Two bills being considered in the Kansas Legislature are proposing significant changes to the Workers Compensation Laws in the state. The changes are not ‘new’, but rather seek to revert Kansas laws back to older versions. HB 2012 and HB 2013 sponsored by Rep. John Carmichael (D-Wichita) address separate issues in Kansas Worker’s Compensation laws that have been aggravated by changes made in recent years.
Worker’s Comp Determinations
In 2015 Kansas Worker’s Compensation law changed to assess workplace injuries from the 4th edition of the American Medical Association guide to the 6th edition. House bill 2013 seeks to revert Kansas law back to the 4th edition guide that was in place until 2015. The change may seem small, but the impact was large.
“It completely unbalanced the balance between employer rights and employees’ rights and that why we need to go back to where we were,” says Carmichael.
In 2017 in testimony to the Committee on Commerce, Labor, and Economic Development then Secretary of State Kris Kobach said “The 6th edition reduces compensation for impairment stemming from certain injuries to zero; in such cases the worker receives no compensation at all. The problem with this change is that it renders the ‘exclusive remedy rule’ unconstitutional. Worker’s compensation is based on the quid pro quo that a worker trades [his or her] due process to sue an employer in court for an ‘adequate substitute remedy’ through the workers compensation system. But when the remedy is reduced to zero, there is no substitute remedy.”
Kobach gave the example of a rotator cuff injury. Nothing medically regarding rotator cuffs changed between the 4th and 6th edition guides, however Kobach notes, “Under the 4th edition an employee suffering a second rotator cuff injury was likely to recover $15,000 to $20,000. However under the 6th Edition the employee recovers nothing.”
The Kansas Supreme Court is reviewing the constitutionality of the 6th edition guidelines. Kobach noted that one size fits all approach that the 6th edition put into place for worker’s compensation law undercuts a workers ability to have an administrative judge in the worker’s comp consider a wide range of issues regarding a case.
“If an employee loses the ability to tailor a remedy to the specific circumstances of his case and modify the remedy accordingly, he has been denied due process,” said Kobach.
However, Dan Murray with the National Federation of Independent Business feels changes to the law would hurt small businesses.
“We have realized small business owners, and business owners generally have realized significant premium savings as we worked to tighten the law in a way that ensures truly those that are injured on the job are compensated in a way that reflects the actually injuries,” said Murray.
Prevailing Factor Standard
House Bill 2012 addresses the prevailing factor standard used to assess responsibility for injury. It means that an on-the-job injury must be more than aggravation of a pre-existing condition in order for the employee to get money under workers compensation. According the Carmichael, the prevailing factor standard that was put in place in 2011 negates the ability of older and more experienced workers to collect for injuries.
“What has happened as a result of implementation of the prevailing factor standard is that essentially you have to be young and healthy in order to recover under the Kansas Workers Compensation laws,” says Carmichael
Dan Murray disagrees that existing laws need to change.
“We think it’s a fair system, we think that the changes we have made over the past handful of years have really set have Kansas up to be one of the leaders in the country. We don’t want to mess with that.”
Carmichael says the inability of older workers to get workers comp for injuries may save businesses money on insurance premiums, but it puts the burden for helping older injured workers on the government and ultimately tax payers. Carmichael notes if an older worker is injured and not eligible for social security or Medicare yet, lack of workers comp to recover from an injury forces workers onto social security disability and Medicaid. He also believes it sets up older workers for discrimination and leads to higher cost for government programs.
“We are discriminating against older workers. We are shifting the burden of the cost of on the job injuries from the employer to the government and I think it was not a wise idea to change that standard in 2011,” says Carmichael.
A reason for the urgency to change the worker’s compensation laws can be found in Kobach’s testimony back in 2017. Kobach noted passing laws to change worker’s compensation would, “head off a likely Kansas Supreme Court opinion that would (correctly) hold the worker’s compensation system to be unconstitutional and would be disastrous for Kansas businesses.”