Kansas Supreme Court Issues Opinion On Alternate Employment

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Kansas Supreme Court Issues Questionable Decision

The Kansas Supreme Court issued a bad opinion for Workers Comp this week.

State Of Kansas Supreme Court Emblem
Wikipedia – State of Kansas

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.
Questionable Kansas Supreme Court Graphics
StockUnlimited

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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James Moore

Raleigh, NC, United States

About The Author...

James founded a Workers’ Compensation consulting firm, J&L Risk Mgmt Consultants, Inc. in 1996. J&L’s mission is to reduce our clients’ Workers Compensation premiums by using time-tested techniques. J&L’s claims, premium, reserve and Experience Mod reviews have saved employers over $9.8 million in earned premiums over the last three years. J&L has saved numerous companies from bankruptcy proceedings as a result of insurance overpayments.

James has over 27 years of experience in insurance claims, audit, and underwriting, specializing in Workers’ Compensation. He has supervised, and managed the administration of Workers’ Compensation claims, and underwriting in over 45 states. His professional experience includes being the Director of Risk Management for the North Carolina School Boards Association. He created a very successful Workers’ Compensation Injury Rehabilitation Unit for school personnel.

James’s educational background, which centered on computer technology, culminated in earning a Masters of Business Administration (MBA); an Associate in Claims designation (AIC); and an Associate in Risk Management designation (ARM). He is a Chartered Financial Consultant (ChFC) and a licensed financial advisor. The NC Department of Insurance has certified him as an insurance instructor. He also possesses a Bachelors’ Degree in Actuarial Science.

LexisNexis has twice recognized his blog as one of the Top 25 Blogs on Workers’ Compensation. J&L has been listed in AM Best’s Preferred Providers Directory for Insurance Experts – Workers Compensation for over eight years. He recently won the prestigious Baucom Shine Lifetime Achievement Award for his volunteer contributions to the area of risk management and safety. James was recently named as an instructor for the prestigious Insurance Academy.

James is on the Board of Directors and Treasurer of the North Carolina Mid-State Safety Council. He has published two manuals on Workers’ Compensation and three different claims processing manuals. He has also written and has been quoted in numerous articles on reducing Workers’ Compensation costs for public and private employers. James publishes a weekly newsletter with 7,000 readers.

He currently possess press credentials and am invited to various national Workers Compensation conferences as a reporter.

James’s articles or interviews on Workers’ Compensation have appeared in the following publications or websites:

  • Risk and Insurance Management Society (RIMS)
  • Entrepreneur Magazine
  • Bloomberg Business News
  • WorkCompCentral.com
  • Claims Magazine
  • Risk & Insurance Magazine
  • Insurance Journal
  • Workers Compensation.com
  • LinkedIn, Twitter, Facebook and other social media sites
  • Various trade publications

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