Kansas lawmakers have passed severe limits on workers' compensation benefits, writes Jess Cooper. They can start to fix the problem in 2023. (Sherman Smith/Kansas Reflector)
The Kansas Reflector welcomes opinion pieces from writers who share our goal of widening the conversation about how public policies affect the day-to-day lives of people throughout our state. Jeff Cooper is an attorney with the Cooper Law Office in Topeka and is chair of the workers’ compensation committee of the Kansas Trial Lawyers Association.
Workers’ compensation is designed to provide protection for workers injured on the job. Kansas workers and their families have less protection than most in America. The great irony is that Kansas was one of the first states to enact a workers’ compensation system in 1911. We have gone from one of the first to one of the worst in a century.
There are two specific areas the Kansas Legislature and the governor need to focus on in 2023.
Kansas is one of only a few states that limits or caps benefits to permanently and totally disabled workers.
The cap is $155,000 for the rest of that worker’s life, regardless of their age, family or severity of injury. Workers’ compensation is the only remedy an injured worker or their family has against their employer. Workers in Kansas cannot sue their employer even if the employer is grossly negligent in causing the injury.
Fortunately, the number of workers who are hurt so badly they can never work again is very small. However, that small number of employees and their families are severely and adversely affected. Imagine a 32-year-old Kansan, with a family to support, limited to $155,000 for the rest of their life.
The current cap has been in place since 2011. Even in times of inflation, there is no mechanism in the law for adjustment.
Most state workers compensation laws across the nation require payment of lifetime benefits for those workers so severely injured they can never work again. Of the few states that have caps, the cap in Kansas is currently the lowest in the nation. In fact, our state ranks at or near the bottom in many categories of benefits for injured workers.
Social Security is paid to retired workers after they have paid into the system for all their working years. In the year 2000, because of the aging population and increasing cost of living, the federal government created the “Senior Citizens Right to Work Act.” This change in the law allowed those Americans at full retirement age to take a job without reducing their Social Security benefits, as the monthly retirement payments often did not cover basic living expenses.
Under the current Kansas workers’ compensation laws, Kansans on Social Security do not receive the full benefit of the federal law.
If a working senior Kansan who collects Social Security retirement benefits is injured on the job, the current workers’ compensation law allows the employer or insurance company to deduct the amount the injured worker receives for Social Security against any workers’ compensation payments.
Workers’ compensation laws normally require the employer and insurance carrier to pay two-thirds of a worker’s current wages if the person is injured and not able to work temporarily. However, if this person is receiving Social Security retirement, those workers’ compensation benefits will be reduced or eliminated. Compensation normally payable due to an injury is either partially or fully eliminated because workers receive Social Security retirement that they have worked for and paid into their entire lives.
Keep in mind, the primary reason many Kansas seniors work part-time is they need the money to make ends meet. Their Social Security is not enough to live on.
But if senior citizens are injured on the job, not only can’t they earn additional income, but they aren’t entitled to any wage replacement due to the injury under current Kansas law. That law unfairly discriminates against workers who are receiving Social Security retirement without any justification.
We urge Kansans to contact their legislators and ask them to use their common sense and do the right thing.
Tell them to change the cap on permanent disability, fix the Social Security offset and protect Kansas workers and their families in 2023.
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THE OBLIGATION OF THE EMPLOYER TO PAY FOR PERSONAL HEALTH CONDITONS AFTER A WORK-RELATED INJURY.
Under the Kansas Workers Compensation Act (KWCA) the employer is generally responsible for all medical treatment prescribed by the authorized treating physician. The proposed medical treatment must be related to the work injury and be reasonable and necessary. The phrase “reasonable and necessary” has a very specific meaning under the KWCA. Not every proposed treatment is reasonable and necessary. The employer/ insurance carrier may not be responsible for an experimental treatment because it is not “reasonable” The employer would not be liable to purchase a new hot tub for the injured worker, when a membership at the YMCA would allow him to use their hot tub. The new hot tub would not be “necessary”.
What is reasonable and necessary is often an issue when the injured worker has a personal health condition that must be evaluated or treated for the work injury to be effectively treated. For example, a person may need to lose weight or stop smoking prior to surgery for a back injury. The person may need cardiac care or dental treatment before being cleared for a knee replacement.
Is the work compensation insurance carrier responsible for treatment of the personal health condition? The answer-many times- is yes. There is no requirement that medical treatment only benefits the work injuries and no other medical conditions.
In Trimble v. Goodyear Tire & Rubber Co., 2007 WL 1390703 (Kan. WCAB 2007), the claimant requested authorization of gastric bypass surgery. The claimant needed back surgery due to a work accident. However, the back surgery would not succeed unless the claimant lost substantial weight.
Respondent argued that the claimant’s obesity was a preexisting condition unrelated to the work accident. As such, they should not be responsible for the gastric surgery since this surgery would benefit his diabetes and weight problems as well as the back injury.
The Kansas Workers Compensation Appeal Board (Board) disagreed. Since the gastric bypass surgery is a reasonable and necessary medical treatment to cure or relieve the effects of claimant’s work injury, it does not matter that it will also benefit other co-morbid medical conditions. See also Radcliff v. Easyhome, Docket Number 1,057,822 (Kan. WCAB August, 2021) & Morris v. Creekstone Farms Premium Beef, 2011 WL 4011683 (Kan. WCAB 2011).
This same principal has been applied to testing and treatment of cardiac conditions. In Fisher v. Cessna Aircraft Co., 2007 WL 2586168 (Kan. WCAB 2007) the Board ordered the respondent to provide pre-surgery testing and treatment for a heart condition. The concurring opinion stated in part:
“ In Kansas, an employer takes an employee as it finds him. This claimant has a possible heart condition which puts him at risk for the procedures recommended by claimant’s treating physicians. The evaluation and treatment of that heart condition is compensable only because claimant is in need of treatment for the work-related injury.”
See also Horner v. U.S.D. No. 259 (Kan. WCAB 2009)
The same principal applies to purely palliative treatment. The Board has ruled that
the respondent is responsible for pain medications that are reasonable and necessary to cure or relieve the effects of a work injury. This is true even if the claimant was taking the same pain medications prior to the work accident for a personal health condition. See Harris v. Training & Enforcement Center of Hutchinson, 2020 WL 1140326 (Kan. WCAB 2020) & Helmer v. Sinclair Masonry, Inc., 2016 WL 5886184 (Kan. WCAB 2016).
If you need treatment for a personal health condition in order to “cure or relieve” the effects of a work accident don’t accept the work comp insurance carrier’s denial of authorization. We can help. Jan Fisher, McCullough, Wareheim & LaBunker.
Former Wichita hospital nurse Brian Wilhite, a veteran of the Kansas Army National Guard, says he contracted COVID-19 in 2020 while employed at Via Christi Health but has encountered a state law inhibiting his ability to claim workers’ compensation benefits tied to permanent disability. He said he nearly died after exposed to the virus and was unlikely to return to work as a nurse. (Tim Carpenter/Kansas Reflector)
WICHITA — Via Christi Health registered nurse Brian Wilhite interacted a couple times in August 2020 with what was thought to be a hospital patient with routine respiratory issues.
In fact, Wilhite’s patient was extraordinary and would dramatically change his life.
Wilhite wasn’t aware the patient had apparently slipped through the Wichita hospital’s coronavirus screening protocol. By the time it was confirmed the person had COVID-19, Wilhite believes the damage had been done. Wilhite eventually began to experience a tickle in his throat, fever and sweats. He tested positive for the virus. His medical condition nosedived while hospitalized with a ferocity that compelled doctors to conclude he was dying and a candidate for hospice.
His risky transfer to Integris Baptist Medical Center in Oklahoma City, which specializes in lung impairments, saved his life.
“I don’t remember going to ICU,” Wilhite said. “I was in a coma. I went into complete lung failure. I’ve got COVID brain. I’m a long-hauler.”
Wilhite, 50, is a Kansas Army National Guard veteran who served more than 20 years in uniform and deployed to Iraq. He worked as a security coordinator at Via Christi while in the military, but upon leaving the Kansas Guard followed a career dream of attending nursing school. He was hired as a nurse at Via Christi about five years before the pandemic turned the nation’s hospitals upside down.
He said doctors remained pessimistic that he could return to work as a nurse, and he’s inclined to believe protracted problems associated with COVID-19 made it more likely he was dealing with a permanent disability. He relies on portable oxygen and endures medication for back pain as a result of not being moved for long periods in the hospital. He is easily fatigued. Talking for long periods is a struggle. Sometimes his mind is clouded.
The legal challenge to be endured by Brian and Janet Wilhite, their Wichita attorney said, wasn’t of Via Christi’s making. It centered on a Kansas workers’ compensation law written prior to the pandemic. It could be interpreted to block claims for permanent disability among health workers such as Wilhite.
At issue is a plausible reading of Kansas statute that would deny compensation because COVID-19 wasn’t a site-specific malady, such as inhaling asbestos at a manufacturing plant. In terms of COVID-19, a person could catch the virus anywhere.
“The statute does not allow ‘diseases of ordinary life,'” said Wichita attorney Jonathan Voegeli. “All our front line workers are called heroes, but no one has heard they are not covering workers’ compensation cases. Morally, I think it’s reprehensible.”
He said the goal was to convince an administrative judge Wilhite’s case should be eligible for the Kansas workers’ compensation system, which was established a century ago to provide protection to workers injured doing their job in the normal course of business. The next step would be to secure permanent and total disability status for Wilhite to gain financial support and medical coverage, Voegeli said.
He said the case highlighted the reality that Kansas had the lowest payout for workplace disability in the United States. The financial cap in Kansas was set at $155,000. In Wilhite’s case, that would replace less than three years of his nursing salary.
The Kansas ceiling of $155,000 hasn’t been modified in a decade. The law doesn’t take into account inflation, a worker’s age, severity of injury, income, or type of work performed. The system precludes a person for filing a lawsuit to receive more compensation.
The National Academy of Social Insurance issued a report in October that indicated Kansas was among five states with a cap on workers’ compensation benefits for permanent disabilities. Colorado puts that upper limit at $213,000, while Mississippi stops at $235,000. Indiana is more generous at $390,000 and South Carolina settles at $451,000 — nearly three times what Kansas insurers would have to pay for the same level of disability.
Former Seaman school district paraprofessional Anita Miller enjoyed working with special-needs children attending elementary school. She got along well with teachers and administrators in the Topeka-area district. It was in this full-time job she loved that Miller injured her neck and joined the roster of people with total permanent disabilities.
She often lifted children while in awkward positions, but the result was different Sept. 29, 2017. She had hoisted a child from a wheelchair and felt burning pain on the left side of her neck. Holding the child in her lap only increased the agony.
“It just started burning,” Miller said. “The nerve pain was just intense. It felt like someone was screaming in my ear all day. By the time I got home, I was just dying.”
She worked off-and-on until 2019, before discomfort made it impossible to be a productive employee at Seaman schools.
She underwent spine surgery, a move intended to help her regain what she had given up. That included the job, working in the yard and walking three miles a day in the summer months. It didn’t resolve her pain. Still in her early 50s, Miller can putter around the house most mornings, but by afternoon she often must recline to alleviate the sensation. Sitting for more than 30 minutes or so can be very uncomfortable.
Miller’s experience provided her a front seat to the Kansas workers’ compensation system. An administrative judge declared her totally disabled, but Seaman’s insurance company appealed. The workers’ compensation appellate board affirmed the judge’s ruling. She was awarded the maximum benefit allowed in Kansas for lost income: $155,000.
She said she continued to struggle with a system that felt designed to give employers and their insurance companies an edge. It doesn’t seem fair that insurance companies have the legal authority to decide which doctor provides her medical care under workers’ compensation, she said. In addition, there’s nothing to prevent an insurance company representative from discussing her case with those physicians.
Medication can be helpful in dulling the pain, she said, but it hasn’t provided an answer. She’s request a special procedure to temporarily deaden a key nerve, but gaining approval through the workers’ compensation system has been a hassle.
“I think it’s ridiculous they take so long. I would say they slow everything down as much as possible hoping they’ll just give up. That claimants will quit fighting for medical treatments and lost income,” Miller said.
Mike Smith, a farm truck driver in Hodgeman County in southwest Kansas, was collecting Social Security after turning 67 but wanted to keep working until 75. That plan unraveled at 73 when he was seriously injured while stepping down from the cab of a Kenworth.
“I lost balance and fell,” he said. “I couldn’t get up.”
That blow to the head in 2018 left him with compromised vision. For one year, he collected weekly benefits through workers’ compensation as well as his Social Security retirement benefit. That’s when it was noticed Smith was in violation of a 2010 Kansas law requiring a dollar-for-dollar offset when an injured worker was simultaneously receiving Social Security and payments through workers’ compensation.
In short, Smith was overpaid about $32,000. The farm’s insurance company has been clawing back that money.
In 2000, because of the aging population and increasing cost of living, the federal government created the Senior Citizens Right to Work Act. This reform in federal law enabled Americans at full retirement age — such as Smith — to take a job without reducing their Social Security assistance.
However, the Kansas Legislature influenced the intent of that federal law a decade ago by imposing the offset.
Smith said would like the Legislature to repeal the setoff provision of workers’ compensation law. He said it unfairly discouraged aging Kansans from remaining in the labor force.
“The fact is, I owned my Social Security. Why did they take that away from me?” he said. “If I had the ability to work until I was 75 years old, they should have paid me until I was 75.”
Topeka, Kansas Attorney practicing in primarily in Workers' Compensation, Social Security Disability, Family Law & Personal Injury. Attorneys at McCullough, Wareheim & LaBunker, P.A. are dedicated to serving their clients in Kansas, including the cities of Wichita, Overland Park, Kansas City, Olathe, Topeka, Lawrence, Shawnee, Manhattan, Lenexa, Salina, Hutchinson, Leavenworth, Leawood, Dodge City, Garden City, Junction City, Emporia, Derby, Prairie Village, Liberal, Hays, Pittsburg and throughout the State of Kansas.
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