44-511. Average gross weekly wage computation; average yearly wage; state's average weekly wage.
44-511
44-511. Average gross weekly wage computation; average yearlywage; state's average weekly wage.(a) As used in this section:
(1) The term "money" shall be construed to mean the grossremuneration, on an hourly, output, salary, commission or other basis,at which the service rendered is recompensed in money by the employer,but it shall not include any additional compensation, as defined in thissection, any remuneration in any medium other than cash, or any othercompensation or benefits received by the employee from the employer orany other source.
(2) The term "additional compensation" shall include and mean onlythe following: (A) Gratuities in cash received by the employee frompersons other than the employer for services rendered in the course of theemployee's employment; (B) any cash bonuses paid by the employer within oneyear prior to the date of the accident, for which the averageweekly value shall be determined by averaging all such bonuses over theperiod of time employed prior to the date of the accident, not to exceed52 weeks; (C) board and lodging when furnished by theemployer as part of the wages, which shall be valued at a maximum of $25per week for board and lodging combined,unless the value has been fixed otherwise by the employer and employeeprior to the date of the accident, or unless a higher weekly value isproved; (D) the average weekly cash value of remuneration for servicesin any medium other than cash where such remuneration is in lieu ofmoney, which shall be valued in terms of the average weekly cost to theemployer of such remuneration for the employee; and (E) employer-paidlife insurance, health and accident insurance and employer contributionsto pension and profit sharing plans.In no case shall additional compensation include any amounts of employertaxes paid by the employer under the old-age and survivors insurance systemembodied in the federal social security system.Additional compensation shall notinclude the value of such remuneration until and unless suchremuneration is discontinued. If such remuneration is discontinuedsubsequent to a computation of average gross weekly wages under thissection, there shall be a recomputation to include such discontinuedremuneration.
(3) The term "wage" shall be construed to mean the total of themoney and any additional compensation which the employee receives forservices rendered for the employer in whose employment the employeesustains an injury by accident arising out of and in thecourse of suchemployment.
(4) The term "part-time hourly employee" shall mean and include anyemployee paid on an hourly basis: (A) Who by custom and practice orunder the verbal or written employment contract in force at the time ofthe accident is employed to work, agrees to work, or is expected to workon a regular basis less than 40 hours per week; and (B) who atthe time of the accident is working in any type of trade or employmentwhere there is no customary number of hours constituting an ordinary dayin the character of the work involved or performed by the employee.
(5) The term "full-time hourly employee" shall mean and include onlythose employees paid on an hourly basis who are not part-time hourlyemployees, as defined in this section, and who are employed in any tradeor employment where the customary number of hours constituting anordinary working week is 40 or more hours per week, or thoseemployees who are employed in any trade or employment where suchemployees are considered to be full-time employees by the industrialcustoms of such trade or employment, regardless of the number of hoursworked per day or per week.
(b) The employee's average gross weekly wage for the purpose ofcomputing any compensation benefits provided by theworkers compensation act shall be determined as follows:
(1) If at the time of the accident the money rate is fixed by theyear, the average gross weekly wage shall be the yearly rate so fixeddivided by 52, plus the average weekly value of anyadditional compensation and the value of the employee's average weeklyovertime as computed in paragraph (4) of this subsection.
(2) If at the time of the accident the money rate is fixed by themonth, the average gross weekly wage shall be the monthly rate so fixedmultiplied by 12 and divided by 52, plus the average weekly value of anyadditional compensation and the value of the employee's average weeklyovertime computed as provided in paragraph (4) of this subsection.
(3) If at the time of the accident, the money rate is fixed by theweek, the amount so fixed, plus the average weekly value of anyadditional compensation and the value of the employee's average weeklyovertime as computed in paragraph (4) of this subsection, shall be theaverage gross weekly wage.
(4) If at the time of the accident the employee's money rate wasfixed by the hour, the employee's average gross weekly wage shall bedetermined as follows: (A) If the employee was a part-time hourlyemployee, as defined in this section, the average gross weekly wageshall be determined in the same manner as provided in paragraph (5) ofthis subsection; (B) if the employee is a full-time hourly employee, asdefined in this section, the average gross weekly wage shall bedetermined as follows: (i) A daily money rate shall first be found bymultiplying the straight-time hourly rate applicable at the time of theaccident, by the customary number of working hours constituting anordinary day in the character of work involved; (ii) the straight-timeweekly rate shall be found by multiplying the daily money rate by thenumber of days and half days that the employee usually and regularlyworked, or was expected to work,but 40 hours shall constitute the minimum hours for computing the wage of afull-time hourly employee, unless the employer's regular andcustomary workweek is less than 40 hours, in which case, the number of hours insuchemployer's regular and customary workweek shall govern;(iii) the average weekly overtime of the employee shall be the totalamount earned by the employee in excess of the amount of straight-timemoney earned by the employee during the 26 calendar weeksimmediately preceding the date of the accident, or during the actualnumber of such weeks the employee was employed if less than 26 weeks,divided by the number of such weeks; and (iv) the averagegross weekly wage of a full-time hourly employee shall be the total ofthe straight-time weekly rate, the average weekly overtime and theweekly average of any additional compensation.
(5) If at the time of the accident the money rate is fixed by theoutput of the employee, on a commission or percentage basis, on aflat-rate basis for performance of a specified job, or on any otherbasis where the money rate is not fixed by the week, month, year orhour, and if the employee has been employed by the employer at least onecalendar week immediately preceding the date of the accident, theaverage gross weekly wage shall be the gross amount of money earnedduring the number of calendar weeks so employed, up to a maximum of 26calendar weeks immediately preceding the date of theaccident, divided by the number of weeks employed, or by26 as the case may be, plus the average weekly value of any additionalcompensation and the value of the employee's average weekly overtimecomputed as provided in paragraph (4) of this subsection. If theemployee had been in the employment of the employer less than onecalendar week immediately preceding the accident, the average grossweekly wage shall be determined by the administrative lawjudge based upon all of theevidence and circumstances, including the usual wage for similarservices paid by the same employer, or if the employer has no employeesperforming similar services, the usual wage paid for similar services byother employers. The average gross weekly wage so determined shall notexceed the actual average gross weekly wage the employee was reasonablyexpected to earn in the employee's specific employment, including theaverage weekly value of any additional compensation and the value of theemployee's average weekly overtime computed as provided in paragraph (4)of this subsection. In making any computations under this paragraph (5),workweeks during which the employee was on vacation, leave of absence,sick leave or was absent the entire workweek because of illness orinjury shall not be considered.
(6) (A) The average gross weekly wage of a person serving on a volunteerbasis as a duly authorized law enforcement officer,ambulance attendants and drivers as provided in subsection (b) of K.S.A.44-508, and amendments thereto, firefighter or members of regionalemergency medicalresponse teams as provided in K.S.A. 48-928, and amendments thereto, whoreceives no wages for such services, or whoreceives wages which are substantially less than the usual wages paid for suchservices by comparable employers to employees who are not volunteers, shall becomputed on the basis ofthe dollar amount closest to, but not exceeding, 112.5% ofthe state average weekly wage.
(B) The average gross weekly wage of any person performing communityservice work shall be deemed to be $37.50.
(C) The average gross weekly wage of a volunteer member ofthe Kansas department of civil air patrol officially engaged in theperformance of functions specified in K.S.A. 48-3302, and amendmentsthereto, shall bedeemed to be $476.38. Whenever the rates of compensation ofthe pay planfor persons in the classified service under the Kansas civil service actare increased for payroll periods chargeable to fiscal years commencingafter June 30, 1988, the average gross weekly wage which is deemed to bethe average gross weekly wage under the provisions of this subsection for avolunteer member of the Kansas department of civil air patrolshall be increased by an amount, adjusted to the nearest dollar, computedby multiplying the average of the percentage increases in all monthly stepsof such pay plan by the average gross weekly wage deemed to be the averagegross weekly wage of such volunteer member under the provisions ofthis subsection prior to the effective date of such increase in the ratesof compensation of the pay plan for persons in the classified service underthe Kansas civil service act.
(D) The average weekly wage of any other volunteer under the workerscompensation act, who receives no wages for such services, or who receiveswages which are substantially less than the usual wages paid for such servicesby comparable employers to employees who are not volunteers, shall be computedon the basis of the usual wages paid by the employer for such services toemployees who are not volunteers, or, if the employer has no employeesperforming such services for wages who are not volunteers, the average grossweekly wage shall be computed on the basis of the usual wages paid for suchservices by comparable employers to employees who are not volunteers. Volunteeremployment is not presumed to be full time employment.
(7) The average gross weekly wage of an employee who sustains aninjury by accident arising out of and in the course of multipleemployment, in which such employee performs the same or a very similartype of work on a part-time basis for each of two or more employers,shall be the total average gross weekly wage of such employee paid byall the employers in such multiple employment. The total average grossweekly wage of such employee shall be the total amount of the individualaverage gross weekly wage determinations under this section for eachindividual employment of such multiple employment.
(8) In determining an employee's average gross weekly wage withrespect to the employer against whom claim for compensation is made, nomoney or additional compensation paid to or received by the employeefrom such employer, or from any source other than from such employer,shall be included as wages, except as provided in this section. Nowages, other compensation or benefits of any type, except as provided inthis section, shall be considered or included in determining theemployee's average gross weekly wage.
(c) In any case, the average yearly wage shall be found bymultiplying the average gross weekly wage, as determined in subsection(b), by 52.
(d) The state's average weekly wage for any year shall be theaverage weekly wage paid to employees in insured work subject to Kansasemployment security law as determined annually by the secretary of laboras provided in K.S.A. 44-704 and amendmentsthereto.
(e) Members of a labor union or other association who performservices in behalf of the labor union or other association and who arenot paid as full-time employees of the labor union or other associationand who are injured or suffer occupational disease in the course of theperformance of duties in behalf of the labor union or other associationshall recover compensation benefits under the workers compensation actfrom the labor union or other association if the labor union or otherassociation files an election with the director to bring its members whoperform such services under the coverage of the workers compensationact.
The average weekly wage for the purpose of this subsection shall bebased on what the employee would earn in the employee's general occupationif at the time of the injury the employee had been performing work in theemployee's general occupation. The insurance coverage shall be furnished bythe labor union or other association.
History: L. 1927, ch. 232, § 11; L. 1933, ch. 74, § 1(Special Session); L. 1941, ch. 263, § 1; L. 1955, ch. 250, § 5; L.1974, ch. 203, § 18; L. 1977, ch. 175, § 3; L. 1979, ch. 156, § 9;L. 1986, ch. 189, § 2;L. 1987, ch. 187, § 9;L. 1988, ch. 167, § 6;L. 1993, ch. 286, § 37;L. 2001, ch. 121, § 3;L. 2002, ch. 149, § 4;L. 2004, ch. 179, § 16; July 1.