Kansas Supreme Court Issues Questionable Decision
The Kansas Supreme Court issued a bad opinion for Workers Comp this week.
Someone had emailed me this decision No. 99,369 CAROLYN BERGSTROM, Appellant, v. SPEARS MANUFACTURING COMPANY AND ZURICH U.S. INSURANCE COMPANY, Appellees. I thought that it was just another Supreme Court Decision that would have little impact on Workers Compensation rates in KS. As I read over the decision, three passages jumped off the screen:
- The Board’s inquiry into whether Bergstrom made a good-faith effort to assume alternate employment is not supported by the plain language of the workers compensation statutes. The Kansas Workers Compensation Act does not require a worker to seek or accept such employment.
- K.S.A. 44-510e(a) contains no requirement that an injured worker make a good-faith effort to seek post injury employment to mitigate the employer’s liability. Foulk, Copeland, and all subsequent cases that have imposed a good-faith effort requirement on injured workers are hereby disapproved.
- Bergstrom’s second issue — that substantial competent evidence did not support the Board’s finding that she did not put forth a good-faith effort to engage in alternative employment that Spears offered her — is moot in light of our determination that the good-faith effort requirement is not a component of the workers compensation scheme.
If you are a Kansas employer, this is the same type of decision that has caused almost all insurance carriers to pull out of certain states and instantly hardened the Workers Compensation insurance markets. One state, in particular – North Carolina – actually wrote in an early 1990’s decision that this was “social legislation.” I may be premature in saying that this decision will be detrimental to Kansas’s Workers Compensation system. However, I have seen this type of decision in the past and the results had to be corrected immediately by the legislature.
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