HB 2292--
Session of 1997
By Representative Compton
[ol12](By request)

9 AN ACT concerning exceptions to the exclusive remedy provisions of the 10 workers compensation act; amending K.S.A. 1996 Supp. 44-501 and 11 repealing the existing section. 12 13 Be it enacted by the Legislature of the State of Kansas: 14 Section 1. K.S.A. 1996 Supp. 44-501 is hereby amended to read as 15 follows: 44-501. (a) If in any employment to which the workers compen- 16 sation act applies, personal injury by accident arising out of and in the 17 course of employment is caused to an employee, the employer shall be 18 liable to pay compensation to the employee in accordance with the pro- 19 visions of the workers compensation act. In proceedings under the work- 20 ers compensation act, the burden of proof shall be on the claimant to 21 establish the claimant's right to an award of compensation and to prove 22 the various conditions on which the claimant's right depends. In deter- 23 mining whether the claimant has satisfied this burden of proof, the trier 24 of fact shall consider the whole record. 25 (b) Except as provided in the workers compensation act, no em- 26 ployer, or other employee of such employer, shall be liable for any injury 27 for which compensation is recoverable under the workers compensation 28 act nor shall an employer be liable to any third party for any injury or 29 death of an employee which was caused under circumstances creating a 30 legal liability against a third party and for which workers compensation is 31 payable by such employer. The provisions of this subsection shall not 32 apply to liability for any injury sustained due to the negligence of a health 33 care provider, as defined in K.S.A. 65-2891 and amendments thereto, or 34 an attendant or first responder, as defined in K.S.A. 65-6112 and amend- 35 ments thereto, who was also employed by the employer of the injured 36 employee and who was rendering health care services or emergency serv- 37 ices to the injured employee at the time of or after the accident giving rise 38 to the injury. 39 (c) The employee shall not be entitled to recover for the aggravation 40 of a preexisting condition, except to the extent that the work-related injury 41 causes increased disability. Any award of compensation shall be reduced 42 by the amount of functional impairment determined to be preexisting. HB 2292

 1    (d) (1)  If the injury to the employee results from the employee's
 2  deliberate intention to cause such injury; or from the employee's willful
 3  failure to use a guard or protection against accident required pursuant to
 4  any statute and provided for the employee, or a reasonable and proper
 5  guard and protection voluntarily furnished the employee by the employer,
 6  any compensation in respect to that injury shall be disallowed.
 7    (2)  The employer shall not be liable under the workers compensation
 8  act where the injury, disability or death was contributed to by the em-
 9  ployee's use or consumption of alcohol or any drugs, chemicals or any
10  other compounds or substances, including but not limited to, any drugs
11  or medications which are available to the public without a prescription
12  from a health care provider, prescription drugs or medications, any form
13  or type of narcotic drugs, marijuana, stimulants, depressants or hallucin-
14  ogens. In the case of drugs or medications which are available to the
15  public without a prescription from a health care provider and prescription
16  drugs or medications, compensation shall not be denied if the employee
17  can show that such drugs or medications were being taken or used in
18  therapeutic doses and there have been no prior incidences of the em-
19  ployee's impairment on the job as the result of the use of such drugs or
20  medications within the previous 24 months. It shall be conclusively pre-
21  sumed that the employee was impaired due to alcohol if it is shown that
22  at the time of the injury that the employee had an alcohol concentration
23  of .04 or more. An employee's refusal to submit to a chemical test shall
24  not be admissible evidence to prove impairment unless there was prob-
25  able cause to believe that the employee used, possessed or was impaired
26  by a drug or alcohol while working. The results of a chemical test shall
27  not be admissible evidence to prove impairment unless the following con-
28  ditions were met:
29    (A)  There was probable cause to believe that the employee used, had
30  possession of, or was impaired by the drug or alcohol while working;
31    (B)  the test sample was collected at a time contemporaneous with
32  the events establishing probable cause;
33    (C)  the collecting and labeling of the test sample was performed by
34  a licensed health care professional;
35    (D)  the test was performed by a laboratory approved by the United
36  States department of health and human services or licensed by the de-
37  partment of health and environment, except that a blood sample may be
38  tested for alcohol content by a laboratory commonly used for that purpose
39  by state law enforcement agencies;
40    (E)  the test was confirmed by gas chromatography, gas chromatog-
41  raphy-mass spectroscopy or other comparably reliable analytical method,
42  except that no such confirmation is required for a blood alcohol sample;
43  and
HB 2292

 1    (F)  the foundation evidence must establish, beyond a reasonable
 2  doubt, that the test results were from the sample taken from the em-
 3  ployee.
 4    (e)  Compensation shall not be paid in case of coronary or coronary
 5  artery disease or cerebrovascular injury unless it is shown that the exertion
 6  of the work necessary to precipitate the disability was more than the
 7  employee's usual work in the course of the employee's regular employ-
 8  ment.
 9    (f)  Except as provided in the workers compensation act, no construc-
10  tion design professional who is retained to perform professional services
11  on a construction project or any employee of a construction design pro-
12  fessional who is assisting or representing the construction design profes-
13  sional in the performance of professional services on the site of the con-
14  struction project, shall be liable for any injury resulting from the
15  employer's failure to comply with safety standards on the construction
16  project for which compensation is recoverable under the workers com-
17  pensation act, unless responsibility for safety practices is specifically as-
18  sumed by contract. The immunity provided by this subsection to any
19  construction design professional shall not apply to the negligent prepa-
20  ration of design plans or specifications.
21    (g)  It is the intent of the legislature that the workers compensation
22  act shall be liberally construed for the purpose of bringing employers and
23  employees within the provisions of the act to provide the protections of
24  the workers compensation act to both. The provisions of the workers
25  compensation act shall be applied impartially to both employers and em-
26  ployees in cases arising thereunder.
27    (h)  If the employee is receiving retirement benefits under the federal
28  social security act or retirement benefits from any other retirement sys-
29  tem, program or plan which is provided by the employer against which
30  the claim is being made, any compensation benefit payments which the
31  employee is eligible to receive under the workers compensation act for
32  such claim shall be reduced by the weekly equivalent amount of the total
33  amount of all such retirement benefits, less any portion of any such re-
34  tirement benefit, other than retirement benefits under the federal social
35  security act, that is attributable to payments or contributions made by the
36  employee, but in no event shall the workers compensation benefit be less
37  than the workers compensation benefit payable for the employee's per-
38  centage of functional impairment.
39    Sec. 2.  K.S.A. 1996 Supp. 44-501 is hereby repealed.
40    Sec. 3.  This act shall take effect and be in force from and after its
41  publication in the statute book.