44-569. Same; awards for subsequent injuries to handicapped workers; apportionment of amounts due; duties of commissioner of insurance; employer's liability when fund insufficient, reimbursement. (a) In the event that the administrative law judge finds and determines that a worker has become disabled under circumstances set forth in K.S.A. 44-567 and amendments thereto, the administrative law judge shall make an award setting forth the amount due, if any, from the employer by whom the worker was employed when the worker received subsequent injury in the manner and form by which the award shall be paid, and shall in addition thereto make an award setting forth the amount due to the employee to be paid from the workers compensation fund. All awards paid out of the workers compensation fund shall be payable in payments, the number and size of which shall be set forth by the administrative law judge in the award. The administrative law judge at the option of the administrative law judge is authorized to approve lump-sum settlements with and lump-sum payments from the workers compensation fund.
(b) The director, within 30 days from the date of the filing of the award, shall deliver to the commissioner of insurance a certified copy of the award and thereafter the commissioner of insurance shall cause payment to be made from the workers compensation fund to the employee in harmony with the award.
(c) Whenever the commissioner of insurance finds that there are insufficient funds in the workers compensation fund to satisfy an award of compensation made to a worker from such fund, the commissioner of insurance shall give notice of this finding to the employer by whom the worker was employed when the worker sustained subsequent injury. Upon receiving such notice, the employer shall assume and become liable for the payment of compensation as provided in such award and until such time that the commissioner of insurance finds that there are sufficient funds in the workers compensation fund for this purpose. The employer shall be reimbursed from the workers compensation fund for all such payments of compensation which would have been paid from the workers compensation fund. The commissioner of insurance shall determine the amount of compensation paid by the employer which is to be reimbursed under this subsection, and the amount so determined shall be paid to the employer from the workers compensation fund.
(d) The director shall submit in the regular written report of the director the number and amount of cases involving the workers compensation fund.
History: L. 1945, ch. 221, § 5; L. 1968, ch. 102, § 9; L. 1974, ch. 203, § 48; L. 1982, ch. 213, § 8; L. 1993, ch. 286, § 63; July 1.
Law Review and Bar Journal References:
Analysis of second injury fund, Alvin D. Herrington, 35 J.B.A.K. 167, 196 (1966).
"Potential Federalization of State Workmen's Compensation Law—The Kansas Response," James C. Wright and James P. Rankin, 15 W.L.J. 244, 258 (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, 624, 625 (1976).
"Workmen's Compensation—The Workmen's Compensation Fund," Charles J. Woodin, 24 K.L.R. 641, 642, 647 (1976).
CASE ANNOTATIONS
1. Act applicable where permanent injury is followed by injury causing permanent total disability. Justice v. Continental Can Co., 174 Kan. 539, 540, 546, 550, 551, 257 P.2d 564 (1953).
2. Mentioned in holding facts brought case within act. Justice v. Continental Can Co., 174 Kan. 539, 540, 546, 550, 551, 257 P.2d 564 (1953).
3. Liability of workmen's compensation fund derives from that of employer; settlement between claimant and employer precludes action against fund by claimant. Arduser v. Daniel International Corp., 7 Kan. App. 2d 225, 229, 640 P.2d 329 (1982).
4. Employer primarily liable after receiving notice of Fund's insufficient funds; no penalty under K.S.A. 44-512a in absence thereof. Nuttle v. CertainTeed Corp., 10 Kan. App. 2d 225, 228, 696 P.2d 415 (1985).
5. Workers compensation fund not liable for claims arising under K.S.A. 44-567(a)(1) on or after July 1, 1994. Shain v. Boeing Military Airplanes, 22 Kan. App. 2d 913, 917, 924 P.2d 1280 (1996).
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