Crime & Courts

July 5, 2011

New worker's comp law in Kansas as yet unclear

Recent changes to worker's compensation laws in Kansas already have lawyers arguing over who will benefit more, the companies or the employees.

Recent changes to worker's compensation laws in Kansas already have lawyers arguing over who will benefit more, the companies or the employees.

Employees stand to receive more benefits for some serious injuries. To do that, however, they face higher burdens of proof that their injuries are job-related and shorter time frames for reporting what hurt them.

Companies will benefit, others say, by not having to paying thousands of dollars for injuries that really didn't result from job performance.

Kansas is one of four states to recently pass similar changes in worker's compensation laws.

"There's a wave of these making their way across the country," said Larry Karns, director of worker's compensation for the Kansas Department of Labor.

Karns said the new law was written because of past appeals court interpretations that had upset both employers and employees.

But the revisions are just as complicated and experienced attorneys on both sides expect more showdowns in the state's appeals courts.

"There's a lot of things in this law that are so vague it's impossible to determine them before we go to court," said Mike Snider, a Wichita lawyer who represents injured employees.

Said Eric Kuhn, an attorney for several Wichita companies:

"We've got a big old pile of changes, and we think we all know what they mean, but it's going to take a while before they make their way through the process and we really know what they mean."

More benefits, hurdles

Where does that leave the employee, who is injured and doesn't have either a law degree or a medical degree?

The law provides more compensation for some serious job injuries — something that hadn't been increased in decades.

But it also provides tighter restrictions that may prohibit many from receiving those benefits.

For example, the law cuts the time an employee must report the injury to an employer from 2 1/2 months to 20 days after you first see a doctor.

"It creates a trap for the unwary," Snider said.

Snider used carpal tunnel syndrome as an example.

"I've had a lot of people tell me it first wakes them up in the middle of the night with numbness and tingling," he said. "That's not something they're going to associate with work."

Frequently, Snider said, people will go to a family doctor, who refers them to a neurologist, who then orders tests. It can take weeks to diagnose the injury.

"Because the law says if you don't report an on-the-job injury within 20 days after seeking medical treatment, you're too late," Snider said.

Karns said in some cases the employee had only 10 days to report under the old law but could extend that to 75 or even 200 days.

"We extended the time for the employees from 10 days and the employer doesn't have to wait 200 days to find out about an injury," Karns said.

Kuhn expects few cases to be tossed out because of missed deadlines.

"It's a big change," Kuhn said. "But in all practicality you won't see a lot of those. Because if someone gets hurt, you pretty much know it's job related."

If worker's comp is denied because of untimely notice, Snider said, and a doctor eventually determines the injury is work-related, it could be refused by personal health insurance, too.

"That insurance company will say, 'We don't cover an injury that should be covered under worker's comp,' " Snider said. "So guess who gets stuck with the bill? You do."

'Prevailing factors'

Deciding what is job-related could be the biggest challenge facing appeals courts.

The new law allows for doctors to determine the "prevailing factor" causing an injury — like a pre-existing condition.

Snider again cited the carpal tunnel example.

A pregnant woman, he said, could be denied benefits because she is more susceptible to conditions such as gestational diabetes, and people with diabetes can be more susceptible to carpal tunnel syndrome.

Under the new law, the pregnancy could be ruled the prevailing condition, and she could be denied benefits, Snider said.

Under the new law, the job has to be the main cause of the injury.

Kuhn said he's seen employers pay $50,000 for a total knee replacement from injuries resulting from long-term problems.

It shifts the cost for those types of injuries from the worker's comp system back to the employees' personal insurance, "where it probably should have been all along," Kuhn said.

"The cases I see a lot are somebody who has a bad knee, and they knew they had a bad knee, and he hurt it at work," Kuhn said. "The thinking is now is why is it a worker's comp issue, when the primary cause is somewhere else?"

Who decides what the primary cause is?

Under the new law, the employer's worker's comp insurance carrier can designate which doctor the employee goes to.

That's always been the case, Karns said. But Snider said that becomes more important with the new provision on proving prevailing factors.

"You hope the medical doctor the insurance company has picked for you will say this latest (work) injury is the prevailing factor causing your disability," Snider said.

That's an aspect of the law that may concern doctors.

"It sounds to me like another example of siloing health care," said Joe Davison, a Wichita family medicine physician.

Davison said a doctor designated for a worker's comp case doesn't have the patient history and relationship of a family practitioner.

"Those doctors may not talk to each other," Davison said. "You're just asking for increased costs and more problems. It can't be very efficient."

Kuhn said many serious work injuries require specialists. Family doctors must refer their patients to those same specialists.

"We're just skipping over that step," Kuhn said. "It's in the employers' best interest to have the best doctors look at these people and get their employees back to work."

The new law also will pay $500 for an employee to seek a second opinion, Kuhn said.

Increased litigation

The new law may also mean more litigation in the form of deposition testimony, obtaining medical opinions and reviewing health records.

"From the employer's side, it will cause us to be much more diligent as to trying to uncover any pre-existing conditions," Kuhn said.

The cost for that will be about $1,500 to $2,000, compared to much larger medical costs. That saves employers money, Kuhn said.

But companies may be able to afford that $2,000 more readily than an injured employee, Snider said.

"They're putting a more onerous burden on injured workers to prove their case," Snider said. "It's not less government. It's more government for the working guy."

Kuhn said he expects definitions of the laws to be challenged. But he doesn't expect employers to use the new restrictions to take advantage of their employees.

"The employers, they're not out to screw people — they take care of their employees," Kuhn said. "At least, my clients do.

"They want to get them taken care of and get them back to work."

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