State News : Kentucky

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


Kentucky

JSB Attorneys, PLLC

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Temporary Total Disability (TTD) Benefits and Credit for Wages Paid
General Motors, LLC v. Giovanni Smith, 2024-CA-0367-WC (7/12/24 KY Court of Appeals, To Be Published, not final)
 

Smith was employed by GM for 13 years working on the assembly line. In February of 2021, he began having pain in his right hand and wrist which he reported in March. He was pulled off the line on August 10, 2021 due to his injury and moved to a different position until March 29, 2022, when he first went off work. He underwent carpal tunnel surgery on July 13, 2022 and was released to full duty, without restrictions, on September 12, 2022. He returned to a different position following surgery and testified that he did not believe he could return to his pre-injury position. Smith testified that his position from August 2021 through March of 2022 involved cleaning and make-work projects, or no work at all. Dr. Bloemer (PL IME) diagnosed an arthritic condition as well as CTS due to work, opining that Smith is incapable of returning to his pre-injury position. Dr. Nicoson (Def IME) found the CTS to be work-related but felt the arthritis was not. He assessed permanent restrictions that would not prevent a return to the pre-injury position. Both doctors agreed that Smith reached MMI on October 13, 2022.
 
The ALJ awarded TTD from August 1, 2021 to October 13, 2022, with no credit for wages paid and PPD benefits with a 3x multiplier. GM appealed, arguing that TTD should not begin until March 29, 2022 or, in the alternative, that they should receive a credit for wages paid during this time. The Court of Appeals affirmed the TTD award, finding that Smith was not at MMI and had not reached a level of improvement that would permit a return to employment. The Court also upheld the denial of the credit because GM failed to provide paystubs showing the net wages after taxes. GM also appealed the application of the 3x multiplier. The Court of Appeals upheld the award of the 3x multiplier, finding that the substantial evidence supported the award.

KENTUCKY LEGISLATIVE UPDATE

House Bill 401 was passed, takes effect July 15, 2024, and is summarized below:
 
KRS 342.120, governing the computation of a claimant’s average weekly wage, is amended to include unemployment benefits received in the 52 weeks prior to the date of injury.
 
The definition of physician in KRS 342.0011 is expanded to include physicians licensed to practice in any jurisdiction in the United States (previously only included physicians licensed to practice in Kentucky). The definition of physician in KRS 342.033 is amended to include physicians licensed in any jurisdiction in the United States, as well as retired physicians who were previously authorized to practice in Kentucky, if in good standing when license was surrendered.
 
KENTUCKY WORKERS' COMPENSATION CASE UPDATE

Extraterritorial Jurisdiction: Employment “Principally Localized” within a Particular State
Hicks v. KEMI, 2023-SC-0284-WC (3/14/2024, not final)
 
Hicks worked in Kentucky for Eagle Coal, a subsidiary of Booth Energy, from 1996 to 2017. In August of 2017, Booth Energy asked Hicks to transfer his employment to another subsidiary, Southeastern Land, to work at a mine in West Virginia. Southeastern Land was headquartered in Kentucky, 45 minutes from its West Virginia mine. Hicks remained a Kentucky resident, working 6 days and 60 hours a week in West Virgina at the mine, occasionally traveling to the KY headquarters. Hicks was injured in 2019 while working in the West Virginia mine. He filed a workers’ compensation claim in Kentucky, despite receiving medical and income benefits from Southeastern Land’s West Virginia workers’ compensation insurance carrier.
 
The ALJ awarded benefits, finding the extraterritorial coverage statute applied because Claimant’s employment was “principally localized” in Kentucky at the time of the injury.
 
The Supreme Court of Kentucky disagreed, holding there was no extraterritorial jurisdiction because Hicks’s employment was “principally localized” in West Virginia. The Court explained that when determining where employment is “principally localized” the ALJ must first decide if the employer has a place of business in the state. If yes, then the ALJ must determine whether the employee regularly works at that place of business. If yes again, then the employment is deemed to be principally localized in the subject state. Because the Claimant regularly worked in West Virginia at the mine owned by Southeastern Land, only occasionally visiting the Kentucky headquarters, his employment was principally localized in West Virginia.


 
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

KENTUCKY CHAMBER ADVANCED WORKERS' COMPENSATION SEMINAR

 
We would like to invite you to the 19th Annual Kentucky Advanced Workers' Compensation Seminar sponsored by the Kentucky Chamber of Commerce. The seminar will take place in beautiful Louisville, KY on May 9th, 2024. Click below for the agenda and registration information. We are pleased to be moderating and presenting at this informative event and hope you can attend!

WorkCompCollege.com is a community-driven effort to provide formal workers' compensation training that embraces whole person recovery management to help continue the trend towards lower costs and improved results through education, information exchange, and mentorship. WorkCompCollege.com offers comprehensive workers' compensation courses as well as state specific training. We are pleased to have partnered with WorkCompCollege.com to help produce the Kentucky training content.


KENTUCKY WORKERS' COMPENSATION CASE UPDATE

AMA Guides and Gait Derangement
General Motors v. Payne, 2023-CA-0722-WC rendered on 12/1/23, petition for rehearing filed 12/11/23 (not final)
 
Claimant fell down the stairs at work and was diagnosed with bilateral quadriceps tendon ruptures. His treating physician prescribed a cane and restricted him to seated duty only. Claimant testified he could not stand for more than one hour and could sometimes walk short distances without a cane but had difficulty maneuvering certain surfaces. Robert Byrd, M.D. (Claimant IME) assigned a 20% rating due to gait derangement and use of assisted device. Ellen Ballard, M.D. (Defense IME) assigned a 2% rating for pain and declined to use gait derangement noting that the Claimant walked in and out of her office without the cane, left the cane, was called back to retrieve it and stated that he had left it at other places but usually remembered by the time he got to his car.
 
The ALJ adopted Dr. Byrd’s opinions and the Employer appealed arguing there was no substantial evidence that Claimant routinely used an assistive device as required by the AMA Guides for the 20% rating for gait derangement. The Board affirmed the ALJ and the Employer appealed to the Kentucky Court of Appeals. The Court of Appeals also affirmed the ALJ, holding that the testimony of the Claimant, his treating doctor, and Dr. Byrd were substantive evidence to support the 20% rating. The Court reiterated the Supreme Court of Kentucky’s prior holding that an opinion must only be grounded in the AMA Guides and does not require strict adherence to the Guides. Since Dr. Byrd’s rating was based on the AMA I the ALJ did not err in choosing to rely upon that opinion.

Exclusive Remedy, Wrongful Death and Up-The-Ladder Immunity
Miller, et. al. vs. Kentucky Power Co. d/b/a Kentucky Power, et. al, 2022-CA-1200-MR rendered 11/3/23 (not final)
 
Utility company is entitled to immunity from civil liability for a tree trimmer’s fatal accident occurring while trimming a tree from the utility’s right of way. The decedent worked for Asplundh Tree Expert Company and was performing tree trimming pursuant to a contract with Kentucky Power. The surviving spouse settled a workers’ compensation claim with Asplundh Tree Expert Company. She also filed a civil suit against Kentucky Power. Kentucky Power filed a Motion for Summary Judgment arguing it was entitled to up-the-ladder immunity. Miller argued that Kentucky Power was not entitled to immunity because tree trimming was not work “of a kind that the business or similar businesses would normally perform or be expected to perform with employees.” The Court of Appeals upheld the trial court’s decision to grant Kentucky Power summary judgment, finding that tree trimming was recurrent maintenance work required by law.
 
Going and Coming Rule and Traveling Employee Exception
Lee v. W.G. Yates & Sons Construction Co., 2023-CA-0695-WC rendered 10/27/23 (not final)
 
Claimant works in construction and is a permanent resident in Louisiana where he lives with his wife and daughter. Employer is a construction company based in Mississippi that accepts jobs all over the country and recruits employees nationwide to work those jobs. Employer hired Claimant as a general foreman for a construction project in Kentucky and only for that project. Once hired, Claimant pulled his travel trailer with his pickup truck to a campground near the construction site where he stayed for the entirety of the employment for this job. He was not reimbursed for his travel to the job site but was provided a $100 daily per diem for food and lodging expenses. Employer had also approached Claimant regarding a future project in Mississippi, but no former agreement had been finalized.
 
After clocking out of work early in the morning and returning to his trailer, Claimant left his trailer to join a friend for dinner. He was scheduled to begin work again later that evening. On his way to the restaurant, Claimant was injured when a vehicle struck his motorcycle. The ALJ found the injury did not occur in the course and scope of employment and the Claimant was not a travelling employee. He had relocated for the job and the only travel he engaged in was reporting to a static work site. The Court of Appeals reversed, holding the Claimant was a travelling employee whose travel to Kentucky was a service to the employer. As he was not engaged in a significant deviation from the purpose of his trip at the time of the accident, the claim is compensable.


 
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