Workers’ Compensation Board Member Position

The Workers’ Compensation Nominating Commission is now accepting applications to fill a position on the Workers’ Compensation Board. This is a full-time position for a term expiring on January 4, 2019.   The appointee shall not hold any other public office.

An applicant for the Workers’ Compensation Board Member position must be an attorney and must have the qualifications required of an Appeals Court Judge (except for residence in a district), shall receive the same salary and shall be subject to the same standards of conduct.

APPLICATIONS MUST BE RECEIVED AT THE DEPARTMENT OF WORKERS’ CLAIMS IN FRANKFORT ON OR BEFORE 4:30 PM (EDT) THURSDAY, OCTOBER 2, 2014.  APPLICATIONS RECEIVED AFTER THAT TIME WILL NOT BE CONSIDERED.  Applications must clearly state the desire to be considered for the Workers’ Compensation Board position. Interested parties are required to send one original resume, along with a cover letter containing an e-mail address, to the attention of Brenda Majcher, Nominating Commission Clerk, Kentucky Department of Workers’ Claims, Prevention Park, 657 Chamberlin Avenue, Frankfort, KY  40601.  Questions may be directed to Ms. Majcher at 502-782-4439 or brenda.majcher@ky.gov.

Administrative Law Judge Position

The Workers’ Compensation Nominating Commission is now accepting applications to fill an unexpired term as Administrative Law Judge for the Kentucky Department of Workers’ Claims.  The term will begin January 1, 2015, and will expire December 31, 2017.  This is a full-time position and appointee shall not hold any other public office or maintain any private practice.

Applicants for the Administrative Law Judge position must be licensed attorneys and must have five (5) years experience in the Commonwealth in the practice of workers’ compensation law or a related field and extensive knowledge of workers’ compensation law [KRS 342.230(3)].  The salary to be paid is that of a Circuit Court Judge.

APPLICATIONS MUST BE RECEIVED AT THE FRANKFORT OFFICE OF THE DEPARTMENT OF WORKERS’ CLAIMS ON OR BEFORE 4:30 PM (EDT) THURSDAY, OCTOBER 2, 2014. APPLICATIONS RECEIVED AFTER THAT TIME WILL NOT BE CONSIDERED.  Applications must clearly state the desire to be considered for the Administrative Law Judge position.  Interested parties are required to send one original resume, along with a cover letter containing an e-mail address, to the attention of Brenda Majcher, Nominating Commission Clerk, Department of Workers’ Claims, 657 Chamberlin Avenue, Frankfort, Kentucky  40601.  Questions may be directed to Mrs. Majcher at (502) 782-4439 or brenda.majcher@ky.gov.

Kentucky’s 2015 workers’ compensation benefits schedule has been released.  Click here. 

2015 benefits schedule pull-out

CLICK ON IMAGE TO ENLARGE

 

2017 07 mileage

Rahla v. Medical Center at Bowling Green, No. 2013-CA-001712-WC (Ky.App. 2014):  Injuries sustained by job candidates during pre-employment activities are not compensable.

In Rahla, a Kentucky Court of Appeals decision to be published, the Court considered the case of Michelle Rahla who was injured during a post-job-offer physical examination.  The physical examination included physical activity consisting of lifting weights ranging from 10 to 61 pounds.  Rahla injured her neck during the examination and thereafter officially began her employment with the Medical Center.  She eventually required surgery for the neck injury, but  the claim was denied on the grounds she was not an employee at the time of the injury. The ALJ dismissed the claim and the Workers’ Compensation Board as well as the Court of Appeals affirmed, holding that Rahla was “not in the service of, under any contract of hire with, or performing any service in the trade, business, profession, or occupation of, the Medical Center.”  The Court distinguished the facts of this case from Hubbard v. Henry, 231 S.W.3d 124 (Ky. 2007) where the claimant was injured actually performing work for the employer on a trial basis prior to the official hiring.

Gardens Glen Farm v. Balderas, No. 2014-CA-000191-WC (Ky.App. 2014):  In a reopening of a claim, a negotiated settlement might not reflect the claimant’s actual disability and any change in occupational disability is the difference between the claimant’s actual occupational disability on the date of settlement and his or her occupational disability at the time of reopening.

In Balderas, a Court of Appeals opinion to be published, the Court addressed the reopening of a negotiated settlement which compromised the return to work factor.  In finding an increase in occupational disability, the ALJ calculated the increase based on the actual occupational disability the claimant had on the date of settlement (in this case more than what was negotiated) and the disability at the time of reopening.  The Court, as did the Workers’ Compensation Board, relied on Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999) and Newburg v. Davis, 841 S.W.2d 164 (Ky. 1992) for the proposition that “The figure for occupational disability which is contained in a settlement agreement represents a compromise and might or might not equal the workers’ actual occupational disability at the time…” Whittaker at 482.

UPDATE:  Governor Beshear has appointed Udell Levy to fill the unexpired term of former ALJ Hays.  The term will expire on December 31, 2015.

The DWC Nominating Commission has recommended three attorneys to be considered by Governor Beshear for filling the unexpired term of former ALJ Ed Hays.  They are:  Louisville attorney, Udell Levy; Louisville attorney, Stephanie Kinney and Northern Kentucky attorney, Gregory N. Schabell.  Levy and Schabell have appeared on the Commission’s recommendation list before.  This is Kinney’s first time on the list.

The Commonwealth of Kentucky Finance and Administration Cabinet Office of the Controller has announced the mileage reimbursement rate for April – June 2014 is 46¢ per mile.

 

mileage rate june august 2014

UPDATE:  HR 507, a bill identical to SB 136, was recently introduced in the House and has been posted to the House Labor & Industry Committee as of March 7, 2014. SB 137 has been reassigned to committee twice, and as of March 17, 2014 was reassigned to the Senate Appropriations & Revenue Committee.

There are presently two competing workers’ compensation bills in the Kentucky Senate attempting reform of KRS Chapter 342, one modest (SB 137) and one quite a bit more ambitious (SB 136).

SB 137, sponsored by J. Carroll, W. Blevins, Jr. and D. Harper Angel attempts to (1)  increase attorney fees and (2) to extend payment of workers’ compensation income benefits to age 70 or 5 years after the injury, whichever is later.

The relevant changes of SB 137 are set forth below:

AN ACT relating to workers’ compensation.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

->Section 1.   KRS 342.320 is amended to read as follows:

(2)     In an original claim, attorney’s fees for services under this chapter on behalf of an employee shall be subject to the following maximum limits:

(a)     Twenty-five percent (25%)[Twenty percent (20%)] of the first fifty[twenty-five] thousand dollars ($50,000)[($25,000)] of the award, fifteen percent (15%) of the[ next ten thousand dollars ($10,000), and five percent (5%) of the] remainder of the award, not to exceed a maximum fee of twenty-four thousand dollars ($24,000) in an original award[twelve thousand dollars ($12,000)]. Annually, the commissioner shall compute, in accordance with KRS 342.740, the increase or decrease in the state average weekly wage, and consistent with that calculation shall adjust the maximum attorney fee for an injury in the succeeding year. This fee shall be paid by the employee from the proceeds of the award or settlement; and

(b)     Attorney-client employment contracts entered into and signed after July 14, 2000, shall be subject to the conditions of paragraph (a) of this subsection.

 

(7)     In a claim that has been reopened pursuant to the provisions of this chapter, an attorney’s fee may be awarded by the administrative law judge[ subject to the limits set forth in subsection (2) of this section]. For a reopening, the maximum additional attorney fee shall be twelve thousand dollars ($12,000). The maximum fee for a reopening shall be adjusted annually as the attorney fee for an original award. In awarding the attorney’s fee, the administrative law judge shall compute the fee based on additional income benefits awarded as a result of that reopening and shall consider the factors set forth in subsection (3) of this section.[ If no additional amount is recovered upon reopening, no attorney's fee shall be awarded. No attorney's fee shall be allowed or approved exceeding the amounts provided in subsection (2)(a) of this section applicable to any additional amount recovered.]

(8)     Attorney’s fees for representing employers in proceedings under this chapter pursuant to contract with the employer shall be subject to approval of the administrative law judge in the same manner as prescribed for attorney representation of employees. Employer attorney’s fees are subject to the limitation of twenty-four[twelve] thousand dollars ($24,000)[($12,000)] maximum fees except that fees for representing employers shall not be dependent upon the result achieved. Employer attorney’s fees may be paid on a periodic basis while a claim is adjudicated and the payments need not be approved until the claims resolution process is completed. Fees for legal services in presenting a claim for reimbursement from the Kentucky coal workers’ pneumoconiosis fund shall not exceed one thousand dollars ($1,000). All such approved fees shall be paid by the employer and in no event shall exceed the amount the employer agreed by contract to pay.

->Section 2.   KRS 342.730 is amended to read as follows:

(4)     All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee reaches age seventy (70)[qualifies for normal old-age Social Security retirement benefits under the United States Social Security Act, 42 U.S.C. secs. 301 to 1397f,] or five (5)[two (2)] years after the employee’s injury or last exposure, whichever last occurs. In like manner all income benefits payable pursuant to this chapter to spouses and dependents shall terminate when such spouses and dependents qualify for benefits under the United States Social Security Act by reason of the fact that the worker upon whose earnings entitlement is based would have qualified for normal old-age Social Security retirement benefits.

 The complete text of SB 137 can be viewed by clicking here.

SB 136 sponsored by T. Buford and D. Seum seeks to amend KRS Chapter 342 to (1) define and recognize temporary partial disability benefits; (2) define medical provider; (3) limit medical benefits to age 70 or five years after date of injury, whichever is later except for permanent total awards or awards involving prosthetic devices; (4) allow attorney’s fees or increased payments for medical fee disputes that are decided in favor of the claimant; (5)  amend the reopening statutes to allow for reopening for additional temporary total or partial benefits; (6) permit claimants who have awards of $60 or less per week to elect a lump sum; (7) require settlements for future medicals to be approved by the federal Medicare Secondary Payer Act; (8) permit claimants to recover damages from an insurance carrier who commits an unfair claims settlement practice; (9) increase attorneys’ fees to a total of $24,000; (10) specify that administrative law judges do not approve attorney’s fees; (11) enumerate changes to the manner that income benefits are determined; (12) increase the maximum for temporary total or partial income benefits from 100% of the state average weekly wage to 120% of the state average weekly wage; (13) increase the maximum of permanent partial income benefits from 75% to 85% of the state average weekly wage; (14) increase and clarify multiplier language factors; and (15) provide that the time limit for permanent partial income benefits is determined by the impairment ratings.

Click here to review the text of SB 136 and its proposed changes.

Kentucky’s State Mileage Reimbursement Rate for January 1 – March 31, 2014 is 45¢.

mileage rate history

Kentucky State Police v. McCray, No. 2013-CA-000857-WC (Ky..App. 2013):  PTSD is compensible only if it results from a physically traumatic event to the claimant, and resultant physical manifestations of the stressful event such as high blood pressure or a racing heartbeat do not constitute a causal, physically traumatic event.

On September 25, 2009, McCray, a state trooper, was called to investigate a domestic disturbance.  When he arrived, he confronted a man who he believed was armed, and was forced to shoot the man in self-defense. He suffered no physical injuries during the event.The ALJ deemed the claim for PTSD to not be compensable because the PTSD did not directly result from a physically traumatic event.  The Workers’ Compensation Board reversed, reasoning that McCray’s testimony that he suffered high blood pressure following the event could constitute evidence that he sustained a physical injury.  The Court of Appeals reversed, holding that Kubajak v. Lexington-Fayette Urban County Government, 180 S.W.3d 454 (Ky. 2005) was on point and compelled a finding that the claimant was not entitled to benefits because his PTSD was not caused by a physical injury.  They further held that resultant physical manifestations (i.e. the high blood pressure or racing heartbeat) did not constitute a causal, physically traumatic event.

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