60-4901. Silica and asbestos claims act; definitions.
60-4901
60-4901. Silica and asbestos claims act;definitions.As used in this act, unless the context otherwise requires,the following words andphrases shall have the meanings ascribed to them in this section:
(a) "AMA guides to the evaluation of permanent impairment" means the Americanmedicalassociation's guides to the evaluation of permanent impairment as in effect onMarch 1, 2006.
(b) "Asbestos" means all minerals defined as asbestos in 29 C.F.R. 1910, asin effect on March 1, 2006.
(c) "Asbestos claim" means any claim for damages, losses, indemnification,contribution or other relief arising out of, based on, or in anyway related toinhalation of, exposure to, ingestion of, or contact with asbestos. Asbestosclaim also includes a claim made by or on behalf of any personwho has been exposed to asbestos, or any representative, spouse, parent, childor other relative of that person, for injury, including mental or emotionalinjury, death or loss to person, risk of disease or other injury, costs ofmedical monitoring or surveillance, or any other effects on the person's healththat are caused by the person's exposure to asbestos.
(d) "Asbestosis" means bilateral diffuse interstitial fibrosis of the lungscaused by inhalation of asbestos.
(e) "Board-certified" means the physician is currently certified by one ofthe medical specialty boards approved by either the American board of medicalspecialties or the American osteopathic board of osteopathic specialties.
(f) "Board-certified gastroenterologist" means a physician who isboard-certified in the specialty of internal medicine and in the subspecialtyof gastroenterology.
(g) "Board-certified internist" means a physician who is board-certified inthe specialty of internal medicine.
(h) "Board-certified occupational medicine specialist" means a physician whois board-certified in the specialty of preventive medicine and thesubspecialty ofoccupationalmedicine.
(i) "Board-certified oncologist" means a physician who is board-certifiedin the specialty of internal medicine and in the subspecialty of medicaloncology.
(j) "Board-certified pathologist" means a physician who is board-certified inthe specialty of pathology.
(k) "Board-certified pulmonary specialist" means a physician who isboard-certified in the specialty of internal medicine and in the subspecialtyofpulmonary medicine.
(l) "Board-certified radiologist" means a physician who is board-certifiedin the specialty of radiology.
(m) "Board-certified rheumatologist" means a physician who is board-certifiedin the specialty of internal medicine and in the subspecialty of rheumatorymedicine.
(n) "Civil action" means all suits or claims of a civil nature in a state orfederal court, whethercognizable as cases at law or in equity or admiralty. The term "civil action"does notinclude any civilaction:
(1) Relating to workers' compensation;
(2) alleging any claim or demand made against a trust established pursuantto subsection (g) of 11 U.S.C. section 524(g); or
(3) alleging any claim or demand made against a trust established pursuantto a plan ofreorganization confirmed under Chapter 11 of the United States Bankruptcy Code.
(o) "Competent medical authority" means a physician who is medicallycompetent to provide a diagnosis for purposesof constituting prima facie evidence of an exposed person's physical impairmentthat meets therequirements specified inK.S.A. 2009 Supp.60-4902 or 60-4903, and amendmentsthereto, and whomeets the followingrequirements:
(1) The physician is a board-certified internist, pulmonary specialist,rheumatologist, oncologist,pathologist, gastroenterologist, radiologist or occupational medicinespecialist.
(2) The physician has or had adoctor-patient relationship with the exposed person, or inthe caseof a board-certified pathologist, has examined tissue samples or pathologicalslides of the exposed person at the request of the treating physician, or inthe case of a board-certified radiologist, has reviewed x-rays of the exposedperson at the request of the treating physician.
(3) As the basis for the diagnosis, the physician has not relied, in wholeor in part, on thereport or opinion of any doctor, clinic, laboratory or testing company thatperformed anexamination, test or screening of the claimant's medical condition:
(A) Has been found in violation of any law, regulation, licensing requirementormedical code ofpractice of the state in which that examination, test or screening wasconducted; or
(B) that required the claimant to agree to retain the legal servicesof the law firmsponsoring the examination, test or screening.
(4) The physician spends not more than 50% of the physician's professionalpractice timein providing consulting or expert services in connection with actual orpotential civilactions, and the physician's medical group, professional corporation, clinicor otheraffiliated group earns not more than 20% of its revenues from providing thoseservices.
(p) "Employee" means an individual who performs labor or providesconstructionservices pursuant to a construction contract as defined in K.S.A. 16-121, andamendments thereto.
(q) "Established safety standard" means, that for the years after 1971, theconcentration of silica or mixed dust in the breathing zone of the workers doesnot exceed the maximum allowable exposure limits for the eight-hour-timeweighted average airborne concentration as promulgated by the occupationalsafety and health administration (OSHA) in effect at the time of the allegedexposure.
(r) "Exposed person" means a person whose exposure to:
(1) Silica is the basis for a silica claim; or
(2) asbestos is the basis for an asbestos claim.
(s) "FEV-1" means forced expiratory volume in the first second, which is themaximal volume of air expelled in one second during performance of simplespirometric tests.
(t) "FVC" means forced vital capacity, which is the maximal volume of airexpired with maximum effort from a position of full inspiration.
(u) "ILO scale" means the system for the classification of chest x-rays setforth in theinternational labour office's guidelines for the use of ILO internationalclassification ofradiographs of pneumoconioses as in effect on March 1, 2006.
(v) "Lung cancer" means a malignant tumor in which the primary site of originof the cancer isinside the lungs and does not include mesothelioma.
(w) "Mesothelioma" means a malignant tumor with a primary site of origin inthe pleura, the peritoneum, or pericardium, which has been diagnosed by aboard-certified pathologist using standardized and accepted criteria ofmicroscopic morphology or appropriate staining techniques.
(x) "Nonmalignant condition" means a condition, other than a diagnosedcancer, that is caused ormay be caused by either of the following, whichever is applicable:
(1) Silica; or
(2) asbestos.
(y) "Pathologicalevidence of asbestosis" means a statementby a board-certified pathologist that more than one representative section oflung tissue uninvolved with any other disease process demonstrates a pattern ofperibronchiolar or parenchymal scarring in the presence of characteristicasbestos bodies and that there is no other more likely explanation for thepresence of the fibrosis.
(z) "Pathological evidence of silicosis" means a statement by aboard-certified pathologist thatmore than one representative section of lung tissue uninvolved with any otherdisease processdemonstrates a pattern of round silica nodules and birefringent crystals orother demonstration ofcrystal structures consistent with silica in the lung parenchyma(well-organized concentric whorlsof collagen surrounded by inflammatory cells) and that there is no other morelikely explanationfor the presence of the fibrosis.
(aa) "Predicted lower limit of normal" means the calculated standardconvention lying at the fifth percentile, below the upper 95% of the referencepopulation, based on factors including, but not limited to, age, height andgender, according to the recommendations of the American Thoracic Society asreferenced in the AMA's guides to the evaluation of permanent impairment.
(bb) "Premises owner" means a person who owns, in whole or in part, leases,rents,maintains or controls privately owned any land or body of water, or anybuildings andstructures on those lands or bodies of water, and all privately owned andstate-ownedlands or bodies of water leased to a private person, firm or organization,including anybuildings and structures on those lands, ways or waters.
(cc) "Radiological evidence of asbestosis" means:
(1) An ILO quality one or two chest x-ray, read by a competent medicalauthority who regularly reviews x-rays in the ordinary course of practice, thatshows small, irregular opacities of s, t or u, graded at least 1/1 on the ILOscale; or
(2) a computed tomography scan or high-resolution computed tomography scanread by a competent medical authority showing evidence of asbestosis.
(dd) "Radiological evidence of diffuse pleural thickening" means:
(1) An ILO quality one or two chest x-ray, read by a competent medicalauthority who regularly reviews x-rays in the ordinary course of practice, thatshows bilateral pleural thickening of at least B2 on the ILO scale and bluntingof at least one costophrenic angle; or
(2) a computed tomography scan or high-resolution computed tomography scanread by a competent medical authority showing evidence of diffuse pleuralthickening.
(ee) "Radiological evidence of silicosis" means:
(1) An ILO quality one or two chest x-ray, read by a competent medicalauthority who regularly reviews x-rays in the ordinary course of practice, thatshows bilateral small rounded opacities (p, q or r) in the upper lung fields ofat least 1/1 on the ILO scale; or
(2) a computed tomography scan or high-resolution computed tomography scanread by a competent medical authority showing evidence of silicosis.
(ff) "Regular basis" means more than an isolated or sporadic basis.
(gg) "Silica" means a respirable crystalline form of silicon dioxide,including, but notlimited to, alpha quartz, cristobalite and trydmite. The term "silica" alsoincludes a mixture of dustscomposed of silica and one or more other fibrogenic dusts capable of inducingpulmonary fibrosis if inhaled in sufficient quantity.
(hh) "Silica claim" means any claim for damages, losses, indemnification,contributionor other relief arising out of, based on, or in any way related to inhalationof, exposure to,or contact with silica. Silica claim also includes a claim made by or onbehalf of anyperson who has been exposed to silica, or any representative, spouse, parent,child orother relative of that person, for injury, including mental or emotionalinjury, death orloss to person, risk of disease or other injury, costs of medical monitoring orsurveillance,or any other effects on the person's health that are caused by the person'sexposure tosilica.
(ii) "Silicosis" means an interstitial lung disease caused by the pulmonaryresponse toinhaled silica.
(jj) "Substantial contributing factor" means:
(1) Exposure to silica or asbestos is the proximate cause of thephysical impairmentalleged in the silica or asbestos claim; and
(2) a competent medical authority has determined with a reasonable degreeof medical probability that theexposure to silica or asbestos is the proximate cause of the physicalimpairment.
(kk) "Substantial occupational exposure to silica" means employmentin an industry and an occupation in which the exposedperson did any of thefollowing for a substantial portion of a normal work year for such occupation:
(1) Handled silica;
(2) fabricated silica-containing products so that the person was exposed tosilica in thefabrication process;
(3) altered, repaired or otherwise worked with a silica-containing productin a mannerthat exposed the person on a regular basis to silica;
(4) worked in close proximity to other workers engaged in any of theactivities describedin paragraphs (1), (2) or (3) of this subsection in a manner that exposed theperson on aregular basis to silica.
(ll) "Total lung capacity" means the volume of gas contained in the lungs atthe end of a maximal inspiration.
(mm) "Veterans' benefit program" means any program for benefits in connectionwith militaryservice administered by the veterans' administration under title 38 of theUnited States Code as ineffect on the effective date of this act.
(nn) "Workers' compensation law" means a law respecting a programadministered by a state or the United States to provide benefits, funded by aresponsible employer or its insurance carrier, for occupational diseases orinjuries or for disability or death caused by occupational diseases orinjuries.The term includes the longshore and harbor workers' compensation act, 33 U.S.C.901-944, 948-950, and chapter 81 of Title 5, U.S.C., the federal employeescompensationact, but does not include the act of April 22, 1908, 45 U.S.C. 51 et seq.,popularly referred to as the "Federal Employers' Liability Act."
History: L. 2006, ch. 196, § 1; July 1.