An Act concerning the workers compensation act; amending K.S.A.
44-510c, 44-516, 44-
519, 44-527, 44-557, 44-576, 44-5,104 and 44-5,122 and K.S.A. 1999
Supp. 44-501, 44-
508, 44-510b, 44-510d, 44-531, 44-550b, 44-556, 44-557a, 44-567,
44-570, 44-5,120 and
44-5,125 and repealing the existing sections; also repealing K.S.A.
44-513 and K.S.A.
1999 Supp. 44-501a and 44-510.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) It shall be the
duty of the employer to provide
the services of a health care provider, and such medical, surgical
and
hospital treatment, including nursing, medicines, medical and
surgical
supplies, ambulance, crutches, apparatus and transportation to and
from
the home of the injured employee to a place outside the community
in
which such employee resides, and within such community if the
director,
in the director's discretion, so orders, including transportation
expenses
computed in accordance with subsection (a) of K.S.A. 44-515 and
amend-
ments thereto, as may be reasonably necessary to cure and relieve
the
employee from the effects of the injury.
(b) (1) If the director finds, upon
application of an injured employee,
that the services of the health care provider furnished as provided
in
subsection (a) and rendered on behalf of the injured employee are
not
satisfactory, the director may authorize the appointment of some
other
health care provider. In any such case, the employer shall submit
the
names of three health care providers who, if possible given the
availability
of local health care providers, are not associated in practice
together. The
injured employee may select one from the list who shall be the
authorized
treating health care provider. If the injured employee is unable to
obtain
satisfactory services from any of the health care providers
submitted by
the employer under this paragraph, either party or both parties may
re-
quest the director to select a treating health care provider.
(2) Without application or approval, an
employee may consult a
health care provider of the employee's choice for the purpose of
exami-
nation, diagnosis or treatment, but the employer shall only be
liable for
the fees and charges of such health care provider up to a total
amount of
$500. The amount allowed for such examination, diagnosis or
treatment
shall not be used to obtain a functional impairment rating. Any
medical
opinion obtained in violation of this prohibition shall not be
admissible
in any claim proceedings under the workers compensation act.
(c) An injured employee whose injury or
disability has been estab-
lished under the workers compensation act may rely, if done in good
faith,
solely or partially on treatment by prayer or spiritual means in
accordance
with the tenets of practice of a church or religious denomination
without
suffering a loss of benefits subject to the following
conditions:
(1) The employer or the employer's
insurance carrier agrees thereto
in writing either before or after the injury;
(2) the employee submits to all physical
examinations required by the
workers compensation act;
(3) the cost of such treatment shall be
paid by the employee unless
the employer or insurance carrier agrees to make such payment;
(4) the injured employee shall be
entitled only to benefits that would
reasonably have been expected had such employee undergone
medical
or surgical treatment; and
(5) the employer or insurance carrier
that made an agreement under
paragraph (1) or (3) of this subsection may withdraw from the
agreement
on 10 days' written notice.
(d) In any employment to which the
workers compensation act ap-
plies, the employer shall be liable to each employee who is
employed as
a duly authorized law enforcement officer, ambulance attendant,
mobile
intensive care technician or firefighter, including any person who
is serv-
ing on a volunteer basis in such capacity, for all reasonable and
necessary
preventive medical care and treatment for hepatitis to which such
em-
ployee is exposed under circumstances arising out of and in the
course
of employment.
New Sec. 2. (a) The director shall
appoint, subject to the approval
of the secretary, a specialist in health services delivery, who
shall be re-
ferred to as the medical administrator. The medical administrator
shall
be a person licensed to practice medicine and surgery in this state
and
shall be in the unclassified service under the Kansas civil service
act.
(b) The medical administrator, subject to
the direction of the direc-
tor, shall have the duty of overseeing the providing of health care
services
to employees in accordance with the provisions of the workers
compen-
sation act, including but not limited to:
(1) Preparing, with the assistance of the
advisory panel, the fee sched-
ule for health care services as set forth in this section;
(2) developing, with the assistance of
the advisory panel, the utiliza-
tion review program for health care services as set forth in this
section;
(3) developing a system for collecting
and analyzing data on expend-
itures for health care services by each type of provider under the
workers
compensation act; and
(4) carrying out such other duties as may
be delegated or directed by
the director or secretary.
(c) The director shall prepare and adopt
rules and regulations which
establish a schedule of maximum fees for medical, surgical,
hospital, den-
tal, nursing, vocational rehabilitation or any other treatment or
services
provided or ordered by health care providers and rendered to
employees
under the workers compensation act and procedures for appeals and
re-
view of disputed charges or services rendered by health care
providers
under this section;
(1) The schedule of maximum fees shall be
reasonable, shall promote
health care cost containment and efficiency with respect to the
workers
compensation health care delivery system, and shall be sufficient
to en-
sure availability of such reasonably necessary treatment, care and
attend-
ance to each injured employee to cure and relieve the employee
from
the effects of the injury. The schedule shall include provisions
and review
procedures for exceptional cases involving extraordinary medical
proce-
dures or circumstances and shall include costs and charges for
medical
records and testimony.
(2) In every case, all fees,
transportation costs, charges under this
section and all costs and charges for medical records and testimony
shall
be subject to approval by the director and shall be limited to such
as are
fair, reasonable and necessary. The schedule of maximum fees shall
be
revised as necessary at least every two years by the director to
assure that
the schedule is current, reasonable and fair.
(3) Any contract or any billing or charge
which any health care pro-
vider, vocational rehabilitation service provider, hospital, person
or insti-
tution enters into with or makes to any patient for services
rendered in
connection with injuries covered by the workers compensation act or
the
fee schedule adopted under this section, which is or may be in
excess of
or not in accordance with such act or fee schedule, is unlawful,
void and
unenforceable as a debt.
(d) There is hereby created an advisory
panel to assist the director in
establishing a schedule of maximum fees as required by this
section. The
panel shall consist of the commissioner of insurance and seven
members
appointed as follows: One person shall be appointed by the Kansas
med-
ical society; one member shall be appointed by the Kansas
association of
osteopathic medicine; one member shall be appointed by the Kansas
hos-
pital association; one member shall be appointed by the Kansas
chiro-
practic association; and three members shall be appointed by the
secre-
tary. Of the members appointed by the secretary, one shall be a
representative of employers recommended to the secretary by the
Kansas
chamber of commerce and industry; one shall be a representative of
em-
ployees recommended to the secretary by the Kansas AFL-CIO; and
one
shall be a representative of providers of vocational rehabilitation
services
pursuant to K.S.A. 44-510g and amendments thereto. Each
appointed
member shall be appointed for a term of office of two years which
shall
commence on July 1 of the year of appointment. Members of the
advisory
panel attending meetings of the advisory panel, or attending a
subcom-
mittee of the advisory panel authorized by the advisory panel,
shall be
paid subsistence allowances, mileage and other expenses as provided
in
K.S.A. 75-3223 and amendments thereto.
(e) All fees and other charges paid for
such treatment, care and at-
tendance, including treatment, care and attendance provided by
any
health care provider, hospital or other entity providing health
care serv-
ices, shall not exceed the amounts prescribed by the schedule of
maxi-
mum fees established under this section or the amounts authorized
pur-
suant to the provisions and review procedures prescribed by the
schedule
for exceptional cases. A health care provider, hospital or other
entity pro-
viding health care services shall be paid either such health care
provider,
hospital or other entity's usual charge for the treatment, care and
attend-
ance or the maximum fees as set forth in the schedule, whichever is
less.
In reviewing and approving the schedule of maximum fees, the
director
shall consider the following:
(1) The levels of fees for similar
treatment, care and attendance im-
posed by other health care programs or third-party payors in the
locality
in which such treatment or services are rendered;
(2) the impact upon cost to employers for
providing a level of fees
for treatment, care and attendance which will ensure the
availability of
treatment, care and attendance required for injured employees;
(3) the potential change in workers
compensation insurance premi-
ums or costs attributable to the level of treatment, care and
attendance
provided; and
(4) the financial impact of the schedule
of maximum fees upon health
care providers and health care facilities and its effect upon their
ability
to make available to employees such reasonably necessary treatment,
care
and attendance to each injured employee to cure and relieve the
em-
ployee from the effects of the injury.
New Sec. 3. When an employer's
insurance carrier or a self-insured
employer disputes all or a portion of a bill for services rendered
for the
care and treatment of an employee under this act, the following
proce-
dures apply:
(a) (1) The employer or carrier
shall notify the service provider
within 30 days of receipt of the bill of the specific reason for
refusing
payment or adjusting the bill. Such notice shall inform the service
pro-
vider that additional information may be submitted with the bill
and re-
consideration of the bill may be requested. The provider shall send
any
request for reconsideration within 30 days of receiving written
notice of
the bill dispute. If the employer or carrier continues to dispute
all or a
portion of the bill after receiving additional information from the
pro-
vider, the employer, carrier or provider may apply for an informal
hearing
before the director.
(2) If a provider sends a bill to such
employer or carrier and receives
no response within 30 days as allowed in subsection (a) and if a
provider
sends a second bill and receives no response within 60 days of the
date
the provider sent the first bill, the provider may apply for an
informal
hearing before the director.
(3) Payments shall not be delayed beyond
60 days for any amounts
not in dispute. Acceptance by any provider of a payment amount
which
is less than the full amount charged for the services shall not
affect the
right to have a review of the claim for the outstanding or
remaining
amounts.
(b) The application for informal hearing
shall include copies of the
disputed bills, all correspondence concerning the bills and any
additional
written information the party deems appropriate. When anyone
applies
for an informal hearing before the director, copies of the
application shall
be sent to all parties to the dispute and the employee. Within 20
days of
receiving the application for informal hearing, the other parties
to the
dispute shall send any additional written information deemed
relevant to
the dispute to the director.
(c) The director or the director's
designee shall hold the informal
hearing to hear and determine all disputes as to such bills and
interest
due thereon. Evidence in the informal hearing shall be limited to
the
written submissions of the parties. The informal hearing may be
held by
electronic means. Any employer, carrier or provider may personally
ap-
pear in or be represented at the hearing. If the parties are unable
to reach
a settlement regarding the dispute, the officer hearing the dispute
shall
enter an order so stating.
(d) After the entry of the order
indicating that the parties have not
settled the dispute after the informal hearing, the director shall
schedule
a formal hearing.
(1) Prior to the date of the formal
hearing, the director may conduct
a utilization review concerning the disputed bill. The director
shall de-
velop and implement, or contract with a qualified entity to develop
and
implement, utilization review procedures relating to the services
ren-
dered by providers and facilities, which services are paid for in
whole or
in part pursuant to the workers compensation act. The director may
con-
tract with one or more private foundations or organizations to
provide
utilization review of service providers pursuant to the workers
compen-
sation act. Such utilization review shall result in a report to the
director
indicating whether a provider improperly utilized or otherwise
rendered
or ordered unjustified treatment or services or that the fees for
such
treatment or services were excessive and a statement of the basis
for the
report's conclusions. After receiving the utilization review
report, the di-
rector also may order a peer review. A copy of such reports shall
be
provided to all parties to the dispute at least 20 days prior to
the formal
hearing. No person shall be subject to civil liability for libel,
slander or
any other relevant tort cause of action by virtue of performing a
peer or
utilization review under contract with the director.
(2) The formal hearing shall be conducted
by hearing officers, the
medical administrator or both as appointed by the director. During
the
formal hearing parties to the dispute shall have the right to
appear or be
represented and may produce witnesses, including expert witnesses,
and
such other relevant evidence as may be otherwise allowed under
the
workers compensation act. If the director finds that a provider or
facility
has made excessive charges or provided or ordered unjustified
treatment,
services, hospitalization or visits, the provider or facility may,
subject to
the director's order, receive payment pursuant to this section from
the
carrier, employer or employee for the excessive fees or unjustified
treat-
ment, services, hospitalization or visits and such provider may be
ordered
to repay any fees or charges collected therefor. If it is
determined after
the formal hearing that a provider improperly utilized or otherwise
ren-
dered or ordered unjustified treatment or services or that the fees
for
such treatment or services were excessive, the director may provide
a
report to the licensing board of the service provider with full
documen-
tation of any such determination, except that no such report shall
be
provided until after judicial review if the order is appealed. Any
decision
rendered under this section may be reviewed by the workers
compen-
sation board. A party must file a notice of appeal within 10 days
of the
issuance of any decision under this section. The record on appeal
shall
be limited only to the evidence presented to the hearing officer.
The
decision of the director shall be affirmed unless the board
determines
that the decision was not supported by substantial competent
evidence.
(e) By accepting payment pursuant to this
section for treatment or
services rendered to an injured employee, the provider shall be
deemed
to consent to submitting all necessary records to substantiate the
nature
and necessity of the service or charge and other information
concerning
such treatment to utilization review under this section. Such
health care
provider shall comply with any decision of the director pursuant to
this
section.
(f) Except as provided in K.S.A. 60-437
and amendments thereto and
this section, findings and records which relate to utilization and
peer
review conducted pursuant to this section shall be privileged and
shall
not be subject to discovery, subpoena or other means of legal
compulsion
for release to any person or entity and shall not be admissible in
evidence
in any judicial or administrative proceeding, except those
proceedings
authorized pursuant to this section. In any proceedings where there
is an
application by an employee, employer, insurance carrier or the
workers
compensation fund for a hearing pursuant to K.S.A. 44-534a, and
amend-
ments thereto, for a change of medical benefits which has been
filed after
a health care provider, employer, insurance carrier or the workers
com-
pensation fund has made application to the medical services section
of
the division for the resolution of a dispute or matter pursuant to
the
provisions of this section, all reports, information, statements,
memo-
randa, proceedings, findings and records which relate to
utilization and
peer review including the records of contract reviewers and
findings and
records of the medical services section of the division shall be
admissible
at the hearing before the administrative law judge on the issue of
the
medical benefits to which an employee is entitled.
(g) A provider may not improperly
overcharge or charge for services
which were not provided for the purpose of obtaining additional
payment.
Any dispute regarding such actions shall be resolved in the same
manner
as other bill disputes as provided by this section. Any violation
of the
provisions of this section or section 2, and amendments thereto,
which is
willful or which demonstrates a pattern of improperly charging or
over-
charging for services rendered pursuant to this act constitutes
grounds
for the director to impose a civil fine not to exceed $5,000. Any
civil fine
imposed under this section shall be subject to review by the board.
All
moneys received for civil fines imposed under this section shall be
de-
posited in the state treasury to the credit of the workers
compensation
fund.
(h) Any health care provider, nurse,
physical therapist, any entity pro-
viding medical, physical or vocational rehabilitation services or
providing
reeducation or training pursuant to K.S.A. 44-510g and
amendments
thereto, medical supply establishment, surgical supply
establishment, am-
bulance service or hospital which accept the terms of the workers
com-
pensation act by providing services or material thereunder shall be
bound
by the fees approved by the director and no injured employee or
de-
pendent of a deceased employee shall be liable for any charges
above the
amounts approved by the director. If the employer has knowledge of
the
injury and refuses or neglects to reasonably provide the services
of a
health care provider required by this act, the employee may provide
the
same for such employee, and the employer shall be liable for such
ex-
penses subject to the regulations adopted by the director. No
action shall
be filed in any court by a health care provider or other provider
of services
under this act for the payment of an amount for medical services
or
materials provided under the workers compensation act and no
other
action to obtain or attempt to obtain or collect such payment shall
be
taken by a health care provider or other provider of services under
this
act, including employing any collection service, until after final
adjudi-
cation of any claim for compensation for which an application for
hearing
is filed with the director under K.S.A. 44-534 and amendments
thereto.
In the case of any such action filed in a court prior to the date
an appli-
cation is filed under K.S.A. 44-534 and amendments thereto, no
judgment
may be entered in any such cause and the action shall be stayed
until
after the final adjudication of the claim. In the case of an action
stayed
hereunder, any award of compensation shall require any amounts
payable
for medical services or materials to be paid directly to the
provider thereof
plus an amount of interest at the rate provided by statute for
judgments.
No period of time under any statute of limitation, which applies to
a cause
of action barred under this subsection, shall commence or continue
to
run until final adjudication of the claim under the workers
compensation
act.
(i) As used in this section, unless the
context or the specific provisions
clearly require otherwise, ``carrier'' means a self-insured
employer, an
insurance company or a qualified group-funded workers
compensation
pool and ``provider'' means any health care provider, vocational
rehabil-
itation service provider or any facility providing health care
services or
vocational rehabilitation services, or both, including any
hospital.
New Sec. 4. (a) At any time after
the entry of an award for compen-
sation, the employee may make application for a hearing, in such
form as
the director may require for the furnishing of medical treatment.
Such
post-award hearing shall be held by the assigned administrative law
judge,
in any county designated by the administrative law judge, and the
judge
shall conduct the hearing as provided in K.S.A. 44-523 and
amendments
thereto. The administrative law judge can make an award for
further
medical care if the administrative law judge finds that the care is
necessary
to cure or relieve the effects of the accidental injury which was
the subject
of the underlying award. No post-award benefits shall be ordered
without
giving all parties to the award the opportunity to present
evidence, in-
cluding taking testimony on any disputed matters. A finding with
regard
to a disputed issue shall be subject to a full review by the board
under
subsection (b) of K.S.A. 44-551 and amendments thereto. Any action
of
the board pursuant to post-award orders shall be subject to review
under
K.S.A. 44-556 and amendments thereto.
(b) Any application for hearing made
pursuant to this section shall
receive priority setting by the administrative law judge, only
superseded
by preliminary hearings pursuant to K.S.A. 44-534a and
amendments
thereto. The parties shall meet and confer prior to the hearing
pursuant
to this section, but a prehearing settlement conference shall not
be nec-
essary. The administrative law judge shall have authority to award
medical
treatment relating back to the entry of the underlying award, but
in no
event shall such medical treatment relate back more than six
months
following the filing of such application for post-award medical
treatment.
Reviews taken under this section shall receive priority settings
before the
board, only superseded by reviews for preliminary hearings. A
decision
shall be rendered by the board within 30 days from the time the
review
hereunder is submitted.
(c) The administrative law judge may
award attorney fees and costs
on the claimant's behalf consistent with subsection (g) of K.S.A.
44-536
and amendments thereto.
Sec. 5. K.S.A. 1999 Supp. 44-501 is
hereby amended to read as fol-
lows: 44-501. (a) If in any employment to which the workers
compensa-
tion act applies, personal injury by accident arising out of and in
the
course of employment is caused to an employee, the employer shall
be
liable to pay compensation to the employee in accordance with the
pro-
visions of the workers compensation act. In proceedings under the
work-
ers compensation act, the burden of proof shall be on the claimant
to
establish the claimant's right to an award of compensation and to
prove
the various conditions on which the claimant's right depends. In
deter-
mining whether the claimant has satisfied this burden of proof, the
trier
of fact shall consider the whole record.
(b) Except as provided in the workers
compensation act, no em-
ployer, or other employee of such employer, shall be liable for any
injury
for which compensation is recoverable under the workers
compensation
act nor shall an employer be liable to any third party for any
injury or
death of an employee which was caused under circumstances creating
a
legal liability against a third party and for which workers
compensation is
payable by such employer.
(c) The employee shall not be entitled to
recover for the aggravation
of a preexisting condition, except to the extent that the
work-related injury
causes increased disability. Any award of compensation shall be
reduced
by the amount of functional impairment determined to be
preexisting.
(d) (1) If the injury to the
employee results from the employee's
deliberate intention to cause such injury; or from the employee's
willful
failure to use a guard or protection against accident required
pursuant to
any statute and provided for the employee, or a reasonable and
proper
guard and protection voluntarily furnished the employee by the
employer,
any compensation in respect to that injury shall be disallowed.
(2) The employer shall not be liable
under the workers compensation
act where the injury, disability or death was contributed to by the
em-
ployee's use or consumption of alcohol or any drugs, chemicals or
any
other compounds or substances, including but not limited to, any
drugs
or medications which are available to the public without a
prescription
from a health care provider, prescription drugs or medications, any
form
or type of narcotic drugs, marijuana, stimulants, depressants or
hallucin-
ogens. In the case of drugs or medications which are available to
the
public without a prescription from a health care provider and
prescription
drugs or medications, compensation shall not be denied if the
employee
can show that such drugs or medications were being taken or used
in
therapeutic doses and there have been no prior incidences of the
em-
ployee's impairment on the job as the result of the use of such
drugs or
medications within the previous 24 months. It shall be conclusively
pre-
sumed that the employee was impaired due to alcohol or drugs
if it is
shown that at the time of the injury that the employee had an
alcohol
concentration of .04 or more., or a GCMS
confirmatory test by quanti- tative analysis showing a concentration at or above the levels
shown on the following chart for the drugs of abuse listed:
Confirmatory test cutoff levels
(ng/ml)
Marijuana metabolite1
15
Cocaine metabolite2
150
Opiates:
Morphine
2000
Codeine
2000
6-Acetylmorphine4
10 ng/ml
Phencyclidine
25
Amphetamines:
Amphetamine
500
Methamphetamine3
500
1 Delta-9-tetrahydrocannabinol-9-carboxylic acid.
2 Benzoylecgonine.
3 Specimen must also contain amphetamine at a concentration
greater than or equal to 200 ng/ml.
4 Test for 6-AM when morphine concentration exceeds 2,000
ng/ml.
An employee's refusal to submit to a chemical test shall not be
admissible
evidence to prove impairment unless there was probable cause to
believe
that the employee used, possessed or was impaired by a drug or
alcohol
while working. The results of a chemical test shall not be
admissible ev-
idence to prove impairment unless the following conditions were
met:
(A) There was probable cause to believe
that the employee used, had
possession of, or was impaired by the drug or alcohol while
working;
(B) the test sample was collected at a
time contemporaneous with
the events establishing probable cause;
(C) the collecting and labeling of the
test sample was performed by or under the supervision of a licensed health care
professional;
(D) the test was performed by a
laboratory approved by the United
States department of health and human services or licensed by the
de-
partment of health and environment, except that a blood sample may
be
tested for alcohol content by a laboratory commonly used for that
purpose
by state law enforcement agencies;
(E) the test was confirmed by gas
chromatography, gas chromatog-
raphy-mass spectroscopy or other comparably reliable analytical
method,
except that no such confirmation is required for a blood alcohol
sample;
and
(F) the foundation evidence must
establish, beyond a reasonable
doubt, that the test results were from the sample taken from the
em-
ployee.
(e) Compensation shall not be paid in
case of coronary or coronary
artery disease or cerebrovascular injury unless it is shown that
the exertion
of the work necessary to precipitate the disability was more than
the
employee's usual work in the course of the employee's regular
employ-
ment.
(f) Except as provided in the workers
compensation act, no construc-
tion design professional who is retained to perform professional
services
on a construction project or any employee of a construction design
pro-
fessional who is assisting or representing the construction design
profes-
sional in the performance of professional services on the site of
the con-
struction project, shall be liable for any injury resulting from
the
employer's failure to comply with safety standards on the
construction
project for which compensation is recoverable under the workers
com-
pensation act, unless responsibility for safety practices is
specifically as-
sumed by contract. The immunity provided by this subsection to
any
construction design professional shall not apply to the negligent
prepa-
ration of design plans or specifications.
(g) It is the intent of the legislature
that the workers compensation
act shall be liberally construed for the purpose of bringing
employers and
employees within the provisions of the act to provide the
protections of
the workers compensation act to both. The provisions of the
workers
compensation act shall be applied impartially to both employers and
em-
ployees in cases arising thereunder.
(h) If the employee is receiving
retirement benefits under the federal
social security act or retirement benefits from any other
retirement sys-
tem, program or plan which is provided by the employer against
which
the claim is being made, any compensation benefit payments which
the
employee is eligible to receive under the workers compensation act
for
such claim shall be reduced by the weekly equivalent amount of the
total
amount of all such retirement benefits, less any portion of any
such re-
tirement benefit, other than retirement benefits under the federal
social
security act, that is attributable to payments or contributions
made by the
employee, but in no event shall the workers compensation benefit be
less
than the workers compensation benefit payable for the employee's
per-
centage of functional impairment.
Sec. 6. K.S.A. 1999 Supp. 44-508 is
hereby amended to read as fol-
lows: 44-508. As used in the workers compensation act:
(a) ``Employer'' includes: (1) Any person
or body of persons, corpo-
rate or unincorporate, and the legal representative of a deceased
em-
ployer or the receiver or trustee of a person, corporation,
association or
partnership; (2) the state or any department, agency or authority
of the
state, any city, county, school district or other political
subdivision or
municipality or public corporation and any instrumentality thereof;
and
(3) for the purposes of community service work, the entity for
which the
community service work is being performed and the governmental
agency
which assigned the community service work, if any, if either such
entity
or such governmental agency has filed a written statement of
election
with the director to accept the provisions under the workers
compensa-
tion act for persons performing community service work and in such
case
such entity and such governmental agency shall be deemed to be the
joint
employer of the person performing the community service work and
both
shall have the rights, liabilities and immunities provided under
the work-
ers compensation act for an employer with regard to the community
serv-
ice work, except that the liability for providing benefits shall be
imposed
only on the party which filed such election with the director, or
on both
if both parties have filed such election with the director; for
purposes of
community service work, ``governmental agency'' shall not include
any
court or any officer or employee thereof and any case where there
is
deemed to be a ``joint employer'' shall not be construed to be a
case of
dual or multiple employment.
(b) ``Workman'' or ``employee'' or
``worker'' means any person who
has entered into the employment of or works under any contract of
serv-
ice or apprenticeship with an employer. Such terms shall include
but not
be limited to: Executive officers of corporations; professional
athletes;
persons serving on a volunteer basis as duly authorized law
enforcement
officers, ambulance attendants, mobile intensive care technicians,
fire-
fighters, but only to the extent and during such periods as they
are so
serving in such capacities; persons employed by educational,
religious and
charitable organizations, but only to the extent and during the
periods
that they are paid wages by such organizations; persons in the
service of
the state, or any department, agency or authority of the state, any
city,
school district, or other political subdivision or municipality or
public
corporation and any instrumentality thereof, under any contract of
serv-
ice, express or implied, and every official or officer thereof,
whether
elected or appointed, while performing official duties; persons in
the serv-
ice of the state as volunteer members of the Kansas department of
civil
air patrol, but only to the extent and during such periods as they
are
officially engaged in the performance of functions specified in
K.S.A. 48-
3302 and amendments thereto; volunteers in any employment, if the
em-
ployer has filed an election to extend coverage to such volunteers;
minors,
whether such minors are legally or illegally employed; and persons
per-
forming community service work, but only to the extent and during
such
periods as they are performing community service work and if an
election
has been filed an election to extend coverage to such persons. Any
ref-
erence to an employee who has been injured shall, where the
employee
is dead, include a reference to the employee's dependents, to the
em-
ployee's legal representatives, or, if the employee is a minor or
an inca-
pacitated person, to the employee's guardian or conservator. Unless
there
is a valid election in effect which has been filed as provided in
K.S.A. 44-
542a and amendments thereto, such terms shall not include
individual
employers, limited or general partners or self-employed
persons.
(c) (1) ``Dependents'' means such
members of the employee's family
as were wholly or in part dependent upon the employee at the time
of
the accident.
(2) ``Members of a family'' means only
surviving legal spouse and
children; or if no surviving legal spouse or children, then parents
or grand-
parents; or if no parents or grandparents, then grandchildren; or
if no
grandchildren, then brothers and sisters. In the meaning of this
section,
parents include stepparents, children include stepchildren,
grandchildren
include stepgrandchildren, brothers and sisters include
stepbrothers and
stepsisters, and children and parents include that relation by
legal adop-
tion. In the meaning of this section, a surviving spouse shall not
be re-
garded as a dependent of a deceased employee or as a member of
the
family, if the surviving spouse shall have for more than six months
willfully
or voluntarily deserted or abandoned the employee prior to the date
of
the employee's death.
(3) ``Wholly dependent child or
children'' means:
(A) A birth child or adopted child of the
employee except such a child
whose relationship to the employee has been severed by
adoption;
(B) a stepchild of the employee who lives
in the employee's house-
hold;
(C) any other child who is actually
dependent in whole or in part on
the employee and who is related to the employee by marriage or
consan-
guinity; or
(D) any child as defined in subsections
(3)(A), (3)(B) or (3)(C) who
is less than 23 years of age and who is not physically or mentally
capable
of earning wages in any type of substantial and gainful employment
or
who is a full-time student attending an accredited institution of
higher
education or vocational education.
(d) ``Accident'' means an undesigned,
sudden and unexpected event
or events, usually of an afflictive or unfortunate nature and
often, but not
necessarily, accompanied by a manifestation of force. The elements
of an
accident, as stated herein, are not to be construed in a strict and
literal
sense, but in a manner designed to effectuate the purpose of the
workers
compensation act that the employer bear the expense of accidental
injury
to a worker caused by the employment.
(e) ``Personal injury'' and ``injury''
mean any lesion or change in the
physical structure of the body, causing damage or harm thereto, so
that
it gives way under the stress of the worker's usual labor. It is
not essential
that such lesion or change be of such character as to present
external or
visible signs of its existence. An injury shall not be deemed to
have been
directly caused by the employment where it is shown that the
employee
suffers disability as a result of the natural aging process or by
the normal
activities of day-to-day living.
(f) The words ``arising out of and in the
course of employment'' as
used in the workers compensation act shall not be construed to
include
injuries to the employee occurring while the employee is on the way
to
assume the duties of employment or after leaving such duties, the
prox-
imate cause of which injury is not the employer's negligence. An
em-
ployee shall not be construed as being on the way to assume the
duties
of employment or having left such duties at a time when the worker
is
on the premises of the employer or on the only available route to
or from
work which is a route involving a special risk or hazard and which
is a
route not used by the public except in dealings with the employer.
An
employee shall not be construed as being on the way to assume the
duties
of employment, if the employee is a provider of emergency services
re-
sponding to an emergency.
The words, ``arising out of and in the course
of employment'' as used
in the workers compensation act shall not be construed to include
injuries
to employees while engaged in recreational or social events under
cir-
cumstances where the employee was under no duty to attend and
where
the injury did not result from the performance of tasks related to
the
employee's normal job duties or as specifically instructed to be
performed
by the employer.
(g) ``Burden of proof'' means the burden
of a party to persuade the
trier of facts by a preponderance of the credible evidence that
such party's
position on an issue is more probably true than not true on the
basis of
the whole record.
(h) ``Director'' means the director of
workers compensation as pro-
vided for in K.S.A. 75-5708 and amendments thereto.
(i) ``Health care provider'' means any
person licensed, by the proper
licensing authority of this state, another state or the District of
Columbia,
to practice medicine and surgery, osteopathy, chiropractic,
dentistry, op-
tometry, podiatry, audiology or psychology.
(j) ``Secretary'' means the secretary of
human resources.
(k) ``Construction design professional''
means any person who is an
architect, professional engineer, landscape architect or land
surveyor who
has been issued a license by the state board of technical
professions to
practice such technical profession in Kansas or any corporation
organized
to render professional services through the practice of one or more
of
such technical professions in Kansas under the professional
corporation
law of Kansas or any corporation issued a certificate of
authorization un-
der K.S.A. 74-7036 and amendments thereto to practice one or more
of
such technical professions in Kansas.
(l) ``Community service work'' means: (1)
Public or community serv-
ice performed as a result of a contract of diversion or of
assignment to a
community corrections program or conservation camp or suspension
of
sentence or as a condition of probation or in lieu of a fine
imposed by
court order; or (2) public or community service or other work
performed
as a requirement for receipt of any kind of public assistance in
accordance
with any program administered by the secretary of social and
rehabilita-
tion services.
(m) ``Utilization review'' means the
initial evaluation of appropriate-
ness in terms of both the level and the quality of health care and
health
services provided a patient, based on accepted standards of the
health
care profession involved. Such evaluation is accomplished by means
of a
system which identifies the utilization of health care services
above the
usual range of utilization for such services, which is based on
accepted
standards of the health care profession involved, and which refers
in-
stances of possible inappropriate utilization to the director for
referral to
a peer review committee.
(n) ``Peer review'' means an evaluation
by a peer review committee
of the appropriateness, quality and cost of health care and health
services
provided a patient, which is based on accepted standards of the
health
care profession involved and which is conducted in conjunction with
util-
ization review.
(o) ``Peer review committee'' means a
committee composed of health
care providers licensed to practice the same health care profession
as the
health care provider who rendered the health care services being
re-
viewed.
(p) ``Group-funded self-insurance plan''
includes each group-funded
workers compensation pool, which is authorized to operate in this
state
under K.S.A. 44-581 through 44-592 and amendments thereto, each
mu-
nicipal group-funded pool under the Kansas municipal group-funded
pool
act which is covering liabilities under the workers compensation
act, and
any other similar group-funded or pooled plan or arrangement that
pro-
vides coverage for employer liabilities under the workers
compensation
act and is authorized by law.
(q) On and after the effective date of
this act, ``workers compensation
board'' or ``board'' means the workers compensation board
established
under K.S.A. 1999 Supp. 44-555c and amendments thereto.
Sec. 7. K.S.A. 1999 Supp. 44-510b
is hereby amended to read as
follows: 44-510b. Where death results from injury, compensation
shall be
paid as provided in K.S.A. 44-510sections 1
and 2 and amendments
thereto, and as follows:
(a) If an employee leaves any dependents
wholly dependent upon the
employee's earnings at the time of the accident, all compensation
benefits
under this section shall be paid to such dependent persons.
There shall be an initial payment of $40,000 to the surviving legal spouse
or a wholly dependent child or children or both. The initial payment shall
not be subject to the 8% discount as provided in K.S.A. 44-531 and
amendments thereto. The initial payment shall be immediately due and
payable and apportioned 50% to the surviving legal spouse and 50% to the
dependent children. Thereafter, such dependents shall be paid weekly
compensation,
except as otherwise provided in this section, in a total sum to all
such
dependents, equal to 662/3% of the average gross weekly wage of
the
employee at the time of the accident, computed as provided in
K.S.A.
44-511 and amendments thereto, but in no event shall such weekly
ben-
efits exceed, nor be less than, the maximum
and minimum weekly ben-
efits provided in K.S.A. 44-510c and amendments thereto, nor be
less than a minimum weekly benefit of the dollar amount nearest to
50% of the state's average weekly wage as determined pursuant to K.S.A.
44-511 and amendments thereto subject to the following:
(1) If the employee leaves a surviving
legal spouse or a wholly de-
pendent child or children, or both, who are eligible for benefits
under
this section, then all death benefits shall be paid to such
surviving spouse
or children, or both, and no benefits shall be paid to any other
wholly or
partially dependent persons.
(2) A surviving legal spouse shall be
paid compensation benefits for
life or until remarriage, except as otherwise
provided in this section.
(3) Any wholly dependent child of the
employee shall be paid com-
pensation, except as otherwise provided in this section, until such
de-
pendent child becomes 18 years of age, except that any such
dependent
child who is not physically or mentally capable of earning wages in
any
type of substantial and gainful employment, or who is enrolled as a
full-
time student in an accredited institution of higher education or
vocational
education shall be paid compensation until such dependent child
be-
comes 23 years of age.
(4) If the employee leaves no legal
spouse or dependent children
eligible for benefits under this section but leaves other
dependents wholly
dependent upon the employee's earnings, such other dependents
shall
receive weekly compensation benefits as provided in this subsection
until
death, remarriage or so long as such other dependents do not
receive
more than 50% of their support from any other earnings or income
or
from any other source, except that the maximum benefits payable to
all
such other dependents, regardless of the number of such other
depend-
ents, shall not exceed a maximum amount of $18,500.
(b) Upon the remarriage of a
surviving legal spouse receiving com- pensation under this section, the benefits being paid to
such spouse shall terminate, except that upon such remarriage 100 weeks of
benefits at the highest rate paid to such spouse under this section shall
be paid to such spouse in one lump sum, except that such lump-sum payment
shall be subject to the maximum amount of compensation payable under
this sec- tion as prescribed by subsection (i).
(c)(b) Where the
employee leaves a surviving legal spouse and de-
pendent children who were wholly dependent upon the employee's
earn-
ings and are eligible for benefits under this section
1/250% of the maxi-
mum weekly benefits payable shall be apportioned to such spouse and
1/2 50% to such dependent children.
(d)(c) If an
employee does not leave any dependents who were
wholly dependent upon the employee's earnings at the time of the
acci-
dent but leaves dependents, other than a spouse or children, in
part de-
pendent on the employee's earnings, such percentage of a sum equal
to
three times the employee's average yearly earnings but not
exceeding
$18,500 but not less than $2,500, as such employee's average annual
con-
tributions which the employee made to the support of such
dependents
during the two years preceding the date of the accident, bears to
the
employee's average yearly earnings during the contemporaneous
two-year
period, shall be paid in compensation to such dependents, in weekly
pay-
ments as provided in subsection (a), not to exceed $18,500 to all
such
dependents.
(e)(d) If an
employee does not leave any dependents, either wholly
or partially dependent upon the employee, a lump-sum payment of
$25,000 shall be made to the legal heirs of such employee in
accordance
with Kansas law. However under no circumstances shall such
payment
escheat to the state. Notwithstanding the provisions of this
subsection,
no such payment shall be required if the employer has procured a
life
insurance policy, with beneficiaries designated by the employee,
provid-
ing coverage in an amount not less than $18,500.
(f)(e) The
administrative law judge, except as otherwise provided in
this section, shall have the power and authority to apportion and
reap-
portion the compensation allowed under this section, either to
wholly
dependent persons or partially dependent persons, in accordance
with
the degree of dependency as of the date of the accident, except
that the
weekly payment of compensation to any and all dependents shall
not
exceed the maximum nor be less than the minimum weekly
benefits pro-
vided in subsection (a).
(g)(f) In all
cases of death compensable under this section, the em-
ployer shall pay the reasonable expense of burial not exceeding
$5,000.
(h)(g) The
marriage or death of any dependent shall terminate all
compensation, under this section, to such dependent, but
shall not in- crease or decrease the compensation allowed to any other
dependents
except that, upon the marriage or
death of the surviving legal spouse
or shall not terminate benefits to such spouse. Upon the death of
the surviv- ing legal spouse or the marriage or death of a dependent
child, the com-
pensation payable to such spouse or child shall be reapportioned to
those,
among the surviving legal spouse and dependent children, who
remain
eligible to receive compensation under this section.
(i)(h) Notwithstanding any other provision in this section
to the con-
trary, the maximum amount of compensation benefits payable under
this
section, including the initial payment in subsection (a) to
any and all
dependents by the employer shall not exceed a total amount of
$200,000 $250,000 and when such total amount has been paid the
liability of the
employer for any further compensation under this section to
dependents,
other than minor children of the employee, shall cease except that
the
payment of compensation under this section to any minor child of
the
employee shall continue for the period of the child's minority at
the
weekly rate in effect when the employer's liability is otherwise
terminated
under this subsection and shall not be subject to termination under
this
subsection until such child becomes 18 years of age.
(j)(i) A
surviving spouse shall submit an annual statement to the
employer and to the director, in such form and containing such
infor-
mation relating to eligibility for compensation under this section
as may
be required by rules and regulations of the director. If such
spouse fails
to submit such an annual statement, the employer may notify the
director
of such failure and the director shall notify such spouse of such
failure
by certified mail with return receipt. If such spouse fails to
submit the
annual statement or fails to reasonably provide the required
information
within 30 days after receipt of the notice from the director, all
compen-
sation benefits paid under this section to such spouse shall be
suspended
until such statement is submitted in proper form to the employer
and the
director.
Sec. 8. K.S.A. 44-510c is hereby
amended to read as follows: 44-
510c. Where death does not result from the injury, compensation
shall
be paid as provided in K.S.A. 44-510sections 1
and 2 and amendments
thereto and as follows:
(a) (1) Where permanent total
disability results from the injury,
weekly payments shall be made during the period of permanent
total
disability in a sum equal to 66 2/3% of the average gross
weekly wage of
the injured employee, computed as provided in K.S.A. 44-511 and
amendments thereto, but in no case less than $25 per week nor
more
than the dollar amount nearest to 75% of the state's average weekly
wage,
determined as provided in K.S.A. 44-511 and amendments thereto,
per
week. The payment of compensation for permanent total disability
shall
continue for the duration of such disability, subject to review and
modi-
fication as provided in K.S.A. 44-528 and amendments thereto.
(2) Permanent total disability exists
when the employee, on account
of the injury, has been rendered completely and permanently
incapable
of engaging in any type of substantial and gainful employment. Loss
of
both eyes, both hands, both arms, both feet, or both legs, or any
combi-
nation thereof, in the absence of proof to the contrary, shall
constitute a
permanent total disability. Substantially total paralysis, or
incurable im-
becility or insanity, resulting from injury independent of all
other causes,
shall constitute permanent total disability. In all other cases
permanent
total disability shall be determined in accordance with the
facts.
(b) (1) Where temporary total
disability results from the injury, no
compensation shall be paid during the first week of disability,
except that
provided in K.S.A. 44-510sections 1 and 2
and amendments thereto,
unless the temporary total disability exists for three consecutive
weeks,
in which case compensation shall be paid for the first week of such
dis-
ability. Thereafter weekly payments shall be made during such
temporary
total disability, in a sum equal to 66 2/3% of the average
gross weekly
wage of the injured employee, computed as provided in K.S.A.
44-511
and amendments thereto, but in no case less than $25 per week nor
more
than the dollar amount nearest to 75% of the state's average weekly
wage,
determined as provided in K.S.A. 44-511 and amendments thereto,
per
week. The payment of compensation for temporary total
disability shall continue for the duration of any such disability, subject
to review and modification as provided in K.S.A. 44-528 and amendments
thereto.
(2) Temporary total disability exists
when the employee, on account
of the injury, has been rendered completely and temporarily
incapable of
engaging in any type of substantial and gainful employment. A
release
issued by a health care provider with temporary medical limitations
for
an employee may or may not be determinative of the employee's
actual
ability to be engaged in any type of substantial and gainful
employment,
except that temporary total disability compensation shall not be
awarded
unless the opinion of the authorized treating health care provider
is shown
to be based on an assessment of the employee's actual job duties
with the
employer, with or without accommodation.
(3) Where no award has been entered, a
return by the employee to
any type of substantial and gainful employment or, subject to the
provi-
sions of subsection (b)(2), a release by a treating health care
provider or
examining health care provider, who is not regularly employed or
retained
by the employer, to return to any type of substantial and gainful
employ-
ment, shall suspend the employee's right to the payment of
temporary
total disability compensation, but shall not affect any right the
employee
may have to compensation for partial disability in accordance with
K.S.A.
44-510d and 44-510e and amendments thereto.
(c) When any permanent total disability
or temporary total disability
is followed by partial disability, compensation shall be paid as
provided
in K.S.A. 44-510d and 44-510e and amendments thereto.
Sec. 9. K.S.A. 1999 Supp. 44-510d
is hereby amended to read as
follows: 44-510d. (a) Where disability, partial in character but
permanent
in quality, results from the injury, the injured employee shall be
entitled
to the compensation provided in K.S.A. 44-510sections 1 and 2 and
amendments thereto, but shall not be entitled to any other or
further
compensation for or during the first week following the injury
unless such
disability exists for three consecutive weeks, in which event
compensation
shall be paid for the first week. Thereafter compensation shall be
paid
for temporary total loss of use and as provided in the following
schedule,
66 2/3% of the average gross weekly wages to be computed as
provided
in K.S.A. 44-511 and amendments thereto, except that in no case
shall
the weekly compensation be more than the maximum as provided for
in
K.S.A. 44-510c and amendments thereto. If there is an award of
per-
manent disability as a result of the injury there shall be a
presumption
that disability existed immediately after the injury and
compensation is to
be paid for not to exceed the number of weeks allowed in the
following
schedule:
(1) For loss of a thumb, 60 weeks.
(2) For the loss of a first finger,
commonly called the index finger,
37 weeks.
(3) For the loss of a second finger, 30
weeks.
(4) For the loss of a third finger, 20
weeks.
(5) For the loss of a fourth finger,
commonly called the little finger,
15 weeks.
(6) Loss of the first phalange of the
thumb or of any finger shall be
considered to be equal to the loss of 1/2 of such thumb or finger,
and the
compensation shall be 1/2 of the amount specified above. The loss
of the
first phalange and any part of the second phalange of any finger,
which
includes the loss of any part of the bone of such second phalange,
shall
be considered to be equal to the loss of 2/3 of such finger and the
com-
pensation shall be 2/3 of the amount specified above. The loss of
the first
phalange and any part of the second phalange of a thumb which
includes
the loss of any part of the bone of such second phalange, shall be
consid-
ered to be equal to the loss of the entire thumb. The loss of the
first and
second phalanges and any part of the third proximal phalange of
any
finger, shall be considered as the loss of the entire finger.
Amputation
through the joint shall be considered a loss to the next higher
schedule.
(7) For the loss of a great toe, 30
weeks.
(8) For the loss of any toe other than
the great toe, 10 weeks.
(9) The loss of the first phalange of any
toe shall be considered to be
equal to the loss of 1/2 of such toe and the compensation shall be
1/2 of
the amount above specified.
(10) The loss of more than one phalange
of a toe shall be considered
to be equal to the loss of the entire toe.
(11) For the loss of a hand, 150
weeks.
(12) For the loss of a forearm, 200
weeks.
(13) For the loss of an arm, excluding
the shoulder joint, shoulder
girdle, shoulder musculature or any other shoulder structures, 210
weeks,
and for the loss of an arm, including the shoulder joint, shoulder
girdle,
shoulder musculature or any other shoulder structures, 225
weeks.
(14) For the loss of a foot, 125
weeks.
(15) For the loss of a lower leg, 190
weeks.
(16) For the loss of a leg, 200
weeks.
(17) For the loss of an eye, or the
complete loss of the sight thereof,
120 weeks.
(18) Amputation or severance below the
wrist shall be considered as
the loss of a hand. Amputation at the wrist and below the elbow
shall be
considered as the loss of the forearm. Amputation at or above the
elbow
shall be considered loss of the arm. Amputation below the ankle
shall be
considered loss of the foot. Amputation at the ankle and below the
knee
shall be considered as loss of the lower leg. Amputation at or
above the
knee shall be considered as loss of the leg.
(19) For the complete loss of hearing of
both ears, 110 weeks.
(20) For the complete loss of hearing of
one ear, 30 weeks.
(21) Permanent loss of the use of a
finger, thumb, hand, shoulder,
arm, forearm, toe, foot, leg or lower leg or the permanent loss of
the sight
of an eye or the hearing of an ear, shall be equivalent to the loss
thereof.
For the permanent partial loss of the use of a finger, thumb, hand,
shoul-
der, arm, toe, foot or leg, or the sight of an eye or the hearing
of an ear,
compensation shall be paid as provided for in K.S.A. 44-510c and
amend-
ments thereto, per week during that proportion of the number of
weeks
in the foregoing schedule provided for the loss of such finger,
thumb,
hand, shoulder, arm, toe, foot or leg, or the sight of an eye or
the hearing
of an ear, which partial loss thereof bears to the total loss of a
finger,
thumb, hand, shoulder, arm, toe, foot or leg, or the sight of an
eye or the
hearing of an ear; but in no event shall the compensation payable
here-
under for such partial loss exceed the compensation payable under
the
schedule for the total loss of such finger, thumb, hand, arm, toe,
foot or
leg, or the sight of an eye or the hearing of an ear, exclusive of
the healing
period. As used in this paragraph (21), ``shoulder'' means the
shoulder
joint, shoulder girdle, shoulder musculature or any other shoulder
struc-
tures.
(22) For traumatic hernia, compensation
shall be limited to the com-
pensation under K.S.A. 44-510sections 1 and
2 and amendments thereto,
compensation for temporary total disability during such period of
time as
such employee is actually unable to work on account of such hernia,
and,
in the event such hernia is inoperable, weekly compensation during
12
weeks, except that, in the event that such hernia is operable, the
unrea-
sonable refusal of the employee to submit to an operation for
surgical
repair of such hernia shall deprive such employee of any benefits
under
the workers compensation act.
(23) Loss of a scheduled member shall be
based upon permanent
impairment of function to the scheduled member as determined
using
the fourth edition of the American Medical Association Guides to
the
Evaluation of Permanent Impairment, if the impairment is
contained
therein.
(b) Whenever the employee is entitled to
compensation for a specific
injury under the foregoing schedule, the same shall be exclusive of
all
other compensation except the benefits provided in K.S.A.
44-510sec- tions 1 and 2 and amendments thereto, and no additional
compensation
shall be allowable or payable for any temporary or permanent,
partial or
total disability, except that the director, in proper cases, may
allow addi-
tional compensation during the actual healing period, following
amputa-
tion. The healing period shall not be more than 10% of the total
period
allowed for the scheduled injury in question nor in any event for
longer
than 15 weeks. The return of the employee to the employee's usual
oc-
cupation shall terminate the healing period.
Sec. 10. K.S.A. 44-516 is hereby
amended to read as follows: 44-516.
In case of a dispute as to the injury, the director, in the
director's discre-
tion, or upon request of either party, may employ one or more
neutral
health care providers, not exceeding three in number, who shall be
of
good standing and ability. The health care providers shall make
such ex-
aminations of the injured employee as the director may direct.
The report of any such health care provider shall be considered by the
administrative law judge in making the final determination.
Sec. 11. K.S.A. 44-519 is hereby
amended to read as follows: 44-519. Except in preliminary hearings conducted under K.S.A. 44-534a
and amendments thereto, no report of any examination of any
employee by a
health care provider, as provided for in the workers compensation
act and
no certificate issued or given by the health care provider making
such
examination, shall be competent evidence in any proceeding for the
de-
termining or collection of compensation unless supported by the
testi-
mony of such health care provider, if this testimony is admissible,
and
shall not be competent evidence in any case where testimony of
such
health care provider is not admissible.
Sec. 12. K.S.A. 44-527 is hereby
amended to read as follows: 44-527.
At the time of making any final payment of compensation, the
employer
shall be entitled to a final receipt for compensation, executed and
ac-
knowledged or verified by the workmanworker, which final receipt may
be in form a release of liability under this act, and every such
final receipt
for compensation or release of liability or a copy thereof shall be
filed by
the employer in the office of the director within sixty
(60)60 days after
the date of execution of such final receipt or release of
liability, and if the
employer shall fail or neglect to so file such final receipt or
release of
liability, the same shall be void as against the
workmanworker.
The director shall accept, receipt for, and
file every agreement, finding,
award, agreement modifying an award, final receipt for compensation
or
release of liability or copy thereof, and record and index same,
and every
such agreement, finding, award, agreement modifying an award,
final
receipt or release, shall be considered as approved by the director
and
shall stand as approved unless said director shall, within
twenty (20)20
days of the date of the receipt thereof, disapprove same in writing
and
notify each of the parties of his disapproval, giving his reasons
therefor,
sending a copy of the same to each of the parties by
registeredcertified
mail, return receipt requested:Provided,. No proceedings shall be
insti-
tuted by either party to set aside any such agreement, release of
liability,
final receipt for compensation or agreement modifying an award,
unless
such proceedings are commenced within one (1) year
after the date any
such agreement, release of liability, final receipt for
compensation or
agreement modifying an award has been so filed and approved by
the
director.
Sec. 13. K.S.A. 1999 Supp. 44-531
is hereby amended to read as
follows: 44-531. (a) Where all parties agree to the payment of all
or any
part of compensation due under the workers compensation act or
under
any award or judgment, and where it has been determined at a
hearing
before the administrative law judge that it is for the best
interest of the
injured employee or the dependents of a deceased employee, or that
it
will avoid undue expense, litigation or hardship to any party or
parties,
the administrative law judge may permit the employer to redeem all
or
any part of the employer's liability under the workers compensation
act
by the payment of compensation in a lump sum, except that no
agreement
for payment of compensation in a lump sum shall be approved for
nine
months after an employee has returned to work in cases in which
the
employee, who would otherwise be entitled to compensation for
work
disability, is not entitled to work disability compensation because
of being
returned to work at a comparable wage by the employer who
employed
the worker at the time of the injury giving rise to the claim being
settled.
The employer shall be entitled to an 8% discount except as
provided in subsection (a) of K.S.A. 44-510b and amendments thereto on
the amount
of any such lump-sum payment that is not yet due at the time of
the
award. Upon paying such lump sum the employer shall be released
and
discharged of and from all liability under the workers compensation
act
for that portion of the employer's liability redeemed under this
section.
(b) No lump-sum awards, unless agreed to
by the parties, shall be
rendered under the workers compensation act except: (1) As provided
in
subsection (a) of this section, (2) in cases of remarriage
of a surviving spouse as provided in subsection (a) K.S.A.
44-510b and amendments
thereto, (3) in cases involving compensation due the employee at
the time
the award is rendered as provided in K.S.A. 44-525 and
amendments
thereto and in cases of past due compensation as provided in K.S.A.
44-
529 and amendments thereto.
Sec. 14. K.S.A. 1999 Supp. 44-550b
is hereby amended to read as
follows: 44-550b. (a) All records provided to be maintained under
K.S.A.
44-550 and amendments thereto and not withstanding the provisions
of
K.S.A. 45-215, et seq., and amendments thereto, shall be open to
public
inspection, except:
(1) Records relating to financial
information submitted by an em-
ployer to qualify as a self-insurer pursuant to K.S.A 44-532 and
amend-
ments thereto;
(2) records which relate to utilization
review or peer review con-
ducted pursuant to K.S.A. 44-510section 3
and amendments thereto shall
not be disclosed except to the health care provider and as
otherwise spe-
cifically provided by the workers compensation act;
(3) records relating to private premises
safety inspections;
(4) medical records, forms collected
pursuant to K.S.A. 44-567(b) and
amendments thereto and accident reports maintained under K.S.A.
44-
550 and amendments thereto pertaining to an individual which
shall not
be disclosed except:
(A) Upon order of a court of competent
jurisdiction;
(B) to the employer, its insurance
carrier or its representative, from
whom a worker seeks workers compensation benefits;
(C) to the division of workers
compensation for its own records for its purposes;
(D) to federal or state governmental
agencies for purposes of fraud
and abuse investigations;
(E) to an employer in connection with any
application for employ-
ment to an employer, its insurance carrier or representatives
providing
(i) a conditional offer of employment has been made and (ii) the
request
for records includes a signed release by the individual, identifies
the job
conditionally offered by the employer and is submitted in writing,
either
by mail or electronic means. Requests relating to an individual
under this
subsection shall be considered a record to be maintained and open
to
public inspection under K.S.A. 44-550 and amendments thereto;
(F) to the workers compensation fund for
its own purposes; and
(G) to the worker upon written release by
the worker.
(b) This section shall be part of and
supplemental to the workers
compensation act.
Sec. 15. K.S.A. 1999 Supp. 44-556
is hereby amended to read as
follows: 44-556. (a) Any action of the board pursuant to the
workers com-
pensation act, other than the disposition of appeals of preliminary
orders
or awards under K.S.A. 44-534a and amendments thereto, shall be
subject
to review in accordance with the act for judicial review and civil
enforce-
ment of agency actions by appeal directly to the court of appeals.
Any
party may appeal from a final order of the board by filing an
appeal with
the court of appeals within 30 days of the date of the final order.
When an appeal has been filed pursuant to this section, an appellee
may file a cross appeal within 20 days after the date upon which the
appellee was served with notice of the appeal. Such review shall be upon
questions of
law.
(b) Commencement of an action for review
by the court of appeals
shall not stay the payment of compensation due for the ten-week
period
next preceding the board's decision and for the period of time
after the
board's decision and prior to the decision of the court of appeals
on
review.
(c) If review is sought on any order
entered under the workers com-
pensation act prior to October 1, 1993, such review shall be in
accordance
with the provisions of K.S.A. 44-551 and this section, and any
other ap-
plicable procedural provisions of the workers compensation act, as
all such
provisions existed prior to amendment by this act on July 1,
1993.
(d) (1) If compensation, including
medical benefits, temporary total
disability benefits or vocational rehabilitation benefits, has been
paid to
the worker by the employer or the employer's insurance carrier
during
the pendency of review under this section and the amount of
compen-
sation awarded by the board is reduced or totally disallowed by the
de-
cision on the appeal or review, the employer and the employer's
insurance
carrier, except as otherwise provided in this section, shall be
reimbursed
from the workers compensation fund established in K.S.A. 44-566a
and
amendments thereto for all amounts of compensation so paid which
are
in excess of the amount of compensation that the worker is entitled
to as
determined by the final decision on review. The director shall
determine
the amount of compensation paid by the employer or insurance
carrier
which is to be reimbursed under this subsection (d)(1), and the
director
shall certify to the commissioner of insurance the amount so
determined.
Upon receipt of such certification, the commissioner of insurance
shall
cause payment to be made to the employer or the employer's
insurance
carrier in accordance therewith.
(2) If any temporary or permanent partial
disability or temporary or
permanent total disability benefits have been paid to the worker by
the
employer or the employer's insurance carrier during the pendency
of
review under this section and the amount of compensation awarded
for
such benefits by the board is reduced by the decision on the appeal
or
review and the balance of compensation due the worker exceeds
the
amount of such reduction, the employer and the employer's
insurance
carrier shall receive a credit which shall be applied as provided
in this
subsection (d)(2) for all amounts of such benefits which are in
excess of
the amount of such benefits that the worker is entitled to as
determined
by the final decision on review or appeal. If a lump-sum amount of
com-
pensation is due and owing as a result of the decision of the court
of
appeals, the credit under this subsection (d)(2) shall be applied
first
against such lump-sum amount. If there is no such lump-sum amount
or
if there is any remaining credit after a credit has been applied to
a lump-
sum amount due and owing, such credit shall be applied against the
last
compensation payments which are payable for a period of time after
the
final decision on review or appeal so that the worker continues to
receive
compensation payments after such final decision until no further
com-
pensation is payable after the credit has been satisfied. The
credit allowed
under this subsection (d)(2) shall not be applied so as to stop or
reduce
benefit payments after such final decision, but shall be used to
reduce
the period of time over which benefit payments are payable after
such
final decision. The provisions of this subsection (d)(2) shall be
applicable
in all cases under the workers compensation act in which a final
award is
issued by an administrative law judge on or after July 1, 1990.
(e) If compensation, including medical
benefits, temporary total dis-
ability benefits or vocational rehabilitation benefits, has been
paid to the
worker by the employer, the employer's insurance carrier or the
workers
compensation fund during the pendency of review under this section,
and
pursuant to K.S.A. 44-534a or K.S.A. 44-551, and amendments
thereto,
and the employer, the employer's insurance carrier or the workers
com-
pensation fund, which was held liable for and ordered to pay all or
part
of the amount of compensation awarded by the administrative law
judge
or board, is held not liable by the final decision on review by
either the
board or an appellate court for the compensation paid or is held
liable on
such appeal or review to pay an amount of compensation which is
less
than the amount paid pursuant to the award, then the employer,
em-
ployer's insurance carrier or workers compensation fund shall be
reim-
bursed by the party or parties which were held liable on such
review to
pay the amount of compensation to the worker that was erroneously
or-
dered paid. The director shall determine the amount of
compensation
which is to be reimbursed to each party under this subsection, if
any, in
accordance with the final decision on the appeal or review and
shall certify
each such amount to be reimbursed to the party required to pay
the
amount or amounts of such reimbursement. Upon receipt of such
certi-
fication, the party required to make the reimbursement shall pay
the
amount or amounts required to be paid in accordance with such
certifi-
cation. No worker shall be required to make reimbursement under
this
subsection or subsection (d).
(f) As used in subsections (d) and (e),
``employers' insurance carrier''
includes any qualified group-funded workers compensation pool
under
K.S.A. 44-581 through 44-591 and amendments thereto or a group-
funded pool under the Kansas municipal group-funded pool act
which
includes workers compensation and employers' liability under the
workers
compensation act.
(g) In any case in which any review is
sought under this section and
in which the compensability is not an issue to be decided on
review,
medical compensation shall be payable and shall not be stayed
pending
such review. The worker may proceed under K.S.A. 44-534a and
amend-
ments thereto and may have a hearing in accordance with that
statute to
enforce the provisions of this subsection.
Sec. 16. K.S.A. 44-557 is hereby
amended to read as follows: 44-557.
(a) It is hereby made the duty of every employer to make or cause
to be
made a report to the director of any accident, or claimed or
alleged ac-
cident, to any employee which occurs in the course of the
employee's
employment and of which the employer or the employer's supervisor
has
knowledge, which report shall be made upon a form to be prepared
by
the director, within 28 days, after the receipt of such knowledge,
if the
personal injuries which are sustained by such accidents, are
sufficient
wholly or partially to incapacitate the person injured from labor
or service
for more than the remainder of the day, shift or turn on which
such
injuries were sustained.
(b) When such accident has been reported
and subsequently such
person has died, a supplemental report shall be filed with the
director
within 28 days after receipt of knowledge of such death, stating
such fact
and any other facts in connection with such death or as to the
dependents
of such deceased employee which the director may require. Such
report
or reports shall not be used nor considered as evidence before the
direc-
tor, any administrative law judge, the board or in any court in
this state.
(c) No limitation of time in the workers
compensation act shall begin
to run unless a report of the accident as provided in this section
has been
filed at the office of the director if the injured employee has
given notice
of accident as provided by K.S.A. 44-520 and amendments thereto,
except
that any proceeding for compensation for any such injury or death,
where
report of the accident has not been filed, must be commenced by
filing an application with the directorserving upon
the employer a written claim pursuant to K.S.A. 44-520a and amendments thereto within one
year from
the date of the accident, suspension of payment of disability
compensa-
tion, the date of the last medical treatment authorized by the
employer,
or the death of such employee referred to in K.S.A. 44-520a and
amend-
ments thereto.
(d) The knowingrepeated failure of any employer or workers
com- pensation insurance carrier to file or cause to be
filed any report required
by this section shall be subject to a civil penalty for each
violation of not
to exceed $250.
(e) Any civil penalty imposed by this
section shall be recovered in an action in the district court of Shawnee county instituted
and prosecuted,
by the assistant attorney general upon information received
from the
director, by issuing and serving upon such employer a summary
order or statement of the charges with respect thereto and a hearing
shall be con- ducted thereon in accordance with the provisions of the Kansas
admin- istrative procedure act, except that, at the discretion of
the director, such
civil penalties may be assessed as costs in a workers compensation
pro-
ceeding by an administrative law judge upon a showing by the
director assistant attorney general that a required report was not
filed which per-
tains to a claim pending before the administrative law judge.
Sec. 17. K.S.A. 1999 Supp. 44-557a
is hereby amended to read as
follows: 44-557a. (a) The director shall: (1) Compile and publish
statistics
to determine the causation of compensable disabilities in the state
of
Kansas and (2) compile and maintain a database of information on
claim
characteristics and costs related to open and closed claims, in
order to
determine the effectiveness of the workers compensation act to
provide
adequate indemnity, medical and vocational rehabilitation
compensation
to injured workers and to return injured workers to remunerative
em-
ployment. The commissioner of insurance shall cooperate with the
direc-
tor and shall make available any information which will assist the
director
in compiling such information and statistics and may contract with
the
director and the secretary of the department of health and
environment
to collect such information as the director deems necessary.
(b) Each self-insured employer,
group-funded workers compensation
pool, insurance carrier and vocational rehabilitation provider
shall submit
to the director the disposition of a statistically significant
sample of open
and closed claims under the act and, in connection with the closing
of
each claim in which payments were made, the following: (1) The
dates,
time intervals, amounts and types of weekly disability payments
made, (2)
the dates and gross amounts of payments made to each type of
medical
compensation provider, (3) the dates and type of service for which
pay-
ment was made and the gross amounts paid to each vocational
rehabili-
tation provider, and (4) the dates and types of fees paid as claim
costs.
Each self-insured employer, group-funded workers compensation
pool,
insurance carrier, vocational rehabilitation provider,
health care provider
or health care facility shall submit medical information, by
procedure,
charge and zip code of the provider, or by hospital charge and
related diagnostic and procedure codes in order to set the maximum
medical fee
schedule. The director of workers compensation may adopt and
prom-
ulgate such rules and regulations as the director deems necessary
for the
purposes of administering and enforcing the provisions of this
section.
(c) The director may contract for
professional actuarial or statistical
services to provide assistance in determining the types of
information and
the methods of selecting and analyzing information as may be
necessary
for the director to conduct studies of open and closed claims under
the
workers compensation act and to enable the director to make valid
sta-
tistical conclusions as to the distribution of costs of workers
compensation
benefits.
(d) The director shall obtain such office
and computer equipment
and employ such additional clerical help as the director deems
necessary
to gather such information and prepare such statistics.
(e) If a self-insured employer,
group-funded workers compensation pool, insurance carrier or vocational rehabilitation provider
fails to supply the information required by this section, the director shall
issue and serve upon such person a summary order or statement of the charges
with respect thereto and a hearing shall be conducted thereon in
accordance with the provisions of the Kansas administrative procedure act.
An ad- ministrative penalty of up to $500 for each violation or act,
along with an additional penalty of up to $100 for each week thereafter that
such report or other information is not provided to the director shall be
imposed.
Sec. 18. K.S.A. 1999 Supp. 44-567
is hereby amended to read as
follows: 44-567. (a) An employer who operates within the provisions
of
the workers compensation act and who knowingly employs or retains
a
handicapped employee, as defined in K.S.A. 44-566 and
amendments
thereto shall be relieved of liability for compensation awarded or
be en-
titled to an apportionment of the costs thereof as follows:
(1) Whenever a handicapped employee is
injured or is disabled or
dies as a result of an injury which occurs prior to July 1, 1994,
and the
administrative law judge awards compensation therefor and finds the
in-
jury, disability or the death resulting therefrom probably or most
likely
would not have occurred but for the preexisting physical or mental
im-
pairment of the handicapped employee, all compensation and
benefits
payable because of the injury, disability or death shall be paid
from the
workers compensation fund; and
(2) subject to the other provisions of
the workers compensation act,
whenever a handicapped employee is injured or is disabled or dies
as a
result of an injury and the administrative law judge finds the
injury prob-
ably or most likely would have been sustained or suffered without
regard
to the employee's preexisting physical or mental impairment but the
re-
sulting disability or death was contributed to by the preexisting
impair-
ment, the administrative law judge shall determine in a manner
which is
equitable and reasonable the amount of disability and proportion of
the
cost of award which is attributable to the employee's preexisting
physical
or mental impairment, and the amount so found shall be paid from
the
workers compensation fund.
(b) In order to be relieved of liability
under this section, the employer
must prove either the employer had knowledge of the preexisting
im-
pairment at the time the employer employed the handicapped
employee
or the employer retained the handicapped employee in employment
after
acquiring such knowledge. The employer's knowledge of the
preexisting
impairment may be established by any evidence sufficient to
maintain the
employer's burden of proof with regard thereto. If the employer,
prior
to the occurrence of a subsequent injury to a handicapped employee,
files
with the director a notice of the employment or retention of such
em-
ployee, together with a description of the handicap claimed, such
notice
and description of handicap shall create a presumption that the
employer
had knowledge of the preexisting impairment. If the employer files
a
written notice of an employee's preexisting impairment with the
director
in a form approved by the director therefor, such notice
establishes the
existence of a reservation in the mind of the employer when
deciding
whether to hire or retain the employee.
(c) Knowledge of the employee's
preexisting impairment or handicap
at the time the employer employs or retains the employee in
employment
shall be presumed conclusively if the employee, in connection with
an
application for employment or an employment medical examination
or
otherwise in connection with obtaining or retaining employment with
the
employer, knowingly: (1) Misrepresents that such employee does not
have
such an impairment or handicap; (2) misrepresents that such
employee
has not had any previous accidents; (3) misrepresents that such
employee
has not previously been disabled or compensated in damages or
otherwise
because of any prior accident, injury or disease; (4) misrepresents
that
such employee has not had any employment terminated or
suspended
because of any prior accident, injury or disease; (5) misrepresents
that
such employee does not have any mental, emotional or physical
impair-
ment, disability, condition, disease or infirmity; or (6)
misrepresents or
conceals any facts or information which are reasonably related to
the
employee's claim for compensation.
(d) An employer shall not be relieved of
liability for compensation
awarded nor shall an employer be entitled to an apportionment of
the
costs thereof as provided in this section, unless the employer
shall cause
the commissioner of insurance, in the capacity of administrator of
the
workers compensation fund, to be impleaded, as provided in K.S.A.
44-
566a and amendments thereto, in any proceedings to determine the
com-
pensation to be awarded a handicapped employee who is injured or
dis-
abled or has died, by giving written notice of the employee's claim
to the
commissioner of insurance ten days prior to the first full hearing
where
any evidence is presented on the claim.
(e) Amendments to this section shall
apply only to cases where a
handicapped employee, or the employee's dependents, claims
compen-
sation as a result of an injury occurring after the effective date
of such
amendments.
(f) The total amount of compensation due
the employee shall be the
amount for disability computed as provided in K.S.A. 44-503a,
44-51044- 510a through 44-510g and 44-511, sections 1 and 2 and
amendments
thereto, and in no case shall the payments be less nor more than
the
amounts provided in K.S.A. 44-510c and amendments thereto.
Sec. 19. K.S.A. 1999 Supp. 44-570
is hereby amended to read as
follows: 44-570. (a) In the event that subsection
(e)(d) of K.S.A. 44-510b
is inapplicable, every employer in the state of Kansas operating a
trade
or business under the provisions of the workers compensation act
shall
pay within 30 days after the award is made the sum of $18,500 to
the
commissioner of insurance in every case where death results from
the
accident and where there are no dependents who are entitled to
com-
pensation under the workers compensation act.
(b) The commissioner of insurance shall
remit all moneys received
under this section to the state treasurer. Upon receipt of any such
re-
mittance the state treasurer shall deposit the entire amount
thereof in
the state treasury to the credit of the workers' compensation
fund.
(c) Upon rendering an award under this
section, the director shall
transmit immediately a certified copy thereof to the commissioner
of
insurance. In case payment is, or has been made, under the
provisions of
this section and dependency later is shown, or if payment is made
by
mistake or inadvertence, or under such circumstances that justice
re-
quires a refund thereof, the commissioner of insurance is hereby
author-
ized to refund such payment to the employer, or if insured, to the
em-
ployer's insurance carrier.
Sec. 20. K.S.A. 44-576 is hereby
amended to read as follows: 44-576.
(a) For each payroll period, each state agency shall certify with
each pay-
roll, the amount of each self-insurance assessment for such state
agency,
not in conflict with appropriations therefor. The director of
accounts and
reports shall transfer the amount of each self-insurance assessment
for
such state agency to the credit of the state workers compensation
self-
insurance fund.
(b) Each July 1, the secretary of
administration shall determine an- nually the rate of the self-insurance assessment for all
state agenciesa self-insurance assessment rate for each state agency based
upon the ac-
cidental injury and occupational disease experience of all
state agencies the state agency and the liability of the state workers
compensation self-
insurance fund as provided in subsection (c) of K.S.A.
44-575, and amend-
ments thereto. Such rate shall be expressed as a percentage
and shall be the same for all state agencies. The secretary of
administration shall utilize
actuarial and other professional assistance in determining
the rate of the
self-insurance assessment rates under this section. On or
before each July 1530, the secretary of administration
shall notify each state agency of the rate of thesuch agency's projected
self-insurance assessment rate for the
next fiscal year and such agency's actual self-insurance
assessment rate for the current fiscal year.
(c) The amount of the self-insurance
assessment for each state agency
shall be determined by multiplying the total payroll for each
payroll pe-
riod of such state agency, by the rate of theby such agency's self-insur-
ance rate assessment for the fiscal year.
Sec. 21. K.S.A. 44-5,104 is hereby
amended to read as follows: 44-
5,104. (a) Each insurance company or group-funded self-insurance
plan
providing workers compensation insurance coverage in Kansas shall
main-
tain and may offer toshall provide
accident prevention programs upon request of the covered employer as a prerequisite for
authority to provide
such insurance or coverage. The accident prevention programs shall
be
adequate to furnish accident prevention services required by the
nature
of the operations of the policyholders or other covered entities
and the
accident prevention services shall include surveys,
recommendations,
training programs, consultations, analyses of accident causes,
industrial
hygiene and industrial health services to implement the program of
ac-
cident prevention services. The accident prevention programs shall
be
staffed with field safety representatives. Each field safety
representative
shall be a person who is (1) a college graduate who has a
bachelor's degree
in science, businessindustrial hygiene,
safety or loss control, or engi-
neering, (2) a registered professional engineer, (3) a certified
safety pro-
fessional, who has attained the designation from the board of
certified safety professionals, (4) a certified industrial hygienist,
who has attained the designation from the American board of industrial
hygiene (5) an
individual with 10five years of experience
in occupational safety and
health, (6) a person who is working under direct supervision of a
person
who meets the qualification requirements of this section (7) a
person who
has attained the designation of associate in loss control
management or
associate in risk management from the insurance institute of
America,
who has attained the designation of occupational safety and health
tech-
nologist from the board of certified safety professionals, or who
has at-
tained any other comparable designation or certification by a
recognized
organization as determined by the secretary of human resources, or
(8)
an individual who has completed a certified training program in
accident
prevention services approved by the secretary of human resources.
The
insurance company or group-funded self-insurance plan may
employ
qualified personnel, retain qualified independent contractors,
contract
with the policyholder to provide qualified accident prevention
personnel
and services, or use a combination of such methods to fulfill the
obliga-
tions imposed by this section. Accident prevention personnel shall
have
the qualifications required for field safety representatives.
(b) The secretary of human resources may
conduct such inspections
as the secretary deems necessary to determine the adequacy of the
ac-
cident prevention services required by subsection (a) for each
insurance
company and group-funded self-insurance plan providing workers
com-
pensation insurance coverage in Kansas, including, but not
limited to, random inspections and those based upon employer complaints.
Docu- mented employer complaints shall be appropriately investigated
and the results shall be reported to the commissioner of insurance. The
secretary shall not be required by this section to inspect each insurance
company or group-funded self-insurance plan.
(c) A notice that accident prevention
services are available to the pol-
icyholder from the insurance company shall appear in no less than
ten-
point boldface type on the front page of each workers compensation
in-
surance policy delivered or issued for delivery in this state.
(d) At least once each year, each
insurance company or group-funded
self-insurance plan providing workers compensation insurance in
Kansas
shall submit to the director of workers compensation detailed
information
on the type of accident prevention programs offered to the
policyholders
by the insurance company or to the covered entities by the
group-funded
self-insurance plan, as the case may be. The information shall
include:
(1) The amount of money spent by the
insurance company or group-
funded self-insured plan on accident prevention services;
(2) the names, number and
qualifications of field safety representa-
tives employed;
(3) the number of site inspections
performed;
(4) any accident prevention services made
available under a contrac-
tual arrangement;
(5) a specification and listing of the
premium size of the risks to which
accident prevention services were actually provided;
(6) evidence of the effectiveness of and
accomplishments in accident
prevention; and
(7) any additional information required
by the director of workers
compensation.
(e) If the insurance company or
group-funded self-insurance plan
does not maintain or provide the accident prevention services
required
by this section, the director of workers compensation shall notify
the
commissioner of insurance. Upon receiving such notification, the
com-
missioner of insurance shall presume the insurance company or
group-
funded self-insurance plan knew or reasonably should have known of
the
violation and shall assess the penalty prescribed therefore
pursuant to
K.S.A. 40-2,125 and amendments thereto. The secretary shall send
the information and results obtained pursuant to subsection (d) to
the insur- ance commissioner who shall widely disseminate information about
the program.
(f) The secretary of human resources
shall employ the personnel nec-
essary to enforce the provisions of this section and shall employ
sufficient
safety inspectors to perform inspections at job sites or other work
places and at the locations of theand may audit
accident prevention programs
of each insurance company or group-funded self-insurance plan which
is
subject to this section to determine the adequacy of the accident
preven-
tion services provided. The safety inspectors shall have the
qualifications
required for field safety representatives by subsection (a).
(g) The insurance company or group-funded
self-insurance plan, and
any agent, servant, or employee thereof, shall have no liability
with respect
to any accident based on the allegation that such accident was
caused or
could have been prevented by a program, inspection or other
activity or
by a service undertaken or not undertaken by the insurance company
or
group-funded self-insurance plan for the prevention of accidents in
con-
nection with operations of the employer. This immunity shall not
affect
the liability of the insurance company or group-funded
self-insurance plan
for compensation or as otherwise provided in this act.
Sec. 22. K.S.A. 1999 Supp. 44-5,120
is hereby amended to read as
follows: 44-5,120. (a) The director of workers compensation is
hereby
authorized and directed to establish a system for monitoring,
reporting
and investigating suspected fraud or abuse by any persons who are
not
licensed or regulated by the commissioner of insurance in
connection
with securing the liability of an employer under the workers
compensa-
tion act or in connection with claims or benefits thereunder. The
com-
missioner of insurance is hereby authorized and directed to
establish a
system for monitoring, reporting and investigating suspected fraud
or
abuse by any persons who are licensed or regulated by the
commissioner
of insurance in connection with securing the liability of an
employer un-
der the workers compensation act or in connection with claims
there-
under.
(b) This section applies to:
(1) Persons claiming benefits under the
workers compensation act;
(2) employers subject to the requirements
of the workers compen-
sation act;
(3) insurance companies including
group-funded self-insurance plans
covering Kansas employers and employees;
(4) any person, corporation, business,
health care facility that is or-
ganized either for profit or not-for-profit and that renders
medical care,
treatment or services in accordance with the provisions of the
workers
compensation act to an injured employee who is covered thereunder;
and
(5) attorneys and other representatives
of employers, employees, in-
surers or other entities that are subject to the workers
compensation act.
(c) The commissioner of insurance may
examine the workers com-
pensation records of insurance companies or self-insurers as
necessary to
ensure compliance with the workers compensation act. Each
insurance
company providing workers compensation insurance in Kansas, the
com-
pany's agents, and those entities that the company has contracted
to pro-
vide review services or to monitor services and practices under the
work-
ers compensation act shall cooperate with the commissioner of
insurance,
and shall make available to the commissioner any records or other
nec-
essary information requested by the commissioner. The commissioner
of
insurance shall conduct an examination authorized by this
subsection in
accordance with the provisions of K.S.A. 40-222 and 40-223 and
amend-
ments thereto.
(d) Fraudulent or abusive acts or
practices for purposes of the work-
ers compensation act include, willfully, knowingly or
intentionally:
(1) Collecting from an employee, through
a deduction from wages or
a subsequent fee, any premium or other fee paid by the employer
to
obtain workers compensation insurance coverage;
(2) misrepresenting to an insurance
company or the insurance de-
partment, the classification of employees of an employer, or the
location,
number of employees, or true identity of the employer with the
intent to
lessen or reduce the premium otherwise chargeable for workers
com-
pensation insurance coverage;
(3) lending money to the claimant during
the pendency of the work-
ers compensation claim by an attorney representing the claimant,
but this
provision shall not prohibit the attorney from assisting the
claimant in
obtaining financial assistance from another source, except that (A)
the
attorney shall not have a financial interest, directly or
indirectly, in the
source from which the loan or other financial assistance is secured
and
(B) the attorney shall not be personally liable in any way for the
credit
extended to the claimant;
(4) obtaining, denying or attempting to
obtain or deny payments of
workers compensation benefits for any person by:
(A) Making a false or misleading
statement;
(B) misrepresenting or concealing a
material fact;
(C) fabricating, altering, concealing or
destroying a document; or
(D) conspiring to commit an act specified
by clauses (A), (B) or (C)
of this subsection (d)(4);
(5) bringing, prosecuting or defending an
action for compensation
under the workers compensation act or requesting initiation of an
ad-
ministrative violation proceeding that, in either case, has no
basis in fact
or is not warranted by existing law or a good faith argument for
the ex-
tension, modification or reversal of existing law;
(6) breaching a provision of an agreement
approved by the director;
(7) withholding amounts not authorized by
the director from the em-
ployee's or legal beneficiary's weekly compensation payment or from
ad-
vances from any such payment;
(8) entering into a settlement or
agreement without the knowledge
and consent of the employee or legal beneficiary;
(9) taking a fee or withholding expenses
in excess of the amounts
authorized by the director;
(10) refusing or failing to make prompt
delivery to the employee or
legal beneficiary of funds belonging to the employee or legal
beneficiary
as a result of a settlement, agreement, order or award;
(11) misrepresenting the provisions of
the workers compensation act
to an employee, an employer, a health care provider or a legal
beneficiary;
(12) instructing employers not to file
required documents with the
director;
(13) instructing or encouraging employers
to violate the employee's
right to medical benefits under the workers compensation act;
(14) failing to tender promptly full
death benefits if a clear and le-
gitimate dispute does not exist as to the liability of the
insurance company,
self-insured employer or group-funded self-insurance plan;
(15) failing to confirm medical
compensation benefits coverage to any
person or facility providing medical treatment to a claimant if a
clear and
legitimate dispute does not exist as to the liability of the
insurance carrier,
self-insured employer or group-funded self-insurance plan;
(16) failing to initiate or reinstate
compensation when due if a clear
and legitimate dispute does not exist as to the liability of the
insurance
company, self-insured employer or group-funded self-insurance
plan;
(17) misrepresenting the reason for not
paying compensation or ter-
minating or reducing the payment of compensation;
(18) refusing to pay compensation as and
when the compensation is
due;
(19) refusing to pay any order awarding
compensation;
(20) refusing to timely file required
reports or records under the
workers compensation act, except as provided in K.S.A. 44-557
and amendments thereto; and
(21) for a health care provider to submit
a charge for health care that
was not furnished.
(e) Whenever the director or the
commissioner of insurance has rea-
son to believe that any person has engaged or is engaging in any
fraud-
ulent or abusive act or practice in connection with the conduct of
Kansas
workers compensation insurance, claims, benefits or services in
this state,
that such fraudulent or abusive act or practice is not subject to
possible
proceedings under K.S.A. 40-2401 through 40-2421 and amendments
thereto by the commissioner of insurance, and that a proceeding by
the
director or the commissioner of insurance, in the case of any
person
licensed or regulated by the commissioner, with respect thereto
would
be in the interest of the public, the director or the commissioner
of in-
surance, in the case of any person licensed or regulated by the
commis-
sioner, shall issue and serve upon such person a summary order or
state-
ment of the charges with respect thereto and shall conduct a
hearing
thereon in accordance with the provisions of the Kansas
administrative
procedure act. Complaints filed with the director or the
commissioner of
insurance may be dismissed by the director or the commissioner of
in-
surance on their own initiative, and shall be dismissed upon the
written
request of the complainant, if the director or commissioner of
insurance
has not conducted a hearing or taken other administrative action
dis-
missing the complaint within 180 days of the filing of the
complaint. Any
such dismissal of a complaint in accordance with this section shall
con-
stitute final action by the director or commissioner of insurance
which
shall be deemed to exhaust all administrative remedies under K.S.A.
44-
5,120 and amendments thereto for the purpose of allowing
subsequent
filing of the matter in court by the complainant. Dismissal of a
complaint
in accordance with this section shall not be subject to appeal or
judicial
review.
(f) If, after such hearing, the director
or the commissioner of insur-
ance, in the case of any person licensed or regulated by the
commissioner,
determines that the person charged has engaged in any fraudulent
or
abusive act or practice, any costs incurred as a result of
conducting any
administrative hearing authorized under the provisions of this
section may
be assessed against the person or persons found to have engaged in
such
acts. In an appropriate case to reimburse costs incurred, such
costs may
be awarded to a complainant. As used in this subsection, ``costs''
include
witness fees, mileage allowances, any costs associated with
reproduction
of documents which become a part of the hearing record and the
expense
of making a record of the hearing.
(g) If, after such hearing, the director
or the commissioner of insur-
ance, in the case of any person licensed or regulated by the
commissioner,
determines that the person or persons charged have engaged in a
fraud-
ulent or abusive act or practice the director or the commissioner
of in-
surance, in the case of any person licensed or regulated by the
commis-
sioner, shall issue an order or summary order requiring such person
to
cease and desist from engaging in such act or practice and, in the
exercise
of discretion, may order any one or more of the following:
(1) Payment of a monetary penalty of not
more than $2,000 for each
and every act constituting the fraudulent or abusive act or
practice, but
not exceeding an aggregate penalty of $20,000 in a one-year
period;
(2) redress of the injury by requiring
the refund of any premiums
paid by and requiring the payment of any moneys withheld from,
any
employee, employer, insurance company or other person or entity
ad-
versely affected by the act constituting a fraudulent or abusive
act or
practice;
(3) repayment of an amount equal to the
total amount that the person
received as benefits or any other payment under the workers
compen-
sation act and any amount that the person otherwise benefited as a
result
of an act constituting a fraudulent or abusive act or practice,
with interest
thereon determined so that such total amount, plus any accrued
interest
thereon, bears interest, from the date of the payment of benefits
or other
such payment or the date the person was benefited, at the current
rate
of interest prescribed by law for judgments under subsection (e)(1)
of
K.S.A. 16-204 and amendments thereto per month or fraction of a
month
until repayment.
(h) After the expiration of the time
allowed for filing a petition for
review of an order issued under this section, if no such petition
has been
duly filed within such time, the director at any time, after notice
and
opportunity for hearing in accordance with the provisions of the
Kansas
administrative procedure act, may reopen and alter, modify or set
aside,
in whole or in part, any order issued under this section, whenever
in the
director's opinion conditions of fact or of law have so changed as
to re-
quire such action or if the public interest so requires.
(i) Upon the order of the director or the
commissioner of insurance,
in the case of any person licensed or regulated by the
commissioner, after
notice and hearing in accordance with the provisions of the Kansas
ad-
ministrative procedure act, any person who violates a cease and
desist
order of the director or the commissioner of insurance, in the case
of any
person licensed or regulated by the commissioner, issued under this
sec-
tion may be subject, at the discretion of the director or the
commissioner
of insurance, in the case of any person licensed or regulated by
the com-
missioner, to a monetary penalty of not more than $10,000 for each
and
every act or violation, but not exceeding an aggregate penalty of
$50,000
for any six-month period in addition to any penalty imposed
pursuant to
subsection (g).
(j) Any civil fine imposed under this
section shall be subject to review
in accordance with the act for judicial review and civil
enforcement of
agency actions in the district court in Shawnee county.
(k) All moneys received under this
section for costs assessed, which
are not awarded to a complainant, or monetary penalties imposed
shall
be deposited in the state treasury and credited to the workers
compen-
sation fee fund.
(l) Any person who refers a possibly
fraudulent or abusive practice to
any state or governmental investigative agency, shall be immune
from
civil or criminal liability arising from the supply or release of
such referral
as long as such referral is made in good faith with the belief that
a fraud-
ulent or abusive practice has, is or will occur and said referral
is not made
by the person or persons who are in violation of the workers
compensation
act in order to avoid criminal prosecution or administrative
hearings.
Sec. 23. K.S.A. 44-5,122 is hereby
amended to read as follows: 44-
5,122. (a) If the director or the assistant attorney general
assigned to the
division of workers compensation has probable cause to believe a
fraud-
ulent or abusive act or practice or any other violation of the
workers
compensation act is of such significance as to constitute a crime,
a copy
of any order, all investigative reports and any evidence in the
possession
of the division of workers compensation which relates to such act,
practice
or violation shallmay be forwarded to the
prosecuting attorney of the
county in which the act or any of the acts were performed which
consti-
tute the fraudulent or abusive act or practice or other violation.
Any case which a county attorney fails to prosecute within 90 days shall
be returned promptly to the director. The assistant attorney general
assigned to the division of workers compensation shall then prosecute the case
if, in the opinion of the assistant attorney general, the acts or practices
involved still warrant prosecution.
(b) Any person who believes a violation
of the workers compensation
act has been or is being committed may notify the division of
workers
compensation of the department of human resources immediately
after
discovery of the alleged violation. The person shall send to the
division
of workers compensation, in a manner prescribed by the director,
the
information describing the facts of the alleged violation and such
addi-
tional information relating to the alleged violation as the
director may
require. The director shall cause an evaluation of the facts
surrounding
the alleged violation to be made to determine the extent, if any,
to which
violations of the workers compensation act exist, which shall
include a
review and investigation by the assistant attorney general assigned
to the
division to the extent as may be deemed necessary to determine
whether
there has been a violation of the workers compensation act.
Sec. 24. K.S.A. 1999 Supp. 44-5,125
is hereby amended to read as
follows: 44-5,125. (a) (1) Any person who obtains or attempts to
obtain
workers compensation benefits for such person or another, or who
denies
or attempts to deny the obligation to make any payment of workers
com-
pensation benefits by knowingly or intentionally: (A) Making a
false or
misleading statement, (B) misrepresenting or concealing a material
fact,
(C) fabricating, altering, concealing or destroying a document; (D)
re-
ceiving temporary total disability benefits or permanent total
disability
benefits to which they are not entitled, while employed, or (E)
conspiring
with another person to commit any act described by paragraph (1) of
this
subsection (a), shall be guilty of:
(i) A class A nonperson misdemeanor, if
the amount received as a
benefit or other payment under the workers compensation act as a
result
of such act or the amount that the person otherwise benefited
monetarily
as a result of a violation of this subsection (a) is $500 or
less;
(ii) a severity level 9, nonperson
felony, if such amount is more than
$500 but less than $25,000;
(iii) a severity level 7, nonperson
felony, if the amount is more than
$25,000, but less than $50,000;
(iv) a severity level 6, nonperson felony
if the amount is more than
$50,000, but less than $100,000; or
(v) a severity level 5, nonperson felony
if the amount is more than
$100,000.
(b) Any person who knowingly and
intentionally presents a false cer-
tificate of insurance that purports that the presenter is insured
under the
workers compensation act, shall be guilty of a level 8, nonperson
felony.
(c) A health care provider under the
workers compensation act who
knowingly and intentionally submits a charge for health care that
was not
furnished, shall be guilty of a level 9, nonperson felony.
(d) Any person who obtains or attempts to
obtain a more favorable
workers compensation insurance premium rate than that to which
the
person is entitled, who prevents, reduces, avoids or attempts to
prevent,
reduce or avoid the payment of any compensation under the
workers
compensation act, or who fails to communicate a settlement offer or
sim-
ilar information to a claimant under the workers compensation act,
by, in
any such case knowingly or intentionally: (1) Making a false or
misleading
statement; (2) misrepresenting or concealing a material fact; (3)
fabricat-
ing, concealing or destroying a document; or (4) conspiring with
another
person or persons to commit the acts described in clause (1), (2)
or (3)
of this subsection shall be guilty of a level 9, nonperson
felony.
(e) Any person who has received any
amount of money as a benefit
or other payment under the workers compensation act as a result of
a
violation of subsection (a) or (c) and any person who has otherwise
ben-
efited monetarily as a result of a violation of subsection (a) or
(c) shall be
liable to repay an amount equal to the amount so received by such
person
or the amount by which such person has benefited monetarily, with
in-
terest thereon. Any such amount, plus any accrued interest thereon,
shall
bear interest at the current rate of interest prescribed by law for
judg-
ments under subsection (e)(1) of K.S.A. 16-204 and amendments
thereto
per month or fraction of a month until repayment of such amount,
plus
any accrued interest thereon. The interest shall accrue from the
date of
overpayment or erroneous payment of any such amount or the date
such
person benefited monetarily.
(f) Any person aggrieved by a violation
of subsection (a), (b), (c) or
(d) shall have a cause of action against any other person to
recover any
amounts of money erroneously paid as benefits or any other amounts
of
money paid under the workers compensation act, and to seek relief
for
other monetary damages, for which liability has accrued under this
section
against such other person. Relief under this subsection is to be
predicated
upon exhaustion of administrative remedies available in K.S.A.
44-5,120
and amendments thereto.
(g) Nothing in this section shall
prohibit an employer from exercising
a right to reimbursement under K.S.A. 44-534a, 44-556 or 44-569a
and
amendments thereto.
(h) Prosecution for any crime under
this section shall be commenced within five years subject to the time period set forth in
subsection (8) of K.S.A. 1999 Supp. 21-3106 and amendments thereto.
Sec. 25. K.S.A. 44-510c, 44-513, 44-516, 44-519,
44-527, 44-557, 44-
576, 44-5,104 and 44-5,122 and K.S.A. 1999 Supp. 44-501, 44-501a,
44-
508, 44-510, 44-510b, 44-510d, 44-531, 44-550b, 44-556, 44-557a,
44-
567, 44-570, 44-5,120 and 44-5,125 are hereby repealed.
Sec. 26. This act shall take effect and be in
force from and after its
publication in the statute book.