44-501.Employer obligation; burden of proof;defenses; exceptions; legislativeintent; benefits reduced for certain retirement benefits.(a) If in any employment to which the workers compensation act applies,personal injury by accident arisingout of and in thecourse of employment iscaused to an employee, the employer shall be liable to pay compensation totheemployee in accordance with the provisions of the workers compensation act. Inproceedings under the workers compensation act, the burden of proof shall be onthe claimant to establish the claimant's right to an award of compensation andto prove the various conditions on which the claimant's right depends. Indetermining whether the claimant has satisfied this burden of proof, the trierof fact shall consider the whole record.
(b) Except as provided in the workers compensation act, no employer, orother employee of such employer, shall be liable for any injury for whichcompensation is recoverable under the workers compensation act nor shall anemployer be liable to any third party for any injury or death of an employeewhich was caused under circumstances creating a legal liability against a thirdparty and for which workers compensation is payable by such employer.
(c) The employee shall not be entitled to recover for theaggravation of a preexisting condition, except to the extent that thework-related injury causes increased disability. Any award of compensationshall be reduced by the amount of functional impairment determined to bepreexisting.
(d) (1) If the injury to the employee resultsfrom theemployee's deliberate intention to cause such injury; orfrom the employee'swillful failure to use a guard or protection against accident required pursuantto any statute and provided for the employee, or a reasonable and proper guardand protection voluntarily furnished the employee by the employer, anycompensation in respect to that injury shall be disallowed.
(2) The employer shall not beliable under the workers compensation act where the injury, disability or deathwas contributed to by the employee's useor consumption of alcohol or any drugs, chemicalsor any other compounds or substances, including but not limited to,any drugs or medications which are available to the public without aprescription from a health care provider, prescription drugs or medications,anyform or type of narcotic drugs, marijuana, stimulants, depressants orhallucinogens. In the case of drugs or medications whichare available tothe public without a prescription from a health care provider and prescriptiondrugs or medications, compensation shall not be deniedif the employee can show that such drugs or medications were being taken orused in therapeutic doses and there have been no prior incidences of theemployee's impairment on the job as the result of the use of such drugs ormedications within the previous 24 months. It shall be conclusively presumedthat the employee was impaireddue to alcohol or drugs if it is shown that at the time of the injurythat theemployee had an alcohol concentration of .04 or more, or a GCMSconfirmatorytest by quantitative analysis showing a concentration at or above the levelsshown 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-Acetylmorphine4.................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 greaterthan or equal to 200 ng/ml.
4 Test for 6-AM when morphine concentration exceeds 2,000 ng/ml.
An employee's refusal to submit to a chemical testshall not be admissible evidence to prove impairment unless there was probablecause to believe that the employee used, possessed or was impaired by adrug or alcohol while working. The results of a chemical testshall not beadmissible evidence to prove impairment unless the following conditions weremet:
(A) There was probable cause to believe that the employee used, hadpossession of, or was impaired by the drug or alcohol whileworking;
(B) the test sample was collected at a time contemporaneous with theevents establishing probable cause;
(C) the collecting and labeling of the test sample was performed by orunder the supervision of alicensed health care professional;
(D) the test was performed by a laboratory approved by the United Statesdepartment of health and human services or licensed by the department of healthand environment, except that a blood sample may betested for alcohol content by a laboratory commonly used for that purpose bystate law enforcement agencies;
(E) the test was confirmed by gaschromatography-massspectroscopy or other comparably reliable analytical method, except that nosuch confirmation is required for a blood alcohol sample; and
(F) the foundation evidence must establish, beyond a reasonable doubt,that the test results were from the sample taken from the employee.
(3) For purposes of satisfying the probable cause requirement ofsubsection (d)(2)(A) of this section, the employer shall be deemed to have mettheir burden of proof on this issue by establishing any of the followingcircumstances:
(A) The testing was done as a result of an employer mandated drug testingpolicy, in place in writing prior to the date of accident, requiring any workerto submit to testing for drugs or alcohol if they are involved in an accidentwhich requires medical attention;
(B) the testing was done in the normal course of medical treatment forreasonsrelated to the health and welfare of the injured worker and was not at thedirection of the employer; however, the request for GCMS testing for purposesofconfirmation, required by subsection (d)(2)(E) of this section, may have beenat theemployer's request;
(C) the worker, prior to the date and time of the accident, gave writtenconsent to the employer that the worker would voluntarily submit to a chemicaltest for drugs or alcohol following any accident requiring the worker toobtain medical treatment for the injuries suffered. If after suffering anaccident requiring medical treatment, the worker refuses to submit to achemical test for drugs or alcohol, this refusal shall be considered evidenceof impairment, however, there must be evidence that the presumed impairmentcontributed to the accident as required by this section; or
(D) the testing was done as a result of federal or state law or a federal orstate rule or regulation having the force and effect of law requiring a postaccident testing program and such required program wasproperly implemented at the time of testing.
(e) Compensation shall not be paid in case of coronary or coronary arterydisease or cerebrovascular injury unless it is shown that the exertion of thework necessary to precipitate the disability was more than the employee's usualwork in the course of the employee's regular employment.
(f) Except as provided in the workers compensation act, no constructiondesign professional who is retained to perform professional services on aconstruction project or any employee of a construction design professional whois assisting or representing the construction design professional in theperformance of professional services on the site of the construction project,shall be liable for any injury resulting from the employer's failure to complywith safety standards on the construction project for which compensation isrecoverable under the workers compensation act, unless responsibility forsafety practices is specifically assumed by contract. The immunity provided bythis subsection to any construction design professional shall not apply to thenegligent preparation of design plans or specifications.
(g) It is the intent of the legislature that the workers compensationact shall be liberally construed for the purpose of bringing employers andemployees within the provisions of the act to provide the protections ofthe workers compensation act to both. The provisions of the workerscompensation act shall be applied impartially to both employers andemployees in cases arising thereunder.
(h) If the employee is receiving retirementbenefits under thefederal social security actor retirement benefits from any other retirement system, program or plan whichis provided by the employer against which the claim is being made, anycompensation benefit paymentswhich the employee is eligible toreceive under the workers compensation act for such claim shall be reduced bythe weekly equivalent amount ofthe total amount of all such retirement benefits,less any portion of anysuch retirement benefit, other than retirement benefits under the federalsocial security act, that is attributable to payments or contributions madeby the employee,but in no event shall theworkers compensation benefit be less than theworkers compensation benefit payable for the employee'spercentage of functional impairment.
44-501.Employer obligation; burden of proof;defenses; exceptions; legislativeintent; benefits reduced for certain retirement benefits.(a) If in any employment to which the workers compensation act applies,personal injury by accident arisingout of and in thecourse of employment iscaused to an employee, the employer shall be liable to pay compensation totheemployee in accordance with the provisions of the workers compensation act. Inproceedings under the workers compensation act, the burden of proof shall be onthe claimant to establish the claimant's right to an award of compensation andto prove the various conditions on which the claimant's right depends. Indetermining whether the claimant has satisfied this burden of proof, the trierof fact shall consider the whole record.
(b) Except as provided in the workers compensation act, no employer, orother employee of such employer, shall be liable for any injury for whichcompensation is recoverable under the workers compensation act nor shall anemployer be liable to any third party for any injury or death of an employeewhich was caused under circumstances creating a legal liability against a thirdparty and for which workers compensation is payable by such employer.
(c) The employee shall not be entitled to recover for theaggravation of a preexisting condition, except to the extent that thework-related injury causes increased disability. Any award of compensationshall be reduced by the amount of functional impairment determined to bepreexisting.
(d) (1) If the injury to the employee resultsfrom theemployee's deliberate intention to cause such injury; orfrom the employee'swillful failure to use a guard or protection against accident required pursuantto any statute and provided for the employee, or a reasonable and proper guardand protection voluntarily furnished the employee by the employer, anycompensation in respect to that injury shall be disallowed.
(2) The employer shall not beliable under the workers compensation act where the injury, disability or deathwas contributed to by the employee's useor consumption of alcohol or any drugs, chemicalsor any other compounds or substances, including but not limited to,any drugs or medications which are available to the public without aprescription from a health care provider, prescription drugs or medications,anyform or type of narcotic drugs, marijuana, stimulants, depressants orhallucinogens. In the case of drugs or medications whichare available tothe public without a prescription from a health care provider and prescriptiondrugs or medications, compensation shall not be deniedif the employee can show that such drugs or medications were being taken orused in therapeutic doses and there have been no prior incidences of theemployee's impairment on the job as the result of the use of such drugs ormedications within the previous 24 months. It shall be conclusively presumedthat the employee was impaireddue to alcohol or drugs if it is shown that at the time of the injurythat theemployee had an alcohol concentration of .04 or more, or a GCMSconfirmatorytest by quantitative analysis showing a concentration at or above the levelsshown 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-Acetylmorphine4.................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 greaterthan or equal to 200 ng/ml.
4 Test for 6-AM when morphine concentration exceeds 2,000 ng/ml.
An employee's refusal to submit to a chemical testshall not be admissible evidence to prove impairment unless there was probablecause to believe that the employee used, possessed or was impaired by adrug or alcohol while working. The results of a chemical testshall not beadmissible evidence to prove impairment unless the following conditions weremet:
(A) There was probable cause to believe that the employee used, hadpossession of, or was impaired by the drug or alcohol whileworking;
(B) the test sample was collected at a time contemporaneous with theevents establishing probable cause;
(C) the collecting and labeling of the test sample was performed by orunder the supervision of alicensed health care professional;
(D) the test was performed by a laboratory approved by the United Statesdepartment of health and human services or licensed by the department of healthand environment, except that a blood sample may betested for alcohol content by a laboratory commonly used for that purpose bystate law enforcement agencies;
(E) the test was confirmed by gaschromatography-massspectroscopy or other comparably reliable analytical method, except that nosuch confirmation is required for a blood alcohol sample; and
(F) the foundation evidence must establish, beyond a reasonable doubt,that the test results were from the sample taken from the employee.
(3) For purposes of satisfying the probable cause requirement ofsubsection (d)(2)(A) of this section, the employer shall be deemed to have mettheir burden of proof on this issue by establishing any of the followingcircumstances:
(A) The testing was done as a result of an employer mandated drug testingpolicy, in place in writing prior to the date of accident, requiring any workerto submit to testing for drugs or alcohol if they are involved in an accidentwhich requires medical attention;
(B) the testing was done in the normal course of medical treatment forreasonsrelated to the health and welfare of the injured worker and was not at thedirection of the employer; however, the request for GCMS testing for purposesofconfirmation, required by subsection (d)(2)(E) of this section, may have beenat theemployer's request;
(C) the worker, prior to the date and time of the accident, gave writtenconsent to the employer that the worker would voluntarily submit to a chemicaltest for drugs or alcohol following any accident requiring the worker toobtain medical treatment for the injuries suffered. If after suffering anaccident requiring medical treatment, the worker refuses to submit to achemical test for drugs or alcohol, this refusal shall be considered evidenceof impairment, however, there must be evidence that the presumed impairmentcontributed to the accident as required by this section; or
(D) the testing was done as a result of federal or state law or a federal orstate rule or regulation having the force and effect of law requiring a postaccident testing program and such required program wasproperly implemented at the time of testing.
(e) Compensation shall not be paid in case of coronary or coronary arterydisease or cerebrovascular injury unless it is shown that the exertion of thework necessary to precipitate the disability was more than the employee's usualwork in the course of the employee's regular employment.
(f) Except as provided in the workers compensation act, no constructiondesign professional who is retained to perform professional services on aconstruction project or any employee of a construction design professional whois assisting or representing the construction design professional in theperformance of professional services on the site of the construction project,shall be liable for any injury resulting from the employer's failure to complywith safety standards on the construction project for which compensation isrecoverable under the workers compensation act, unless responsibility forsafety practices is specifically assumed by contract. The immunity provided bythis subsection to any construction design professional shall not apply to thenegligent preparation of design plans or specifications.
(g) It is the intent of the legislature that the workers compensationact shall be liberally construed for the purpose of bringing employers andemployees within the provisions of the act to provide the protections ofthe workers compensation act to both. The provisions of the workerscompensation act shall be applied impartially to both employers andemployees in cases arising thereunder.
(h) If the employee is receiving retirementbenefits under thefederal social security actor retirement benefits from any other retirement system, program or plan whichis provided by the employer against which the claim is being made, anycompensation benefit paymentswhich the employee is eligible toreceive under the workers compensation act for such claim shall be reduced bythe weekly equivalent amount ofthe total amount of all such retirement benefits,less any portion of anysuch retirement benefit, other than retirement benefits under the federalsocial security act, that is attributable to payments or contributions madeby the employee,but in no event shall theworkers compensation benefit be less than theworkers compensation benefit payable for the employee'spercentage of functional impairment.
44-501.Employer obligation; burden of proof;defenses; exceptions; legislativeintent; benefits reduced for certain retirement benefits.(a) If in any employment to which the workers compensation act applies,personal injury by accident arisingout of and in thecourse of employment iscaused to an employee, the employer shall be liable to pay compensation totheemployee in accordance with the provisions of the workers compensation act. Inproceedings under the workers compensation act, the burden of proof shall be onthe claimant to establish the claimant's right to an award of compensation andto prove the various conditions on which the claimant's right depends. Indetermining whether the claimant has satisfied this burden of proof, the trierof fact shall consider the whole record.
(b) Except as provided in the workers compensation act, no employer, orother employee of such employer, shall be liable for any injury for whichcompensation is recoverable under the workers compensation act nor shall anemployer be liable to any third party for any injury or death of an employeewhich was caused under circumstances creating a legal liability against a thirdparty and for which workers compensation is payable by such employer.
(c) The employee shall not be entitled to recover for theaggravation of a preexisting condition, except to the extent that thework-related injury causes increased disability. Any award of compensationshall be reduced by the amount of functional impairment determined to bepreexisting.
(d) (1) If the injury to the employee resultsfrom theemployee's deliberate intention to cause such injury; orfrom the employee'swillful failure to use a guard or protection against accident required pursuantto any statute and provided for the employee, or a reasonable and proper guardand protection voluntarily furnished the employee by the employer, anycompensation in respect to that injury shall be disallowed.
(2) The employer shall not beliable under the workers compensation act where the injury, disability or deathwas contributed to by the employee's useor consumption of alcohol or any drugs, chemicalsor any other compounds or substances, including but not limited to,any drugs or medications which are available to the public without aprescription from a health care provider, prescription drugs or medications,anyform or type of narcotic drugs, marijuana, stimulants, depressants orhallucinogens. In the case of drugs or medications whichare available tothe public without a prescription from a health care provider and prescriptiondrugs or medications, compensation shall not be deniedif the employee can show that such drugs or medications were being taken orused in therapeutic doses and there have been no prior incidences of theemployee's impairment on the job as the result of the use of such drugs ormedications within the previous 24 months. It shall be conclusively presumedthat the employee was impaireddue to alcohol or drugs if it is shown that at the time of the injurythat theemployee had an alcohol concentration of .04 or more, or a GCMSconfirmatorytest by quantitative analysis showing a concentration at or above the levelsshown 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-Acetylmorphine4.................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 greaterthan or equal to 200 ng/ml.
4 Test for 6-AM when morphine concentration exceeds 2,000 ng/ml.
An employee's refusal to submit to a chemical testshall not be admissible evidence to prove impairment unless there was probablecause to believe that the employee used, possessed or was impaired by adrug or alcohol while working. The results of a chemical testshall not beadmissible evidence to prove impairment unless the following conditions weremet:
(A) There was probable cause to believe that the employee used, hadpossession of, or was impaired by the drug or alcohol whileworking;
(B) the test sample was collected at a time contemporaneous with theevents establishing probable cause;
(C) the collecting and labeling of the test sample was performed by orunder the supervision of alicensed health care professional;
(D) the test was performed by a laboratory approved by the United Statesdepartment of health and human services or licensed by the department of healthand environment, except that a blood sample may betested for alcohol content by a laboratory commonly used for that purpose bystate law enforcement agencies;
(E) the test was confirmed by gaschromatography-massspectroscopy or other comparably reliable analytical method, except that nosuch confirmation is required for a blood alcohol sample; and
(F) the foundation evidence must establish, beyond a reasonable doubt,that the test results were from the sample taken from the employee.
(3) For purposes of satisfying the probable cause requirement ofsubsection (d)(2)(A) of this section, the employer shall be deemed to have mettheir burden of proof on this issue by establishing any of the followingcircumstances:
(A) The testing was done as a result of an employer mandated drug testingpolicy, in place in writing prior to the date of accident, requiring any workerto submit to testing for drugs or alcohol if they are involved in an accidentwhich requires medical attention;
(B) the testing was done in the normal course of medical treatment forreasonsrelated to the health and welfare of the injured worker and was not at thedirection of the employer; however, the request for GCMS testing for purposesofconfirmation, required by subsection (d)(2)(E) of this section, may have beenat theemployer's request;
(C) the worker, prior to the date and time of the accident, gave writtenconsent to the employer that the worker would voluntarily submit to a chemicaltest for drugs or alcohol following any accident requiring the worker toobtain medical treatment for the injuries suffered. If after suffering anaccident requiring medical treatment, the worker refuses to submit to achemical test for drugs or alcohol, this refusal shall be considered evidenceof impairment, however, there must be evidence that the presumed impairmentcontributed to the accident as required by this section; or
(D) the testing was done as a result of federal or state law or a federal orstate rule or regulation having the force and effect of law requiring a postaccident testing program and such required program wasproperly implemented at the time of testing.
(e) Compensation shall not be paid in case of coronary or coronary arterydisease or cerebrovascular injury unless it is shown that the exertion of thework necessary to precipitate the disability was more than the employee's usualwork in the course of the employee's regular employment.
(f) Except as provided in the workers compensation act, no constructiondesign professional who is retained to perform professional services on aconstruction project or any employee of a construction design professional whois assisting or representing the construction design professional in theperformance of professional services on the site of the construction project,shall be liable for any injury resulting from the employer's failure to complywith safety standards on the construction project for which compensation isrecoverable under the workers compensation act, unless responsibility forsafety practices is specifically assumed by contract. The immunity provided bythis subsection to any construction design professional shall not apply to thenegligent preparation of design plans or specifications.
(g) It is the intent of the legislature that the workers compensationact shall be liberally construed for the purpose of bringing employers andemployees within the provisions of the act to provide the protections ofthe workers compensation act to both. The provisions of the workerscompensation act shall be applied impartially to both employers andemployees in cases arising thereunder.
(h) If the employee is receiving retirementbenefits under thefederal social security actor retirement benefits from any other retirement system, program or plan whichis provided by the employer against which the claim is being made, anycompensation benefit paymentswhich the employee is eligible toreceive under the workers compensation act for such claim shall be reduced bythe weekly equivalent amount ofthe total amount of all such retirement benefits,less any portion of anysuch retirement benefit, other than retirement benefits under the federalsocial security act, that is attributable to payments or contributions madeby the employee,but in no event shall theworkers compensation benefit be less than theworkers compensation benefit payable for the employee'spercentage of functional impairment.
