KEMI v. Burnett, No. 2013-CA-008134-WC (Ky.App. 2014): Extraterritorial coverage applies when an injury occurs out of state under a contract of hire made within the state and the employment is not principally localized in any state.

Burnett, an Indiana resident, became employed by Stilwell the owner of Deck Doktor, characterized as a mobile business, following negotiations in Kentucky where the two negotiated the terms, conditions, pay, rate and hours of Burnett’s full-time employment with Deck Doktor. Deck Doktor did not have an office location in Indiana or Kentucky as Stillwell conducted business out of his truck and via his cell phone.  Although he performed 90% of his work in Kentucky, Burnett’s work injury occurred in Indiana.  Thus, the issue of extraterritorial coverage under KRS 342.670(1)(b) became relevant. The Court found that Kentucky had jurisdication because  (1) the contract of hire was made when the two met in Kentucky to discuss the terms of employment and (2) his employment was not principally localized in any state due to the mobile nature of the Deck Doktor operation.

Jewell v. Ford Motor Company, No. 2013-CA-00850-WC (Ky.App. 2014):  Unemployment benefits are not to be included in calculating average weekly wage.  Supplemental Unemployment Benefit (SUB) plans are included in calculating average weekly wage when made pursuant to a collective bargaining agreement.

The issue in Jewell was whether unemployment benefits and SUB benefits are to be included in calculating the average weekly wage.  Ford’s practice was to periodically temporarily layoff workers when retooling or when demand was reduced.  During those periods, Ford applied for state unemployment benefits on behalf of its workers and also paid supplemental unemployment benefits (SUB) to them per a collective bargaining agreement. The Court determined that unemployment benefits were not to be included in calculating average weekly wage but the SUB benefits could be.The court reasoned that state unemployment benefits cannot qualify as wages because they are not “money payments for services rendered.” They deemed such benefits the antithesis of wages because they are paid when services are not rendered to the employer.  The benefits are a wage substitute rather than compensation for work.  As for the SUB pay, the claimant argued it was bargained for pay which Ford pays directly to him i included on his W-2 with taxes withheld and is part of the overall payment scheme to retain employees. The Court agreed, noting the SUB pay was in the nature of wages and did not constitute fringe benefits (not considered wages under the statute).  They deemed including “them in calculating Jewell’s wage would aid in advancing the remedial goals of the workers’ compensation statute and excluding them would artificially deflate the calculation of his AWW.” Relaying on other jurisdictions, the court held that SUB payments made pursuant to a collective bargaining agreement “are in the nature of wages…if such payments are an entitlement accrued as a result of the claimant’s services for the employer.”  SUB pay is not a fringe benefit because it is direct pay, according to the court.

The Governor has appointed Stephanie Kinney to the position of ALJ, replacing Chief ALJ Landon Overfield, who will be retiring at the end of the year. The governor has also reappointed Franklin Stivers to the Workers’ Compensation Board.

Click here to view the Discount Rate for 2015.

The Ky. mileage reimbursement rate beginning Oct. 1 – Dec. 31, 2014 is 46¢ per mile.

You may refer to the Controller’s web page for all related travel information at http://finance.ky.gov/services/statewideacct/Pages/travel.aspx

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.

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