Notice, Prevailing Factor

The preliminary hearing order denying compensation was affirmed, but for different reasons. K.S.A. 44-508 was consulted to determine the legally operative date of accident or injury, and K.S.A. 2024 Supp. 44-520 was consulted to affirm the notice determination. Based on review of all relevant evidence in the record, including treatment records, a single Board Member affirmed the conclusion Claimant did not prove the alleged repetitive trauma was the prevailing factor causing the alleged injuries.

Entitlement to post-award attorney fees

This claim was settled by agreement of the parties. Payment of outstanding medical bills was included in the settlement. Claimant's attorney filed an application for a post-award hearing to get confirmation the bills were paid. Claimant's attorney requested the payment of fees for his efforts. The ALJ denied the request for attorney fees, citing Ashpole v. Meyers Bakeries, No. 183,242, 1995 WL 545649 (Kan. WCAB Aug. 30, 1995) and Varner v. Tyson Fresh Meats, Inc., No. 1,032,357, 2009 WL 1996468 (Kan. WCAB Jun. 30, 2009). The Board affirmed, noting this was not a post-award matter.

1. Does the Board have jurisdiction over an appeal of the Preliminary Hearing Order?; 2. Was Claimant’s work accident the prevailing factor in causing Claimant’s diagnosed injuries and medical conditions?; 3. Is Claimant entitled to additional medical treatment for the left knee?

This preliminary hearing concerned the provision of additional medical treatment. Usually this an issue where the Board does not have jurisdiction. However the ALJ denied additional medical treatment because the accident was not the prevailing factor for the need of additional medical treatment. Prevailing factor is compensability issue so the Board took jurisdiction. The Board reversed the ALJ and remanded the case back to the ALJ to issue an order for Respondent to provide a list of 2 doctors for Claimant to choose who should provide the medical treatment requested by Claimant.

Workplace safety violation; temporary total disability benefits; reimbursement of unpaid medical bills; and future medical treatment

The Board found the greater weight of the credible evidence indicates Respondent did not have an actual safety rule at the time of the accident. The stickers placed on the conveyer by the manufacturer do not, themselves, constitute a safety rule for the respondent. The Board found Respondent failed to meet the burden of proving a reckless violation of Respondent's safety rule occurred to bar entitlement to compensation for an otherwise compensable claim.

1. Does the Board have jurisdiction to review the ALJ’s Order denying Respondent’s Motion to Dismiss?; 2. Was the ALJ’s denial of the respondent’s motion to dismiss proper?

The ALJ denied the respondent’s motion to dismiss after finding the claimant did not abandon her claim. The Board concluded the denial of the respondent’s motion was interlocutory and not subject to review by the Board. The Board dismissed for lack of jurisdiction.