Workers compensation fund to facilitate employment of handicapped workers; definitions

44-566. Workers compensation fund to facilitate employment of handicapped workers; definitions. For the purposes of the workmen's compensation act, the following terms are defined as follows: (a) "Member of the body" means an eye, arm, hand, leg or foot. (b) "Handicapped employee" means one afflicted with or subject to any physical or mental impairment, or both, whether congenital or due to an injury or disease of such character the impairment constitutes a handicap in obtaining employment or would constitute a handicap in obtaining reemployment if the employee should become unemployed and the handicap is due to any of the following diseases or conditions: 1. Epilepsy; 2. Diabetes; 3. Cardiac disease; 4. Arthritis; 5. Amputated foot, leg, arm or hand; 6. Loss of sight of one or both eyes or a partial loss of vision of more than 75% bilaterally; 7. Residual disability from poliomyelitis; 8. Cerebral palsy; 9. Multiple sclerosis; 10. Parkinson's disease; 11. Cerebral vascular accident; 12. Tuberculosis; 13. Silicosis or asbestosis; 14. Psychoneurotic or mental disease or disorder established by medical opinion or diagnosis; 15. Loss of or partial loss of the use of any member of the body; 16. Any physical deformity or abnormality; 17. Any other physical impairment, disorder or disease, physical or mental, which is established as constituting a handicap in obtaining or in retaining employment. History: L. 1945, ch. 221, § 1; L. 1961, ch. 243, § 8; L. 1974, ch. 203, § 45; L. 1982, ch. 213, § 5; July 1. Law Review and Bar Journal References: Workmen's compensation from the claimant's viewpoint, E. P. Villepigue, 16 J.B.A.K. 286, 289 (1948). 1953-55 survey of act, Albert M. Ross, 4 K.L.R. 325, 330 (1955). Scope and effect of second injury fund discussed, Alvin D. Herrington, 35 J.B.A.K. 167 (1966). "The Unusual-Exertion Requirement and Employment-Connected Heart Attacks," William A. Kelly, 16 K.L.R. 411 (1968). "Potential Federalization of State Workmen's Compensation Law—The Kansas Response," James C. Wright and James P. Rankin, 15 W.L.J. 244, 257 (1976). "Workmen's Compensation—An Introduction to Changes in the Kansas Statute," Bryce B. Moore, 24 K.L.R. 603, 607 (1976). "Workmen's Compensation Fund," Charles J. Woodin, 24 K.L.R. 641, 642 (1976). "Liability of the Kansas Workmen's Compensation Fund," Bryce B. Moore, 17 W.L.J. 458, 459, 460 (1978). "Kansas State Court Appellate Standards of Review: An Understanding Unblinded," Robert W. Parnacott, 62 J.K.B.A. No. 10, 34, 41 (1993). "Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 2, Review Section, 1, 2, 3 (1995). CASE ANNOTATIONS Explanation, see Revisor's Note under article title, chapter 44, article 5. 1. Act is supplementary to workman's compensation act. Polston v. Ready Made Homes, 171 Kan. 336, 342, 232 P.2d 446 (1951). 2. Second injury fund act found to be applicable where scheduled injury is followed by second scheduled injury causing permanent total disability. Justice v. Continental Can Co., 174 Kan. 539, 550, 551, 552, 257 P.2d 564 (1953). 3. Purpose and legislative intent discussed. Leiker v. Manor House, Inc., 203 Kan. 906, 907, 909, 911, 913, 914, 915, 919, 457 P.2d 107 (1969). 4. No causal relation between preexisting condition and compensable injury proven. Second Injury Fund v. Hahner, Foreman & Cale, Inc., 209 Kan. 411, 497 P.2d 107 (1972). 5. Purpose and legislative intent mentioned. Stanley v. A & W Iron Works, 211 Kan. 510, 512, 506 P.2d 1120. 6. Referred to in holding pre-existing injury not proximate cause of accident; no apportionment of liability under K.S.A. 44-567; total permanent disability. Scott v. Zimmerman, 215 Kan. 782, 786, 529 P.2d 679. 7. Finding that employer did not knowingly employ or retain claimant as handicapped upheld; fund not liable. Hinton v. S.S. Kresge Co. 3 Kan. App. 2d 29, 31, 33, 36, 592 P.2d 471. 8. One who has had a cerebral vascular accident is a handicapped employee; entire award assessed against fund. Oates v. Post & Danley Truck Lines, 3 Kan. App. 2d 337, 338, 339, 594 P.2d 684. 9. Substantial evidence presented to meet employer's burden of proving that it knowingly hired handicapped worker. Morgan v. Inter-Collegiate Press, 4 Kan. App. 2d 319, 323, 606 P.2d 479. 10. Finding that employee is handicapped not precluded by fact he has never been denied employment because of physical or mental impairment. Grounds v. Triple J Constr. Co. 4 Kan. App. 2d 325, 327, 333, 606 P.2d 484. 11. Fact employee suffers from handicap within meaning of statute does not alone operate to impose liability on workmen's compensation fund. Spencer v. Daniel Constr. Co., 4 Kan. App. 2d 613, 614, 615, 617, 621, 609 P.2d 687. 12. Evidence sufficient to support finding that employee was a knowingly-hired handicapped worker. Hampton v. Professional Security Co., 5 Kan. App. 2d 39, 41, 611 P.2d 173. 13. Court did not err in holding that employer failed to prove employer knowingly retained handicapped employee. Carter v. Kansas Gas & Electric Co., 5 Kan. App. 2d 602, 603, 604, 605, 606, 621 P.2d 448. 14. Liability of workmen's compensation fund derives from that of employer; settlement between claimant and employer precludes action against fund by claimant. Arduser v. Daniel International Corp., 7 Kan. App. 2d 225, 227, 640 P.2d 329 (1982). 15. In determining whether "handicapped" employee "knowingly" misrepresented the condition, employee's state of mind when misrepresentation made controls. Collins v. Cherry Manor Convalescent Center, 7 Kan. App. 2d 270, 273, 640 P.2d 875 (1982). 16. Second injury fund assessments exacted of Kansas companies by other states appropriately included in computation of retaliatory tax due under K.S.A. 40-253. Twin City Fire Ins. Co. v. Bell, 232 Kan. 813, 814, 658 P.2d 1038 (1983). 17. Fund not liable where employer knew of prior injury but neither party aware of any impairment. Hines v. Taco Tico, 9 Kan. App. 2d 633, 634, 683 P.2d 1295 (1984). 18. Occupational disease of chronic bronchitis developed over several years did not create handicapped employee with preexisting condition. Box v. Cessna Aircraft Co., 236 Kan. 237, 246, 689 P.2d 871 (1984). 19. Handicap finding supported by record; return to prior occupation or failure to exhibit continuing disability immaterial. Ramirez v. Rockwell Int'l, 10 Kan. App. 2d 403, 405, 701 P.2d 336 (1985). 20. Cited; traumatic neuroses (or conversion hysteria) and knowledge of handicap discussed in detail. Ruse v. State, 10 Kan. App. 2d 508, 512, 708 P.2d 216 (1985). 21. Explicit statutory language does not allow for remanding and case law interprets it as such. Houston v. Kansas Highway Patrol, 238 Kan. 192, 196, 708 P.2d 533 (1985). 22. Fund not liable for postjudgment interest on payments made to employer or insurance carrier as reimbursement. Wrex v. T.G.&Y., 13 Kan. App. 2d 241, 243, 766 P.2d 1294 (1989). 23. Liability of workers compensation fund (K.S.A. 44-567) to electing self-employed handicapped worker determined. Miller v. Miller, 13 Kan. App. 2d 262, 265, 768 P.2d 308 (1989). 24. Noted in discussion of statute in determining when payment of award in preliminary hearing order past due. Stout v. Stixon Petroleum, 17 Kan. App. 2d 195, 202, 836 P.2d 1185 (1992). 25. Fund held not a proper party when not impleaded prior to hearing where handicapped claimant testified by direct examination (K.S.A. 44-567(d)). West-Mills v. Dillon Companies, Inc., 18 Kan. App. 2d 561, 562, 859 P.2d 392 (1993). 26. Whether claimant was a handicapped employee for compensation liability purposes examined. Grizzle v. Gott Corp., 19 Kan. App. 2d 392, 394, 872 P.2d 303 (1994). 27. Under facts, morbid obesity did not constitute a handicap shifting liability from employer to workers compensation fund. Aycox v. National Carriers, Inc., 21 Kan. App. 2d 665, 666, 905 P.2d 1082 (1995). 28. Employer failed to sustain burden of proving it knowingly hired or retained handicapped employee. McKinney v. General Motors Corp., 22 Kan. App. 2d 768, 773, 774, 921 P.2d 257 (1996). 29. Burden of proof that employer knowingly hired or retained handicapped employee not met; fund not liable. Woodward v. Beech Aircraft Corp., 24 Kan. App. 2d 510, 517, 949 P.2d 1149 (1997). 30. Disability determination under act does not establish disability under ADA (42 U.S.C. § 12100 et seq.). Riggs v. Boeing Co., 98 F. Supp. 2d 1252, 1257 (2000). 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