Session of 2023
HOUSE BILL No. 2063
By Committee on Commerce, Labor and Economic Development
1-18
AN ACT concerning workers compensation; limiting workers
compensation reductions based on the receipt of retirement benefits to
reductions of permanent disability compensation based on the receipt of
retirement benefits that begin after an accident; amending K.S.A. 44-
501 and repealing the existing section.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 44-501 is hereby amended to read as follows: 44-
501. (a) (1) Compensation for an injury shall be disallowed if such the
injury to the employee results from:
(A) The employee's deliberate intention to cause such the injury;
(B) the employee's willful failure to use a guard or protection against
accident or injury which that is required pursuant to any statute and
provided for the employee;
(C) the employee's willful failure to use a reasonable and proper
guard and protection voluntarily furnished to the employee by the
employer;
(D) the employee's reckless violation of their employer's workplace
safety rules or regulations; or
(E) the employee's voluntary participation in fighting or horseplay
with a co-employee for any reason, work related or otherwise.
(2) Subparagraphs (B) and (C) of paragraph (1) of Subsection (a)(1)
(B) and (C) shall not apply when it was reasonable under the totality of the
circumstances to not use such the equipment, or if the employer approved
the work engaged in at the time of an accident or injury to be performed
without such the equipment.
(b) (1) (A) The employer shall not be liable under the workers
compensation act where the injury, disability or death was contributed to
by the employee's use or consumption of alcohol or any drugs, chemicals
or any other compounds or substances, including, but not limited to, any
drugs or medications which that are available to the public without a
prescription from a health care healthcare provider, prescription drugs or
medications, any form or type of narcotic drugs, marijuana, stimulants,
depressants or hallucinogens.
(B) In the case of drugs or medications which that are available to the
public without a prescription from a health care healthcare provider and
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36 HB 2063 2
prescription drugs or medications, compensation shall not be denied if the
employee can show that such the drugs or medications were being taken or
used in therapeutic doses and there have been no prior incidences of the
employee's impairment on the job as the result of the use of such the drugs
or medications within the previous 24 months.
(C) It shall be conclusively presumed that the employee was impaired
due to alcohol or drugs if it is shown that, at the time of the injury, the
employee had an alcohol concentration of .04 0.04 or more, or a GCMS
confirmatory test by quantitative analysis showing a concentration at or
above the levels shown on the following chart for the drugs of abuse listed:
Confirmatory
test cutoff
levels (ng/ml)
Marijuana metabolite
1
.............................................................................15
Cocaine metabolite
2
...............................................................................150
Opiates:
Morphine .......................................................................................2000
Codeine .........................................................................................2000
6-Acetylmorphine
4
.........................................................................10 ng/ml
Phencyclidine ..........................................................................................25
Amphetamines:
Amphetamine ..................................................................................500
Methamphetamine
3
...........................................................................500
1
Delta-9-tetrahydrocannabinol-9-carboxylic acid.
2
Benzoylecgonine.
3
Specimen must also contain amphetamine at a concentration greater
than or equal to 200 ng/ml.
4
Test for 6-AM when morphine concentration exceeds 2,000 ng/ml.
(D) If it is shown that the employee was impaired pursuant to
subsection (b)(1)(C) at the time of the injury, there shall be a rebuttable
presumption that the accident, injury, disability or death was contributed to
by such the impairment. The employee may overcome the presumption of
contribution by clear and convincing evidence.
(E) An employee's refusal to submit to a chemical test at the request
of the employer shall result in the forfeiture of benefits under the workers
compensation act if the employer had sufficient cause to suspect the use of
alcohol or drugs by the claimant or if the employer's policy clearly
authorizes post-injury testing.
(2) The results of a chemical test shall be admissible evidence to
prove impairment if the employer establishes that the testing was done
under any of the following circumstances:
(A) As a result of an employer mandated drug testing policy, in place
in writing prior to the date of accident or injury, requiring any worker to
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43 HB 2063 3
submit to testing for drugs or alcohol;
(B) during an autopsy or in the normal course of medical treatment
for reasons related to the health and welfare of the injured worker and not
at the direction of the employer;
(C) the worker, prior to the date and time of the accident or injury,
gave written consent to the employer that the worker would voluntarily
submit to a chemical test for drugs or alcohol following any accident or
injury;
(D) the worker voluntarily agrees to submit to a chemical test for
drugs or alcohol following any accident or injury; or
(E) as a result of federal or state law or a federal or state rule or
regulation having the force and effect of law requiring a post-injury testing
program and such the required program was properly implemented at the
time of testing.
(3) Notwithstanding subsection (b)(2), the results of a chemical test
performed on a sample collected by an employer shall not be admissible
evidence to prove impairment unless the following conditions are met:
(A) The test sample was collected within a reasonable time following
the accident or injury;
(B) the collecting and labeling of the test sample was performed by or
under the supervision of a licensed health care professional;
(C) the test was performed by a laboratory approved by the United
States department of health and human services or licensed by the
department of health and environment, except that a blood sample may be
tested for alcohol content by a laboratory commonly used for that purpose
by state law enforcement agencies;
(D) the test was confirmed by gas chromatography-mass
spectroscopy or other comparably reliable analytical method, except that
no such confirmation is required for a blood alcohol sample;
(E) the foundation evidence must establish, beyond a reasonable
doubt, that the test results were from the sample taken from the employee;
and
(F) a split sample sufficient for testing shall be retained and made
available to the employee within 48 hours of a positive test.
(c) (1) Except as provided in paragraph (2), compensation shall not
be paid in case of coronary or coronary artery disease or cerebrovascular
injury unless it is shown that the exertion of the work necessary to
precipitate the disability was more than the employee's usual work in the
course of the employee's regular employment.
(2) For events occurring on or after July 1, 2014, In the case of a
firefighter as defined by K.S.A. 40-1709(b)(1), and amendments thereto,
or a law enforcement officer as defined by K.S.A. 74-5602, and
amendments thereto, coronary or coronary artery disease or
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43 HB 2063 4
cerebrovascular injury shall be compensable if:
(A) The injury can be identified as caused by a specific event
occurring in the course and scope of employment;
(B) the coronary or cerebrovascular injury occurred within 24 hours
of the specific event; and
(C) the specific event was the prevailing factor in causing the
coronary or coronary artery disease or cerebrovascular injury.
(d) Except as provided in the workers compensation act, no
construction design professional who is retained to perform professional
services on a construction project or any employee of a construction
design professional who is assisting or representing the construction
design professional in the performance of professional services on the site
of the construction project, shall be liable for any injury resulting from the
employer's failure to comply with safety standards on the construction
project for which compensation is recoverable under the workers
compensation act, unless responsibility for safety practices is specifically
assumed by contract. The immunity provided by this subsection to any
construction design professional shall not apply to the negligent
preparation of design plans or specifications.
(e) An award of compensation for permanent partial impairment,
work disability, or permanent total disability shall be reduced by the
amount of functional impairment determined to be preexisting. Any such
The reduction shall not apply to temporary total disability, nor shall it
apply to compensation for medical treatment.
(1) Where workers compensation benefits have previously been
awarded through settlement or judicial or administrative determination in
Kansas, the percentage basis of the prior settlement or award shall
conclusively establish the amount of functional impairment determined to
be preexisting. Where workers compensation benefits have not previously
been awarded through settlement or judicial or administrative
determination in Kansas, the amount of preexisting functional impairment
shall be established by competent evidence.
(2) In all cases, the applicable reduction shall be calculated as
follows:
(A) If the preexisting impairment is the result of injury sustained
while working for the employer against whom workers compensation
benefits are currently being sought, any award of compensation shall be
reduced by the current dollar value attributable under the workers
compensation act to the percentage of functional impairment determined to
be preexisting. The "current dollar value" shall be calculated by
multiplying the percentage of preexisting impairment by the compensation
rate in effect on the date of the accident or injury against which the
reduction will be applied.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43 HB 2063 5
(B) In all other cases, the employer against whom benefits are
currently being sought shall be entitled to a credit for the percentage of
preexisting impairment.
(f) (1) If the employee receives begins receiving, whether periodically
or by lump sum, retirement benefits under the federal social security act or
retirement benefits from any other retirement system, program, policy or
plan which is provided by the employer against which the claim is being
made after a work-related accident, any compensation benefit payments
which for permanent total disability or permanent partial disability that
the employee is eligible to receive under the workers compensation act for
such the claim shall be reduced by the weekly equivalent amount of the
total amount of all such federal social security retirement benefits, less any
portion of any such.
(2) If the employee begins receiving retirement benefit benefits after
the accident that are funded by the employer against whom the claim is
being made, other than retirement benefits under the federal social security
act, any compensation benefit payments for permanent total disability or
permanent partial disability that the employee is eligible to receive under
the workers compensation act for the claim shall be reduced by the weekly
equivalent amount of the total amount of such retirement benefits. No
portion of such retirement benefits that is are attributable to payments or
contributions made by the employee, but in no event shall the shall be
subject to this reduction.
(3) Whether the employee receives retirement benefits under the
federal social security act or through any other retirement plan, workers
compensation benefit benefits for permanent disability shall not be less
than the workers compensation benefit payable for the employee's
percentage of functional impairment.
(4) Where the employee elects to take retirement benefits in a lump
sum, the lump sum payment shall be amortized at the rate of 4% per year
over the employee's life expectancy to determine the weekly equivalent
value of the benefits.
Sec. 2. K.S.A. 44-501 is hereby repealed.
Sec. 3. This act shall take effect and be in force from and after its
publication in the statute book.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35