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Law FAQ Introduction

Did you know that workers' compensation laws were originally passed for the protection of the employer? It's true. Employers were being sued by employees for unsafe working conditions, and co-employees were suing each other for negligence. The money damages were too great for employers, so they sought protection from their lawmakers.

As a result, workers' compensation was created with the idea that everyone would recover some amount for injuries in the workplace, but the amount of recovery would be controlled. Thus, workers' compensation laws put in place caps on employer liability and provided injured workers immediate yet reduced benefits and eliminated the need to prove negligence or fault.

The workers' compensation law was supposed to be a very simple method for handling these matters. Unfortunately, as with any other law, there are continuing changes in the law affecting procedures, burdens of proof and benefits available. As a result, workers' compensation , more now than ever, is very complex, with its own set of rules and practices.

This FAQ is presented by the law firm of McCULLOUGH, WAREHEIM & LaBUNKER, P.A. in an effort to answer the most often asked questions about workers' compensation. They feel you should know your rights. The law firm of McCULLOUGH, WAREHEIM & LaBUNKER, P.A. is located in Topeka, Kansas. The law firm has dedicated itself to representing injured workers and other individuals across the State for over 50 years.

It is hoped that this FAQ provides some of the answers you are looking for. It should only be used as a guide to general situations. The law is always changing. For specific problems, you need to seek and obtain qualified advice.

Respectfully submitted.
McCULLOUGH, WAREHEIM & LaBUNKER

Workers' Compensation FAQ

1.1 What is workers' compensation?

Workers' compensation is insurance paid for by the employer to cover on-the-job injuries. State law requires almost all employers to have such insurance, or make other arrangements to pay for on-the-job injuries.

1.3 I've heard that the workers' compensation laws have recently changed. Do these changes apply to my injury?

It's true. There have been some significant changes in the workers' compensation law. These went into effect at different times. Generally, the date of your injury controls your rights.

1.5 What is the most important thing I can do to protect myself with regard to a workers' compensation claim?

Do not let time run out before you give notice of accident and file a written claim for on-the-job injuries. Most claims for on-the-job injuries are lost because of the failure to give proper notice and to file a timely written claim for compensation.
· 'Giving notice' and 'filing a written claim' for compensation are two (2) separate requirements. YOU MUST GIVE NOTICE WITHIN TEN (10) DAYS OF THE DATE OF ACCIDENT. Sometimes this can be extended to 75 days for 'just cause.' However, to be safe, immediately inform the employer of all accidents. You can 'give notice' to your employer by telling them verbally or in writing that you were involved in an accident while working.
· 'Written claim' is a different requirement from 'giving notice.' You must give your employer a written claim within 200 days of your accident or within 200 days of your last receipt of a benefit from workers' compensation. In certain situations the time can be extended, but you should not rely on any technical extensions and give your employer a written document that states you were injured at work, the date of the accident and the fact that you are claiming workers' compensation benefits. The form near the end of the pamphlet can be used to satisfy this requirement.
· The final time limitation involves the formal filing of an Application for Hearing with the Kansas Division of Workers' Compensation. This must be filed within three (3) years of your accident or within two (2) years of your last receipt of a benefit from workers' compensation, whichever is later.

1.7 Does it matter if the accident was really my own fault?

In general, workers' compensation does not concern itself with "fault." It does not matter whether the injury was your fault, your employer's fault, a co-employee's fault, or no one's fault. If the accident/injury occurred because you failed to use a safety device that was required by the employer, that could be a defense to your claim. If the employer did not require use of the safety device or did not enforce use of the safety device, the defense would fail and you would receive full benefits.

1.9 My employer told me he doesn't have insurance, now what?

If your employer does not have insurance or other ways to pay benefits, the State Workers' Compensation Fund can be responsible for benefits related to your injuries.

1.11 I heard that workers' compensation benefits are not too good, so if I want to sue someone, can I?

Generally speaking, for injuries that happen on-the-job, workers' compensation is the only remedy available to the worker. However, if your injury is caused by someone other than your employer or a co-employee, you may have another lawsuit. Also, if your injuries are caused by a defective object, you may have a lawsuit against the manufacturer and recover full benefits.

1.13 I only worked for this employer for two days, and I do not want to work there anymore, am I covered?

All injuries that happen are covered, and it does not matter how long you were employed before the injury occurred. It also does not matter whether you continue to work for the employer or where the accident occurred.

1.15 The company where I worked and got hurt went out of business, now what?

It does not matter if the employer went out of business after your injury occurred. The insurance carrier who used to insure your old employer will have to pay the claim. Again, if the employer did not have insurance coverage, there are other sources of payment. Also, if the insurance company went out of business, you are still protected.

1.17 What are the first things I should do if I am hurt?

The steps you should take when injured on the job are:
· a) Let your employer know as quickly as possible that you think you have been hurt, and request that your employer notify his insurance company; and,
· b) Seek medical attention being certain to tell the doctor how you got hurt. Ordinarily, you need to discuss the choice of doctor with your employer.
· While the giving of notice to your union steward or shop foreman is a good idea, it does not qualify as giving notice to the employer.

1.19 If my employer tells me I do not need to see a doctor, what do I do?

If you think you need to see a doctor immediately, go to the local emergency room or your primary care physician. In Kansas the employer and/or their insurance carrier have the right to choose and authorize medical treatment. If they refuse medical care there is a procedure called a preliminary hearing that you can access in an effort to get a Court Order for medical care, and an off work check if appropriate. It takes approximately 5-8 weeks from when you start this process until you actually have the hearing. In the meantime, you should obtain whatever medical treatment is reasonable and necessary and keep your employer updated on your medical condition and treatment.

1.21 My employer sent me to a doctor. He does not seem to be helping me and we do not get along. Can I do anything?

The law requires your employer to provide all "reasonable and appropriate" medical care to cure and relieve your injuries. If they are not doing this you can access the preliminary hearing process described in the previous answer. If you can prove your case at the preliminary hearing, the Judge can Order your employer to provide a list of three (3) different doctors from which you can chose to obtain your treatment. In certain circumstances the Judge can Order a doctor of your choosing to be the authorized treater.
· You also have the right to what is called "unauthorized medical." You have the right to spend $500.00 at a doctor or chiropractor of your choice. If there is a dispute over medical treatment, this benefit can be most strategically used to obtain a medical opinion that would provide expert answers to such questions as diagnosis, causation, treatment recommendations and whether a person is able to work, and if so under what if any temporary restrictions.

1.23 Is chiropractic care covered by workers' compensation?

Yes. It is covered if your employer or their insurance carrier authorizes it. If they won't authorize it then you can spend $500.00 of your "unauthorized medical" which is described in the previous paragraph. If you can prove that chiropractic care is reasonable and necessary to cure or relieve your condition, you might be able to get a Court Order to continue with your chiropractor.

1.25 What should I do when I see the doctor?

It is very important to tell the doctor exactly how you injured yourself while at work, and tell him about every body part which you injured in your accident. If the doctor ignores treatment of certain body parts that you complain about, see another doctor.

1.27 My doctor has given me a "rating," what does that mean?

A rating is a percentage calculation by your doctor of how much a certain body part is impaired. It is generally given when your doctor does not expect your medical condition to significantly get better or worse in the foreseeable future.
· A rating absolutely does not determine how much money you get paid. What seems like a low rating may translate into significant compensation or other benefits. It depends on the body parts involved, the wage you were making when hurt, your education level, and other factors.

1.29 I have been "rated and released," can I ever have more medical treatment?

Yes. Many people need ongoing care to maintain their status quo, or to keep working.

1.31 My doctor won't see me because I have been rated, can I do anything?

Yes. Again, there are procedures for seeking and obtaining ongoing medical or chiropractic care.

1.33 What are the main benefits under workers' compensation?

There are three (3) basic benefits for every workers? compensation claim. They are:
· a) The right to chiropractic or medical treatment;
· b) The right to payment for disabilities; and,
· c) The right to continuously review your claim over time to fit the circumstances.

1.35 What are my medical rights?

So long as it is done properly, you are entitled to medical treatment "for life, forever, for everything" that is a natural result of the initial injury.

1.35 Does the law provide for job placement or retraining if I am unable to return to my former job?

For accidents occurring before July 1, 1993, job placement or retraining may be available. For accidents occurring on or after July 1, 1993, this benefit has been eliminated. Services are available only on a purely voluntary basis.

1.37 When and what kind of payment can I expect?

There are two main forms of payment in a workers' compensation claim. These are temporary total disability and permanent partial disability.
· a) Temporary total disability is paid at a fixed rate based on your wage. It is paid while you are recovering from your injury and completely unable to work, or if you have temporary restrictions that the employer will not accommodate.
· b) Permanent partial disability is paid based on the permanent injury to your body or how that permanent injury affects your ability to work.

1.41 I have heard that my wage is important, is it?

It is. There are generally two (2) types of money benefits under workers' compensation. The first is called "temporary total disability" which is paid to an injured worker when they are off work because of their injury and still receiving treatment. The second is called "permanent partial disability" which is paid on a weekly basis at the end of your case assuming the injury results in permanent impairment or disability. The amount for both of these checks is the same. The weekly amount is 2/3's of your average weekly wage not to exceed a state maximum which is currently $432.00. Thus, the higher your average weekly wage, the higher your weekly checks. The law directs how your average weekly wage should be calculated. There are different formulas that apply depending upon how you were paid.

1.43 I have been hired out of the union hall, what fringe benefits apply for workers' compensation?

Benefits that are paid by your employer, and on your behalf count. Thus, health and welfare and pension would apply. Benefits such as apprenticeship and checkoff do not apply.

1.45 What is the right to review?

When your claim is initially decided, it is based on the medical and employment information currently available. Payments can be changed to reflect changes in your situation. For example, your medical condition might worsen, or a job that you thought you could perform may not work out.

1.47 I received mail from the Division of Workers' Compensation about my accident. What is it?

This means that your employer reported your injury to the Division of Workers' Compensation as required by law. The Division has mailed you a small information page, and a Form 15, which is a written claim for compensation.
· A sample of Claim Form 15 from the Division of Workers' Compensation is at the end of this pamphlet. As noted, it is extremely simple, but again, extremely important.

1.49 Two hundred days (200) have passed, and I did not file claim, can I do anything?

There are ways that the 200 days can be extended. Generally, the 200 days dates from the time of accident, but can also date from when you were last paid compensation or treated by an authorized doctor. Furthermore, sometimes you can file up until a year later. These rules are complicated, so you need to get sound advice.

1.51 Are there other time limits?

There are two other time limits. One is for telling your employer of the accident, and that should be done within ten (10) days. The second is the filing of an Application for Hearing with the Director within three (3) years. Again, these rules are sometimes complicated.

1.53 I hurt myself before in the same location, how does that affect me?

If a worker aggravates, accelerates or intensifies a pre-existing condition from a work related accident, it is compensable. The injured worker is entitled to 100% of the medical treatment needed to cure and relieve the injury and is entitled to a full temporary total disability check if the worker is unable to work because of the aggravation. In regards to permanent partial disability, the injured worker is not paid for any percentage of permanent impairment that pre-existed the accident. Aggravations of pre-existing conditions can be complex and you may want to seek the advice of a qualified attorney.

1.55 My doctor told me my condition was caused by wear and tear from my work over the years. Should I file a claim?

You do not have to have a sudden, direct injury for it to qualify as a workers' compensation injury. Repetitive use syndromes, or "overuse" syndromes are also included in the Workers' Compensation Act, even if the injury develops over time. This is a very complex area, and again, quality advice is very important.

1.57 What if they keep saying they will pay me and pay my bills, but it doesn't get done?

There is a provision called a Preliminary Hearing where you can get your case in front of an Administrative Law Judge to order them to pay. This is sometimes called an emergency hearing and is a very short, simple hearing.

1.59 Can I use the grievance procedure to get workers' compensation benefits?

In rare cases, the grievance procedure has been used to obtain benefits for injured workers. You should not confuse this with workers' compensation benefits. Workers' compensation benefits are only awarded through the Division of Workers' Compensation which is separate from benefits that you may receive pursuant to your bargaining agreement.

1.61 If my employer terminates me for filing a workers' compensation claim, what are my remedies?

The laws of the State of Kansas protect all employees from termination for filing a workers' compensation claim. This protection is in addition to any protection that the union or your bargaining agreement may provide. There are specific time limitations on your grievance procedure as well as a lawsuit. If you feel you have been wrongfully terminated, you should immediately contact a lawyer.

1.63 What if I get fired or mistreated after I return to work, or after I file a workers' compensation claim?

The law protects you from being mistreated or fired for filing or proceeding with a workers' compensation claim. If you are mistreated, this is a complicated area of law, and you should do everything you can to make a record of actions taken against you, including having witnesses to support you.

1.65 My employer makes me work beyond my limitations. What can I do?

Make sure that you have a good (hopefully written) record of informing your employer of your restrictions. By working beyond your doctor's limitations, you run the risk of further injury to yourself. The money you are making is probably not worth that risk, and you may be forced to quit your job. If you give your employer the chance to work you within your restrictions, and then you quit, you can draw unemployment.

1.67 What is a medical management process?

These individuals usually have a nursing background and are hired by the insurance carrier to supposedly act as a go-between for you and your doctor. They are supposed to insure that your medical needs are being satisfied and that you understand the doctor's opinions. Sometimes, these individuals are really acting as investigators for the insurance carrier. If you suspect that your medical management person does not have your best interest at heart, you can request that they be removed from your case. You have an absolute right to see your doctor without the medical management person present.

1.69 Are they spying on me?

Insurance carriers are known to hire private investigators to videotape your activities in your home or in public places. They are legally permitted to videotape you, and the problem is that the pictures are often misleading.

1.71 Should I lump sum settle my case?

The phrase "lump sum settlement" is a term of art. It basically means that you are taking a certain sum of money and giving up all rights under workers' compensation including but not limited to present and future medical care and your right to review and modify your benefits in the future if your condition should naturally worsen. Whether it would be in your best interest to settle on a lump sum basis depends entirely upon the circumstances of your accident and injuries.

1.73 When should I contact an attorney?

This is a difficult question. The law firm of McCullough, Wareheim & LaBunker would be happy to provide you a free legal consultation. We have three goals to accomplish when initially meeting with an injured worker. We first educate the client on their rights and responsibilities. We evaluate whether the client is currently receiving proper benefits and answer any questions. Finally, we explain to the client whether we believe legal representation is necessary and if so we explain the attorney fees and expenses that would be involved. A work related injury can have a major impact on the worker and his or her family. Knowing your rights and making informed decisions is a very logical course of action.

1.75 How much do attorneys cost?

Attorneys fees are regulated by state law and by the Division of Workers' Compensation. The law allows attorneys to charge up to 25% of all monetary compensation that is not paid voluntarily by the employer or their insurance company. Different rules apply when the employer made a written offer of settlement before the attorney is hired. In that case, the attorney can charge up to 50% of the increase obtained, not to exceed 25% of the entire settlement. All attorney fees must be approved by the Administrative Law Judge assigned to the case.

1.77 I have read this FAQ and have additional questions or need clarification about certain things. What should I do?

This FAQ provides only general information regarding workers' compensation in Kansas. Most work related injuries involve something unique. Most workers are not familiar with their rights and responsibilities under workers' compensation as they rarely are involved in the system. If you would like a general education and an individual evaluation of your case, the law firm of McCullough, Wareheim & LaBunker is eager to provide you a free consultation.