44-556. Judicial review of actions of the board; procedure; payment of compensation pending administrative and judicial review; application of 1993 amendments; reimbursement or credit for amounts paid
44-556
44-556. Judicial review of actionsof the board; procedure; payment ofcompensation pending administrative and judicial review; application of 1993amendments; reimbursement or credit for amounts paid under certaincircumstances.(a) Any action of the board pursuant to the workerscompensation act, other than the disposition of appeals of preliminary ordersor awards underK.S.A. 44-534a and amendments thereto,shallbe subject to review in accordance with the act for judicial review and civilenforcement of agency actions by appeal directly to the court of appeals.Any party may appeal from a final order of the board by filing an appeal withthe court of appeals within 30 days of the date of the final order.When an appeal has been filed pursuant to this section, an appellee may filea cross appeal within 20 days after the date upon which the appellee was servedwith notice of the appeal.Such review shall be upon questions of law.
(b) Commencement of an action for review by the courtof appeals shall not staythe payment of compensationdue for the ten-week period next preceding the board'sdecision and for theperiod of time after the board's decision and prior to thedecision of the court of appeals on review.
(c) If review is sought on any order entered under the workers compensationactprior to October 1, 1993, such review shall be in accordance with theprovisions of K.S.A. 44-551 and this section, and any other applicableprocedural provisions of the workers compensation act, as all such provisionsexisted prior to amendment by this act on July 1, 1993.
(d) (1) If compensation, including medical benefits, temporary totaldisability benefits or vocational rehabilitation benefits, has been paidto the worker by the employer or the employer's insurance carrier during thependency of review underthis section and the amountof compensation awarded by the board isreduced ortotally disallowed by the decision on the appeal or review, the employer andthe employer's insurance carrier, except as otherwise provided in this section,shall be reimbursed from the workers compensation fund established in K.S.A.44-566a and amendments thereto for all amounts of compensation so paid whichare in excess of the amount of compensation that the worker is entitled to asdetermined by the final decision on review. The director shall determine theamount of compensation paid by the employer or insurance carrier which is to bereimbursed under this subsection (d)(1), and the director shall certify to thecommissioner of insurance the amount so determined. Upon receipt of suchcertification, the commissioner of insurance shall cause payment to be made tothe employer or the employer's insurance carrier in accordance therewith.
(2) If any temporary or permanent partial disability or temporary orpermanent total disability benefits have been paid to the worker by theemployer or the employer's insurance carrier during the pendency of reviewunder this section and theamount of compensationawarded for such benefits by the boardis reduced bythe decision on the appeal or review and the balance of compensation due theworker exceeds the amount of such reduction, the employer and the employer'sinsurance carrier shall receive a credit which shall be applied as provided inthis subsection (d)(2) for all amounts of such benefits which are in excess ofthe amount of such benefits that the worker is entitled to as determined by thefinal decision on review or appeal. If a lump-sum amount of compensation is dueand owing as a result of the decision of the court of appeals,the credit underthis subsection (d)(2) shall be applied first against such lump-sum amount. Ifthere is no such lump-sum amount or if there is any remaining credit after acredit has been applied to a lump-sum amount due and owing, such credit shallbe applied against the last compensation payments which are payable for aperiod of time after the final decision on review or appeal so that the workercontinues to receive compensation payments after such final decision until nofurther compensation is payable after the credit has been satisfied. The creditallowed under this subsection (d)(2) shall not be applied so as to stop orreduce benefit payments after such final decision, but shall be used to reducethe period of time over which benefit payments are payable after such finaldecision. The provisions of this subsection (d)(2) shall be applicable in allcases under the workers compensation act in which a final award is issued by anadministrative law judge on or after July 1, 1990.
(e) If compensation, including medical benefits, temporary total disabilitybenefits or vocational rehabilitation benefits, has been paid to the worker bythe employer, the employer's insurance carrier or the workers compensation fundduring the pendency of reviewunder this section, and pursuant to K.S.A. 44-534a or K.S.A. 44-551, andamendments thereto, andthe employer, the employer's insurance carrier or the workers compensationfund, which was held liable for and ordered to pay all or part of the amount ofcompensation awarded by the administrative law judge or board, isheld not liableby the final decision on review by either the board or anappellate court for the compensation paid or isheld liable on such appeal or review to pay an amount of compensation which isless than the amount paid pursuant to the award, then the employer, employer'sinsurance carrier or workers compensation fund shall be reimbursed by the partyor parties which were held liable on such review to pay theamount ofcompensation to the worker that was erroneously ordered paid. The directorshall determine the amount of compensation whichis to be reimbursed to each party under this subsection, if any, in accordancewith the final decision on the appeal or review and shall certify each suchamount to be reimbursed to the party required to pay the amount or amounts ofsuch reimbursement. Upon receipt of such certification, the party required tomake the reimbursement shall pay the amount or amounts required to be paid inaccordance with such certification. No worker shall be required to makereimbursement under this subsection or subsection (d).
(f) As used in subsections (d) and (e), "employers' insurance carrier"includes any qualified group-funded workers compensation pool under K.S.A.44-581 through 44-591 and amendments thereto or a group-funded pool underthe Kansas municipal group-funded pool act which includes workerscompensation and employers' liability under the workers compensation act.
(g) In any case in which any review is sought under this section and inwhich the compensability is not an issue to be decided on review, medicalcompensation shall be payable and shall not be stayed pending such review. Theworker may proceed under K.S.A. 44-510k and amendmentsthereto and may have a hearing in accordance with that statute to enforce theprovisions of this subsection.
History: L. 1927, ch. 232, § 42;L. 1929, ch. 206, § 1;L. 1955, ch. 250, § 10;L. 1961, ch. 243, § 5;L. 1967, ch. 281, § 1;L. 1970, ch. 190, § 9;L. 1974, ch. 203, § 42;L. 1976, ch. 145, § 197;L. 1977, ch. 109, § 29;L. 1979, ch. 158, § 1;L. 1982, ch. 213, § 4;L. 1986, ch. 318, § 57;L. 1987, ch. 187, § 14;L. 1989, ch. 149, § 5;L. 1990, ch. 183, § 9;Revived and amend., L. 1995, ch. 1, § 3;L. 1998, ch. 114, § 4;L. 2000, ch. 160, § 15;L. 2001, ch. 121, § 5; July 1.