When a person is hurt at work, there is an important first step that the worker should immediately take to comply with  Kansas law.  This is the notice requirement, which provides that you must give your employer notice of the injury.  This notice should be given to a supervisor.  It can be a verbal notice.  Whatever the nature of the injury, it should be reported.   Here are the required notice timelines for injuries after May 15, 2011:  (1)  30 calendar days from the date of accident or the date of injury by repetitive trauma; (2)  if the employee is working for the employer against whom benefits are being sought and such employee seeks medical treatment for any injury by accident or repetitive trauma, 20 calendar days from the date that the medical treatment is sought; and (3) if the employee no longer works for the employer against whom benefits are being sought, 20 calendar days after the employee’s actual last day of work for the employer.

Many workers are reluctant to notify their employer of a work injury.  The worker may be afraid of some sort of adverse action by the employer.  The worker may also believe that the injury is so minor that nothing should be said.  Finally, some employees believe they should “tough it out” and not report work injuries.

It is against the law for an employer to retaliate against a worker who sustains a work injury and then reports it.  Second, even if the injury seems minor at the outset, it should still be reported.  Often injuries, especially so-called “soft tissue” injuries, do not immediately manifest themselves as being a serious condition.  Sometimes, the required 10 days to give notice will have come and gone before the injured worker decides to seek medical treatment.   Therefore, there is one rule that should govern:  REPORT ANY INJURY NO MATTER HOW SLIGHT.

Finally, a brief comment about medical treatment.  It is the responsibility of the employer to provide medical treatment to an injured worker.  Thus, the employer gets to select the physician.  On the other hand, if the worker gives the required notice, and then the employer does nothing, the worker can select his or her own physician to provide treatment.  The bills become the responsibility of the employer.  This, in and of itself, is a good reason to remember to give immediate notice of any injury to the employer.  Even if it is minor, give the notice, and get to a doctor to have the injury checked out by a professional.

PLEASE NOTE THE FOLLOWING RECENT CHANGES TO THE NOTICE PROVISIONS:

The notice rules discussed above apply to injuries occurring on or after May 15, 2011 and until April 24, 2013.  Prior to May 15, 2011, the law provided different notice requirement.  In 2011, the workers compensation law was revised to include the requirements shown above .  On April 25, 2013, another revision to the law went into effect for injuries occurring on or after that date.  The Legislature again amended the notice provisions of the Workers Compensation Act during the 2013 session.  The new notice provisions make it necessary to give notice within 10 days of the injury if the employee is no longer employed by the respondent employer and 20 days of the injury if still employed by the respondent employer or within 20 days of first seeing an unauthorized physician for the injury.

You can contact Paul’s office at 785.273.1353 or complete the contact us form or visit his website for more legal information.

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.