dissenting. I respectfully dissent from the majority opinion for several reasons.
First, the legislative histoiy cited by the majority reveals that while in 1993 the legislature further diluted the employer s standard of proof, it also introduced some specific standards and conditions concerning how employers could prove alcohol’s “contribution” to an employee’s injury. It amended the statute to provide a level for conclusive presumption of impairment (.04%) and six specific requirements for admitting a chemical test into evidence to prove that presumptive impairment. L. 1993, ch. 286, sec 24. The admission requirements were added pursuant to a proposal by the Kansas Chamber of Commerce and Industiy, “KCCI would suggest further protecting employees by including the procedures employers are responsible to follow to receive an employee misconduct ruling by the Kansas Employment Security Law.” (Emphasis added.) See Minutes of the Senate Committee on Labor, Industry and Small Business, March 19, 1992, Attachment 5.
As the majority correctly points out, the 1991 legislature had reacted to National Gypsum Co. v. State Employment Security Bd. of Review, 244 Kan. 678, 772 P.2d 786 (1989), by amending the unemployment compensation laws to improve the employer’s ability to prove misconduct connected with the work and thus disqualify a claimant from benefits. However, it also included six narrow — and exclusive — requirements for admitting into evidence the chemical test, e.g., probable cause, which I regard as safeguards to the employee. I therefore agree with the Kansas Chamber of Commerce and Industry that in borrowing the specific requirements for chemical test admissibility (for purposes of denying benefits) from the Unemployment Compensation Act and placing them in the Workers Compensation Act (for purposes of denying
*702benefits), the employees would be further protected. I conclude that the legislature intended this additional protection for workers compensation claimants. For example, though workers compensation is a civil proceeding, K.S.A. 1999 Supp. 44-501(d)(2)(F) requires the higher criminal law standard of “beyond a reasonable doubt” for the foundation evidence to establish that the test results were from the sample taken from the employee. Consequently, even the majority concedes “the legislative record reveals that these requirements were intended to somewhat balance the reduced burden on the employer.”
I do not find, however, a legislative intent to couple the continual express dilution of the employer’s standard of proof — from “injury results solely from intoxication” to mere “alcohol use or consumption contributed to injury” — with another, implied dilution of the six specific, exclusive requirements for admitting test results into evidence against the employee. Yet, the majority does so when it allows probable cause to follow the testing.
Second, if probable cause is not a prerequisite for the testing, then the probable cause requirement is meaningless. In my view, the majority essentially ehminates it altogether; virtually all an employer will now be required to demonstrate is that at a certain time a chemical test was given which yielded a certain result. This result can then be extrapolated backward to show “that at the time of the injuiy that the employee had an alcohol concentration of .04 or more.” K.S.A. 1999 Supp. 44-501(d)(2).
Yet in Evans v. Frakes Trucking, 31 Kan. App. 2d 211, 64 P.3d 440 (2002), as the majority points out, the Court of Appeals upheld the Board’s exclusion of the blood test results because they were pursuant to a blood test that was not prompted by probable cause or even a reasonable suspicion but instead “by nothing more than [the employee’s] status as a commercial driver” who was involved in a fatal accident. 31 Kan. App. 2d at 215-16. Similarly, Foos’ blood test results should be excluded because they were also pursuant to a blood test that was not prompted by probable cause or even a reasonable suspicion, but instead by nothing more than his status as a driver who was involved in a near-fatal accident and then underwent a hospital’s regular medical procedures. I agree *703with the Evans court’s statement: “The statute does not permit mere serendipity to govern admission of a test result.” 31 Kan. App. 2d at 215-16.
Stated another way, the majority dilutes the statutory language requiring “probable cause” and essentially converts it into “random.” In the world of employee drug and alcohol testing —• which the majority concedes was at issue in National Gypsum Co. and which in turn eventually led to the creation of the present statute — these phrases, along with “reasonable suspicion,” have become terms of art. Random testing certainly possesses a profoundly different meaning from the other two. See Eaton v. Iowa Employment Appeal Bd. 602 N.W.2d 553 (Iowa 1999); Twigg v. Hercules Corp., 185 W. Va. 155, 406 S.E.2d 52 (1990).
Reasonable suspicion is considered to be a lesser standard than probable cause. State v. Pritchett, 270 Kan. 125, Syl. ¶ 3, 11 P.3d 1125 (2000); Twigg, 185 W. Va. at 159. In practice, however, both these phrases mean just what their terms suggest; testing after, for example, a supervisor’s observation of an employee exhibiting drug and alcohol symptoms. See, e.g., Skinner v. Railway Labor Executives’ Ass'n, 489 U.S. 602, 609,103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989) (testing after reasonable suspicion based upon employee’s disorientation, bloodshot and watery eyes, or the detection of alcohol on an employee’s breath); Johnson v. Massachusetts Bay Transportation Authority, 418 Mass. 783, 785, 641 N.E.2d 1308 (1994) (probable cause to test employee for drugs where at time test was requested employee’s eyes had a heavy look and he appeared to be under influence of something).
Similarly, employers also use “post-accident testing,” which is just as its name suggests: testing after an accident to determine if alcohol or illegal drugs contributed to it. See, e.g., Skinner, 489 U.S. at 609 (testing regulation titled “Post-Accident Toxicological Testing” which authorized testing following certain accidents).
Random testing is much different. It is a form of “suspicionless” testing. See Vernonia School Dist. 47] v. Acton, 515 U.S. 646, 132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995) (testing of student athletes whose names are blindly drawn from a hat). See Eaton, 602 N.W.2d 553; Twigg, 185 W.Va. 155.
*704Accordingly, when the Board held that the probable cause requirement in K.S.A. 1999 Supp. 44-501(d)(2)(A) “makes sense only if [the probable cause] is present before the testing,” its interpretation was entirely consistent with what “probable cause” has come to mean in the world of employee drug and alcohol testing. This interpretation is supported by the majority’s acknowledgment that when the legislature placed the requirements in the statute it “was aware that workplace drug testing would occur with or without probable cause,” and by the statutory language actually used, “probable cause,” which strongly suggests the legislature deliberately rejected the results of suspicionless testing, i.e., without probable cause.
Moreover, the Board’s interpretation, to which the majority purports to give deference under the doctrine of operative construction, avoids the problems described above. This interpretation is also consistent with the legislative intent, particularly as expressed by the sequence of the requirements in K.S.A. 1999 Supp. 44-501(d)(2). In my view, the sequence is not coincidental, but the logical progression of the events as intended by the legislature —■ from initial discovery of the employee’s possibly impaired state through the test results’ admission into evidence.
(A) probable cause to believe employee was impaired by drug or alcohol;
(B) sample collected;
(C) sample collecting and labeling performed by licensed health care professional;
(D) test performed by an approved laboratory;
(E) test results confirmed, i.e., a subsequent action, by independent test;
(F) test results established by foundation evidence as coming from employee’s sample.
As the majority points out regarding the Court of Appeals holding, since the Workers Compensation Act contains no “normal course of medical treatment” exception to the admissibility of a blood alcohol test in K.S.A. 1999 Supp. 44-501(d)(2), any such exception to the legislature’s scheme must come from the legislature, not the court. Likewise, eliminating, or at least diluting, the *705probable cause requirement from the statute is a job for the legislature, not this court. See Injured Workers of Kansas v. Franklin, 262 Kan. 840, 855, 942 P.2d 591 (1997); Jones v. Continental Can Co., 260 Kan. 547, 557, 920 P.2d 939 (1996) (our decisions are replete that the Workers Compensation Act undertook to cover every phase of the right to compensation and of the procedure for obtaining it, which is substantial, complete, and exclusive, and we must look to the procedure of the act for the methods of its administration).
Finally, if the statutory requirements are not met for admitting the results of the chemical test into evidence, an employer is not without recourse. It still has the right to prove impairment and contribution through reliable admissions by the employee, testimony from eyewitnesses, expert medical testimony, and other evidence, just as employers have done since 1911 when the Workers Compensation Act and the intoxication exception/impairment defense first became law. Indeed, Terminix attempted this alternative means of meeting its burden of proof, but failed.
The Board found that Terminix failed to prove, by evidence other than the inadmissible blood test results, that Foos was impaired and that his impairment contributed to his injury. It specifically found that Foos’ statements of alcohol and cocaine use were insufficient because they were of questionable reliability due to his extreme trauma and the possibility they were given under the influence of pain medications, including morphine at Geary Community Hospital. It also found that the testimony of Terminix’s experts opining Foos’ alcohol impairment at the time of the accident was partly based on the inadmissible test results and therefore itself inadmissible, suggesting the testimony would have been admissible and persuasive had the questions to the physicians been posed differently. It also found no evidence was introduced to show that any impairment actually contributed to Foos’ accident and injury.
For these reasons, I dissent.
Allegrucci, J., joins in the foregoing dissent.