UPDATE: HR 507, a bill identical to SB 136, was recently introduced in the House.
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.
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.