UPDATE: Governor Steve Beshear has rejected the Workers’ Compensation Nominating Commission’s recommendation to re-appoint ALJs Richard Joiner and Caroline Pitt Clark.
The Ky. Workers’ Compensation Nominating Commission has recommended ALJ Caroline Pitt Clark and Otto Daniel Wolff for reappointment as administrative law judges. ALJ Joseph W. Justice has advised he will not be seeking another term.
The mileage reimbursement rate beginning April 1, 2012 through June 30, 2012 is 48¢ 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://finance.ky.gov/internal/travel/
If you would like to be added to the Controller’s Travel Information Distribution list contact patricia.boler@ky.gov
The Sun Herald reports that A.M. Best, an insurance industry credit rating organization, whose rating methodology is used to assess the financial strength and creditworthiness of insurance companies, recently revised its outlook to “negative” for Kentucky Employers’ Mutual Insurance (KEMI), a Kentucky workers’ compensation insurer.
While Best affirmed KEMI’s financial strength rating of A- (Excellent) and issuer credit rating of “a-”, offsetting these positive rating factors was, the company noted:
[T]he deterioration in KEMI’s underwriting results over the past three years, as well as areas of adverse prior year loss reserve development, particularly in 2010 and 2011 related to the Byrd Amendment. Additionally, KEMI maintains limited spread of risk as a mono-line, mono-state workers’ compensation writer, which inherently exposes the company to potential changes within the economic, competitive and regulatory environment.
KEMI has long boasted its standing in the workers’ compensation insurance industry and in a statement posted on its Web site attempted to put a postitive spin on the downgrade.
Kentucky Employers’ Mutual Insurance (KEMI) was created by the General Assembly as part of the workers’ compensation overhaul in 1994 and provides workers’ compensation insurance to more than 20,000 policyholders across the state. In 2010 Kentucky Gov. Steve Beshear asked KEMI to consider returning some of its then $147 million surplus as a premium reduction or dividend to the small businesses it insures.
Impairment Resources LLC (impairment.com) a medical group specializing in independent medical examinations and, in particular, assessing and critiquing AMA Guides based impairment ratings, filed a petition for relief under Chapter 7 of the US 
Bankruptcy Code in the US Bankruptcy Court for the District of Delaware under case number 12-10850 on March 9, 2012. The debtor name and address is listed as Impairment Resources LLC, 8885 Rio San Diego Drive, Suite 310, San Diego, CA 92018. Impairment Resources is represented by Michael R. Lastowski of Duane Morris LLP, 1100 North Market Street, Suite 1200, Wilmington, DE 19801-1246.
A meeting of creditors has been set for April 9, 2012 at 2:00 pm at 844 King Street, Room 2112, Wilmington, DE 19801.
For more information contact the Bankruptcy Clerk’s office at: 824 Market Street, 3rd Floor, Wilmington, DEW 19801. Telephone: 302-252-2900.
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.
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
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”
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.
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 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 Workers’ Comp News General Workers’ Comp News
