Workers Compensation
Note: The Workers’ Comp answers below pertains to the law as it existed prior to 5/15/2011. Please call our office with questions regarding new law changes.
Workers Comp Lawyer
Q. What is workers compensation?
A. The Kansas Workers Compensation Act may be characterized as a type of "no fault" law. The law allows a worker who sustains an injury in the work place to obtain compensation from his employer regardless of whether the worker was in any way at fault in causing the accident. Compensation can include payment of lost wages resulting from a job-related injury, payment of medical bills and related expenses, an amount of money for any permanent impairment resulting from the job-related injury, and in certain cases, compensation for what is known as "work disability" if the injured worker has sustained a loss of ability to earn comparable wages as a result of the job-related injury. If you are injured on the job, it is important that you inform your employer or supervisor of the fact of your injury immediately. If you wait more than ten days, it is possible that your claim will be completely lost due to this delay. It is also important that you give the employer a written notice of your intent to pursue a workers compensation claim. This notice must either be given to the employer personally, or sent by certified mail, return receipt requested so that you will have proof that the notice has been given. You should also immediately consult an attorney to determine what your rights are under the Kansas Workers Compensation Act.
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Q. What type of notice must I give my employer if I have been injured?
A. Kansas law requires that you give your employer notice of the fact that you have been injured within ten days of the date of your injury, unless the employer actually knows of the fact of the injury, or you are incapacitated and physically or mentally unable to give such notice. In some limited circumstances, this time period may be extended for up to seventy-five days from the date of injury, but it is better to give the employer notice of the injury as soon as it occurs. This notice may be given to your supervisor or any other person in the management of your employer whose regular duties would include receiving notice of work-related injuries. You simply need to tell your supervisor or other responsible person that you have been injured, the date of your injury, how you were injured, and which doctor you desire to see for medical treatment. If you employer actually knows of the injury, for example, your supervisor witnesses the injury or takes you to the hospital or to a doctor, then this constitutes actual notice of the fact of the injury. In any event, it is imperative that you give some form of notice to your employer through your supervisor or other responsible person in management in order to protect your rights. Obviously, the sooner you do this, the better.
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Q. How do I file a workers compensation claim?
A. The Kansas Workers Compensation Act requires that you give written notice to your employer of the fact of your claim within two-hundred days of the accident, or two-hundred days from when any compensation is last paid, whichever is later. Compensation can include furnishing medical treatment. In other words, if your employer is providing medical treatment with a doctor or hospital for your job related injury, then the time for filing your written claim with the employer extends to two-hundred days from the time that this treatment is last provided. However, it is best that you provide your employer with a written claim concerning your injury as soon as possible. Filling out an accident report is not the same as filing a written claim for workers compensation benefits. The Director of Workers Compensation ordinarily attempts to send to any injured workers a particular form that will be legally sufficient, which is known as a "Form 15." However, any type of writing which tells your employer that you intend to claim workers compensation benefits is sufficient, so long as you sign it and serve it on your employer within two-hundred days of the date of accident or from the last payment of any compensation, as discussed above. Service of the claim requires that you either personally give to your employer the written claim, or that you mail it to your employer's principal office by certified mail, return receipt. You must keep the return receipt once you receive it for proof that your claim has been timely made. If you retain the services of Paul D. Post, P.A. to represent you in any workers compensation claim, we will insure that a proper written claim is served upon your employer to insure that this statutory requirement is met.
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Q. What if my employer denies my claim?
A. Unfortunately, employers often attempt to deny responsibility for workers compensation claims, by insisting that the accident did not occur at work or that the employee is not really injured. When this occurs, it is necessary for the injured employee to file what is known as an Application for Hearing with the Kansas Director of Workers Compensation. This results in the claim being assigned a docket number and allows for an Administrative Law Judge to hear the case and order the employer to pay benefits that are due or to provide medical treatment. It should also be noted that the Application for Hearing must also be filed within three years from the date of the accident or within two years of the date of last payment of compensation, whichever is later. This application is separate from the written claim previously discussed. If you retain Paul D. Post, P.A. to handle your workers compensation claim, we will file this Application for Hearing for you in order to insure that the statutory requirements are met. We will also request a hearing for you if your employer is refusing to pay benefits to which you are entitled or to provide medical treatment.
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Q. May I choose my own doctor?
A. Unfortunately, the Kansas Workers Compensation Act allows the employer to designate who you will see for medical treatment. This doctor is known as "authorized." If the employer fails to designate an authorized physician, then you may choose a physician of your own, which the employer will then be required to pay. If you are dissatisfied with the physician chosen by the employer, then you may request a hearing for change of physician, at which time the Administrative Law Judge will require the employer to provide a list of three physicians, from which you may choose your treating physician. You are also entitled to treatment with an unauthorized physician of your own choosing, but the total amount which will be paid for this physician's services can not exceed $500.00. Even if you are dissatisfied with the physician chosen by the employer, you must continue to obtain medical treatment from this physician until the Administrative Law Judge orders otherwise. If you fail to cooperate with this physician, then your workers compensation claim may be denied completely.
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Q. What kind of benefits am I entitled to if I am unable to work because of my job-related injury?
A. If your treating physician takes you off work because of your job-related injury, then you are entitled to what is known as "temporary total disability benefits." These benefits are generally paid weekly, and are equal to two-thirds of your average salary or wage. The reason why this payment is less than your regular salary is that you do not have to pay taxes on this money so there will be no withholding from the amount which you receive. This money will continue to be paid to you until your treating physician releases you to return to work. You may also be entitled to what is known as "temporary partial disability benefits" if you are able to work some of the time, but can not work your regular hours, as determined by your doctor. You would then be entitled to the difference between what you are actually earning, and what you were earning prior to the injury, up to the amount of two-thirds of your regular pay.
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Q. Can my employer terminate me for filing a workers compensation claim?
A. Under Kansas law, it is illegal for an employer to terminate you or to take any adverse action against you if you file a workers compensation claim, seek medical treatment, or exercise any of your rights under the Kansas Workers Compensation Act.
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Q. Who pays my workers compensation benefits?
A. Under Kansas law, most employers operating within the state must have workers compensation insurance. As such, the benefits which you actually receive will be paid, in most cases, by an insurance company, rather than your employer. Certain larger employers within the state, as well as the state of Kansas, itself, are what is known as "self insured" employers. These employers are not required to have workers compensation insurance, but are required to pay the same benefits, themselves.
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Q. What if my injury prevents me from returning to work?
A. In certain types of injuries, notably head, neck, and back injuries, the employee may be entitled to what is known as "work disability." In those cases, if the employee can not return back to work, or if the employee returns to work but the pay is less than ninety percent of the pre-injury pay, then the employee might be entitled to work disability. This would be compensation which would pay the employee for the loss of ability to earn comparable wages in the future as a result of the work-related injury.
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Q. What other benefits am I entitled to?
A. Unless the injury is minor, most injuries will result in some type of permanent impairment or disability. If this happens, then the employee is entitled to payment for this impairment or disability. The disability is determined by the treating physician and is expressed in terms of a percentage using the American Medical Association Guides to Permanent Impairment Rating, Fourth Edition. A formula set forth in the Kansas Workers Compensation Act is then used to determine the amount of compensation to which the worker is entitled. This formula includes the percentage of disability or impairment found by the doctor, the worker's average weekly wage, and the number of weeks to which the employee is entitled to benefits. If the injury involves the head, neck or back, then the employee is entitled to 415 weeks of compensation. If the injury involves some other part of the body, then the total number of weeks will be less, according to which part of the body is injured. If the employee is dissatisfied with the impairment or disability rating given by the treating physician, often times a second opinion will be obtained from another physician. In any event, correct calculations under the formula prescribed by the Kansas Workers Compensation Act are somewhat complex, and it is best to consult an attorney to determine precisely what compensation you are entitled to under this formula.
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Q. Won't it cost me to hire an attorney?
A. Under Kansas law, attorneys in workers compensation cases are paid on a contingent fee basis, equal to 25 per cent of any amounts obtained from the employer. No "up front" money or retainer is required to hire any attorney.
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Contact the Law Office of Paul D. Post now for a Free Workers Compensation Consultation or call us at 785-273-1353 in Topeka or 800-347-1353. We can help you with all your questions and concerns.
