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.

Trane Commercial Systems v. Tipton, 2014-SC-000561-WC (Ky. 2016) (to be published):  Absent extraordinary circumstances, an award of TTD benefits is inappropriate if an injured employee has been released to return to customary employment, i.e. work within her physical restrictions and for which she has the experience, training, and education; and the employee has actually returned to employment.

In Tipton, the Kentucky Supreme Court addresses the highly litigated issue of whether TTD can be paid even when an individual has returned to paid light-duty work.

The claimant in Tipton worked in quality control testing air conditioner units.  She fell and fractured her right patella.  Following the injury, her physician returned her to sedentary work with no overtime.  She returned to work at a different job assembling electrical circuit boards at the same hourly rate of pay as before the injury.

The ALJ refused to award TTD benefits during the period Tipton was back at work assembling circuit boards. The Board affirmed, but the Court of Appeals reversed.  After a discussion of the facts and law on the issue of TTD and the phrase “return to employment” in KRS 342.0011(11)(a), the Supreme Court reversed the Court of Appeals.

In arriving at its final holding, the Court summarized the case law on the issue and reiterated its findings and holding in Livingood v. Transfreight, LLC, 467 S.W.3d 249 (Ky. 2015).  In Livingood, the ALJ denied the claimant’s request for TTD during his return to light duty work finding that Livingood had performed the  majority of his light duty tasks as part of his pre-injury regular-duty job.  The Supreme Court affirmed the ALJ and clarified from its holding in Advance Auto Parts v. Mathis, No. 2004-SC-0146-WC, 2005 WL 119750 (Ky. Jan. 20, 2005) that “[Central Kentucky Steel v.Wise [, 19S.W.3d 657 (Ky. 2000)]does not ‘stand for the principle that workers who are unable to perform their customary work after an injury are always entitled to TTD.'”

While the Trane Court reiterated that it would be unreasonable to terminate the benefits of an employee when he is released to perform only minimal work, they noted

[I]t is also not reasonable, and it does not further the purpose for paying income benefits, to pay TTD benefits to an injured employee who has returned to employment simply because the work differs from what she performed at the time of injury.

They went on to hold:

Therefore,  absent extraordinary circumstances, an award of TTD benefits is inappropriate if an injured employee has been released to return to customary employment, i.e. work within her physical restrictions and for which she has the experience, training, and education; and the employee has actually returned to employment.

They went on to explain that in awarding TTD benefits to an employee who has returned to employment under such circumstances, an “ALJ must take into consideration the purpose for paying income benefits and then set forth specific evidence-based reasons for why an award of TTD benefits in addition to the employee’s wages would forward that purpose.”

Comment:  While this decision will likely not completely deter litigation on the issue, it certainly serves as a definitive determination from a higher court, something the workers’ compensation community has been awaiting for some time when addressing TTD termination and the “return to employment” controversy.

 

 

The Ky. mileage reimbursement rate for January of 2016 through March of 2016 is 39 cents per mile.

jan 2016 mileage

As we previously reported in December, former Gov. Steve Beshear had appointed Tyra Redus to replace ALJ William Rudloff. Why then is former state Rep. Tanya Pullin, D-South Shore, taking Rudloff’s place?

Newly elected Gov. Matt Bevin issued an executive order soon after taking office in December rescinding Beshear’s appointment, Jack Brammer reported in the Lexington Herald-Leader (LHL). Bevin’s order said Redus had withdrawn from the appointment. The LHL reported that Redus did not respond to a request for comment; only Pullin could be reached by the LHL for comment.

“There will be some traveling in the job for hearings but not as much as in the legislature,” Pullin — who lives in South Shore, in northeastern Kentucky — told the LHL. “Given my family status, that is appealing to me.”

Pullin’s workers’ compensation background is unknown. It does not appear she has ever practiced before the Department of Workers’ Claims. Pullin’s Votesmart.org biography indicates she last practiced law in 1997 with Baker & McKenzie out of the firm’s Hong Kong office. No standard legal directories make mention of her current legal practice.

Pullin’s appointment as an ALJ and her departure from the House follows a series of similar appointments that Bevin, a Republican, has made of House Democrats, leading pundits to theorize that Republicans are poised to take over that state legislative chamber for the first time since 1921.

Tyra Latrice Redus has been appointed ALJ to replace William J. Rudloff, whose term has expired.  She will serve for a term expiring December 31, 2019. Ms. Redus’ LinkedIn profile indicates she is presently the Executive Director of the Kentucky Transportation Cabinet Office for Civil Rights and Small Business Development.  She has previously worked as a staff attorney III with the Kentucky Justice and Public Safety Cabinet and as an associate attorney for U’Sellis & Kitchen.

The DWC has released the 2016 benefit schedule and the 2016 present worth table. Both can be accessed from the rolandlegal.com home page.

Prior to leaving office, Governor Beshear made the following reappointments:

To the Workers’ Compensation Board:  Rebekkah Rechter

To the Workers’ Compensation Nominating Committee:  Robert Carlisle, Brockton Edwards and Grover Arnett

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