Printable Format44-543. Election by certain employees. (a) As used in this section:
(1) "Nonprofit organization" means those nonprofit organizations exempt from federal income tax pursuant to section 501(c) of the internal revenue code of 1986, as in effect on the effective date of this act.
(2) "Compensation" does not include actual and necessary expenses that are incurred by a volunteer officer, director or trustee in connection with the services that the volunteer performs for a nonprofit organization and that are reimbursed to the volunteer or otherwise paid.
(3) "Volunteer officer, director or trustee" means an officer, director or trustee who performs services for a nonprofit organization but does not receive compensation, either directly or indirectly, for those services.
(b) Any employee of a corporate employer who owns 10% or more of the outstanding stock of such employer, may file with the director, prior to injury, a written declaration that the employee elects not to accept the provisions of the workers compensation act, and at the same time, the employee shall file a duplicate of such election with the employer. Such election shall be valid only during the employee's term of employment with such employer. Any employee so electing and thereafter desiring to change the employee's election may do so by filing a written declaration to that effect with the director and a duplicate of such election with the employer. Any contract in which an employer requires of an employee as a condition of employment that the employee elect not to come within the provisions of the workers compensation act, shall be void. Any written declarations filed pursuant to this section shall be in such form as may be required by regulation of the director.
(c) Any noncompensated volunteer officer, director or trustee of a nonprofit corporation as defined in clause 3 of subsection (a) may elect to be covered by the provisions of the workers compensation act by filing with the director, prior to injury, a written declaration that the officer, director or trustee elects to accept the provisions of the workers compensation act, and at the same time, the person shall file a duplicate of such election with the employer and the employer's insurance company or qualified group-funded workers compensation pool.
History: L. 1927, ch. 232, § 51; L. 1959, ch. 221, § 1; L. 1961, ch. 243, § 11; L. 1974, ch. 203, § 38; L. 1996, ch. 79, § 11; April 4.
Source or prior law:
L. 1911, ch. 218, § 45; L. 1913, ch. 216, § 8; L. 1917, ch. 226, § 24; R.S. 1923, 44-543.
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, 265 (1976).
"Workmen's Compensation—An Introduction to Changes in the Kansas Statute," Bryce B. Moore, 24 K.L.R. 603, 606 (1976).
"Workmen's Compensation—Major Changes in Employments Covered, Benefits, Defenses, Offsets, and Other Changes," Alvin D. Herrington, 24 K.L.R. 611, 612 (1976).
"Workmen's Compensation—Permanent Partial Disability Benefits—The Dilemma," George E. McCullough, 24 K.L.R. 627, 632 (1976).
"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. 26, No. 2, 19 (2002).
CASE ANNOTATIONS
Explanation, see Revisor's Note under article title, chapter 44, article 5.
Cases through 1973
IN GENERAL (1-5)
1. Employer's election to operate under act voluntary not compulsory; never presumed. Thorp v. Victory Cab Co., 172 Kan. 384, 387, 388, 240 P.2d 128 (1952).
2. Act of 1911, as amended in 1913, constitutional and valid. Shade v. Cement Co., 93 Kan. 257, 258, 144 P. 249 (1914).
3. Discussed in reviewing history of election provisions under act; K.S.A. 44-544 construed. Vick v. Morton, 172 Kan. 87, 90, 91, 92, 283 P.2d 467 (1951).
4. New election not to accept necessary after revision of 1913. Railway Co. v. Fuller, 105 Kan. 608, 609, 614, 186 P. 127 (1919).
5. Act, including provisions of this section applies to minor workmen. Railway Co. v. Fuller, 105 Kan. 608, 614, 186 P. 127 (1919).
EXCLUSIVE REMEDY, WHEN (7-12)
7. Remedies under workmen's compensation act exclusive where parties within act. Shade v. Cement Co., 92 Kan. 146, 147, 139 P. 1193 (1914).
8. Remedy under act is not exclusive if injury complained of is not within its provisions. Echord v. Rush, 124 Kan. 521, 523, 261 P. 820 (1927).
9. Parties within compensation law; trial under other act; on appeal it is too late to first invoke provisions of act. Frere v. Railway Co., 94 Kan. 57, 58, 145 P. 864 (1915).
10. Employer not coming under act, employee entitled to other remedies. Smith v. Cement Co., 94 Kan. 501, 146 P. 1026 (1915).
11. Employer electing not to come within act, forfeits defenses under K.S.A. 44-544. Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, 280, 65 P.2d 284 (1937).
12. Action against employer who is not under act. Brooks v. Coal & Coke Co., 96 Kan. 530, 531, 152 P. 616 (1915).
Cases after 1973
13. History of act discussed in construing provisions of K.S.A. 44-510f (L. 1974, ch. 203, sec. 16). Boyd v. Barton Transfer and Storage, 2 Kan. App. 2d 425, 429, 580 P.2d 1366.