7.16. Permanent Total.

CourtKansas
Kansas Workers Compensation Settlement Reporter 7.16. Permanent Total SummariesChapter 77.16 Permanent TotalSeptember 2004. (Award) In Pruter, the Kansas supreme Court indicates it is not required that a worker's limbs be severed or that there must be a complete loss of use of the limbs before multiple injuries raise the presumption of permanent total disability. Picken v. O'Donnell and Sons Const. Co., Inc., Docket No. 1,002,349. See also, Short v. Lincoln Property Co., Docket No. 210,203. (September 2004). March 2004. (Award) The parties stipulated claimant is permanently and totally disabled. Thus, the Board finds the statute does not apply and the ALJ erred in applying the $50,000 statutory cap. The Board reverses that aspect of the ALJ's Award and finds the claimant is entitled to the statutory maximum benefit of $125,000 subject to the retirement offset set for under K.S.A. 44-501(h). In this instance, claimant's weekly retirement benefits exceeds the weekly value of his Award. Nonetheless, K.S.A. 44-501(h) specifically provides for the minimum payment of the employee's functional impairment, which in this case is a stipulated 42 percent impairment to the body as a whole. Accordingly, the claimant is entitled to an Award of $65,152.08, less any sums previously paid. McFall v. United Parcel Service, Docket No. 1,004,169. February 2004. (Award) Simultaneous injuries to an upper and lower extremity create a presumption of permanent total disability. But that presumption was overcome by the medical evidence and testimonies of two vocational counselors. Consequently, the worker was entitled to receive permanent disability benefits for two scheduled injuries per K.S.A. 1998 Supp. 44-510d. Lane v. Mesler Roofing Co., Docket No. 242,547. August 1999. (Award) In the case at hand, the Board finds claimant entitled to a permanent total disability award rather than a work disability award as a result of her severe psychiatric condition and diagnosis of fibromyalgia. Smallwood v. Golf Enterprises, Inc., Docket No. 206,399. April 1999. (Award) K.S.A. 44-501(c) requires that any award of compensation be reduced by the amount of functional impairment determined to be preexisting. In the case at hand, claimant had a preexisting impairment of 5 percent. A permanent total disability differs from a 100 percent permanent partial disability. A permanent total disability pays benefits of $125,000 at a weekly compensation rate based on the calculation set forth in K.S.A. 44-510c. A 100 percent disability, on the other hand, would pay the weekly compensation rate for 415 weeks, but not to exceed $100,000. K.S.A. 1996 Supp. 44-510e. As a result, one cannot deduct the percentage of impairment in exactly the same way one would with a permanent partial disability. One cannot deduct the percentage of preexisting disability from the percentage of disability found. The Board concluded, however, that the logical alternative would be to deduct the number of weeks represented by the preexisting disability, in this case 20.75 weeks for a 5 percent disability, from the number of weeks of benefits to be paid for...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT