Monthly Archives: December 2012

When Is a Kansas Work-Related Injury within the Scope of Employment? [Part I]

While most Kansas workers compensation claimants may be aware that financial compensation for on-the-job injuries does not require fault by the employer, this does not mean that all workplace injuries are covered.  An important requirement for a work-related injury to be covered by workers compensation benefits is that the injury occur within the “scope of employment.”  While some situations fall squarely within the scope of employment, such as an employee falling from a ladder while installing a new roof while employed by a construction company, many situations are not so straightforward.

There are many disputed workers compensation claims that turn on the subtle difference between a “detour” and a “frolic.”  Essentially, these cases involve situations where the employee is away from the workplace, making the purpose of the excursion critical to determining the applicability of workers compensation coverage.  In simply terms, a frolic refers to an activity that is a significant departure from an employee’s job duties which has no connection to the employment relationship.  By contrast, a detour may be for the benefit of the employee but does not constitute a significant deviation from tasks that benefit one’s employer.

The notion of evaluating whether a task is within the scope of employment is derived from the law regarding vicarious liability, which refers to the legal responsibility of one individual for the negligence of another based on the nature of the relationship.  For example, an employer whose employee hits a pedestrian in a crosswalk while driving to the bank to make a deposit for the employer may be vicariously liable for the negligence of the driver.  Conversely, an employee who leaves work on his or her lunch break to travel an hour away and purchase concert tickets for his or her paramour may not expose an employer to vicarious liability.

The legal concept of determining whether an injury occurs within the scope of employment also applies when assessing whether an injury is covered by workers compensation law.  The distinction between a frolic and mere detour can be extremely subtle despite the enormous impact this designation can have on a workers compensation claim.  There are a wide range of factors that may be relevant to the distinction between a frolic and a detour.  We encourage you to review Part 2 of this blog which provides an analysis of the difference between these two legal concepts.

If you or someone close to you has suffered a work-related injury, experienced Kansas workers compensation lawyer Michael R. Lawless can help you pursue medical treatment, lost income and benefits for permanent disability.  Our Lenexa, KS workers compensation law firm is dedicated to balancing the scales of justice so that you can obtain the compensation that you deserve.  We invite you to call us toll free at 1-800-734-3771 or visit our website and submit a case inquiry form today.

Recent Changes in Kansas Workers Compensation Laws Pose Challenges

Kansas is one of several states to implement major changes to its workers compensation system in recent years.  Many injured workers are unaware of the challenges these changes may create for employees seeking compensation for serious injuries that are not the result of a sudden accident but result from a prolonged course of exposure to degenerative conditions like repetitive motion injuries.  We have provided an overview of some special considerations that every employee in Kansas with an injury that occurs over time should consider.

Prior to the overhaul in Kansas workers compensation laws about a year and a half ago, employees had two and a half months to report a work-related injury to their employer.  The recent changes in Kansas workers compensation laws shortened this reporting time to twenty days.  This time limit can be extremely unfair for an employee with an injury like carpel tunnel.  Carpal tunnel may not immediate manifest symptom because it is a degenerative condition rather than an injury caused by a sudden traumatic accident.

The delayed symptoms of carpel tunnel may not occur when an employee is actually at work.  If the onset of symptoms, such as pain, burning and tingling in the palm of the hand or fingers is during the time when an employee is not at work, there may be no reason to expect the employee to associate the injury with work duties.  If the worker goes to his or her primary care physician, this will generally lead to a referral out to a specialist.  The specialist may order diagnostic exams, but the process of a medical professional diagnosing the injury and linking it to work duties may take several weeks so that the employee fails to report the injury to his or her employer in a timely fashion.

The risk for employees of failing to report the injury within the required time is compounded because the employee’s health insurance may deny coverage for injuries that are work-related and fall under the auspices of workers compensation insurance.

Another issue that may arise because of the revisions made to Kansas workers compensation laws when employees suffer degenerative injuries involves establishing the “prevailing factor.”  The revisions made to the workers compensation system require that job duties be the prevailing factor in causing a work-related injury.  If a woman is pregnant, gestational diabetes increases a woman’s susceptibility to carpel tunnel.  Because the physician will refer the employee to a physician, this complicates the process of proving the prevailing factor was an employee’s job duties.  This may result in the need for 2nd opinions or increased litigation costs for injured workers in Kansas.

If you or someone close to you has suffered a work-related injury, experienced Kansas workers compensation lawyer Michael R. Lawless can help you pursue medical treatment, lost income and benefits for permanent disability.  Our Lenexa, KS workers compensation law firm is dedicated to balancing the scales of justice so that you can obtain the compensation that you deserve.  We invite you to call us toll free at 1-800-734-3771 or visit our website and submit a case inquiry form today.

Seeking More Extensive Recovery for Kansas Workplace Injuries: Third Party Liability

While the Kansas workers compensation system can provide an effective means to obtain medical care and partial replacement for lost income resulting from workplace injuries, the compensation available under an employer’s workers compensation system may be more limited than personal injury damages.  Compensation under an employer’s workers compensation insurance typically will be limited to medical care, temporary disability benefits and compensation based on an employee’s percentage of permanent disability.

While these benefits can provide an important means for injury victims to get their lives back on track after a workplace accident, there are many forms of damages available in a personal injury lawsuit that are not available as part of a Kansas workers compensation claim.  Some of the types of damages that are exclusively available in a civil lawsuit for personal injury include:

  • Pain and suffering
  • Loss of consortium
  • Punitive damages
  • Diminished enjoyment of life
  • Emotional distress/Mental anguish

These forms of non-economic damages often constitute the most significant components of a damage award in a personal injury lawsuit so the unavailability of these forms of financial recovery can significantly impact one’s financial security following a worksite injury.  Recovery for economic losses like lost wages and diminished earning potential also is frequently more extensive in a personal injury lawsuit than a workers compensation claim.

The primary benefit of pursuing a claim under Kansas workers compensation insurance is the speed of recovery and the lack of necessity of establishing the fault of one’s employer.  Because of the less extensive recovery, many times our Kansas workers compensation law firm will also explore the viability of a personal injury claim against responsible third parties.  While the workers compensation system generally provides an exclusive remedy against an employer for on-the-job injuries and fatalities, a third party that was negligent may still be sued for personal injury even if an injured employee receives benefits through the workers compensation system.

When our Kansas workers compensation law firm represents a worker injured while performing duties for their employer, we explore the factual circumstances to identify potential third parties who may be sued as defendants in a civil lawsuit for damages.  Sometimes the conduct of product suppliers, manufacturers of defective equipment, contractors and other parties may contribute to a workplace injury.

If you or someone close to you has suffered an employment-related injury, experienced Kansas workers compensation lawyer Michael R. Lawless can help you pursue your workers compensation claim and even a personal injury lawsuit based on third party liability.  Our Lenexa, KS workers compensation law firm offers a free consultation so call us toll free at 1-800-734-3771 or visit our website and submit a case inquiry form.

Am I Eligible for Kansas Workers Compensation Benefits If I Was Negligent?

Kansas workers compensation attorney Michael R. Lawless receives many inquiries from injured employees regarding their rights to recover financial compensation when their own conduct contributes to their injuries.  Tragically, there are some workers that simply presume that they cannot be compensated for injuries caused by their own negligence while working for their employer.  This assumption is based on a misunderstanding of the basic “no fault” premise of the workers compensation system.  An employee injured on the job in Kansas can generally recover for injuries incurred in the scope of employment even if the employee’s own conduct contributed to the injuries.

The Kansas workers compensation system is designed to provide an efficient mechanism for employees to obtain medical treatment, income replacement and compensation for permanent disability, which may include a lump sum payout.  While the “no fault” nature of workers compensation insurance is designed to eliminate the complexity and delay of litigation, it typically provides far more limited forms of compensation than the damages that are generally available in a personal injury lawsuit.

When an injury victim fails to exercise reasonable care to prevent self-injury, this is referred to as comparative negligence under Kansas personal injury law.  Comparative negligence by an injury victim will reduce damages that may be recovered in a personal injury action and even bar recovery entirely where the injury victim bears a greater degree of fault than the defendant(s).  However, there is no such reduction of recovery when pursuing a workers compensation claim based on an employee’s negligence subject to limited exceptions.

There are a limited number of situations in which an employee’s conduct in contributing to an injury may negate the employee’s right to benefits under an employer’s workers compensation insurance, such as:

  • Injuries where alcohol, narcotic or prescription drug impairment contributes to the injury
  • The employee intentionally causes his or her own injury
  • Willful refusal to use safety equipment required by statute
  • Reckless violation of employer safety regulations/rules
  • Willful decision not to use reasonable safety guards provided by the employer
  • Injuries caused by fighting or horseplay with a co-worker

While these conditions may seem straightforward, disputes can arise about whether these exceptions apply to a particular workers compensation claim.  A physical fight with a co-worker may be covered, for example, if the fight arises out of an employment related dispute.  However, a fight at the worksite related to a personal dispute between co-workers generally will not be covered by workers compensation.

If you or someone close to you has suffered a work-related injury, experienced Kansas workers compensation lawyer Michael R. Lawless can help you pursue medical treatment, lost income and benefits for permanent disability.  Our Lenexa, KS injury law firm may also be able to assist you in pursuing a civil lawsuit for damages against a third party that contributed to your injuries so call us toll free at 1-800-734-3771 or visit our website and submit a case inquiry form.