Page Title

KENTUCKY LAW UPDATE

CASE LAW UPDATE

Text Box: ALJ Reappointments The Workers’ Compensation Nominating Commission had recommended the reappointment of the following ALJ’s to Governor Beshear: A. Thomas Davis, Richard M. Joiner, and John W. Thacker. Andrew M. Manno was not recommended for reappointment. Governor Beshear has rejected the recommendation of the WC Nominating Commission to reappoint ALJ John Thacker and ALJ Thomas Davis. WC Nominating Commission Cathy M. Jackson has tendered her resignation from the Workers’ Compensation Nominating Commission, citing professional and business responsibilities. Her term was set to expire on December 4, 2009. Governor Beshear has appointed Donald Colston of Frankfort to fill the position. Pre-Litigation Settlements Per the Chief ALJ, please include addresses and printed names on pre-litigation settlements, as many agreements are received and cannot be read. MILEAGE REIMBURSEMENT RATE The new mileage reimbursement rate for April 1—June 30, 2008 is $.45/mile.

www.jdspllc.com

FLORENCE

LEXINGTON

LOUISVILLE

Volume V Issue II April 2008

Lisa K. Clifton, Esq.—Editor

JDS Offices

51 Cavalier Boulevard

Suite 260

Florence, KY 41022

859-594-4200

859-594-4248 (fax)

259 West Short Street

P.O. Box 34088

Lexington, KY 40588

859-255-6655

859-255-6650 (fax)

10503 Timberwood Circle

Suite 213

Louisville, KY 40223

502-420-1921

502-420-1930 (fax)

Text Box: Clark County Board of Education v. Jacobs (2007-CA-001575-WC) (Court of Appeals) Jacobs injured her left shoulder, falling from bleachers, while attending an off-premises Beta Club convention with her students. She attended the convention as a sponsor and was paid while she attended the convention. Jacobs was required to obtain the principal’s permission to attend the convention and though sponsorship of school clubs and activities was not required by the school, it was strongly encouraged. The Court affirmed the ALJ and WC Board, holding that student participation in this club provided a direct and substantial benefit to the school and the award of PPD benefits was not error by the ALJ. Bowling v. Elmo Greer & Sons (2007-CA-001498-WC)(Court of Appeals) In June 2001, Bowling suffered a work-related injury while operating a backhoe for Elmo Greer and Sons (“Greer”). In 2003, a compromised settlement was reached for $58,000.00, noting that Bowling was receiving Social Security Disability (SSD) benefits. In 2006, Bowling moved to reopen his claim alleging he was now totally and permanently disabled, with an increase of impairment from 8% to 12%. Upon review of the evidence, the ALJ held that Bowling failed to demonstrate a change of disability as shown by objective medical evidence of worsening of impairment arising from the work injury. The ALJ noted at the time of settlement, Bowling had the same degree of education, was unable to perform any of his past relevant work and that he had successfully applied for SSD benefits. Bowling failed to petition the ALJ to reconsider her opinion and order and appealed to the WC Board. The Board stated that there was no error in the ALJ relying on a physician’s opinion which indicated Bowling’s change was the result of pre-existing Parkinson’s disease and degenerative disc disease rather than the work injury. As Bowling failed to call the alleged error of the ALJ (no finding by the ALJ of disability at the time of settlement in 2003) by a petition for reconsideration, the Court of Appeals found the issue was not properly preserved. The Court of Appeals affirmed the decision of the WC Board. Officeware v. Jackson (2007-SC-000303-WC)(Supreme Court) Settlement was approved on August 20, 1999 which indicated that Jackson sustained a low back injury on April 17, 1997 and later underwent surgery to repair a herniated disk. On April 22, 2004, Jackson filed a motion to reopen seeking TTD benefits, stating that the employer agreed to pay for the surgery but refused to approve TTD benefits through the recovery period. The employer objected to the reopening, arguing that reopening was governed by the law on the date of the injury, which limited reopening to within four years of the settlement date. The ALJ noted that KRS 342.125(3), as amended July 14, 2000, motion to reopen for purposes of seeking TTD is among exceptions to the four-year period of limitations and awarded TTD,18% interest, and attorney fees. The WC Board, Court of Appeals and Supreme Court affirmed the

Text Box: KENTUCKY CHAMBER OF COMMERCE 20TH Annual HR Update May 20-21, 2008 The Brown Hotel Louisville, KY June 12-13, 2008 Marriott Griffin Gate Resort Lexington, KY Robert L. Swisher, Esq. & Lisa K. Clifton, Esq. will be presenting: “Workers’ Compensation Update” as part of this HR Update Seminar For seminar and registration information: #http://www.harvesthost.com/accounts/kycc/share/images/HRUpdateWEB.pdf

FIRST ANNUAL KENTUCKY WORKERS’

COMPENSATION ADJUSTER TRAINING

WORKSHOP

Jones Dietz & Swisher PLLC held its first annual Kentucky Workers’ Compensation Adjuster Training Workshop on April 17-18, 2008 at the Executive West Hotel in Louisville, Kentucky. Over 100 attendees participated with 100% indicating they would recommend the program to others and 95% giving the highest rating as to the overall program. Planning is already underway for the 2009 Workshop.

Text Box: SEAK National Workers’ Compensation & Occupational Medicine Conference July 14-15, 2008 Cape Cod, Massachusetts Go to http://www.seak.com/pdf/July2008NET.pdf for the conference brochure.

NATIONAL SEMINAR ON

WORKERS’ COMEPENSATION

ISSUES THAT AFFECT ALL

MEMBERS OF THE DEFENSE TEAM

June 25-26, 2008

Marriott Hartford Downtown

Hartford, Connecticut

Includes update on the Medicare

amendments of 2007 and

CMS contractors

For seminar information:

http://www.nwcdn.com/AllMainPages/natSeminars.shtml

H. Douglas Jones djones@jdspllc.com

Kenneth J. Dietz kdietz@jdspllc.com

Robert L. Swisher rswisher@jdspllc.com

Jeffrey S. Smith jsmith@jdspllc.com

Lisa K. Clifton lclifton@jdspllc.com

Christopher G. Newell cnewell@jdspllc.com

Lance O. Yeager lyeager@jdspllc.com

In this widely acclaimed program, the nation’s leading workers’ compensation professionals, occupational physicians, occupational nurses, and attorneys will join together to discuss cutting edge issues. Frank discussions and lively question and answer sessions will complement each presentation. This conference is currently the largest and longest-running national workers’ compensation and occupational medicine conference of its kind in the United States