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A variety of plaintiffs have sued 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 plaintiffs’ motion for a temporary restraining order (TRO) will be June 1, 2016, before Franklin Circuit Judge Phillip J. Shepherd.

Read a copy of the complaint 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.

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

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