Case Date:July 07, 2011
Kansas Workers Compensation 2011. No. 1,050,199. KIMBERLY OWEN VS. MARKIN GROUP July 07, 2011BEFORE THE APPEALS BOARD FOR THE KANSAS DIVISION OF WORKERS COMPENSATIONDocket No. 1,050,199KIMBERLY OWEN Claimant VS. MARKIN GROUP Respondent AND STATE FARM FIRE and CASUALTY COMPANY Insurance Carrier ORDER Respondent appeals the April 21, 2011, preliminary hearing Order of Administrative Law Judge Kenneth J. Hursh (ALJ). Claimant was awarded additional medical treatment for the injury suffered on February 15, 2007, after the ALJ found that claimant's contract for hire with respondent was formed while claimant was in her home in Kansas City, Kansas, and the Stipulation For Compromise Settlement, filed in Missouri with claimant's settlement of that matter, constituted written claim for the purpose of claimant claiming additional medical benefits in Kansas. Claimant appeared by her attorney, Kristi L. Pittman of Liberty, Missouri. Respondent and its insurance carrier appeared by their attorney, Denise E. Tomasic of Kansas City, Kansas. This Appeals Board Member adopts the same stipulations as the ALJ, and has considered the same record as did the ALJ, consisting of the deposition of Kimberly Owen taken August 18, 2010, with attachments; the deposition of Kevin Martinez taken April 18, 2011, with attachments; the transcript of Preliminary Hearing held April 20, 2011, with attachments; and the documents filed of record in this matter. Issues
1. Does the Kansas Division of Workers Compensation (Kansas Division) have jurisdiction over this matter? Respondent contends that the contract for hire in this matter occurred after claimant came to respondent's office in Missouri. Therefore, the appropriate jurisdiction would be in Missouri. Claimant contends the final act necessary to form the contract occurred while claimant was in her home in Kansas, when her brother, a co-owner of respondent, offered her a job over the telephone, and claimant accepted the offer.
2. Did claimant submit timely written claim pursuant to K.S.A. 44-520a of the Kansas Workers Compensation Act (Kansas Act)? Respondent contends that claimant did not submit written claim until at least March 2010. Claimant contends that the ALJ was correct when he ruled that the Stipulation For Compromise Settlement, filed in Missouri with the settlement of claimant's injury claim, constituted written claim for the purpose of claiming a work-related injury under the Kansas Act.
Findings of Fact After reviewing the record compiled to date, the undersigned Board Member concludes the preliminary hearing Order should be reversed. Claimant worked as a customer service representative for respondent. This was claimant's second period of employment. Claimant originally worked for respondent from 1997 to 1999. She then quit to stay home with her family. In 2003, claimant was contacted by James Kincaid, one of the owners of respondent and claimant's brother, about returning to work for respondent. Claimant testified that during this phone call, claimant was offered the job and she accepted the offer. At the time of the call, claimant was at her home in Kansas City, Kansas. Mr. Kincaid would have been at respondent's office in Missouri. Shortly after the telephone call, claimant met with Mr. Kincaid and Kevin Martinez, respondent's other owner, at respondent's office. Claimant testified that the purpose of this meeting, which then occurred over the lunch hour down the street, was to finalize items such as her hours, pay and job duties. There was no job offer at the meeting as claimant had already been hired. Claimant again went to work for respondent, performing the majority of her duties in respondent's Missouri office. However, she did occasionally work from home. On February 15, 2007, claimant was injured when she suffered a slip and fall while at respondent's Missouri office. An employer's report of the accident was prepared and filed in Missouri on March 29...

To continue reading