Printable Format44-511. Definitions; average weekly wage; volunteers; state's average weekly wage. (a) As used in this section:
(1) The term "money" shall be construed to mean the gross remuneration, on an hourly, output, salary, commission or other basis earned while employed by the employer, including bonuses and gratuities. Money shall not include any additional compensation, as defined in paragraph (2).
(2) (A) The term "additional compensation" shall include and mean only the following: (i) Board and lodging when furnished by the employer as part of the wages, which shall be valued at a maximum of $25 per week for board and lodging combined, unless the value has been fixed otherwise by the employer and employee prior to the date of the accident or injury, or unless a higher weekly value is proved; and (ii) employer-paid life insurance, disability insurance, health and accident insurance and employer contributions to pension and profit sharing plans.
(B) In no case shall additional compensation include any amounts of employer taxes paid by the employer under the old-age and survivors insurance system embodied in the federal social security system.
(C) Additional compensation shall not be included in the calculation of average wage until and unless such additional compensation is discontinued. If such additional compensation is discontinued subsequent to a computation of average weekly wages under this section, there shall be a recomputation to include such discontinued additional compensation.
(3) The term "wage" shall be construed to mean the total of the money and any additional compensation that the employee receives for services rendered for the employer in whose employment the employee sustains an injury arising out of and in the course of such employment.
(b) (1) Unless otherwise provided, the employee's average weekly wage for the purpose of computing any compensation benefits provided by the workers compensation act shall be the wages the employee earned during the calendar weeks employed by the employer, up to 26 calendar weeks immediately preceding the date of the injury, divided by the number of calendar weeks the employee actually worked, or by 26 as the case may be.
(2) If actually employed by the employer for less than one calendar week immediately preceding the accident or injury, the average weekly wage shall be determined by the administrative law judge based upon all of the evidence and circumstances, including the usual wage for similar services paid by the same employer, or if the employer has no employees performing similar services, the usual wage paid for similar services by other employers. The average weekly wage so determined shall not exceed the actual average weekly wage the employee was reasonably expected to earn in the employee's specific employment, including the average weekly value of any additional compensation.
(3) The average weekly wage of an employee who performs the same or a very similar type of work on a part-time basis for each of two or more employers, shall be the sum of the average weekly wages of such employee paid by each of the employers.
(4) In determining an employee's average weekly wage with respect to the employer against whom claim for compensation is made, no money or additional compensation paid to or received by the employee from such employer, or from any source other than from such employer, shall be included as wages, except as provided in this section. No wages, other compensation or benefits of any type, except as provided in this section, shall be considered or included in determining the employee's average weekly wage.
(5) (A) The average weekly wage of a person serving on a volunteer basis as a duly authorized law enforcement officer, emergency medical service provider as provided in K.S.A. 44-508, and amendments thereto, firefighter or member of a regional emergency medical response team as provided in K.S.A. 48-928, and amendments thereto, who receives no wages for such services, or who receives wages that are substantially less than the usual wages paid for such services by comparable employers to employees who are not volunteers, shall be computed on the basis of the dollar amount closest to, but not exceeding, 112½% of the state average weekly wage.
(B) The average weekly wage of any person performing community service work shall be deemed to be $37.50.
(C) The average weekly wage of a volunteer member of the Kansas department of civil air patrol officially engaged in the performance of functions specified in K.S.A. 48-3302, and amendments thereto, shall be deemed to be $476.38. Whenever the rates of compensation of the pay plan for persons in the classified service under the Kansas civil service act are increased for payroll periods chargeable to fiscal years commencing after June 30, 1988, the average weekly wage that is deemed to be the average weekly wage under the provisions of this subsection for a volunteer member of the Kansas department of civil air patrol shall be increased by an amount, adjusted to the nearest dollar, computed by multiplying the average of the percentage increases in all monthly steps of such pay plan by the average weekly wage deemed to be the average weekly wage of such volunteer member under the provisions of this subsection prior to the effective date of such increase in the rates of compensation of the pay plan for persons in the classified service under the Kansas civil service act.
(D) The average weekly wage of any other volunteer under the workers compensation act, who receives no wages for such services, or who receives wages that are substantially less than the usual wages paid for such services by comparable employers to employees who are not volunteers, shall be computed on the basis of the usual wages paid by the employer for such services to employees who are not volunteers, or, if the employer has no employees performing such services for wages who are not volunteers, the average weekly wage shall be computed on the basis of the usual wages paid for such services by comparable employers to employees who are not volunteers. Volunteer employment is not presumed to be full-time employment.
(c) The state's average weekly wage for any year shall be the average weekly wage paid to employees in insured work subject to Kansas employment security law as determined annually by the secretary of labor as provided in K.S.A. 44-704, and amendments thereto.
(d) Members of a labor union or other association who perform services on behalf of the labor union or other association and who are not paid as full-time employees of the labor union or other association and who are injured or suffer occupational disease in the course of the performance of duties on behalf of the labor union or other association shall recover compensation benefits under the workers compensation act from the labor union or other association if the labor union or other association files an election with the director to bring its members who perform such services under the coverage of the workers compensation act. The average weekly wage for the purpose of this subsection shall be based on what the employee would earn in the employee's general occupation if at the time of the injury the employee had been performing work in the employee's general occupation. The insurance coverage shall be furnished by the labor union or other association.
History: L. 1927, ch. 232, § 11; L. 1933, ch. 74, § 1 (Special Session); L. 1941, ch. 263, § 1; L. 1955, ch. 250, § 5; L. 1974, ch. 203, § 18; L. 1977, ch. 175, § 3; L. 1979, ch. 156, § 9; L. 1986, ch. 189, § 2; L. 1987, ch. 187, § 9; L. 1988, ch. 167, § 6; L. 1993, ch. 286, § 37; L. 2001, ch. 121, § 3; L. 2002, ch. 149, § 4; L. 2004, ch. 179, § 16; L. 2011, ch. 55, § 13; L. 2019, ch. 64, § 10; June 6.
Source or prior law:
L. 1911, ch. 218, § 12; L. 1917, ch. 226, § 4; R.S. 1923, 44-511.
Law Review and Bar Journal References:
Quoted in part in discussion of aggravation of pre-existing conditions in compensation cases, Joseph Cohen, 20 J.B.A.K. 343, 349 (1952).
Under subsection (1), case of Leslie v. Reynolds [analyzed below under "Case Annotations" 1, 7, 11, 13, 14 and 15] mentioned in 1955-56 survey of act, Albert M. Ross, 5 K.L.R. 347, 350 (1956).
Applicability discussed, Thomas M. Van Cleave, Jr., 14 K.L.R. 393, 399 (1965).
"Potential Federalization of State Workmen's Compensation Law—The Kansas Response," James C. Wright and James P. Rankin, 15 W.L.J. 244, 260 (1976).
"Workmen's Compensation—An Introduction to Changes in the Kansas Statute," Bryce B. Moore, 24 K.L.R. 603, 604 (1976).
"Workmen's Compensation—Major Changes in Employments Covered, Benefits, Defenses, Offsets, and Other Changes," Alvin D. Herrington, 24 K.L.R. 611, 612, 613, 614, 621 (1976).
"Worker's Compensation Recent Decisions," Gary Jordan, 2 J.K.T.L.A. No. 6, 16 (1979).
"Major Legislative Changes in Workers' Compensation Law," Gary L. Jordan, 3 J.K.T.L.A. No. 1, 14, 16 (1979).
"Preparation and Presentation of the Claimant's Case," Gary L. Jordan, 3 J.K.T.L.A. No. 6, 17, 18 (1980).
"Current Status of Additional Compensation as Part of Average Weekly Wage," Gary L. Jordan, 4 J.K.T.L.A. No. 2, 12, 13 (1980).
"Workers' Compensation Review," Patrick Nichols, XIV J.K.T.L.A. No. 3, Review p. 3 (1991).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XV, No. 3, Review p. 4 (1992).
"An Overview of the 1993 Amendments to the Kansas Workers Compensation Act," David J. Rebein, 62 J.K.B.A. No. 5, 30, 32 (1993).
"Workers' Compensation: Full-Time Hourly Employee vs. Part-Time Hourly Employee," Vincent L. Bogart and Christopher A. McElgunn, J.K.T.L.A. Vol. XVI, No. 3, 22, 23 (1993).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVII, No. 6, Work. Comp. Review Section, 1, 3 (1994).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 3, Work. Comp. Review Section, 1, 5 (1995).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 5, Work. Comp. Review Section, 1, 4 (1995).
"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 1, Review Section, 1, 6 (1995).
"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 2, Review Section, 37 (1996).
"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 4, Review Section, 25 (1997).
"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 5, Review Section, 39 (1997).
"Workers Compensation Review," J.K.T.L.A. Vol. XX, No. 6, Review Section, 28 (1997).
"Workers Compensation Review," J.K.T.L.A. Vol. XXI, No. 4, Review Section, 34 (1998).
"Workers Compensation Law Update: The Multiple Employer Rule and Liberal Construction," Beth Regier Foerster, J.K.T.L.A. Vol. XXI, No. 6, 13 (1998).
"Workers Compensation Review," J.K.T.L.A. Vol. 22, No. 3, Review Section, 26 (1999).
Workers Compensation Review, J.K.T.L.A. Vol. XXII, No. 6, 21 (1999).
"Workers Compensation Review," J.K.T.L.A. Vol. XXIII, No. 4, 21 (2000).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 26, No. 6, 23 (2003).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 28, No. 2, 22 (2004).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 28, No. 4, 24 (2005).
"A Change of Judge," Christopher F. Burger, J.K.T.L.A. Vol. 29, No. 2, 12 (2005).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 30, No. 2, 18 (2006).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 30, No. 6, 25 (2007).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 31, No. 1, 23 (2007).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.A.J. Vol. 34, No. 4, 19 (2011).
Attorney General's Opinions:
Kansas civil air patrol; tort claims act; workers compensation. 91-124.
CASE ANNOTATIONS
Explanation, see Revisor's Note under article title, chapter 44, article 5.
Cases through 1973
WAGES-MONEY RATE Subsection (1)
—In general (1-3)
1. The term "money rate" means "all items of compensation agreed upon in a contract of hiring which are measurable in money and are recompense under the contract of hiring whether in cash or as a real and definite economic gain to the employee..." Leslie v. Reynolds, 179 Kan. 422, 430, 295 P.2d 1076 (1956).
2. Trial court's computation of "average weekly wage" based on substantial evidence is finality. Myers v. Worth Oilfield Service, 185 Kan. 72, 73, 340 P.2d 368 (1959).
3. Compensation under K.S.A. 44-510 (2) (a) is to be based upon and under the contract in force and effect at the time of the accident resulting in death.
(a) Dean v. Hodge Bros., 170 Kan. 333, 337, 224 P.2d 1028 (1950);
(b) Workman v. Kansas City Bridge Co., 144 Kan. 139, 58 P.2d 90 (1936);
(c) Kelly v. Lassen Hotel Co., 161 Kan. 444, 168 P.2d 527 (1946).
—Bonus (7-8)
7. $800 bonus to employee was not a "gratuity" within meaning of statute; ordinarily a bonus is a sum paid for services. Leslie v. Reynolds, 179 Kan. 422, 434, 295 P.2d 1076 (1956).
8. Traveling salesman paid $3,600 annual salary and $400 annual bonus, but not reimbursed for travel expense; annual earnings are not reduced by amount of travel expense for computation of death benefit; $12,000 award allowed. Conklin v. Topeka Wholesale Grocery Co., 183 Kan. 458, 463, 327 P.2d 860 (1958).
—Board and lodging (10-15)
10. Expense for board and room properly included in computing earnings. Copeland v. Martin Metal Mfg. Co., 141 Kan. 725, 731, 42 P.2d 982 (1935).
11. Evidence of the "money rate" or value of automobile, house rent and food stuffs furnished by employer is admissible. Leslie v. Reynolds, 179 Kan. 422, 430, 431, 432, 295 P.2d 1076 (1956).
12. Subsection (1) construed and applied; house trailer used by claimant on respondent's farm assigned statutory valuation of $25 in computing average weekly wage. Waldroupe v. Kelley, 189 Kan. 99, 101, 102, 367 P.2d 77 (1961).
13. The terms "wages," "money rate," "board and lodging," "board," "lodging" discussed and construed. Leslie v. Reynolds, 179 Kan. 422, 426, 427, 428, 429, 431, 432, 433, 295 P.2d 1076 (1965).
14. Value of house rent is within meaning of term "board and lodging." Leslie v. Reynolds, 179 Kan. 422, 426, 427, 428, 429, 431, 432, 433, 295 P.2d 1076 (1956).
15. Foodstuffs furnished were not within the meaning of the term "board and lodging." Leslie v. Reynolds, 179 Kan. 422, 432, 295 P.2d 1076 (1956).
CALCULATION OF RATE
—Fixed by output (18-20)
18. Wages based upon 25 percent of gross; evidence and computation approved. Johnson v. Arma Elevator Co., 146 Kan. 965, 968, 969, 73 P.2d 1018 (1937).
19. Computation of truck owner-driver "wage" considered; upheld. Wilbeck v. Grain Belt Transportation Co., 181 Kan. 512, 514, 313 P.2d 725 (1957).
20. Workman paid by quantity of coal entitled to compensation; 1917 act. McKinstry v. Coal Co., 116 Kan. 192, 194, 225 P. 743 (1924).
—Fixed by hour (22-24)
22. Workman paid by hour; compensation held properly computed hereunder. Morris v. Garden City Co., 144 Kan. 790, 793, 62 P.2d 920 (1936).
23. Customary number of working, not actual, hours is proper basis for award; act since amended. Baker v. Western Power & Light Co., 147 Kan. 571, 574, 78 P.2d 36 (1938).
24. Where there is no customary number of hours in ordinary working day actual hours worked per week is used. Armstrong v. Manpower, Inc., 194 Kan. 753, 754, 755, 756, 401 P.2d 903 (1965).
—Business shut down part time (25-26)
25. Computation of wages approved; claimant employed for a year or more, although for unavoidable cause he did not work all of the time. Horn v. Elm Branch Coal Co., 141 Kan. 518, 519, 520, 41 P.2d 751 (1935).
26. Fact that mine shut down part of the time should not reduce compensation; 1917 act. McKinstry v. Coal Co., 116 Kan. 192, 194, 225 P. 743 (1924).
—Concurrent employment (28-30)
28. Compensation when workman employed part time by two employers with only one under act. Walton v. Electric Service Co., 121 Kan. 480, 481, 247 P. 846 (1926).
29. Consideration of mere concurrent contracts of employment forbidden for determining annual earnings. Walters v. Greenland Drilling Co., 184 Kan. 157, 163, 334 P.2d 394 (1959).
30. Subsection (1) construed and applied; average weekly wage for part-time employee computed. Durnil v. Grant, 187 Kan. 327, 338, 339, 356 P.2d 872 (1960).
—Special cases (32-36)
32. Employee injured while temporarily assigned to other tasks; compensation considered. Bundy v. Products Co., 103 Kan. 40, 41, 43, 172 P. 1020 (1918).
33. Method of computing volunteer policeman's wages determined. Borchardt v. City of Leawood, 178 Kan. 705, 708, 709, 290 P.2d 811 (1955).
34. Death of workman employed less than year; computation of earnings. Miles v. Wyatt, 138 Kan. 863, 865, 28 P.2d 748 (1934).
35. Error found, as matter of law, in trial court's method of computing claimant's average weekly wage. Casebeer v. Casebeer, 199 Kan. 806, 814, 433 P.2d 399 (1967).
36. Computation of wages of part-time deceased pilot; maximum death benefit awarded. Zeitner v. Floair, Inc., 211 Kan. 19, 21, 22, 23, 24, 25, 505 P.2d 661 (1973).
PREVIOUS DISABILITY Subsection (4); (37)
37. Prior back injury; previous disability not considered in determining compensation payable; subsection (4) construed. Cody v. Lewis & West Transit Mix, 186 Kan. 437, 440, 441, 442, 443, 351 P.2d 4 (1960).
MISCELLANEOUS MATTERS
—Burden of proof and evidence (40-43)
40. Burden of proof on claimant concerning wages. Zwaduk v. Morris & Co., 109 Kan. 186, 191, 197 P. 868 (1921).
41. Burden of proof on claimant to provide sufficient evidence under this section; failing to do so, only minimum award is authorized. Grigliono v. Hope Coal Co., 125 Kan. 581, 585, 586, 264 P. 1051 (1928).
42. Evidence to prove average earnings considered. Roberts v. Packing Co., 95 Kan. 723, 730, 149 P. 413 (1915).
43. Evidence of earnings before and after injury held to support award. Conner v. Base Line Coal Co., 130 Kan. 504, 507, 287 P. 585 (1930).
—Special considerations (45-48)
45. Conditions of federal law on aid project found to modify contract between employer and workman in spite of provisions of Kansas Act; wage computation affected accordingly. Workman v. Kansas City Bridge Co., 144 Kan. 139, 141, 58 P.2d 90 (1936).
46. Minimum prescribed by statute is not to be reduced. Duncan v. Packing Box Co., 110 Kan. 494, 497, 204 P. 543 (1922).
47. Legislative history of 1941 amendment discussed. Proffitt v. Aldridge, 154 Kan. 468, 475, 119 P.2d 523 (1941).
48. Mentioned in opinion rejecting theory of right of contribution between workmen's compensation insurance carriers. Bituminous Casualty Corporation v. American Fire & Casualty Co., 192 Kan. 233, 238, 387 P.2d 159 (1963).
—Largely outdated cases (50-53)
50. Computation under prior act considered. Michael v. Jacob Dold Packing Co., 120 Kan. 684, 688, 244 P. 1050 (1926).
51. Method of computing injured employee's wage under 1927 act determined. Workman v. Kansas City Bridge Co., 144 Kan. 139, 141, 58 P.2d 90 (1936).
52. Basis for computing "average weekly earnings" under prior act considered. Bundy v. Products Co., 103 Kan. 40, 41, 43, 172 P. 1020 (1918).
53. Finding concerning "weekly earnings" held erroneous; no prejudice shown. Dennis v. Cafferty, 99 Kan. 810, 811, 163 P. 461 (1917).
Cases after 1973
54. Applied; proper test applied in determining disability; award and findings upheld. May v. Quality Chemical, Inc., 215 Kan. 491, 494, 524 P.2d 761.
55. Section governs computation of average gross weekly wage even though regular work week was four days. Wilson v. United States Fidelity and Guar. Co., 2 Kan. App. 2d 374, 375, 376, 377, 579 P.2d 725.
56. Additional compensation not includable in employee's average gross weekly wage after employee again begins to earn same. Maxwell v. City of Topeka, 5 Kan. App. 2d 5, 7, 8, 9, 10, 11, 612 P.2d 161.
57. Definition of "part-time employee" construed for compensation computation purposes; clauses (A) and (B) of subsection (a) (4) disjunctive not conjunctive. McMechan v. Everly Roofing, Heating & Air conditioning, Inc., 8 Kan. App. 2d 349, 350, 351, 656 P.2d 797 (1983).
58. No distinctions made between temporary and permanent employees; subsection (a)(5) does not limit definition of full-time hourly employees by availability. Saffer v. Blackstone Drilling, Inc., 10 Kan. App. 2d 211, 216, 696 P.2d 405 (1985).
59. Average weekly wage of minority stockholder employee of close corporation was amount actually received, not contract amount. Justyna v. Logan Constr. Co., 10 Kan. App. 2d 249, 696 P.2d 977 (1985).
60. Weeks when worker not employed not to be used in computing average weekly wage under (b)(5). Osmundson v. Sedan Floral, Inc., 10 Kan. App. 2d 261, 265, 697 P.2d 85 (1985).
61. Multiple employment wage aggregation of subsection (b)(7) applies only to workers employed exclusively in part-time employments. Wade v. Union Nat'l Bank, 10 Kan. App. 2d 645, 649, 707 P.2d 1087 (1985).
62. 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, 207, 718 P.2d 310 (1986).
63. Cited; "wage" as including allowances constituting payment for work to the extent economic gain resulted to employee examined. Ridgway v. Board of Ford County Comm'rs, 12 Kan. App. 2d 441, 445, 748 P.2d 891 (1987).
64. Cited; "owner withdrawals" as item included in determining "wage" examined. Thompson v. Harold Thompson Trucking, 12 Kan. App. 2d 449, 459, 748 P.2d 430 (1987).
65. Proper interpretation of subsection (b)(4)(B) regarding five- or six-day workweek examined. Tovar v. IBP, Inc., 15 Kan. App. 2d 782, 786, 817 P.2d 212 (1991).
66. Review of requirements for determining whether employee is full time or part time. Guebara v. Green-Glo Turf Maintenance, Inc., 16 Kan. App. 2d 159, 819 P.2d 135 (1991).
67. Voluntary retirement as not affecting permanent partial general disability benefits noted; pension benefits not wages as defined herein. Brown v. City of Wichita, 17 Kan. App. 2d 72, 78, 832 P.2d 365 (1992).
68. District court's use of subsection (b)(1) to calculate average weekly wage of school teacher was error. Lynch v. U.S.D. No. 480, 18 Kan. App. 2d 130, 133, 850 P.2d 271 (1993).
69. Whether claimant was on vacation or leave of absence in determining average weekly wage examined. Elder v. Arma Mobile Transit Co., 253 Kan. 824, 825, 826, 827, 828, 829, 830, 861 P.2d 822 (1993).
70. Employee compensation for computing disability benefits as defined in subparagraph (a)(2)(E) is not preempted by ERISA. Lawrence Paper Co. v. Gomez, 257 Kan. 932, 938, 897 P.2d 134 (1995).
71. The value of vacation and sick leave are not wages as defined in section for calculation of workers compensation benefits. Bohanan v. U.S.D. No. 260, 24 Kan. App. 2d 362, 374, 947 P.2d 440 (1997).
72. Erroneous computation by ALJ of compensation award to claimant engaged in multiple employment constituted reversible error. Kinder v. Murray & Sons Constr. Co., 264 Kan. 484, 486, 488, 957 P.2d 488 (1998).
73. Vacation and sick leave benefits to be excluded from computation of average weekly wage. Fuller v. Farmers Ins. Co., 32 Kan. App. 2d 333, 82 P.3d 526 (2004).
74. Mentioned in permanent partial general disability award computation. Graham v. Dokter Trucking Group, 284 Kan. 547, 557, 161 P.3d 695 (2007).
75. Section distinguished form K.S.A. 79-5a01 regarding use of "or" and "and." Appeal of Director of Property Valuation, 284 Kan. 592, 601, 161 P.3d 755 (2007).
76. Cited; under K.S.A. 44-510e a worker's post-injury wage is to be based on actual hours worked. Nistler v. Footlocker Retail, Inc., 40 Kan. App. 2d 831, 834, 837 to 841, 196 P.3d 395 (2008).