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The Kansas Court of Appeals in Chriestenson vs. Russell Stover 9/9/2011, a workers compensation case decided that opinion testimony is not substantial evidence of causation if it is based on nothing more than logic that the symptoms follow the exposure; therefore , they must be due to it.

Before the cause of chemical sensitivity can be established, the actual quantity or type of contamination to which a person has been exposed must be demonstrated. The ability to diagnose a medical condition is not the same as the ability to deduce, delineate, and describe, in a scientifically reliable manner, the causes of such a medical condition.

A landowner generally owes to entrants upon his or her land a duty of reasonable care under the circumstances. This duty includes a duty to warn of a dangerous condition on the property. A landowner is not excluded from liability if its negligence causes injury to an independent contractor's employee while that employee is working on the landowner's property. It is not the employer, so it cannot claim the protection of exclusive remedy provision of the workers compensation act. This is the holding of the court in HERRELL, v. NATIONAL BEEF PACKING COMPANY, August 12, 2011, but the court also pointed out some limited exceptions to the above general rule based upon the previous case of Dillard v. Strecker.

The court just decided the meaning of the statute K.S.A. 44-510j(h) in the case of Saylor vs. Westar. If an employer knows that an employee is suffering from a work-related injury and refuses or neglects to provide or authorize medical services to address that injury, the employee may obtain his or her own medical services at the employer's expense.

The Kansas law provides for a wrongful death action but limits the recovery for non-pecuniary loss to $250,000.00. Non-pecuniary means non-economic damages. If the jury verdict results in an award of damages for non-pecuniary damages in excess of this limit the judge will lower the judgment to $250,000.00.

This action may be commenced by any one of the heirs at law of the deceased who has sustained a loss by reason of the death. Any heir who does not file may intervene. The lawsuit is for the exclusive benefit of all the heirs regardless or whether they all join the lawsuit. The recovery will be apportioned by the judge after a hearing.

The court recently in the case of Bryant vs. Midwest answered the question as to when an injury comes from work as opposed to day to day activities.

The court said, "Although no bright-line test for what constitutes a work-injury is possible, the proper approach is to focus on whether the injury occurred as a consequence of the broad spectrum of life's ongoing daily activities, such as chewing or breathing or walking in ways that were not peculiar to the job, or as a consequence of an event or continuing events specific to the requirements of performing one's job. "The right to compensation benefits depends on one simple test: Was there a work-connected injury? . . . [T]he test is not the relation of an individual's personal quality (fault) to an event, but the relationship of an event to an employment." 1 Larson's Workers' Compensation Law § 1.03[1] (2011).

Even though no bright-line test for whether an injury arises out of employment is possible, the focus of inquiry should be on the whether the activity that results in injury is connected to, or is inherent in, the performance of the job. The statutory scheme does not reduce the analysis to an isolated movement

It appears one of the first questions concerning the new workers compensation law has been answered by the Kansas Supreme Court in the case of Bryant vs. Midwest. The new law is not, by and large, retroactive.

The court recently pointed out that the 2010 legislative session the Kansas Legislature passed and the Governor signed into law significant changes to the Kansas Workers Compensation Act. See Substitute for H.B. 2134, effective May 15, 2011. Despite these modifications, the statutory scheme in place when an injured worker was injured and filed his or her claim continues to control in this case.

As a general rule, a statute operates prospectively in the absence of clear statutory language that the legislature intended it to operate retroactively. Owen 6 Lumber Co. v. Chartrand, 276 Kan. 218, 220, 73 P.3d 753 (2003). Even if the legislature expressly states that a statute will apply retroactively, vested or substantive rights are immune from retrospective statutory application. Substantive rights include rights of action "for injuries suffered in person." Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 667, 831 P.2d 958 (1992) (citing the Kansas Constitution Bill of Rights, § 18). The retroactive application of laws that adversely affect substantive rights violates a claimant's constitutional rights, because it constitutes a taking of property without due process of law. Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 190, 883 P.2d 1177 (1994).

Nothing in the language of the Substitute for H.B. 2134 suggests that the legislature intended that the sections relevant to the present case be applied retroactively. In fact, the legislature singled out one section, new K.S.A. 44-529(c), for retroactive application and was silent about the application of the remainder of the statutory amendments. The court said that injured workers have a vested right to seek compensation for his/her injury, and retroactive application would violate due process.

Kansas laws was amended to read that the driver of any vehicle involved in an accident resulting in damage to any attended vehicle shall immediately stop or immediately return and remain at the scene until certain information is provided. This statute, K.S.A. 8-1602 previously required a person to stop when involved in an accident resulting in injury or death of any person.

You have to report it to the police if there is property damage of $1000.00 or more, a person was injured or killed, or if the other driver, occupant or injured person is not present.

The information that must be exchanged includes name, address, registration number, and insurance information.

Let’s look at section nine of the new bill amending K.S.A. 44-510e. There are two types of permanent partial disability. The first type is called functional impairment which is sometimes called body disability. The other type of permanent partial disability is called work disability. Work disability is determined by averaging the wage loss with the task loss.

An employee may be able to receive what is called a work disability under certain circumstances as follows:

1. The employee must first have a functional impairment that exceeds 7.5% or exceeds 10% when there is a preexisting impairment.

2. There must be a post injury wage loss of at least 10%.

The language of the new statute includes numerous attempts to limit the compensation to just the injury that occurred at the time of the accident and its resulting disability. The net effect is to eliminate compensation when the sole cause of the injury or disability was a pre-existing condition. I will review with you the various parts of the new law that have an impact on this issue.

The definition of accident now includes a requirement that the accident or repetitive trauma must be the prevailing factor in causing the injury. K.S.A. 44-508 now includes a new definition of the word “prevailing” which means primary considering all relevant evidence. Primary is not defined and has been interpreted to mean different things in other jurisdictions. No doubt this will be the subject of litigation here in Kansas as well. Black’s Law dictionary defines primary to be first, principal, chief or leading. Where the courts here will draw the line is unknown. This will be a challenge to lawyers as they attempt to obtain medical testimony to clarify the factors involved in the cause of a particular accident.

Section ten of the law deals with the maximum amounts allowed for each type of disability. The bill strikes the words “or any aggravation thereof” from the law.

Section three amending K.S.A. 44-501 in subsection (e) provides that the award is to be reduced by any preexisting impairment.

Also section five amending K.S.A. 44-508 (f)(2) provides that that injury is not compensable because work was a triggering or precipitating factor. An injury is not compensable solely because it aggravates, accelerates or exacerbates a preexisting condition or renders a preexisting condition symptomatic. The word “solely” suggests that an injury is compensable if it aggravates a preexisting problem but not if the only thing it does is aggravate a preexisting condition. This word suggests that there must be some degree of actual new injury at the time of the accident. The section goes on to provide that for repetitive trauma or accident it will be deemed to arise out of employment if the increased risk or hazard to which the employment exposed the worker is the prevailing factor of the accident and disability.

Workers compensation is an insurance plan that is required by statute. The employer is required to obtain insurance for the employee's benefit providing certain benefits for job related injuries, disability or death. The law covers most employers with an annual payroll of $20,000 or more. Coverage begins on the first day of work.

For accidents or repetitive trauma after May 15, 2011 the law requires notice to be given to the employer by the earliest of the following dates:

1. 30 days from the date of accident or the date of injury by repetitive trauma;
2. If the employee is working for the employer against whom benefits are being sought and such employee seeks medical treatment for any injury by accident or repetitive trauma, 20 calendar days from the date such medical treatment is sought; or
3. If the employee no longer works for the employer against whom benefits are being sought, 20 calendar days after the employee’s last day of actual work for the employer.

Notice may be given orally or in writing. Where the notice is provided orally, if the employer has designated an individual or department to whom notice must be given and such designation has been communicated in writing to the employee, notice to any other individual or department shall be insufficient. If the employer has not designated a person, notice must be provided to a supervisor or manager.  Where notice is provided in writing, notice must be sent to a supervisor or manager at the employee’s principal location of employment. The law places the burden on you to prove that such notice was actually received. The notice shall include the time, date, place, person injured and particulars of such injury. It must be apparent from the notice that the employee is claiming benefits under the workers compensation act or has suffered a work related injury.

For accidents before May 15, 2011, the law requires you to give the employer notice, stating the time and place and particulars of the accident, together with your address within 10 days after the accident, which can be extended to 75 days for just cause.  Also please keep in mind that you only have 200 days from the date of the accident or from the last time compensation was paid or medical was paid by your employer to file a written claim with your employer.

You have three years from the date of the accident or two years from the date of last compensation paid, whichever is later, to file an application for hearing with the office of workers’ compensation.  Any claim that has not proceeded to final hearing, a settlement hearing, or an agreed award under the workers compensation act within three (five years if the accident was prior to

May 15, 2011) from the date of filing an application for hearing pursuant to K.S.A. 44-534, and amendments thereto, shall be dismissed by the administrative law judge for lack of prosecution.

May 15, 2011 is the effective date of the new workers compensation law. Section 30 of HN 2134 provides that the bill will take effect after May 15, 2011 and publication in the Kanas register. If you go to the Kansas register, which you can find at the Secretary of State's web page, you will find that the bill was published on April 28, 2011. So this bill will apply to accidents that occur on or after May 15, 2011.

Your workers compensation claim can now be heard by the judge in person or by video or telephone conference. We have often had settlements conducted by agreement over the phone. Now section 28 of the act allows the other hearings to be in person, by video or telephone conference.

Insurance companies and self-insured employers are required now to issue warning notices to employees that are receiving temporary disability benefits. The notice would inform the employees that they could be committing fraud if the person had accepted work with a different employer that requires the performance of activities that the employee previously claimed they could not perform due to the injury. The loss of benefits and restitution could result from the fraud as well as other penalties.

There is now a presumption that medical care terminates once the employee has reached what is called maximum medical improvement. However, the employee may overcome this presumption by proving it is probable that medical treatment is needed. If an employee has not received medical treatment within two years from the date of an award or within two years from the date of the last medical treatment, an employer would be permitted to seek a permanent termination of future medical benefits. At this point there will be a presumption that no future care is needed. This presumption may be overcome by competent medical evidence. (See section 11 and 12 of the bill). 

This 2011 law would specify that when the employee takes a lump sum retirement, the workers compensation benefits would be reduced by the weekly value of the retirement. The amount of the reduction is calculated by amortizing the lump sum at four percent per year over the life expectancy of the employee. (See the last part of section 3)

The 2011 bill will replace the term "average gross wages" with the term “average wages”. The calculation is made by adding the wages the employee made in the 26 week period prior to the accident and dividing by the number of weeks the employee worked. Calendar weeks are used in the calculation. Wage is defined as the total of money and additional compensation earned by the employee. Under the old law you would look at whether the employee was part-time or full time, and the hourly rate. See section 13 of the bill amending K.S.A. 44-511

Section 20 of the new Workers Compensation law allows the parties with the approval of the judge to have a lump sum payment prorated over the life expectancy of the injured employee.

If the employee has an accident resulting in an injury to both arms or both legs the disability is calculated using the whole body disability formula under the new law.

Permanent partial general disability is a percent of functional body impairment which is calculated using the 4th edition of the AMA guides to the evaluation of permanent impairment. In certain situations the employee may be entitled to more than this functional or body disability. You may be entitled to what is called a work disability.

To get a work disability the functional impairment must exceed 7.5% or 10% if there is a preexisting functional impairment. In addition, to qualify for a work disability the employee must have a 10% wage loss due to the injury.

The work disability is determined by averaging together the percentage of post-injury task loss due to the injury and the wage loss. Task loss is the percent the employee has lost the ability to perform work tasks he or she had during the last five years. This must be established by the opinion of a physician and based on physician imposed restrictions that are permanent. These restrictions must be due to the work injury. Wage loss is the difference between what the employee was earning at the time of the injury and what he or she is capable of earning afterwards. There is a list of factors used to determine "capable of earning" which includes availability of jobs. When the employee is actually working there is a rebuttable presumption that the wage he or she is earning is what he or she is capable of earning.

Refusal of accommodated employment results in a rebuttable presumption of no wage loss, which would then disqualify the employee from getting a work disability.

Permanent total disability exists when the empoyee, on account of the injury, has been rendered completely and permanently incapable of engaging in any type of substantial and gainful employment. The law requires expert evidence to prove permanent total disability. As a practical matter most of the time expert testimony was presented on this issue under the old law. The old law listed specific conditions that would result in an award of permanent total disability, those provisions have been deleted. In addition the injured worker would not be eligible to receive more than one award for permanent total disability during the worker's lifetime.

The 2011 Kansas workers compensation law requires that awards for permanent partial impairment, work disability or permanent total disability be reduced by the amount of the functional impairment that is pre-existing. An injury is not compensable solely because it aggravates, accelerates or exacerbates a preexisting condition or renders a preexisting condition symptomatic.

The 2011 Kansas workers compensation law changes the period of time from five years to three years, that a case may remain open without a hearing. After a case has been on file for three years the employer would be able to file for a dismissal. The employee would have to establish good cause for keeping the case open, if not the case would be dismissed with prejudice. If a claim had not proceeded to a regular hearing within a year from the date of a preliminary award denying compensation, the employer would be allowed to file for dismissal.

     Injuries caused by the influence of alcohol or drugs may not be compensated under the law. No longer would the employer need probable cause to require testing but the standard would be sufficient cause. A split sample is to be made available to the employee and the employee can overcome the positive results of a drug test by clear and convincing evidence. If it is shown that the employee was impaired at the time of the injury there shall be a rebuttable presumption that the accident was contributed to by the impairment.

     The employee's refusal to submit to a chemical test shall result in the forfeiture of benefits if there is sufficient cause to suspect the use of alcohol or drugs or if the employer's policy clearly authorizes post-injury testing.

Under the new Kansas Workers Compensation law there are cerain situations where no compensation is awarded under the act. Compensation for an injury shall be disallowed if such injury to the employee results from:

The new Kansas workers compensation law adopted this year increases the maximum compensation for various benefits to employees hurt on the job. Permanent total disability increased from $125,000 to $155,000 and Permanent partial disability increased from $100,000 to $130,000.

The Kansas legislative session is over and there have been a number of changes in Kansas Personal Injury Law. We will be posting a brief summary of some of the changes here. If you have any questions call anytime 785-273-4330 or review our web page Kansas Personal Injury Lawyer.

Can you handle your own legal problems? It is not illegal for you to represent yourself in court, nor is there any requirement that you engage the services of a lawyer. So the answer is, "Yes, ofcourse you can." The real question you should be asking is do you really want to? Really?

It is what you don't know that will bite you. I can not tell you how many times I have been called into a case after it has turned into a nightmare, with the client thinking, "If only I had call you sooner!" Get us involved before your case falls apart.

How do you choose a lawyer?

The lawyer client relationship is a close one so it is very important you pick a lawyer you can trust and work with. You start with gathering as much information as you can about lawyers that work in this area. It is for this reason we have created this web page. We want you to know the type of cases with which we have experience. You want a lawyer with experience and with the knowledge in the field of law that involves your case. Call up the lawyer and set up an appointment. If he or she never returns your call or you can't get an appointment that may not be the lawyer for you. Go into the office for your appointment and talk the lawyer. You will get a feel right away if he or she has the expertise you need. You will also get a feel for whether he or she is the type of person you can work with on a long term basis. Talk to your friends and ask around. If a lawyer has experience then people have heard of him and can share with you their experience. We want you to take your time and make sure this is the right firm for you.

Why should you hire a lawyer? It is not a question that I hear usually because those that have doubts about hiring a lawyer, don't. We usually hear from the folks that not know they need a lawyer.

So let's talk about the possible reasons to hire a lawyer. We live in a very complex world and there are thousands upon thousands of rules and laws that will help or hurt us. So the first reason to hire a lawyer is to get some understanding. Even when you play a simple game, it's hard to win if you do not know the rules.

You probably want something more than just an expert. You are facing a very difficult time; you are experiencing problems many for the first time. Emotions run high when you experience trauma. It just helps to get another set of eyes looking at the problem to bring a little objectivity.

Finally you want someone you can trust. There are few relationships in the business world that are as close as the lawyer and his client. Make sure his or her values are rock solid.

We do not accept every case. However if for some reason we cannot handle your personal injury claim or other matter we would be happy to refer you to a firm that might be able to help.

Even if you do not think we handle a certain type of case, give us a call anyway. Often we can help you find a lawyer.

It's important that you fully understand the attorneys fee in your personal injury case. We make an effort right from the start to review the contract so that you will not have any surprises or hidden charges.

We provide you with a copy of the contract so that there will be no misunderstandings. Our clients appreciate this open and honest approach to the attorneys fees. We want you to fully appreciate the value of our services and ask any questions you might have.

Personal injury cases and Workers compensation cases are often accepted based upon the attorney getting paid if you win the case. This type of attorney fee contact is called a contingent fee contract.

You can still hire an attorney by the hour if you desire but many decide to go with the contingent fee contact. If you have been injured you may be off work and have not ongoing income with which to pay an attorney. On the other hand if you do not win the case you may not have the funds to pay your attorney.

With this type of contract you can pay the attorney at the end of the case when you have the funds with which to make the payment. Also you know that the attorney doesn't get paid until the case is over so he is pushing things along. You also have some confidence that that attorney will, within the bounds of law and ethics, make the best effort to obtain the maximum recovery so you are fully compensated for your damage.

There is also a benefit to the potential defendants, oddly. Since the attorney only gets paid if there is a recovery firms will tend not to take the case if it is without merit. A percent of zero is not much of a fee.

Many people fear calling a lawyer because of the cost. They have the impression that lawyers are costly. Folks often get that idea from watching TV or hearing stories from friends. Asking, "How much will you charge me for the initial conference?" is always a good idea. 

How much will you be charged for the initial conference? We have an easy answer: Free. That's right free. Your initial conference is free for a personal injury claim, auto accident claim or workers compensation claim. Often you do not even need to come into the office as we can give you a good idea about your initial concerns over the phone. We don't give "email" conferences however. There are just too many questions that need to be answered in the initial conference and it is very hard to properly cover all the issues in email.

There are other types of cases that we handle at the firm other than personal injury claims. Other types of cases are billed by the hour or flat rate. Even for some of these we have a free initial conference.

If you are in doubt it is always  "OK" to ask a lawyer about fees right up front. We are friendly and want you to be comfortable talking with us.

We handling many auto accident claims for clients and the policy limits of the insurance often become an issue. When you buy auto insurance how much should you buy? Without giving you an exact answer I will give you a factor to consider that is often over looked.

In the fine print of every Kansas Auto Insurance policy is language dealing with what is called uninsured motorist. What is means in general is that if the driver at fault hurts you and has no insurance then you can file a claim against your own insurance company under the "uninsured motorist" provisions. How much can you recover in an uninsured motorist claim is determined by your own liability policy limits. In other words if you purchased $50,000.00 liability limits this same limit is used as your uninsured policy claim limit. So keep in mind when you are buying insurance that for many situations you are really buying protection for yourself and your family. In light of this you might want to have a little higher limit than you might otherwise think appropriate.

As we spend time with family during the holidays we are reminded that you probably need a will and some estate planning. If you do not have a will then the state will divide your property with half going to your spouse and half to your children. Most folks will want some other type of division of property and other personal instructions in the will. Estate planning is also important so your family is protected. Give us a call if you need direction. Happy Holidays.

Do I really need to hire a lawyer?

I usually hear this question during first conference in my office or by phone. (the first conference is free by the way). After the client has explained all the details sometimes we hear, "I don't really need a lawyer, do I?"

Ofcourse there is never a requirement to hire a lawyer and if you are happy with just taking whatever the insurance company offers without knowing your rights, then ofcourse don't hire a lawyer.

However if you are interested in knowing for sure what your rights are then your should at least come in for a conference. You will find out if you have a case. You will get a general idea of the value of your case and what your next step should be given your stituation.

With talking with a lawyer, you are just flying by the seat of your pants.

Do you need a personal injury lawyer? Yes and No. Do you know the law in this area of personal injury law? Do you have the experience in the area of personal injury law? Do you have the time to handle your own case?

If you answer all these questions with a "yes"; you may not need a lawyer. Usually you need help with your claim and can use the help of an experienced lawyer.

Welcome to our blog. This is our first post. We will be posting legal news, tips and other information that might help you.

Let us know if you have specific questions you would like us to address here. Thanks.

Merry Christmas!