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The Kentucky DWC announces that the Workers’ Compensation Nominating Commission is now accepting applications for one (1) position for Workers’ Compensation Board Member. The board position term will run January 4, 2010 through January 3, 2014. This is a full-time position and the appointee shall not hold any other public office.
An applicant for the Workers’ Compensation Board Member position must be an attorney and must have the qualifications required of an Appeals Court Judge (except for residence in a district), shall receive the same salary and shall be subject to the same standards of conduct.
APPLICATIONS MUST BE RECEIVED ON OR BEFORE NOON (EST), MONDAY, November 2, 2009. Interested parties are required to send one original resume and seven copies along with a cover letter containing an e-mail address to the attention of Brenda Majcher, Nominating Commission Clerk, Kentucky Department of Workers’ Claims, Prevention Park, 657 Chamberlin Avenue, Frankfort, KY 40601. Questions may be directed to Ms. Majcher at 502-564-5550, Ext. 4439 or brenda.majcher@ky.gov.
The Commonwealth of Kentucky does not discriminate on the basis of race, color, religion, national origin, sex, age, disability, sexual orientation, gender identity, ancestry or veteran status in the admission or access to, or participation or employment in, its programs or services.
Insurancejournal.com recently posted a boast by Kentucky Employers’ Insurance (KEMI), Kentucky’s “largest workers’ compensation insurer”, touting its 6% reduction in Kentucky workers’ compensation rates (See KEMI’s press release). The reduction is not particularly indicative of anything the company itself is doing, but based more broadly on the general decline of rates statewide, not to mention similar declines in other states.
Riskandinsurance.com reports that for the fourth consecutive year workers’ compensation rates in Kentucky have declined, a trend indicative of a continuing decline in the number and severity of workplace injuries in the state. Even West Virginia and Florida are announcing similar reductions.
The data relied upon by many insurers in determining workers’ compensation rates is provided by the National Council on Compensation Insurance (NCCI), the nation’s largest collector of workers’ compensation insurance data.
See a previous post initially addressing this trend.
LexisNexis has bestowed yet another honor
on the Roland Niemi Law Group by announcing “Kentucky Workers’ Compensation Powered by Roland Niemi Law Group”, a state specific component of its Workers’ Compensation Law Center Top Cases. Roland Niemi will be contributing monthly updates of important Kentucky workers’ compensation cases.
LexisNexis has previously ranked Roland Niemi’s blog OUCH! as one of its top 25 blogs and recently appointed Marcus A. Roland of Roland Niemi Law Group to the Larson’s National Workers’ Comp Advisory Board. Roland also blogs for the Workers’ Comp Law Center on Kentucky-specific issues.
The mileage reimbursement rate beginning October 1, 2009 through December 31, 2009 is 41¢ per mile.
The Controller’s website has been updated to reflect this change. Refer to the Controller’s web page for all related travel information at http://finance.ky.gov/internal/travel/
If you would like to be added to the Controller’s Travel Information Distribution list, please e-mail Patricia Boler at patricia.boler@ky.gov
From LexisNexis’ Kentucky Workers’ Compensation Powered by Roland Niemi Law Group
Bell v. Consol of Kentucky, Inc., No. 2009-CA-000673-WC (Ky. App. 2009) (designated to be published). Claimant Bell entered into a settlement for benefits to be paid as a result of injuries he sustained in a work-related accident. Bell thereafter died in an un-related accident and his wife motioned to receive the full amounts of the remaining settlement benefits. The ALJ allowed for distribution of benefits to the widow, but only at 50% of the rate specified in the settlement agreement as required under KRS 342.730(3). Bell ’s widow essentially argued on appeal that since the benefits were paid per a settlement and not an opinion and award, KRS 342.730(3) did not apply. The Court of Appeals, noting that the claim appeared to be one of first impression, held that KRS 342.730(3) applied with the same effect for a settlement as with an opinion and award.
Commentary: While this claim did appear to address an issue of first impression in Kentucky, the Court was correct in applying the same statutory provision to a settlement as would apply to an opinion and award since Kentucky law conveys the same weight to an approved settlement agreement as it does to an opinion and award. See Jude v. Cubbage, 251 S.W.2d 584 (Ky. 1952) (cited by the Bell court).
From LexisNexis’ Kentucky Workers’ Compensation Powered by Roland Niemi Law Group
In Ranger Contracting v. Morley, No. 2008-CA-0010307-WC (Ky. App. 2009) (designated to be published) the claimant had originally settled his claim stemming from a work-related hip injury and then subsequent to settlement moved to reopen the claim seeking compensation for medical treatment of low back pain which he attributed to the original injury. While medical testimony regarding the relationship of the low back pain to the original injury differed, the ALJ relied on claimant’s treating physician who opined the back pain was related to the original injury. The employer challenged the finding on various grounds arguing (1) that claimant was alleging a new injury not brought at the time of the original claim even though it was known to him deeming it barred under KRS 342.270; (2) that the claim was barred by the statute of limitations and (3) that the pain was not causally related to the original injury. In dismissing the employer’s arguments, the Court held that the back pain was compensable, noting that the pain did not constitute a new medical condition or injury and medical proof established it was causally related to the injury. In short, the Court deemed the back pain was a symptom or “natural consequence” of the hip injury even though the claimant did not injure his back in the original work accident.
Commentary: The court’s reasoning was sound, although some legal practitioners and physicians might take issue with the Court’s statement that pain in and of itself is not a medical condition but merely a symptom of a medical condition.
Governor Beshear has appointed Robert L. Swisher and Jeanie Owen Miller administrative law judges in the Department of Workers’ Claims. Swisher, who replaces ALJ Donna Terry, is a partner with the Northern Kentucky based workers’ compensation defense firm of Jones, Dietz & Swisher. Swisher is a graduate of the University of Notre Dame and the University of Kentucky College of Law. He has been licensed to practice law since 1979.
Miller, who replaces ALJ Irene Steen, is an Owensboro, Kentucky attorney with several degrees from the University of Kentucky. Miller’s law practice focused primarily on personal injury, disability and workers’ compensation law. She has been licensed to practice law since 1984.
Both will serve terms expiring Dec. 31, 2013. The appointments are effective Jan. 1, 2010.
The Associated Press recently reported on an Indiana workers’ compensation case, Boston’s Gourmet Pizza v. Childers, where an employer was ordered to pay for lap band surgery for an overweight employee who injured his back in an work-related incident and was required to undergo the weight loss surgery before the surgery to correct his back injury could be performed.
In March 2007, Childers, who was then 25 and weighed 340 pounds, was struck in the back by a freezer door at Boston’s The Gourmet Pizza. His physicians recommended surgery to ease his pain, but warned the operation would be unsuccessful unless he underwent surgical weight reduction.
Boston’s agreed to pay for the back surgery, but denied its liability for payment of the weight-loss surgery which ranged in cost from, $20,000 to $25,000, relying on the argument that Childers was obese before he was hurt.
The Indiana Court of Appeals found the surgery compensable because Childers’ weight and the accident had combined to create a “single injury.” They further noted that Boston’s presented no evidence that Childers’ weight had been a problem before the accident.
The Kentucky Workers’ Compensation Board has adopted a similar theory of compensability. While not using the Indiana court’s “single injury” language the reasoning and result are essentially the same. Blue Chips Installation, Inc. v. Denniston, Kentucky Workers Compensation Claim No. 02-97692 (2005), involved the compensability of a dental procedure, which treating physicians required the claimant to undergo before performing surgery to treat his work injury.
The Board looked to foreign jurisdictions to formulate their decision. The lengthy and well researched discussion was as follows:
[W]e do not read the court’s holding in Allstate Insurance Co. v. The Industrial Commission of Arizona, 126 Ariz. 425, 616 P.2d 100 (App. 1980), as limited to emergency situations. Blue Chips apparently interprets the Arizona court’s ruling as limited to instances in which treatment of a nonwork-related condition is necessary in order to address a work-related injury of an urgent nature. From our own review of Allstate, supra, however, it does not appear that the court’s holding or rationale was in any way based upon or limited to emergency work injuries. In fact, the court’s summary of the case indicates that the claimant had been admitted to the hospital for a diagnostic myelogram and possible laminectomy. A routine urinalysis and EKG performed pursuant to the hospital admission revealed an abnormally high protein level and an atrial fibrillation. Perhaps Blue Chips intends to suggest that the nonwork-related condition must be of an emergency nature and necessary to the treatment of a work-related condition (of an emergency nature or not) in order to be found compensable. Again, however, we do not so read the Allstate opinion, which specifically holds as follows:
It is generally accepted that where an industrial injury results in surgery which aggravates a preexisting condition or causes further complications, the entire result is an industrial responsibility.
* * * *
The question then is whether this reasoning should apply to pre-surgery treatment necessary to place the injured employee in a condition to undergo surgery related to an industrial injury. In reviewing the evidence, which we view in a light most favorable to sustaining the award . . . we find that the reasonable inferences from the evidence support the hearing officer’s conclusion that the medical intervention occasioned at the time for the atrial fibrillation and the renal shutdown were related to the procedures undertaken in preparation for the industrially related myelogram and lumbar surgery, and these preexisting conditions would not have required treatment but for the impending surgery.
Id. at 102. Further support for our interpretation of Allstate, supra, is found in a subsequent decision by the same court, Arrowhead Press, Inc. v. Indus. Comm. of Ariz., 134 Ariz. 21, 653 P.2d 371 (App. 1982).
We believe the circumstances of the case sub judice to be most similar to those before the Arizona court in Arrowhead, supra, where the court summarized the pertinent facts and its rationale as follows:
The evidence presented at the hearing revealed that one of claimant’s physicians, Robert Briggs, M.D., was of the opinion that it was necessary for claimant to be treated for the bronchitis so that she could undergo the anesthesia required for the knee procedures. . . . There was also evidence that claimant would not have been hospitalized if she had suffered only from the bronchitis. Thus, we hold that there was sufficient evidence to support the administrative law judge’s finding that the hospital treatment of the bronchitis was reasonably necessary and was incurred to place claimant in a condition to undergo surgery for her industrial injury. . . . Here, unlike in [Ross v. Industrial Commission, 112 Ariz. 253, 540 P.2d 1234 (1975), overruled on other grounds], the bronchitis treatment was necessary so that the industrial condition could be treated. In Ross, the treatment of the non-industrially injured eye was not undertaken as a precondition to the treatment of the industrially injured eye and thus was not the responsibility of the carrier.
Id. at 373.
The Arizona Court of Appeals later declined to extend its holding in Arrowhead, supra, to a situation involving a nonwork-related condition that would have required treatment notwithstanding the industrial injury at issue. Beasley v. Indus. Comm. of Arizona, 175 Ariz. 521, 858 P.2d 666 (App. 1993). The court distinguished Beasley, supra, from its earlier holdings on grounds that “[i]n neither case would the unrelated condition have required treatment æbut for’ the existence of the industrial injury.” Id. at 668.
The rationale set forth in Arrowhead, supra, was relied on by a Colorado appeals court in Public Serv. Co. of Colo. v. Indus. Claim App. Office, Colo.App., 979 P.2d 584 (1999), also cited by Denniston herein. In Public Serv. Co., supra, the court held that treatment of the claimant’s nonwork-related bipolar disorder was compensable where the evidence supported the finding that such care was a reasonably necessary prerequisite to surgical treatment of his industrial injury. The Colorado court also found support in Professor Larson’s treatise, concluding as follows:
Furthermore, we conclude that ancillary preoperative treatment is a pertinent rationale for reasonably necessary care of a non-industrial disorder, when such must be given in order to achieve the optimum treatment of the compensable injury.’ 5 Larson’s Workers’ Compensation Law, supra, at § 61.13(e).
Id. at 585.
Having reviewed the statutory plan for provision of medical treatment for work-related injuries in Kentucky, and being informed by the foregoing extraterritorial authority, we conclude that the employer may be held liable for the cost of ancillary treatment of a nonwork-related condition that is reasonably required in order to achieve optimum treatment of the compensable injury. The employer is not liable for treatment of a nonwork-related condition that is totally independent of the compensable injury and for which treatment would have been required notwithstanding the compensable injury.
In short, with regard to ancillary treatment, the inquiry at least in Kentucky (and apparently in Indiana as well) appears to be: (1) Is the nonwork-related treatment required in order to achieve optimum treatment of the compensable injury? and (2) Does the nonwork-related condition require treatment notwithstanding the compensable injury? If the answer to prong 1 is yes and the answer two prong 2 is no, the nonwork-related ancillary treatment will most likely be found compensable.
FRANKFORT, Ky. (Aug. 26, 2009) – An annual filing most insurance carriers will use to develop rates for workers’ compensation coverage shows the fourth consecutive decrease in loss costs, Department of Insurance Commissioner Sharon P. Clark announced today. The 2009 filing, 
approved by the state Department of Insurance and effective Oct. 1, is by the National Council on Compensation Insurance Inc. (NCCI), an advisory organization that serves as the oldest provider of workers’ compensation and employee injury data and statistics in the nation. “Kentucky employers and employees alike should view this as very good news,” said Clark. “Not only do employers benefit since workers’ compensation insurance is a large cost of doing business, but we are seeing evidence of safer working conditions for hardworking Kentuckians.” Clark noted that the report shows a continuing decline in the number of workplace injuries and the severity of those claims. Data collected from insurance carriers is used to develop loss costs, which is the average compensation for lost wages, based on the level of disability, plus medical benefit payments. Use of the information is voluntary but most workers’ comp carriers use the NCCI loss cost values as a base to which the insurer’s own loss adjustment and overhead expenses are added to arrive at the rates charged to Kentucky employers. The loss cost figures show an average reduction of 6.4 percent for the 598 industrial classes used in Kentucky. These classes include manufacturing, office and clerical, contracting, and goods and services. For coal classes, underground mining costs dropped 20.4 percent while surface mining decreased 13.1 percent.
