State News : Kentucky

 
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.

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.