Session of 1999
         
SENATE BILL No. 237
         
By Committee on Commerce
          
2-4
          
  9             AN  ACT concerning workers compensation; relating to preexisting con-
10             ditions and cumulative trauma injuries; amending K.S.A. 1998 Supp.
11             44-501 and 44-508 and repealing the existing sections.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             Section  1. K.S.A. 1998 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, regardless of whether the preexisting con-
37       dition is symptomatic or disabling. If an employee has obtained compen-
38       sation by settlement or award in any previous workers compensation pro-
39       ceeding, there shall exist an irrebuttable presumption that the amount of
40       functional impairment determined to exist in the prior proceeding is pre-
41       existing. Other than those benefits provided in K.S.A. 44-510 and amend-
42       ments thereto, an employee sustaining injury arising out of and in the
43       course of employment shall be entitled to recover compensation only for

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

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  1             (E) the test was confirmed by gas chromatography, gas chromatog-
  2       raphy-mass spectroscopy or other comparably reliable analytical method,
  3       except that no such confirmation is required for a blood alcohol sample;
  4       and
  5             (F) the foundation evidence must establish, beyond a reasonable
  6       doubt, that the test results were from the sample taken from the
  7       employee.
  8             (e) Compensation shall not be paid in case of coronary or coronary
  9       artery disease or cerebrovascular injury unless it is shown that the exertion
10       of the work necessary to precipitate the disability was more than the
11       employee's usual work in the course of the employee's regular
12       employment.
13             (f) Except as provided in the workers compensation act, no construc-
14       tion design professional who is retained to perform professional services
15       on a construction project or any employee of a construction design pro-
16       fessional who is assisting or representing the construction design profes-
17       sional in the performance of professional services on the site of the con-
18       struction project, shall be liable for any injury resulting from the
19       employer's failure to comply with safety standards on the construction
20       project for which compensation is recoverable under the workers com-
21       pensation act, unless responsibility for safety practices is specifically as-
22       sumed by contract. The immunity provided by this subsection to any
23       construction design professional shall not apply to the negligent prepa-
24       ration of design plans or specifications.
25             (g) It is the intent of the legislature that the workers compensation
26       act shall be liberally construed for the purpose of bringing employers and
27       employees within the provisions of the act to provide the protections of
28       the workers compensation act to both. The provisions of the workers
29       compensation act shall be applied impartially to both employers and em-
30       ployees in cases arising thereunder.
31             (h) If the employee is receiving retirement benefits under the federal
32       social security act or retirement benefits from any other retirement sys-
33       tem, program or plan which is provided by the employer against which
34       the claim is being made, any compensation benefit payments which the
35       employee is eligible to receive under the workers compensation act for
36       such claim shall be reduced by the weekly equivalent amount of the total
37       amount of all such retirement benefits, less any portion of any such re-
38       tirement benefit, other than retirement benefits under the federal social
39       security act, that is attributable to payments or contributions made by the
40       employee, but in no event shall the workers compensation benefit be less
41       than the workers compensation benefit payable for the employee's per-
42       centage of functional impairment.
43             Sec.  2. K.S.A. 1998 Supp. 44-508 is hereby amended to read as fol-

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  1       lows: 44-508. As used in the workers compensation act:
  2             (a) "Employer" includes: (1) Any person or body of persons, corpo-
  3       rate or unincorporate, and the legal representative of a deceased em-
  4       ployer or the receiver or trustee of a person, corporation, association or
  5       partnership; (2) the state or any department, agency or authority of the
  6       state, any city, county, school district or other political subdivision or
  7       municipality or public corporation and any instrumentality thereof; and
  8       (3) for the purposes of community service work, the entity for which the
  9       community service work is being performed and the governmental agency
10       which assigned the community service work, if any, if either such entity
11       or such governmental agency has filed a written statement of election
12       with the director to accept the provisions under the workers compensa-
13       tion act for persons performing community service work and in such case
14       such entity and such governmental agency shall be deemed to be the joint
15       employer of the person performing the community service work and both
16       shall have the rights, liabilities and immunities provided under the work-
17       ers compensation act for an employer with regard to the community serv-
18       ice work, except that the liability for providing benefits shall be imposed
19       only on the party which filed such election with the director, or on both
20       if both parties have filed such election with the director; for purposes of
21       community service work, "governmental agency" shall not include any
22       court or any officer or employee thereof and any case where there is
23       deemed to be a "joint employer" shall not be construed to be a case of
24       dual or multiple employment.
25             (b) "Workman" or "employee" or "worker" means any person who
26       has entered into the employment of or works under any contract of serv-
27       ice or apprenticeship with an employer. Such terms shall include but not
28       be limited to: Executive officers of corporations; professional athletes;
29       persons serving on a volunteer basis as duly authorized law enforcement
30       officers, ambulance attendants, mobile intensive care technicians, fire-
31       fighters, but only to the extent and during such periods as they are so
32       serving in such capacities; persons employed by educational, religious and
33       charitable organizations, but only to the extent and during the periods
34       that they are paid wages by such organizations; persons in the service of
35       the state, or any department, agency or authority of the state, any city,
36       school district, or other political subdivision or municipality or public
37       corporation and any instrumentality thereof, under any contract of serv-
38       ice, express or implied, and every official or officer thereof, whether
39       elected or appointed, while performing official duties; persons in the serv-
40       ice of the state as volunteer members of the Kansas department of civil
41       air patrol, but only to the extent and during such periods as they are
42       officially engaged in the performance of functions specified in K.S.A. 48-
43       3302 and amendments thereto; volunteers in any employment, if the em-

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  1       ployer has filed an election to extend coverage to such volunteers; minors,
  2       whether such minors are legally or illegally employed; and persons per-
  3       forming community service work, but only to the extent and during such
  4       periods as they are performing community service work and if an election
  5       has been filed an election to extend coverage to such persons. Any ref-
  6       erence to an employee who has been injured shall, where the employee
  7       is dead, include a reference to the employee's dependents, to the em-
  8       ployee's legal representatives, or, if the employee is a minor or an inca-
  9       pacitated person, to the employee's guardian or conservator. Unless there
10       is a valid election in effect which has been filed as provided in K.S.A. 44-
11       542a and amendments thereto, such terms shall not include individual
12       employers, limited or general partners or self-employed persons.
13             (c)  (1) "Dependents" means such members of the employee's family
14       as were wholly or in part dependent upon the employee at the time of
15       the accident.
16             (2) "Members of a family" means only surviving legal spouse and
17       children; or if no surviving legal spouse or children, then parents or grand-
18       parents; or if no parents or grandparents, then grandchildren; or if no
19       grandchildren, then brothers and sisters. In the meaning of this section,
20       parents include stepparents, children include stepchildren, grandchildren
21       include stepgrandchildren, brothers and sisters include stepbrothers and
22       stepsisters, and children and parents include that relation by legal adop-
23       tion. In the meaning of this section, a surviving spouse shall not be re-
24       garded as a dependent of a deceased employee or as a member of the
25       family, if the surviving spouse shall have for more than six months willfully
26       or voluntarily deserted or abandoned the employee prior to the date of
27       the employee's death.
28             (3) "Wholly dependent child or children" means:
29             (A) A birth child or adopted child of the employee except such a child
30       whose relationship to the employee has been severed by adoption;
31             (B) a stepchild of the employee who lives in the employee's
32       household;
33             (C) any other child who is actually dependent in whole or in part on
34       the employee and who is related to the employee by marriage or consan-
35       guinity; or
36             (D) any child as defined in subsections (3)(A), (3)(B) or (3)(C) who
37       is less than 23 years of age and who is not physically or mentally capable
38       of earning wages in any type of substantial and gainful employment or
39       who is a full-time student attending an accredited institution of higher
40       education or vocational education.
41             (d) "Accident" means an undesigned, sudden and unexpected event
42       or events, usually of an afflictive or unfortunate nature and often, but not
43       necessarily, accompanied by a manifestation of force. The elements of an

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  1       accident, as stated herein, are not to be construed in a strict and literal
  2       sense, but in a manner designed to effectuate the purpose of the workers
  3       compensation act that the employer bear the expense of accidental injury
  4       to a worker caused by the employment.
  5             (e) "Personal injury" and "injury" mean any lesion or change in the
  6       physical structure of the body, causing damage or harm thereto, so that
  7       it gives way under the stress of the worker's usual labor. It is not essential
  8       that such lesion or change be of such character as to present external or
  9       visible signs of its existence. An injury shall not be deemed to have been
10       directly caused by the employment where it is shown that the employee
11       suffers disability as a result of the natural aging process or by the normal
12       activities of day-to-day living.
13             (f) The words "arising out of and in the course of employment" as
14       used in the workers compensation act shall not be construed to include
15       injuries to the employee occurring while the employee is on the way to
16       assume the duties of employment or after leaving such duties, the prox-
17       imate cause of which injury is not the employer's negligence. An em-
18       ployee shall not be construed as being on the way to assume the duties
19       of employment or having left such duties at a time when the worker is
20       on the premises of the employer or on the only available route to or from
21       work which is a route involving a special risk or hazard and which is a
22       route not used by the public except in dealings with the employer. An
23       employee shall not be construed as being on the way to assume the duties
24       of employment, if the employee is a provider of emergency services re-
25       sponding to an emergency.
26             The words, "arising out of and in the course of employment" as used
27       in the workers compensation act shall not be construed to include injuries
28       to employees while engaged in recreational or social events under cir-
29       cumstances where the employee was under no duty to attend and where
30       the injury did not result from the performance of tasks related to the
31       employee's normal job duties or as specifically instructed to be performed
32       by the employer.
33             (g) "Burden of proof" means the burden of a party to persuade the
34       trier of facts by a preponderance of the credible evidence that such party's
35       position on an issue is more probably true than not true on the basis of
36       the whole record.
37             (h) "Director" means the director of workers compensation as pro-
38       vided for in K.S.A. 75-5708 and amendments thereto.
39             (i) "Health care provider" means any person licensed, by the proper
40       licensing authority of this state, another state or the District of Columbia,
41       to practice medicine and surgery, osteopathy, chiropractic, dentistry, op-
42       tometry, podiatry or psychology.
43             (j) "Secretary" means the secretary of human resources.

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  1             (k) "Construction design professional" means any person who is an
  2       architect, professional engineer, landscape architect or land surveyor who
  3       has been issued a license by the state board of technical professions to
  4       practice such technical profession in Kansas or any corporation organized
  5       to render professional services through the practice of one or more of
  6       such technical professions in Kansas under the professional corporation
  7       law of Kansas or any corporation issued a certificate of authorization un-
  8       der K.S.A. 74-7036 and amendments thereto to practice one or more of
  9       such technical professions in Kansas.
10             (l) "Community service work" means: (1) Public or community serv-
11       ice performed as a result of a contract of diversion or of assignment to a
12       community corrections program or conservation camp or suspension of
13       sentence or as a condition of probation or in lieu of a fine imposed by
14       court order; or (2) public or community service or other work performed
15       as a requirement for receipt of any kind of public assistance in accordance
16       with any program administered by the secretary of social and rehabilita-
17       tion services.
18             (m) "Utilization review" means the initial evaluation of appropriate-
19       ness in terms of both the level and the quality of health care and health
20       services provided a patient, based on accepted standards of the health
21       care profession involved. Such evaluation is accomplished by means of a
22       system which identifies the utilization of health care services above the
23       usual range of utilization for such services, which is based on accepted
24       standards of the health care profession involved, and which refers in-
25       stances of possible inappropriate utilization to the director for referral to
26       a peer review committee.
27             (n) "Peer review" means an evaluation by a peer review committee
28       of the appropriateness, quality and cost of health care and health services
29       provided a patient, which is based on accepted standards of the health
30       care profession involved and which is conducted in conjunction with util-
31       ization review.
32             (o) "Peer review committee" means a committee composed of health
33       care providers licensed to practice the same health care profession as the
34       health care provider who rendered the health care services being
35       reviewed.
36             (p) "Group-funded self-insurance plan" includes each group-funded
37       workers compensation pool, which is authorized to operate in this state
38       under K.S.A. 44-581 through 44-592 and amendments thereto, each mu-
39       nicipal group-funded pool under the Kansas municipal group-funded pool
40       act which is covering liabilities under the workers compensation act, and
41       any other similar group-funded or pooled plan or arrangement that pro-
42       vides coverage for employer liabilities under the workers compensation
43       act and is authorized by law.

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  1             (q) On and after the effective date of this act, "workers compensation
  2       board" or "board" means the workers compensation board established
  3       under K.S.A. 1998 Supp. 44-555c and amendments thereto.
  4             (r) "Date of accident" for a nontraumatic injury means the date the
  5       injury was first diagnosed or the date the employee was first provided
  6       medical care for the injury by a licensed health care provider, whichever
  7       is earlier.  
  8       Sec.  3. K.S.A. 1998 Supp. 44-501 and 44-508 are hereby repealed.
  9        Sec.  4. This act shall take effect and be in force from and after its
10       publication in the statute book.