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44-5a04. Disablement and disability defined; cancellation of award, when. (a) Except as otherwise provided in this act "disablement" means the event of an employee becoming actually incapacitated, partially or totally, because of an occupational disease, from performing the employee's work in the last occupation in which injuriously exposed to the hazards of such disease, and "disability" means the state of being so incapacitated.

(b) The administrative law judge may cancel the award and end the compensation if the administrative law judge finds that the employee:

(1) Has returned to work for the same employer in whose employ the employee was disabled or for another employer and is capable of earning the same or higher wages than the employee did at the time of the disablement, or is capable of gaining an income from any trade or employment which is equal to or greater than the wages the employee was earning at the time of the disablement;

(2) is absent and continues to be absent so that a reasonable examination cannot be made of the employee by a health care provider selected by the employer; or

(3) has departed beyond the boundaries of the United States.

History: L. 1953, ch. 246, § 4; L. 1990, ch. 182, § 11; L. 1993, ch. 286, § 74; July 1.

Law Review and Bar Journal References:

Survey of Kansas law on workmen's compensation (1965-1969), 18 K.L.R. 478, 491 (1970).

"Survey of Kansas Law: Workers' Compensation," William A. Kelly, 27 K.L.R. 377, 380, 381 (1979).

"Preventing Occupational Exposure to Bloodborne Pathogens: The Final OSHA Standard," Jeffrey A. Chanay, 62 J.K.B.A. No. 8, 26, 32 (1993).

"Workers Compensation Review," J.K.T.L.A. Vol. XXII, No. 1, 21 (1998).

"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 29, No. 4, 15 (2006).

"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 30, No. 4, 19 (2007).

CASE ANNOTATIONS

1. Quoted in part; computation of weekly rate of compensation for occupational disease upheld. Knight v. Hudiburg-Smith Chevrolet, Olds., Inc., 200 Kan. 205, 208, 435 P.2d 3.

2. Construed and applied; capacity of workman not measured by ability to perform work in same manner as before injury. Ochoa v. Swift & Co., 200 Kan. 478, 481, 482, 436 P.2d 412.

3. Disability by dermatitis recurring after medical aid; claim barred under K.S.A. 44-516. Bayless v. List & Clark Construction Co., 201 Kan. 572, 574, 576, 441 P.2d 841.

4. Compensation is allowed hereunder only if incapacity is caused by an occupational disease. Linville v. Steel Fixture Manufacturing Co., 205 Kan. 447, 454, 469 P.2d 312.

5. Authority to cancel award hereunder discretionary; basis of award. Hill v. General Motors Corporation, 214 Kan. 279, 281, 282, 283, 519 P.2d 608.

6. Findings of 25% permanent total disability by court supported by evidence; no abuse of discretion. Ross v. Beech Aircraft Corporation, 214 Kan. 888, 889, 522 P.2d 369.

7. Scheduled injuries listed in K.S.A. 44-510d not applicable to occupational diseases; K.S.A. 44-510e governs. Schubert v. Peerless Products, Inc., 223 Kan. 288, 290, 292, 573 P.2d 1009.

8. Cited in holding administrative decision finding accidental injury where occupational disease claimed supported by substantial competent evidence. Bahr v. Iowa Beef Processors, Inc., 8 Kan. App. 2d 627, 631, 663 P.2d 1144 (1983).

9. Cited; occupational disease compensability determined like accidental injury (K.S.A. 44-5a01); hourly wage, overtime pay and fringe benefit part of wage. Slack v. Thies Development Corp., 11 Kan. App. 2d 204, 206, 207, 718 P.2d 310 (1986).

10. No apportionment of cause authorized where disease caused by both occupational and nonoccupational factors. Burton v. Rockwell International, 266 Kan. 1, 7, 967 P.2d 290 (1998).


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