44-504. Remedy against negligent third party; employer and workers compensation fund subrogated, exclusion; credits against future payments; limitation of actions; attorney fees.
44-504
44-504. Remedy against negligent third party; employer andworkers compensation fund subrogated, exclusion; credits against futurepayments; limitation of actions; attorneyfees.(a) When the injury or death for which compensation is payable under theworkers compensation act was caused under circumstances creating a legalliability against some person other than the employer or any person in thesame employ to pay damages, the injured worker or the worker's dependents orpersonalrepresentatives shall have the right to take compensation under the workerscompensation act and pursue a remedy by proper actionin a court of competent jurisdiction against such other person.
(b) In the event of recovery from such other person by the injured workeror the dependents or personal representatives of a deceased worker by judgment,settlement or otherwise, the employer shall besubrogated to the extent of the compensation and medical aid provided bythe employer to the date of such recovery and shall have a lien thereforagainstthe entire amount of such recovery, excluding any recovery, or portion thereof, determinedby a court to be loss of consortium or loss of services to a spouse. Theemployer shallreceive notice of the action, have aright to interveneandmay participate in the action. The district court shall determine the extentof participation of the intervenor, including the apportionment of costs andfees.Whenever any judgment in any suchaction, settlement or recovery otherwise is recovered by the injured workeror the worker's dependents or personal representative prior to the completionof compensation or medical aid payments, the amount of such judgment,settlement or recovery otherwise actually paid and recovered which is inexcess of the amount of compensation and medical aid paid to the date ofrecovery of such judgment, settlement or recovery otherwise shall becredited against future payments of the compensation or medical aid. Suchaction against the other party, if prosecuted by the worker, must beinstituted within one year from the date of the injury and, ifprosecuted by the dependents or personal representatives of a deceased worker,must be instituted within 18months from the date ofsuch injury.
(c) Failure on the part of the injured worker, or the dependents orpersonal representatives of a deceased worker to bring such action withinthe time specified by this section, shall operate as anassignment to the employerof any cause of action in tort which the worker or the dependents orpersonal representatives of a deceased worker may have against any otherparty for such injury or death, and such employer may enforce the causeof action in the employer's name or in the name of the worker, dependents or personalrepresentatives for their benefit as their interest may appear by properaction in any court of competent jurisdiction. The court shall fix the attorneyfees which shall be paid proportionately by theemployer andemployee in the amounts determined by the court.
(d) If the negligence of the worker's employer or those for whom theemployeris responsible, other than the injured worker, is found to have contributedto the party's injury, the employer's subrogation interest or credits againstfuture payments of compensation and medical aid, as provided by this section,shall be diminished by the percentage of the recoveryattributed tothe negligence of the employer or those for whom the employer is responsible,other than the injured worker.
(e) In any case under the workers compensation act in which the workerscompensation fund has paid or is paying compensation, the workers compensationfund is hereby subrogated to the rights of the employer under this sectionand shall have all the rights of subrogation or to credits against futurecompensation payments which are granted to the employer by this section.The commissioner of insurance may exercise all such rights for the fundto the same extent that such rights may be exercised by the employer underthis section, including the right to intervene, to enforce a lien or tobring any cause of action, all as provided in this section.
(f) As used in this section, "compensation and medical aid" includesall payments of medical compensation, disability compensation, deathcompensation,including payments under K.S.A. 44-570 and amendments thereto, and any otherpayments made or provided pursuant to the workers compensation act.
(g) In any case under the workers compensation act in which theworkers compensation fund or an insurer or a qualified group-fundedworkers compensation pool, as provided in K.S.A. 44-532 and amendmentsthereto, is subrogated to the rights of the employer under the workerscompensation act, the court shall fix the attorney fees which shall be paidproportionately by the workers compensation fund, insurer or qualifiedgroup-funded workers compensation pool and the worker or such worker'sdependents or personal representatives in the amounts determined by thecourt based upon the amounts to be received from any recovery pursuant toan action brought under this section.
History: L. 1927, ch. 232, § 4; L. 1938, ch. 50, § 1; L. 1947,ch. 287, § 1; L. 1955, ch. 250, § 1; L. 1961, ch. 243, § 10; L.1967, ch. 280, § 2; L. 1974, ch. 203, § 3; L. 1982, ch. 212, § 1;L. 1988, ch. 166, § 1;L. 1993, ch. 286, § 26; July 1.