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The DWC has announced that per a KBA opinion issued May 1, 2017, preparation and filing of a Form 110-Agreement as to Compensation constitutes the practice of law under SCR 3.020.  Therefore, the DWC will no longer accept Form 110 settlement agreements prepared by individuals not licensed to practice law in the Commonwealth of Kentucky.

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Old-workerIn a decision rendered April 27, 2017, the Kentucky Supreme Court addressed the constitutionality of KRS 342.730(4) (adopted in 1996), which allows for the termination of workers’ compensation benefits when the injured employee qualifies for “normal old-age Social Security retirement benefits” under 42, U.S.C. secs. 301 to 1387f, or two years after the employee’s injury, whichever last occurs.

In deeming KRS 342.730(4) unconstitutional under the Equal Protection Clause, the Court found there was no reasonable basis for treating older injured workers differently from younger injured workers. The Court also found that KRS 342.730(4) violates the prohibition against special legislation found in Section 59 of the Kentucky Constitution, noting that “[a] special law is legislation which arbitrarily or beyond reasonable justification discriminates against some persons or objects and favors others.” (citation omitted)

Read the opinion here.

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.

 

 

Lowe’s Home Centers, Inc. v. Middleton, No. 2014-CA-001136-WC (Ky.App. 2015):  The Fawbush rule is not applicable to circumstances where a claimant returns, post-injury, to exactly the same pre-injury employment and admittedly maintains the capacity to perform it on the date of her award; it is only applicable where a claimant proves he or she no longer has the capacity to work the same type of pre-injury employment, and has either returned to some accommodated form of prior employment or to a different form of employment.

Middleton was injured during the course and scope of her employment with Lowe’s.  The parties agreed that due to her anterior cervical discectomy and fusion, she incurred an impairment rating of 27%, but the parties differed over application of the multipliers under KRS 342.730(1)(c)1 and (1)(c)2.  Middleton returned to work at her same pre-injury job, earning a higher wage than she did pre-injury.  Nonetheless, the ALJ awarded benefits based on the triple multiplier of KRS 342.730(1)(c)1 presumably based on plaintiff’s assumption she might someday require accommodations and might someday require a prescription for pain relief.  The Court determined the record was void of any restrictions on her activities other than a recommendation that she avoid certain activities.  Every physician had released her to resume her pre-injury employment, and Middleton returned to that same pre-injury work.  Because of this, KRS 342.730(1)(c)1 did not apply and, thus, a Fawbush analysis was not appropriate since the Fawbush rule requires that both KRS 342.730(1)(c)1 and (c)2 must apply.  As such, the Court concluded the evidence merely supported reopening, “per KRS 342.730(1)(c)4, for an application of the KRS 342.730(1)(c)2 two-times multiplier to any benefit period during which Middleton’s employment ceases in the future for a reason relating to her injury.”

UPDATED:  Affirmed by Kentucky Supreme Court on September 24, 2015 – 2014-SC-000305-WC in an opinion to be published.

Consol of Kentucky, Inc. v. Goodgame, No. 2013-CA-000281-WC (Ky.App. 2014):  For purposes of establishing jurisdiction under KRS 342.670(5)(d) “Principally localized” means the employer must either lease or own a location in the state at which it regularly conducts its business affairs, and the employee must regularly work at or from that location. 

Claimant worked for Consol as a laborer in its underground mines in Kentucky.  In 2009, Consol closed its Kentucky operation and claimant chose to go to work at Consol’s operation in Virginia.  He began working at the new location on August 1, 2009.  Claimant then left his employment with Consol on January 19, 2010.  He claimed his physical ailments (cumulative trauma to his spine and extremities) prevented him from continuing to work.  On January 17, 2012 he filed an application for resolution of injury claim, listing January 19, 2010 as the date of injury.  The ALJ determined Kentucky did not have jurisdiction over claimant’s claim arising in Virginia and also found the statute of limitations for the claim arising from claimant’s employment in Kentucky began to run from his last day of employment in Kentucky, August 1, 2009, and, thus, his claim was barred because he did not file it within two years of that date.  The Workers’ Compensation Board  (WCB) reversed and the Court of Appeals affirmed the WCB.

The Court reviewed the issue of jurisdiction in light of KRS 342.670 (5)(d)1 and (5)(d)2, which states Kentucky will have jurisdiction if a person’s employment is principally localized in Kentucky, meaning:  (1) The Employer has a place of business in this state and claimant regularly works at or from that place of business or (2) claimant is domiciled and spends a substantial part of his working time in service of his employer in Kentucky.

The Court determined that under (5)(d)1, the employer must either lease or own a location in the state at which it regularly conducts its business affairs and the employee must regularly work at or from that location.  This was not the case with the claimant in Goodgame. Thus, Kentucky did not have jurisdiction.

The WCB and the Court of Appeals did not feel the Kentucky claim was barred by the statute of limitations, however, because the statute did not begin to run until the condition was manifest, meaning a physician had diagnosed the condition and its work-relatedness.  On remand, the ALJ was to determine the date of manifestation before addressing the statute of limitations issue.

Sumitomo Electric Wiring v. Kingery, No. 2013-CA-000855-WC (Ky.App. 2014 ) (designated to be published). The claimant in a medical fee dispute bears the reciprocal burden of rebutting the employer’s evidence of non-compensability.

This appeal originated as an employer’s medical fee dispute as to work-relatedness and reasonableness/necessity of office visits and various prescriptions by plaintiff’s treating physician. The ALJ found the treatment and prescriptions compensable, relying only on plaintiff’s own testimony that her neck and back pain were, at least in part, related to the work injury.  The ALJ ignored the unchallenged testimony of the employer’s medical expert.  beast of burdenThe Court concluded the testimony as to compensability did not involve a situation where causation was apparent and, thus, should have been proved by competent medical evidence.  Since the question was one properly within the province of medical experts, the ALJ was not justified in disregarding the medical evidence and relying instead on the claimant’s lay testimony.  While the employer bore the burden of establishing non-compensability, the Court determined that claimant bore the reciprocal burden of rebutting the employer’s evidence with substantial, contrary evidence.

Central Baptist Hospital v. May, No. 2014-CA-001228-WC (Ky.App. 2014) (not to be published): The ALJ has the discretion to determine whether a settlement agreement is in the best interests of the claimant and whether it constitutes a true meeting of the minds.

In June of 2012, claimant May sustained a herniated disc at T8-T9.  The case was fully litigated.  A hearing took place on June 12, 2013, but a week before the hearing, the claimant submitted reports of two physicians.  Proof was then extended two weeks beyond the hearing to allow the employer to cross-examine the witnesses.

rabit from aiwlThe case stood submitted on June 25, 2013, but the employer did not cross-examine the witnesses.  On July 24, 2013, the employer submitted a proposed settlement agreement to claimant.  Claimant requested a longer period of TTD to be paid under the agreement and submitted proof of such to the employer’s counsel on August 13, 2013. The employer submitted a revised agreement to claimant on September 4, 2013.  The ALJ issued an opinion on September 11, 2013 (before the agreement was signed) awarding PPD benefits with application of the x3 factor under KRS 342.730(1)(c)(1).

On September 13, 2013, without knowledge of the ALJ’s decision, the claimant signed the revised agreement. (NOTE:  She had previously signed it on September 12, 2013, but did so on the wrong line and, further, due to her attorney’s illness had not had a change to fully discuss the terms of the agreement.) On September 16, 2013, the agreement was forwarded to the ALJ.  Soon thereafter the employer filed a motion and affidavit to set aside the September 11, 2013 opinion and to enforce the settlement agreement.

On rehearing, the ALJ determined there was no meeting of the minds, essentially because claimant was not aware of the settlement agreement at the time she signed it.

The employer appealed arguing, among other issues, that the ALJ should have approved the settlement agreement.  The Workers Compensation Board and the Court of Appeals affirmed deferring to the ALJ’s factual determination that the claimant never truly assented to the agreement.

Bluegrass Rehabilitation Center v. Miles, No. 2013-CA-000973-WC (Ky.App. 2014): An ALJ cannot merely recite the evidence he relied upon in supporting a decision of permanent total disability (PTD). He must state how he considered the evidence to arrive at the finding of PTD. Without such, a meaningful review of the case cannot be had.

This appeal stems from an ALJ’s award of permanent total disability (PTD) benefits and the Workers’ Compensation Board’s (WCB) affirming of same.

The ALJ awarded the PTD benefits as follows:qmarks

In the present case, I considered the severity of the plaintiff’s work, her age, her work history, her education, the testimony of the plaintiff and Dr. Madden’s specific opinions regarding her occupational disability. Based on all those factors, I make the factual determination that the plaintiff cannot find work consistently under regular work circumstances and work dependably. I, therefore, make the factual determination that she is permanently and totally disabled.

The Court of Appeals determined this was insufficient as a finding as it merely recited the ultimate fact necessary to sustain an award of PTD. They observed the record showed no evidence that the ALJ balanced claimant’s age, work history, and education against her physical restrictions, the availability of more sedentary jobs, and her ability to perform these jobs. The ALJ’s opinion was “simply conclusive,” as he stated only that he considered the evidence but did not provide an explanation of how he did so.

As a result, the Court of Appeals held the record did not contain the evidentiary basis for the ALJ’s findings so as to allow for a meaningful review of the case. It was remanded for the ALJ to vacate his award of PTD and, if appropriate, award benefits based on adequate evidentiary grounds.

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