44-5a01. Occupational diseases; treated as injuries by accident under workmen's compensation act; defined; limitations of liability; aggravations.
44-5a01
44-5a01. Occupational diseases; treated as injuries by accidentunder workmen's compensation act; defined; limitations of liability;aggravations.(a) Where the employer and employee or workman are subject by law orelection to the provisions of the workmen's compensation act, thedisablement or death of an employee or workman resulting from anoccupational disease as defined in this section shall be treated as thehappening of an injury by accident, and the employee or workman or, incase of death, his dependents shall be entitled to compensation for suchdisablement or death resulting from an occupational disease, inaccordance with the provisions of the workmen's compensation act as incases of injuries by accident which are compensable thereunder, exceptas specifically provided otherwise for occupational diseases.
(b) "Occupational disease" shall mean only a disease arising out ofand in the course of the employment resulting from the nature of theemployment in which the employee was engaged under such employer, andwhich was actually contracted while so engaged. "Nature of theemployment" shall mean, for purposes of this section, that to theoccupation, trade or employment in which the employee was engaged, thereis attached a particular and peculiar hazard of such disease whichdistinguishes the employment from other occupations and employments, andwhich creates a hazard of such disease which is in excess of the hazardof such disease in general. The disease must appear to have had itsorigin in a special risk of such disease connected with the particulartype of employment and to have resulted from that source as a reasonableconsequence of the risk. Ordinary diseases of life and conditions towhich the general public is or may be exposed to outside of theparticular employment, and hazards of diseases and conditions attendingemployment in general, shall not be compensable as occupationaldiseases: Provided, That compensation shall not be payable forpulmonary emphysema or other types of emphysema unless it is proved, byclear and convincing medical evidence to a reasonable probability, thatsuch 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 anexisting emphysema was aggravated and contributed to by the employmentwith the employer against whom the claim is made, compensation shall bepayable for the resulting condition of the workman, but only to theextent such condition was so contributed to and aggravated by theemployment.
(c) In no case shall an employer be liable for compensation underthis section unless disablement results within one (1) year or deathresults within three (3) years in case of silicosis, or one (1) year incase of any other occupational disease, after the last injuriousexposure to the hazard of such disease in such employment, or, in caseof death, unless death follows continuous disability from such disease,commencing within the period above limited, for which compensation hasbeen paid or awarded or timely claim made as provided in the workmen'scompensation act, and results within seven (7) years after such lastexposure. Where payments have been made on account of any disablementfrom which death shall thereafter result such payments shall be deductedfrom the amount of liability provided by law in case of death. The timelimit prescribed by this section shall not apply in the case of anemployee whose disablement or death is due to occupational exposure toionizing radiation.
(d) Where an occupational disease is aggravated by any disease orinfirmity, not itself compensable, or where disability or death from anyother 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 proportiononly of the compensation that would be payable if the occupationaldisease were the sole cause of the disability or death, as suchoccupational disease, as a causative factor, bears to all the causes ofsuch disability or death, such reduction in compensation to be effectedby reducing the number of weekly or monthly payments or the amounts ofsuch payments, as under the circumstances of the particular case may befor the best interest of the claimant or claimants.
(e) No compensation for death from an occupational disease shall bepayable to any person whose relationship to the deceased employee orworkman arose subsequent to the beginning of the first compensabledisability save only to afterborn children.
(f) The provisions of K.S.A. 44-570 shall apply in caseof an occupational disease.
History: L. 1953, ch. 246, § 1; L. 1963, ch. 274, § 1; L. 1974,ch. 203, § 52; July 1.