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§ 13.01 Generally

• June 1999 (Ph) The issue dealing with respondent's total gross salary does constitute a jurisdictional defense under K.S.A. 1998 Supp. 44-534a(a)(2), as it goes directly to the compensability of the claimant's injury and the claim. Wolf v. Calendar Club and Insurance Company Unknown, Docket No. 239,893.

• April 1999. (Ph) Misrepresentation of physical condition is not a defense to a claim for workers compensation benefits. Hamilton v. Arby's Roast Beef Restaurant and National Union Fire Insurance Company, Docket No. 241,239.

• See also Hamilton v. Arby's Roast Beef Restaurant and National Union Fire Insurance Company, Docket No. 241,239 (July 1999), wherein respondent produced additional evidence to support its claim of misrepresentation and also argued the Court of Appeals in Ramirez v. Excel Corporation, Docket No. 80,670, Kan. App., rev. denied Kan. (1999), suggests that a misrepresentation made at the time of hiring will bar a workers compensation claim by an employee if there is a causal connection between the misrepresentation and the injury. However, the Board continued to hold that a misrepresentation made at the time of hiring does not bar a workers compensation claim even if the injury is causally related to that misrepresentation. The claimant is entitled to benefits if he suffered accidental injury arising out of and in the course of employment and otherwise meets the criteria of the Act. The Act does not make misrepresentation on an application for employment a defense. Further, in the Board's view, Ramirez does not hold otherwise. Id.



• April 1999. (Ph) Allegation that claimant did not provide respondent with notice and proper demand for benefits is not a certain defense as contemplated by K.S.A. 1998 Supp. 44-534a. De Paz v. Monfort, Inc., Docket No. 234,745.

• August 1998. (Ph) Claimant's termination of employment for attendance problems does not constitute a "certain defense" as interpreted by the Board and set forth in K.S.A. 1997 Supp. 44-534a. Therefore, the Board does not have jurisdiction to consider this issue on appeal from a preliminary hearing order. Browne v. Overnite Transportation Company, Docket No. 228,665.



• June 1997. (Ph) The Appeals Board has held in the past and continues to hold that the phrase "certain defenses" is analogous to some defenses as opposed to any defenses or all defenses. The word "certain" as used in K.S.A. 44-534a is intended to limit the type and character of defenses which can be said to give rise to Appeals Board jurisdiction. Only those defenses which go to the compensability of the claim, such as willful failure to use a guard or the intoxication defense, are the "certain defenses" contemplated by K.S.A. 44-534a. Parsons v. Attica Long Term Care Facility and Cigna Insurance Companies, Docket No. 196,412.



• See Also, Rembold v. R. Vickers Trucking, Inc. and Ulico Casualty Company, Docket No. 223,206 (September 1997); Stockton v. American Insulated Wire and Reliance National Indemnity Company, Docket No. 225,929 (January 1998); Schlabach v. Contemporary Industries Southern and USF & G, Docket No. 198,828 (January 1999).



• January 1997. (Ph) The Appeals Board has discussed the definition of "certain defenses" in prior opinions. The legislative guidance in K.S.A. 1996 Supp. 44-534a is practically nonexistent regarding what "certain defenses" was intended to mean. The phrase "certain defenses" is analogous to some defenses as opposed to any and all defenses which might be raised. The Appeals Board, in considering the definition of "certain defenses," noted the other issues raised by K.S.A. 1996 Supp. 44-534a which, if disputed, were considered jurisdictional. The common denominator in all these issues is that it goes to the compensability of the claim in all instances. For a workers compensation claim to be compensable, each of the issues in K.S.A. 1996 Supp. 44-534a, if disputed, must be proven by claimant before he/she could recover benefits under the Workers Compensation Act. The Appeals Board has previously held, and reaffirms the position, that the "certain defenses" contemplated by K.S.A. 1996 Supp. 44-534a(2) are defenses which go to the compensability of the claim. Examples would be allegations of willful failure to use a guard, or a defense of intoxication, or use of illegal drugs under K.S.A. 1996 Supp. 44-501. Ivey v. Buckley Industries, Inc and Zurich Insurance Company, Docket No. 217,041.

• See Also, Ghramm v. Emporia Construction & Remodeling, Docket No. 199,776, (January, 1996).



• December 1996. (Ph) Issues pertaining to insurance coverage are not certain defenses as contemplated by K.S.A. 44-534a. O'hara v. O'hara Painting Co, Inc and Insurance Company of North America and Workers Compensation Fund, Docket No. 214,168.

13.02 Alcohol or Drug Related Conduct

• December 1999. (Award) Board defined probable cause for taking drug test to mean sufficient information to lead a reasonable person to conclude that there was a substantial likelihood that drugs were used by or had impaired the injured person. Board reviewed rules for admissibility of drug test results and found there was not probable cause for the drug test. Board also found results inadmissible because the sample was not shown to be taken by a licensed health care professional. Ogden v. Evcon Industries, Docket No. 230,945.

• See Also, Bennie L. Kent vs. Summit Drilling and Legion Insurance, Docket No. 250,939 (June 2000).

• October 1999. (Award) Before drug screen results can be admitted in evidence, the employer must prove: (1) it had probable cause to believe the employee had used or was impaired by a drug; (2) the test sample was collected contemporaneously with the events establishing probable cause; (3) a licensed health care professional collected and labeled the test sample; (4) the test was performed by an approved or licensed lab; (5) the test was confirmed by a reliable analytical method; and (6) the test results were beyond a reasonable doubt taken from the employee. Bohannon v. Dynamic Drywall, Docket No. 230,500.



• ----- Results of drug test are not admissible in evidence unless there was probable cause to believe the employee had used or was impaired by drugs. Probable cause exists when there is sufficient information to form a reasonable belief that an employee had either used drugs or that the employee was impaired from drugs. Id.

• May 1999. (Ph) The 1993 modifications to K.S.A. 44-501 indicates a definite legislative intent to reduce the burden on respondent's claiming alcohol contribution to an accident. In addition, the Legislature created a conclusive presumption of impairment with alcohol concentrations of .04 or more. Further, the statute does not consider whether alcohol caused the accident, but whether alcohol contributed to the accident, nor does the statute discuss the employer's practices of allowing alcohol on the job. Thus, in the case at hand, where it was determined that claimant had a blood alcohol concentration of .280 at the time he fell at work, respondent is not found liable for workers compensation benefits under K.S.A. 1996 Supp. 44-501(d)(2). This is so even though claimant argued that respondent knew and allowed consumption of alcohol on the job. Hurrelbrink v. Custom Laid Concrete and California Indemnity Insurance, Docket No. 239,964.



• April 1999. (Ph) Claimant was injured in an automobile accident which killed a passenger in the truck claimant was driving. Respondent argued the accident occurred as a result of claimant's cocaine use and obtained authorization from claimant, within 27 hours of the accident, to test claimant for cocaine. K.S.A. 1996 Supp. 44-501(d)(2) sets out specific criteria which must be followed before chemical tests can be admitted into evidence. Respondent provided several affidavits of expert witnesses dealing with the method by which the urine and blood test samples were collected, the labeling of the test samples, and the way the tests were performed by the laboratory which was approved by the United States Department of Health and Human Services. The use of the gas chromatography/mass spectroscopy, and affidavits regarding the chain of custody used, ensure that the test results were from claimant's sample. The statute further requires that probable cause to believe the employee had used, was in possession of or was impaired by drugs or alcohol, be established. In this instance, respondent provided affidavits from eyewitnesses at the scene, and a police report indicating claimant was driving erratically and at an excessive rate of speed immediately prior to the accident. The collecting procedures specified in the statute were followed, as well as the procedures required to properly identify the sample as being from claimant. Expert testimony provided that the levels of cocaine (benzoyl ecgonine) substantially exceeded the NIDA positive test levels. Expert testimony further established that claimant was under the influence of cocaine at the time of the accident, and that the use of cocaine by claimant was a major factor resulting in this accident. The Board, therefore, affirmed the ALJ's denial of benefits based upon K.S.A. 1996 Supp. 44-501(d)(2), which states the employer is not liable for workers compensation benefits where the injury results from the employee's use of drugs or alcohol. Brooks v. Midwest Express Corporation and Reliance National Insurance Company, Docket No. 237,755.

• March 1998. (Award) Claimant worked for respondent doing construction and remodeling jobs. In order to complete one job, claimant needed some flashing. He drove the company truck to his brother-in-law's home to obtain this flashing. The brother-in-law had a shop or warehouse where such materials where kept. However, before getting these materials, claimant and his brother-in-law went to a bar to get something to eat. On the way back to the brother-in-law's shop, claimant was involved in an automobile accident. The records from the hospital where claimant was taken as well as medical testimony show claimant to have bene significantly impaired by the effects of alcohol at the time of the accident. Therefore, under K.S.A. 1990 Supp. 44-501(d), claimant's injury was not compensable due to his intoxication at the time of the accident. Brownlee v. All Weather Products Co., Inc and Continental Western Insurance Co., Docket No. 152,935.



• August 1997. (Ph) Where the record lacks expert medical opinion relating the level of cannabinoids found in claimant's urine to the impairment or ability to function, and where the record lacks any testimony concerning claimant's condition before the accident, the Appeals Board determines the record is inadequate to show claimant's slip and fall was in fact related to his use of marijuana and that respondent has failed to show claimant was impaired at the time of the accident and that any impairment contributed to the accident. Thill v. Monfort, Docket No. 214,119.

• July 1997. (Ph) Respondent has no liability per K.S.A. 44-501(d)(2) where claimant, who put his right fist through a glass motel lobby door, was deemed to be intoxicated at the time of the injury. Shirland v. Elite Professionals, Inc., Docket No. 217,798.

13.03 Failure to Use Safety Devices

• August 1998. (Award) Respondent argues that claimant's injury resulted because he violated a safety rule when he jumped down from a platform without using a ladder and that such a violation constituted a willful failure to use guard or protection. The Board finds that intentional failure to use guard or protection is not necessarily "willful." The burden placed upon the employer when trying to prove "willful" conduct performed by the employee is substantial. "Willful" has been found to mean headstrong disposition, intractableness, acting without yielding to reason or being obstinate or stubborn. See Also Bersch v. Morris & Co., 106 Kan. 800, 189 Pac. 934 (1920); Carter v. Koch Engineering, 12 Kan. App.2d 74, 735 P.2d 247, rev. denied 241 Kan. 838 (1987). While claimant's action of jumping from the platform was spontaneous and thoughtless, it was not done with a headstrong or stubborn disposition. Claimant's actions were found to not rise to a willful failure to use a guard or protection and, therefore, K.S.A. 44-501(d) did not prevent him from receiving workers compensation benefits for his accidental injury. Spiker v. Pratt & Lambert United, Inc and Wausau Insurance Companies, Docket No. 213,763.

• January 1998. (Ph) The Appeals Board agrees with the Administrative Law Judge's decision that since respondent did not pay for 100 percent of the cost of the steel boots, then it did not comply with the language set forth in K.S.A. 1996 Supp. 44-501 which obligated that the guard or protection be voluntarily furnished to the employee. Stockton v. American Insulated Wire and Reliance National Indemnity Company, Docket No. 225,929.



• ----- Claimant's failure to wear the steel toed boots did not result in a "willful" failure to use guard or protection, where the evidence is uncontradicted that claimant was not wearing the boots on the day in question because they were too hot and claimant wanted to exchange them for another pair. Additionally, respondent did not rigidly enforce its safety procedure of requiring all employees and supervisor wear steel-toed boots. See K.S.A. 1996 Supp. 44-501(d)(1). Id.



• January 1998. (Ph) Claimant, a foreman for respondent, was injured when the chemicals he was working with splattered on his face and in his eyes. Respondent argued benefits should be denied per K.S.A. 1996 Supp. 44-501(d) since claimant admitted he was not wearing the protective face shield, chemical apron or chemical mask as was required by respondent's safety policy. Prior to the accident, claimant was performing his duties as a forklift operator when he was called by a chemical operator to assist in obtaining chemicals from a barrel. The Board, however, found the spontaneous request for assistance by the co-worker, with a likewise spontaneous response by the claimant to help, did not amount to a "willful" failure to use guard or a safety device as found in the statute. The Administrative Law Judge's Order denying compensation is reversed. Garcia v. National Beef Packing Company and Wausau Underwriters, Docket No. 222,560.

• -----K.A.R. 51-20-1 held not to apply where evidence is not convincing that respondent has disregarded the rules of safety. Id.

13.04 Intentional Self Injury

13.05 Violations of Orders & Rules

13.06 Willful Misconduct by Employee

• August 1998. (Award) The burden placed upon the employer when trying to prove "willful" conduct performed by the employee is substantial. "Wilful" has been found to mean headstrong disposition, intractableness, acting without yielding to reason or being obstinate or stubborn. See Also Bersch v. Morris & Co., 106 Kan. 800, 189 Pac. 934 (1920); Carter v. Koch Engineering, 12 Kan. App.2d 74, 735 P.2d 247, rev. denied 241 Kan. 838 (1987). Spiker v. Pratt & Lambert United, Inc and Wausau Insurance Companies, Docket No. 213,763.