Printable Format44-532a. Liability of workers compensation fund for uninsured or insufficiently self-insured insolvent employers; cause of action against such employers. (a) If an employer has no insurance or has an insufficient self-insurance bond or letter of credit to secure the payment of compensation, as provided in subsection (b)(1) and (2) of K.S.A. 44-532, and amendments thereto, and such employer is financially unable to pay compensation to an injured worker as required by the workers compensation act, or such employer cannot be located and required to pay such compensation, the injured worker may apply to the director for an award of the compensation benefits, including medical compensation, to which such injured worker is entitled, to be paid from the workers compensation fund. Whenever a worker files an application under this section, the matter shall be assigned to an administrative law judge for hearing. If the administrative law judge is satisfied as to the existence of the conditions prescribed by this section, the administrative law judge may make an award, or modify an existing award, and prescribe the payments to be made from the workers compensation fund as provided in K.S.A. 44-569, and amendments thereto. The award shall be certified to the commissioner of insurance, and upon receipt thereof, the commissioner of insurance shall cause payment to be made to the worker in accordance therewith.
(b) The commissioner of insurance, acting as administrator of the workers compensation fund, shall have a cause of action against the employer for recovery of any amounts paid from the workers compensation fund pursuant to this section. Such action shall be filed in the district court of the county in which the accident occurred or where the contract of employment was entered into.
History: L. 1974, ch. 203, § 32; L. 1982, ch. 213, § 2; L. 1983, ch. 168, § 1; L. 1993, ch. 286, § 47; L. 2011, ch. 55, § 21; L. 2013, ch. 104, § 13; April 25.
Law Review and Bar Journal References:
"Potential Federalization of State Workmen's Compensation Law—The Kansas Response," James C. Wright and James P. Rankin, 15 W.L.J. 244, 264 (1976).
"Workmen's Compensation—The Workmen's Compensation Fund," Charles J. Woodin, 24 K.L.R. 641 (1976).
"Workmen's Compensation—The Preliminary Hearing, the Workmen's Compensation Fund, and Civil Penalties for Failure to Pay Compensation When Due," Albert M. Ross, 24 K.L.R. 623, 625 (1976).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XIV, No. 6, Review p. 4 (1991).
"Worker's Compensation Review," J.K.T.L.A. Vol. XIX, No. 2, Review Section, 1 (1995).
"Worker's Compensation Review," J.K.T.L.A. Vol. XX, No. 4, Review Section, 29 (1997).
"Workers Compensation Review," Joseph Seiwert, Editor, J.K.T.L.A. Vol. 30, No. 4, 19 (2007).
CASE ANNOTATIONS
1. Referred to in determining insurance carrier not liable for award against former employer. Ellis v. Fairchild, 221 Kan. 702, 713, 562 P.2d 75.
2. Interplay with K.S.A. 44-503 concerning fund liability examined when employer uninsured and insolvent or whereabouts unknown and compensation due employee. Workers Compensation Fund v. Silicone Distributing, Inc., 248 Kan. 551, 556, 809 P.2d 1199 (1991).
3. Insolvent employer's obligation under Kansas workers compensation act was nontax in nature; not entitled to tax priority in bankruptcy. In Re Payne, 27 B.R. 809, 810, 811, 812, 816, 817 (1983).
4. Noted that where plaintiff barred from tort claim as a matter of law, any settlement thereof is patently unreasonable. Murphy v. Silver Creek Oil & Gas, Inc., 17 Kan. App. 2d 213, 837 P.2d 1198 (1992).
5. Workers compensation claimants required to submit claims in mandatory ADR process for employer in Chapter 11 bankruptcy; claimants may not proceed directly against workers compensation fund. Miner v. CX Transportation, 33 Kan. App. 2d 106, 97 P.3d 1069 (2004).
6. Court held the agency had no basis to disregard corporate entity and pierce the corporate vail; mandatory imposition of civil penalty. Hill v. Kansas Dept. of Labor, 42 Kan. App. 2d 215, 210 P.3d 647 (2009).
7. Burden is on the Kansas workers compensation fund to pursue a subrogation action against an insolvent and uninsured employer. Olds-Carter v. Lakeshore Farms, Inc., 45 Kan. App. 2d 390, 250 P.3d 825 (2011).
8. For a court to award attorney fees, a statute must specifically authorize recovery of attorney fees rather than use general language such as "costs" or "expenses." Schmidt v. Trademark, Inc., 60 Kan. App. 2d 206, 220, 493 P.3d 958 (2021), aff'd, 315 Kan. 196, 506 P.3d 267 (2022).