10.38. Penalties, Sanctions and Interest.

• Court: Kansas

Kansas Workers Compensation Settlement Reporter 10.38. Penalties, Sanctions and Interest SummariesChapter 1010.38 Penalties, Sanctions and InterestSeptember 2006. (Order) Where claimant had been represented by two attorneys, the division of attorney fees between the two attorneys should be decided under K.S.A. 44-536, which provides that attorneys fees shall not exceed a reasonable amount for services rendered. See Madison v. Goodyear Tire and Rubber Co., 8 Kan. App. 2d 575, 663 P.2d 663 (1983). Hernandez v. Tyson Fresh Meats, Inc., Docket No. 258,902. May 2006. (P/A) The Board found respondent's argument as disingenuous where respondent argued that medical bills not submitted on an CMS 1500 would not support a demand for penalties. The Board held that a form equivalent to CMS 1500 is specifically acceptable as long as it contains information necessary to determine whether the billing complies with the fee limits set in the fee schedule. It would be incumbent upon the carrier to request the provider to send the medical billings on the CMS 1500 form or its equivalent if a problem developed with the form of medical bills being submitted for payment. Medlin v. SW Bell Telephone, Docket No. 244,701. April 2006. (Order) It is inappropriate for an ALJ to order TTD for a specific period and in the same order allow penalties against the respondent for not paying the just ordered TTD. K.S.A. 44-512a requires penalties for compensation "past due". Here the TTD had not been ordered paid and thus could not be "past due". Ernst v. U.S.D. #267, Docket No. 1,023,547. January 2006. (Order) Penalties were not applicable as claimant sought benefits for a new accident, as opposed to a direct and natural consequence, without initiating a new claim. Under the facts presented, the board found a lack of jurisdiction over the respondent at the time of the order that served as the basis of claimant's request for penalties. Shadduck v. Kansas University Physicians, Docket No. 261729. October 2005. (Order) Respondent cannot unilaterally stop paying temporary total disability compensation at the ordered rate without first obtaining an order modifying the original order. Retirement offset/credit is applicable to temporary total disability compensation regardless of whether the alleged injury is to a scheduled member under K.S.A. 44-510d or to the body as a whole. Tucker v. Raytheon Aircraft Co., Docket No. 1,020,966. March 2005. (Order) A written demand for penalties is premature unless the benefits are due and payable. Shipman v. The Arnold Group, Docket No. 1,010,730. February 2005. (Order) the ALJ found the claimant's demand, served on July 12, 2004, was not premature. And when payment was not made within the statutory 20-day period, respondent and its carrier were subject to a penalty, regardless of the respondent's subsequent appeal. The Board agrees with this analysis. K.S.A. 44-534a(a)(2) provides in pertinent part:

If an appeal from a preliminary order is perfected under this section, such appeal shall not stay the payment of medical compensation and temporary total disability compensation from the date of the preliminary award.

The word "from" as contained in the phrase "from the date of the preliminary hearing award" is a preposition which is used to indicate a particular time or place as a starting point. Webster's II New College Dictionary (1995). It is the Board's finding that the starting point in the subject sentence is the date of the preliminary hearing order as plainly stated. Accordingly, the Board concludes that because benefits awarded in a preliminary hearing order are not stayed from the date of the preliminary hearing order when appealed then, by implication, only benefits awarded prior to the date of the preliminary hearing order are stayed during the pendency of such appeal. This means that as of July 1, 2004, those weekly benefits ordered by the ALJ that predated the date of the preliminary hearing, from March 31 up to July 1, 2004, were stayed and, therefore, not considered due. The balance of the benefits that were ordered, from July 1, 2004, and ongoing until claimant achieved one of the benchmarks listed in the Order were considered due, as of July 2, 2004, the day following the Order's issuance. It follows then that portion of the Order was properly the subject of a demand for payment under K.S.A. 44-512a. Brock v. Weavers A-OK Exterminators, Docket No. 1,016,295. September 2004. (Order) Mileage incurred to obtain authorized medical treatment is a medical expense. Accordingly, such mileage reimbursement is treated as medical compensation and penalties can be assessed for late payment...