Kansas: To Bar Recovery, Drug Impairment Must Be Contemporaneous With Onset of Injury or Condition

A Kansas appellate court held that the state’s statutory provision barring workers’ compensation benefits to “impaired” workers, K.S.A. 2010 Supp. 44-501(d)(2), requires the employer to prove the worker was impaired at the time of the injury and also that the impairment contributed to the worker's injury or disability; it is insufficient to show that a worker may have used drugs at some point in the past.  The employer contended that the worker, who suffered from adult-onset asthma, was not entitled to benefits because she was a smoker and had smoked crack cocaine in the past.  Indeed, the worker admitted she had smoked crack cocaine twice a month for a three-year period and a pulmonologist apportioned 50 percent of the worker's functional impairment to smoking and "lifestyle" and the remaining 50 percent to grain dust exposure.  The court acknowledged that the first sentence of the disqualification statute stated that the employer was not liable for benefits where the worker's use or consumption of alcohol, drugs, etc., contributed to the injury, disability, or death of the worker.  But the employer could not stretch the meaning of the term “contributed” to fit the worker’s circumstances.  She credibly testified she stopped smoking crack some four years before she developed her lung condition.  The plain meaning of the statute required, however, that to meet the “impairment” exception, the employer must show she had been impaired at the time of the injury—here the onset of her lung condition.  There was no such proof.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Young v. Great Bend Cooperative Ass’n, 2014 Kan. App. LEXIS 22 (Apr. 18, 2014) [2014 Kan. App. LEXIS 22 (Apr. 18, 2014)]

See generally Larson’s Workers’ Compensation Law, § 36.03 [36.03]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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