10.40b. Tolling of, (ie. K.S.A. 44-509 - incapacitation or incompetency of claimant).

• Court: Kansas

Kansas Workers Compensation Settlement Reporter 10.40b. Tolling of, (ie. K.S.A. 44-509 - incapacitation or incompetency of claimant) SummariesChapter 1010.40b Tolling of, (ie. K.S.A. 44-509 -- incapacitation or incompetency of claimant) August 1999. (Award) K.S.A. 44-534(b) requires an application for hearing be filed with the Director's office within three years of the date of accident or two years from the date of last payment of compensation, whichever is later. However, K.S.A. 44-509 provides that if the claimant is incapacitated, the time limits under the Act do not run until a guardian or conservator is appointed. Claimant argues that although he did not make a timely application for hearing, his incapacity tolled the time for making the application for hearing. The Board, however, found that claimant was not incapacitated for purposes of prosecuting his workers compensation claim and the time limits should not be treated as tolled. The Board based this conclusion on two factors: 1) claimant demonstrated that he was capable of managing the ordinary affairs of day-to-day living by his continuing to hold a job and perform the duties of that job from the date of accident until his termination; and 2), claimant's testimony at his deposition and regular hearing reflected a capacity to remember and present evidence sufficient to prosecute the claim. Therefore, the Board finds claimant did not render a timely application for hearing. Kincade v. Cargill, Inc., Docket No. 210,398 [Affirmed by unpublished Court of Appeals opinion, Docket No. 83,908, June 16, 2000; Motion to Publish granted July 13, 2000]. But See Dissent, the Dissenting Board Members would not address the issue concerning timely...