Getting Counselling Paid For After a Kansas Crash You Were a Passenger In

Attorney Answer

Your counselling is very likely already covered, and not by a lawsuit — by the no-fault benefits on the car you were riding in. Kansas calls them personal injury protection benefits, they include psychological care, and you claim them as a passenger regardless of who caused the crash.

Kansas is a no-fault state, which changes where you start. Under K.S.A. 40-3109(a)(3), PIP benefits must be paid for injury sustained in Kansas by any person while occupying the insured vehicle, so long as that person is not himself the owner of a vehicle for which a policy is required. As a back-seat passenger you are squarely inside that. K.S.A. 40-3109(b) then tells you which policy pays first: primary PIP is provided by the policy covering the vehicle you were occupying at the time of the accident. So the first claim goes to the insurer of the car you were in, not to the at-fault driver and not, in the first instance, to your own policy.

The counselling is a named benefit. K.S.A. 40-3103(r) defines "rehabilitation benefits" as allowances for all reasonable expenses, up to a limit of not less than $4,500, for necessary psychiatric or psychological services, occupational therapy, and occupational training or retraining. That is a separate pot from medical benefits, which K.S.A. 40-3103(k) sets at not less than $4,500 for necessary health care including care by licensed psychologists. You do not have to prove anyone was negligent to claim either one. That is the whole point of the no-fault system.

Deadlines, and there are two different ones. Under K.S.A. 40-3110(a), no claim for PIP benefits may be made after two years from the date of the injury. Separately — and this one catches people — K.S.A. 40-3113a(c) provides that if you fail to commence an action against the at-fault driver within 18 months after the date of the accident, that failure operates as an assignment of your tort claim to the PIP insurer, to the extent of damages duplicating the benefits it paid. Eighteen months arrives well before most people think about suing.

If you want more than benefits, there is a threshold. Kansas does not let every injured person sue for pain and suffering. K.S.A. 40-3117 permits recovery of damages for pain, suffering, mental anguish, inconvenience and other non-pecuniary loss only where the injury required medical treatment of a kind the act describes as medical benefits having a reasonable value of $2,000 or more, or where the injury consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function, or death.

Read that alongside the counselling point, because they connect. Psychiatric and psychological treatment is medical treatment of a kind described in the act, so the cost of counselling counts toward the $2,000 threshold. Getting the care you need is also, incidentally, what may open the door to a claim beyond benefits.

If you do get past the threshold, K.S.A. 60-19a02(b)(4) caps noneconomic damages at $350,000 for causes of action accruing on or after 1 July 2022, and subsection (d) has the court apply that cap after comparative negligence and without telling the jury about it.

What you can do

1. Identify the insurer of the car you were riding in and open a PIP claim there first. You do not need the driver's permission and you do not need to establish fault. 2. Say explicitly that you are claiming rehabilitation benefits under K.S.A. 40-3103(r) for psychological care, as well as medical benefits. Ask for both in writing. Claiming one does not claim the other. 3. Get a referral and start the counselling. Benefits reimburse expenses actually incurred; an unmet need is not a claim. 4. Put every request in writing and keep the date. Under K.S.A. 40-3110(b), benefits are overdue if not paid within 30 days after the insurer receives written notice of the fact and amount of a covered loss, and overdue amounts carry simple interest at 18% per annum. Written notice is what starts that clock. 5. Track your total medical and psychological billing against the $2,000 figure in K.S.A. 40-3117, since that is what decides whether a claim for pain and suffering is open to you at all. 6. Talk to a lawyer well before the 18-month mark, not the two-year mark.

⏱ Time limits apply. Two years from the date of injury to make a PIP claim (K.S.A. 40-3110(a)), and 18 months from the accident to commence an action against the at-fault driver before your claim is assigned to the PIP insurer to the extent of duplicative benefits (K.S.A. 40-3113a(c)). The 18-month date is the one to calendar.