The Lexington Herald-Leader reports that Kentucky Gov. Matt Bevin has done some backpedaling with regard to changes he made to the Kentucky Workers’ Compensation Nominating Commission in May.  Specifically, Bevin has issued a new Executive Order, which rescinds his previous changes by altogether abolishing the Workers’ Compensation Nominating Commission, creating a new panel called the Workers’ Compensation Nominating Committee and making new appointments to that new panel.

In addition to  re-naming the panel the Workers’ Compensation Nominating Committee, Bevin has reduced the number of members from 7 to 5.  He has also appointed a member of the “old” workers’ compensation nominating commission, Charles McCoy, to the new committee.  McCoy is a petitioner in the lawsuit filed against Bevin seeking an injunction against Bevin’s original executive order dissolving the Workers’ Compensation Nominating Commission. That panel was comprised of appointments of the Beshear administration.  Bevin’s earlier executive order reconstituted that panel with his own appointments.

The members of the new Workers’ Compensation Nominating Committee are:  Louis D. Kelly of Florence, Charles E. McCoy of Owenton, Runan S. Pendergrast of Lexington, Megan E. Mersch of Park Hills and Joshua W. Davis of Louisville.

 

 

 

 

The Lexington Herald-Leader reports that Franklin Circuit Judge Phillip Shepherd has “temporarily blocked Gov. Matt Bevin’s executive order abolishing the Kentucky Workers’ Compensation Nominating Commission and then re-creating it with new members.” Shepherd said the temporary injunction will remain in effect until he issues a final judgment. An expedited hearing will take place on June 13, 2016.

Read more here: http://www.kentucky.com/news/politics-government/article82495702.html#storylink=cpy

 

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A variety of petitioners have filed suit against Kentucky Gov. Matt Bevin alleging that he abused his executive power by dissolving the Workers’ Compensation Nominating Commission (WCNC) — even though none of its members’ tenures were up — and reconstituting it with his own appointments.

The WCNC is charged with recommending workers’ compensation administrative law judge (ALJ) appointments to the governor. The dissolved WCNC was composed of appointees of the Beshear administration.

The suit alleges, among other complaints, that by dissolving the WCNC and populating it with his own appointees, Bevin is attempting to tilt the balance of ALJ appointments to more conservative, employer-friendly judges.

The newly constituted WCNC was scheduled to meet May 23, 2016, to recommend new ALJs to fill six vacancies recently created by Bevin’s failure to reappoint ALJs Borders, Allen, Levy, Wolff, Polites and Bolton — all of whom were Beshear appointees.

But given the pending lawsuit, no further action is being taken until Franklin Circuit Court has ruled in the case. A hearing on the petitioners’ motion for a temporary restraining order (TRO) will be June 1, 2016, before Franklin Circuit Judge Phillip J. Shepherd.

Read a copy of the petition here.

 

Governor Matt Bevin has reappointed ALJ Jane Rice Williams as administrative law judge, but has declined to reappoint Judge Thomas Polites, Judge Steven Bolton or Judge Otto Daniel Wolff. The executive order reappointing Williams was filed on May 11, 2016.

fired_stampBy Executive Order filed on May 9, 2016, Kentucky Governor Matt Bevin dissolved and reconstituted the Workers’ Compensation Nominating Commission.  The previous WCNC consisted of Chairman William Grover Arnett, Sherri Keller, Charles J. Baird, Robert W. Carlisle, Brockton L. Edwards, Charles E. McCoy and McKinnley Morgan.

The newly reconstituted board consists of Mark Flores of Lexington, Megan E. Mersch of Park Hills, Joshua W. Davis of Louisville, Jordan Tong of Owensboro, Victoria E. Boggs of Louisville, Louis D. Kelly  of Florence and Runan S. Pendergrast of Lexington.  Eastern Kentucky is no longer represented on the new WCNC.

 

From the DWC:

The Workers’ Compensation Nominating Commission is now accepting applications to make nominations for the position of Administrative Law Judge of the Kentucky Department of Workers’ Claims.  Pursuant to KRS 342.230(3), the term for the Administrative Law Judge positions expires effective December 31, 2019, or later.  These are full-time positions, subject to appointment by the Governor of Kentucky and confirmation by the Kentucky State Senate.  Appointees shall not hold any other public office or maintain any private practice.

Pursuant to KRS 342.230(3), 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.  The salary to be paid to an Administrative Law Judge is the same as a Kentucky Circuit Court Judge.

Interested applicants are required to send a packet which consists of his or her résumé and a cover letter containing an e-mail address to the following:

Attn: Derrick Hill
Nominating Commission Clerk
Department of Workers’ Claims
657 Chamberlin Avenue
Frankfort, Kentucky  40601
 

Applications must be received at the Frankfort office of the Department of Workers’ Claims on or before 12:00 noon on Friday, May 13, 2016.  Any and all applications received after that time will not be considered.  Questions may be directed to Mr. Hill at derrick.hill@ky.gov.

Those serving on the Workers’ Compensation Nominating Commission are:

William Grover Arnett, Chairman

Salyersville, KY

 

Charles J. Baird

Pikeville, KY

 

Sherri P. Brown-Keller

Nicholasville, KY

 

Robert W. Carlisle

Villa Hills, KY

 

Brockton L. Edwards

Louisville, KY

 

Charles E. McCoy

Owenton, KY

 

McKinnley Morgan

London, KY

 

Applicants and employees in this classification may be required to submit to a drug-screening test and background check.  The Commonwealth of Kentucky does not discriminate on the basis of race, color, religion, national origin, sex, age, disability, sexual orientation, gender identity, ancestry, or veteran status in the admission or access to, or participation or employment in, its programs or services. 

 

EQUAL OPPORTUNITY EMPLOYER M/F/D

The Kentucky Senate adjourned last week without considering the reappointment of ALJs Greg Allen, Scott Borders and Udell Levy.  As such, these ALJs will not be reappointed and three ALJ vacancies will now need to be filled. The Senate did confirm the reappointment of Rebekka B. Rechter  as Board Member for a new four year term.

The Senate has also confirmed the reappointments of the following ALJs for four year terms: Christopher Davis, Douglas W. Gott, Tanya Pullin , Grant S. Roark and Jonathan Weatherby.

ALJs Thomas Polites, Otto Daniel Wolff, IV, Jane Rice Williams and Steven G. Bolton are also up for reappointment and have been recommended for such by the Workers’ Compensation Nominating Commission.

The Workers’ Compensation Nominating Commission is comprised of William Grover Arnett, Chairperson; Charles J. Baird; Sherri P. Brown-Keller; Robert W. Carlisle; Brockton L. Edwards; Charles E. McCoy and McKinnley Morgan.

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Livingood v. Transfreight, 2014-SC-000100-WC (Ky. 2015):  Chrysalis House v. Tackett, 283 S.W.3d 671 (Ky. 2009) is overturned.  

The Livingood Court re-visited Chrysalis House, an opinion in which the Court previously held that a claimant can be denied application of the x2 factor under KRS 342.730(1)(c)2 if his employment at an equal or greater wage ceases for a reason not relating to the alleged injury.

The Livingood Court found that Chrysalis House was not consistent with the legislative intent of KRS 342.730(1)(c)2, and held:

KRS 342.730(1)(c)2 permits a double income benefit during any period that employment at the same or a greater wage ceases ‘for any reason, with or without cause,’ except where the reason is the employee’s conduct shown to have been an intentional, deliberate action with a reckless disregard of the consequence either to himself or to another.

The Court also addressed Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000) and the line of cases following it, which allow the payment of TTD when an individual has returned to work but not at his same or customary duties. Specifically, the Court, citing Advance Auto Parts v. Mathis, No. 2004-SC-0146-WC, 2005 WL 119750 (Ky. 2005), held that Wise “does not ‘stand for the principle that workers who are unable to perform their customary work after an injury are always entitled to TTD.'”

Rahla v. Medical Center at Bowling Green, 2014-SC-000236-WC (Ky. 2016) (to be published): Injuries sustained during the course of a pre-employment physical examination are not work-related.

In Rahla, the claimant applied for a position with the Medical Center at Bowling Green. She completed the interview process and received a written offer contingent upon passing a physical examination and a substance-abuse screen.  As part of the examination, she was required to perform a functional capacity evaluation.  During that examination she injured her neck.  However, she passed the physical examination and the substance-abuse screening and was hired.  She reported to work three weeks later, but her neck pain lingered.  She eventually required surgery and she filed a claim for benefits. The claim was denied at all levels with the Supreme Court affirming.

The Court reasoned that because Rahla was not employed at the time of the injury and was not performing a service  to the employer, the claim was not compensable. As Rahla only received confirmation of her hiring after the exam was completed and since she did not start employment until three weeks later, the Court concluded she was not an employee under KRS 342.640(1).

Further, the physical exam was not a service because it was not work in furtherance of the employer’s business and there was no scenario where Rahla could have expected payment for the physical examination. KRS 342.640(4)

The Court differentiated this situation from the scenario where an employee tries out a new position on a trial basis without pay to demonstrate his abilities, as doing so constitutes employment activities or conditions.

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