Printable Format44-510b. Compensation where death results from injury; compensation upon remarriage; apportionment; burial expenses; limitations on compensation; annual statement by surviving spouse. Where death results from injury, compensation shall be paid as provided in K.S.A. 44-510h and 44-510i, and amendments thereto, and as follows:
(a) If an employee leaves any dependents wholly dependent upon the employee's earnings at the time of the accident or injury, all compensation benefits under this section shall be paid to the dependent persons. There shall be an initial payment of $60,000 to the surviving legal spouse or a wholly dependent child or children or both. The initial payment shall not be subject to the 8% discount as provided in K.S.A. 44-531, and amendments thereto. The initial payment shall be immediately due and payable and apportioned 50% to the surviving legal spouse and 50% to the dependent children. Thereafter, the dependents shall be paid weekly compensation, except as otherwise provided in this section, in a total sum to all the dependents, equal to 66 2/3% of the average weekly wage of the employee at the time of the accident or injury, computed as provided in K.S.A. 44-511, and amendments thereto, but in no event shall the weekly benefits exceed the maximum weekly benefits provided in K.S.A. 44-510c, and amendments thereto, nor be less than a minimum weekly benefit of the dollar amount nearest to 50% of the state's average weekly wage as determined pursuant to K.S.A. 44-511, and amendments thereto, subject to the following:
(1) If the employee leaves a surviving legal spouse or a wholly dependent child or children, or both, who are eligible for benefits under this section, then all death benefits shall be paid to the surviving spouse or children, or both, and no benefits shall be paid to any other wholly or partially dependent persons.
(2) A surviving legal spouse shall be paid compensation benefits for life, except as otherwise provided in this section.
(3) Any wholly dependent child of the employee shall be paid compensation, except as otherwise provided in this section, until the dependent child becomes 18 years of age, unless the child is enrolled in high school. In that event, compensation shall continue until May 30th of the child's senior year in high school or until the child becomes 19 years of age, whichever is earlier. A wholly dependent child of the employee shall be paid compensation, except as otherwise provided in this section, until the dependent child becomes 23 years of age during any period of time that one of the following conditions is met:
(A) The wholly dependent child is not physically or mentally capable of earning wages in any type of substantial and gainful employment; or
(B) the wholly dependent child is a student enrolled full-time in an accredited institution of higher education or vocational education.
(4) If the employee leaves no legal spouse or dependent children eligible for benefits under this section but leaves other dependents wholly dependent upon the employee's earnings, the other dependents shall receive weekly compensation benefits as provided in this subsection until death, remarriage or so long as the other dependents do not receive more than 50% of their support from any other earnings or income or from any other source, except that the maximum benefits payable to all the other dependents, regardless of the number of the other dependents, shall not exceed a maximum amount of $100,000.
(b) Where the employee leaves a surviving legal spouse and dependent children who were wholly dependent upon the employee's earnings and are eligible for benefits under this section 50% of the maximum weekly benefits payable shall be apportioned to the spouse and 50% to the dependent children.
(c) If an employee does not leave any dependents who were wholly dependent upon the employee's earnings at the time of the injury but leaves dependents, other than a spouse or children, in part dependent on the employee's earnings, the percentage of a sum equal to three times the employee's average yearly earnings but not exceeding $100,000 but not less than $25,000, as the employee's average annual contributions which the employee made to the support of the dependents during the two years preceding the date of the injury, bears to the employee's average yearly earnings during the contemporaneous two-year period, shall be paid in compensation to the dependents, in weekly payments as provided in subsection (a), not to exceed $100,000 to all the dependents.
(d) If an employee does not leave any dependents, either wholly or partially dependent upon the employee, a lump-sum payment of $100,000 shall be made to the legal heirs of the employee in accordance with Kansas law. If the employer procured a life insurance policy with beneficiaries designated by the employee and in an amount not less than $50,000, then the amount paid to the legal heirs under this section shall be reduced by the amount of the life insurance policy up to a maximum deduction of $100,000. However under no circumstances shall the payment escheat to the state.
(e) The administrative law judge, except as otherwise provided in this section, shall have the power and authority to apportion and reapportion the compensation allowed under this section, either to wholly dependent persons or partially dependent persons, in accordance with the degree of dependency as of the date of the injury, except that the weekly payment of compensation to any and all dependents shall not exceed the maximum nor be less than the minimum weekly benefits provided in subsection (a).
(f) In all cases of death compensable under this section, the employer shall pay the reasonable expense of burial not exceeding $10,000. Where required, the employer shall pay the costs of a court-appointed conservator not to exceed $2,500.
(g) The marriage or death of any dependent shall terminate all compensation, under this section, to the dependent except the marriage of the surviving legal spouse shall not terminate benefits to the spouse. Upon the death of the surviving legal spouse or the marriage or death of a dependent child, the compensation payable to the spouse or child shall be reapportioned to those, among the surviving legal spouse and dependent children, who remain eligible to receive compensation under this section.
(h) Notwithstanding any other provision in this section to the contrary, the maximum amount of compensation benefits payable under this section, including the initial payment in subsection (a) to any and all dependents by the employer shall not exceed a total amount of $300,000 and when the total amount has been paid the liability of the employer for any further compensation under this section to dependents, other than minor children of the employee, shall cease except that the payment of compensation under this section to any minor child of the employee shall continue for the period of the child's minority at the weekly rate in effect when the employer's liability is otherwise terminated under this subsection and shall not be subject to termination under this subsection until the child becomes 18 years of age.
(i) Persons receiving benefits under this section shall submit an annual statement to the insurance carrier, self-insured employer or group-funded workers compensation pool paying the benefits, in the form and containing the information relating to eligibility for compensation under this section as may be required by rules and regulations of the director. If the person receiving benefits under this section is a surviving spouse or a dependent child who has reached the age of majority, the person shall personally submit an annual statement. If the person receiving benefits under this section is a dependent child subject to a conservator, the conservator of the child shall submit the annual statement. If the person fails to submit an annual statement, the payer of benefits may notify the director of the failure and the director shall notify the person of the failure by certified mail with return receipt. If the person fails to submit the annual statement or fails to reasonably provide the required information within 30 days after receipt of the notice from the director, all compensation benefits paid under this section to the person shall be suspended until the annual statement is submitted in proper form to the payer of benefits.
History: L. 1968, ch. 102, § 4; L. 1970, ch. 190, § 4; L. 1972, ch. 161, § 11; L. 1974, ch. 203, § 11; L. 1977, ch. 177, § 1; L. 1977, ch. 175, § 1; L. 1979, ch. 156, § 5; L. 1983, ch. 167, § 2; L. 1987, ch. 187, § 4; L. 1993, ch. 286, § 31; L. 1997, ch. 125, § 5; L. 1998, ch. 120, § 4; L. 2000, ch. 160, § 7; L. 2002, ch. 122, § 2; L. 2011, ch. 55, § 6; L. 2018, ch. 46, § 1; July 1.
Law Review and Bar Journal References:
"The 1970 Kansas Legislature in Review," Robert F. Bennett, 39 J.B.A.K. 107, 195 (1970).
Subsection (a) mentioned in comment on child dependency under the workmen's compensation act, 11 W.L.J. 471, 472, 474 (1972).
"Potential Federalization of State Workmen's Compensation Law—The Kansas Response," James C. Wright and James P. Rankin, 15 W.L.J. 244, 250, 259, 267, 268 (1976).
"Workmen's Compensation—An Introduction to Changes in the Kansas Statute," Bryce B. Moore, 24 K.L.R. 603, 607 (1976).
"Workmen's Compensation—Major Changes in Employments Covered, Benefits, Defenses, Offsets, and Other Changes," Alvin D. Herrington, 24 K.L.R. 611, 612, 617, 620 (1976).
"Survey of Kansas Law: Workers' Compensation," William A. Kelly, 27 K.L.R. 377, 381, 382 (1979).
"Major Legislative Changes in Workers' Compensation Law," Gary L. Jordan, 3 J.K.T.L.A. No. 1, 14, 15 (1979).
"Workers' Compensation: Reconsidering the 'Right to Control' as the Exclusive Test for Employment Status," Catherine M. Foster, 23 W.L.J. 379, 384 (1984).
"Workers' Compensation—A Salute to the Trial Lawyers of Kansas," Gary L. Jordan, 10 J.K.T.L.A. No. 6, 9 (1987).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 1, Work. Comp. Review Section, 1, 6 (1994).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 5, Work. Comp. Review Section, 1 (1995).
"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 5, Review Section, 1, 3 (1996).
"Workers Compensation Review," J.K.T.L.A. Vol. XXI, No. 3, Review Section, 27 (1998).
"Claims Under the Kansas Workers Compensation Act for Injuries Resulting in Delayed Death," Timothy A. Short, J.K.T.L.A. Vol. 26, No. 5, 16 (2003).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 27, No. 2, 21 (2003).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 29, No. 5, 14 (2006).
"Making the Most Out of the Cap: Maximizing Non-Economic Damages," Bradley J. Prochaska, J.K.T.L.A. Vol. 29, No. 6, 8 (2006).
CASE ANNOTATIONS
For cases concerning subject matter of this section prior to its enactment, see the case annotations to K.S.A. 44-510 under the following index headings: "Death Cases, Wholly Dependent"; "Death Cases, Partially Dependent"; "Death Cases, Apportionment of Award"; "Death Cases, Burial, Marriage and Maturity."
1. Computation of wages of part-time deceased pilot; maximum death benefit awarded. Zeitner v. Floair, Inc., 211 Kan. 19, 21, 22, 23, 25, 505 P.2d 661 (1973).
2. Referred; granting of motion for summary judgment to defendant in wrongful death action error; factual questions of status of employee unresolved. Woods v. Cessna Aircraft Co., 220 Kan. 479, 481, 553 P.2d 900.
3. Constitutionality of statute upheld; due process, equal protection and impairment of contract arguments rejected; reduction of workmen's compensation benefits by amount of social security benefits approved. Baker v. List and Clark Construction Co., 222 Kan. 127, 128, 129, 130, 131, 132, 134, 135, 136, 137, 138, 139, 563 P.2d 431.
4. Surviving legal spouse conclusively presumed wholly dependent; entitled to benefits without proof of dependency. Brinkmeyer v. City of Wichita, 223 Kan. 393, 394, 395, 396, 397, 573 P.2d 1044.
5. Section (L. 1974, ch. 203, sec. 16) construed with K.S.A. 44-510f(c); application to part-time jobs secured after retirement. Boyd v. Barton Transfer and Storage, 2 Kan. App. 2d 425, 427, 580 P.2d 1366.
6. Subsection (j) applicable to compensation arising out of accident occurring while section in effect; repeal substantive and not retroactive in effect. Horton v. Fleming Co., 3 Kan. App. 2d 121, 122, 123, 124, 590 P.2d 594.
7. Subsection (j) cited; benefit entitlement limitation of former subsection (c) of K.S.A. 44-510f construed as substantive and not procedural. Brown v. Goodyear Tire & Rubber Co., 3 Kan. App. 2d 648, 651, 652, 653, 654, 655, 599 P.2d 1031. Affirmed: 227 Kan. 645, 608 P.2d 1356.
8. Funeral expenses are compensation for which insurer may be subrogated. Farm Bureau Mutual Ins. Co. v. Commercial Standard Ins. Co., 5 Kan. App. 2d 127, 129, 612 P.2d 1265.
9. Children receiving social welfare payments determined "wholly dependent" on deceased worker's earnings. Hegwald v. Clarkson Constr. Co., 7 Kan. App. 2d 375, 642 P.2d 573 (1982).
10. Absent express statutory authority, administrative agency cannot award compensatory or punitive damages. Woods v. Midwest Conveyor Co., 231 Kan. 763, 773, 648 P.2d 234 (1982).
11. Definition of part-time employee in K.S.A. 44-511 construed for purpose of calculation of amount of average gross weekly wage. McMechan v. Everly Roofing, Heating & Air Conditioning, Inc., 8 Kan. App. 2d 349, 350, 656 P.2d 797 (1983).
12. Lump-sum payment to spouse under subsection (b) considered; reapportionment of surviving spouse's periodic payments to dependent children on date of remarriage proper under subsection (g). Lackey v. D & M Trucking, 9 Kan. App. 2d 679, 684, 685, 687 P.2d 23 (1984).
13. Cited by dissent where majority found loss of services subject to subrogation in third-party action under act. McGranahan v. McGough, 15 Kan. App. 2d 24, 31, 802 P.2d 593 (1990).
14. Term "wholly dependent child" includes child whose claim to parentage undetermined at time of worker's death. Killingsworth v. City of Wichita, 16 Kan. App. 2d 801, 830 P.2d 70 (1992).
15. Workers compensation judge may determine parentage for purposes of workers compensation benefits only. R.L.J. v. Western Sprinklers, Inc., 17 Kan. App. 2d 749, 750, 844 P.2d 37 (1992).
16. Exclusive remedy defense applies to coemployees, bars common-law actions against coemployees or employer. Thille v. E. L. Farmer and Company, Inc, 958 F.2d 328, 329 (1992).
17. Disparate treatment under subsection (i) between employees with nonresident alien dependents and other employees is unconstitutional. Jurado v. Popejoy Constr. Co., 253 Kan. 116, 126, 853 P.2d 669 (1993).
18. Limitation on remedies examined when employee has no spouse, children or dependents. Karhoff v. National Mills, Inc., 18 Kan. App. 2d 302, 305, 851 P.2d 1021 (1993).
19. Whether section violates equal protection by denying heirs death benefits for employees without dependents examined. Riley v. National Mills, Inc., 19 Kan. App. 2d 541, 542, 873 P.2d 214 (1994).
20. Substantial evidence supported workers compensation board's conclusion fatal injury occurred in course of employee's employment. Kindel v. Ferco Rental, Inc., 258 Kan. 272, 275, 899 P.2d 1058 (1995).
21. Insurer may not exclude loss of services under uninsured or underinsured motorist coverage. Fisher v. State Farm Mut. Auto. Ins. Co., 264 Kan. 111, 124, 955 P.2d 622 (1998).
22. Death benefits claimant failed to establish present marriage agreement with deceased worker and thus not a "surviving spouse." Anguiano v. Larry's Electrical Contracting, 44 Kan. App. 2d 811, 241 P.3d 175 (2010).