11.04. Knowledge of Handicap or Misrepresentation.

• Court: Kansas

Kansas Workers Compensation Settlement Reporter 11.04. Knowledge of Handicap or Misrepresentation SummariesChapter 1111.04 Knowledge of Handicap or MisrepresentationDecember 1998. (Ph) Liability shifts to fund where respondent proves it knowingly hired claimant, who was handicapped, and but for claimant's preexisting impairment, his current disability would not have occurred. Baumgarner v. The Boeing Company, Docket No. 187,562. April 1998. (Award) Where respondent is uncertain as to when it became aware of claimant's 1992 surgery and more importantly whether it became aware of this surgery prior to or after claimant's 1994 injury, the Appeals Board cannot find that the respondent has carried its burden of proving that it "knowingly" hired or retained a handicapped employee before the 1994 injury. McGrady v. Delphi Automotive Systems, Docket No. 199,358. January 1998. (Award) Claimant slipped on a piece of fat at work and injured her right knee and aggravated a preexisting condition of degenerative cervical disc and osteophytic disease in her neck. The Appeals Board found respondent had the requisite knowledge of claimant's preexisting neck and right knee impairments. Additionally, claimant's ultimate disability would not have occurred but for her preexisting impairments. Therefore, pursuant to K.S.A. 1992 Supp. 44-567(a)(1), the Workers Compensation Fund is responsible for the Award. Quandt v. IBP, Inc., Docket No. 184,591. See Also, Foreman v. Salvation Army, Docket No. 169,430 (November 1997) [Reversed and remanded by unpublished Court of Appeals opinion, Docket No. 80,426]. May 1997. (Award) Respondent argued claimant knowingly misrepresented the fact that he did not have a preexisting back condition or prior back injury when it hired claimant. Conversely, the Fund cites the case of Collins v. Cherry Manor Convalescent Center, 7 Kan. App.2d 270, 640 P.2d 875 (1982) in support of its argument that claimant's limited education and ability to speak English accounted for the confusion. The Appeals Board, however, finds the facts in this case distinguishable from those in Collins. The evidence contained in the record supports the conclusion that claimant knowingly misrepresented to respondent that he did not have a preexisting low back injury. The Appeals Board is mindful of the fact claimant had a limited ability to...