44-510e. Compensation for temporary or permanent partial general disabilities; extent of disability; functional impairment defined; termination upon death from other causes; limitations; other remedie
44-510e
44-510e. Compensation for temporary or permanent partialgeneral disabilities; extent of disability; functional impairment defined;termination upon death from other causes; limitations;other remedies excluded.(a) If the employer and the employee are unableto agree upon theamount of compensation to be paid in the case of injury not covered by theschedule in K.S.A. 44-510d and amendments thereto,the amount of compensation shall besettled according to the provisions of the workerscompensation act as inother cases of disagreement, except that in case of temporary orpermanent partial general disability not covered by such schedule, the employeeshall receive weekly compensation as determined inthis subsection during such period of temporary or permanent partial generaldisabilitynot exceeding a maximum of 415 weeks. Weeklycompensation for temporary partial general disability shall be 66 2/3%of the difference between the averagegross weekly wage that the employee was earning prior to such injury asprovided in the workers compensation act and the amount the employee isactuallyearning after such injury in any type of employment, except that in nocase shall such weeklycompensation exceed the maximum as provided for in K.S.A.44-510c and amendments thereto. Permanent partialgeneral disability exists when the employee is disabled in a mannerwhich is partial incharacter and permanentin quality and which is not covered by the schedule in K.S.A. 44-510d andamendments thereto. The extent of permanent partialgeneral disability shall be theextent, expressed as a percentage,to which the employee, in the opinion ofthe physician, has lost the ability to perform the work tasks that the employeeperformed in any substantial gainful employment during the fifteen-year periodpreceding the accident, averaged together with the difference between theaverage weekly wage the worker was earning at the time of the injury and theaverage weekly wage the worker is earning after the injury. In any event,the extent of permanentpartial general disability shall not be less than the percentage offunctionalimpairment. Functional impairmentmeans the extent, expressed as a percentage, of the loss of a portion ofthe total physiological capabilities of the human body as establishedby competent medical evidenceand based on the fourth edition of the American Medical Association Guides tothe Evaluation of Permanent Impairment, if the impairment is containedtherein. An employee shall not be entitled to receive permanent partialgeneral disabilitycompensation in excess of the percentage of functional impairment as long astheemployee is engaging in any work for wagesequal to 90% or more of the averagegross weekly wage that the employee was earning at the time of the injury.If the employer and the employee are unable to agree upon theemployee's functional impairment and if at least two medical opinions basedon competent medical evidence disagree as to the percentage of functionalimpairment, such matter may be referred by theadministrative law judgeto an independent health care provider who shall be selected by theadministrative law judgefrom a list of health care providers maintained by the director.The health care provider selected by the director pursuant to this sectionshall issue an opinion regarding the employee's functional impairmentwhich shall be considered by the administrative law judge in making the finaldetermination. The amount of weekly compensation for permanent partial generaldisability shall be determined as follows:
(1) Find the payment rate which shall be the lesser of (A) the amountdetermined bymultiplying the average gross weekly wage of the worker prior to suchinjury by 66 2/3% or (B) the maximum provided in K.S.A. 44-510c andamendments thereto;
(2) find the number ofdisability weeks payable by subtracting from 415 weeks the total number ofweeks oftemporary total disability compensation was paid, excluding the first 15 weeksof temporary total disability compensation that was paid, and multiplying theremainder bythe percentage of permanent partial general disability asdetermined under this subsection (a); and
(3) multiply the number of disability weeks determined in paragraph (2) ofthis subsection (a) by the payment rate determined in paragraph (1) of thissubsection (a).
The resulting award shall be paid for the number of disability weeks at thefull payment rate until fully paid or modified. If there is an award ofpermanent disability as a result of the compensable injury, there shall be apresumption thatdisability existed immediately after such injury. In any case of permanentpartial disability under this section, the employee shall be paidcompensation for not to exceed 415 weeks followingthe date of such injury, subject to review and modification as provided inK.S.A. 44-528 and amendments thereto.
(b) If an employee has received an injury for whichcompensation is beingpaid, and the employee's death is caused by other andindependent causes, anypayment of compensation already due the employee at the time of death and thenunpaid shall be paid to the employee's dependents directly orto the employee's legalrepresentatives if the employee left no dependent, but theliability of the employerfor the payments of compensation not yet due at the time of the death ofsuch employee shall cease and be abrogated by theemployee's death.
(c) The total amount of compensation that may be allowed or awarded aninjured employee for all injuries received in any one accident shall in noevent exceed the compensation which would be payable under theworkers compensation act for 100% permanent totaldisability resulting from suchaccident.
(d) Where a minor employee or a minor employee'sdependents are entitled to compensation underthe workers compensation act, such compensation shall beexclusive of allother remedies or causes of action for such injury or death, and no claimor cause of action against the employer shall inure or accrue to or existin favor of the parent or parents of such minor employee on account of anydamage resulting to such parent or parents on account of the loss ofearnings or loss of service of such minor employee.
(e) In any case of injury to or death of an employee, wherethe employee or the employee's dependents are entitled tocompensation underthe workers compensation act, such compensation shall beexclusive of allother remedies or causes of action for such injury or death, and no claimor action shall inure, accrue to or exist in favor of the survivingspouseor any relative or next of kin of such employee against suchemployer on account of any damage resulting to such survivingspouse orany relative or next of kin on account of the loss of earnings, services,or society of such employee or on any other account resulting fromor growing out of the injury or death of such employee.
History: L. 1968, ch. 102, § 7; L. 1970, ch. 190, § 4; L. 1974,ch. 203, § 14;L. 1987, ch. 187, § 7;L. 1993, ch. 286, § 34;L. 1996, ch. 79, § 6; Apr. 4.