First Quarter 2018


By: Stephen P. Murray

Question:  In an otherwise compensable claim, when does an employer have to pay for pre-surgical testing/treatment and pay TTD benefits while such testing/treatment occurs?

Short Answer:  It is likely that the courts in Kansas would require an employer to pay for pre-surgical testing/treatment for pre-existing conditions such as obesity, as well as pay TTD benefits during this period, only if such treatment/testing is a necessary requirement to curing the underlying work place injury.

Discussion:  Kansas Revised Statute 44-510(h) requires an employer to provide the services of a health care provider, and such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, ambulance, crutches, apparatus and transportation to and from the home of the injured employee to a place outside the community in which such employee resides, and within such community if the director so orders, including transportation expenses, as reasonably necessary to cure and relieve the employee from the effects of the injury.

The Kansas Courts have not explicitly addressed pre-surgical testing/treatment question.  Bu, dicta from a 2008 Court of Appeals of Kansas case may help shed light on the issue.  In Twiss v. Americold Logistics, LLC, 183 P.3d 15, (2008), the Court of Appeals of Kansas noted that K.S.A. 44-510(h) does not require an employer to provide medical services and treatment only for services that are reasonably necessary or prove to be “reasonably necessary.”  Rather, the statute requires payment for services that “may be reasonably necessary to cure and relieve the employee from the effects of the injury.” (emphasis added).  In stating this, the court concluded that substantial competent evidence supported the prior determination that airlifting the employee to Wichita was a reasonably necessary medical expense.

Like all workers’ compensation courts, the Kansas workers’ compensation court exists to help expedite the otherwise lengthy process of litigating workplace injuries.  As such, the Act is generally read in favor of an injured employee, wherever statutory language is unclear.  However, Kansas statutory language is clear that an employer is only required to pay for medical services that “may” cure and relieve the employee from the effects of the injury.  Whether personal health risks, such as obesity, become an issue for which the employer must pay, can only be mandated under the Act, if that condition’s relief will assist in curing and relieving the effects of the work injury.  In many states, courts have stated that such conditions that have not been caused by a work accident, but nonetheless need to be treated prior to surgery to relieve the effects of a workplace injury, will be compensable so long as relief from that condition is the only way to relieve the effects of the workplace injury.  Although Kansas has limited case law on the topic, based on the dicta above from the Twiss decision, and the prevailing mindset of most other state courts, it is likely that Kansas courts would find that an employer must pay for pre-surgery treatment/testing should relief from such condition be a necessary requirement to curing a workplace injury.

Practice Tip: The testimony of physicians goes a long way in adding credibility to a position before the courts in Kansas.  The Kansas courts tend to be more pro-employer than the nearby states of Iowa and Nebraska. Therefore, offering evidence supporting the conclusion that a requested pre-surgery testing/treatment of a pre-existing condition is not necessary for the relief of the effects of a workplace injury would bolster the employer’s denial of paying for the treatment.

In addressing TTD benefits, TTD benefits would only be owed during the time an employee is off work due to either court-approved pre-existing testing/treatment, or accident-related restrictions.  We recommend putting a lot of emphasis on returning an employee to work as soon as possible to avoid further TTD benefits.  This usually requires reaching out to a treating physician to obtain work restrictions that can be accommodated by the employer.