Session of 1999
         
SENATE BILL No. 234
         
By Committee on Commerce
          
2-4
          
  9             AN  ACT concerning workers compensation; relating to work disability;
10             amending K.S.A. 1998 Supp. 44-510e and repealing the existing
11             section.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             Section  1. K.S.A. 1998 Supp. 44-510e is hereby amended to read as
15       follows: 44-510e. (a) If the employer and the employee are unable to
16       agree upon the amount of compensation to be paid in the case of injury
17       not covered by the schedule in K.S.A. 44-510d and amendments thereto,
18       the amount of compensation shall be settled according to the provisions
19       of the workers compensation act as in other cases of disagreement, except
20       that in case of temporary or permanent partial general disability not cov-
21       ered by such schedule, the employee shall receive weekly compensation
22       as determined in this subsection during such period of temporary or per-
23       manent partial general disability not exceeding a maximum of 415 weeks.
24       Weekly compensation for temporary partial general disability shall be 66 
25       2/3% of the difference between the average gross weekly wage that the
26       employee was earning prior to such injury as provided in the workers
27       compensation act and the amount the employee is actually earning after
28       such injury in any type of employment, except that in no case shall such
29       weekly compensation exceed the maximum as provided for in K.S.A. 44-
30       510c and amendments thereto. Permanent partial general disability exists
31       when the employee is disabled in a manner which is partial in character
32       and permanent in quality and which is not covered by the schedule in
33       K.S.A. 44-510d and amendments thereto. The extent of permanent partial
34       general disability shall be the extent, expressed as a percentage, to which
35       the employee, in the opinion of the physician, has lost the ability to per-
36       form the work tasks that the employee performed in any substantial gain-
37       ful employment during the fifteen-year period preceding the accident,
38       averaged together with the difference between the average weekly wage
39       the worker was earning at the time of the injury and the average weekly
40       wage the worker is earning after the injury. In any event, The extent of
41       permanent partial general disability shall not be less than the percentage
42       of functional impairment. Functional impairment means the extent, ex-
43       pressed as a percentage, of the loss of a portion of the total physiological

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  1       capabilities of the human body as established by competent medical ev-
  2       idence and based on the fourth edition of the American Medical Asso-
  3       ciation Guides to the Evaluation of Permanent Impairment, if the im-
  4       pairment is contained therein. An employee shall not be entitled to
  5       receive permanent partial general disability compensation in excess of the
  6       percentage of functional impairment as long as the employee is engaging
  7       in any work for wages equal to 90% or more of the average gross weekly
  8       wage that the employee was earning at the time of the injury. If the
  9       employee is not engaging in any work for wages equal to 90% or more of
10       the average gross weekly wage that the employee was earning at the time
11       of the injury, the employee shall be entitled to supplemental functional
12       disability compensation. If the employer and the employee are unable to
13       agree upon the employee's functional impairment and if at least two med-
14       ical opinions based on competent medical evidence disagree as to the
15       percentage of functional impairment, such matter may be referred by the
16       administrative law judge to an independent health care provider who shall
17       be selected by the administrative law judge from a list of health care
18       providers maintained by the director. The health care provider selected
19       by the director pursuant to this section shall issue an opinion regarding
20       the employee's functional impairment which shall be considered by the
21       administrative law judge in making the final determination. The amount
22       of weekly compensation for permanent partial general disability shall be
23       determined as follows:
24             (1) Find the payment rate which shall be the lesser of (A) the amount
25       determined by multiplying the average gross weekly wage of the worker
26       prior to such injury by 662/3% or (B) the maximum provided in K.S.A. 44-
27       510c and amendments thereto;
28             (2) find the number of disability weeks payable by subtracting from
29       415 weeks the total number of weeks of temporary total disability com-
30       pensation was paid, excluding the first 15 weeks of temporary total disa-
31       bility compensation that was paid, and multiplying the remainder by the
32       percentage of permanent partial general disability functional impairment
33       as determined under this subsection (a); and
34             (3) multiply the number of disability weeks determined in paragraph
35       (2) of this subsection (a) by the payment rate determined in paragraph
36       (1) of this subsection (a).
37             (4) If the employee is entitled to supplemental functional disability
38       compensation, the amount of such compensation shall be calculated by
39       determining the percentage difference between the average weekly wage
40       the worker was earning at the time of the injury and the average weekly
41       wage the employee is earning after the injury. The percentage difference
42       will represent the number of weeks of supplemental compensation for
43       functional impairment to be paid in addition to the disability weeks de-

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  1       termined in paragraph (3) of this subsection. If the worker is unemployed
  2       or is not earning a wage at the time of the decision, the trier of fact shall
  3       impute a postinjury average weekly wage based upon evidence in the
  4       record.
  5             The resulting award shall be paid for the number of disability weeks at
  6       the full payment rate until fully paid or modified. If there is an award of
  7       permanent disability as a result of the compensable injury, there shall be
  8       a presumption that disability existed immediately after such injury. In any
  9       case of permanent partial disability under this section, the employee shall
10       be paid compensation for not to exceed 415 weeks following the date of
11       such injury, subject to review and modification as provided in K.S.A. 44-
12       528 and amendments thereto.
13             (b) If an employee has received an injury for which compensation is
14       being paid, and the employee's death is caused by other and independent
15       causes, any payment of compensation already due the employee at the
16       time of death and then unpaid shall be paid to the employee's dependents
17       directly or to the employee's legal representatives if the employee left no
18       dependent, but the liability of the employer for the payments of com-
19       pensation not yet due at the time of the death of such employee shall
20       cease and be abrogated by the employee's death.
21             (c) The total amount of compensation that may be allowed or
22       awarded an injured employee for all injuries received in any one accident
23       shall in no event exceed the compensation which would be payable under
24       the workers compensation act for 100% permanent total disability re-
25       sulting from such accident.
26             (d) Where a minor employee or a minor employee's dependents are
27       entitled to compensation under the workers compensation act, such com-
28       pensation shall be exclusive of all other remedies or causes of action for
29       such injury or death, and no claim or cause of action against the employer
30       shall inure or accrue to or exist in favor of the parent or parents of such
31       minor employee on account of any damage resulting to such parent or
32       parents on account of the loss of earnings or loss of service of such minor
33       employee.
34             (e) In any case of injury to or death of an employee, where the em-
35       ployee or the employee's dependents are entitled to compensation under
36       the workers compensation act, such compensation shall be exclusive of
37       all other remedies or causes of action for such injury or death, and no
38       claim or action shall inure, accrue to or exist in favor of the surviving
39       spouse or any relative or next of kin of such employee against such em-
40       ployer on account of any damage resulting to such surviving spouse or
41       any relative or next of kin on account of the loss of earnings, services, or
42       society of such employee or on any other account resulting from or grow-
43       ing out of the injury or death of such employee. 

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  1       Sec.  2. K.S.A. 1998 Supp. 44-510e is hereby repealed.
  2        Sec.  3. This act shall take effect and be in force from and after its
  3       publication in the statute book.