Suing Over a Work Injury in Kansas

Generally no: except as provided in the Workers Compensation Act, no employer or co-employee is liable for an injury, by accident, repetitive trauma or occupational disease, for which compensation is recoverable under the Act, and the employer is not liable to a third party for an employee's injury that the third party caused and for which the employer pays comp. The section read does not list an intentional-injury exception.

Yes. When someone other than the employer or a co-employee is legally liable, the worker may take comp and sue that person. If the worker recovers by judgment or settlement, the employer is subrogated and has a lien on the entire recovery for the comp and medical aid paid to that date (excluding any amount a court assigns to a spouse's loss of consortium or services); the employer gets notice of the action and may intervene, and any excess counts as a credit against future comp. The statute says the worker's action must be brought within one year from the injury (18 months for dependents or personal representatives of a deceased worker); failing to do so operates as an assignment of the claim to the employer. The employer's subrogation interest is reduced by the percentage of fault attributed to the employer.

If an employer has no insurance (or insufficient self-insurance security) and is financially unable to pay comp, or cannot be located, the injured worker may apply to the director for an award paid from the Kansas Workers Compensation Fund; an administrative law judge hears the application and may order payments from the fund. The Commissioner of Insurance, as fund administrator, may then sue the employer in district court to recover what the fund paid.