Kansas Statutes

Chapter 44: Labor And Industries

Article 5a: Occupational Diseases

Statutes:

• 44-5a01: Occupational diseases; treated as injuries by accident under workmen's compensation act; defined; limitations of liability; aggravations.
• 44-5a02:
• 44-5a03: Fraudulent representation.
• 44-5a04: Disablement and disability defined; cancellation of award, when.
• 44-5a05: Workman or dependents not entitled to compensation, when.
• 44-5a06: Date from which compensation is computed; employer liable.
• 44-5a07: Securing payment of compensation; liability exclusive.
• 44-5a08: Rights of employer subrogated to insurance carrier.
• 44-5a09: Silicosis defined.
• 44-5a10: Disability or death from silicosis; compensation rights.
• 44-5a11, 44-5a12:
• 44-5a13: Compensation for death from silicosis complicated with other disease; how paid.
• 44-5a14:
• 44-5a15: Waiver by employee affected with disease although not disabled; effect.
• 44-5a16: Dermatitis; disability after receiving compensation; effect.
• 44-5a17: Notice of disease and filing of claim; deemed waived, when.
• 44-5a18: Autopsy; notice; findings; public record.
• 44-5a19: Award or denial of award reviewed, when.
• 44-5a20: Act inapplicable, when.
• 44-5a21: Rules and regulations.
• 44-5a22: Act supplemental to workmen's compensation law.

• 44-5a01: Occupational diseases; treated as injuries by accident under workmen's compensation act; defined; limitations of liability; aggravations. (a) Where the employer and employee or workman are subject by law or election to the provisions of the workmen's compensation act, the disablement or death of an employee or workman resulting from an occupational disease as defined in this section shall be treated as the happening of an injury by accident, and the employee or workman or, in case of death, his dependents shall be entitled to compensation for such disablement or death resulting from an occupational disease, in accordance with the provisions of the workmen's compensation act as in cases of injuries by accident which are compensable thereunder, except as specifically provided otherwise for occupational diseases.

        (b)   "Occupational disease" shall mean only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged. "Nature of the employment" shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee was engaged, there is attached a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general. The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk. Ordinary diseases of life and conditions to which the general public is or may be exposed to outside of the particular employment, and hazards of diseases and conditions attending employment in general, shall not be compensable as occupational diseases: Provided, That compensation shall not be payable for pulmonary emphysema or other types of emphysema unless it is proved, by clear and convincing medical evidence to a reasonable probability, that such emphysema was caused, solely and independently of all other causes, by the employment with the employer against whom the claim is made, except that, if it is proved to a reasonable medical probability that an existing emphysema was aggravated and contributed to by the employment with the employer against whom the claim is made, compensation shall be payable for the resulting condition of the workman, but only to the extent such condition was so contributed to and aggravated by the employment.

        (c)   In no case shall an employer be liable for compensation under this section unless disablement results within one (1) year or death results within three (3) years in case of silicosis, or one (1) year in case of any other occupational disease, after the last injurious exposure to the hazard of such disease in such employment, or, in case of death, unless death follows continuous disability from such disease, commencing within the period above limited, for which compensation has been paid or awarded or timely claim made as provided in the workmen's compensation act, and results within seven (7) years after such last exposure. Where payments have been made on account of any disablement from which death shall thereafter result such payments shall be deducted from the amount of liability provided by law in case of death. The time limit prescribed by this section shall not apply in the case of an employee whose disablement or death is due to occupational exposure to ionizing radiation.

        (d)   Where an occupational disease is aggravated by any disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated or in any wise contributed to by an occupational disease, the compensation payable shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death, as such occupational disease, as a causative factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants.

        (e)   No compensation for death from an occupational disease shall be payable to any person whose relationship to the deceased employee or workman arose subsequent to the beginning of the first compensable disability save only to afterborn children.

        (f)   The provisions of K.S.A. 44-570 shall apply in case of an occupational disease.

        History:   L. 1953, ch. 246, § 1; L. 1963, ch. 274, § 1; L. 1974, ch. 203, § 52; July 1.

• 44-5a02:

        History:   L. 1953, ch. 246, § 2; L. 1959, ch. 222, § 1; Repealed, L. 1974, ch. 203, § 58; July 1.

• 44-5a03: Fraudulent representation. No compensation shall be payable for an occupational disease if the employee, at the time of entering into the employment of the employer by whom the compensation would otherwise be payable, fraudulently represents himself in writing as not having previously been disabled, laid off, or compensated in damages or otherwise, because of such disease.

        History:   L. 1953, ch. 246, § 3; July 1.

• 44-5a04: Disablement and disability defined; cancellation of award, when. (a) Except as otherwise provided in this act "disablement" means the event of an employee becoming actually incapacitated, partially or totally, because of an occupational disease, from performing the employee's work in the last occupation in which injuriously exposed to the hazards of such disease, and "disability" means the state of being so incapacitated.

        (b)   The administrative law judge may cancel the award and end the compensation if the administrative law judge finds that the employee:

        (1)   Has returned to work for the same employer in whose employ the employee was disabled or for another employer and is capable of earning the same or higher wages than the employee did at the time of the disablement, or is capable of gaining an income from any trade or employment which is equal to or greater than the wages the employee was earning at the time of the disablement;

        (2)   is absent and continues to be absent so that a reasonable examination cannot be made of the employee by a health care provider selected by the employer; or

        (3)   has departed beyond the boundaries of the United States.

        History:   L. 1953, ch. 246, § 4; L. 1990, ch. 182, § 11; L. 1993, ch. 286, § 74; July 1.

• 44-5a05: Workman or dependents not entitled to compensation, when. A workman or his dependents shall not be entitled to compensation hereunder if it is proved that the disablement to the workman results from his deliberate intention to cause such disability, or from his willful failure to use a guard or protection against disablement required pursuant to any statute and provided for him, or a reasonable and proper guard and protection voluntarily furnished him by said employer, or solely from his intoxication.

        History:   L. 1953, ch. 246, § 5; July 1.

• 44-5a06: Date from which compensation is computed; employer liable. The date when an employee or workman becomes incapacitated by an occupational disease from performing his work in the last occupation in which he was injuriously exposed to the hazards of such disease, shall be taken as the date of the injury equivalent to the date of accident under the workmen's compensation act. Where compensation is payable for an occupational disease, the employer in whose employment the employee or workman was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall be liable therefor, without the right to contribution from any prior employer or insurance carrier; the amount of the compensation shall be based upon the average wages of the employee or workman when last so exposed under such employer, and the notice of disability and claim for compensation, as hereinafter required, shall be given and made to such employer: Provided, That in case of silicosis the only employer and insurance carrier liable shall be the last employer in whose employment the employee or workman was last injuriously exposed to the hazards of the disease during a period of sixty (60) days or more, and the insurance carrier, if any, on the risk when the employee or workman was last so exposed under such employer.

        History:   L. 1953, ch. 246, § 6; L. 1974, ch. 203, § 53; July 1.

• 44-5a07: Securing payment of compensation; liability exclusive. An employer subject to the provisions of this act shall secure the payment of compensation in accordance with the provisions of this act in any method prescribed by the provisions of section 44-532 of the workmen's compensation law, and such insurance or other security may be separate and distinct from the insurance or other security under the workmen's compensation law. Where the foregoing requirement is complied with the liability of the employer under this act shall be exclusive and in place of any and all other civil liability whatsoever, at common law or otherwise.

        History:   L. 1953, ch. 246, § 7; July 1.

• 44-5a08: Rights of employer subrogated to insurance carrier. When the obligation of the employer, under this act, is secured by insurance, the insurance carrier shall be subrogated to all the rights and privileges of the employer under the provisions of this act and of the workmen's compensation law so far as applicable.

        History:   L. 1953, ch. 246, § 8; July 1.

• 44-5a09: Silicosis defined. Wherever used in this act, "silicosis" shall mean the characteristic fibrotic condition of the lungs caused by the inhalation of silica dust.

        History:   L. 1953, ch. 246, § 9; July 1.

• 44-5a10: Disability or death from silicosis; compensation rights. In the absence of conclusive evidence in favor of the claim, disability or death from silicosis shall be presumed not to be due to the nature of any occupation within the provisions of this act, unless during the ten (10) years immediately preceding the date of disablement the employee or workman has been exposed to the inhalation of silica dust over a period of not less than five (5) years, two (2) years of which shall have been in this state: Provided, however, That if the employee or workman shall have been employed by the same employer during the whole of such five-year period, his right to compensation against such employer shall not be affected by the fact that he had been employed during any part of such period outside of this state.

        History:   L. 1953, ch. 246, § 10; July 1.

• 44-5a11, 44-5a12:

        History:   L. 1953, ch. 246, §§ 11, 12; Repealed, L. 1974, ch. 203, § 58; July 1.

• 44-5a13: Compensation for death from silicosis complicated with other disease; how paid. In case of disability or death from silicosis complicated with any other disease or from any other disease complicated with silicosis, the compensation payable under the workmen's compensation act shall be reduced as provided in subsection (d) of K.S.A. 44-5a01, as amended.

        History:   L. 1953, ch. 246, § 13; L. 1974, ch. 203, § 54; July 1.

• 44-5a14:

        History:   L. 1953, ch. 246, § 14; Repealed, L. 1974, ch. 203, § 58; July 1.

• 44-5a15: Waiver by employee affected with disease although not disabled; effect. Where an employee, though not actually disabled, is found to be affected by any occupational disease such employee may, subject to the approval of the director of workers' compensation be permitted to waive in writing full compensation for any aggravation of such condition that may result from continuing in the hazardous occupation. In the event of total disablement or death as a result of the disease with which the employee or worker was so affected, after such a waiver, compensation shall nevertheless be payable as herein elsewhere provided, but in no case, whether for disability or death or both, for longer than one hundred (100) weeks. A waiver so permitted shall remain effective, for the trade, occupation, process or employment for which executed notwithstanding a change or changes of employer. The director of workers' compensation shall make reasonable rules and regulations relative to the form, execution, filing, or registration and public inspection of waivers or records thereof.

        History:   L. 1953, ch. 246, § 15; L. 1957, ch. 293, § 9; L. 1976, ch. 370, § 22; July 1.

• 44-5a16: Dermatitis; disability after receiving compensation; effect. A person who has suffered disability from dermatitis and has received compensation therefor shall not be entitled to compensation for disability from a later attack of dermatitis due to substantially the same cause, unless, immediately preceding the date of the later disablement, he has been engaged in the occupation to which the recurrence of the disease is ascribed and under the same employer for at least sixty (60) days.

        History:   L. 1953, ch. 246, § 16; July 1.

• 44-5a17: Notice of disease and filing of claim; deemed waived, when. Written notice of an occupational disease shall be given to the employer by the employee or workman or someone on his behalf within ninety (90) days after disablement therefrom, and in the case of death from such an occupational disease, written notice of such death shall also be given to the employer within ninety (90) days thereafter. Failure to give either of such notices shall be deemed waived unless objection is made at a hearing on the claim prior to any award or decision thereon. Actual knowledge of such disablement, by the employer in whose employment the employee or workman was last injuriously exposed, or by the responsible superintendent or foreman in charge of the work, shall be deemed notice within the meaning of this section. If no claim for disability or death from an occupational disease be filed with the workmen's compensation director or served on the employer within one (1) year from the date of disablement or death, as the case may be, the right to compensation for such disease shall be forever barred: Provided, however, That the failure to file or serve a claim within the time limited herein shall be deemed waived unless objection to such failure be made at a hearing on such claim before any award or decision thereon.

        Notice or claim shall be deemed waived in case of disability or death where the employer or insurance carrier makes compensation payments therefor, or, within the time above limited, the employer or his insurance carrier by his or its conduct leads the employee or workman or claimant reasonably to believe that notice or claim has been waived.

        The time limit prescribed by this section shall not apply in the case of an employee whose disablement or death is or was caused by latent or delayed pathological conditions, changes or malignancies due to the occupational exposure to X-rays, radium, radioactive substances or machines, or ionizing radiation: Provided, however, That no claims shall be allowed unless a claim has been filed within one year after the date upon which the employee first suffered incapacity from the exposure to radiation and either knew or in the exercise of reasonable diligence should have known that the occupational disease was caused by his present or prior employment.

        History:   L. 1953, ch. 246, § 17; L. 1959, ch. 222, § 2; L. 1963, ch. 274, § 2; June 30.

• 44-5a18: Autopsy; notice; findings; public record. Upon the filing or service of a claim for compensation for death from an occupational disease where an autopsy is necessary to accurately and scientifically ascertain and determine the cause of death, such autopsy shall be ordered by the director. Such autopsy shall be made under the supervision of a medical examiner appointed by the director. The medical examiner shall be a health care provider who is a specialist in such examinations. The medical examiner shall perform or attend such autopsy and shall certify the medical examiner's findings in a report of the autopsy. The report of autopsy shall be filed with the director and shall be a public record. The employer and claimants shall be given reasonable notice of such autopsy and each shall have the right to have a health care provider of the employer or claimant's own choosing present at the time. The director also may exercise such authority on the director's own motion or on application made to the director at any time, upon the presentation of facts showing that a controversy may exist in regard to the cause of death or the existence of any occupational disease.

        History:   L. 1953, ch. 246, § 18; L. 1976, ch. 370, § 23; L. 1990, ch. 182, § 12; July 1.

• 44-5a19: Award or denial of award reviewed, when. An award or denial of award of or agreement for compensation for an occupational disease may be reviewed and compensation increased, reduced or terminated where previously awarded, or awarded where previously denied, only upon proof of fraud or under undue influence or of change in conditions, and then only upon application by a party in interest made not later than one (1) year after the denial of award, or where compensation has been awarded or agreed to be paid, after the award or the date when the last payment was made under the award or agreement, except in case of silicosis where such time limit shall be two (2) years.

        History:   L. 1953, ch. 246, § 19; July 1.

• 44-5a20: Act inapplicable, when. This act shall not apply to cases of occupational disease in which the last injurious exposure to the hazards of such disease occurred before this act shall have taken effect.

        History:   L. 1953, ch. 246, § 20; July 1.

• 44-5a21: Rules and regulations. The director of workers' compensation shall adopt such rules and regulations as necessary to carry out the intent and purposes of this act.

        History:   L. 1953, ch. 246, § 21; L. 1976, ch. 370, § 24; July 1.

• 44-5a22: Act supplemental to workmen's compensation law. This act shall be construed as supplementary to and as part of the workmen's compensation act of this state.

        History:   L. 1953, ch. 246, § 22; July 1.