Workers' compensation law: Dual jurisdiction cases
Vol. 77, No. 4 / July - August 2021
Jan Fisher graduated from Washburn Law School in 1985 and was also admitted to the Kansas Bar in 1985. She was admitted to practice law in Missouri in 2005. For the last 36 years, Fisher has represented claimants in the areas of workers’ compensation law and social security disability law. For the last seven years, Fisher has also been an adjunct professor at Washburn Law School teaching workers’ compensation law and social security disability law. Fisher is one of the current contributing editors of the workers’ compensation section of the Kansas Trial Lawyers Association journal. She is a registered lobbyist for Kansas AFL-CIO for workers’ compensation issues before the Kansas legislature.
Kansas City is a bi-state metropolitan area — consisting of 14 counties — and anchored by Kansas City, Missouri. Workers often commute across state lines from their homes to their places of employment.2 Employers also take jobs on both sides of the border, especially in the construction and transportation industries. As such, an employee injured on the job in the metro area may have the choice of pursuing his or her workers’ compensation claim in Missouri, Kansas, or both jurisdictions.
Statutory Basis for Dual Jurisdiction Claims
Jurisdiction for the Kansas Workers Compensation Act is set out in Kansas Statutes Annotated 44-506. In addition to employees who are injured in Kansas,3 the act applies to any injury outside of the state where the principal place of employment or the contract of employment was made within the state — unless such contract otherwise specifically provides.4
Jurisdiction for the Missouri Workers’ Compensation Law is set out in § 287.110 of the Missouri Revisor of Statutes. This chapter applies to all injuries received and occupational diseases contracted in the state. The act also applies to all injuries received and all occupational diseases contracted outside of the state if the contract of employment was made in Missouri, unless the contract otherwise provides. The law covers injuries and occupational diseases where the employee’s employment was principally localized in Missouri within 13 calendar weeks of the injury or diagnosis of the occupational disease.5
Dual jurisdiction exists when the employee is hired in one state but injured in the other state. If the prospective employee accepts a job over the phone while at home, the contract for employment is formed in the state of the employee’s residence.6 The job site where the accident occurs may be across the border.
Construction and transportation companies cross the state border in Kansas City with each job, which can create dual jurisdiction issues when an accident occurs in a state that is different from either the state where the person was hired or where the injured employee normally works.7 For example, accidents involving over-the-road truck drivers often have multiple jurisdiction involvement. The employee may be hired over the phone in one state, primarily drive in another state, and have an accident in a third state. All three states may have sufficient contacts to assert jurisdiction.8
The Heightened Causation Standard
The injured worker’s choice between Kansas and Missouri jurisdictions can be confusing. This is especially true since many of the workers’ compensation statutes in both states mirror each other. The claimant must prove personal injury by accident which arises out of and in the course of employment. Kansas and Missouri have similar definitions of “accident,”9 “injury,”10 and “arising out of and in the course of employment.”11
Even if the compensability of the claim is accepted, there are numerous differences in Missouri and Kansas regarding the type and amount of compensation available. If the compensability of the accident is uncontested, choosing the correct state to pursue compensation will not be clear until the claimant reaches maximum medical improvement. The calculation of compensation in each state is complex and is beyond the scope of this article.
When the compensability of an accident is contested, choosing the correct jurisdiction starts with the question: Which state gives the employee the best chance of proving a contested claim compensable? Two of the most common issues which arise when causation is at issue are “prevailing factor standard of causation”12 and “equal exposure to risk.”13
The Prevailing Factor Standard of Causation in Missouri
In Missouri, an injury arises out of and in the course of employment only if “. . . it is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury.”14 “Injury” is defined as an injury which arises out of and in the course of employment. An injury by accident is compensable only if the accident is the prevailing factor in causing both the resulting medical condition and disability. “Prevailing factor” is defined as the primary factor — in relation to any other factor — causing both the resulting medical condition and disability.15
One of the earliest cases defining the prevailing factor standard of causation in Missouri is Gordon v. City of Ellisville.16 The Missouri Court of Appeals-Eastern District discussed the new prevailing factor standard of causation but did not attempt to further define the causation standard other than to point out that aggravations of preexisting conditions no longer support an award of compensation.17
The court found that the changes in the claimant’s activity level after the accident did not undermine the treating physician’s opinion on causation.18 Instead, the prevailing factor standard of causation should be based on medical opinion. “Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause.”19
In Johnson v. Indiana Western Exp., Inc.,20 the Missouri Court of Appeals-Southern District reinforced the need for credible medical evidence in determining causation.
[I]n determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.21
In this case, the court affirmed the Missouri Labor and Industrial Relations Commission’s decision — finding that it was supported by credible and substantial evidence. The court ruled:
That determination is binding on this court in that credibility regarding competing medical theories is a decision to be made by the commission … When the right to compensation depends on the acceptance of one of two competing medical theories, the issue is one of fact and the commission’s finding will not be disturbed unless the commission acted unreasonably in accepting testimony that was not substantial or decided the issue contrary to the overwhelming weight of the evidence.22
The Court of Appeals again rejected an argument that a change in abilities or activities level was sufficient to prove the prevailing factor standard of causation.23
The scope of the prevailing factor causation standard was considered in Tillotson v. St. Joseph Medical Center.24 Here, the Labor and Industrial Relations Commission found that a compensable accident occurred when a registered nurse injured her knee while helping move a patient. The accident resulted in a lateral meniscus tear.
The medical evidence in the case indicated that an arthroscopy would ordinarily be the appropriate surgery to repair a torn lateral meniscus, but such operation is inappropriate when the patient has severe arthritis. Both orthopedic surgeons who testified agreed that a total knee replacement would best remedy her condition.25 As such, the commission determined the arthritis present at the time of the accident was the prevailing factor in the need for a total knee replacement. The knee replacement was not covered under the workers’ compensation claim.26
The Missouri Court of Appeals-Western District reversed this decision. The court set up a two-part test. First, it must be determined whether an employee has suffered a compensable injury “by accident arising out of and in the course of employee’s employment.” Second, if a compensable injury has been sustained by the employee, the appropriate compensation to be furnished must be determined.27
The labor commission determined that a compensable injury had occurred. This satisfied the prevailing factor causation standard. The total knee replacement was not a “medical condition” or “disability” — it was a form of medical treatment employed to address a medical condition or disability. The statute concerning medical treatment does not mention prevailing factor. Rather, the determination was whether the total knee replacement was reasonably required to cure and relieve the effects of the injury.28 It was immaterial that the treatment may have been required because of a complication of preexisting conditions or that the treatment benefited both the compensable injury and the preexisting condition.29
The importance of the Tillotson case cannot be overstated. The prevailing factor standard of causation is a “gate-way defense.” Once personal injury by accident which arises out of and in the course of employment is proven, the prevailing factor standard is no longer relevant.
In Randolph County v. Moore-Ransdell,30 the Missouri Court of Appeals-Western District ruled that prevailing factor causation is determined in looking at the entire medical condition — not the individual diagnosis or components of an injury. Under this interpretation, an injury that causes a structural change in the body and aggravates a previously asymptomatic compensable condition usually renders the entire medical condition compensable.
In the Randolph County case, Tammy Moore-Ransdell injured her lower back while bending over and pulling a file from an overfilled bottom file drawer. Dr. Thomas R. Highland was asked his opinion about what factors contributed to Moore-Ransdell’s medical condition. One factor was the underlying degenerative process, a second was possibly smoking, and the third was the lumbar strain from the incident at work.31 The doctor opined that the lumbar strain was the primary factor of Moore-Ransdell’s overall condition.32
The labor commission adopted this opinion and found the accident compensable.33 Randolph County appealed to the Court of Appeals, arguing that the medical evidence showed her work-related accident was merely a triggering — or precipitating — factor and not the prevailing factor in her medical condition and disability.34
The court of appeals looked at the overall medical condition — rather than individual diagnoses — in determining whether the prevailing factor standard of causation had been met. The court did not require that the claimant prove an injury — i.e., a change in the physical structure of the body to both muscles in the lower back and to the discs in the lumbar spine. The court affirmed the labor commission’s award, stating the lumbar strain caused by the work accident was the primary factor in her overall medical condition. The injury necessitated the course of treatment that was provided, including the fusion surgery. The accident was “the primary factor” that contributed to “(t)he overall condition of her lumbar spine” and was the prevailing cause “of the condition that she had when she came to see (Highland).”35
The dissent argued that it was not enough that Highland “said the magic words” in expressing an opinion on causation. Highland stated — unequivocally — that the workplace accident did not advance the degeneration of the spine. It just caused the degeneration to become symptomatic.36 The majority rejected this view — relying on Highland’s testimony that the lumbar strain was the “primary factor of the overall condition” in this patient.37
The Randolph County case is important in that it focuses on the overall injury to the lumbar spine — not the component parts of the injury. In other words, causation is determined by viewing the totality of the “medical condition.” Since the strain — an acute injury — caused the degenerative disc disease to become symptomatic and caused the need for surgery, the prevailing factor standard of causation was proven. This interpretation extends to secondary — or consequential — injuries. In Sickmiller v. Timberland Forest Products, Inc.,38 the employee injured her lower back in a work-related accident. The claimant had a history of “physical and psychological disabilities.” However, nearly every expert opined that the work injury caused at least some additional psychological disabilities.39 Section 287.020.3(1) of the Revised Missouri Statutes requires that the work-related injury be the “primary factor” in causing the “resulting medical condition and disability” at issue, not the sole factor.40 Therefore, both the lower back injury and the aggravation of psychological disabilities were considered in determining the award of compensation.
This approach is also used in awarding future medical benefits. In Dierks v. Kraft Foods,41 the Missouri Court of Appeals-Western District affirmed the state labor commission’s award involving a meniscal tear to the left knee. Future medical benefits were awarded, including a possible total knee replacement. The evaluating doctor testified that the new structural injury to Katy Dierks’s knee from the work injury (meniscal tear) and the arthroscopic surgery to treat that injury have accelerated the degenerative process to where Dierks will require a knee replacement in the future. As such, the court found the record contained competent and substantial evidence that the need for a total knee replacement in the future flows from her work injury.
The Prevailing Factor Standard of Causation in Kansas
The Kansas prevailing factor statutes are similar. In Kansas, an injury by accident arises out of employment only if “the accident is the prevailing factor causing the injury, medical condition and resulting disability or impairment.”42 K.S.A. 44-508(g) defines “prevailing factor” as “the primary factor, in relation to any other factor.” The statute adds:
An injury is not compensable because work was a triggering or precipitating factor. An injury is not compensable solely because it aggravates, accelerates or exacerbates a preexisting condition or renders a preexisting condition symptomatic.43
Kansas Appellate Courts — unlike the case law established in Missouri — look at each component of an injury to determine prevailing factor. Each part of the injury must meet the prevailing factor standard for treatment to be provided, impairment to be assigned, and for disability compensation to be awarded. This approach results in a claimant being compensated for the acute injury but not the aggravation of an underlying medical condition — even when the underlying medical condition was asymptomatic prior to the work injury and caused no functional limitations. This approach limits the medical treatment provided to conditions which individually meet the prevailing factor standard.
One of the first appellate decisions in Kansas to consider the prevailing factor standard of causation was Nam Le v. Meats.44 The claimant — who had asymptomatic osteoporosis — fell at work and suffered a vertebral fracture. There was conflicting evidence concerning whether her permanent impairment and disability were a result of the fracture or residual of the now-symptomatic osteoporosis.
The Kansas Court of Appeals analyzed the new standard of causation adopted in the 2011 amendments to the Kansas Workers Compensation Act. Prior to the 2011 amendments, it was established that when a worker’s job duties aggravated or accelerated an existing condition or disease — or intensified a preexisting condition — the aggravation became compensable as a work-related accident. The 2011 amendments changed the scope of a compensable injury with the prevailing factor standard of causation.45
Under K.S.A. 44-508(f)(2), accidental injuries resulting in a new physical finding — or a change in the physical structure of the body — are compensable despite the claimant also having sustained an aggravation of a preexisting condition.46 The claimant did not suffer from chronic pain before the work accident. Following the accident, the pain became chronic and prevented her from working. The court ruled:
When viewing the record as a whole, the evidence undermines Dr. (John) Ciccarelli’s conclusion that Le’s ongoing pain which prevents her from working is attributed solely to her preexisting osteoporosis and is not a consequence of the injury she sustained at work.47
The Nam Le case appears to treat the prevailing factor causation standard in a similar manner to the Missouri courts’ interpretation. The fracture started a chain of events that led to worsening of other conditions which, when combined, led to impairment and permanent disability.
Subsequent appellate cases have narrowed this standard. In Buchanan v. JM Staffing, LLC,48 the Kansas Court of Appeals ruled that when an employee sustains an injury which leads to a consequential or secondary injury, both must meet the same causation standard.
Kansas caselaw has long provided that injured employees are entitled to compensation for any secondary injuries that are the natural and probable result of the primary injury; this is known as the secondary-injury rule. The amendments made to the Workers Compensation Act in 2011, which added the prevailing-factor requirement, did not eliminate the secondary-injury rule. After the addition of the prevailing-factor requirement, a secondary injury must be both the natural and probable consequence of the primary injury and caused primarily by the work accident to be compensable.49
This ruling was expanded in Cramer v. Presbyterian Manors.50 Mary Phillene Cramer sustained a lower back injury while doing laundry at Presbyterian Manors. There was some evidence of prior problems with her back but nothing that could be characterized as a permanent or chronic problem.
The Kansas Workers Compensation Appeals Board found the opinion of Dr. Douglas Burton to be most credible. He opined that Cramer sustained a strain of the muscles in her lower back and that aggravated her preexisting — and largely asymptomatic — degenerative disc disease. The board limited her award to impairment from the strain and found that any impairment or restrictions resulting from the degenerative disc disease should not be considered.51
The claimant appealed to the Kansas Court of Appeals, arguing that the entirety of the injury should be considered compensable. Cramer claimed the strain in her lower back satisfies the requirement that there be an injury — i.e., a change in the physical structure of the body. The strain was superimposed on the degenerative disc disease which was aggravated — or made symptomatic — by the work accident. Cramer claimed she was not disabled by pain before the accident. She had no limitations in her ability to lift. After the accident, she had continuing pain and her ability to lift was substantially reduced.
This would appear to be a similar theory to that which was adopted by the Missouri Court of Appeals-Western District in the Randolph County case. There was a causative chain of events precipitated by the accident. The Kansas Court of Appeals rejected this interpretation of the prevailing factor causation standard.
First, to be compensable, the natural and probable consequences that arise or flow from the injury must still be caused primarily by the work accident … As a result, the aggravated degenerative disc disease was not compensable as an impairment flowing from the lumbar strain/herniated disc.52
Thus — under the Kansas Court of Appeals rulings in the Buchanan and Cramer cases — the claimant must prove that each diagnosis/component of an injury meet the prevailing factor standard of causation.53
Prevailing Factor: Which State to Choose
Missouri is the jurisdiction of choice if the employer asserts that the accident did not arise out of and in the course of employment due to the prevailing factor defense. Missouri courts more often compensate for both the acute injury and the aggravation of asymptomatic preexisting conditions since the court looks at the overall medical condition — rather than its component parts — in addressing prevailing factor.
This results in an advantage for employees who suffer from age-related degenerative conditions which may be asymptomatic prior to the work accident. Degenerative disc disease is a normal part of aging. These changes appear in almost everyone after age 40 but usually are not symptomatic.54 Degenerative joint disease is a similar aging process. This is sometimes referred to as osteoarthritis and occurs when the cartilage in the joint begins to break down. Again, the condition can be asymptomatic.55
Kansas courts may not award compensation when there is an acute injury and an aggravation of either of these two conditions. The Kansas court will look at each injury or medical condition separately. Was the accident the prevailing factor in the strain or sprain? Was the accident the prevailing factor in the changes to the disc? Was the accident the prevailing factor in the acceleration of the osteoarthritis? Is the prevailing factor in the need for medical treatment the work-related accident?
The Requirement of a Work-Related Risk
From an employee’s standpoint, Missouri is the more favorable jurisdiction when “prevailing factor” causation is at issue. The opposite is true in accidents where the employer denies the claim based on the need to show a work-related risk. Kansas is the more favorable jurisdiction for the injured employee.
For an accidental injury to arise out of and in the course of employment, it must be associated with an “occupational risk.” Examples of employment or occupational-related risks include tripping on a defect at the employer’s premises, falling on uneven or slippery ground at the worksite, or performing some work-related tasks which contribute to the risk of falling. These types of accidents are universally compensable.
Personal risks are universally non-compensable since they are personal to the employee. Personal risks include non-occupational diseases, injuries caused by personal infirmities — such as a trick knee — and injuries caused by personal enemies.
Neutral risks may or may not be compensable since the cause of the injury is neither distinctly occupational nor distinctly personal in character, or the cause is unknown. Neutral risks include unexplained falls, accidents from stray bullets, dog bites, terrorist attacks, lightning strikes, and tornadoes.56
There are three legal doctrines currently used to decide compensability of neutral risks — the choice depending on the state and the type of neutral risk. The increased risk doctrine requires that the job increase the quantity of risk compared to members of the general public, although the risk does not have to be peculiar to the occupation. The actual risk — or normal risk — doctrine allows compensation even if the risk that caused the injury was common to the public, so long as the risk was an actual or normal risk of the job. The positional risk doctrine allows compensation for all injuries that would not have occurred but for the fact the employment placed the claimant in the position where he or she was injured.57
The Increased Risk Requirement in Missouri
Section 287.020.3(2)(b) RSMo indicates that an injury shall arise out of and in the course of employment only if “[i]t does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.”
This statutory section adopts the increased risk doctrine for neutral risk accidents. The most common neutral risk accident is the “unexplained fall.” In Pile v. Lake Regional Health System,58 the Missouri Court of Appeals-Southern District explained that application of this subsection involves a two-step analysis.
The first step is to determine whether the hazard or risk is related or unrelated to the employment. Where the activity giving rise to the accident and injury is integral to the performance of a worker’s job, the risk of the activity is related to employment. In such a case, there is a clear nexus between the work and the injury.59
When the nexus is clear, there is no need to consider whether the injured worker was equally exposed in normal non-employment life. Only if the hazard or risk is unrelated to employment does the second step of the analysis apply. In this second step, the court must determine whether the claimant is equally exposed to the hazard or risk in normal non-employment life.
If the accident results from an “occupational risk,” the claim is compensable. There is no need for further analysis. If the accident results from a “neutral risk” — i.e. one not related to the employment duties — the court must compare the risk from employment to the risk in normal non-employment life.60
The first step in the analysis requires identification of the “risk source.” For example, in Gleason v. Treasurer of State of Missouri-Custodian of Second Injury Fund,61 the claimant was required to walk on top of railroad cars to perform his job function. While walking on these cars, he fell approximately 20 feet to the ground. He could not explain why he fell. Although the claimant was walking when the accident occurred and could not explain the reason for the fall, this does not defeat the claim. The “risk source” of this injury is the job requirement to walk at heights. There is a causal connection between the claimant’s work activity and his injuries. The claim is compensable under the first step of the analysis.62
Similarly, in Whiteley v. City of Poplar Bluff,63 the chief of police was injured when he went to a car wash to clean his patrol car. Whiteley was attempting to wash the inside of the windshield when he injured his neck. There was extensive evidence presented that the activity of keeping the windshield of his patrol car clean was an integral part of his job as a police officer for the city. Thus, there is a clear nexus between the job of being a police officer and keeping patrol cars clean. As such, there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life.64
The equal exposure problem only comes into play when the risk source has no nexus to the employee’s job duties. It is a neutral risk. Two cases illustrate the increased risk requirement — Miller v. Mo. Highway and Transp. Com’n,65 and Johme v. St. John’s Mercy Healthcare.66
In Miller, the employee was injured while walking on a flat road back to his truck. Compensation was denied. The Supreme Court of Missouri found that Miller had failed to prove that his injury arose out of and in the course of employment because nothing about his work transformed his walk to the truck into a hazard or risk to which he was not equally exposed to in normal, non-employment life.67 An injury occurring at work does not automatically make such an injury compensable. There must be some condition of employment that creates a hazard or risk to the employee beyond the risk in non-employment life.68
In Johme, a billing representative at a hospital tripped and fell after making a pot of coffee in the workplace kitchen. Compensation was denied by the Supreme Court of Missouri, holding that the claimant failed to prove her injury arose out of and in the course of employment because no evidence demonstrated her injury was caused by a risk related to her employment activity, as opposed to a risk to which she was equally exposed in normal life.69
The Increased Risk Requirement in Kansas
Kansas does not have an “increased risk” requirement for an accidental injury. For a single traumatic event, the worker must show that “(t)here is a causal connection between the conditions under which the work is required to be performed and the resulting accident.”70 This statute simply confirms that an accident that arises from an occupational risk is universally compensable.
If an employee claims the accident from repetitive trauma, there is an increased risk requirement. K.S.A. 44-508(f)(2)(A) states, in part:
An injury by repetitive trauma shall be deemed to arise out of employment only if: (i) The employment exposed the worker to an increased risk or hazard to which the worker would not have been exposed in normal non-employment life.
If an employee repetitively bends at work, it must be demonstrated that he did not do the same amount and type of bending at home.71
The defense based upon neutral risk is set out in K.S.A. 44-508(f)(3)(A), which indicates that an accident does not arise out of and in the course of employment if the “accident or injury that arose out of a neutral risk with no particular employment or personal character(.)” The phrase “with no particular employment or personal character” has been viewed by Kansas courts as the adoption of the “actual risk doctrine” for neutral risks.
The neutral risk exception is the subject of two Kansas Court of Appeals decisions. In Johnson v. Stormont Vail Healthcare Inc.,72 the employer denied a work-related fall as “unexplained” and, thus, subject to the neutral risk exclusion. The Kansas Court of Appeals found the phrase “neutral risk with no particular employment or personal character” was a technical phrase that has acquired a peculiar and appropriate meaning in the law. Neutral risks are those risks that have no employment character. The claimant’s unexplained fall occurred while she was performing her job duties that required her to walk. Thus, there was an employment character to the accident.73
Relying on Bryant v. Midwest Staff Solutions, Inc.,74 the proper focus of inquiry should be on whether the activity that results in injury is connected to — or is in — the performance of the job.
The statutory scheme does not reduce the analysis to an isolated movement — bending, twisting, lifting, walking, or other body motions — but looks to the overall context of what the worker was doing — welding, reaching for tools, getting in or out of a vehicle, or engaging in other work-related activities.75
A similar decision was made in Munoz v. Southwest Medical Center.76 The claimant worked as a food service employee, and her position required preparing and delivering food to patients. On July 30, 2013, Munoz fell after delivering food. About midway down the hall, Munoz caught her foot on the floor for an unknown reason, causing her to lose control and fall.
Applying the Bryant Supreme Court of Kansas decision, the Kansas Workers Compensation Appeals Board found that the claimant’s accident was causally connected to the requirements of her work because she “... was performing a work-connected activity, delivering food, a task essential to the performance of her job, and a task in which walking was compulsory.”77
The Kansas Court of Appeals agreed with this analysis. Citing the Johnson decision, the court agreed that neutral risks are those “with no particular employment or personal character.” Like in the Johnson case, the claimant’s injury did not arise out of a neutral risk because her activity at the time of the accident had a particular employment character — she was walking to perform a task required by the job.78
In Kansas, if the accident occurs because of the employment, the risk does not need to be compared to other situations. It has not been determined if this approach also applies if the employee falls for no reason while on lunch break.79 However, certainly the personal comfort doctrine might make a fall during a break compensable.80
Increased Risk Requirement: Which State to Choose
In contrast to prevailing factor, Kansas is the jurisdictional choice when the accident results from a potential neutral risk, such as an unexplained fall. Kansas seems to take a wider view of what constitutes a “work-related activity.” If the claimant has an unexplained fall while walking, it is still compensable if walking is a requirement of the job. The injured worker does not have to identify a reason for the fall, such as a wet or uneven floor.
Missouri sets a higher standard. The Supreme Court of Missouri in Annayeva v. SAB of TSD of City of St. Louis81 found the unexplained fall of a teacher non-compensable.
Because Annayeva failed to produce any credible evidence regarding the soiled condition of the floor, her walk into the school was no different from any other walk taken in her normal, nonemployment life. Under § 287.020.3(b) Annayeva’s workers’ compensation claim is not compensable.82
Other Potential Factors in Determining Jurisdiction
Prevailing factor and equal exposure issues are two of the considerations in determining the best jurisdiction to litigate the case. There may be other defenses unique to either Kansas or Missouri which would be determinative of jurisdiction choice. Workers’ compensation law is based purely on statutes — not on common law. Therefore, it is important to carefully read each relevant statutory section.
Once the claim is deemed compensable, there are multiple other factors to consider in maximizing the injured employee’s monetary and medical benefits under each workers’ compensation act. The employee will not be able to tell which jurisdiction will result in more compensation until after his or her medical condition has reached maximum medical improvement. The employee’s lawyer must calculate the compensation available using each state’s schedule of benefits and applicable rates of compensation.
Normally, the employee does not have to make an election of which jurisdiction to pursue when filing an application for compensation. In fact, there is no prohibition of filing the claims in both states and then moving back and forth — depending on the benefit sought.
An injured worker who has a claim that is contested may want to start in Kansas to get a preliminary award of compensation.83 The claimant may then want to pursue permanent disability benefits in Missouri in cases of permanent and total disability.84 An injured worker who earns high wages may want to start in Missouri with the higher maximum temporary total disability rate85 but move over to Kansas to claim added compensation based on a reduction in the ability to earn wages.86
The employee and his or her lawyer should be aware of the jurisdiction limit for claims against the Missouri Second Injury Fund. The fund supplies additional compensation in narrow circumstances when the present injury is made worse by the effects of a preexisting medical condition or injury.87 Section 287.220.12, RSMo, states:
No compensation shall be payable from the second injury fund if the employee files a claim for compensation under the workers’ compensation law of another state with jurisdiction over the employee’s injury or accident or occupational disease.
Therefore, if a claim may be pursued in either Kansas or Missouri, consider the possibility of a claim against the Missouri Second Injury Fund prior to filing the claim in Kansas.
1 Jan Fisher graduated from Washburn Law School in 1985 and was also admitted to the Kansas Bar in 1985. She was admitted to practice law in Missouri in 2005. For the last 36 years, Fisher has represented claimants in the areas of workers’ compensation law and social security disability law. For the last seven years, Fisher has also been an adjunct professor at Washburn Law School teaching workers’ compensation law and social security disability law. Fisher is one of the current contributing editors of the workers’ compensation section of the Kansas Trial Lawyers Association journal. She is a registered lobbyist for Kansas AFL-CIO for workers’ compensation issues before the Kansas legislature.
2 According to the Missouri Economic Research and Information Center, 29% of the region’s labor force commute to jobs outside of their local region. See https://meric.mo.gov/economic-research/commuting-profiles.
3 Kan. Stat. Ann. § 44-501b (2019).
4 Kan. Stat. Ann. § 44-506 (2019). The “principal place of employment” refers to the employee’s principal place of employment — not the employer’s place of employment. See Knelson v. Meadowlanders, Inc., 11 Kan. App. 2d 696 Syl. 1 (1987).
5 Section 287.110, RSMo (2016).
6 Austin v. AM Mechanical Services, 604 S.W.3d 665 (2020); Neumer v. Yellow Freight System, Inc., 220 Kan. 607, 566 P.2d 202 (1976); Smith v. McBride & Dehmer Const. Co., 216 Kan. 76, 530 P.2d 1222, 79 (1975); Shehane v. Station Casino, 27 Kan. App. 2d, 257, 3 P.3d 551 (2000).
7 Cable v. Schneider Transp., Inc., 957 S.W.2d 802 (1997); Graff v. Trans World Airlines, 267 Kan. 854, 983 P.2d 258 (1999); Speer v. Sammons Trucking, 35 Kan. App. 2d 132, 128 P.3d 984 (2006); Knelson v. Meadowlander, Inc., 11 Kan. App. 2d 696, 732 P.2d 808 (1987).
8 Shields v. K.A.T. Transp., 30 Kan. App. 2d 1069, 53 P.3d 1242 (2002).
9 Kan. Stat. Ann. § K.S.A. 44-508(d) (2019); Section 287.020.2, RSMo (2016).
10 Kan. Stat. Ann. § 44-508(f) (2019); Section 287.020.3(1) RSMo (2016).
11 Kan. Stat. Ann. § 44-508(f)(1-2) (2019); Section 287.020.3(2), RSMo (2016).
12 Kan. Stat. Ann. § 44-508(f)(2)(A-B) (2019); Section 287.020.3(2)(a), RSMo (2016).
13 Section 287.020.3(2)(d), RSMo (2016).
14 Section 287.020.3(2)(a), RSMo (2016); see also, Section 287.020.2, RSMo (2016). “An injury is not compensable because work was a triggering or precipitating factor.”
15 Section 287.020.3(1), RSMo. (2016).
16 268 S.W.3d 454 (Mo. App. E.D. 2008).
17 Id. at 459.
18 Id. at 461.
20 281 S.W.3d 885 (Mo. App. S.D. 2009).
21 Section 287.190.6(2), RSMo (2016).
22 281 S.W.3d 885 at 893, quoting Baird v. Ozarks Coca-Cola/Dr. Pepper Bottling Co., 119 S.W. 3d 151,154 (Mo. App. 2003) & Keener v. Wilcox Elec., Inc., 884 S.W.2d 744, 746 (Mo. App. 1994).
23 Id. at 892.
24 347 S.W.3d 511 (Mo. App. W.D. 2011).
25 Id. at 514.
26 Id. at 515.
27 Id. at 517.
29 Id. at 519.
30 446 S.W.3d 699 (Mo. App. W.D. 2014).
31 Id. at 703.
32 Id. at 703,704, and 708.
33 Id. at 704.
34 Id. at 701.
35 Id. at 708-10.
36 Id. at 712-14.
37 Id. at 710.
38 407 S.W.3d 109 (Mo. App. S.D. 2013).
39 Id. at 118.
40 Id. at 120 & 121.
41 471 S.W.3d 726 (Mo. App. W.D. 2015).
42 Kan. Stat. Ann. § 44-508(f)(2)(B)(ii) (2019).
43 Kan. Stat. Ann. § 44-508(f)(2) (2019).
44 52 Kan. App. 2d 189, 364 P.3d 571 (2015).
45 Id. at Syl. 3.
46 Id. at Syl. 4.
47 Id. at 578.
48 52 Kan. App.2d 943, 379 P.3d 428 (2016).
49 Id. at Syl. 4.
50 448 P.3d 502 (Kan. App. 2019) (unpublished decision).
51 Id. at *3.
52 Id. at *6.
53 See also Hopkins v. Great Plains Manufacturing, Inc., 485 P.3d 1210 (Kan. App. 2021). At the time of publication, this was not a final decision. The plaintiff in a civil case appealed the summary judgement of the court based upon the exclusive remedy doctrine of the Kansas Workers Compensation Act. The plaintiff suffered back strain in a work accident, and he aggravated his degenerative disc disease. The administrative law judge (ALJ) and the Kansas Workers Compensation Board found that the aggravation was not compensable under the prevailing factor standard of causation. In response, the plaintiff filed a civil action against the employer alleging negligence. The Court of Appeals ruled the exclusive remedy doctrine prevented this civil suit since compensation was recoverable under the Kansas Workers Compensation Act. In doing so, the Court of Appeals ruled that the plaintiff did not sustain two independent injuries from his work accident. He sustained one injury with multiple consequences, with one of those consequences being the aggravation of his preexisting degenerative disc disease. Simply because he could not prove that the prevailing factor in the aggravation was the work accident did not negate the exclusive remedy provision.
54 The Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/16912-degenerative-disk-disease (Dec. 7, 2020).
56 Arthur Larson & Thomas Robinson, Larson’s Workers’ Compensation Law § 4.01-4.03, at 4-2 to 4-3 (2020); see also McAllister v. Illinois Workers’ Compensation Commission, 2020 IL 124848 (2020).
57 John Burton, “Workers’ Compensation Policy Review,” Workers’ Compensation Resources, at https://www.workerscompresources.com/wp-content/uploads/2012/11/MA05.pdf (2005).
58 321 S.W.3d 463 (Mo. App. S.D. 2010).
59 Id. at 467.
60 Id. at 467.
61 455 S.W.3d 494 (Mo. App. W.D. 2015).
62 Id. at 501 & 502.
63 350 S.W.3d 70 (Mo. App. S.D. 2011).
64 Id. at 79.
65 287 S.W.3d 671 (Mo. banc 2009).
66 366 S.W.3d 504 (Mo. banc 2012).
67 287 S.W.3d at 674.
69 366 S.W.3d at 512; see also Schoen v. Mid-Missouri Mental Health Center, 597 S.W.3d 657 (Mo. Banc 2020) & Marks v. Missouri Department of Corrections, 606 S.W.3d 159 (Mo. App. W.D. 2020).
70 Kan. Stat. Ann. § 44-508(f)(2)(B)(i) (2019).
71 Anderson v. Scarlett Auto Interiors, 31 Kan. App.2d 5, P.3d 81 at 61 (2002).
72 57 Kan. App.2d 44, 445 P.3d 1183 (2019) (review denied).
73 Id. at 51.
74 292 Kan. 585, 257 P.3d 255 at 595-96 (2011).
76 2020 WL 1313794, 459 P.3d 835 (Kan. App. 2020) (unpublished opinion).
77 Id. at *9.
79 Netherland v. Midwest Homestead of Olathe Operations, LLC, 2019 WL 4383374, 448 P.3d 497 at *11 (Kan. App. 2019).
80 Gould v. Wright Tree Service, Inc., 2016 WL 2811983, 376 P.3d 94 at *6 (Kan. App. 2016) (review denied).
81 597 S.W.3d 196 (Mo. banc 2020).
82 Id. at 200.
83 Kansas and Missouri allow preliminary or temporary awards of compensation. However, as a practical matter, it is faster and easier to get to a preliminary hearing in Kansas. Also, the rules of evidence at a preliminary hearing are more relaxed in Kansas. See Kan. Stat. Ann. § 44-534a (2019).
84 Kansas establishes a maximum of $155,000 for a claimant who is permanently and totally disabled per the Kansas Department of Labor at https://www.dol.ks.gov/documents/20121/91179/laws-and-regulations.pdf/6822354f-82fc-be06-be70-4715d28d9714?t=1614320967629. However, in Missouri, an employee who is permanently and totally disabled is paid for life per § 287.200, RSMo.
85 The maximum rate for temporary total disability compensation (TTD) in Missouri for an accident occurring is based on 105% of the statewide average weekly wage at the time of injury. For injuries that happen between July 1, 2020, and June 30, 2021, the maximum rate of TTD is $1,011.92 per week. See Section 287.170.4, RSMo (2016). The maximum rate for temporary total disability in Kansas for an accident is based on 75% of the state’s average weekly wage at the time of injury. For injuries that happen between July 1, 2020, and June 30, 2021, the maximum rate of temporary total disability is $687.
86 The maximum rate for permanent partial compensation in Missouri is based on 55% of the statewide average weekly wage at the time of the injury. For injuries that happen between July 1, 2020, and June 30, 2021, that translates into a maximum benefit of $530.05 per week. See § 287.190, RSMo (2016). In Kansas, the maximum rate for TTD and for permanent partial disability is the same. See Kan. Stat. Ann. § 44-510d (2019) and Kan. Stat. Ann. § 44-510e (2019). Kansas allows a payment of “work disability” based on the claimant’s reduction in ability to earn wages and perform past work tasks in non-scheduled injuries which also meet several other criteria. See Kan. Stat. Ann. § 44-510e (2019).
87 Section 287.220, RSMo (2016).