Session of 1999
By Committee on Business, Commerce and Labor

  9             AN  ACT concerning the workers compensation act, limiting the immu-
10             nity of employers and other employees for intentional injuries and
11             injuries caused by gross negligence or criminal conduct; amending
12             K.S.A. 1998 Supp. 44-501 and repealing the existing section.
14       Be it enacted by the Legislature of the State of Kansas:
15             Section  1. K.S.A. 1998 Supp. 44-501 is hereby amended to read as
16       follows: 44-501. (a) If in any employment to which the workers compen-
17       sation act applies, personal injury by accident arising out of and in the
18       course of employment is caused to an employee, the employer shall be
19       liable to pay compensation to the employee in accordance with the pro-
20       visions of the workers compensation act. In proceedings under the work-
21       ers compensation act, the burden of proof shall be on the claimant to
22       establish the claimant's right to an award of compensation and to prove
23       the various conditions on which the claimant's right depends. In deter-
24       mining whether the claimant has satisfied this burden of proof, the trier
25       of fact shall consider the whole record.
26             (b) Except as provided in the workers compensation act, no em-
27       ployer, or other employee of such employer, shall be liable for any injury
28       for which compensation is recoverable under the workers compensation
29       act nor shall an employer be liable to any third party for any injury or
30       death of an employee which was caused under circumstances creating a
31       legal liability against a third party and for which workers compensation is
32       payable by such employer, unless such injury or death is caused inten-
33       tionally or results from the gross negligence or criminal conduct.
34             (c) The employee shall not be entitled to recover for the aggravation
35       of a preexisting condition, except to the extent that the work-related injury
36       causes increased disability. Any award of compensation shall be reduced
37       by the amount of functional impairment determined to be preexisting.
38             (d)  (1) If the injury to the employee results from the employee's
39       deliberate intention to cause such injury; or from the employee's willful
40       failure to use a guard or protection against accident required pursuant to
41       any statute and provided for the employee, or a reasonable and proper
42       guard and protection voluntarily furnished the employee by the employer,
43       any compensation in respect to that injury shall be disallowed.
44             (2) The employer shall not be liable under the workers compensation
45       act where the injury, disability or death was contributed to by the em-
46       ployee's use or consumption of alcohol or any drugs, chemicals or any
47       other compounds or substances, including but not limited to, any drugs
48       or medications which are available to the public without a prescription
49       from a health care provider, prescription drugs or medications, any form
50       or type of narcotic drugs, marijuana, stimulants, depressants or hallucin-
51       ogens. In the case of drugs or medications which are available to the
52       public without a prescription from a health care provider and prescription
53       drugs or medications, compensation shall not be denied if the employee
54       can show that such drugs or medications were being taken or used in
55       therapeutic doses and there have been no prior incidences of the em-
56       ployee's impairment on the job as the result of the use of such drugs or
57       medications within the previous 24 months. It shall be conclusively pre-
58       sumed that the employee was impaired due to alcohol if it is shown that
59       at the time of the injury that the employee had an alcohol concentration
60       of .04 or more. An employee's refusal to submit to a chemical test shall
61       not be admissible evidence to prove impairment unless there was prob-
62       able cause to believe that the employee used, possessed or was impaired
63       by a drug or alcohol while working. The results of a chemical test shall
64       not be admissible evidence to prove impairment unless the following con-
65       ditions were met:
66             (A) There was probable cause to believe that the employee used, had
67       possession of, or was impaired by the drug or alcohol while working;
68             (B) the test sample was collected at a time contemporaneous with
69       the events establishing probable cause;
70             (C) the collecting and labeling of the test sample was performed by
71       a licensed health care professional;
72             (D) the test was performed by a laboratory approved by the United
73       States department of health and human services or licensed by the de-
74       partment of health and environment, except that a blood sample may be
75       tested for alcohol content by a laboratory commonly used for that purpose
76       by state law enforcement agencies;
77             (E) the test was confirmed by gas chromatography, gas chromatog-
78       raphy-mass spectroscopy or other comparably reliable analytical method,
79       except that no such confirmation is required for a blood alcohol sample;
80       and
81             (F) the foundation evidence must establish, beyond a reasonable
82       doubt, that the test results were from the sample taken from the
83       employee.
84             (e) Compensation shall not be paid in case of coronary or coronary
85       artery disease or cerebrovascular injury unless it is shown that the exertion
86       of the work necessary to precipitate the disability was more than the
87       employee's usual work in the course of the employee's regular
88       employment.
89             (f) Except as provided in the workers compensation act, no construc-
90       tion design professional who is retained to perform professional services
91       on a construction project or any employee of a construction design pro-
92       fessional who is assisting or representing the construction design profes-
93       sional in the performance of professional services on the site of the con-
94       struction project, shall be liable for any injury resulting from the
95       employer's failure to comply with safety standards on the construction
96       project for which compensation is recoverable under the workers com-
97       pensation act, unless responsibility for safety practices is specifically as-
98       sumed by contract. The immunity provided by this subsection to any
99       construction design professional shall not apply to the negligent prepa-
100       ration of design plans or specifications.
101             (g) It is the intent of the legislature that the workers compensation
102       act shall be liberally construed for the purpose of bringing employers and
103       employees within the provisions of the act to provide the protections of
104       the workers compensation act to both. The provisions of the workers
105       compensation act shall be applied impartially to both employers and em-
106       ployees in cases arising thereunder.
107             (h) If the employee is receiving retirement benefits under the federal
108       social security act or retirement benefits from any other retirement sys-
109       tem, program or plan which is provided by the employer against which
110       the claim is being made, any compensation benefit payments which the
111       employee is eligible to receive under the workers compensation act for
112       such claim shall be reduced by the weekly equivalent amount of the total
113       amount of all such retirement benefits, less any portion of any such re-
114       tirement benefit, other than retirement benefits under the federal social
115       security act, that is attributable to payments or contributions made by the
116       employee, but in no event shall the workers compensation benefit be less
117       than the workers compensation benefit payable for the employee's per-
118       centage of functional impairment.
119             New Sec.  2. When the injury or death for which compensation is
120       payable under the workers compensation act was caused under circum-
121       stances creating a legal liability against the employer or any person in the
122       same employ to pay damages, and for which there is no immunity under
123       subsection (b) of K.S.A. 44-501, and amendments thereto, the injured
124       worker or the worker's dependents or personal representatives shall have
125       the right to take compensation under the workers compensation act and
126       pursue a remedy by proper action in a court of competent jurisdiction
127       against the employer or person in the same employ. 
128       Sec.  3. K.S.A. 1998 Supp. 44-501 is hereby repealed.
129        Sec.  4. This act shall take effect and be in force from and after its
130       publication in the statute book.