Session Law

Identifying Information:L. 2002 ch. 122
Other Identifying Information:2002 House Bill 2729
Tax Type:Other
Brief Description:An Act concerning the workers compensation act; amending K.S.A. 44-510b, 44-510k, 44- 523, 44-542a, 44-550b and 44-557a and K.S.A. 2001 Supp. 44-508 and repealing the existing sections.
Keywords:


Body:

CHAPTER 122

HOUSE BILL No. 2729


An Act concerning the workers compensation act; amending K.S.A. 44-510b, 44-510k, 44-

523, 44-542a, 44-550b and 44-557a and K.S.A. 2001 Supp. 44-508 and repealing the


existing sections.


Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 2001 Supp. 44-508 is hereby amended to read as

follows: 44-508. As used in the workers compensation act:

(a) ``Employer'' includes: (1) Any person or body of persons, corpo-

rate or unincorporate, and the legal representative of a deceased em-

ployer or the receiver or trustee of a person, corporation, association or

partnership; (2) the state or any department, agency or authority of the

state, any city, county, school district or other political subdivision or

municipality or public corporation and any instrumentality thereof; and

(3) for the purposes of community service work, the entity for which the

community service work is being performed and the governmental agency

which assigned the community service work, if any, if either such entity

or such governmental agency has filed a written statement of election

with the director to accept the provisions under the workers compensa-

tion act for persons performing community service work and in such case

such entity and such governmental agency shall be deemed to be the joint

employer of the person performing the community service work and both

shall have the rights, liabilities and immunities provided under the work-

ers compensation act for an employer with regard to the community serv-

ice work, except that the liability for providing benefits shall be imposed

only on the party which filed such election with the director, or on both

if both parties have filed such election with the director; for purposes of

community service work, ``governmental agency'' shall not include any

court or any officer or employee thereof and any case where there is

deemed to be a ``joint employer'' shall not be construed to be a case of

dual or multiple employment.

(b) ``Workman'' or ``employee'' or ``worker'' means any person who

has entered into the employment of or works under any contract of serv-

ice or apprenticeship with an employer. Such terms shall include but not

be limited to: Executive officers of corporations; professional athletes;

persons serving on a volunteer basis as duly authorized law enforcement

officers, attendants, as defined in subsection (d) of K.S.A. 65-6112 and

amendments thereto, drivers of ambulances as defined in subsection (b)

of K.S.A. 65-6112, and amendments thereto, firefighters, but only to the

extent and during such periods as they are so serving in such capacities;

persons employed by educational, religious and charitable organizations,

but only to the extent and during the periods that they are paid wages by

such organizations; persons in the service of the state, or any department,

agency or authority of the state, any city, school district, or other political

subdivision or municipality or public corporation and any instrumentality

thereof, under any contract of service, express or implied, and every of-

ficial or officer thereof, whether elected or appointed, while performing

official duties; persons in the service of the state as volunteer members

of the Kansas department of civil air patrol, but only to the extent and

during such periods as they are officially engaged in the performance of

functions specified in K.S.A. 48-3302 and amendments thereto; volun-

teers in any employment, if the employer has filed an election to extend

coverage to such volunteers; minors, whether such minors are legally or

illegally employed; and persons performing community service work, but

only to the extent and during such periods as they are performing com-

munity service work and if an election has been filed an election to extend

coverage to such persons. Any reference to an employee who has been

injured shall, where the employee is dead, include a reference to the

employee's dependents, to the employee's legal representatives, or, if the

employee is a minor or an incapacitated person, to the employee's guard-

ian or conservator. Unless there is a valid election in effect which has

been filed as provided in K.S.A. 44-542a and amendments thereto, such

terms shall not include individual employers, limited or general liability

company members, partners or self-employed persons.

(c) (1) ``Dependents'' means such members of the employee's family

as were wholly or in part dependent upon the employee at the time of

the accident.

(2) ``Members of a family'' means only surviving legal spouse and

children; or if no surviving legal spouse or children, then parents or grand-

parents; or if no parents or grandparents, then grandchildren; or if no

grandchildren, then brothers and sisters. In the meaning of this section,

parents include stepparents, children include stepchildren, grandchildren

include stepgrandchildren, brothers and sisters include stepbrothers and

stepsisters, and children and parents include that relation by legal adop-

tion. In the meaning of this section, a surviving spouse shall not be re-

garded as a dependent of a deceased employee or as a member of the

family, if the surviving spouse shall have for more than six months willfully

or voluntarily deserted or abandoned the employee prior to the date of

the employee's death.

(3) ``Wholly dependent child or children'' means:

(A) A birth child or adopted child of the employee except such a child

whose relationship to the employee has been severed by adoption;

(B) a stepchild of the employee who lives in the employee's house-

hold;

(C) any other child who is actually dependent in whole or in part on

the employee and who is related to the employee by marriage or consan-

guinity; or

(D) any child as defined in subsections (3)(A), (3)(B) or (3)(C) who

is less than 23 years of age and who is not physically or mentally capable

of earning wages in any type of substantial and gainful employment or

who is a full-time student attending an accredited institution of higher

education or vocational education.

(d) ``Accident'' means an undesigned, sudden and unexpected event

or events, usually of an afflictive or unfortunate nature and often, but not

necessarily, accompanied by a manifestation of force. The elements of an

accident, as stated herein, are not to be construed in a strict and literal

sense, but in a manner designed to effectuate the purpose of the workers

compensation act that the employer bear the expense of accidental injury

to a worker caused by the employment.

(e) ``Personal injury'' and ``injury'' mean any lesion or change in the

physical structure of the body, causing damage or harm thereto, so that

it gives way under the stress of the worker's usual labor. It is not essential

that such lesion or change be of such character as to present external or

visible signs of its existence. An injury shall not be deemed to have been

directly caused by the employment where it is shown that the employee

suffers disability as a result of the natural aging process or by the normal

activities of day-to-day living.

(f) The words ``arising out of and in the course of employment'' as

used in the workers compensation act shall not be construed to include

injuries to the employee occurring while the employee is on the way to

assume the duties of employment or after leaving such duties, the prox-

imate cause of which injury is not the employer's negligence. An em-

ployee shall not be construed as being on the way to assume the duties

of employment or having left such duties at a time when the worker is

on the premises of the employer or on the only available route to or from

work which is a route involving a special risk or hazard and which is a

route not used by the public except in dealings with the employer. An

employee shall not be construed as being on the way to assume the duties

of employment, if the employee is a provider of emergency services re-

sponding to an emergency.

The words, ``arising out of and in the course of employment'' as used

in the workers compensation act shall not be construed to include injuries

to employees while engaged in recreational or social events under cir-

cumstances where the employee was under no duty to attend and where

the injury did not result from the performance of tasks related to the

employee's normal job duties or as specifically instructed to be performed

by the employer.

(g) ``Burden of proof'' means the burden of a party to persuade the

trier of facts by a preponderance of the credible evidence that such party's

position on an issue is more probably true than not true on the basis of

the whole record.

(h) ``Director'' means the director of workers compensation as pro-

vided for in K.S.A. 75-5708 and amendments thereto.

(i) ``Health care provider'' means any person licensed, by the proper

licensing authority of this state, another state or the District of Columbia,

to practice medicine and surgery, osteopathy, chiropractic, dentistry, op-

tometry, podiatry, audiology or psychology.

(j) ``Secretary'' means the secretary of human resources.

(k) ``Construction design professional'' means any person who is an

architect, professional engineer, landscape architect or land surveyor who

has been issued a license by the state board of technical professions to

practice such technical profession in Kansas or any corporation organized

to render professional services through the practice of one or more of

such technical professions in Kansas under the professional corporation

law of Kansas or any corporation issued a certificate of authorization un-

der K.S.A. 74-7036 and amendments thereto to practice one or more of

such technical professions in Kansas.

(l) ``Community service work'' means: (1) Public or community serv-

ice performed as a result of a contract of diversion or of assignment to a

community corrections program or conservation camp or suspension of

sentence or as a condition of probation or in lieu of a fine imposed by

court order; or (2) public or community service or other work performed

as a requirement for receipt of any kind of public assistance in accordance

with any program administered by the secretary of social and rehabilita-

tion services.

(m) ``Utilization review'' means the initial evaluation of appropriate-

ness in terms of both the level and the quality of health care and health

services provided a patient, based on accepted standards of the health

care profession involved. Such evaluation is accomplished by means of a

system which identifies the utilization of health care services above the

usual range of utilization for such services, which is based on accepted

standards of the health care profession involved, and which refers in-

stances of possible inappropriate utilization to the director for referral to

a peer review committee.

(n) ``Peer review'' means an evaluation by a peer review committee

of the appropriateness, quality and cost of health care and health services

provided a patient, which is based on accepted standards of the health

care profession involved and which is conducted in conjunction with util-

ization review.

(o) ``Peer review committee'' means a committee composed of health

care providers licensed to practice the same health care profession as the

health care provider who rendered the health care services being re-

viewed.

(p) ``Group-funded self-insurance plan'' includes each group-funded

workers compensation pool, which is authorized to operate in this state

under K.S.A. 44-581 through 44-592 and amendments thereto, each mu-

nicipal group-funded pool under the Kansas municipal group-funded pool

act which is covering liabilities under the workers compensation act, and

any other similar group-funded or pooled plan or arrangement that pro-

vides coverage for employer liabilities under the workers compensation

act and is authorized by law.

(q) On and after the effective date of this act, ``workers compensation

board'' or ``board'' means the workers compensation board established

under K.S.A. 44-555c and amendments thereto.

(r) ``Usual charge'' means the amount most commonly charged by

health care providers for the same or similar services.

(s) ``Customary charge'' means the usual rates or range of fees

charged by health care providers in a given locale or area.

Sec. 2. K.S.A. 44-510b is hereby amended to read as follows: 44-

510b. Where death results from injury, compensation shall be paid as

provided in K.S.A. 44-510h and 44-510i and amendments thereto, and as

follows:

(a) If an employee leaves any dependents wholly dependent upon the

employee's earnings at the time of the accident, all compensation benefits

under this section shall be paid to such dependent persons. There shall

be an initial payment of $40,000 to the surviving legal spouse or a wholly

dependent child or children or both. The initial payment shall not be

subject to the 8% discount as provided in K.S.A. 44-531 and amendments

thereto. The initial payment shall be immediately due and payable and

apportioned 50% to the surviving legal spouse and 50% to the dependent

children. Thereafter, such dependents shall be paid weekly compensa-

tion, except as otherwise provided in this section, in a total sum to all

such dependents, equal to 662/3% of the average gross weekly wage of

the employee at the time of the accident, computed as provided in K.S.A.

44-511 and amendments thereto, but in no event shall such weekly ben-

efits exceed the maximum weekly benefits provided in K.S.A. 44-510c

and amendments thereto, nor be less than a minimum weekly benefit of

the dollar amount nearest to 50% of the state's average weekly wage as

determined pursuant to K.S.A. 44-511 and amendments thereto subject

to the following:

(1) If the employee leaves a surviving legal spouse or a wholly de-

pendent child or children, or both, who are eligible for benefits under

this section, then all death benefits shall be paid to such surviving spouse

or children, or both, and no benefits shall be paid to any other wholly or

partially dependent persons.

(2) A surviving legal spouse shall be paid compensation benefits for

life, except as otherwise provided in this section.

(3) Any wholly dependent child of the employee shall be paid com-

pensation, except as otherwise provided in this section, until such de-

pendent child becomes 18 years of age, except that any such dependent

child who is not physically or mentally capable of earning wages in any

type of substantial and gainful employment, or who is enrolled as a full-

time student in an accredited institution of higher education or vocational

education shall be paid compensation until such dependent child be-

comes 23 years of age. A wholly dependent child of the employee shall be

paid compensation, except as otherwise provided in this section, until such

dependent child becomes 23 years of age during any period of time that

one of the following conditions is met:

(A) The wholly dependent child is not physically or mentally capable

of earning wages in any type of substantial and gainful employment; or

(B) the wholly dependent child is a student enrolled full-time in an

accredited institution of higher education or vocational education.

(4) If the employee leaves no legal spouse or dependent children

eligible for benefits under this section but leaves other dependents wholly

dependent upon the employee's earnings, such other dependents shall

receive weekly compensation benefits as provided in this subsection until

death, remarriage or so long as such other dependents do not receive

more than 50% of their support from any other earnings or income or

from any other source, except that the maximum benefits payable to all

such other dependents, regardless of the number of such other depend-

ents, shall not exceed a maximum amount of $18,500.

(b) Where the employee leaves a surviving legal spouse and depend-

ent children who were wholly dependent upon the employee's earnings

and are eligible for benefits under this section 50% of the maximum

weekly benefits payable shall be apportioned to such spouse and 50% to

such dependent children.

(c) If an employee does not leave any dependents who were wholly

dependent upon the employee's earnings at the time of the accident but

leaves dependents, other than a spouse or children, in part dependent on

the employee's earnings, such percentage of a sum equal to three times

the employee's average yearly earnings but not exceeding $18,500 but not

less than $2,500, as such employee's average annual contributions which

the employee made to the support of such dependents during the two

years preceding the date of the accident, bears to the employee's average

yearly earnings during the contemporaneous two-year period, shall be

paid in compensation to such dependents, in weekly payments as pro-

vided in subsection (a), not to exceed $18,500 to all such dependents.

(d) If an employee does not leave any dependents, either wholly or

partially dependent upon the employee, a lump-sum payment of $25,000

shall be made to the legal heirs of such employee in accordance with

Kansas law. However under no circumstances shall such payment escheat

to the state. Notwithstanding the provisions of this subsection, no such

payment shall be required if the employer has procured a life insurance

policy, with beneficiaries designated by the employee, providing coverage

in an amount not less than $18,500.

(e) The administrative law judge, except as otherwise provided in this

section, shall have the power and authority to apportion and reapportion

the compensation allowed under this section, either to wholly dependent

persons or partially dependent persons, in accordance with the degree of

dependency as of the date of the accident, except that the weekly payment

of compensation to any and all dependents shall not exceed the maximum

nor be less than the minimum weekly benefits provided in subsection (a).

(f) In all cases of death compensable under this section, the employer

shall pay the reasonable expense of burial not exceeding $5,000.

(g) The marriage or death of any dependent shall terminate all com-

pensation, under this section, to such dependent except the marriage of

the surviving legal spouse shall not terminate benefits to such spouse.

Upon the death of the surviving legal spouse or the marriage or death of

a dependent child, the compensation payable to such spouse or child shall

be reapportioned to those, among the surviving legal spouse and de-

pendent children, who remain eligible to receive compensation under this

section.

(h) Notwithstanding any other provision in this section to the con-

trary, the maximum amount of compensation benefits payable under this

section, including the initial payment in subsection (a) to any and all

dependents by the employer shall not exceed a total amount of $250,000

and when such total amount has been paid the liability of the employer

for any further compensation under this section to dependents, other than

minor children of the employee, shall cease except that the payment of

compensation under this section to any minor child of the employee shall

continue for the period of the child's minority at the weekly rate in effect

when the employer's liability is otherwise terminated under this subsec-

tion and shall not be subject to termination under this subsection until

such child becomes 18 years of age.

(i) A surviving spouse shall submit an annual statement to the em-

ployer and to the director, in such form and containing such information

relating to eligibility for compensation under this section as may be re-

quired by rules and regulations of the director. If such spouse fails to

submit such an annual statement, the employer may notify the director

of such failure and the director shall notify such spouse of such failure

by certified mail with return receipt. If such spouse fails to submit the

annual statement or fails to reasonably provide the required information

within 30 days after receipt of the notice from the director, all compen-

sation benefits paid under this section to such spouse shall be suspended

until such statement is submitted in proper form to the employer and the

director. Persons receiving benefits under this section shall submit an

annual statement to the insurance carrier, self-insured employer or group-

funded workers compensation pool paying the benefits, in such form and

containing such information relating to eligibility for compensation under

this section as may be required by rules and regulations of the director.

If the person receiving benefits under this section is a surviving spouse or

a dependent child who has reached the age of majority, such person shall

personally submit an annual statement. If the person receiving benefits

under this section is a dependent child subject to a conservator, the con-

servator of such child shall submit the annual statement. If such person

fails to submit an annual statement, the payer of benefits may notify the

director of such failure and the director shall notify the person of the

failure by certified mail with return receipt. If such person fails to submit

the annual statement or fails to reasonably provide the required infor-

mation within 30 days after receipt of the notice from the director, all

compensation benefits paid under this section to such person shall be

suspended until the annual statement is submitted in proper form to the

payer of benefits.

Sec. 3. K.S.A. 44-542a is hereby amended to read as follows: 44-

542a. Each individual employer, partner, limited liability company mem-

ber or self-employed person may elect to bring himself or herself such

employers within the provisions of the workmen's workers compensation

act, by securing and keeping insured such liability in accordance with

clause (1) of subsection (b) of K.S.A. 44-532, and amendments thereto.

Such insurance coverage shall clearly indicate the intention of the parties

to provide coverage for such employer, partner, limited liability company

member or self-employed person. When such election is made, the in-

surance carrier or its agent shall cause to be filed with the director a

written statement of election to accept thereunder so that such employer,

partner, limited liability company member or self-employed person is

treated as an employee for the purposes of the workmen's workers com-

pensation act pursuant to such election. This election shall be effective

until such time as such employer, partner, limited liability company mem-

ber or self-employed person ceases to be insured in accordance with

clause (1) of subsection (b) of K.S.A. 44-532, and amendments thereto,

whereupon a written statement withdrawing such election shall be filed

with the director.

Sec. 4. K.S.A. 44-550b is hereby amended to read as follows: 44-

550b. (a) All records provided to be maintained under K.S.A. 44-550 and

amendments thereto and not withstanding the provisions of K.S.A. 45-

215, et seq., and amendments thereto, shall be open to public inspection,

except:

(1) Records relating to financial information submitted by an em-

ployer to qualify as a self-insurer pursuant to K.S.A 44-532 and amend-

ments thereto;

(2) records which relate to utilization review or peer review con-

ducted pursuant to K.S.A. 44-510j and amendments thereto shall not be

disclosed except to the health care provider and as otherwise specifically

provided by the workers compensation act;

(3) records relating to private premises safety inspections;

(4) medical records, forms collected pursuant to subsection (b) of

K.S.A. 44-567(b) and amendments thereto and, accident reports main-

tained under K.S.A. 44-550 and amendments thereto, and social security

numbers pertaining to an individual which shall not be disclosed except:

(A) Upon order of a court of competent jurisdiction;

(B) to the employer, its insurance carrier or its representative, from

whom a worker seeks workers compensation benefits;

(C) to the division of workers compensation for its own purposes;

(D) to federal or state governmental agencies for purposes of fraud

and abuse investigations;

(E) to an employer in connection with any application for employ-

ment to an employer, its insurance carrier or representatives providing

(i) a conditional offer of employment has been made and (ii) the request

for records includes a signed release by the individual, identifies the job

conditionally offered by the employer and is submitted in writing, either

by mail or electronic means. Requests relating to an individual under this

subsection shall be considered a record to be maintained and open to

public inspection under K.S.A. 44-550 and amendments thereto, except

social security numbers;

(F) to the workers compensation fund for its own purposes; and

(G) to the worker upon written release by the worker.

(b) This section shall be part of and supplemental to the workers

compensation act.

Sec. 5. K.S.A. 44-557a is hereby amended to read as follows: 44-

557a. (a) The director shall: (1) Compile and publish statistics to deter-

mine the causation of compensable disabilities in the state of Kansas and

(2) compile and maintain a database of information on claim character-

istics and costs related to open and closed claims, in order to determine

the effectiveness of the workers compensation act to provide adequate

indemnity, medical and vocational rehabilitation compensation to injured

workers and to return injured workers to remunerative employment. The

commissioner of insurance shall cooperate with the director and shall

make available any information which will assist the director in compiling

such information and statistics and may contract with the director and

the secretary of the department of health and environment to collect such

information as the director deems necessary. The secretary of revenue

shall cooperate with the director and shall disclose individual income tax-

payers names, addresses and social security numbers to the director to be

used solely for the verification of workers compensation data files. For

purposes of this subsection, such disclosure shall not be considered the

disclosure of any particulars of a report or return.

(b) Each self-insured employer, group-funded workers compensation

pool, insurance carrier and vocational rehabilitation provider shall submit

to the director the disposition of a statistically significant sample of open

and closed claims under the act and, in connection with the closing of

each claim in which payments were made, the following: (1) The dates,

time intervals, amounts and types of weekly disability payments made, (2)

the dates and gross amounts of payments made to each type of medical

compensation provider, (3) the dates and type of service for which pay-

ment was made and the gross amounts paid to each vocational rehabili-

tation provider, and (4) the dates and types of fees paid as claim costs.

Unless provided by regulations to the contrary, on or after January 1,

2004, any insurer, group-funded workers compensation pool or self-in-

sured employer who voluntarily submits claim information to the director

pursuant to release 1 of the international association of industrial accident

boards and commission's electronic data interchange implementation

guide dated August 9, 1995, and amendments thereto, up to April 4, 2002,

shall be deemed to be in compliance. Each self-insured employer, group-

funded workers compensation pool, insurance carrier, vocational reha-

bilitation provider, or health care facility shall submit medical informa-

tion, by procedure, charge and zip code of the provider, or by hospital

charge and related diagnostic and procedure codes in order to set the

maximum medical fee schedule. The director of workers compensation

may adopt and promulgate such rules and regulations as the director

deems necessary for the purposes of administering and enforcing the

provisions of this section.

(c) The director may contract for professional actuarial or statistical

services to provide assistance in determining the types of information and

the methods of selecting and analyzing information as may be necessary

for the director to conduct studies of open and closed claims under the

workers compensation act and to enable the director to make valid sta-

tistical conclusions as to the distribution of costs of workers compensation

benefits.

(d) The director shall obtain such office and computer equipment

and employ such additional clerical help as the director deems necessary

to gather such information and prepare such statistics.

(e) If a self-insured employer, group-funded workers compensation

pool, insurance carrier or vocational rehabilitation provider fails to supply

the information required by this section, the director shall issue and serve

upon such person a summary order or statement of the charges with

respect thereto and a hearing shall be conducted thereon in accordance

with the provisions of the Kansas administrative procedure act. An ad-

ministrative penalty of up to $500 for each violation or act, along with an

additional penalty of up to $100 for each week thereafter that such report

or other information is not provided to the director shall be imposed.

Sec. 6. K.S.A. 44-510k is hereby amended to read as follows: 44-

510k. (a) At any time after the entry of an award for compensation, the

employee may make application for a hearing, in such form as the director

may require for the furnishing of medical treatment. Such post-award

hearing shall be held by the assigned administrative law judge, in any

county designated by the administrative law judge, and the judge shall

conduct the hearing as provided in K.S.A. 44-523 and amendments

thereto. The administrative law judge can make an award for further

medical care if the administrative law judge finds that the care is necessary

to cure or relieve the effects of the accidental injury which was the subject

of the underlying award. No post-award benefits shall be ordered without

giving all parties to the award the opportunity to present evidence, in-

cluding taking testimony on any disputed matters. A finding with regard

to a disputed issue shall be subject to a full review by the board under

subsection (b) of K.S.A. 44-551 and amendments thereto. Any action of

the board pursuant to post-award orders shall be subject to review under

K.S.A. 44-556 and amendments thereto.

(b) Any application for hearing made pursuant to this section shall

receive priority setting by the administrative law judge, only superseded

by preliminary hearings pursuant to K.S.A. 44-534a and amendments

thereto. The parties shall meet and confer prior to the hearing pursuant

to this section, but a prehearing settlement conference shall not be nec-

essary. The administrative law judge shall have authority to award medical

treatment relating back to the entry of the underlying award, but in no

event shall such medical treatment relate back more than six months

following the filing of such application for post-award medical treatment.

Reviews taken under this section shall receive priority settings before the

board, only superseded by reviews for preliminary hearings. A decision

shall be rendered by the board within 30 days from the time the review

hereunder is submitted.

(c) The administrative law judge may award attorney fees and costs

on the claimant's behalf consistent with subsection (g) of K.S.A. 44-536

and amendments thereto. As used in this subsection, ``costs'' include, but

are not limited to, witness fees, mileage allowances, any costs associated

with reproduction of documents that become a part of the hearing record,

the expense of making a record of the hearing and such other charges as

are by statute authorized to be taxed as costs.

Sec. 7. K.S.A. 44-523 is hereby amended to read as follows: 44-523.

(a) The director, administrative law judge or board shall not be bound by

technical rules of procedure, but shall give the parties reasonable oppor-

tunity to be heard and to present evidence, insure the employee and the

employer an expeditious hearing and act reasonably without partiality.

(b) Whenever a party files an application for hearing pursuant to

K.S.A. 44-534 and amendments thereto, the matter shall be assigned to

an administrative law judge for hearing and the administrative law judge

shall set a terminal date to require the claimant to submit all evidence in

support of the claimant's claim no later than 30 days after the first full

hearing before the administrative law judge and to require the respondent

to submit all evidence in support of the respondent's position no later

than 30 days thereafter. An extension of the foregoing time limits shall

be granted if all parties agree. An extension of the foregoing time limits

may also be granted:

(1) If the employee is being paid temporary or permanent total dis-

ability compensation;

(2) for medical examination of the claimant if the party requesting

the extension explains in writing to the administrative law judge facts

showing that the party made a diligent effort but was unable to have a

medical examination conducted prior to the submission of the case by the

claimant but then only if the examination appointment was set and notice

of the appointment sent prior to submission by the claimant; or

(3) on application for good cause shown.

(c) When all parties have submitted the case to an administrative law

judge for an award, the administrative law judge shall issue an award

within 30 days. The administrative law judge shall not stay a decision due

to the absence of a submission letter. When the award is not entered in

30 days, any party to the action may notify the director that an award is

not entered and the director shall assign the matter to an assistant director

or to a special administrative law judge who shall enter an award forthwith

based on the evidence in the record, or the director, on the director's

own motion, may remove the case from the administrative law judge who

has not entered an award within 30 days following submission by the party

and assign it to an assistant director or to a special administrative law

judge for immediate decision based on the evidence in the record.

(d) Not less than 10 days prior to the first full hearing before an

administrative law judge, the administrative law judge shall conduct a

prehearing settlement conference for the purpose of obtaining stipula-

tions from the parties, determining the issues and exploring the possibility

that the parties may resolve those issues and reach a settlement prior to

the first full hearing.

(e) (1) If a party or a party's attorney believes that the administrative

law judge to whom a case is assigned cannot afford that party a fair

hearing in the case, the party or attorney may file a motion for change of

administrative law judge. A party or a party's attorney shall not file more

than one motion for change of administrative law judge in a case. The

administrative law judge shall promptly hear the motion informally upon

reasonable notice to all parties who have appeared in the case. Notwith-

standing the provisions of K.S.A. 44-552, and amendments thereto, the

administrative law judge shall decide, in the administrative law judge's

discretion, whether or not the hearing of such motion shall be taken down

by a certified shorthand reporter. If the administrative law judge dis-

qualifies the administrative law judge's self, the case shall be assigned to

another administrative law judge by the director. If the administrative

law judge refuses to disqualify the administrative law judge's self, the

party seeking a change of administrative law judge may file in the district

court of the county in which the accident occurred the affidavit provided

in subsection (e)(2). If an affidavit is to be filed in the district court, it

shall be filed within 10 days.

(2) If a party or a party's attorney files an affidavit alleging any of

the grounds specified in subsection (e)(3), the chief judge shall at once

determine, or refer the affidavit to another district court judge for prompt

determination of, the legal sufficiency of the affidavit. If the affidavit is

filed in a district court in which there is no other judge who is qualified

to hear the matter, the chief judge shall at once notify the departmental

justice for the district and request the appointment of another district

judge to determining the legal sufficiency of the affidavit. If the affidavit

is found to be legally sufficient, the district court judge shall order the

director to assign the case to another administrative law judge or to an

assistant director.

(3) Grounds which may be alleged as provided in subsection (e)(2)

for change of administrative law judge are that:

(A) The administrative law judge has been engaged as counsel in the

case prior to the appointment as administrative law judge.

(B) The administrative law judge is otherwise interested in the case.

(C) The administrative law judge is related to either party in the case.

(D) The administrative law judge is a material witness in the case.

(E) The party or party's attorney filing the affidavit has cause to be-

lieve and does believe that on account of the personal bias, prejudice or

interest of the administrative law judge such party cannot obtain a fair

and impartial hearing. Such affidavit shall state the facts and the reasons

for the belief that bias, prejudice or an interest exists.

(4) In any affidavit filed pursuant to subsection (e)(2), the recital of

previous rulings or decisions by the administrative law judge on legal

issues or concerning prior motions for change of administrative law judge

filed by counsel or such counsel's law firm, pursuant to this subsection,

shall not be deemed legally sufficient for any believe that bias or prejudice

exists.

Sec. 8. K.S.A. 44-510b, 44-510k, 44-523, 44-542a, 44-550b and 44-

557a and K.S.A. 2001 Supp. 44-508 are hereby repealed.

Sec. 9. This act shall take effect and be in force from and after its

publication in the statute book.

Approved May 16, 2002.


__________




Date Composed: 10/10/2002 Date Modified: 10/10/2002