Ky. Supreme Court to Ky. Legislature: “Eat our Coal Dust”

Vision Mining, Inc. v. Gardner, 2010-SC-000311-WC (Ky. 2011):  KRS 342.316 subjects coal workers’ pneumoconiosis claimants to a more stringent statutory treatment than all other pneumoconiosis claimants and thus violates the equal protection guarantees of the Federal and Kentucky Constitutions.

In 2002, the Kentucky Legislature enacted amendments to KRS Chapter 342, which required coal workers’ pneumoconiosis (CWP) claimants to undergo additional administrative procedures before being able to proceed with their claims.  The procedures consisted of consensus readings by a panel of readers, resulting in many claims being denied without further adjudication.  The law was challenged in Vision Mining v. Gardner and approximately 200 claims were placed in abeyance pending the outcome of the Vision Mining appeal.

The Supreme Court determined that there is no real distinction between the various forms of pneumoconiosis, but Chapter 342 of the Kentucky Revised Statutes treats coal workers differently than those from other occupations with respect to workers’ compensation. Specifically, the Court noted, these varying claimants endure different procedures and presumptions and enjoy distinct benefits.

For CWP claimants, KRS 342.316(3) requires a different procedure to establish its existence than it requires for all other types of pneumoconiosis.  The CWP procedure consists of a two-step consensus procedure which can only be rebutted by a clear and convincing evidence standard, a standard of proof greater than a preponderance of the evidence but less than reasonable doubt, causing the Court to conclude that “defeating a consensus panel assessment was virtually impossible.”

In contrast, KRS 342.315(2) which provides for appointment of a university evaluator to address all other occupational pneumoconiosis and diseases requires an opposing party merely establish “a reasonable basis” for rebutting a university evaluator’s clinical findings and opinions, a standard the Court noted as much lower than “clear and convincing.”

Thus, the Court observed, when adjudicating CWP claims, a fact-finder is restricted in weighing conflicting evidence, but when adjudicating all other occupational pneumoconiosis claims, the fact-finder encounters no such restrictions.

As such, the Court held that the language of KRS 342.316, along with the relevant subsections of KRS 342.315 and KRS 342.794, subjects coal workers’ pneumoconiosis claimants to a more stringent statutory treatment than all other pneumoconiosis claimants and therefore violates  the equal protection guarantees of the Federal and Kentucky Constitutions.

COMMENT:  This is  the most important workers’ compensation decision to come out of the Kentucky Supreme Court in 2011, and perhaps the most important workers’ compensation decision in years.  With Vision Mining, Kentucky’s highest court finally grappled with a long-time controversial statute, and this decision will no doubt open a flood gate of CWP claims being reconsidered and more claims being filed once the Kentucky legislature has acted.

Click here to read the complete decision.

Click here to read Lexington Herald-Leader Editorial

The new Ky. mileage reimbursement rate for January 2012 through March 2012 is 45¢ per mile

The new mileage reimbursement rate beginning January 1 through March 31, 2012 is 45¢ per mile.

The Controller’s website has been updated to reflect this change.  Refer to the Controller’s web page for all related travel information at http://http://finance.ky.gov/internal/travel/

If you would like to be added to the Controller’s Travel Information Distribution list, please contact me at patricia.boler@ky.gov

Nurture versus nature and the indpendent contractor: Gogel v. Hancock

Gogle v. Hancock, NO. 2011-CA-001143-WC (Ky. App. 2011) (Designated to be published):  Public policy does not mandate that a specific “nature of the work” test be applied in determining whether a worker is an employee versus an independent contractor, as long as the factors in Ratliff v. Redmon and its progeny are followed.

In Gogel v. Hancock, a Court of Appeals decision designated to be published, the Court of Appeals addressed an ALJ’s finding that a claimant was an independent contractor, not an employee, and therefore was not covered under KRS Chapter 342.

Gogel was an exercise rider for Hancock and was injured when a horse he was exercising rolled on to her side, fracturing Gogel’s left medial femoral condyle.

The ALJ And the Kentucky Workers’ Compensation Board (Board) found that Gogle’s injury was not compensable as he did not qualify as an employee under the Act and relevant case law.  Specifically, the ALJ found:

Hancock, the UEF and Plaintiff all agree that the services provided by Plaintiff to Hancock were part of Hancock’s regular business and Hancock provided most of the instrumentalities and tools for the work.  However, I am convinced that the extent of control Hancock exercised over the details of Plaintiff’s services were minimal, Plaintiff admittedly was engaged in (and was licensed in) a distinct occupation or business (as he claimed on his income tax returns) and possessed and displayed significant professional skills, of which he was obviously (and deservedly) proud.  I am further convinced that the exercise riding services provided by Plaintiff to Hancock were for services provided by a specialist without significant supervision and work that required a significant degree of skill.  Plaintiff’s pay was based on the number of horses he exercised, in other words, by the job performed.  Finally, I am convinced, based on Plaintiff’s freedom to go to and leave work when and as he pleased and his method of reporting his income as a business indicates his intent to be an independent contractor, not an employee.

Gogel appealed to the Board, arguing that the ALJ’s focus on the amount of control Hancock exercised over the details of his work activity was misplaced.  Gogel argued the ALJ should have focused on the nature of the work performed, which would have led to a finding of an employment relationship.

The Court of Appeals affirmed the ALJ and the WCB based on a determination the evidence did not compel a contrary result (although it did acknowledge there was evidence which would have supported a finding of an employment relationship), but it nonetheless paused to address Gogel’s argument that public policy mandated he be covered under KRS Chapter 342 through a “nature of the work” test versus the “control test.”  The Court dismissed this argument by addressing precedent set forth in Ratliff v. Redmon, 396 S.W.2d 320, 324-25 (Ky. 1965) and Chambers v. Wooten’s IGA Foodliner, 436 S.W.2d 265, 266 (Ky. 1969) concluding the holdings in those decisions were not at odds with the nature of the work performed test proposed by Gogel.

COMMENT:  The independent contractor issue arises frequently from alleged work injuries arising in the horse industry.  The plight of the Kentucky horse industry worker was studied in detail in a previous OUCH! post, Kentucky’s Thoroughbred Industry and Workers’ Compensation: “Out of the Money”

Kentucky Workers’ Compensation Nominating Commission makes nine ALJ recommendations

 UPDATE:  Governor appoints Jones, Weatherby and Rudloff to fill vacant ALJ positions. 

The Kentucky Workers’ Compensation Nominating Commission (WCNC) has made nine recommendations to fill three vacant Administrative Law Judge positions with the Department of Workers’ Claims, all for terms to end December 31, 2015.

To fill the ALJ position presently held by James L. Kerr, whose term expires December 31, 2011, the WCNC recommended Allison Emerson Jones, Tyra I. Redus and Peter J. Naake.  Jones is a Louisville attorney formerly with Stites & Harbison.  Redus is presently employed by the Kentucky Transportation Cabinet’s Office of Civil Rights .  Naake is a Louisville attorney with the plaintiff’s workers’ compensation firm of Priddy, Cutler, Miller & Meade, PLLC.

The WCNC recommended Jonathan R. Weatherby,  Samuel J. Bach and John W. Mann to fill the ALJ position presently held by Lawrence F. Smith, recently appointed to the Kentucky Workers’ Compensation Board.  Weatherby is assistant general counsel with Thomas & King of Lexington, Kentucky.  Bach is a Henderson attorney with the firm of Bach Hamilton & Armstrong LLP.   Mann is a former DWC arbitrator and current Chief Specialist with the DWC’s Division of Ombudsman & Workers’ Compensation Specialists Services.

To fill the ALJ position presently held by Howard E. Frasier, Jr., whose term expires December 31, 2011, the WCNC recommended William J. Rudloff, Gregory N. Schabell and Laura R. Beasley. Rudloff is a plaintiff’s attorney in Bowling Green Kentucky.   Schabell is a Northern Kentucky plaintiff’s attorney.  Beasley is an attorney with U’sellis & Kitchen, a workers’ compensation defense firm in Louisville, Kentucky.

ALJ Lawrence Smith appointed to Ky. Workers’ Compensation Board

Per exeuctive order to take effect January 5, 2012, Governor Beshear has appointed ALJ Lawrence F. Smith to the Ky. Workers’ Compensation Board, for a term to expire January 5, 2016. Smith replaces Board Member W. Bruce Cowden whose term soon expires.

LexisNexis once again selects OUCH! as a top blog

LexisNexis has for the fourth year in a row ranked Roland Legal’s blog OUCH! as one of its top 25 workers’ compensation blogs. In selecting OUCH! for this honor, LexisNexis noted, “Already a three-time winner, OUCH! continues to be a font of information related to workers’ compensation law and practice within the great state of Kentucky. An excellent mixture of case analysis and workers’ compensation news, the Blog provides readers with a helpful narrative on a wide array of workers’ compensation topics.” Roland Legal is a virtual workers’ compensation law firm serving clients throughout the state. See rolandlegal.com.

Kentucky physician suspended by KBML following overdose-related death of former patient

The Kentucky Board of Medical Licensure (KBML) has issued an emergency order of suspension against Jessamine County physician, Paul V. Brooks, a physician who frequently testifies in Kentucky workers’ compensation claims, following an investigation spurred by an overdose related death of a former patient, identified in the order as Patient A.

 The matter came before the KBML following a grievance filed by Patient A’s mother, who alleged Brooks had prescribed and obtained pain medications for her daughter while he was dating and living with Patient A and that her daughter suffered from a drug addiction known to Brooks.

The patient’s mother informed investigators Brooks allegedly wrote prescriptions for pain medications using other patients’ names, that he distributed pain medications to her daughter from the clinic where he worked and that he had visited her daughter’s home the night before and the morning of the day her daughter was found in her home dead from what was described as “acute combined effects of morphine and hydrocodone.”

The order described that in addition to those medications, the Fayette County Deputy Coroner gathered evidence at the scene consisting of various loose pills (including morphine); professional sample drugs; prescription bottles with the labels torn off; a bottle marked Ciprofloxacin which contained three (3) Tramadol; a prescription bottle for Patient B from [Brooks] for #60 Nexium with fourteen (14) remaining and dated December 11, 2008; and a prescription bottle for Patient B from [Brooks] for #100 Diphenoxylate/Atropine with twenty-seven (27) remaining, dated December 17, 2008.”

The Board’s medical investigator interviewed witnesses consisting of Patient A’s two sisters, who together alleged Brooks had on one occasion provided pills to their sister requesting that the capsules be saved “so that he could put powdered gelatin into them so that the pills would be present for a pill count” and that Brooks had even requested that one of the sisters, who also suffered from drug addiction, purchase $300 in 30 mg Percocet pills during one of her trips to Florida pill mill clinics.

The investigation also revealed that Brooks allegedly, using another patient’s name (identified as Patient B) and medical chart, prescribed medications for Ambien, generic zolpidem; Ultram, generic tramadol; Phenergan suppositories, generic promethazine suppositories; Oxycontin, oxycodone; Wellbutrin, generic buproprion; Prednisone; Neurontin, generic gabapentin; Lomotil, generic diphenoxylate/atropine; Cytotec, generic misoprostol.

When interviewed, Patient B denied ever being prescribed those medications.  The Board further found that Brooks himself would allegedly purchase these medications with prescriptions he had written to Patient B.

The Board’s investigator also alleged Brooks had established a false medical chart for Patient A’s son, described as patient C, and that prescriptions were allegedly written in his name by Brooks for Lortab pain pills. Patient C denied having been treated by Brooks or prescribed such medications and he also informed investigators he had observed bottles of prescription pills in patient B’s name at his mother’s house before her death.

These findings, along with others set forth in a 10 page opinion with 24 pages of exhibits, resulted in an Emergency Order of Suspension which found there was probable cause to believe Brooks’ practice constituted a danger to the health, welfare and safety of his patients or the general public.

Read the complete text of the order here.

We’ll say it again: Ky. WCB readdresses and reapplies Tokico and Fawbush in two recent decisions

The Kentucky Workers’ Compensation Board (Board) recently decided two cases of particularly instructive import regarding the application of Tokcio v. Kelly, 281 S.W.2d 771 (Ky. 2009) and Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), respectively.

In Lay v. Cracker Barrel, Ky. WCB Claim No. 2005-65871 (2011), the Board addressed the 2009 Kentucky Supreme Court case of  Tokico v. Kelly, which held that a physician’s diagnosis need not conform to the “fairly ridgid criteria of the [AMA] Guides.”  Tokico, as did Lay, involved a diagnosis of Chronic Regional Pain Syndrome (CRPS) and the application of Table 16-16 of the AMA Guides, 5th Edition (p. 496).  In pertinent part, Table 16-16 required a patient to exhibit 8 out of 10 listed symptoms before a physician could accurately diagnose CRPS.

While the ALJ in Lay acknowledged Tokico’s pronouncement of a more relaxed application of Table 16-16, the ALJ still relied on the table for determining Lay did not suffer from CRPS and, therefore, was not entitled to an assessment of impairment for the condition or medical regimens to specifically treat the condition.  On appeal, Lay argued that Tokico prevented the ALJ from relying on Table 16-16 and sought reversal.  The Board noted that while Tokico did not require a fact-finder to follow the strict diagnostic criteria of table 16-16 (or any other “rigid” Guides diagnostic criteria) it likewise did not prevent the fact-finder from relying on the diagnostic criteria in “judging the credibility of a diagnosis.” 

COMMENTARY AND ANALYSIS:  While the Board’s determination in Lay was correct, it seemed to imply too limiting an interpretation of Tokico, by perhaps suggesting Guides criteria could only be used in “judging credibility” of a diagnosis in conjunction with other evidence and not merely as the sole determination of the accuracy/credibility of a diagnosis.  In actuality, Tokico seems to say nothing to prevent a fact-finder from relying solely on such criteria.

In Jones v. Kellwell Food Management, Inc., Ky. WCB, Claim No. 2010-00392, the Board addressed application of Fawbush v. Gwinn, a Kentucky Supreme Court case which stands for the proposition that when a claimant is found not to retain the physical capacity to perform her pre-injury work duties but does return to work at wages equal to or greater than her pre-injury wages, the ALJ is permitted to apply either:

 KRS 342.730(1)(c)1 and 3  – which triples benefits when claimant does not retain the pre-injury physical capacity and, under (1)(c)3, is additionally enhanced for age and education factors

or

KRS 342.730(1)(c)2 — which merely doubles benefits if a claimant has returned to work at equal/greater wages but then ceases earning equal/greater wages  –  if the fact-finder determines the claimant will continue to earn that wage into the indefinite future (even if she does not retain her pre-injury physical capacity)

The ALJ in Jones found that while Jones did not retain her pre-injury physical capacity (she remained in the same position but with mostly supervisory duties), she was earning equal wages  and the evidence indicated she could continue in the more supervisory position for the indefinite future.  Thus, under Fawbush he awarded the “x2″ benefits of KRS 3423.730(1)(c)2 and not the “x3″ benefits of KRS 342.730(1)(c)1.

Claimant appealed and the Board affirmed the ALJ’s decision finding he had conducted the proper analysis under Fawbush. 

ANALYSIS/COMMENTARY:  This case is instructive of proper application of the Fawbush analysis.  While Board Member Stivers dissented, essentially recommending remand, arguing the ALJ never actually referenced Fawbush by name and that portions of his findings seemed contradicting of his ultimate determination, it is doubtful that even with remand the outcome would be different.  Even without specific reference to Fawbush the ALJ’s analysis was appropriate and consistent with the Fawbush criteria.

Roland earns MSCC credential

Marcus A. Roland of the Lexington-based law firm Roland Legal has been awarded the credential of Medicare set-aside consultant certification by the International Commission on Healthcare Certification.

As defined by the commission, “the MSCC credential is designed to identify professionals who work within the workers’ compensation benefit system as either a health care professional, legal representative or insurance claims adjuster, who have achieved specific pre-approved training in Medicare set-aside trust arrangements, and have demonstrated a breadth of knowledge regarding the development and application of the Medicare set-aside trust arrangement process.”

 A Medicare set-aside is an intricate financial arrangement designed to protect the interests of Medicare or Medicaid in workers’ compensation settlements. With his designation, Roland is certified to design, submit and negotiate these arrangements.

To earn the certification, Roland completed 30 hours of training through the University of Florida, passed a pre-certification exam from the university and passed a final certification exam from the International Commission on Healthcare Certification.

Roland Legal is a boutique workers’ compensation firm based in Lexington. It is one of the first paperless, cloud-based law firms in Kentucky. Learn more at rolandlegal.com.

The mileage reimbursement rate beginning Oct. 1, 2011 will remain at 47¢ per mile.

The Kentucky mileage reibumrsement remains at .47/mile for the period of October 1, 2011 through December 31, 2011.