State News : Kentucky

On April 15^th, 2020, the Department of Workers’ Claims (“DWC”) published guidance regarding Governor Beshear’s Executive Order (“Order”), dated April 9, 2020, on TTD benefits for employees removed from work due to COVID-19 exposure.[1] We offer the following analysis of the DWC’s position: 

1)    The scope of the Order is limited to the payment of TTD benefits for employees removed from work, by a physician, due to occupational exposure to COVID-19 and has no application to the resolution of other issues. The Order applies prospectively beginning on April 9, 2020.

2)    Two classes of employees are created by the Order and a “good faith” denial is all that is required to deny TTD benefits in either class. Whether the denial is in “good faith” will depend on the specific facts involved and may require a medical opinion. The first class of employees (“Regular”) encompasses all workers. The second class of employees (“Presumptive”) encompasses certain enumerated workers as listed in the Order.

    a.    To qualify for TTD benefits, a Regular employee must show removal from work by a physician due to “occupational exposure” to COVID-19, causally related to work.[2]  A note/report from a physician simply stating the employee is being removed from work due to exposure to COVID-19, without stating exposure was “occupational” and addressing causation, is a basis for a “good faith” denial of benefits.

    b.    For a Presumptive employee the presumption of “occupational exposure” is rebuttable.

3)    TTD benefits are subject to offset by concurrent: unemployment benefits; FMLA benefits paid pursuant to the Families First Coronavirus Response Act; exclusively employer-funded disability/sickness/accident plan payments; and salary continuation.[3] For salary continuation benefits, the offset would be equal to the employee’s net income after taxes.[4]

Note: The DWC’s "Guidance" on TTD is not binding on an Administrative Law Judge in the resolution of any COVID-19 claim.

Jones Howard Law, PLLC will continue to provide COVID-19 updates regarding any significant developments associated with workers' compensation benefits and exposure. Should you have any questions or wish to discuss any of these matters personally, please contact one of our attorneys at your convenience.

                                                                        H. Douglas Jones, Esq.

                                                                        djones@joneshowardlaw.com

                                                                        Mark W. Howard, Esq

                                                                        mhoward@joneshowardlaw.com

                                                                        Troy W. Skeens, Esq.

                                                                        tskeens@joneshowardlaw.com

                                                                        Margo J. Menefee, Esq.

                                                                        mmenefee@joneshowardlaw.com