For cases where an injury occurred before May 15, 2011, a Kansas Supreme Court case made an important change for workers seeking work disability. Injured workers with so-called “whole body” injuries (head, neck, back) who subsequently lost their employment have been able to claim work disability, which is usually higher than the functional impairment or disability caused by the injury, itself. The Kansas Legislature has tinkered with work disability over the years, with the last major change being in 1993, when a two-pronged test was established. A worker’s wage loss percentage was averaged with the worker’s “task loss” percentage to determine the work disability percentage.
Case law interpreting that statute added the “good faith” requirement, which essentially made the injured worker show that he or she had made a “good faith” effort to find other work after the layoff. This judge-made rule also mandated that if this good faith attempt to find employment was not shown by the worker, then a wage would be imputed based upon the worker’s so-called residual wage earning ability. This was usually accomplished by hiring a vocational expert to review the worker’s work history and formulate an opinion as to what the injured worker could still earn, factoring in restrictions assigned by a physician.
The Kansas Supreme Court, in the case of Bergstrom v. Spears Manufacturing, no. 99,369, threw out this good faith requirement, stating that
“K.S.A. 44-510e(a) contains no requirement that an injured worker make a good-faith effort to seek postinjury employment to mitigate the employer’s liability. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 320, 944 P.2d 179 (1997), and all subsequent cases that have imposed a good-faith effort requirement on injured workers are disapproved.”
Under the holding of this case, all that is required is that the injured worker show that he or she is earning less than 90 per cent of pre-injury wage, and if that is the situation, work disability applies.
In response to this and other workers compensation court decisions, the Kansas Legislature changed several rules about what is required to prove work disability. Those changes went into effect on May 15, 2011. Therefore, Kansas workers injured after that date must follow these new rules. The legislature essentially overruled the Bergstrom ruling and reinstated several of the former work disability requirements. For example, wage loss caused by termination or voluntary resignation will not result in work disability for accidents after May 15, 2011, whereas prior to that time, under Bergstrom, it would have.