The 2001 Kansas Workers Compensation Act: Too Sharp a Right Turn?
| Jurisdiction | Kansas,United States |
| Citation | Vol. 81 No. 1 Pg. 25 |
| Pages | 25 |
| Publication year | 2012 |
Tim Alvarez
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Introduction
A new Kansas Workers Compensation Act [new Act] became effective May 15, 2011.[1] It represents a substantial revision of the previous 1993 amendments commonly referred to as the 1993 Act.[2] The legislation is certainly the most extensive change to Kansas workers compensation statutory law in 18 years and amends or repeals 28 existing statutes.[3]
The changes were the result of a number of developments, one of the more important of which may have been the Kansas Supreme Court’s recent emphasis on a strict construction approach in interpreting workers compensation statutes. Although a strict construction analysis was utilized by the Kansas Supreme Court in its 2007 decision in Casco v. Armour Swift-Eckrich,[4] it was the Court’s 2009 decision in Bergstrom v. Spears Manufacturing Co. that underscored the significance and impact of strict construction.[5]
The practical result of these decisions was to vacate case law that had provided guidance for the interpretation and application of workers compensation statutes for many years. This was particularly true of the case law interpreting the 1993 Act. Significant decisions, such as those in Faulk v. Colonial Terrace[6] and Copeland v. Johnson Group Inc.,[7] were suddenly disapproved, resulting in considerable uncertainty as to the application of the remaining statutory framework.
Attorneys on behalf of various interested groups negotiated and drafted proposed legislation that was introduced in the Kansas House of Representatives as House Bill 2134. The bill was amended in the House and then in the Kansas Senate. Conflicting amendments were resolved in conference committee, resulting in an amended bill renamed Substitute for House Bill No. 2134 that was passed overwhelmingly by both houses and signed into law by Gov. Sam Brownback.
Reflecting existing realities, the 2011 Act is largely pro-employer. The adoption of the prevailing factor standard,[8] shortening of the notice provisions,[9] mitigating the effects of the Bergstrom decision[10] and amending certain statutory definitions,[11] particularly that of “arising out of and in the course of employment,”[12] all favor employers. However, Kansas workers did gain from a statutory abrogation of the Casco decision,[13] a modest increase in the caps,[14] a provision for temporary partial disability benefits for scheduled injuries,[15] and some of the procedural changes.[16]
Prospective Application
Almost immediately after the law went into effect on May 15, 2011, there was concern among practitioners as to whether provisions of the new Act would be retroactive and thus apply to cases in which the claimant was injured prior to its effective date. Although there is prior case law holding that workers’ compensation statutes are only applied prospectively,[17] there is always concern among practitioners that procedural changes may be later held retroactive in their application. There was particular concern regarding the restrictive future medical provisions under the 2011 Act.[18]
The Kansas Supreme Court acted early and has apparently resolved this issue with its decision in Bryant v. Midwest Staff Solutions Inc. on July 29, 2011.[19] Although the case concerned issues that were clearly under the old law,[20] the Court used its decision as an opportunity to comment on the prospective application of the new Act:
As a general rule, a statute operates prospectively in the absence of clear statutory language that the legislature intended it to operate retroactively. Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220 (2003). Even if the legislature expressly states that a statute will apply retroactively, vested or substantive rights are immune from retrospective statutory application ... . Harding v. K.C. Wall Products Inc., 250 Kan. 655 (1992). Nothing in the language of the Substitute for HB 2134 suggests that the legislature intended that the sections relevant to the present case be applied retroactively. In fact, the legislature singled out one section, new K.S.A. 44-529(c),[21] for retroactive application and was silent about the application of the remainder of the statutory amendments.
Because there is no clear statutory language that the legislature intended for the statutory language to operate retroactively except for K.S.A. 44-531(c), the general rule of prospective application should apply.
Accident and Repetitive Trauma
Under the new Act, repetitive trauma is defined separately to distinguish those injuries from accidental injuries and occupational diseases.[22] Furthermore, the definition of an accident is amended in K.S.A. 44-508(d) to include “traumatic” and to provide that “an accident shall be identifiable by time and place of occurrence, produce at the time symptoms of an injury, and occur during a single work shift.” Significantly, the accident must be the prevailing factor in causing the injury.[23]
“Repetitive trauma” is defined as an injury that occurs as a result of “repetitive use, cumulative traumas or microtraumas” and must be demonstrated by “diagnostic or clinical tests.”[24] As with an accident, the repetitive trauma must be the prevailing factor in causing the injury.[25]
The date of an accident in repetitive trauma cases is amended to be the earliest of: (1) The date the employee is taken off work by a physician due to the diagnosed repetitive trauma; (2) The date the employee is placed on modified or restricted duty by a physician due to the diagnosed repetitive trauma; (3) The date the employee is advised by a physician that the condition is work-related; or (4) the date the employee last worked for the employer.[26] The statute provides that in no event can the date of the accident in a repetitive trauma claim be later than the last day worked by the employee for the employer.[27]
Arising Out of and in the Course of Employment
Significant changes were made to the definition of “arising out of and in the course of employment” in K.S.A. 2010 Supp. 44-508(f)(2). Some of those changes reverse well-established case law and will be the focus of much litigation in the future.[28] Many of the statutory changes focus on the single phrase “arising out of.”[29]
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Under the new Act, “arising out of and in the course of employment” does not include accidents or injuries that occur as a result of the natural aging process or the normal activities of day-today living;[30] arise out of a neutral risk;[31] arise out of a risk personal to the worker;[32] or arise directly or indirectly from idiopathic causes.[33] An injury does not “arise out of and in the course of employment” and is therefore not compensable if work was merely a triggering or precipitating factor;[34] if the injury aggravated, accelerated, or exacerbated a pre-existing condition;[35] or if the injury rendered a pre-existing condition symptomatic.[36] Injuries that occur during recreational or social events which the employee was under no duty to attend do not arise out of and in the course of employment if the injury did not result from the performance of tasks related to the employee’s normal work duties or tasks that the employee was specifically instructed by the employer to perform.[37]
Changes were also made to the definition of “arising out of.” As mentioned above, an injury by accident or repetitive trauma will be deemed to “arise out of employment” only if the accident or repetitive trauma meets the particular prevailing factor requirements of each respective subsection.[38] An injury by accident will be deemed to arise out of employment only if there is a causal connection between the conditions of the work and the resulting accident.[39] Injury by repetitive trauma will be deemed to arise out of employment only if the worker is exposed to an increased risk or hazard as compared to non-employment life.[40]
Prevailing Factor
A major change in the new Act is the adoption of the prevailing factor standard for causation. Much of the language is borrowed from the Missouri experience.[41] Prevailing factor language now appears in the statutes addressing accidents,[42] repetitive trauma,[43] arising out of and in the course of employment,[44] and post-award medical benefits.[45] The effect of the adoption of the prevailing factor standard will be to eliminate many injuries that were previously compensable as workers compensation injuries.
K.S.A. 2010 Supp. 44-508(g) provides the definition for prevailing factor. “Prevailing” as it relates to the term “factor” means the primary factor, in relation to any other factor.[46] The statute provides that the administrative law judge, in determining what constitutes the prevailing factor in any given case, “shall consider all relevant evidence submitted by the parties.”[47] The statutes provide that an accident or repetitive trauma “must be the prevailing factor in causing the injury.”[48] An injury by accident will be deemed to arise out of employment only if “the accident is the prevailing factor in causing the injury, medical condition, and resulting disability or impairment.”[49]
Notice
The notice statute, K.S.A. 44-520, is amended by eliminating the 75-day just cause provision and the necessity of service of the written claim for compensation. For both injury by accident or repetitive trauma, notice must be given by the earliest of 30 days from the date of the accident or repetitive trauma, 20 days from the date the employee seeks medical treatment or 20 days after the employee’s last day of work.[50] Notice may be given orally or in writing.[51]
If notice is provided orally and the employer has designated and communicated in writing to the employee an individual or department to whom notice must be given, notice must be given to that individual...
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