44-534a. Preliminary hearings; orders for medical treatment and temporary total disability benefits; review of preliminary findings and orders; reimbursement from workers compensation fund.
44-534a
44-534a. Preliminary hearings; orders for medical treatment and temporarytotal disability benefits; review of preliminaryfindings and orders; reimbursement from workers compensation fund.(a) (1) After an application for a hearing has been filed pursuant to K.S.A.44-534 and amendments thereto, the employee or the employer may makeapplication for a preliminary hearing, in such form as the director mayrequire, onthe issues of the furnishing of medical treatment and the payment of temporarytotal disability compensation. At least seven days prior to filing anapplication for a preliminary hearing, the applicant shall give written noticeto the adverse party of the intent to file such an application. Such notice ofintent shall contain a specific statement of the benefit changebeing sought that is to be the subject of the requested preliminary hearing. Ifthe parties do not agree to the change of benefits within the seven-day period,the party seeking a change in benefits may file an application for preliminaryhearing which shall be accompanied by a copy of the notice of intent and theapplicant's certification that the notice of intent was served on the adverseparty or that party's attorney and that the request for a benefit change haseither been denied or was not answered within seven days after service. Copiesof medical reports or other evidence which the party intends to produce asexhibits supporting the change of benefits shall be included with theapplication. The director shall assign theapplication to an administrative law judge who shall set the matter for apreliminary hearing andshall give at least seven days' written noticeby mail to the parties of the date set for such hearing.
(2) Such preliminaryhearing shall be summary in nature and shall be held by anadministrative law judge in any county designated by theadministrative law judge, and the administrative law judgeshallexercise such powers as are provided for the conduct of full hearings on claimsunder the workers compensation act. Upon a preliminary finding that the injuryto the employee is compensable and in accordance with the facts presented atsuch preliminary hearing, the administrative law judge may make apreliminary award of medical compensation and temporary total disabilitycompensation to be in effect pending the conclusion of a full hearing on theclaim, exceptthat if the employee's entitlement to medical compensation or temporary totaldisability compensation is disputed or there is a dispute as to thecompensability of the claim, no preliminary award of benefits shall be enteredwithout giving the employer the opportunity to present evidence, includingtestimony, on the disputed issues. A finding with regard to a disputed issue ofwhether the employee suffered an accidental injury, whether theinjury arose out of and in the course of the employee's employment,whether notice is givenor claim timely made, or whether certain defenses apply, shall be consideredjurisdictional, and subject to review by the board.Such review by the board shall not be subject to judicial review.If an appeal from a preliminary order is perfected under this section, suchappeal shall not stay the payment of medical compensation and temporary totaldisability compensation from the date of the preliminary award.If temporary total compensation is awarded, such compensation may beordered paid from the date of filing the application, except that if theadministrative law judge finds from the evidence presented that there were oneor more periods of temporary total disability prior to such filing date,temporary total compensation may be ordered paid for all periods of temporarytotal disability prior to such date of filing. The decision in such preliminaryhearing shall be rendered within five days of the conclusion of such hearing.Except as provided in this section, no such preliminary findings orpreliminary awards shall be appealable by any party to the proceedings, and thesame shall not be binding in a full hearingon the claim, but shall be subject to a full presentation of the facts.
(b) If compensation in the form of medical benefits or temporary totaldisability benefits has been paid by theemployer or the employer's insurance carrier either voluntarily or pursuant toan award entered under this section and, upon a full hearing on theclaim, the amount of compensation to which the employee is entitled is found tobe less than the amount of compensation paid or is totally disallowed, theemployer and the employer's insurance carrier shall be reimbursed from theworkers compensation fund established in K.S.A. 44-566a and amendments thereto,for all amounts of compensation so paid which are in excess of the amount ofcompensation the employee is entitled toless any amount deducted from additional disability benefits due the employeepursuant to subsection (c) of K.S.A. 44-525, and amendments thereto,as determined in the full hearing onthe claim. The director shall determine the amount of compensation paid by theemployer or insurance carrier which is to be reimbursed under this subsection,and the director shall certify to the commissioner of insurance the amount sodetermined. Upon receipt of such certification, the commissioner of insuranceshall cause payment to be made to the employer or the employer's insurancecarrier in accordance therewith. No reimbursement shall be certified unlessthe request is made by the employer or employer's insurance carrier within oneyear of the final award.
History: L. 1974, ch. 203, § 34;L. 1979, ch. 156, § 12;L. 1980, ch. 146, § 9;L. 1982, ch. 213, § 3;L. 1987, ch. 187, § 12;L. 1987, ch. 189, § 2;L. 1989, ch. 149, § 4;L. 1990, ch. 183, § 7;L. 1993, ch. 286, § 49;L. 1996, ch. 79, § 10;L. 1997, ch. 125, § 9; July 1.