Session of 2000
HOUSE BILL No. 2618
By Representatives Swenson and Dean
1-12
10 AN ACT
concerning workers compensation; relating to retirement ben-
11 efit offsets; amending
K.S.A. 1999 Supp. 44-501 and repealing the
12 existing section.
13
14 Be it enacted by the Legislature of the
State of Kansas:
15 Section
1. K.S.A. 1999 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.
33 (c) The employee
shall not be entitled to recover for the aggravation
34 of a preexisting condition, except to the
extent that the work-related injury
35 causes increased disability. Any award of
compensation shall be reduced
36 by the amount of functional impairment
determined to be preexisting.
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
2
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
39 employee.
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
3
1 employment.
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. 1999 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.