Kansas Worker Disability
by Paul Post
The Kansas Supreme Court recently handed down a decision favorable to injured workers seeking work disability. Injured workers with so-called “whole body” injuries (head, neck, back) who subsequently lost their employment have been able to claim work disability, which is usually higher than the functional impairment or disability caused by the injury, itself. The Kansas Legislature has tinkered with work disability over the years, with the last major change being in 1993, when a two-pronged test was established. A worker’s wage loss percentage was averaged with the worker’s “task loss” percentage to determine the work disability percentage.
Case law interpreting that statute added the “good faith” requirement, which essentially made the injured worker show that he or she had made a “good faith” effort to find other work after the layoff. This judge-made rule also mandated that if this good faith attempt to find employment was not shown by the worker, then a wage would be imputed based upon the worker’s so-called residual wage earning ability. This was usually accomplished by hiring a vocational expert to review the worker’s work history and formulate an opinion as to what the injured worker could still earn, factoring in restrictions assigned by a physician.
The Kansas Supreme Court, in the case of Bergstrom v. Spears Manufacturing, no. 99,369, threw out this good faith requirement, stating that
“K.S.A. 44-510e(a) contains no requirement that an injured worker make a good-faith effort to seek postinjury employment to mitigate the employer’s liability. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 320, 944 P.2d 179 (1997), and all subsequent cases that have imposed a good-faith effort requirement on injured workers are disapproved.”
Under the holding of this case, all that is required is that the injured worker show that he or she is earning less than 90 per cent of pre-injury wage, and if that is the situation, work disability applies.
Stay tuned for what the Kansas Legislature will have to say about this decision during the 2010 session. Kansas already has one of the weakest workers compensation laws with the lowest benefits compared to surrounding states. When the politicos gather in Topeka come January, they will probably not want to risk losing these dubious distinctions.
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