44-567. Same; employment or retention of handicapped workers; relief from or apportionment of liability for subsequent injuries; knowledge of impairment; presumptions; commissioner of insurance to be
44-567
44-567. Same; employment or retention ofhandicapped workers; relief from or apportionment of liability forsubsequent injuries; knowledge ofimpairment; presumptions; commissioner of insurance to beimpleaded.(a) An employer who operates within the provisions of theworkers compensation act and who knowingly employs orretains a handicappedemployee, as defined in K.S.A. 44-566 and amendments theretoshall be relieved of liability for compensation awarded or be entitledto an apportionment of the costs thereof as follows:
(1) Whenever a handicapped employee is injured or is disabled ordies as a result of an injury which occurs prior to July 1, 1994, and theadministrative law judgeawards compensationtherefor and finds the injury, disability or the death resultingtherefrom probably or most likely would not have occurred but for thepreexisting physical or mental impairment of the handicapped employee,all compensation and benefits payable because of the injury, disabilityor death shall be paid from the workers compensation fund; and
(2) subject to the other provisions of the workerscompensation act,whenever a handicapped employee is injured or is disabled or dies as aresult of an injury and the administrative law judge finds theinjury probably ormost likely would have been sustained or suffered without regard to theemployee's preexisting physical or mental impairment but the resultingdisability or death was contributed to by the preexisting impairment,the administrative law judge shall determine in a manner whichis equitable andreasonable the amount of disability andproportion of the cost of award which is attributable to the employee'spreexisting physical or mental impairment, and the amount so found shallbe paid from the workers compensation fund.
(b) In order to be relieved of liability under this section, theemployer must prove either the employer had knowledge of thepreexisting impairment at the time the employer employed the handicappedemployee or the employer retained the handicapped employee inemployment after acquiring such knowledge. The employer's knowledge ofthe preexisting impairment may be established by any evidence sufficientto maintain the employer's burden of proof with regard thereto.If theemployer, prior to the occurrence of a subsequent injury to ahandicapped employee, files with the director a notice of the employmentor retention of such employee, together with a description of thehandicap claimed, such notice and description of handicap shall createa presumption that the employer had knowledge of the preexistingimpairment.If the employer files a written notice of an employee's preexistingimpairment with the director in a form approved by the director therefor,such notice establishes the existence of a reservation in the mind of theemployer when deciding whether to hire or retain the employee.
(c) Knowledge of the employee's preexisting impairment or handicapat the time the employer employs or retains the employee in employmentshall be presumed conclusively if the employee, in connection with anapplication for employment or an employment medical examination orotherwise in connection with obtaining or retaining employment with theemployer, knowingly: (1) Misrepresentsthat such employee does not have such an impairment or handicap; (2)misrepresents that such employee has not had any previous accidents; (3)misrepresentsthat such employee has not previously been disabled or compensated in damagesor otherwise because of any prior accident, injury or disease; (4)misrepresents that such employeehas not had any employmentterminated or suspended because of any prior accident, injury ordisease; (5) misrepresents that suchemployee does not have any mental,emotional or physical impairment, disability, condition, disease orinfirmity; or (6) misrepresents or conceals any facts or informationwhich are reasonably related to the employee's claim for compensation.
(d) An employer shall not be relieved of liability for compensationawarded nor shall an employer be entitled to an apportionment of the coststhereof as provided in this section, unless the employer shall cause thecommissioner of insurance, in the capacity of administrator of theworkers compensation fund, to be impleaded, as provided in K.S.A.44-566a and amendments thereto, in any proceedings todetermine the compensation to be awarded a handicapped employee who isinjured or disabled or has died, by giving written notice of theemployee's claim to the commissioner of insurance ten days prior to thefirstfull hearing where any evidence is presented on the claim.
(e) Amendments to this section shall apply only to cases where ahandicapped employee, or the employee's dependents, claims compensation as aresult of an injury occurring after the effective date of suchamendments.
(f) The total amount of compensation due the employee shall be theamount for disability computed as provided in K.S.A. 44-503a,44-510a through 44-510i and 44-511, and amendmentsthereto, and in no case shall the payments be less nor more than theamounts provided in K.S.A. 44-510c and amendments thereto.
History: L. 1945, ch. 221, § 2;L. 1947, ch. 290, § 1;L. 1955, ch. 250, § 12;L. 1957, ch. 293, § 8;L. 1961, ch. 243, § 9;L. 1967, ch. 280, § 13;L. 1970, ch. 190, § 11;L. 1974, ch. 203, § 47;L. 1977, ch. 179, § 2;L. 1979, ch. 156, § 15;L. 1982, ch. 213, § 7;L. 1987, ch. 187, § 15;L. 1987, ch. 189, § 3;L. 1993, ch. 286, § 62;L. 1997, ch. 125, § 16;L. 2000, ch. 160, § 18; July 1.