Session Law

Identifying Information:L. 2001 ch. 121
Other Identifying Information:2001 House Bill 2301
Tax Type:Other
Brief Description:An Act concerning the workers compensation act; amending K.S.A. 44-508, 44-510i,44-511, 44-551 and 44-556 and repealing the existing sections.
Keywords:


Body:

CHAPTER 121

HOUSE BILL No. 2301


An Act concerning the workers compensation act; amending K.S.A. 44-508, 44-510i,

44-511, 44-551 and 44-556 and repealing the existing sections.

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

Section 1. K.S.A. 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, ambulance attendants, mobile intensive care technicians atten-

dants, 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, firefighters, but only to the extent and during such periods as they

are so serving in such capacities; persons employed by educational, relig-

ious 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 official or officer thereof, whether

elected or appointed, while performing official duties; persons in the serv-

ice 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; volunteers in any employment, if the em-

ployer has filed an election to extend coverage to such volunteers; minors,

whether such minors are legally or illegally employed; and persons per-

forming community service work, but only to the extent and during such

periods as they are performing community service work and if an election

has been filed an election to extend coverage to such persons. Any ref-

erence to an employee who has been injured shall, where the employee

is dead, include a reference to the employee's dependents, to the em-

ployee's legal representatives, or, if the employee is a minor or an inca-

pacitated person, to the employee's guardian 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 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. 44-510i is hereby amended to read as follows: 44-

510i. (a) The director shall appoint, subject to the approval of the sec-

retary, a specialist in health services delivery, who shall be referred to as

the medical administrator. The medical administrator shall be a person

licensed to practice medicine and surgery in this state and shall be in the

unclassified service under the Kansas civil service act.

(b) The medical administrator, subject to the direction of the direc-

tor, shall have the duty of overseeing the providing of health care services

to employees in accordance with the provisions of the workers compen-

sation act, including but not limited to:

(1) Preparing, with the assistance of the advisory panel, the fee sched-

ule for health care services as set forth in this section;

(2) developing, with the assistance of the advisory panel, the utiliza-

tion review program for health care services as set forth in this section;

(3) developing a system for collecting and analyzing data on expend-

itures for health care services by each type of provider under the workers

compensation act; and

(4) carrying out such other duties as may be delegated or directed by

the director or secretary.

(c) The director shall prepare and adopt rules and regulations which

establish a schedule of maximum fees for medical, surgical, hospital, den-

tal, nursing, vocational rehabilitation or any other treatment or services

provided or ordered by health care providers and rendered to employees

under the workers compensation act and procedures for appeals and re-

view of disputed charges or services rendered by health care providers

under this section;

(1) The schedule of maximum fees shall be reasonable, shall promote

health care cost containment and efficiency with respect to the workers

compensation health care delivery system, and shall be sufficient to en-

sure availability of such reasonably necessary treatment, care and attend-

ance to each injured employee to cure and relieve the employee from

the effects of the injury. The schedule shall include provisions and review

procedures for exceptional cases involving extraordinary medical proce-

dures or circumstances and shall include costs and charges for medical

records and testimony.

(2) In every case, all fees, transportation costs, charges under this

section and all costs and charges for medical records and testimony shall

be subject to approval by the director and shall be limited to such as are

fair, reasonable and necessary. The schedule of maximum fees shall be

revised as necessary at least every two years by the director to assure that

the schedule is current, reasonable and fair.

(3) Any contract or any billing or charge which any health care pro-

vider, vocational rehabilitation service provider, hospital, person or insti-

tution enters into with or makes to any patient for services rendered in

connection with injuries covered by the workers compensation act or the

fee schedule adopted under this section, which is or may be in excess of

or not in accordance with such act or fee schedule, is unlawful, void and

unenforceable as a debt.

(d) There is hereby created an advisory panel to assist the director in

establishing a schedule of maximum fees as required by this section. The

panel shall consist of the commissioner of insurance and seven members

appointed as follows: One person shall be appointed by the Kansas med-

ical society; one member shall be appointed by the Kansas association of

osteopathic medicine; one member shall be appointed by the Kansas hos-

pital association; one member shall be appointed by the Kansas chiro-

practic association; and three members shall be appointed by the secre-

tary. Of the members appointed by the secretary, one shall be a

representative of employers recommended to the secretary by the Kansas

chamber of commerce and industry; one shall be a representative of em-

ployees recommended to the secretary by the Kansas AFL-CIO; and one

shall be a representative of providers of vocational rehabilitation services

pursuant to K.S.A. 44-510g and amendments thereto. Each appointed

member shall be appointed for a term of office of two years which shall

commence on July 1 of the year of appointment. Members of the advisory

panel attending meetings of the advisory panel, or attending a subcom-

mittee of the advisory panel authorized by the advisory panel, shall be

paid subsistence allowances, mileage and other expenses as provided in

K.S.A. 75-3223 and amendments thereto.

(e) All fees and other charges paid for such treatment, care and at-

tendance, including treatment, care and attendance provided by any

health care provider, hospital or other entity providing health care serv-

ices, shall not exceed the amounts prescribed by the schedule of maxi-

mum fees established under this section or the amounts authorized pur-

suant to the provisions and review procedures prescribed by the schedule

for exceptional cases. With the exception of the rules and regulations es-

tablished for the payment of selected hospital inpatient services under the

diagnosis related group prospective payment system, a health care pro-

vider, hospital or other entity providing health care services shall be paid

either such health care provider, hospital or other entity's usual and cus-

tomary charge for the treatment, care and attendance or the maximum

fees as set forth in the schedule, whichever is less. In reviewing and

approving the schedule of maximum fees, the director shall consider the

following:

(1) The levels of fees for similar treatment, care and attendance im-

posed by other health care programs or third-party payors in the locality

in which such treatment or services are rendered;

(2) the impact upon cost to employers for providing a level of fees

for treatment, care and attendance which will ensure the availability of

treatment, care and attendance required for injured employees;

(3) the potential change in workers compensation insurance premi-

ums or costs attributable to the level of treatment, care and attendance

provided; and

(4) the financial impact of the schedule of maximum fees upon health

care providers and health care facilities and its effect upon their ability

to make available to employees such reasonably necessary treatment, care

and attendance to each injured employee to cure and relieve the em-

ployee from the effects of the injury.

Sec. 3. K.S.A. 44-511 is hereby amended to read as follows: 44-511.

(a) As used in this section:

(1) The term ``money'' shall be construed to mean the gross remu-

neration, on an hourly, output, salary, commission or other basis, at which

the service rendered is recompensed in money by the employer, but it

shall not include any additional compensation, as defined in this section,

any remuneration in any medium other than cash, or any other compen-

sation or benefits received by the employee from the employer or any

other source.

(2) The term ``additional compensation'' shall include and mean only

the following: (A) Gratuities in cash received by the employee from per-

sons other than the employer for services rendered in the course of the

employee's employment; (B) any cash bonuses paid by the employer

within one year prior to the date of the accident, for which the average

weekly value shall be determined by averaging all such bonuses over the

period of time employed prior to the date of the accident, not to exceed

52 weeks; (C) board and lodging when furnished by the employer as part

of the wages, which shall be valued at a maximum of $25 per week for

board and lodging combined, unless the value has been fixed otherwise

by the employer and employee prior to the date of the accident, or unless

a higher weekly value is proved; (D) the average weekly cash value of

remuneration for services in any medium other than cash where such

remuneration is in lieu of money, which shall be valued in terms of the

average weekly cost to the employer of such remuneration for the em-

ployee; and (E) employer-paid life insurance, health and accident insur-

ance and employer contributions to pension and profit sharing plans. In

no case shall additional compensation include any amounts of employer

taxes paid by the employer under the old-age and survivors insurance

system embodied in the federal social security system. Additional com-

pensation shall not include the value of such remuneration until and un-

less such remuneration is discontinued. If such remuneration is discon-

tinued subsequent to a computation of average gross weekly wages under

this section, there shall be a recomputation to include such discontinued

remuneration.

(3) The term ``wage'' shall be construed to mean the total of the

money and any additional compensation which the employee receives for

services rendered for the employer in whose employment the employee

sustains an injury by accident arising out of and in the course of such

employment.

(4) The term ``part-time hourly employee'' shall mean and include

any employee paid on an hourly basis: (A) Who by custom and practice

or under the verbal or written employment contract in force at the time

of the accident is employed to work, agrees to work, or is expected to

work on a regular basis less than 40 hours per week; and (B) who at the

time of the accident is working in any type of trade or employment where

there is no customary number of hours constituting an ordinary day in

the character of the work involved or performed by the employee.

(5) The term ``full-time hourly employee'' shall mean and include

only those employees paid on an hourly basis who are not part-time hourly

employees, as defined in this section, and who are employed in any trade

or employment where the customary number of hours constituting an

ordinary working week is 40 or more hours per week, or those employees

who are employed in any trade or employment where such employees

are considered to be full-time employees by the industrial customs of

such trade or employment, regardless of the number of hours worked

per day or per week.

(b) The employee's average gross weekly wage for the purpose of

computing any compensation benefits provided by the workers compen-

sation act shall be determined as follows:

(1) If at the time of the accident the money rate is fixed by the year,

the average gross weekly wage shall be the yearly rate so fixed divided by

52, plus the average weekly value of any additional compensation and the

value of the employee's average weekly overtime as computed in para-

graph (4) of this subsection.

(2) If at the time of the accident the money rate is fixed by the month,

the average gross weekly wage shall be the monthly rate so fixed multi-

plied by 12 and divided by 52, plus the average weekly value of any

additional compensation and the value of the employee's average weekly

overtime computed as provided in paragraph (4) of this subsection.

(3) If at the time of the accident, the money rate is fixed by the week,

the amount so fixed, plus the average weekly value of any additional com-

pensation and the value of the employee's average weekly overtime as

computed in paragraph (4) of this subsection, shall be the average gross

weekly wage.

(4) If at the time of the accident the employee's money rate was fixed

by the hour, the employee's average gross weekly wage shall be deter-

mined as follows: (A) If the employee was a part-time hourly employee,

as defined in this section, the average gross weekly wage shall be deter-

mined in the same manner as provided in paragraph (5) of this subsection;

(B) if the employee is a full-time hourly employee, as defined in this

section, the average gross weekly wage shall be determined as follows: (i)

A daily money rate shall first be found by multiplying the straight-time

hourly rate applicable at the time of the accident, by the customary num-

ber of working hours constituting an ordinary day in the character of work

involved; (ii) the straight-time weekly rate shall be found by multiplying

the daily money rate by the number of days and half days that the em-

ployee usually and regularly worked, or was expected to work, but 40

hours shall constitute the minimum hours for computing the wage of a

full-time hourly employee, unless the employer's regular and customary

workweek is less than 40 hours, in which case, the number of hours in

such employer's regular and customary workweek shall govern; (iii) the

average weekly overtime of the employee shall be the total amount earned

by the employee in excess of the amount of straight-time money earned

by the employee during the 26 calendar weeks immediately preceding

the date of the accident, or during the actual number of such weeks the

employee was employed if less than 26 weeks, divided by the number of

such weeks; and (iv) the average gross weekly wage of a full-time hourly

employee shall be the total of the straight-time weekly rate, the average

weekly overtime and the weekly average of any additional compensation.

(5) If at the time of the accident the money rate is fixed by the output

of the employee, on a commission or percentage basis, on a flat-rate basis

for performance of a specified job, or on any other basis where the money

rate is not fixed by the week, month, year or hour, and if the employee

has been employed by the employer at least one calendar week imme-

diately preceding the date of the accident, the average gross weekly wage

shall be the gross amount of money earned during the number of calendar

weeks so employed, up to a maximum of 26 calendar weeks immediately

preceding the date of the accident, divided by the number of weeks em-

ployed, or by 26 as the case may be, plus the average weekly value of any

additional compensation and the value of the employee's average weekly

overtime computed as provided in paragraph (4) of this subsection. If the

employee had been in the employment of the employer less than one

calendar week immediately preceding the accident, the average gross

weekly wage shall be determined by the administrative law judge based

upon all of the evidence and circumstances, including the usual wage for

similar services paid by the same employer, or if the employer has no

employees performing similar services, the usual wage paid for similar

services by other employers. The average gross weekly wage so deter-

mined shall not exceed the actual average gross weekly wage the em-

ployee was reasonably expected to earn in the employee's specific em-

ployment, including the average weekly value of any additional

compensation and the value of the employee's average weekly overtime

computed as provided in paragraph (4) of this subsection. In making any

computations under this paragraph (5), workweeks during which the em-

ployee was on vacation, leave of absence, sick leave or was absent the

entire workweek because of illness or injury shall not be considered.

(6) (A) The average gross weekly wage of a person serving on a vol-

unteer basis as a duly authorized law enforcement officer, an ambulance

attendant, mobile intensive care technician, ambulance attendants and

drivers as provided in subsection (b) of K.S.A. 44-508 and amendments

thereto or firefighter, or any other volunteer under the workers compen-

sation act, who receives no wages for such services, or who receives wages

which are substantially less than the usual wages paid for such services

by comparable employers to employees who are not volunteers, shall be

computed on the basis of the dollar amount closest to, but not exceeding,

112.5% of the state average weekly wage the usual wages paid by the

employer for such services to employees who are not volunteers, or, if

the employer has no employees performing such services for wages who

are not volunteers, the average gross weekly wage shall be computed on

the basis of the usual wages paid for such services by comparable em-

ployers to employees who are not volunteers. Volunteer employment shall

not be presumed to be full-time employment.

(B) The average gross weekly wage of any person performing com-

munity service work shall be deemed to be $37.50.

(C) The average gross weekly wage of a volunteer member of the

Kansas department of civil air patrol officially engaged in the performance

of functions specified in K.S.A. 48-3302 and amendments thereto shall

be deemed to be $476.38. Whenever the rates of compensation of the

pay plan for persons in the classified service under the Kansas civil service

act are increased for payroll periods chargeable to fiscal years commenc-

ing after June 30, 1988, the average gross weekly wage which is deemed

to be the average gross weekly wage under the provisions of this subsec-

tion for a volunteer member of the Kansas department of civil air patrol

shall be increased by an amount, adjusted to the nearest dollar, computed

by multiplying the average of the percentage increases in all monthly steps

of such pay plan by the average gross weekly wage deemed to be the

average gross weekly wage of such volunteer member under the provi-

sions of this subsection prior to the effective date of such increase in the

rates of compensation of the pay plan for persons in the classified service

under the Kansas civil service act.

(D) The average weekly wage of any other volunteer under the work-

ers compensation act, who receives no wages for such services, or who

receives wages which are substantially less than the usual wages paid for

such services by comparable employers to employees who are not volun-

teers, shall be computed on the basis of the usual wages paid by the

employer for such services to employees who are not volunteers, or, if the

employer has no employees performing such services for wages who are

not volunteers, the average gross weekly wage shall be computed on the

basis of the usual wages paid for such services by comparable employers

to employees who are not volunteers. Volunteer employment is not pre-

sumed to be full time employment.

(7) The average gross weekly wage of an employee who sustains an

injury by accident arising out of and in the course of multiple employ-

ment, in which such employee performs the same or a very similar type

of work on a part-time basis for each of two or more employers, shall be

the total average gross weekly wage of such employee paid by all the

employers in such multiple employment. The total average gross weekly

wage of such employee shall be the total amount of the individual average

gross weekly wage determinations under this section for each individual

employment of such multiple employment.

(8) In determining an employee's average gross weekly wage with

respect to the employer against whom claim for compensation is made,

no money or additional compensation paid to or received by the employee

from such employer, or from any source other than from such employer,

shall be included as wages, except as provided in this section. No wages,

other compensation or benefits of any type, except as provided in this

section, shall be considered or included in determining the employee's

average gross weekly wage.

(c) In any case, the average yearly wage shall be found by multiplying

the average gross weekly wage, as determined in subsection (b), by 52.

(d) The state's average weekly wage for any year shall be the average

weekly wage paid to employees in insured work subject to Kansas em-

ployment security law as determined annually by the secretary of human

resources as provided in K.S.A. 44-704 and amendments thereto.

(e) Members of a labor union or other association who perform serv-

ices in behalf of the labor union or other association and who are not paid

as full-time employees of the labor union or other association and who

are injured or suffer occupational disease in the course of the perform-

ance of duties in behalf of the labor union or other association shall re-

cover compensation benefits under the workers compensation act from

the labor union or other association if the labor union or other association

files an election with the director to bring its members who perform such

services under the coverage of the workers compensation act.

The average weekly wage for the purpose of this subsection shall be

based on what the employee would earn in the employee's general oc-

cupation if at the time of the injury the employee had been performing

work in the employee's general occupation. The insurance coverage shall

be furnished by the labor union or other association.

Sec. 4. K.S.A. 44-551 is hereby amended to read as follows: 44-551.

(a) The duties of the assistant directors of workers compensation shall

include but not be limited to acting in the capacity of an administrative

law judge.

(b) (1) Administrative law judges shall have power to administer

oaths, certify official acts, take depositions, issue subpoenas, compel the

attendance of witnesses and the production of books, accounts, papers,

documents and records to the same extent as is conferred on the district

courts of this state, and may conduct an investigation, inquiry or hearing

on all matters before the administrative law judges. All final orders,

awards, modifications of awards, or preliminary awards under K.S.A. 44-

534a and amendments thereto made by an administrative law judge shall

be subject to review by the board upon written request of any interested

party within 10 days. Intermediate Saturdays, Sundays and legal holidays

shall be excluded in the time computation. Review by the board shall be

a prerequisite to judicial review as provided for in K.S.A. 44-556 and

amendments thereto. On any such review, the board shall have authority

to grant or refuse compensation, or to increase or diminish any award of

compensation or to remand any matter to the administrative law judge

for further proceedings. The orders of the board under this subsection

shall be issued within 30 days from the date arguments were presented

by the parties.

(2) (A) If an administrative law judge has entered a preliminary

award under K.S.A. 44-534a and amendments thereto, a review by the

board shall not be conducted under this section unless it is alleged that

the administrative law judge exceeded the administrative law judge's ju-

risdiction in granting or denying the relief requested at the preliminary

hearing. Such an appeal from a preliminary award may be heard and

decided by a single member of the board. Members of the board shall

hear such preliminary appeals on a rotating basis and the individual board

member who decides the appeal shall sign each such decision. The orders

of the board under this subsection shall be issued within 30 days from

the date arguments were presented by the parties.

(B) If an order on review is not issued by the board within the ap-

plicable time period prescribed by subsection (b) (1), medical compen-

sation and any disability compensation as provided in the award of the

administrative law judge shall be paid commencing with the first day after

such time period and shall continue to be paid until the order of the

board is issued, except that no payments shall be made under this pro-

vision for any period before the first day after such time period. Nothing

in this section shall be construed to limit or restrict any other remedies

available to any party to a claim under any other statute.

(C) In any case in which the final award of an administrative law judge

is appealed to the board for review under this section and in which the

compensability is not an issue to be decided on review by the board,

medical compensation shall be payable in accordance with the award of

the administrative law judge and shall not be stayed pending such review.

The employee may proceed under K.S.A. 44-534a 44-510k and amend-

ments thereto and may have a hearing in accordance with that statute to

enforce the provisions of this subsection.

(c) Each assistant director and each administrative law judge or spe-

cial administrative law judge shall be allowed all reasonable and necessary

expenses actually incurred while in the actual discharge of official duties

in administering the workers compensation act, but such expenses shall

be sworn to by the person incurring the same and be approved by the

secretary.

(d) In case of emergency the director may appoint special local ad-

ministrative law judges and assign to them the examination and hearing

of any designated case or cases. Such special local administrative law

judges shall be attorneys and admitted to practice law in the state of

Kansas and shall, as to all cases assigned to them, exercise the same pow-

ers as provided by this section for the regular administrative law judges.

Special local administrative law judges shall receive a fee commensurate

with the services rendered as fixed by rules and regulations adopted by

the director. The fees prescribed by this section prior to the effective date

of this act shall be effective until different fees are fixed by such rules

and regulations.

(e) All special local administrative law judge's fees and expenses, with

the exception of settlement hearings, shall be paid from the workers com-

pensation administration fee fund, as provided in K.S.A. 74-712 and

amendments thereto. Where there are no available funds or where the

special local administrative law judge conducted a settlement hearing, the

fees shall be taxed as costs in each case heard by such special local ad-

ministrative law judge and when collected shall be paid directly to such

special local administrative law judge by the party charged with the pay-

ment of the same.

(f) Except as provided for judicial review under K.S.A. 44-556 and

amendments thereto, the decisions and awards of the board shall be final.

Sec. 5. K.S.A. 44-556 is hereby amended to read as follows: 44-556.

(a) Any action of the board pursuant to the workers compensation act,

other than the disposition of appeals of preliminary orders or awards

under K.S.A. 44-534a and amendments thereto, shall be subject to review

in accordance with the act for judicial review and civil enforcement of

agency actions by appeal directly to the court of appeals. Any party may

appeal from a final order of the board by filing an appeal with the court

of appeals within 30 days of the date of the final order. When an appeal

has been filed pursuant to this section, an appellee may file a cross appeal

within 20 days after the date upon which the appellee was served with

notice of the appeal. Such review shall be upon questions of law.

(b) Commencement of an action for review by the court of appeals

shall not stay the payment of compensation due for the ten-week period

next preceding the board's decision and for the period of time after the

board's decision and prior to the decision of the court of appeals on

review.

(c) If review is sought on any order entered under the workers com-

pensation act prior to October 1, 1993, such review shall be in accordance

with the provisions of K.S.A. 44-551 and this section, and any other ap-

plicable procedural provisions of the workers compensation act, as all such

provisions existed prior to amendment by this act on July 1, 1993.

(d) (1) If compensation, including medical benefits, temporary total

disability benefits or vocational rehabilitation benefits, has been paid to

the worker by the employer or the employer's insurance carrier during

the pendency of review under this section and the amount of compen-

sation awarded by the board is reduced or totally disallowed by the de-

cision on the appeal or review, the employer and the employer's insurance

carrier, except as otherwise provided in this section, shall be reimbursed

from the workers compensation fund established in K.S.A. 44-566a and

amendments thereto for all amounts of compensation so paid which are

in excess of the amount of compensation that the worker is entitled to as

determined by the final decision on review. The director shall determine

the amount of compensation paid by the employer or insurance carrier

which is to be reimbursed under this subsection (d)(1), and the director

shall certify to the commissioner of insurance the amount so determined.

Upon receipt of such certification, the commissioner of insurance shall

cause payment to be made to the employer or the employer's insurance

carrier in accordance therewith.

(2) If any temporary or permanent partial disability or temporary or

permanent total disability benefits have been paid to the worker by the

employer or the employer's insurance carrier during the pendency of

review under this section and the amount of compensation awarded for

such benefits by the board is reduced by the decision on the appeal or

review and the balance of compensation due the worker exceeds the

amount of such reduction, the employer and the employer's insurance

carrier shall receive a credit which shall be applied as provided in this

subsection (d)(2) for all amounts of such benefits which are in excess of

the amount of such benefits that the worker is entitled to as determined

by the final decision on review or appeal. If a lump-sum amount of com-

pensation is due and owing as a result of the decision of the court of

appeals, the credit under this subsection (d)(2) shall be applied first

against such lump-sum amount. If there is no such lump-sum amount or

if there is any remaining credit after a credit has been applied to a lump-

sum amount due and owing, such credit shall be applied against the last

compensation payments which are payable for a period of time after the

final decision on review or appeal so that the worker continues to receive

compensation payments after such final decision until no further com-

pensation is payable after the credit has been satisfied. The credit allowed

under this subsection (d)(2) shall not be applied so as to stop or reduce

benefit payments after such final decision, but shall be used to reduce

the period of time over which benefit payments are payable after such

final decision. The provisions of this subsection (d)(2) shall be applicable

in all cases under the workers compensation act in which a final award is

issued by an administrative law judge on or after July 1, 1990.

(e) If compensation, including medical benefits, temporary total dis-

ability benefits or vocational rehabilitation benefits, has been paid to the

worker by the employer, the employer's insurance carrier or the workers

compensation fund during the pendency of review under this section, and

pursuant to K.S.A. 44-534a or K.S.A. 44-551, and amendments thereto,

and the employer, the employer's insurance carrier or the workers com-

pensation fund, which was held liable for and ordered to pay all or part

of the amount of compensation awarded by the administrative law judge

or board, is held not liable by the final decision on review by either the

board or an appellate court for the compensation paid or is held liable on

such appeal or review to pay an amount of compensation which is less

than the amount paid pursuant to the award, then the employer, em-

ployer's insurance carrier or workers compensation fund shall be reim-

bursed by the party or parties which were held liable on such review to

pay the amount of compensation to the worker that was erroneously or-

dered paid. The director shall determine the amount of compensation

which is to be reimbursed to each party under this subsection, if any, in

accordance with the final decision on the appeal or review and shall certify

each such amount to be reimbursed to the party required to pay the

amount or amounts of such reimbursement. Upon receipt of such certi-

fication, the party required to make the reimbursement shall pay the

amount or amounts required to be paid in accordance with such certifi-

cation. No worker shall be required to make reimbursement under this

subsection or subsection (d).

(f) As used in subsections (d) and (e), ``employers' insurance carrier''

includes any qualified group-funded workers compensation pool under

K.S.A. 44-581 through 44-591 and amendments thereto or a group-

funded pool under the Kansas municipal group-funded pool act which

includes workers compensation and employers' liability under the workers

compensation act.

(g) In any case in which any review is sought under this section and

in which the compensability is not an issue to be decided on review,

medical compensation shall be payable and shall not be stayed pending

such review. The worker may proceed under K.S.A. 44-534a 44-510k and

amendments thereto and may have a hearing in accordance with that

statute to enforce the provisions of this subsection.

Sec. 6. K.S.A. 44-508, 44-510i, 44-511, 44-551 and 44-556 are hereby

repealed.

Sec. 7. This act shall take effect and be in force from and after its

publication in the statute book.

Approved April 18, 2000.


__________




Date Composed: 09/25/2001 Date Modified: 09/25/2001