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44-5a01. Occupational diseases; treated as injuries by accident under workmen's compensation act; defined; limitations of liability; aggravations. (a) Where the employer and employee or workman are subject by law or election to the provisions of the workmen's compensation act, the disablement or death of an employee or workman resulting from an occupational disease as defined in this section shall be treated as the happening of an injury by accident, and the employee or workman or, in case of death, his dependents shall be entitled to compensation for such disablement or death resulting from an occupational disease, in accordance with the provisions of the workmen's compensation act as in cases of injuries by accident which are compensable thereunder, except as specifically provided otherwise for occupational diseases. In no circumstances shall an occupational disease be construed to include injuries caused by repetitive trauma as defined in K.S.A. 44-508, and amendments thereto.

(b) "Occupational disease" shall mean only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged. "Nature of the employment" shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee was engaged, there is attached a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general. The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk. Ordinary diseases of life and conditions to which the general public is or may be exposed to outside of the particular employment, and hazards of diseases and conditions attending employment in general, shall not be compensable as occupational diseases, except that compensation shall not be payable for pulmonary emphysema or other types of emphysema unless it is proved, by clear and convincing medical evidence to a reasonable probability, that such 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 an existing emphysema was aggravated and contributed to by the employment with the employer against whom the claim is made, compensation shall be payable for the resulting condition of the workman, but only to the extent such condition was so contributed to and aggravated by the employment.

(c) In no case shall an employer be liable for compensation under this section unless disablement results within one year or death results within three years in case of silicosis, or one year in case of any other occupational disease, after the last injurious exposure to the hazard of such disease in such employment, or, in case of death, unless death follows continuous disability from such disease, commencing within the period above limited, for which compensation has been paid or awarded or timely claim made as provided in the workmen's compensation act, and results within seven years after such last exposure. Where payments have been made on account of any disablement from which death shall thereafter result such payments shall be deducted from the amount of liability provided by law in case of death. The time limit prescribed by this section shall not apply in the case of an employee whose disablement or death is due to occupational exposure to ionizing radiation.

(d) Where an occupational disease is aggravated by any disease or infirmity, not itself compensable, or where disability or death from any other 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 proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death, as such occupational disease, as a causative factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants.

(e) No compensation for death from an occupational disease shall be payable to any person whose relationship to the deceased employee or workman arose subsequent to the beginning of the first compensable disability save only to afterborn children.

(f) The provisions of K.S.A. 44-570, and amendments thereto, shall apply in case of an occupational disease.

History: L. 1953, ch. 246, § 1; L. 1963, ch. 274, § 1; L. 1974, ch. 203, § 52; L. 2011, ch. 55, § 25; May 15.

Law Review and Bar Journal References:

Survey of law of workmen's compensation, Thomas M. Van Cleave, Jr., 12 K.L.R. 359 (1963).

Subsection (c) mentioned in "The Beginning of Life," M. Martin Halley and William F. Harvey, 69 J.K.M.S. 384, 385, 386 (1968).

"Potential Federalization of State Workmen's Compensation Law—The Kansas Response," James C. Wright and James P. Rankin, 15 W.L.J. 244, 262, 263 (1976).

"Settlements & Verdicts," Robin Maxon, XIII J.K.T.L.A. No. 4, 18 (1990).

"Preventing Occupational Exposure to Bloodborne Pathogens: The Final OSHA Standard," Jeffrey A. Chanay, 62 J.K.B.A. No. 8, 26, 32 (1993).

"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XVIII, No. 1, Work. Comp. Review Section, 1, 4 (1994).

"Workers Compensation Review," J.K.T.L.A. Vol. XX, No. 6, Review Section, 37 (1997).

"Workers Compensation Review," J.K.T.L.A. Vol. XXI, No. 3, Review Section, 25 (1998).


1. "Occupation" in proviso of subsection (a) means "particular occupation"; poisoning; welder. Weimer v. Sauder Tank Co., 184 Kan. 422, 423, 425, 426, 427, 428, 337 P.2d 672.

2. Trial court's findings based on substantial evidence conclusive on supreme court. Sirico v. Burch, 190 Kan. 474, 476, 477, 375 P.2d 596.

3. Subsection (a) quoted; computation of weekly rate of compensation upheld. Knight v. Hudiburg-Smith Chevrolet, Olds., Inc., 200 Kan. 205, 208, 435 P.2d 3.

4. Disability based on recurrence of dermatitis after medical aid; claim barred under K.S.A. 44-5a16. Bayless v. List & Clark Construction Co., 201 Kan. 572, 576, 441 P.2d 841.

5. Cited; compensation may be awarded for an occupational disease, but cannot be awarded when the cause of the incapacity is outside disablement. Linville v. Steel Fixture Manufacturing Co., 205 Kan. 447, 450, 469 P.2d 312.

6. Cited in case construing so-called "heart amendment" to K.S.A. 44-501. Nichols v. State Highway Commission, 211 Kan. 919, 922, 508 P.2d 856.

7. Synovitis found occupational disease; authority to cancel award discretionary under K.S.A. 44-5a04. Hill v. General Motors Corporation, 214 Kan. 279, 281, 519 P.2d 608.

8. Scheduled injuries listed in K.S.A. 44-510d not applicable to occupational diseases. Schubert v. Peerless Products, Inc., 223 Kan. 288, 290, 573 P.2d 1009.

9. Tenosynovitis when incurred through repetitive cyclic activities of employee is an accidental injury and not an occupational disease. Martin v. Cudahy Foods Co., 231 Kan. 397, 398, 399, 400, 646 P.2d 468 (1982).

10. Claimant alleged disability caused by occupational disease; court awarded compensation based on accidental injury; employer was not prejudiced when record shows investigation supports either position. Bahr v. Iowa Beef Processors, Inc., 8 Kan. App. 2d 627, 630, 663 P.2d 1144 (1983).

11. Emphysema and chronic bronchitis distinguished; burden of proof for bronchitis is preponderance of evidence. Box v. Cessna Aircraft Co., 236 Kan. 237, 240, 242, 689 P.2d 871 (1984).

12. Brucellosis compensable as either occupational disease or accidental injury; no prejudice on notice where claim different from finding. Baldwin v. Jensen-Salsbery Laboratories, 10 Kan. App. 2d 673, 708 P.2d 556 (1985).

13. Compensability of occupational disease determined like accidental injury; hourly wage, overtime pay and fringe benefit part of wage. Slack v. Thies Development Corp., 11 Kan. App. 2d 204, 206, 207, 718 P.2d 310 (1986).

14. Employee must file claim within one year from last injurious exposure to hazards of occupational disease. Tomlinson v. Owens-Corning Figerglas Corp., 244 Kan. 506, 512, 770 P.2d 833 (1989).

15. When date of accident occurred in workers compensation case involving carpal tunnel syndrome examined. Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 223, 885 P.2d 1261 (1994).

16. Occupational disease causing workers disability does not need specific name or be recognized by majority of experts in field. Armstrong v. City of Wichita, 21 Kan. App. 2d 750, 754, 757, 760, 907 P.2d 923 (1995).

17. No apportionment of cause authorized where disease caused by both occupational and nonoccupational factors. Burton v. Rockwell International, 266 Kan. 1, 2, 5, 967 P.2d 290 (1998).

18. Claimant awarded permanent partial disability benefits even though he can earn comparable wage. Garcia v. Tyson Fresh Meats, Inc., 34 Kan. App. 2d 843, 125 P.3d 580 (2006).

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