Workers' Compensation

An employee's on-the-job injury can prove to be complicated, disruptive, or opportunistic for the employee; and, expensive to the company involved.  These simple facts predictably produce litigation in the workers' compensation system.  Approximately 80,000 employers and 1.7 million employees are covered under Kentucky workers' compensation law.  It is currently estimated that total program costs in terms of premium and assessments are three-quarters of a billion dollars annually.  Statistics are available that in fiscal year 2009, there were 29,839 time loss injuries reported by employers and 4,885 new litigated claims were filed with the Department of Workers' Claims, in addition to 4,409 pre-litigation settlements; and, it is estimated that 1,642 reopening proceedings were filed. The Workers' Compensation Board reported that 345 appeals were initiated. 979 citations were issued to non-complying employers.

The Workers' Compensation Act, as administered by the Department of Workers' Claims, undertakes the objectives of 1) expedient restoration of an income stream to an injured worker to the extent of objective impairment under the statute, due to an occupational injury or disease; and, 2) providing timely medical services and rehabilitation as reasonable and necessary.  This is done in a "fast track" administrative law due process procedure which incorporates the Kentucky Rules of Evidence, the Kentucky Rules of Civil Procedure, and the Workers' Compensation Act and Administrative Regulations, and the AMA Guidelines.  The process is intended to permit reasonable and expedited disposition of potentially antagonistic controversial claims between the employee and the employer.  This objective is deemed successful in that an estimated 80% of filed claims are settled and approved by an Administrative Law Judge.  Due to the perceived complexity of the claims process, most injured workers hire an attorney to file and pursue their claim before an Administrative Law Judge. 

Looking to the future, there is ongoing analysis within the Department of Workers' Claims of increasing opportunities to make use of technology with use of online services, electronic filing of pleadings and evidence, accessibility of public record information, and more centrally located hearing sites.  It is currently reported that 58.5 cents of every workers' compensation dollar spent is attributable to medical costs and studies are in progress to address and manage these increasing costs, including limitations on the amounts and duration of medical benefits.

With periodic revision and modification to the workers' compensation law, and the incorporation of the objective criterion of the AMA Guidelines, this firm has found that this litigation service is best provided by dedicated attorney specialists, devoted full time to this area of law.  Accordingly, we serve litigation functions with four firm members and eight associate attorneys, dedicated to workers' compensation litigation, each of whom has expertise in the substantive and procedural law, and application of the current edition of the AMA Guidelines to the multiple medical conditions encountered as traumatic injury, cumulative trauma, occupational disease and toxic exposure claims; and, the separate issues of reopenings, medical fee disputes, coverage and subrogation.  Each is additionally well trained and experienced in the mediations process and practices associated with the Benefit Review Conference before an Administrative Law Judge in every litigated case, in which case issues are identified and bargaining and identification of options are developed toward the goal of negotiated settlement. 

We additionally have developed a corps of appellate practitioners for those unfortunate cases that require appeal to the Workers' Compensation Board and state appellate courts, by virtue of reversible error, or a novel issue of first impression, or a client directed need to create or modify a case law precedent.  Notable in this appellate representation through the years are the following published decisions:

Travelers Indem. Co. v. Reker, 100 S.W.3d 756  (Ky, 2003)  court held that a worker's private cause of action against the workers compensation insurer under the Kentucky Unfair Claims Settlement Practices Act, Ky. was barred by the exclusive remedy provision of the Kentucky Workers' Compensation Act.  Ky. Rev. Stat. Ann. § 342.267 was never intended to create an exception to Ky. Rev. Stat. Ann. § 342.690(1).

Borman v. Interlake, Inc., 623 S.W.2d 912 (Ky. App., 1981)  court held that Ky. Rev. Stat. Ann. § 342.610(4) prohibited the products liability claim against the employer as the manufacturer of product that caused the death of its employee because workers' compensation benefits had already been accepted. The court found that the dual capacity doctrine did not apply to the employer because the case did not involve a subsidiary or separate entity such as an insurer.

Peach v. 21 Brands Distillery, 580 S.W.2d 235 (Ky. App., 1979) court declined to make a retrospective application of the  KRS § 342.186 employer notice requirement which was not in effect at the time of the employee's injury. The court relied upon a strict rule of construction against retrospective operation of statutes and reiterated the presumption of prospective application, especially when new rights and duties are created.  The notice requirement under KRS 342.186 was an additional duty which the employer did not have at the time of the alleged injury.

Keith v Hopple Plastics, 178 S.W.3d, 463 (Ky 2005) upholding the constitutionality of KRS 342.730(4) terminating income benefits as of the date upon which the employee qualifies for normal old age Social Security Retirement benefits, as no violation of the equal protection clause at §3 of the Kentucky Constitution.

McClain v Dana Corp, et al, 16 S.W. 3d (320) (Ky. App. 1999) upholding constitutionality of House Bill 1 1996 alleged to have arbitrarily devalued workers' compensation benefits to the point that they were not an exclusive remedy, and an employee could sue for common law damages by civil suit.  Here held HB1 constitutional and exclusive remedy of Workers' Compensation Act barred civil suit.

Each dedicated specialist is willing and able to provide our employer, insurance and third-party administrator clients with prompt and efficient service in a professional manner, maintaining a balance of legal costs and quality representation.