Labor, Trial Lawyers Criticize Kansas Workers’ Compensation Benefits

Every day thousands of Kansans, such as Delbert Young of Wichita, go to work and perform tasks that require physical labor.

For Young, it was riding a bicycle from building to building at the vast Boeing Co. facility to stock parts.

One day in 2006, Young, who was 57 years old at the time, fell off the bicycle, hitting his head and shoulder on the ground.

What followed, said Delbert and his wife, Shirley, was a nightmare of physical pain that was matched only by the nightmare of trying to get timely, proper medical attention and benefits under the Kansas workers compensation system.

Now Young, who worked for Boeing for 28 years, cannot perform any physical work because of his injuries. He receives $483 per week through the workers compensation system, but that amount is capped and will run out in a couple of years.

“I loved my job, going to work,” Young said. “But I don’t believe in that anymore. When you get hurt on the job, it’s not a pretty picture.”

Shirley says she is terrified about what will happen to their family once his benefits run out. They are fighting to change a state law that caps benefits for total disability at $125,000 — a cap established in 1987.

“We know it’s too late to help us, but for God’s sake help the next family so they won’t be devastated like we were,” she said.

The Kansas workers compensation was designed to provide benefits to workers who were injured, or to their families, if they were killed in work-related incidents.

Under the deal, businesses pay insurance premiums to be covered. In return, the workers comp payments to injured workers is the so-called “exclusive remedy” — employers are essentially immune from lawsuits even if their recklessness led to a worker’s injury.

But the contract has gotten too skewed in the favor of businesses, according to injured workers and their advocates, such as labor organizations and trial lawyers.

How much an injured worker collects under the workers compensation system depends on the extent of his or her injury and how much that person earned. Even though the effects of the injury could last for the remainder of that person’s life, benefits are capped at a fixed amount.

A recent study done by researchers at the University of Kansas shows that many of these benefits — for total disability, partial disability and total disability over a temporary time period — were capped in 1987 and haven’t been increased since.

Since 1987, the cost of living has nearly doubled, and that means that maximum workers comp benefits “have eroded substantially over time,” the report said.

Meanwhile, workers comp premiums that businesses pay have decreased by $107.1 million, according to the Kansas Department of Labor. Kansas ranks 43rd in the nation in premium rates charged, and its rates are lower than any neighboring states, the department said.

And the state is a relatively dangerous place to work.

The annual rate of fatal workplace injuries in Kansas per capita is generally 50 percent to double the national rate. The injury rate among workers is also higher in Kansas than the national rate.

In 2007, there were 48,200 occupational injuries in Kansas, and 100 fatalities.

Even so, in the Legislature, labor has had to play defense against business interests that have maintained a lid on most benefits for more than two decades.

In fact in 2006, the Legislature approved a bill that would have reduced benefits for some injured workers by changing the definition of a pre-existing health condition. Gov. Kathleen Sebelius killed the measure with a veto.

And the Kansas Supreme Court has also struck a blow against some severely injured workers, such as Steven Foiles of Hesston.

In 2003, Foiles was involved in a terrible incident at Leggs Inc., which makes conveyor belts. Foiles’ left hand was caught in some equipment.

The machine began chewing up his arm, and probably would have killed him if his fellow employees hadn’t pulled him out, he said.

Every bone in his left hand was crushed. In the process of trying to escape the machine, his right arm was burned and right shoulder strained.

Foiles’ left arm is disfigured and “of little use,” he said.

Five months after his injuries, Foiles returned to work but because of his pain he was on restricted duty. Eventually he was let go, his attorney said.

In past years, if a business refused to accommodate one of its injured workers — such as transferring them to another job with lighter physical duty — that worker could seek to claim further benefits for a work disability. Essentially, the thought was this provided an incentive for an employer to find a job for their injured worker who because of their injuries would probably not be able to find an equal job on the open market.

But in 2007, the Kansas Supreme Court essentially voided that notion, saying those severe kind of injuries were no longer entitled to a work disability benefit.

Foiles, who is currently working at Sonic, said if he had one piece of advice to give state policymakers it would be this: “Quit protecting the companies and help the workers.”

Foiles’ attorney, Tom Warner, put it this way: “The benefits allowed by statutes for injured workers have not been increased for years. We would like the Kansas Legislature to take a real hard look at this. When somebody has been injured to the point that they are permanently disabled, that has more value than $125,000.”