NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
There are two new administrative law judge appointments pending. First is Phil Rich of Louisville, KY. Phil Rich has been practicing law for more that 30 years. He worked as an insurance defense attorney for 10 years before transitioning to the representation of Plaintiffs in workers' compensation, social security disability and personal injury claims. Second is Kimberly O'Bryan of Paintsville, KY. She has been practicing for more than 20 years representing Plaintiff's in personal injury, social security disability, and workers' compensation claims.
Scott M. Miller will be reappointed to the Workers' Compensation Board for a four year term beginning January 5, 2024. Judge Miller was previously appointed in December of 2021 to replace R. Scott Borders, for a term expiring January 4, 2024.
KRS 342.020(4) states medical providers shall submit billings within 45-days of service. Claimant’s medical providers did not submit billings for multiple visits until several months after the visits. The medical obligor rejected the bills since they were not submitted within 45 days of the date of service.
The ALJ determined the 45-day rule did not apply until after an award of benefits. The Workers’ Compensation Board affirmed the decision, relying partly on Wonderfoil, Inc. v. Russell (holding 60 day time limit for Claimant to submit unpaid medical bills for reimbursement only applies after an award). P & P appealed arguing that the Wonderfoil decision was not applicable to the statutory duties of medical providers.
The Supreme Court of Kentucky held that medical providers must bill within 45 days of treatment, regardless of whether claim has been adjudicated as work-related, or they have lost the right to be compensated for their services under workers’ compensation.But note, the Court does reference 803 KAR 25:096 Sec. 6, which states if the provider fails to submit a statement for services as required by KRS 342.020(4) without reasonable grounds, the medical bills shall not be compensable. There was no evidence in this claim of reasonable grounds for the late submissions.
Injury Claim Existing But Not Joined at Time of Settlement of Prior Injury Claim is Barred
Rodarte v. BlueLinx Corporation, 2022-SC-0423-WC rendered 9/28/23
Claimant sustained a work-related knee and ankle injury in 2016 and work-related shoulder injury in 2018. In 2019, Claimant filed an application for resolution of a claim (Form 101) for the knee and ankle injuries. At that time he was receiving TTD for the 2018 shoulder injury. Claimant and employer settled the 2016 knee and ankle injury. There was no language in the agreement regarding the 2018 shoulder injury. Eleven months after settling the 2016 claim, the Claimant's TTD benefits for the 2018 shoulder claim were stopped and he filed a Form 101 three months later. The Employer denied the claim, arguing it was barred under KRS 342.270 which states an employee must join all accrued causes of action against the named employer and failure to join will result in those claims being barred.
The ALJ dismissed the 2018 claim. The Board reversed, stating the 2018 claim had not yet accrued at the time of the settlement of the prior claim, because Claimant was not yet at Maximum Medical Improvement (MMI). Claimant also filed a motion to reopen the 2016 claim, arguing it was a mutual mistake that the shoulder claim was not addressed in the 2016 agreement. The Motion to Reopen was denied by the ALJ and the Board upheld the denial.
The Supreme Court of Kentucky affirmed the ALJ opinion that the 2018 claim was barred, holding Claimant was required to join his 2018 shoulder claim to his 2016 knee and ankle claim prior to finality of that settlement. The Court found that the shoulder injury claim accrued on the date of the injury and had therefore accrued at the time of the settlement of the prior claim. The Court also upheld the denial of the Motion to Reopen finding no basis for same as there was no evidence the Employer mistakenly failed to include reference to the shoulder claim when settling the 2016 claim.
Timely Notice to Subsequent Employer of Harmful Change in Pre-existing CWP Condition
Tennco Energy, Inc. v. Lane, 2023-SC-0028-WC rendered 9/28/23
Claimant was a coal miner for more that 30 years. He had been diagnosed with CWP (black lung disease) on multiple occasions starting in 2003. In 2005 he settled a CWP workers' compensation claim against his then employer. He continued working in coal mining, joining Tennco in 2009 and remaining there until his last day of employment on 1/21/19. On 7/11/19, Claimant advised Tennco he was filing a CWP claim. The medical evidence established a worsening of his CWP. Tennco argued that Claimant's prior CWP diagnoses in 2003 and 2004 rendered his 2019 notice untimely and the ALJ agreed.
The Supreme Court of Kentucky reversed, holding that evidence of a harmful change in one's CWP condition attributable to the new employer is a likely prerequisite to any successful subsequent CWP claim, thus the Claimant's awareness of such change is the event triggering the statutory obligation to provide notice rather than the original CWP diagnosis.
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
Exclusivity Provision of Workers’ Compensation Act Does Not Preclude Civil Recovery For Non-Work-Related Injuries
Schneider Electric USA, Inc. f/k/a Square D v. Williams, et. al. (2022-CA-0190-MR) KY Court of Appeals 7/7/2023, not final
Plaintiff was six years old when adopted by Ken Baxter in 1967. Plaintiff lived with Baxter until the mid-1980s and during that time Baxter worked for Square D who manufactured plastic electrical parts from molding compounds, some of which contained asbestos until around 1974. Plaintiff also worked for Square D for a few months in 1978. Plaintiff was diagnosed with mesothelioma in 2016 and died a year later. Prior to her death she filed suit against Square D claiming she was exposed to asbestos from her father’s contaminated work clothes and directly during her brief employment in 1978. During discovery, all of the medical and expert proof attributed her mesothelioma to asbestos from her father’s work clothes. Square D moved for summary judgment based partly on the exclusivity provision of the Workers’ Compensation Act. The trial court denied summary judgment. Square-D argues the trial court wrongly concluded Plaintiff’s claims were not barred by the Workers’ Compensation Act.
The Kentucky Court of Appeals affirmed the trial court’s refusal to dismiss claims against Square D based on workers’ compensation exclusivity. It reasoned that there was no evidence that Plaintiff was exposed to asbestos during her brief time working at Square D. The Court also agreed with the trial court that a jury is capable of apportioning work-related and non-work-related injuries, if appropriate. The Court further determined that allowing Plaintiff’s brief summer employment with Square D to immunize Square D against all repercussions from other-than-workplace asbestos exposure would result in an unfair windfall for Square D.
Should you have any
questions or wish to discuss any related matters, please contact us at your
convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
Jurisdiction
of Injured Employee's Claim
Letcher County Board of
Education v. Hall, (2022-SC-0313-WC, 6/15/23) not final
Teacher filed WC claim alleging he developed mesothelioma after being exposed
to asbestos during his employment in county high school. County School Board
argued that the Board of Claims, not Department of Workers’ Claims, had
exclusive jurisdiction over the claim under KRS 49.070(16) which states that
“any claim” against the school district for damages as a result of asbestos
exposure shall be brought before Board of Claims. Rejecting this argument, the
Supreme Court of Kentucky concluded that KRS 49.070(16) pertains to claims by
third parties, not employees. The Court cited the purpose of the Workers’
Compensation Act to compensate injured workers for loss sustained as a result
of work-related injury or disease as well as its exclusivity. Furthermore, the Court
pointed out that KRS 49.020(5) requires the Board of Claims to find negligence
while the Workers’ Compensation Statute requires no showing of fault.
Should you have any questions or wish to discuss any related matters, please
contact us at your convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
Cumulative Trauma - Sufficiency of Evidence
Lexington Fayette Urban County Gov’t v. Gosper, 2021-SC-0386-WC (not final)
Claimant worked exclusively as firefighter and EMT for employer for 18 years. He presented to his treating physician, Dr. Balthrop, in December of 2017 with unbearable bilateral knee pain which his physician stated was work-related. He underwent two total knee replacement surgeries paid through workers’ compensation. Claimant had treated for knee problems for years and was diagnosed with osteoarthritis in 2012. He had a prior right knee work injury in 2007 that led to a meniscectomy. Dr. Balthrop testified that Claimant’s physically exacting work demands combined with his varus deformity accelerated the gradual deterioration of his knees and his occupation worsened his arthritis. The employer’s IME expert, Dr. Prince acknowledged that sustained, repetitive, and strenuous work is a risk factor for arthritis and would have accelerated Claimant’s degenerative changes. Dr. Prince, attributed 75% of his left knee impairment and 50% of his right knee impairment to non-occupational factors, including his varus deformity and being overweight. He testified that without the work-related component, Claimant would likely not have needed the knee replacement surgery at the age he had it. Claimant’s IME expert, Dr. Burke, noted that while Claimant experienced intermittent knee pain, he continued to work, however by the end of 2017 his knees deteriorated to where he couldn’t function with regular duty activities. Dr. Burke diagnosed progressive development of bilateral osteoarthritis contributed significantly by the nature and duration of his work. The employer also had a report prepared by Dr. Lyon, who attributed 50% of Claimant’s right knee condition to work and 0% of the left knee condition. Dr. Lyon emphasized Claimant’s history of knee pain and bowleggedness.
The ALJ found that the nature and duration of Claimant’s work aggravated his degenerative condition into active physical impairment sooner than would have been, awarding PPD benefits with the 3x multiplier and medical benefits. The employer appealed, arguing that the Claimant did not meet his burden of proving a work-related injury, noting injury does not include the effects of the natural aging process. The Supreme Court of Kentucky held that substantial evidence existed to support the ALJ’s determination, finding that three doctors, including one of the employer’s IME experts, acknowledged that the Claimant’s job duties significantly contributed to the acceleration or aggravation of his degenerative knee condition.
Kentucky Workers’ Compensation Case Law Update
By H. Douglas Jones, Esq. and Margo Menefee, Esq., JSB Attorneys, PLLC
Employee v. Independent Contactor and Economic Realities Test
Oufafa v. Taxi, LLC d/b/a Taxi 7, et. al., (2022-SC-0003-W, not final) Supreme Court of Kentucky
Taxi 7 generates revenue by leasing taxis to its drivers, which it identifies as independent contractors. Claimant sought to work for Taxi 7 in 2016, meeting with the office’s head, providing his license, resume and background check. He passed a drug test and was given two documents to fill out. In one document, Claimant acknowledged in his own handwriting that he was not an employee and not entitled to workers’ compensation benefits.
Taxi 7 only allows the leased cabs to be used for Taxi 7 rides. It operates a dispatch system and cab drivers are penalized for declining rides. Customers could either pay with a credit card, which would go through Taxi 7’s processing system, or could pay the driver directly.
Claimant filed for workers' compensation benefits after being shot while driving. The ALJ found Claimant was an independent contractor and Taxi 7 was a taxicab leasing company utilizing the factors outlined in Ratliff v. Redmon and Chambers v. Wooten’s IGA Foodliner.
The appellate Board reversed, finding that the ALJ incorrectly concluded that Taxi 7 was a taxicab leasing company rather than a taxicab company that employed the Claimant as a driver. The Court of Appeals reversed the Board, stating that the ALJ’s finding of fact that Taxi 7 was a taxicab leasing business and Claimant was not an employee was supported by the facts and not clearly erroneous. The Court of Appeals held on its own that the Claimant was an independent contractor by relying on the definition of “work” as tied directly to renumeration as defined in KRS 342. The Court of Appeals further emphasized that Taxi 7’s income was unaffected by how much or little the lessees work.
Vacating the ALJ’s decision, and striking down the Court of Appeals’ reasoning, the Supreme Court of Kentucky adopted the economic realities test to determine whether a worker is an employee or independent contractor, remanding the claim to the ALJ for a determination consistent with that test.
Medical Fee Dispute – Burden of Proof
Perry County Board of Education v. Campbell, et. al. (2022-SC-0119-WC, not final)
Claimant worked for school district and was in the school gym hanging a banner when he hit his head on a duct and fell on April 11, 2018, alleging injury to his head, shoulder and knee. Radiology report indicated mild changes in the right knee from arthritis and possible fracture. One month later, a follow-up appointment indicated softening of cartilage of patella and partial dislocation. Non-surgical treatment was unsuccessful and a right knee arthroscopy with partial meniscectomy was performed on November 6, 2018, after which Claimant was released to full duty. His knee pain persisted, and a total knee replacement was recommended following his September 16, 2019 office visit. The employer denied the knee replacement on reasonableness and necessity grounds as well as causation, citing to pre-existing arthritic changes. The employer presented three medical opinions finding the knee replacement not
reasonable nor necessary for treatment of the work injury. Claimant presented an opinion from Dr. Madden diagnosing total knee replacement surgery and chronic knee pain. Dr. Madden stated Claimant’s complaints were caused by the work injury, but he did not explicitly state whether the osteoarthritis or need for a total knee replacement were causally related to work injury. He further stated that the work injury required surgical repair and that failing to provide the recommended treatment would worsen his condition. The ALJ found the total knee replacement compensable. The employer appealed, arguing the ALJ improperly relied on inferences instead of medical opinion to determine the knee replacement was causally related to the work injury and to find it was reasonable and necessary.
The Court of Appeals affirmed, finding the ALJ as fact finder has sole authority to judge the weight, credibility, substance and inferences to be drawn from evidence. First, although there was prior arthritis, all of the medical records indicated the Claimant had no prior right knee problems, so the ALJ’s determination that the arthritis was dormant and aroused into a disabling reality by the work injury was supported by substantial evidence. Second, the Court of Appeals approved the ALJ’s use of a patchwork of evidence, including treating doctor’s notes’ Claimant’s testimony, timeline of events, and inferences from Dr. Madden’ s report, to determine the knee replacement was causally related to the work injury as well as reasonable and necessary. The Court concluded that the Claimant bore the burden of proving the compensability of the knee surgery, he was successful, and the determination was supported by substantial evidence.
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
First ALJ Opinion on COVID-19
Perkins v. North American Stainless, (WC 2021-01615)
Employee Perkins was a mechanical maintenance shift technician working 12-hour shifts in close proximity to his crew partner, Springer. Perkins contracted COVID-19 and died. His widow, Megan Perkins alleged he caught COVID-19 from Springer at work on 8/8/21.
Springer testified that Perkins had been to a party on 8/7/21 at Parkers’ house. Springer had been to the outdoor races earlier in the day but did not go to the party. The two were off on 8/9/21 and 8/10/21 and Springer testified that during their shift on 8/11/21, Perkins was not feeling well and complained of sinus issues. Another employee testified to same.
On 8/13/21, Perkins texted Springer that his wife had pneumonia and he didn’t want to go to doctor and was taking Aleve D. Springer developed sinus pressure on 8/14/21 and tested positive for COVID on 8/15/21, texting his results to Perkins. Perkins texted Springer on 8/16/21 that he was also positive, stating: “I bet we got it from parkers. meg said him and all kinds of people are sick from down there…wonder if we should tell hr that so they don’t think we have it at work cause she was down there too.”
Megan denied that he or she went to a party at Parker’s house. She testified that Perkins, herself, her three children, and her mother all lived together. All three children played outdoor soccer and attended public school. She and Perkins ate out in Louisville on 8/4/21 for their anniversary and went to breakfast on 8/11/21. She did not recall Perkin’s having any symptoms until he told her he was feeling sick on 8/15/21. They went to the hospital, and both tested positive for COVID. She had been having sinus issues for three weeks and frequently had infections due to a deviated septum. All three children tested positive after 8/15/21.
Perkin’s doctor stated that his COVID symptoms were consistent with exposure at work on 8/8/21 but he could not say for sure that his exposure was from work. The employer’s expert determined there was no way to know for certain how and where Perkins contracted COVID, but he and his wife likely contracted it at the same time since they were symptomatic at the same time and hospitalized at the same time and that their children were the most likely source. He further testified that Springer likely contracted COVID from Perkins since Perkins had symptoms several days before Springer.
The ALJ held that Perkins did not prove a workplace injury arising out of employment. He failed to prove an occupational disease since COVID is not “incidental to the character of the business” which is manufacturing steel. Furthermore, Perkins did not prove that the COVID was caused by a work exposure. Perkins had a communicable disease but failed to prove he was at a greater risk than the general public of contracting the communicable disease due to his employment, and therefore the claim is barred.
Coming and Going Rule and Traveling Employee Exception
Com. Of Kentucky, Personnel Cabinet v. Timmons (2021-SC-0271-WC)
Timmons worked in the office daily but was also required to conduct occasional home visits and off-site trainings. While leaving her home to conduct a training at a nearby church, she fell on the front steps. The Commonwealth contested the work-relatedness of the claim arguing for application of the coming and going rule. Timmons argued that the travelling-employee exception to the going and coming rule applied.
The ALJ determined the injury was not work-related and the travelling-employee exception did not apply. The Workers’ Compensation Board reversed finding the travelling-employee exception applicable and the Court of Appeals agreed. The Supreme Court of Kentucky reversed the Court of Appeals, determining that the traveling employee exception to the coming and going rule does not apply until the travelling employee leaves their property, exposing themselves to the common risks of the public street.
2023 Workers’ Compensation Benefit Schedule
The 2023 Benefit Schedule has been published by the Department of Workers’ Claims and can be found here:
https://labor.ky.gov/Documents/2023%20Workers%27%20Compensation%20Benefit%20Schedule.pdf
2023 Discount Rate Order and Tables
The Discount Rate Order and Tables can be found here:
https://labor.ky.gov/Documents/2022%20Discount%20Rate%20Order%20and%20Tables.pdf
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
Motion to Reopen a Prior Claim Based on Mistake Supported by Subsequent IME Report
Dreibach Wholesale Florists, Inc. v. Leitner, 2021-CA-1495-WC (11/10/22, not final)
Holding: Medical opinion acquired after ruling that could have been obtained prior to closure of case does not justify reopening on ground of “mistake” per KRS 342.125. The purpose of the “mistake” provision is to correct a decision based on misconception concerning the workers’ condition, not to give the losing party an opportunity to bring up reinforcements and relitigate.
Conflicting medical evidence was presented to the Administrative Law Judge ("ALJ") regarding the worker’s condition, including allegations of neck pain. The ALJ awarded medical benefits for the left knee and right shoulder; there was no award for the neck and there was no appeal of the award.
After undergoing cervical surgery to resolve ongoing shoulder pain, the worker submitted an IME assessing a 29% impairment for his neck and opining that the shoulder pain was previously misdiagnosed and was actually a result of the neck maladies. The worker then filed a motion to reopen, claiming that newly discovered evidence, the IME report, supported reopening. Denying the motion to reopen, the ALJ found that the IME report was not newly discovered evidence because it could have been discovered by the exercise of due diligence prior to the hearing. The worker also sought to reopen based on mistake and a change in condition. The ALJ determined that the IME report did not support reopening based on mistake or a change in condition, as there was no original award for any neck condition. The Workers' Compensation Board reversed, holding the worker had made a prima facie showing of mistake as to the original finding that he had not sustained a compensable neck injury.
The employer appealed, arguing that the Board usurped the ALJ’s role as fact finder by reopening a case to allow presentation of evidence discoverable before the initial hearing. The Court of Appeals agreed, finding that when an ALJ considers conflicting medical evidence regarding a workers’ compensation claim in making his ruling upon a final hearing, a subsequent medical opinion that could have been obtained prior to the close of evidence will not justify reopening on the ground of “mistake” as contemplated by KRS 342.125(1)(c).
Language in Settlement Agreement Required Continuation of Survivor Benefits with No Modification of Weekly Amount
Kentucky Employers’ Mutual Insurance Authority v. Fleming, Cl No. 201401039 (11/18/22, Workers' Compensation Board Opinion, not controlling)
KEMI appealed order substituting Debra Fleming, widow of Lenville Fleming, deceased, as a party and continuing indemnity benefits pursuant to KRS 342.730(3)(a). The order also extended the time of benefits to be paid to Debra for an additional 3 years, until Fleming would have turned 70.
KEMI argued proper procedure was to file a separate claim pursuant to KRS 342.750 (death statute) based on Baytos and Calloway County. Furthermore, KEMI contended Debra was not entitled to continuation of benefits because she was 63 at time of death and the 1996 version of KRS 342.730 did not provide for continuation of benefits after age 60. KEMI also argued that reopening rights were waived, and the 110 included waiver of reopening under KRS 342.750 and 342.730.
The Board disagreed that Debra’s sole avenue of relief was to file an action pursuant to KRS 342.750 noting that the death certificate didn’t conclusively show the death was work-related and the fact that Fleming was still owed indemnity benefits per the settlement agreement distinguished this case from Baytos and Calloway County. The Board rejected the notion that the waiver of reopening rights precluded Debra from reopening the claim to enforce the settlement agreement. The Board held that Fleming waived the right to reopen only to seek an increase in benefits and Debra was instead seeking to enforce a valid contract pursuant to KRS 342.265(4).
The Board found the terms of the settlement agreement controlling, construing the agreement as requiring indemnity payments to Fleming, and now to his widow, through 9/6/29, without modification of the amount. Below is the language in the 110:
In Other Information the settlement was stated to encompass any claim which might later arise and be claimed by Fleming and/or his dependents, further supporting the Courts conclusion that KEMI must continue payments through the settlement date without alteration to Fleming’s widow.
The Board reversed the order extending the benefits for 3 years, again stating that the terms of the Agreement control.
Pending Before the Supreme Court of Kentucky: 45-day Requirement for Submission of Medical Bills by Medical Provider
P & P Construction, Inc. v. Farley, 2022-CA-0332-WC
Several cases have gone before the Workers' Compensation Board regarding whether KRS 342.020(4), requiring medical bills to be submitted by the medical provider within 45 days after the date or service, applies prior to an award of medical benefits (either by opinion or agreement). Based on Wonderfoil, the Board has consistently found that the 45-day rule only applies post-award.
In P & P Construction, the Kentucky Court of Appeals overturned the Board, stating that the clear language of the statute requires the submission of medical bills by the provider within 45 days of service, period. This decision has been appealed and is currently before the Supreme Court of Kentucky. We will let you know when a decision has been issued, but it is currently safe to deny any medical benefits submitted more than 45 days from the date of service as untimely per KRS 342.020(4).
New Administrative Law Judge, Kenneth Smith
Kenneth Smith has been appointed to replace ALJ Christina Hajjar, who has resigned. He will serve for the remainder of the term expiring December 31, 2023. ALJ Smith graduated UK law school in 2004 and has spent his career as a Plaintiff attorney handling personal injury, SSD and workers' compensation cases.
New Supreme Court of Kentucky Chief Justice
The justices of the Supreme Court of Kentucky have elected Justice Laurance B. VanMeter as the next chief justice of the commonwealth of Kentucky. Chief Justice-elect VanMeter is the 6th chief justice and will serve a four-year term beginning Jan. 2, 2023.
Chief Justice-elect VanMeter will succeed Chief Justice Minton, who is retiring Jan. 1 after serving more than 14 years as administrative head of the Judicial Branch.
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
Return to Work: When an employee is not at MMI but is still being treated for a work injury:
Vocational Rehab: