Session of 1998
By Committee on Commerce
            9             AN ACT concerning workers compensation; relating to functional disa-
10             bility; amending K.S.A. 1997 Supp. 44-501 and repealing the existing
11             section.
13       Be it enacted by the Legislature of the State of Kansas:
14           Section 1. K.S.A. 1997 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.
32           (c) The employee shall not be entitled to recover for the aggravation
33       of a preexisting condition, except to the extent that the work-related injury
34       causes increased disability. Any award of compensation shall be reduced
35       by the amount of functional impairment determined to be preexisting
36       preexist the date of accident.
37           (d) (1) If the injury to the employee results from the employee's
38       deliberate intention to cause such injury; or from the employee's willful
39       failure to use a guard or protection against accident required pursuant to
40       any statute and provided for the employee, or a reasonable and proper
41       guard and protection voluntarily furnished the employee by the employer,
42       any compensation in respect to that injury shall be disallowed.
43           (2) The employer shall not be liable under the workers compensation

SB 522


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

SB 522


  1       ment.
  2           (f) Except as provided in the workers compensation act, no construc-
  3       tion design professional who is retained to perform professional services
  4       on a construction project or any employee of a construction design pro-
  5       fessional who is assisting or representing the construction design profes-
  6       sional in the performance of professional services on the site of the con-
  7       struction project, shall be liable for any injury resulting from the
  8       employer's failure to comply with safety standards on the construction
  9       project for which compensation is recoverable under the workers com-
10       pensation act, unless responsibility for safety practices is specifically as-
11       sumed by contract. The immunity provided by this subsection to any
12       construction design professional shall not apply to the negligent prepa-
13       ration of design plans or specifications.
14           (g) It is the intent of the legislature that the workers compensation
15       act shall be liberally construed for the purpose of bringing employers and
16       employees within the provisions of the act to provide the protections of
17       the workers compensation act to both. The provisions of the workers
18       compensation act shall be applied impartially to both employers and em-
19       ployees in cases arising thereunder.
20           (h) If the employee is receiving retirement benefits under the federal
21       social security act or retirement benefits from any other retirement sys-
22       tem, program or plan which is provided by the employer against which
23       the claim is being made, any compensation benefit payments which the
24       employee is eligible to receive under the workers compensation act for
25       such claim shall be reduced by the weekly equivalent amount of the total
26       amount of all such retirement benefits, less any portion of any such re-
27       tirement benefit, other than retirement benefits under the federal social
28       security act, that is attributable to payments or contributions made by the
29       employee, but in no event shall the workers compensation benefit be less
30       than the workers compensation benefit payable for the employee's per-
31       centage of functional impairment.
32           Sec. 2. K.S.A. 1997 Supp. 44-501 is hereby repealed.
33           Sec. 3. This act shall take effect and be in force from and after its
34       publication in the statute book.