For cases where an injury occurred before May 15, 2011, a Kansas Supreme Court case made an important change for workers seeking work disability.\u00a0 Injured workers with so-called \u201cwhole body\u201d 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.\u00a0\u00a0 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.\u00a0 A worker\u2019s wage loss percentage was averaged with the worker\u2019s \u201ctask loss\u201d percentage to determine the work disability\u00a0percentage.<\/p>\n
Case law interpreting that statute added the \u201cgood faith\u201d requirement, which essentially made the injured worker show that he or she had made a \u201cgood faith\u201d effort to find other work after the layoff.\u00a0 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\u2019s so-called residual wage earning ability.\u00a0 This was usually accomplished by hiring a vocational expert to review the worker\u2019s work history and formulate an opinion as to what the injured worker could still earn, factoring in restrictions assigned by a\u00a0physician.<\/p>\n
The Kansas Supreme Court, in the case of\u00a0 Bergstrom v. Spears Manufacturing,<\/em> no. 99,369, threw out this good faith requirement, stating\u00a0that<\/p>\n \u201cK.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\u2019s liability. Foulk v. Colonial Terrace<\/em>, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied<\/em> 257 Kan. 1091 (1995), Copeland v. Johnson Group, Inc.<\/em>, 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\u00a0disapproved.\u201d<\/p>\n 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\u00a0applies.<\/p>\n In response to this and other workers compensation court decisions, the Kansas Legislature changed several rules about what is required to prove work disability.\u00a0\u00a0 Those changes went into effect on May 15, 2011.\u00a0 Therefore, Kansas workers injured after that date must follow these new rules.\u00a0 The legislature essentially overruled the Bergstrom<\/em> ruling and reinstated several of the former work disability requirements.\u00a0\u00a0 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, <\/em>it would have.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" For cases where an injury occurred before May 15, 2011, a Kansas Supreme Court case made an important change for workers seeking work disability.\u00a0 Injured workers with so-called \u201cwhole body\u201d 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 […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-16","post","type-post","status-publish","format-standard","hentry","category-work-comp"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.paulpost.com\/blog\/wp-json\/wp\/v2\/posts\/16","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.paulpost.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.paulpost.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.paulpost.com\/blog\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/www.paulpost.com\/blog\/wp-json\/wp\/v2\/comments?post=16"}],"version-history":[{"count":8,"href":"http:\/\/www.paulpost.com\/blog\/wp-json\/wp\/v2\/posts\/16\/revisions"}],"predecessor-version":[{"id":108,"href":"http:\/\/www.paulpost.com\/blog\/wp-json\/wp\/v2\/posts\/16\/revisions\/108"}],"wp:attachment":[{"href":"http:\/\/www.paulpost.com\/blog\/wp-json\/wp\/v2\/media?parent=16"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.paulpost.com\/blog\/wp-json\/wp\/v2\/categories?post=16"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.paulpost.com\/blog\/wp-json\/wp\/v2\/tags?post=16"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}