KS
Kansas House Bill HB2063

Kansas 2023-2024 Regular Session

Kansas House Bill HB2063 Compare Versions

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11 Session of 2023
22 HOUSE BILL No. 2063
33 By Committee on Commerce, Labor and Economic Development
44 1-18
55 AN ACT concerning workers compensation; limiting workers
66 compensation reductions based on the receipt of retirement benefits to
77 reductions of permanent disability compensation based on the receipt of
88 retirement benefits that begin after an accident; amending K.S.A. 44-
99 501 and repealing the existing section.
1010 Be it enacted by the Legislature of the State of Kansas:
1111 Section 1. K.S.A. 44-501 is hereby amended to read as follows: 44-
1212 501. (a) (1) Compensation for an injury shall be disallowed if such the
1313 injury to the employee results from:
1414 (A) The employee's deliberate intention to cause such the injury;
1515 (B) the employee's willful failure to use a guard or protection against
1616 accident or injury which that is required pursuant to any statute and
1717 provided for the employee;
1818 (C) the employee's willful failure to use a reasonable and proper
1919 guard and protection voluntarily furnished to the employee by the
2020 employer;
2121 (D) the employee's reckless violation of their employer's workplace
2222 safety rules or regulations; or
2323 (E) the employee's voluntary participation in fighting or horseplay
2424 with a co-employee for any reason, work related or otherwise.
2525 (2) Subparagraphs (B) and (C) of paragraph (1) of Subsection (a)(1)
2626 (B) and (C) shall not apply when it was reasonable under the totality of the
2727 circumstances to not use such the equipment, or if the employer approved
2828 the work engaged in at the time of an accident or injury to be performed
2929 without such the equipment.
3030 (b) (1) (A) The employer shall not be liable under the workers
3131 compensation act where the injury, disability or death was contributed to
3232 by the employee's use or consumption of alcohol or any drugs, chemicals
3333 or any other compounds or substances, including, but not limited to, any
3434 drugs or medications which that are available to the public without a
3535 prescription from a health care healthcare provider, prescription drugs or
3636 medications, any form or type of narcotic drugs, marijuana, stimulants,
3737 depressants or hallucinogens.
3838 (B) In the case of drugs or medications which that are available to the
3939 public without a prescription from a health care healthcare provider and
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7676 prescription drugs or medications, compensation shall not be denied if the
7777 employee can show that such the drugs or medications were being taken or
7878 used in therapeutic doses and there have been no prior incidences of the
7979 employee's impairment on the job as the result of the use of such the drugs
8080 or medications within the previous 24 months.
8181 (C) It shall be conclusively presumed that the employee was impaired
8282 due to alcohol or drugs if it is shown that, at the time of the injury, the
8383 employee had an alcohol concentration of .04 0.04 or more, or a GCMS
8484 confirmatory test by quantitative analysis showing a concentration at or
8585 above the levels shown on the following chart for the drugs of abuse listed:
8686 Confirmatory
8787 test cutoff
8888 levels (ng/ml)
8989 Marijuana metabolite
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9191 .............................................................................15
9292 Cocaine metabolite
9393 2
9494 ...............................................................................150
9595 Opiates:
9696 Morphine .......................................................................................2000
9797 Codeine .........................................................................................2000
9898 6-Acetylmorphine
9999 4
100100 .........................................................................10 ng/ml
101101 Phencyclidine ..........................................................................................25
102102 Amphetamines:
103103 Amphetamine ..................................................................................500
104104 Methamphetamine
105105 3
106106 ...........................................................................500
107107 1
108108 Delta-9-tetrahydrocannabinol-9-carboxylic acid.
109109 2
110110 Benzoylecgonine.
111111 3
112112 Specimen must also contain amphetamine at a concentration greater
113113 than or equal to 200 ng/ml.
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115115 Test for 6-AM when morphine concentration exceeds 2,000 ng/ml.
116116 (D) If it is shown that the employee was impaired pursuant to
117117 subsection (b)(1)(C) at the time of the injury, there shall be a rebuttable
118118 presumption that the accident, injury, disability or death was contributed to
119119 by such the impairment. The employee may overcome the presumption of
120120 contribution by clear and convincing evidence.
121121 (E) An employee's refusal to submit to a chemical test at the request
122122 of the employer shall result in the forfeiture of benefits under the workers
123123 compensation act if the employer had sufficient cause to suspect the use of
124124 alcohol or drugs by the claimant or if the employer's policy clearly
125125 authorizes post-injury testing.
126126 (2) The results of a chemical test shall be admissible evidence to
127127 prove impairment if the employer establishes that the testing was done
128128 under any of the following circumstances:
129129 (A) As a result of an employer mandated drug testing policy, in place
130130 in writing prior to the date of accident or injury, requiring any worker to
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174174 submit to testing for drugs or alcohol;
175175 (B) during an autopsy or in the normal course of medical treatment
176176 for reasons related to the health and welfare of the injured worker and not
177177 at the direction of the employer;
178178 (C) the worker, prior to the date and time of the accident or injury,
179179 gave written consent to the employer that the worker would voluntarily
180180 submit to a chemical test for drugs or alcohol following any accident or
181181 injury;
182182 (D) the worker voluntarily agrees to submit to a chemical test for
183183 drugs or alcohol following any accident or injury; or
184184 (E) as a result of federal or state law or a federal or state rule or
185185 regulation having the force and effect of law requiring a post-injury testing
186186 program and such the required program was properly implemented at the
187187 time of testing.
188188 (3) Notwithstanding subsection (b)(2), the results of a chemical test
189189 performed on a sample collected by an employer shall not be admissible
190190 evidence to prove impairment unless the following conditions are met:
191191 (A) The test sample was collected within a reasonable time following
192192 the accident or injury;
193193 (B) the collecting and labeling of the test sample was performed by or
194194 under the supervision of a licensed health care professional;
195195 (C) the test was performed by a laboratory approved by the United
196196 States department of health and human services or licensed by the
197197 department of health and environment, except that a blood sample may be
198198 tested for alcohol content by a laboratory commonly used for that purpose
199199 by state law enforcement agencies;
200200 (D) the test was confirmed by gas chromatography-mass
201201 spectroscopy or other comparably reliable analytical method, except that
202202 no such confirmation is required for a blood alcohol sample;
203203 (E) the foundation evidence must establish, beyond a reasonable
204204 doubt, that the test results were from the sample taken from the employee;
205205 and
206206 (F) a split sample sufficient for testing shall be retained and made
207207 available to the employee within 48 hours of a positive test.
208208 (c) (1) Except as provided in paragraph (2), compensation shall not
209209 be paid in case of coronary or coronary artery disease or cerebrovascular
210210 injury unless it is shown that the exertion of the work necessary to
211211 precipitate the disability was more than the employee's usual work in the
212212 course of the employee's regular employment.
213213 (2) For events occurring on or after July 1, 2014, In the case of a
214214 firefighter as defined by K.S.A. 40-1709(b)(1), and amendments thereto,
215215 or a law enforcement officer as defined by K.S.A. 74-5602, and
216216 amendments thereto, coronary or coronary artery disease or
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260260 cerebrovascular injury shall be compensable if:
261261 (A) The injury can be identified as caused by a specific event
262262 occurring in the course and scope of employment;
263263 (B) the coronary or cerebrovascular injury occurred within 24 hours
264264 of the specific event; and
265265 (C) the specific event was the prevailing factor in causing the
266266 coronary or coronary artery disease or cerebrovascular injury.
267267 (d) Except as provided in the workers compensation act, no
268268 construction design professional who is retained to perform professional
269269 services on a construction project or any employee of a construction
270270 design professional who is assisting or representing the construction
271271 design professional in the performance of professional services on the site
272272 of the construction project, shall be liable for any injury resulting from the
273273 employer's failure to comply with safety standards on the construction
274274 project for which compensation is recoverable under the workers
275275 compensation act, unless responsibility for safety practices is specifically
276276 assumed by contract. The immunity provided by this subsection to any
277277 construction design professional shall not apply to the negligent
278278 preparation of design plans or specifications.
279279 (e) An award of compensation for permanent partial impairment,
280280 work disability, or permanent total disability shall be reduced by the
281281 amount of functional impairment determined to be preexisting. Any such
282282 The reduction shall not apply to temporary total disability, nor shall it
283283 apply to compensation for medical treatment.
284284 (1) Where workers compensation benefits have previously been
285285 awarded through settlement or judicial or administrative determination in
286286 Kansas, the percentage basis of the prior settlement or award shall
287287 conclusively establish the amount of functional impairment determined to
288288 be preexisting. Where workers compensation benefits have not previously
289289 been awarded through settlement or judicial or administrative
290290 determination in Kansas, the amount of preexisting functional impairment
291291 shall be established by competent evidence.
292292 (2) In all cases, the applicable reduction shall be calculated as
293293 follows:
294294 (A) If the preexisting impairment is the result of injury sustained
295295 while working for the employer against whom workers compensation
296296 benefits are currently being sought, any award of compensation shall be
297297 reduced by the current dollar value attributable under the workers
298298 compensation act to the percentage of functional impairment determined to
299299 be preexisting. The "current dollar value" shall be calculated by
300300 multiplying the percentage of preexisting impairment by the compensation
301301 rate in effect on the date of the accident or injury against which the
302302 reduction will be applied.
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346346 (B) In all other cases, the employer against whom benefits are
347347 currently being sought shall be entitled to a credit for the percentage of
348348 preexisting impairment.
349349 (f) (1) If the employee receives begins receiving, whether periodically
350350 or by lump sum, retirement benefits under the federal social security act or
351351 retirement benefits from any other retirement system, program, policy or
352352 plan which is provided by the employer against which the claim is being
353353 made after a work-related accident, any compensation benefit payments
354354 which for permanent total disability or permanent partial disability that
355355 the employee is eligible to receive under the workers compensation act for
356356 such the claim shall be reduced by the weekly equivalent amount of the
357357 total amount of all such federal social security retirement benefits, less any
358358 portion of any such.
359359 (2) If the employee begins receiving retirement benefit benefits after
360360 the accident that are funded by the employer against whom the claim is
361361 being made, other than retirement benefits under the federal social security
362362 act, any compensation benefit payments for permanent total disability or
363363 permanent partial disability that the employee is eligible to receive under
364364 the workers compensation act for the claim shall be reduced by the weekly
365365 equivalent amount of the total amount of such retirement benefits. No
366366 portion of such retirement benefits that is are attributable to payments or
367367 contributions made by the employee, but in no event shall the shall be
368368 subject to this reduction.
369369 (3) Whether the employee receives retirement benefits under the
370370 federal social security act or through any other retirement plan, workers
371371 compensation benefit benefits for permanent disability shall not be less
372372 than the workers compensation benefit payable for the employee's
373373 percentage of functional impairment.
374374 (4) Where the employee elects to take retirement benefits in a lump
375375 sum, the lump sum payment shall be amortized at the rate of 4% per year
376376 over the employee's life expectancy to determine the weekly equivalent
377377 value of the benefits.
378378 Sec. 2. K.S.A. 44-501 is hereby repealed.
379379 Sec. 3. This act shall take effect and be in force from and after its
380380 publication in the statute book.
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