MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Insurance

By: Senator(s) Hewes, Gollott

AN ACT TO AMEND SECTION 71-3-7, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT AN INJURY IS NOT COMPENSABLE IF THE EMPLOYEE WAS UNDER THE INFLUENCE OF A CONTROLLED SUBSTANCE; TO AMEND SECTION 71-3-121, MISSISSIPPI CODE OF 1972, TO ESTABLISH THE PRESUMPTION THAT USE OF ALCOHOL OR A CONTROLLED SUBSTANCE IS THE PROXIMATE CAUSE OF AN INJURY; TO BAR RECOVERY FOR SUCH INJURIES; AND FOR RELATED PURPOSES.  

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI

SECTION 1. Section 71-3-7, Mississippi Code of 1972, is amended as follows:

71-3-7. (1) Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease. An occupational disease shall be deemed to arise out of and in the course of employment when there is evidence that there is a direct causal connection between the work performed and the occupational disease.

(2) When a preexisting physical handicap, disease or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which, but for this paragraph, would be payable shall be reduced by that proportion which the preexisting physical handicap, disease, or lesion contributed to the production of the results following the injury.

(a) Apportionment shall not be applied until the claimant has reached maximum medical recovery.

(b) The employer or carrier does not have the power to determine the date of maximum medical recovery or percentage of apportionment. This must be done by the attorney-referee, subject to review by the commission as the ultimate finder of fact.

(c) After the date the claimant reaches maximum medical recovery, weekly compensation benefits and maximum recovery shall be reduced by that proportion which the preexisting physical handicap, disease, or lesion contributes to the results following injury.

(d) If maximum medical recovery has occurred before the hearing and order of the attorney-referee, credit for excess payments shall be allowed in future payments. The allowances and method of accomplishment of the same shall be determined by the attorney-referee, subject to review by the commission. However, no actual repayment of the excess shall be made to the employer or carrier.

(3) No compensation shall be payable if the injury or death of the employee was * * * proximately caused by:

(a) The employee's intoxication;

(b) The employee being under the influence of a controlled substance; or

(c) The willful intention of the employee to injure or kill himself or another.

(4) Every employer to whom this chapter applies shall be liable for and shall secure the payment to his employees of the compensation payable under its provisions.

If the employer * * * is a subcontractor, the contractor shall be liable for and shall secure the payment of * * * compensation to employees of the subcontractor, unless the subcontractor has secured * * * payment.

SECTION 2. Section 71-3-121, Mississippi Code of 1972, is amended as follows:

71-3-121. If an employer has a reasonable suspicion that an injured employee is under the influence of alcohol or a controlled substance, the employer, under the requirements of Section 71-7-1 et seq., may request the employee asserting injury to undergo drug and alcohol testing. If the employee refuses the test or if the test indicates the presence of alcohol or a controlled substance at the time of injury, it shall be presumed that the proximate cause of the injury was the use of alcohol or a controlled substance.

An employee whose use of alcohol or a controlled substance is the proximate cause of his injury shall not be entitled to recover damages under this chapter or common law.

The results of the employer-administered tests shall be considered admissible evidence solely on the issue of causation in the determination of intoxication of an employee at the time of injury for workers' compensation purposes under Section 71-3-7.

SECTION 3. This act shall take effect and be in force from and after July 1, 1998.