Kansas Workers’ Compensation Reform Bill Contains Some Interesting Changes with Regard to Future Medical Benefits
On April 18, 2011, Kansas Governor Sam Brownback signed Substitute for House Bill 2134, described as the first significant reform to Kansas WC since 1993. Among some changes to benefit caps and consideration of pre-existing conditions, the following sections had some interesting amendments to future medical benefits that may help limit the open-ended obligations created by CMS at the time of settlement when the state law does not provide for a means to limit medical benefits. If we can’t get Congress to fix the MSP, then perhaps we can get the more states to fix workers’ compensation.
[italics represents the added text]
Sec. 11. K.S.A. 2010 Supp. 44-510h is hereby amended to read as follows:…
(e) It is presumed that the employer’s obligation to provide the services
of a health care provider, and such medical, surgical and hospital treatment,
including nursing, medicines, medical and surgical supplies, ambulance,
crutches, apparatus and transportation to and from the home of the
injured employee to a place outside the community in which such employee
resides, and within such community if the director, in the director’s discretion,
so orders, including transportation expenses computed in accordance
with subsection (a) of K.S.A. 44-515, and amendments thereto, shall terminate
upon the employee reaching maximum medical improvement. Such
presumption may be overcome with medical evidence that it is more probably
true than not that additional medical treatment will be necessary after
such time as the employee reaches maximum medical improvement. The
term ‘‘medical treatment’’ as used in this subsection (e) means only that
treatment provided or prescribed by a licensed health care provider and
shall not include home exercise programs or over-the-counter medications.
Sec. 12. K.S.A. 2010 Supp. 44-510k is hereby amended to read as follows: 44-510k. (a) (1) At any time after the entry of an award for compensation wherein future medical benefits were awarded, the employee, employer or insurance carrier may make application for a hearing, in such form as the director may require for the furnishing termination or modification of medical treatment. Such post-award hearing shall be held by
assigned administrative law judge, in any county designated by the administrative law judge, and the judge shall conduct the hearing as provided in K.S.A. 44-523, and amendments thereto.
(2) The administrative law judge can (A) make an award for further medical care if the administrative law judge finds that it is more probably true than not that the injury which was the subject of the underlying award is the prevailing factor in the need for further medical care and that the care requested is necessary to cure or relieve the effects of such injury, or (B) terminate or modify an award of current or future medical care if the administrative law judge finds that no further medical care is required, the injury which was the subject of the underlying award is not the prevailing factor in the need for further medical care, or that the care requested is not necessary to cure or relieve the effects of such injury.
(3) If the claimant has not received medical treatment, as defined in subsection (e) of K.S.A. 44-510h, and amendments thereto, from an authorized health care provider within two years from the date of the award or two years from the date the claimant last received medical treatment from an authorized health care provider, the employer shall be permitted to make application under this section for permanent termination of future medical benefits. In such case, there shall be a presumption that no further medical care is needed as a result of the underlying injury. The presumption may be overcome by competent medical evidence.
(4) No post-award benefits shall be ordered, modified or terminated without giving all parties to the award the opportunity to present evidence, including taking testimony on any disputed matters. A finding with regard to a disputed issue shall be subject to a full review by the board under subsection (b) of K.S.A. 44-551, and amendments thereto. Any action of the board pursuant to post-award orders shall be subject to review under K.S.A. 44-556, and amendments thereto.
Sec. 18. K.S.A. 44-525 is hereby amended to read as follows: 44-525. (a) Every finding or award of compensation shall be in writing signed and acknowledged by the administrative law judge and shall specify the amount due and unpaid by the employer to the employee up to the date of the award, if any, and the amount of the payments thereafter to be paid by the employer to the employee, if any, and the length of time such payment shall continue. No award shall include the right to future medical treatment, unless it is proved by the claimant that it is more probable than not that future medical treatment, as defined in subsection (e) of K.S.A. 44-510h, and amendments thereto, will be required as a result of the work-related injury. The award of the administrative law judge shall be effective the day following the date noted in the award.
[full text of the bill available at: http://www.kslegislature.org/li/b2011_12/year1/measures/documents/hb2134_enrolled.pdf]