Kansas Workers' Compensation Update
Recent case decisions in Kansas Workers Compensation Law



Does the Court of Appeals have authority to award attorney fees for services rendered on appeal before ultimate disposition of a claim?


Probably not. Two Court of Appeals decisions rendered one week apart came to different conclusions. Supreme Court Rule 7.07(b)(1) authorizes an appellate court to award attorney fees for services rendered on appeal if the district court had authority to award attorney fees.


In Karr v. Mid Central Contractors, an unpublished decision, the Court of Appeals determined that Rule 7.07(b)(1) allows for an award of attorney fees for services on appeal. Karr did not arise from a district court case. However, the Court reasoned that the “spirit” of Rule 7.07(b)(1) permits the appellate court to award attorney fees for services on appeal if any lower tribunal can award attorney fees. The Court determined that K.S.A. 44-536(g) authorizes an award of attorney fees for work before the Workers Compensation Board.  Thus, because attorney fees can be awarded at the Board level, the appellate court is permitted to award attorney fees on appeal.


However, a week after Karr was decided, the Court of Appeals issued a published opinion in Rogers v. ALT-A&M JV LLC directly contradicting Karr. Because Rogers is a published decision, it will be given precedential value over Karr. The Rogers court relied on the plain and unambiguous language of the rule and held that that Rule 7.07(b)(1) does not give appellate courts authority to award attorney fees on appeal. The Court determined that Rule 7.07(b)(1) is limited to cases heard by the district court. Because workers compensation cases are not heard by district courts, appellate courts cannot award attorney fees for services on appeal.


Karr v. Mid Cent. Contractors, No. 113,744, 2015 WL 8591327 (Kan. Ct. App. Dec. 11, 2015)


Rogers v. ALT-A&M JV LLC, No. 113,043, 2015 WL 9256928, (Kan. Ct. App. Dec. 18, 2015)



Whether the rebuttable presumption of permanent total disability set forth in K.S.A. 2008 Supp. 44-510c(a)(2) can be rebutted by a showing that a Claimant’s limited mental capacity contributed to his inability to find work?


No. In this Old Act case, Claimant sustained injury to his bilateral upper extremities. Following the injury, Claimant was unable to obtain employment. Respondent argued that it successfully rebutted the statutory presumption of permanent total disability by showing Claimant’s limited intellectual capacity contributed to his inability to find work. The Court of Appeals rejected this argument and upheld the Board’s finding of permanent total disability. The Court reasoned that the standard set forth in K.S.A. 2008 Supp.44-510c(a)(2) considers the ability of “the employee” and “not the ability of Stephen Hawking or even the ability of the theoretical average person.”


Wimp v. Am. Highway Tech., 360 P.3d 1100 (Kan. Ct. App. 2015)



Are there exceptions to the Social Security offset provision set forth in K.S.A. 2010 Supp. 44-510(h) and do they violate the Equal Protection Clause?


No. Under the Kansas Workers Compensation Act, an injured worker's compensation must be reduced by any social security retirement benefits simultaneously received, irrespective of any other considerations. The Court’s decision overruled Dickens v. Pizza Co., 266 Kan. 1066 (1999) and subsequent cases which created exceptions to the offset provision. The Court reasoned that the exceptions created by Dickens and subsequent cases were contrary to the plain meaning of K.S.A. 2010 Supp. 44-501(h). The plain and unambiguous language of the statute offsets all workers compensation benefits by the amount of social security retirement benefits received.


The Court also held that K.S.A. 2010 Supp. 44-501(h) does not violate the Equal Protection Clause of the Fourteenth Amendment. The purpose of the statute is to avoid duplication of wage-loss benefits. The Court determined that the offset provision furthers that purpose in satisfaction the rational basis test.


Hoesli v. Triplett, Inc., 361 P.3d 504 (Kan. 2015)



Whether a claimant’s preexisting asymptomatic osteoarthritis was “solely” aggravated when the work injury caused a change in the physical structure of the body and caused the preexisting osteoarthritic condition to become symptomatic?


No. In this case, Claimant had preexisting but asymptomatic osteoporosis. She suffered a work related back fracture which ultimately healed. However, she had continued pain complaints which prevented her from returning to work.


Pursuant to K.S.A. 44-508(f), “An injury is not compensable solely because it aggravates, accelerates or exacerbates a preexisting condition or renders a preexisting condition symptomatic.” The Court noted that the purpose of the statute is to preclude liability for preexisting conditions when the injury is “solely” an aggravation of the preexisting condition. In determining that Claimant’s preexisting osteoarthritis was not solely aggravated, the Court relied on the fact that Claimant suffered an identifiable trauma and fracture which could account for her continued pain. Additionally, she did not suffer from chronic pain prior to the work incident. 


Nam Le v. Meats, No. 110,761, 2015 WL 8622545 (Kan. Ct. App. Dec. 14, 2015)


© 2016 McAnany, Van Cleave & Phillips, P.A.


Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances.  This is not inclusive of all exceptions and requirements which may apply to any individual claim.  It is imperative to promptly obtain legal advice to determine the rights, obligations and options of a specific situation.