Session of 1999
By Committee on Commerce

  9             AN  ACT concerning workers compensation; relating to permanent par-
10             tial general disability; amending K.S.A. 1998 Supp. 44-510e and re-
11             pealing the existing section.
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
25       662/3% 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 still had the ability to perform
37       immediately prior to the injury which is the subject of the claim and which
38       the employee had performed in any substantial gainful employment dur-
39       ing the fifteen-year period preceding the accident, averaged together with
40       the difference between the average weekly wage the worker was earning
41       at the time of the injury and the average weekly wage the worker is
42       earning after the injury. In any event, the extent of permanent partial
43       general disability shall not be less than the percentage of functional im-
44       pairment. A worker who is receiving work disability benefits must im-
45       mediately notify the respondent if the worker receives retirement benefits
46       under the federal social security benefits act or if the average weekly wage
47       the worker is earning increases by more than 10% of the average weekly
48       wage used to calculate the worker's work disability award. Functional
49       impairment means the extent, expressed as a percentage, of the loss of a
50       portion of the total physiological capabilities of the human body as estab-
51       lished by competent medical evidence and based on the fourth edition of
52       the American Medical Association Guides to the Evaluation of Permanent
53       Impairment, if the impairment is contained therein. An employee shall
54       not be entitled to receive permanent partial general disability compen-
55       sation in excess of the percentage of functional impairment as long as the
56       employee is engaging in any work for wages equal to 90% or more of the
57       average gross weekly wage that the employee was earning at the time of
58       the injury. If the employer and the employee are unable to agree upon
59       the employee's functional impairment and if at least two medical opinions
60       based on competent medical evidence disagree as to the percentage of
61       functional impairment, such matter may be referred by the administrative
62       law judge to an independent health care provider who shall be selected
63       by the administrative law judge from a list of health care providers main-
64       tained by the director. The health care provider selected by the director
65       pursuant to this section shall issue an opinion regarding the employee's
66       functional impairment which shall be considered by the administrative
67       law judge in making the final determination. The amount of weekly com-
68       pensation for permanent partial general disability shall be determined as
69       follows:
70             (1) Find the payment rate which shall be the lesser of (A) the amount
71       determined by multiplying the average gross weekly wage of the worker
72       prior to such injury by 662/3% or (B) the maximum provided in K.S.A. 44-
73       510c and amendments thereto;
74             (2) find the number of disability weeks payable by subtracting from
75       415 weeks the total number of weeks of temporary total disability com-
76       pensation was paid, excluding the first 15 weeks of temporary total disa-
77       bility compensation that was paid, and multiplying the remainder by the
78       percentage of permanent partial general disability as determined under
79       this subsection (a); and
80             (3) multiply the number of disability weeks determined in paragraph
81       (2) of this subsection (a) by the payment rate determined in paragraph
82       (1) of this subsection (a).
83             The resulting award shall be paid for the number of disability weeks at
84       the full payment rate until fully paid or modified. If there is an award of
85       permanent disability as a result of the compensable injury, there shall be
86       a presumption that disability existed immediately after such injury. In any
87       case of permanent partial disability under this section, the employee shall
88       be paid compensation for not to exceed 415 weeks following the date of
89       such injury, subject to review and modification as provided in K.S.A. 44-
90       528 and amendments thereto.
91             (b) If an employee has received an injury for which compensation is
92       being paid, and the employee's death is caused by other and independent
93       causes, any payment of compensation already due the employee at the
94       time of death and then unpaid shall be paid to the employee's dependents
95       directly or to the employee's legal representatives if the employee left no
96       dependent, but the liability of the employer for the payments of com-
97       pensation not yet due at the time of the death of such employee shall
98       cease and be abrogated by the employee's death.
99             (c) The total amount of compensation that may be allowed or
100       awarded an injured employee for all injuries received in any one accident
101       shall in no event exceed the compensation which would be payable under
102       the workers compensation act for 100% permanent total disability re-
103       sulting from such accident.
104             (d) Where a minor employee or a minor employee's dependents are
105       entitled to compensation under the workers compensation act, such com-
106       pensation shall be exclusive of all other remedies or causes of action for
107       such injury or death, and no claim or cause of action against the employer
108       shall inure or accrue to or exist in favor of the parent or parents of such
109       minor employee on account of any damage resulting to such parent or
110       parents on account of the loss of earnings or loss of service of such minor
111       employee.
112             (e) In any case of injury to or death of an employee, where the em-
113       ployee or the employee's dependents are entitled to compensation under
114       the workers compensation act, such compensation shall be exclusive of
115       all other remedies or causes of action for such injury or death, and no
116       claim or action shall inure, accrue to or exist in favor of the surviving
117       spouse or any relative or next of kin of such employee against such em-
118       ployer on account of any damage resulting to such surviving spouse or
119       any relative or next of kin on account of the loss of earnings, services, or
120       society of such employee or on any other account resulting from or grow-
121       ing out of the injury or death of such employee. 
122       Sec.  2. K.S.A. 1998 Supp. 44-510e is hereby repealed.
123        Sec.  3. This act shall take effect and be in force from and after its
124       publication in the statute book.