part of the second phalange of any finger, which
33 includes the loss of any part of the bone of such second phalange, shall
34 be considered to be equal to the loss of 2/3 of such finger and the com-
35 pensation shall be 2/3 of the amount specified above. The loss of the first
36 phalange and any part of the second phalange of a thumb which includes
37 the loss of any part of the bone of such second phalange, shall be consid-
38 ered to be equal to the loss of the entire thumb. The loss of the first and
39 second phalanges and any part of the third proximal phalange of any
40 finger, shall be considered as the loss of the entire finger. Amputation
41 through the joint shall be considered a loss to the next higher schedule.
42 (7) For the loss of a great toe, 30 weeks.
43 (8) For the loss of any toe other than the great toe, 10 weeks.
20
1 (9) The loss of the first phalange of any toe shall be considered to be
2 equal to the loss of 1/2 of such toe and the compensation shall be 1/2 of
3 the amount above specified.
4 (10) The loss of more than one phalange of a toe shall be considered
5 to be equal to the loss of the entire toe.
6 (11) For the loss of a hand, 150 weeks.
7 (12) For the loss of a forearm, 200 weeks.
8 (13) For the loss of an arm, excluding the shoulder joint, shoulder
9 girdle, shoulder musculature or any other shoulder structures, 210 weeks,
10 and for the loss of an arm, including the shoulder joint, shoulder girdle,
11 shoulder musculature or any other shoulder structures, 225 weeks.
12 (14) For the loss of a foot, 125 weeks.
13 (15) For the loss of a lower leg, 190 weeks.
14 (16) For the loss of a leg, 200 weeks.
15 (17) For the loss of an eye, or the complete loss of the sight thereof,
16 120 weeks.
17 (18) Amputation or severance below the wrist shall be considered as
18 the loss of a hand. Amputation at the wrist and below the elbow shall be
19 considered as the loss of the forearm. Amputation at or above the elbow
20 shall be considered loss of the arm. Amputation below the ankle shall be
21 considered loss of the foot. Amputation at the ankle and below the knee
22 shall be considered as loss of the lower leg. Amputation at or above the
23 knee shall be considered as loss of the leg.
24 (19) For the complete loss of hearing of both ears, 110 weeks.
25 (20) For the complete loss of hearing of one ear, 30 weeks.
26 (21) Permanent loss of the use of a finger, thumb, hand, shoulder,
27 arm, forearm, toe, foot, leg or lower leg or the permanent loss of the sight
28 of an eye or the hearing of an ear, shall be equivalent to the loss thereof.
29 For the permanent partial loss of the use of a finger, thumb, hand, shoul-
30 der, arm, toe, foot or leg, or the sight of an eye or the hearing of an ear,
31 compensation shall be paid as provided for in K.S.A. 44-510c and amend-
32 ments thereto, per week during that proportion of the number of weeks
33 in the foregoing schedule provided for the loss of such finger, thumb,
34 hand, shoulder, arm, toe, foot or leg, or the sight of an eye or the hearing
35 of an ear, which partial loss thereof bears to the total loss of a finger,
36 thumb, hand, shoulder, arm, toe, foot or leg, or the sight of an eye or the
37 hearing of an ear; but in no event shall the compensation payable here-
38 under for such partial loss exceed the compensation payable under the
39 schedule for the total loss of such finger, thumb, hand, arm, toe, foot or
40 leg, or the sight of an eye or the hearing of an ear, exclusive of the healing
41 period. As used in this paragraph (21), ``shoulder'' means the shoulder
42 joint, shoulder girdle, shoulder musculature or any other shoulder
43 structures.
21
1 (22) For traumatic hernia, compensation shall be limited to the com-
2 pensation under K.S.A. 44-510 sections 1 and 2 and amendments thereto,
3 compensation for temporary total disability during such period of time as
4 such employee is actually unable to work on account of such hernia, and,
5 in the event such hernia is inoperable, weekly compensation during 12
6 weeks, except that, in the event that such hernia is operable, the unrea-
7 sonable refusal of the employee to submit to an operation for surgical
8 repair of such hernia shall deprive such employee of any benefits under
9 the workers compensation act.
10 (23) Loss of a scheduled member shall be based upon permanent
11 impairment of function to the scheduled member as determined using
12 the fourth edition of the American Medical Association Guides to the
13 Evaluation of Permanent Impairment, if the impairment is contained
14 therein.
15 (b) Whenever the employee is entitled to compensation for a specific
16 injury under the foregoing schedule, the same shall be exclusive of all
17 other compensation except the benefits provided in K.S.A. 44-510 sec-
18 tions 1 and 2 and amendments thereto, and no additional compensation
19 shall be allowable or payable for any temporary or permanent, partial or
20 total disability, except that the director, in proper cases, may allow addi-
21 tional compensation during the actual healing period, following amputa-
22 tion. The healing period shall not be more than 10% of the total period
23 allowed for the scheduled injury in question nor in any event for longer
24 than 15 weeks. The return of the employee to the employee's usual oc-
25 cupation shall terminate the healing period.
26 Sec. 10. K.S.A. 1999 Supp. 44-550b is hereby amended to read as
27 follows: 44-550b. (a) All records provided to be maintained under K.S.A.
28 44-550 and amendments thereto and not withstanding the provisions of
29 K.S.A. 45-215, et seq., and amendments thereto, shall be open to public
30 inspection, except:
31 (1) Records relating to financial information submitted by an em-
32 ployer to qualify as a self-insurer pursuant to K.S.A 44-532 and amend-
33 ments thereto;
34 (2) records which relate to utilization review or peer review con-
35 ducted pursuant to K.S.A. 44-510 section 3 and amendments thereto shall
36 not be disclosed except to the health care provider and as otherwise spe-
37 cifically provided by the workers compensation act;
38 (3) records relating to private premises safety inspections;
39 (4) medical records, forms collected pursuant to K.S.A. 44-567(b) and
40 amendments thereto and accident reports maintained under K.S.A. 44-
41 550 and amendments thereto pertaining to an individual which shall not
42 be disclosed except:
43 (A) Upon order of a court of competent jurisdiction;
22
1 (B) to the employer, its insurance carrier or its representative, from
2 whom a worker seeks workers compensation benefits;
3 (C) to the division of workers compensation for its own records for
4 its purposes;
5 (D) to federal or state governmental agencies for purposes of fraud
6 and abuse investigations;
7 (E) to an employer in connection with any application for employ-
8 ment to an employer, its insurance carrier or representatives providing
9 (i) a conditional offer of employment has been made and (ii) the request
10 for records includes a signed release by the individual, identifies the job
11 conditionally offered by the employer and is submitted in writing, either
12 by mail or electronic means. Requests relating to an individual under this
13 subsection shall be considered a record to be maintained and open to
14 public inspection under K.S.A. 44-550 and amendments thereto;
15 (F) to the workers compensation fund for its own purposes; and
16 (G) to the worker upon written release by the worker.
17 (b) This section shall be part of and supplemental to the workers
18 compensation act.
19 Sec. 11. K.S.A. 1999 Supp. 44-567 is hereby amended to read as
20 follows: 44-567. (a) An employer who operates within the provisions of
21 the workers compensation act and who knowingly employs or retains a
22 handicapped employee, as defined in K.S.A. 44-566 and amendments
23 thereto shall be relieved of liability for compensation awarded or be en-
24 titled to an apportionment of the costs thereof as follows:
25 (1) Whenever a handicapped employee is injured or is disabled or
26 dies as a result of an injury which occurs prior to July 1, 1994, and the
27 administrative law judge awards compensation therefor and finds the in-
28 jury, disability or the death resulting therefrom probably or most likely
29 would not have occurred but for the preexisting physical or mental im-
30 pairment of the handicapped employee, all compensation and benefits
31 payable because of the injury, disability or death shall be paid from the
32 workers compensation fund; and
33 (2) subject to the other provisions of the workers compensation act,
34 whenever a handicapped employee is injured or is disabled or dies as a
35 result of an injury and the administrative law judge finds the injury prob-
36 ably or most likely would have been sustained or suffered without regard
37 to the employee's preexisting physical or mental impairment but the re-
38 sulting disability or death was contributed to by the preexisting impair-
39 ment, the administrative law judge shall determine in a manner which is
40 equitable and reasonable the amount of disability and proportion of the
41 cost of award which is attributable to the employee's preexisting physical
42 or mental impairment, and the amount so found shall be paid from the
43 workers compensation fund.
23
1 (b) In order to be relieved of liability under this section, the employer
2 must prove either the employer had knowledge of the preexisting im-
3 pairment at the time the employer employed the handicapped employee
4 or the employer retained the handicapped employee in employment after
5 acquiring such knowledge. The employer's knowledge of the preexisting
6 impairment may be established by any evidence sufficient to maintain the
7 employer's burden of proof with regard thereto. If the employer, prior
8 to the occurrence of a subsequent injury to a handicapped employee, files
9 with the director a notice of the employment or retention of such em-
10 ployee, together with a description of the handicap claimed, such notice
11 and description of handicap shall create a presumption that the employer
12 had knowledge of the preexisting impairment. If the employer files a
13 written notice of an employee's preexisting impairment with the director
14 in a form approved by the director therefor, such notice establishes the
15 existence of a reservation in the mind of the employer when deciding
16 whether to hire or retain the employee.
17 (c) Knowledge of the employee's preexisting impairment or handicap
18 at the time the employer employs or retains the employee in employment
19 shall be presumed conclusively if the employee, in connection with an
20 application for employment or an employment medical examination or
21 otherwise in connection with obtaining or retaining employment with the
22 employer, knowingly: (1) Misrepresents that such employee does not have
23 such an impairment or handicap; (2) misrepresents that such employee
24 has not had any previous accidents; (3) misrepresents that such employee
25 has not previously been disabled or compensated in damages or otherwise
26 because of any prior accident, injury or disease; (4) misrepresents that
27 such employee has not had any employment terminated or suspended
28 because of any prior accident, injury or disease; (5) misrepresents that
29 such employee does not have any mental, emotional or physical impair-
30 ment, disability, condition, disease or infirmity; or (6) misrepresents or
31 conceals any facts or information which are reasonably related to the
32 employee's claim for compensation.
33 (d) An employer shall not be relieved of liability for compensation
34 awarded nor shall an employer be entitled to an apportionment of the
35 costs thereof as provided in this section, unless the employer shall cause
36 the commissioner of insurance, in the capacity of administrator of the
37 workers compensation fund, to be impleaded, as provided in K.S.A. 44-
38 566a and amendments thereto, in any proceedings to determine the com-
39 pensation to be awarded a handicapped employee who is injured or dis-
40 abled or has died, by giving written notice of the employee's claim to the
41 commissioner of insurance ten days prior to the first full hearing where
42 any evidence is presented on the claim.
43 (e) Amendments to this section shall apply only to cases where a
24
1 handicapped employee, or the employee's dependents, claims compen-
2 sation as a result of an injury occurring after the effective date of such
3 amendments.
4 (f) The total amount of compensation due the employee shall be the
5 amount for disability computed as provided in K.S.A. 44-503a, 44-510 44-
6 510a through 44-510g and 44-511, sections 1 and 2 and amendments
7 thereto, and in no case shall the payments be less nor more than the
8 amounts provided in K.S.A. 44-510c and amendments thereto.
9 Sec. 12. K.S.A. 44-510c, 44-513 and 44-516 and K.S.A. 1999 Supp.
10 44-501, 44-508, 44-510, 44-510b, 44-510d, 44-550b and 44-567 are
11 hereby repealed.
12 Sec. 13. This act shall take effect and be in force from and after its
13 publication in the statute book.