The Kentucky Bar Association Workers’ Compensation Law Section

and Young Lawyers Section

present:

Introduction to Workers'

Compensation Law CLE Seminar

This program has been approved in Kentucky for 4.00 CLE Credits including

0.00 Ethics Credit.

Compiled and Edited by: The Kentucky Bar Association

Office of Continuing Legal Education for

Kentucky Bar Association Workers’ Compensation Law Section and Young Lawyers Section

© 2012 All Rights Reserved Published and Printed by:

The Kentucky Bar Association, April 2012. Editor’s Note: The materials included in this Introduction to Workers' Compensation Law seminar book are intended to provide current and accurate information about the subject matter covered. The program materials were compiled for you by volunteer authors. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of the Kentucky Bar Association disclaim liability therefor. Attorneys using these materials or information otherwise conveyed during the program, in dealing with a specific legal matter, have a duty to research original and current sources of authority.

Introduction to Workers' Compensation Law CLE Seminar

Table of Contents

Agenda............................................................................................................................. i Speakers ........................................................................................................................ iii Workers' Compensation in Kentucky ............................................................................... 1 How to Practice a Workers' Compensation Claim: An "Outline" of Kentucky Workers' Compensation System & Procedure ................................................................. 7 Calculation of Benefits ................................................................................................... 49 The Perfect Appeal ....................................................................................................... 59

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Introduction to Workers' Compensation Law CLE Seminar April 17, 2012

Department of Workers' Claims Frankfort, Kentucky

12:15-12:40 p.m. Registration 12:40-12:45 p.m. Welcome & Introductions Stephanie Ross, Esq. Ferreri & Fogle, PLLC Carl N. Frazier Stoll Keenon Ogden, PLLC 12:45-1:45 p.m. History & Background of Workers' Compensation

in Kentucky (1.00 CLE credit) Commissioner Hon. Dwight T. Lovan Kentucky Department of Workers' Claims 1:45-2:45 p.m. Nuts & Bolts of Workers' Compensation Practice (1.00 CLE credit) Chief ALJ J. Landon Overfield Kentucky Department of Workers' Claims 2:45-3:00 p.m. Break 3:00-4:00 p.m. Doing the Math: Calculating Benefits (1.00 CLE credit) James G. Fogle, Esq. Ferreri & Fogle, PLLC

4:00-5:00 p.m. The Perfect Appeal (1.00 CLE credit) Chairman Hon. Michael W. Alvey Kentucky Workers' Compensation Board

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SPEAKERS Commissioner Dwight T. Lovan Kentucky Department of Workers' Claims 657 Chamberlain Avenue Frankfort, KY 40601 502.782.4439 Dwight T. Lovan serves as Commissioner of the Kentucky Department of Workers' Claims in Frankfort. The Department of Workers' Claims is the agency primarily charged with administration of the Kentucky workers' compensation program and has exclusive jurisdiction over workers' compensation claims. Commissioner Lovan received his B.A. from Baylor University in 1971 and his J.D. from the University of Kentucky College of Law in 1977. Following law school, Commissioner Lovan worked for fifteen months as a staff attorney for the Kentucky Court of Appeals with responsibility for workers' compensation appeals. From 1979 to 1980, he practiced law in Owensboro, concentrating in the areas of workers' compensation and civil litigation. In May 1990, Commissioner Lovan was appointed Administrative Law Judge and remained in that position until August 1994, when he was named to the Kentucky Workers' Compensation Board. He served as Chairman of the Board before returning to private practice in the firm Jones, Walters, Turner and Shelton. In February 2008, he was appointed to serve as Commissioner of the Department of Workers' Claims. Commissioner Lovan is a member of the Kentucky Bar Association and its Workers' Compensation Law Section.

Chief Administrative Law Judge J. Landon Overfield Kentucky Department of Workers’ Claims

657 Chamberlain Avenue Frankfort, KY 40601

502.564.5550 Jlandon.overfield@ky.gov

Judge J. Landon Overfield is Chief Administrative Law Judge with the Kentucky Department of Workers’ Claims. He received his B.A. from the University of Kentucky in 1970 and his J.D. from the University of Kentucky College of Law in 1972. Judge Overfield was in private practice in Henderson, Kentucky, from April 1973 until November 1994, where his practice concentrated in personal injury and workers’ compensation law representing both plaintiffs and defendants. He was appointed as an Administrative Law Judge and has served in that capacity since November 1994. He was appointed Chief Administrative Law Judge effective September 1, 2010. Judge Overfield is a member of the Kentucky and Henderson County Bar Associations. James G. Fogle Ferreri & Fogle, PLLC 333 Guthrie Green, Suite 203 Louisville, KY 40202 502.582.1381

Jim Fogle is a member/owner of Ferreri & Fogle, PLLC in Louisville, where he practices Kentucky workers' compensation defense. He received his B.A. from Morehead State University and his J.D. from the Northern Kentucky University Salmon P. Chase College of Law.

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Mr. Fogle began his legal career as an attorney with the Special Fund from 1978-1982 and worked as an associate and later a partner at Mills, Mitchell & Turner from 1982-1989 prior to co-founding Ferreri & Fogle, PLLC. He was inducted into the American Bar Association's College of Workers' Compensation Lawyers in 2008 and included in Louisville Magazine's list of Best Workers' Compensation Lawyers that same year. He is a member of the American, Kentucky and Louisville Bar Associations.

Chairman Michael W. Alvey Kentucky Workers' Compensation Board

Post Office Box 1826 Owensboro, KY 42302-1826

270.687.7337 Michael W. Alvey serves as Chairman of the Kentucky Workers' Compensation Board, which is the first step in the appellate process in a workers' compensation litigated claim. The three members of the Board are appointed to four-year terms by the Governor, subject to confirmation by the Senate. Board members must possess qualifications of Court of Appeals judges. Chairman Alvey received his B.A. from Western Kentucky University in 1980 and his J.D. from the University of Kentucky College of Law in 1988. Following law school, Chairman Alvey practiced primarily defending workers' compensation, federal black lung and personal injury claims. In November 2009, he was appointed to serve as Chairman of the Kentucky Workers' Compensation Board. Chairman Alvey retired from the Kentucky Army National Guard in 2000 where he served nearly twenty-one years as an armor officer, and is a graduate of the Armor Officer Basic Course and Armor Officer Advanced Course. He was recently appointed to the board of directors for the National Association of Workers' Compensation Judiciary (NAWCJ) and is a member of the Kentucky Bar Association and its Workers' Compensation Law Section.

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WORKERS' COMPENSATION IN KENTUCKY Commissioner Dwight T. Lovan

HISTORY Compensation acts are of modern origin, the first two being enacted in 1911 in Wisconsin and New Jersey. Kentucky’s first Act was passed in 1914 but ruled unconstitutional in Kentucky State Journal Co. v. Workmen’s Compensation Board, 170 S.W. 437 (Ky. 1914). The Act was again adopted in 1916 including provisions that made it voluntary for the employee so that it would pass constitutional muster. See Greene v. Caldwell, 186 S.W. 648 (Ky. 1916). Prior to that time, an employee injured on the job generally was required to resort to tort litigation. This involved the necessity of establishing negligence on the part of the employer and demonstrating the employee had in no way contributed to the accident. Individuals who were injured or killed in a work accident where negligence could not be found were without a source of compensation and they and their family relied upon either public or private largesse. With the advent of the industrial revolution, more and more injured workers found themselves unable to support themselves or their families as a result of the inability to compete for employment. Many state legislatures determined that this created a real public problem and, therefore, concluded it was in the public interest to place the burden for injuries received upon the industry in which they were suffered and not on society as a whole. Robinson vs. Lytle, 124 S.W.2d 78 (Ky. 1939). In order for this goal to be achieved, it was necessary to affect a compromise between the employer and the employee. Additionally, it was recognized that such an approach might avoid the expense, delay and uncertainty of an action at law. Morrison vs. Carbide & Carbon Chemicals Corp., 129 S.W.2d 547 (Ky. 1939). In order to succeed, it was necessary for both employers and employees to surrender some of their rights under common law. The employer relinquished the right to require the employee to show some negligence, to assert certain affirmative defenses, and to be unsecured. The employee gave up the right to seek recompense through a jury trial, regardless of the existence of negligence or the level of negligence involved, the right to seek redress against a co-employee, and the right to a full measure of damages that existed within the tort system. Ultimately, workers' compensation laws gave rights to contracting employers that are not given by the common law or other statutory enactments, and, as a condition of such rights, there are certain requirements that must be observed. The courts also enforce statutory obligations which include, insofar as practicable, the elimination of the common law action for personal injury growing out of industrial accidents. Reliford vs. Eastern Coal Corp., 149 F.Supp. 778 (E.D.Ky. 1957), affirmed 260 F.2d 447, cert. denied 359 U.S. 958. As such, workers' compensation acts were able to effectuate a beneficent purpose which included substituting more certain remedies of compensation for previously existing common law rights. Staton vs, Reynolds Metal Co., 58 F.Supp. 657 (W.D.Ky. 1945). Workers' compensation acts at their core constituted some of the very earliest pieces of social legislation and tort reform in this country. Today, the essential underlying purposes remain the same. In the early years of workers' compensation in Kentucky, these acts were purely voluntary. In order to be covered by workers' compensation, an employee had to sign a compensation register indicating acceptance of the provisions of the Workers' Compensation Act. Many of the cases discussing the early provisions of the Act came

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about when an employer attempted to show in a civil case the employee had accepted the provisions of the Act, and was barred from receiving civil damages. Failure to secure voluntary acceptance precluded the employer from raising some affirmative defenses in a civil action. Further, the exposure economically was significantly less under the provisions of the Workers' Compensation Act than in an unsuccessful civil action. Today KRS 342.690(2) provides that if an employer fails to offer security for workers' compensation benefits, certain defenses will not be available in a civil case. During these early years of workers' compensation, income benefits were generally low. Of course, wages were fairly low at that time also. The Act provided for an artificial cap on the number of weeks an individual would receive either permanent partial or permanent total benefits. From the inception of workers' compensation laws in Kentucky until January 1973, there was a fixed cap on medical expenses. In the latter years, however, this cap could be exceeded in the event the employee made a motion to reopen and established that greater medical expenses were necessary. Beginning around 1955, workers' compensation laws became less voluntary and more mandatory. Most acts were written in such a way that an employer was deemed to have accepted the provisions of the workers' compensation law and an employee was required to affirmatively reject the Act rather than accept it. As late as 1975, the Kentucky Supreme Court in Davis vs. Turner, 519 S.W.2d 820 (Ky. 1975) mandated that except for employers of exempt employees, there was no option on the part of the employer not to come under the law. In fact, employers who might otherwise have exempt employees under the Act can, if they so desire, operate under the Act by securing workers' compensation insurance and appropriately notifying the Department of Workers’ Claims. An employee may continue to reject the Act by executing a standard form available through the Department of Workers’ Claims and by filing that rejection with the Department. The courts have generally taken a dim view of voluntary rejections, particularly in circumstances where it appears the employer has made rejection of the Act an obligation of employment. In late 1972, a special session of the Legislature occurred. That Act, which became effective January 1, 1973, constituted a substantial change in the workers' compensation law. All disability benefits were paid for life. Claims for coal workers' pneumoconiosis became more significant and substantial. Coincidentally, the wages of coal miners were on a significant upturn as was the awarding of Federal black lung benefits. Weekly benefits continued to be fairly low and were less than the state's average weekly wage. As the 1973 Act continued to be in use, significant attorney fees were generated, particularly in the coal fields of Eastern and Western Kentucky. In fact, in the early to mid 1970s, the Louisville Courier Journal published a list of attorneys who secured a million dollars in attorney fees as a result of black lung awards, although attorney fees were limited to a maximum of $6,500 per claim. 1976 brought forth two decisions that played a significant role in a change in the workers' compensation law by the 1980 Legislature. The first was Apache Coal Co. vs. Fuller, 541 S.W.2d 933 (Ky. 1976), in which the Supreme Court interpreted certain provisions of the Act as mandating a minimum weekly benefit whether it be a permanent total or permanent partial award and regardless of the individual's average weekly wage. The other decision was rendered in C. E. Pennington Co., Inc. vs. Winburn, 537 S.W.2d 167 (Ky. 1976), in which the Court concluded the percentage of disability was multiplied by an individual's average weekly wage before it was reduced to the maximum benefit.

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Because of increasing wages being paid to employees, it was conceivable that a high wage earner would receive the statutory maximum benefits for life even though their actual disability might be 50 to 60 percent. In essence, individuals were permitted to return to work without fear of reopening by the employer while continuing to receive maximum benefits under the Act. During the regular Legislative session in 1980, significant modifications occurred. First, permanent partial disability benefits were limited to 425 weeks with any temporary total disability benefits reducing the number of weeks payable for permanent partial. By the same token, however, the weekly benefits under the Act received by the employee were increased. If an individual received a total occupational disability, it would be for that individual's life. The requirement for minimum weekly benefits ceased to exist for permanent partial disability claims but continued for total claims. Additionally, the Legislature directed that workers' compensation benefits would terminate when an individual began to draw old age Social Security or became eligible for full old age Social Security benefits. Although the courts had, on a number of occasions, differentiated between "impairment" and "disability," the Act for the first time made reference to the use of the American Medical Association Guidelines to Functional Impairment. A statutory provision addressing permanent partial disability directed that disability be determined in accordance with the latest edition of the American Medical Association Guidelines to Functional Impairment or actual occupational disability. The Court in Cook vs. Paducah Recapping Service, 694 S.W.2d 684 (Ky. 1985), concluded the language used by the Legislature did not mandate a minimum benefit in accordance with the American Medical Association Guidelines to Functional Impairment nor, for that matter, did it establish a maximum. In reality, the AMA Guidelines became merely one of the many factors to be used in determining "disability." The 1982 Legislature made some minor changes to the 1980 Act. They removed the requirement that benefits cease at age sixty-five. They further removed the requirement that weeks of temporary total disability benefits would reduce the number of weeks an individual received the permanent partial disability benefits. And, finally, in an attempt to address the increasing unfunded liability of the Special Fund, changed the manner in which Special Fund payments were made, with the Special Fund paying benefits directly to the injured worker rather than by way of reimbursement of the employer after the employer had satisfied its liability. It should be noted that prior to 1973, if an individual were found to have coal workers' pneumoconiosis and it resulted from multiple exposures, the entire liability was paid by the Special Fund. From 1973 to 1980, if an individual had multiple exposures, although it was apportioned 25 percent to the employer and 75 percent to the Special Fund, as it is now, the Special Fund would pay the entire amount with reimbursement being sought from the employer. If it were a single employment or exposure, the employer who was liable for 60 percent of the benefits would pay with reimbursement from the Fund. In October 1987, a special session of the Legislature took place. It was primarily called to address concerns of the unfunded liability existing on the part of the Special Fund. What began as legislation attempting to deal with the unfunded liability issue resulted in a major change relating to the operation of the Kentucky workers' compensation system. Throughout the prior history of the Kentucky Workers' Compensation Act, there existed a part-time Workers' Compensation Board, which consisted of five members, who would

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meet in Frankfort one day a week and render decisions. Effective October 26, 1987, the Workers' Compensation Board became a full time three member board which had appellate responsibilities and thus replaced the circuit courts as the first step in the appeals process. Ten Administrative Law Judge positions were created. The Administrative Law Judges were assigned the responsibility of fact finding, replacing what had been the "Old" Workers' Compensation Board. In addition, black lung benefits were modified to create what is frequently referred to as a tier system. Four options were available in a black lung claim, the first being dismissal; the second, retraining incentive benefits; the third, 75 percent occupational disability; and the last, a total occupational disability. The apportionment scheme between the employer and the Special Fund remained the same except for retraining incentive benefits, which became the sole responsibility of the employer with whom the claimant was last exposed. At the time, a little perceived procedural change in the black lung statute allowed for the filing of a black lung claim by an individual who continued to work. In the previous laws, the courts had interpreted the statute on occupational disease to mean that if an individual continued working, and thus continued to be exposed to the hazards of the disease, he or she could not file a claim. While initially this was of little import, a 1991 decision of the Kentucky Supreme Court in Eastern Coal Corp. vs Blankenship, 813 S.W.2d 808 (Ky. 1991), stated that in order to receive retraining incentive benefits actual retraining was unnecessary. Following that decision, the number of retraining incentive benefits claims proliferated. Other major changes included limiting apportionment as between an employer and the Special Fund on low back claims and heart attack claims such that the Special Fund could be liable for no more than 50 percent of the disability benefits. In 1990, the Legislature added five additional Administrative Law Judges, presumably upon the recognition that the work load and the volume of cases coupled with the travel in handling cases was simply too much for ten ALJs to withstand. During the regular Legislative session of 1994, workers’ compensation was again revisited. The result was House Bill 928. This statutory change again addressed the impact of an individual reaching age sixty-five and presumably becoming eligible for normal Social Security benefits. It created what became known as the “tier down” provisions. Beginning at age sixty-five, an individual who has received an award based upon an injury prior to his sixty-fifth birthday would experience a 10 percent reduction in those benefits each year through age seventy. Changes relating to coal workers' pneumoconiosis also were made. The process for pursuing and receiving retraining incentive benefits was significantly modified. If an individual continued to work in the mining industry in the severance and processing of coal, then any benefits awarded for Category 1 coal workers' pneumoconiosis without impairment were paid only to a bona fide training program approved by the Commissioner of the Department of Workers’ Claims. Additionally, for claims seeking Tier 2, Tier 3 or Tier 4 benefits, the worker may not even file such a claim until he leaves the mining industry. The definition of injury was modified to the extent that an individual who experienced a psychological problem allegedly related to work, absent a concurring physical injury, was no longer covered by the Kentucky Workers' Compensation Act. Individuals who sustained a work-related injury and returned to work at the same or greater wage could only receive an award of permanent partial disability of one to two times functional impairment as determined by the latest edition of the American Medical

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Association Guidelines to Functional Impairment. Individuals who receive greater than a 50 percent occupational disability would receive benefits for 520 weeks rather than 425 weeks. Workers found to be totally disabled received lifetime benefits. Continuing to address the potential "unfunded" liability of the Special Fund, the Legislature mandated that in all injury claims, the Special Fund, regardless of the evidence, could be responsible for no more than one-half of any award. This apportionment scheme did not apply to coal workers' pneumoconiosis. In an attempt to address the acceleration of liability on the part of the Special Fund in the event of a unilateral settlement by the employer, the Legislature provided in KRS 342.120(8) that the Special Fund would pay its liability over the entire period of payments. This change was in response to Newberg ys. Chumley, 824 S.W.2d 413 (Ky. 1992), which directed pre-1994 unilateral settlements to accelerate both the weeks and dollars to be paid by the Special Fund. A dollar "cap" was reinstituted on attorney fees. An attorney could receive no more than $15,000 as an attorney fee in a workers' compensation claim regardless of the total amount recovered on behalf of the worker. There were also modifications in the medical arena. The Legislature authorized the inception and use of managed care for workers' compensation injuries. These managed care programs reduced the worker's ability to totally and solely control his or her choice of physicians. Within the managed care program, if used by an employer, the employee is obligated to have a gate-keeper physician and may only change that physician once, referrals to specialists, absent emergency situations, remain in the program with one right to a second opinion. In addition to managed care, the Commissioner of the Department of Workers’ Claims was authorized to establish practice parameters for physicians in the treatment of workers' compensation injuries, some of which have been adopted. (See Acute Back Problems in Adults). Insurers were leaving Kentucky and the costs of securing coverage through the assigned risk pool continued to rise. A competitive state fund was created as a quasi-governmental entity, Kentucky Employers Mutual Insurance. This entity, as of September 1, 1995, completely replaced the pool. In addition to ensuring all employers would have the ability to secure coverage for work-related injuries, the competitive state fund was authorized to seek out and write competitive policies. KEMI, as it is now known, was essentially directed to be self-supporting within three years. Its initial funding mechanism permitted it to secure a "loan" from other governmental organizations. There were also "minor" revisions to the administrative process. The Commissioner of the Department of Workers’ Claims assumed responsibility for all administrative functions of the Department. That individual ceased to be selected by the Board and became an independent operative upon appointment by the Governor. The Workers' Compensation Board ceased its involvement in the day-to-day operation of the Department of Workers’ Claims and its function became purely appellate. Further, the Workers' Compensation Board was mandated to render opinions on appeal within sixty days of the filing of the last brief. One new Administrative Law Judge position was created for the purpose of having a Chief Administrative Law Judge. This individual, in conjunction with the Commissioner of the Department of Workers’ Claims, had general oversight of the remaining fifteen ALJs. She was assigned no regular pre-hearing and hearing dockets but was available to assist other ALJs in the event of crisis situations.

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ALJs were mandated to render an opinion in a case before them within sixty days of the hearing unless the parties agreed otherwise. Another extraordinary session of the legislature (special session) occurred in December 1996. What many believed was to be a further discussion to resolve the unfunded liability of the Special Fund and the role coal claims played in that liability turned into some of the most sweeping changes to the Workers’ Compensation Act since 1972. House Bill 1 which became effective December 12, 1996, altered not only the provisions of the Act, but the thinking processes of those involved with workers’ compensation in Kentucky. Permanent partial disability became a mathematical function of an impairment rating determined in accordance with the latest edition of the AMA Guides to the Evaluation of Permanent Impairment. Permanent total disablitiy was presumed to have become more limited with a modification of its definition in KRS 342.0011(11). However, subsequent court decisions taught us otherwise. See Ira A. Watson Dept. Store v. Hamilton., 34 S.W.3d 48 (Ky. 2000). The Special Fund ceased to be an entity that shared liability in all new claims. Black lung claims were altered with entitlement to benefits being limited in most situations unless there was evidence of breathing impairment. Physicians at the two University Medical Schools were mandated to offer true “independent medical exams.” The impact of the change to black lung benefit entitlement is evidenced by the reduction of black lung claims filed in 1993 of almost 7,000 to an average of 150 or fewer from 1997 to the present. A new adjudicatory step, arbitrators, was created, and another, the Workers’ Compensation Board, was allowed to sunset. However, after four years of this new adjudicatory step, the regular session of the 2000 Legislature reversed this action. The arbitration process ceased to exist and the plan for the Workers’ Compensation Board to cease its existence as of July 1, 2000, found it reinstated effective July 15, 2000. The 2000 legislative session also resulted in modifications to the 1996 enactment focusing primarily on the refinement of the determination of benefits in traumatic injuries. After 2000, the word “multipliers” became a repetitive part of permanent partial disability language. This gave rise to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) and its progeny. The legislature attempted to address concerns about the substantial reduction in black lung awards in 2002. It gave us the “consensus process” and “B” reader panels until December 22, 2011, when the Supreme Court gave us Vision Mining v. Gardner, 2011 WL 6543000 (Ky. Dec. 22, 2011), designated to be published, holding this process to be unconstitutional. We have had no major legislative changes to the Kentucky Workers’ Compensation Act since 2002 or some might say since 1996, but as can be seen by the Vision Mining decision and decisions of the Supreme Court almost on a monthly basis, the history of Kentucky Workers’ Compensation is constantly changing.

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HOW TO PRACTICE A WORKERS’ COMPENSATION CLAIM: AN “OUTLINE” OF KENTUCKY’S WORKERS’ COMPENSATION

SYSTEM & PROCEDURE J. Landon Overfield, CALJ

I. INTRODUCTION

This outline is intended to provide some thoughts which will enable young lawyers to practice workers’ compensation claims in an effective manner. Workers’ compensation practice, in past decades, has been seen as a lower echelon practice which did not require a considerable amount of expertise. This is no longer the case. Workers’ compensation has now become highly specialized. As hundreds of thousands of dollars may rest on the results of these claims, the practitioner must stay abreast of the rapidly changing statutory and regulatory authority governing the practice. One of the most expedient methods by which to stay current with the rapidly changing law is by way of the Internet. You can log on to the Department of Workers Claims (DWC) web site at http://www.labor.ky.gov/workersclaims and the Kentucky Bar Association (KBA) web site at http://www.kybar.org/. Both sites offer free access to Kentucky statutes and administrative regulations. The DWC website also offers access to forms and other information useful in the practice of workers’ compensation claims. Through the KBA site, access can be gained to Casemaker Legal Research, a website offering FREE access to the research of Kentucky case law. This outline will begin where the case begins, with the initial decision concerning representation of the client. The outline contains no discussion regarding coal workers’ pneumoconiosis claims, as this practice is HIGHLY specialized, has changed significantly in the last couple of years and is currently in a state of flux.

II. SHOULD YOU TAKE THIS CASE?

A. Defendant

The query concerning representing a client is less burdensome to the counsel for defendant. The only real issue is the past experience with the client (if self-insured) or the client’s carrier or third-party administrator (who is probably paying you), whether or not this client, carrier or third party administrator (TPA) offers suitable remuneration for the attorneys’ representation, and whether counsel can maintain a working relationship with the client and/or carrier/TPA.

B. Plaintiff

Such is not the case with the practitioner who represents workers’ compensation plaintiffs. The success of such a practitioner’s business is often directly related to the screening of prospective clients. Good cases tend to foster good results, and the opposite is also true. (Ancient Native

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American proverb: “The success of the rain dance has a lot to do with timing.”)

At the 2011 Mid-Winter Meeting & CLE Seminar sponsored by the Kentucky Bar Association’s Workers’ Compensation Law Section, a very effective presentation was given by Christopher P. Evensen, Esq., entitled: “Effectively Handling Cases from a Plaintiff’s Perspective.” Mr. Evensen noted that, over the years, he had developed a “red flag checklist” that he uses in deciding whether or not to agree to represent a perspective plaintiff. With his permission, I am sharing that portion of his outline, verbatim, with you:

1. Parent or spouse makes the phone call/does all the talking for the claimant. “Who’s really calling the shots?”

2. They just fired their last lawyer because “He wasn't

doing anything.” If they had a problem with another lawyer, you may be the next.

3. “I'm not looking to get any money out of this.” Tells

me their main interest may be how much money they can get out of it.

4. Prior claims/prior lawyers: More than three prior

claims makes one wonder if the claimant is unlucky or has other motives. Also, have different lawyers handled the prior claims -- why not go back to the same lawyer? Look at (2).

5. Out of state claimant. It's not their fault they no

longer live here, but it does make things more difficult for scheduling IMEs, deposition and appointments with the claimant.

6. Language barrier. Why did I take French in high

school? There are an increasing number of non-English speaking workers in Kentucky, the majority of which are Spanish-speaking. If you cannot communicate directly with your client, I believe you are at a disadvantage. Do they have a translator (friend or family member) who can accompany them to all meetings, deposition, IMEs, etc.? What about when a quick phone call to the client is necessary? This can become an issue.

7. Low-value claim: Can the cost necessary to obtain

the proof necessary to win the case be justified? 8. Various other flags.

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Mr. Evensen’s theory is that the presence of two of his “red flags” raises serious concern with him as to whether or not to take the case. Having practiced workers’ compensation claims for both plaintiffs and defendants for twenty-one years, and having adjudicated workers’ compensation cases for more than sixteen years, I think he has a very valid point. Prior to entering into a contractual relationship with a prospective client, the practitioner and/or his or her paralegal should conduct an in-depth interview with the prospective client and obtain authorization for a “records check.” After the initial interview, the practitioner should use an Open Records Request to inquire of the DWC concerning previous work-related injuries and previous filings of workers’ compensation claims. A check of the medical facilities in the prospective client’s home area should also be conducted to determine the prospective client’s medical history in general and, in particular, to check for previous injuries or illnesses which may have an effect on the prospects of recovery in the matter for which representation has been sought. If Plaintiff’s story and history check out, an attorney/client contract should be drafted and executed. Keep in mind that 803 KAR 25:010 §4(7) requires that a motion for attorney’s fee be accompanied by a photocopy of the signed and dated contingency fee contract. After entering into the contractual arrangement for representation, get the claim ready for presentation. This will require investigation to make sure all of the facts are as Plaintiff has related them. The practitioner should also gather all medical records and have a medical report, preferably from the treating physician, which gives an opinion concerning the work-related injury, a specific diagnosis, the causation of the impaired condition, a functional impairment rating, if Plaintiff is at maximum medical improvement, and an opinion concerning restrictions on Plaintiff’s physical activities. In short, have the claim ready for litigation before the initiating pleadings are ever filed. It is also important that you know your Plaintiff and know how he or she will appear under direct and cross-examination.

After gathering all of the necessary information, discuss with your client his or her expectations of recovery. At this point, the practitioner should educate the client as to the intricacies and realities of workers’ compensation. Together, the practitioner and the client should arrive at a reasonable expectation for recovery. At that time, make a demand upon the Defendant and/or its representative for settlement. Make sure the settlement demand is a reasonable one and one that is supported by the medical evidence which you will introduce if the claim is not settled. In this settlement demand, set a time limit for a response and inform the Defendant that, if a response is not received on a certain date, the claim will be filed immediately after the passage of that date. Your negotiations should be done in a manner which is ethical, professional and reasonable. Keep in mind that the fact that the Defendant/adjuster does not agree with your position does not mean that the person is stupid, evil or both. Reasonable minds can often disagree as to the value of a claim.

While the claim is in negotiation, get the claim ready for filing. You must know what forms to use, and the forms you use should be the latest available. Again, these forms can be obtained from the DWC website. Also make sure that you are basing your settlement demand and the gathering of information for filing a

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claim on the most recent statutory and regulatory material. Both the statutes and the regulations change frequently. These changes should be anticipated and the most up-to-date material should be used. Have your initiating pleadings ready for filing in the event the settlement negotiations break down. It would also be helpful to anticipate any unusual legal questions and have research performed which will provide you with authority for the position you are advocating. Having all the proper material at your fingertips will allow you to negotiate from a position of strength. If your reasonable settlement demand is ignored, or you have reached a negotiating impasse, file your claim and litigate from a position of strength.

III. PRELIMINARY PLEADINGS.

A. Initiating Pleadings, Plaintiff

Procedures for filing claims for injuries, occupational diseases and hearing loss are set forth in 803 KAR 25:010 §§3, 5, 6 and 7. To initiate an injury claim, the claimant must file a Form 101 (Application for Resolution of Injury Claim, Addendum 1), a Form 104 (Work History, Addendum 2), a Form 105 (Medical History, Addendum 3), and a Form 106 (Medical Release, Addendum 4). Note that the work history should date back twenty years. The medical history should date back fifteen years and should include all treatment, not just treatment related to the injury. In addition to these forms, the claimant must attach one medical report describing the injury that is the basis of the claim. If a psychological condition is alleged, a medical report establishing the presence of a mental impairment or disorder must also be filed. The Form 101, like the other forms, calls for specific information. The Form 101, and all other initiating pleadings, should be completed entirely with well-worded responses where information is requested. The Form 101 is, in most instances, the first piece of information reviewed by the Administrative Law Judge (ALJ) to whom the claim is assigned. The manner in which the Form 101 is completed gives an indication as to the skill and competence of the attorney completing the Form 101. Also, a full disclosure on the Form 101 and the accompanying forms (Work History, Medical History, etc.) sets the tone for the manner in which the claim will be practiced. It also gives the ALJ a good overview of the Plaintiff and the Plaintiff’s work and medical history. To initiate an occupational disease claim, the claimant must file a Form 102 (Application for Resolution of Occupational Disease Claim, Addendum 5) and Forms 104, 105 and 106. Additionally, the claimant must file one medical report supporting the existence of the occupational disease.

To initiate a hearing loss claim, the claimant must file a Form 103 (Application for Resolution of Hearing Loss Claim, Addendum 6) and Forms 104, 105 and 106. Additionally, the claimant must file one medical report describing the hearing loss. As with any injury claim, if a

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psychological condition is alleged, a separate report establishing that condition must also be filed. Medical reports filed with applications shall be considered as evidence. 803 KAR 25:010 §8(4). You don’t have to give notice that you intend the report to be evidence or re-file the report. It is evidence. Medical reports filed with applications may consist of handwritten notes of a treating physician but should be legible. The medical report should describe the subject injury, give a diagnosis and an opinion as to the cause of the condition, and its relation to the claimed injury.

B. Response by Defendant

Once the claim has been initiated by the filing of a Form 101, 102 or 103, the ball is in the Defendant’s court for a period of time. Although the Plaintiff still has the burden of proof, the scheduling order calls for immediate action by the Defendant. Once counsel obtains the file from the carrier/TPA/Defendant, immediate attention should be given to the medical reports in the defense file. If there has been no independent medical evaluation preformed for the defense side, one should be scheduled IMMEDIATELY. Close attention should be given to the medical reports/records filed with the Form 101, 102 or 103. Those documents are now automatically in evidence [803 KAR 23:010E §8(4)] as long as they are proper. If the Plaintiff has attached objectionable evidence to the Forms 101, 102 or 103, objections should be filed with or before the filing of the Form 111. It would also be wise to schedule an immediate conference with the employer representatives to determine whether or not the claim is legitimate and to determine what facts are available to defend the claim. If would also be advisable to immediately contact the office of counsel for Plaintiff to schedule a deposition and also to request a settlement demand. If the claim can be settled quickly and expediently, you will be elevated to a place of high esteem with your client who will then refer all workers’ compensation matters to your office. Once a claim has been initiated and a scheduling order issued, the Defendant has forty-five days from the date of the scheduling order in which to file a Form 111, Notice of Claim Denial (Addendum 7 for injury and hearing loss claims and Addendum 8 for occupational disease claims). 803 KAR 25:010 §5(2). If no Form 111 is filed, all of the allegations contained in the Forms 101, 102 or 103 shall be deemed admitted. This is a default judgment. If a claim is being denied in whole or in part, the Defendant shall state in detail the basis for the denial. As with the Plaintiff’s completion of a Form 101, the Defendant’s completion of the Form 111 says a great deal about how the claim will be practiced. Properly completing the Form 111 and providing all of the information requested is a good first step in an adequate defense of the claim. The defendant should also attach a job description to the Form 111 or, at some point in the proceedings, file a job description. The issue of whether a claimant is entitled to enhanced benefits under KRS 342.730(1)(c)1 may be determined by the job duties performed by the claimant at the time of injury.

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Although workers’ compensation litigation, as a general rule, is much less adversarial than other forms of practice, a complete failure to file a Form 111 will not be excused. If the Form 111 is not filed, the defendant/employer has admitted all the allegations contained in the initiating pleading such as the occurrence of a work related injury, Plaintiff’s statement concerning notice, etc. While a defendant/employer may be given an extension of time within which to file a Form 111, if there are reasonable grounds for excuse, if one has not been filed at the time of the benefit review conference, the Plaintiff will have what amounts to a default judgment. As with default judgments, there still must be “proof of damages” so to speak. Plaintiff must still submit medical evidence concerning causation, a functional impairment rating, physical capacity, etc.

If a Defendant plans to assert a Special Defense, it must do so within forty-five days from the date of the scheduling order or within ten days after the defense is discovered. The Special Defenses are listed in 803 KAR 25:010 §5(2)(d). Defenses which must be raised in a special answer are the unreasonable failure to follow medical advice, failure to comply with safety laws, false statement on an employment application, voluntary rejection of the Workers’ Compensation Act, voluntary intoxication or self-infliction of injury, refusal to accept rehabilitation services or the running of periods of limitations or repose. If not timely raised, Special Defenses are waived. If no special answer has been properly filed, the Defendant may not be allowed the inclusion of such a contested issue in the benefit review conference order and memorandum. Defense counsel should also conduct investigations concerning the plaintiff, the alleged injury and plaintiff’s medical condition and medical care. An immediate Open Records Request should be initiated to inquire of the DWC concerning previous work-related injuries and previous filings of workers’ compensation claims by the plaintiff. Defense counsel and/or his or her paralegal should conduct in-depth interviews with the appropriate employer representatives and any witnesses to the alleged injury. The plaintiff’s medical authorization, attached to the initiating form, can be used for a check of the medical facilities in the plaintiff's home area. Such an investigation should be conducted to determine the plaintiff’s medical history in general and, in particular, to check for previous injuries or illnesses which may have an effect on the claim.

IV. PRESENTATION OF EVIDENCE.

A. READ and come to KNOW KRS 342.033 and 803 KAR 25:010 §§8, 9, 10, 11, 14, 15 and 17. Evidence from vocational experts is now admissible in the same manner as evidence from medical experts. 803 KAR 25:010 §9. The proofing order and proof time are scheduled pursuant to §8. The scheduling order provides sixty days for all parties to present proof, thirty days for the Defendant, and fifteen days for rebuttal for Plaintiff.

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B. Lay Evidence

Counsel should take the plaintiff’s deposition and lay depositions during the proof time. The system is designed for the proof to be taken prior to the hearing. The hearing is intended for presentation of evidence to bring the case file up-to-date and to allow the ALJ to see and hear the primary fact witnesses in order to judge credibility. If the plaintiff’s discovery deposition and the discovery deposition of any important fact witnesses are not taken, presenting this testimony at the hearing may cause additional issues to be raised, necessitating a postponement of the ultimate resolution of the claim, or loss of those issues.

C. Plaintiff's Counsel: Prepare Your Plaintiff for His/Her Deposition

The most important lay evidence in any workers’ compensation claim is the testimony of the plaintiff. Make sure you properly prepare your plaintiff for his/her deposition and, even more importantly, for his/her BRC and then final hearing before the ALJ. Preparation for testimony begins with the initial conference. The quickest way for a plaintiff to lose a claim or to have a claim result in an award which is less than expected is for the plaintiff to lie on an initiating pleading, to an evaluating physician or in giving testimony. Insurance companies have vast resources with which to investigate a Plaintiff’s social, work and medical histories. Make sure your plaintiff knows the value of credibility. Also, it is important to explain to a plaintiff the type of demeanor which should be exhibited when testifying. Being able to match wits with the opposing counsel is not impressive. What is impressive is giving full and complete answers to questions propounded at the deposition or the hearing. Honest plaintiffs receive favorable consideration from the insurance carriers, defense attorneys and triers of fact.

D. Defendant's Counsel: Do the Same with Any Employee Representatives

Who Will Testify

E. Medical Evidence

A medical report that has been filed with the Forms 101, 102 or 103 is in evidence. It is not necessary to re-file any of that evidence. Medical reports must include, either within the body of the report or as an attachment, a statement of the qualifications of the person making the report. If the doctor preparing the report has been assigned a medical qualifications index number by the DWC, reference may be made to the doctor’s index number in lieu of attaching qualifications. 803 KAR 25:010 §10(4). If, at the time of filing the application, the qualifications have not been obtained from the doctor, they may be filed as a supplement without re-filing the medical report with them. Only one statement of qualifications for each expert needs to be filed in a claim even if subsequent reports from the same expert are filed. Medical proof should be carefully screened prior to submission. When an ALJ “weighs” the medical evidence, it is not to determine the actual

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poundage. Filing huge stacks of photocopies is not productive. DON’T DO IT. Medical records submitted for evidence should be legible and relevant. If you cannot read the records, the ALJ probably will not be able to read the records, and they are of no value. If counsel feels constrained to submit numerous pages of medical records from a particular health care provider and intends to rely only on a few excerpts, highlight the excerpts by underlining, and/or placing those records on top. As a general rule, it is not necessary to file a stack of medical records. However, some counsel fear that they will be accused of omitting relevant evidence if they do not file everything. If you feel you have to file a stack of records, highlight what is truly relevant. Filing a stack of medical records with the intention of relying on a brief excerpt somewhere in that stack is akin to hiding a needle in a haystack and inviting the trier of fact to find and rely on that needle. Do not turn the trier of fact into a medical detective. Put before the trier of fact the evidence upon which you rely and make it easy to find. It is not necessary to file a motion to introduce a medical report. Medical reports which are in compliance with KRS 342.033 and 803 KAR 25:010 §10 are admitted by notice. If, however, counsel wants to file records from more than two doctors or outside of proof time, leave to do so must be obtained by motion and order. If counsel wants to file evidence from more than two doctors, counsel should state in the motion for leave which doctors will be filed and/or how many doctors will be filed. Do not simply ask for a blank check to file more than two doctors.

F. Video Surveillance

The use of video surveillance is on the increase. If you intend to introduce a CD/ROM of a video surveillance, make sure what it depicts is relevant. Videos in which no one can truly tell the identity of the subject are of little benefit. Videos which depict a plaintiff doing two minutes of work on his disabled vehicle on the way to the doctor are of little import. Videos of a work station which omit some of the more rigorous tasks and only show a portion of the duties performed are of little import. CD/ROMs filed with the DWC are not automatically forwarded to the ALJ to whom the case is assigned. To make sure that your judge sees your video, a request must be made for forwarding the evidence to the judge, or a copy of the video should be presented to the judge either at the benefit review conference or the hearing. Copies should also be provided to opposing counsel well in advance of presentation to the trier of fact.

G. Discovery

803 KAR 25:010 §17 states that discovery shall be taken in accordance with Civil Rules 26 to 37 except for 27, 33 and 36. Generally, discovery in workers’ compensation claims is done through oral deposition and the request for production of documents. However, Civil Rule 26 provides that parties may obtain discovery through written deposition and request to enter upon land or other property for inspection.

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The Civil Rules require the party taking a deposition to give reasonable notice in writing to the other parties of the deposition. The Civil Rules require a party to serve a Request for Production of Documents on the opposing party or the entity with the documents requested. The Civil Rules do not require that a Notice of Deposition or a Request for Production of Documents be served on the Court. The Workers’ Compensation regulations do not require that a Notice of Deposition or Request for Production of Documents be served on the DWC or an ALJ. Civil Rule 5.06 makes it unnecessary to file certain discovery pleadings. Much the same should hold true with workers’ compensation claims. There is no reason to burden the file, the electronic scanning system and the ALJs (who must carry the physical files to the hearing site) with notices of depositions, request for discovery, response to discovery, etc. The Rules allow for enforcement of discovery requests in the event proper discovery responses are not made by the responding party. The Civil Rules provide that a response to a Request for Production of Documents must be made in writing within thirty days of service of the request. The Civil Rules do not request a party to serve a response to a Request for Production of Documents on the Court. Furthermore, the Workers’ Compensation regulations do not require that a response to a Request for Production of Document be served on the DWC or the ALJ. Therefore,

H. Do Not Send Copies of Notices of Deposition, Requests for Production of Documents or Responses to Requests for Production of Documents to the DWC or the ALJ

If a party wants to have some medical or other record obtained pursuant to a request for production of documents introduced into evidence, that party must either file a motion to admit or a notice of filing. The parties should note that Civil Rule 37 provides for the imposition of sanction when a party does not voluntarily comply with discovery requests. In a written decision, the Workers’ Compensation Board addressed what a party must do to properly preserve an objection to testimony during a deposition. Relying on Civil Rule 43.04, the Board stated that “no objection to the competency, relevancy or materiality of testimony shall be regarded, unless made at the taking of the deposition or subsequently made in writing, specifying the grounds for the objection and served and filed prior to the submission of the case.” Therefore, it appears that counsel should address any such objections no later than the benefit review conference and must do so in writing. Clearly, the best practice would be to address any such objections as soon as possible after the deposition so that the parties can proceed with litigation knowing what will or will not be considered as evidence. See Compass @ USEAC v. Kaye Kennedy, et al., WCB, Claim No. 01-82457 (Sept. 25, 2002).

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V. EVIDENCE IN RE-OPENINGS

Please remember that evidence in each claim is electronically scanned by the DWC and, after the resolution of a claim is final, the actual physical documents in the file are destroyed. Therefore, evidence from a claim which has been resolved exists only in cyberspace. When a claim is re-opened, a new physical file is created by the DWC. That physical file does not contain most of the evidence submitted in the original file which has been destroyed. Therefore, if either party has a desire for the ALJ to consider evidence which was filed in the underlying claim, that evidence must be provided to the ALJ. The most efficient method of providing this evidence is to mail a photocopy of the evidence to the ALJ under the cover of a pleading styled “Notice of Filing of Evidence from the Underlying Claim” with a listing in the body of the pleading of the evidence forwarded to the ALJ’s office. The hard copy of that covering pleading should be filed with the DWC and served on opposing counsel. Opposing counsel may or may not have copies of the evidence but can obtain copies from counsel making the filing.

VI. BENEFIT REVIEW CONFERENCE.

Preparation for the benefit review conference begins long before the assigned date of the benefit review conference. It is important that each lawyer know his or her client, the case and the judge assigned to the case. The process of knowing the client and educating the client should begin in the initial conference. Counsel for plaintiff should discuss with the plaintiff what his or her expectations are and whether or not these expectations are reasonable. Counsel should sternly reign in any unreasonable expectations. If the client appears to be one who will be unwilling or unable to listen to sound advice, a determination should be made early on as to whether or not the case should be accepted.

All clients should be counseled concerning the workers’ compensation process, the proceeding before an ALJ, and what to expect as a resolution of the claim. Plaintiffs should be made to understand the manner in which benefits are calculated and the fact that no one can retire on workers’ compensation benefits alone. Furthermore, workers’ compensation benefits usually will not support an injured worker in the manner to which the worker has become accustomed through a salary from gainful employment. Employer representatives should be made aware that the workers’ compensation process is governed by the Kentucky Revised Statutes, the reported cases of the Supreme Court and the Court of Appeals, and the regulations promulgated by the DWC. The employer’s personnel policy, personnel manuals, employment policies, etc., do not determine when notice must be given, when medical attention can be sought, etc. It is also generally unimportant that the employer did not think the plaintiff was a very good employee and was going to be terminated anyway.

During the discovery process and the taking of proof, problems often arise between attorneys of record. If there are differences that cannot be resolved, a conference call with the assigned ALJ may be of some assistance. All judges are willing to discuss the claim as long as all parties are represented and conference calls are appropriate vehicles for such discussions.

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Plaintiff has the burden of proof. Therefore, it is incumbent upon the plaintiff to initiate settlement negotiations with a demand. This demand should be made early on in the process, should be reasonable, and should be in writing. Making a demand for a total award in a case where the employee is obviously able to engage in some form of gainful employment is not productive. Defendants rarely make reasonable responses to demands for settlement on the basis of a total occupational disability in cases that would not warrant a total award. Starting “high” in a workers’ compensation claim will not scare a Defendant into a response that is higher than the case is worth. The Defendant should make a reasonable response, in writing, to a reasonable settlement demand and this should be accomplished well before the benefit review conference.

In the scheduling order, the parties are notified that, “At least ten (10) days prior to the benefit review conference, the parties shall file a witness list and copies of all known exhibits, proposed stipulations and notice of contested issues.” (Emphasis added). Since the scheduling order uses the term “shall,” this is a requirement rather than a suggestion. Most practitioners see witness lists as an unnecessary intrusion on their time. However, the witness list with proposed stipulations, statement of contested issues, and either a list of exhibits or copies of exhibits is of great benefit to the ALJ. More than that, it is a tool to facilitate settlement and will likely be useful if a brief is subsequently required. Keeping ALJs happy and promoting settlement will also be of noticeable benefit to the practitioner’s business. Effective witness lists require considerable thought and organization. However, highly trained and well-paid practitioners should have no problem producing effective witness lists. Addendum X is a witness list prepared by a plaintiff’s practitioner. It is an example to follow.

Benefit review conferences are usually scheduled for approximately thirty minutes. When the judge asks where the parties are in terms of settlement, this is not an invitation for counsel to argue the client’s case. It is also not the time for counsel for the plaintiff to tell the judge how greedy, demanding, heartless, and insensitive the defendant is and how tacky counsel for defendant has been. It is not the time for counsel for the defendant to tell the judge that the plaintiff is a lazy, shiftless, lying ne'er-do-well who is trying to steal from the poor employer. It is a time to determine whether or not a demand has been made and a response to that demand has been given.

If no settlement negotiations have taken place, the judge will commonly ask whether or not there are prospects of settlement. With that in mind, it is imperative that counsel for Plaintiff know what his client’s settlement demand will be. Stonewalling the process of settlement, by either side, does not result in some type of benefit for the stonewalling party. It usually simply means a more expensive process and a delay in the final determination of the matter.

If there is no reasonable prospect of settlement, the parties and the ALJ should then discuss the stipulations and what will be needed in the way of a hearing. All matters about which there is no real controversy should be stipulated. Neither party gains an advantage by refusing to stipulate a matter which is not really in controversy. On the other hand, if a contested issue is not reserved, it may be waived. The parties should also advise the judge about possible problems at the

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hearing. If a party does not speak English, an interpreter will be needed and the arrangement for an interpreter must be discussed. On a very rare occasion, one of the parties may feel the need for security. That security will be provided by the DWC. However, it is imperative that this request for security be made far in advance of the date set for the hearing. There are also circumstances which require that the hearing be held at a date and/or time different from the original schedule. If a change in the date and/or time of the hearing is made, make sure this change makes it onto your calendar and that your staff is made aware of the change. The fact that a hearing is set does not mean that the case cannot still be settled. The parties should continue to negotiate and move towards settlement prior to the hearing.

VII. THE HEARING

A. General Purpose

The hearing in a workers’ compensation proceeding is designed for a limited purpose. It is not to be used as a discovery tool. The time for the hearing is too late for discovery. The hearing should be used for the presentation of witnesses who are important to the factual determinations to be made by the ALJ. Specifically, the condition of the plaintiff and the job situation should be brought up-to-date from the date of the discovery deposition. The most important aspect of the hearing is that it gives the trier of fact (the ALJ) an opportunity to see and hear the plaintiff (and any other important fact witness) testify and gives the ALJ a chance to judge the credibility of the main players.

B. Who Should Testify

Certainly, if there is a hearing, the plaintiff should testify. There are cases where the contested issues will be determined solely by the medical evidence or some other evidence already in the record and the plaintiff’s credibility and condition are not the primary contested issues. In these instances, the hearing can be waived and the claim submitted on the record. This rarely occurs. Some cases will have contested issues which will require testimony from others as well as the plaintiff. In those instances, the lay witnesses’ discovery deposition should be taken prior to the hearing, both as a litigation tool and in order to shorten the time needed for the hearing. Witnesses other than the plaintiff should have something of real import about which to testify. Bringing the plaintiff’s husband/wife/mother/sister, etc. to testify about the drastic effect this injury has had on the plaintiff is generally not productive. Finally, note that witnesses who are called at the hearing must have been listed on the witness list of the calling party. The hearings generally are scheduled forty-five minutes apart. If for some reason counsel anticipates the need for more time, it is incumbent on counsel to inform the ALJ so that arrangements can be made. Do not lose patience with the ALJ who has been led to believe that there will be a

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forty-five minute hearing when the parties appear for the hearing with six witnesses each, only two of whom appeared on the witness list. In all likelihood, these witnesses will not be allowed to testify.

C. What Testimony Should Be Presented

Naturally, how much and what kind of testimony is needed is directly related to the contested issues reserved for determination. If the only issue is extent and duration, the only evidence needed is the plaintiff’s testimony concerning his or her condition and its effect on his or her ability to engage in gainful employment. Testimony presented at the hearing should be testimony which directly relates to the contested issues. If there is a discovery deposition of the plaintiff in the record (and there should be in all cases), it is not necessary to ask the same questions again, especially those that relate to the plaintiff’s address, social security number, age, etc. The plaintiff should be prepared to testify concerning his/her condition and how the condition affects his/her employability. The plaintiff should be counseled to tell the truth and not to exaggerate symptoms. ALJs are not doctors, but they have seen more medical evidence than any plaintiff has. Testimony about pain which begins in the low back just below the belt line and radiates up to the area behind the Plaintiff’s ears, or testimony about the whole hand being numb in a carpal tunnel case raises some real questions about a plaintiff’s credibility. Although ALJs are from time to time fooled, they are not as stupid as often believed. Tell your client and/or your witnesses to tell the truth. Tell them, also, to be responsive to the questions asked both by you and by opposing counsel. Direct answers to direct questions give an impression of credibility. Explain to your client/witness that questions which call for a yes or no answer should be answered “yes” or “no.” Any problem they perceive in the answer they give will be cleared up when you have them on redirect. Just as you should have faith in the ability of the ALJs, they should have faith in your ability as a practicing lawyer. The best examinations are conducted by attorneys who are organized. You may be able to keep an outline in your head and conduct an entire examination without notes. If you can, you are an exception. Prior to presenting your client/witness at the hearing, you should outline your examination. It is also helpful to outline cross-examination of witnesses you know will be called by opposing counsel. Not using notes in a hearing is not that impressive. Particularly unimpressive is the lawyer who squints, looks towards the heavens, and wonders whether or not a complete examination has been conducted.

D. Exhibits

First of all, make sure any exhibits you intend to introduce have been properly listed on the exhibit list filed prior to the BRC and copies have been provided to opposing parties. Do not try to introduce medical records as an exhibit at the hearing. Have sufficient copies of an exhibit

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to be tendered at the hearing for opposing counsel, the ALJ and to be marked as an exhibit for the court reporter. It should be previously marked, depending on the party, as plaintiff’s “Exhibit ___.” The reporter can fill in the number.

E. Oral Argument

In many instances, oral arguments will be conducted at the close of the hearing. Keep in mind that the ALJ is not a jury. The judges have seen many, many plaintiffs and defendants and many, many workers’ compensation claims. It is not necessary to restate the evidence in the record as the ALJ has read, or will read, all of the evidence presented before making the decision. The best argument succinctly sets forth the primary facts upon which the party relies, why those facts warrant a resolution of the claim in the manner suggested by the party, and the citation to authority on any legal issues which are unusual or intricate. If you cite a reported case as authority, have the style of the case written down so it can be given to the court reporter. As with the presentation of testimony from a witness, the best oral arguments are those which have previously been outlined. The main points can be emphasized but do not need to be repeated multiple times throughout the course of the argument. Again, keep in mind that the ALJ is neither stupid nor uninitiated in the workers’ compensation process. If there is a particular reason an attorney believes that oral arguments in front of a Plaintiff would be inappropriate, that should be pointed out to the ALJ before oral arguments are ordered.

F. Briefs

Many practitioners prefer to file briefs and many ALJs prefer to have briefs rather than oral arguments. However, the same caveat is applicable. There is no need to list the stipulations and give an exhaustive summary of all of the evidence which has been filed. It is important to highlight the evidence which you believe is of particular import and the evidence which you believe supports the position you are advocating on behalf of your client. The best brief succinctly sets forth the primary facts upon which the party relies, why those facts warrant a resolution of the claim in the manner suggested by the party, and the citation to authority on any legal issues which are unusual or intricate.

G. Postscript

A hearing is conducted before an ALJ and is an administrative proceeding. Although workers’ compensation ALJs do not wear black robes and sit at an elevated dais, it is a legal proceeding in which the ALJ, opposing counsel, and all other parties deserve to be treated in an appropriate manner. You may think a witness is lying. However, there is an appropriate manner in which to call the trier of fact’s attention to the lying witnesses’ credibility. Courtesy to all parties involved and proper decorum need not be abandoned because you think someone is being less than honest. Likewise, it is no cause for alarm if someone

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challenges the credibility of your client or witness. You should, in a calm and courteous manner and with proper decorum, point out either in further examination or in your closing argument the facts which point to the credibility of the evidence you have offered. Nice goes a long way with most people, ALJs included. There is no need for shouting, sarcasm or spitefulness in a workers’ compensation hearing. It does not benefit your position or that of your client. Counsel should heed the words of wisdom spoken so often: “You catch more flies with honey than you do with vinegar.” In other words, being confrontational just for the sake of being confrontational is not the best approach.

VIII. ATTORNEY FEES

803 KAR 25:010 §4(7) sets forth what must accompany a motion for allowance of a Plaintiff’s attorney fee. Before a motion can be considered, it must be accompanied by: an affidavit of counsel detailing the extent of the services rendered and the time expended; a signed and dated Form 109; and a photocopy of the signed and dated contingency fee contract. Counsel must set forth the mathematical computations establishing that the request is within the statutory limits and must serve the plaintiff with a copy of the motion. Do not hide the required information in the middle of a paragraph in the middle of several pages. 803 KAR 25:010 §4(8) sets forth what must accompany defendant’s counsel’s motion for the allowance of an attorney’s fee. Before a motion can be considered, it must be accompanied by an affidavit of counsel detailing: the extent of the services rendered and the time expended; the hourly rate and total amount charged; and the date upon which the agreement for representation was reached. Do not hide the required information in the middle of a paragraph in the middle of several pages. Clearly present the required information.

IX. REMANDS

Once an appeal has been taken to the Kentucky Workers’ Compensation Board, Kentucky Court of Appeals, or Kentucky Supreme Court, the reviewing body will then issue a decision affirming or reversing and remanding. Once the opinion has been rendered by the appellate tribunal, it normally takes forty-five to ninety days before the file is returned to the ALJ. Once the ALJ has the file back in his/her possession, an order is usually rendered in an expedient manner.

No new evidence is allowed before the ALJ on remand, unless specifically directed by the appellate tribunal’s decision. The ALJ may, however, request the parties to file briefs supporting the parties’ positions based on the appellate tribunal’s decisions or schedule a telephone conference to discuss settlement.

X. ADDITIONAL THOUGHTS AND SUGGESTIONS.

Do not file multiple copies of the same records/reports. If one party files the records/reports, they are filed. Having records/reports filed by both parties does not make the records/reports any more or less credible. Volume should be reserved for your stereo.

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Do not make the ALJ go to the law library on a rainy Saturday morning to do research.

If you file a status report and want a claim to come out of abeyance, file a proper motion to remove the claim from abeyance. Do not simply mention in a status report that the claim should be removed from abeyance and assume that the ALJ will find your request to remove from abeyance hidden in the middle of a paragraph in the middle of a page.

Do not assume that what you attach to a status report or a motion will be deemed evidence for purposes beyond the status report or a subsequent motion. You probably do not need to independently file any such records/reports but you should designate within the status report or motion that you intend to rely on any attachments as evidence.

Do not file a “Motion to Enforce” with the assigned ALJ or on the Frankfort motion docket attempting to enforce payment under an agreement, order, decision, or award. ALJs are not judges of the court of justice and have no contempt power. Therefore, sustaining a “Motion to Enforce” to require the insurance company to pay attorney’s fees, to pay the lump sum settlement, etc. would have no teeth. All the ALJ can do is say: “Do what I said to do earlier.” To enforce payment under an award or order, file an enforcement action in Circuit Court pursuant to KRS 342.305.

Do not forget about a plaintiff’s children in a death claim, one in which either the employee was killed in a work related incident or one in which an employee who had sustained disability dies from causes other than the work related injury. There are specific statutory provisions delineating the matter and amount of payment to surviving children. See KRS 342.730(3) and KRS 342.750.

XI. SOME FINAL THOUGHTS ON EXPERIENCE

Superior talent does not always carry the day against a somewhat less talented but more experienced opponent. A case study of this can be seen in the 2009-10 and 2010-11 versions of our beloved Kentucky Wildcats basketball team. Experience in the practice of law is gained through trial and error and also by observation of talented AND experience practitioners. There is a world of talent in this room and also a world of experience in the law libraries, court rooms and hearing sites across our Commonwealth. Seasoned attorneys and judges who have been through the trial and error aspects of the practice of law have a world of experience and many war stories from which experience can be gained. Go to their proceedings. Watch them in action. Pick their brains. Most seasoned veteran attorneys are more than willing to have young practitioners seek advice or even follow along and watch them perform. Go to both civil and criminal trials in your area. Ask to be allowed to attend depositions of both lay witnesses and expert witnesses. Ask an ALJ with the DWC to be allowed to sit in on a day of BRCs and/or a day of hearings. You may learn something at no cost that will prevent you from having to learn that same lesson by losing a case.

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ADDENDUM I

Form 101 KENTUCKY Revised 6/05 DEPARTMENT OF WORKERS’ CLAIMS Application for Resolution of Injury Claim Claim No. _____________________

_______________________ vs. _____________________________ Plaintiff Defendant/Employer _______________________ _____________________________ Social Security Number Street Address _______________________ _____________________________ Birth Date City/State/Zip Code _______________________ _____________________________ Street Address Insurance Carrier _______________________ _____________________________ City/State/Zip Code Street Address _______________________ _____________________________ County City/State/Zip Code _______________________ _____________________________ Phone Number Other Defendant _____________________________ Street Address _____________________________ City/State/Zip Code Reason for Joinder: _____________________________ _____________________________ _____________________________ Other Defendant _____________________________ Street Address _____________________________ City/State/Zip Code

Filed:

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Reason for Joinder: _____________________________ _____________________________

I. Nature of Injury

1. Plaintiff states that on the _______ day of ________ 20____, he/she was injured

within the scope and course of employment with defendant employer at ________________________________________________________________ (City/County/State)

2. Describe how the injury occurred:

________________________________________________________________ ________________________________________________________________________________________________________________________________ ________________________________________________________________

3. Body part injured:__________________________________________________ 4. State the date and means by which the plaintiff gave notice of injury to the

employer: ________________________________________________________ ________________________________________________________________ 5. Describe medical treatment, if any: ____________________________________

________________________________________________________________ ________________________________________________________________

6. Name and address of physician whose report is attached: __________________ ________________________________________________________________

II. Personal Data

7. Name and address of last school attended: ______________________________ ________________________________________________________________ 8. Highest grade completed in school: ____________________ 9. GED awarded _____yes ______no 10. Professional or vocational degrees, certificates, or licenses: ________________ ________________________________________________________________ 11. Dependents: Name Date of Birth Social Security Number Relationship

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12. Have you previously filed for or received workers’ compensation benefits? _____yes _____no

If yes, give Department of Workers’ Claims file number(s), dates and nature of

injury or disease and any award of benefits received: ________________________________________________________________

________________________________________________________________ ________________________________________________________________

III. Employment Data

13. Is plaintiff currently working? _____yes _____no 14. Type of work performed at date of injury: _______________________________ ________________________________________________________________ 15. Describe the physical requirements of job performed at date of injury:

________________________________________________________________ ________________________________________________________________ ________________________________________________________________ 16. Weekly wage at date of injury: _________________. Attach copy of any proof of

wages, such as paycheck stub, W-2, etc. 17. Weekly wage currently earned: ________________. Attach copy of any proof of

current wages. 18. Name and address of current employer and description of job currently being

performed: _______________________________________________________ ________________________________________________________________ ________________________________________________________________ 19. Are you alleging a violation of a safety rule/regulation pursuant to KRS 342.165?

_____yes _____no

Notice: Any person who knowingly and with intent to defraud any insurance company or other person files a statement or claim containing any materially false information or conceals, for the purpose of misleading, information concerning any fact material thereto commits a fraudulent insurance act, which is a crime.

Plaintiff herein being duly sworn, states that the statements in this application and in Form 104, 105, and 106 are true. This the _______ day of _________________ 20____. _____________________________ Plaintiff’s Signature Subscribed and sworn to before me this _____ day of _______________ 20____. ____________________________

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Notary Public My Commission expires:____________ County: _________________ Prepared and submitted by: ___________________________________ Signature/Representative for Plaintiff ___________________________________ Title ___________________________________ Street Address ___________________________________ City/State/Zip ___________________________________ Telephone Number

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ADDENDUM II

FORM 104 ADOPTED January 1, 1997

KENTUCKY DEPARTMENT OF WORKERS CLAIMS PLAINTIFF'S EMPLOYMENT HISTORY

Name

Social Security Number

Name and Address of Employer (Begin with most recent employer)

Type of Industry

Occupation

Period of Employment Begin date End date Month/Yr. Month/Yr

Exposure to substances causing occupational disease (specify substance)

1.

2.

3.

4.

5.

6.

7.

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I hereby certify that the above information is true and correct to the best of my knowledge and belief.

___________________________ ___________________________________ Plaintiff's Signature Date

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ADDENDUM III

FORM 105 ADOPTED: January 1, 1997

KENTUCKY DEPARTMENT OF WORKERS CLAIMS

PLAINTIFF'S CHRONOLOGICAL MEDICAL HISTORY

Include all injuries and major illnesses to the date of filing of the claim (Begin with most recent treatment)

Name & Address of Physician or Hospital

Date Treatment Received

Nature of Injury or Disease and Part of body affected?

Still under a doctor's care?

1.

2.

3.

4.

5.

6.

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I hereby certify that the above information is true and correct to the best of my knowledge and belief. _____________________________ _________________________________ Plaintiff's Signature Date

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ADDENDUM IV

FORM 106 ADOPTED JULY 2003

COMMONWEALTH OF KENTUCKY DEPARTMENT OF WORKERS’ CLAIMS

CLAIM NO:__________________

MEDICAL WAIVER AND CONSENT I, _________________________________________ having filed a claim for workers’ compensation benefits, do hereby waive any physician-patient, psychiatrist-patient, or chiropractor-patient privilege I may have and hereby authorize any health care provider to furnish to myself, my attorney, my employer, its workers’ compensation carrier or its agent, the Division of Workers’ Compensation Funds, the Uninsured Employers’ Fund, or Administrative Law Judge any information or written material reasonably related to my work-related injury occurring on or about _______________ any medical information relevant to the claim including past history of complaints of, or treatment of, a condition similar to that presented in this claim or other conditions related to the same body part. Such information is being disclosed to the purpose of facilitating my claim for Kentucky workers’ compensation benefits. I understand I have the right to revoke this authorization in writing at any time, by sending written notification to each individual health care provider, but such revocation will not have any affect on actions taken prior to revocation. Moreover, inasmuch as KRS 342.020(8) requires a medical waiver to be executed, revocation may result in suspension or delay of the workers’ compensation claim. I understand that no medical provider may condition treatment or payment on whether I sign this medical waiver; however, I further understand that failure to sign this medical waiver may result in suspension or delay of the workers’ compensation claim. I understand that the information used or disclosed pursuant to this medical waiver may be subject to re-disclosure by the recipient. This authorization shall remain valid for 180 days following its execution. A photocopy of the authorization may be accepted in lieu of the original. The authorization includes, but is not restricted to, a right to review and obtain all copies of all records, x-rays, x-ray reports, medical charts, prescriptions, diagnoses, opinions and courses of treatment. Signed at ____________________________________, Kentucky, this ________ day of __________________, 20______.

_______________________________________ Signature of Patient or Personal Representative Social Security Number: ____________________

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_________________________________________ Witness Signature _________________________________________ Description of Personal Representative’s Authority

KENTUCKY WORKERS’ COMPENSATION AND HIPAA On April 14, 2003, the federal Health Insurance Portability and Accountability Act [HIPAA] privacy regulation will take effect. This regulation limits the situations in which medical providers may release patient information, unless the information is necessary for the purpose of treatment, payment, or health care operations. Moreover, it is important to note that disclosures for workers’ compensation are in most instances exempt from HIPAA privacy requirements. The exact wording is as follows: “A covered entity may disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers’ compensation…” Since HIPAA defers to state law regarding disclosures relating to workers’ compensation, it is important for claimants and medical providers to know what Kentucky law requires for disclosure of patient information. An employee who reports a work injury or who files for workers compensation benefits must “execute a waiver and consent of any physician-patient, psychiatrist-patient, or chiropractor-patient privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation.” KRS 342.020(8). Kentucky law further states that once this Form 106 is signed, any health care provider “shall, within a reasonable time after written request by the employee, employer, workers’ compensation insurer [or its agent or assignee], special fund, uninsured employers’ fund, or the administrative law judge, provide the requesting party with any information or written material reasonably related to any injury or disease for which the employee claims compensation.” Once the Form 106 is signed, health care providers may disclose information as set out in Kentucky law. Another section of the regulation allows release of information pursuant to an administrative or judicial order or subpoena, provided that there has been a reasonable effort to notify the injured worker [or his attorney] that such a request has been made. Should there be questions regarding disclosures pursuant to this form, appropriate legal counsel should be consulted or you can contact the Department of Workers’ Claims at 1-800 554-8601.

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ADDENDUM V

Form 102-OD KENTUCKY Revised 6/05 DEPARTMENT OF WORKERS’ CLAIMS Application for Resolution of Occupational Disease Claim Claim No. _____________________

_______________________ vs. _____________________________ Plaintiff Defendant/Employer _______________________ _____________________________ Social Security Number Street Address _______________________ _____________________________ Birth Date City/State/Zip Code _______________________ _____________________________ Street Address Insurance Carrier _______________________ _____________________________ City/State/Zip Code Street Address _______________________ _____________________________ County City/State/Zip Code _______________________ _____________________________ Phone Number Other Defendant _____________________________ Street Address _____________________________ City/State/Zip Code Reason for Joinder: _____________________________ _____________________________ _____________________________ Other Defendant _____________________________ Street Address _____________________________ City/State/Zip Code

Filed:

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Reason for Joinder: ____________________________

____________________________

I. Nature of Occupational Disease

1. Plaintiff states that on the _______ day of ________ 20____, he/she became affected by reason of a disease arising out of and in the course of his/or her employment.

2. Identify the occupational disease(s) claimed:_____________________________

3. State the date and means by which plaintiff gave notice of the injury to employer.

________________________________________________________________ ________________________________________________________________

4. Place of last exposure:

________________________________________________________________ (city) (county) (state) 5. Nature of the work in which the plaintiff was engaged at the time of exposure: ________________________________________________________________ ________________________________________________________________ 6. How did exposure to the disease occur? (Describe in detail) ________________ ________________________________________________________________

________________________________________________________________

II. Personal Data

7. Name and address of last school attended: _____________________________ ________________________________________________________________ 8. Highest grade completed in school: ____________________ 9. GED awarded _____yes ______no 10. Professional or vocational degrees, certificates, or licenses: ________________ ________________________________________________________________ 11. Dependents: Name Social Security Number Relationship

12. Has plaintiff previously filed for or received workers’ compensation benefits?

_____yes _____no

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If yes, give dates, nature of injury or disease and any award of benefits received: ________________________________________________________________ ________________________________________________________________ 13. If applying for retraining incentive benefits, identify the name, address and phone

number of the training or education program in which the plaintiff is enrolled or plans to enroll.

________________________________________________________________ ________________________________________________________________

________________________________________________________________ 14. Is plaintiff currently engaged in the severance or processing of coal? __yes __no

III. Employment Data

15. Type of work performed at date of occupational disease:

________________________________________________________________ 16. Describe the physical requirements of plaintiff’s customary job: _____________ ________________________________________________________________ ________________________________________________________________ 17. Weekly wage at date of occupational disease: _________________. Attach

copy of any proof of wages, such as paycheck stub, W-2, etc. 18. Has plaintiff returned to work? _____yes _____no; if yes, name and address of

current employer and description of job currently being performed: ________________________________________________________________

________________________________________________________________ Is plaintiff still working in environment where he/she is exposed to the hazards of

the disease? _____yes _____no Number of years of exposure to hazards of occupational disease ____________ Has plaintiff been exposed to the disease while working for more than one

employer? _____yes _____no 19. Weekly wage currently earned:_____________ Attach copy of any proof of

current wages. 20. Are you alleging a violation of a safety rule/regulation pursuant to KRS 342.165?

_____yes _____no

Notice: Any person who knowingly and with intent to defraud any insurance company or other person files a statement or claim containing any materially false information or conceals, for the purpose of misleading, information concerning any fact material thereto commits a fraudulent insurance act, which is a crime.

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Plaintiff herein being duly sworn, states that the statements in this application and in Form 104, 105, and 106 are true. This the _______ day of _________________ 20____. _____________________________ Plaintiff’s Signature Subscribed and sworn to before me this _____ day of _______________ 20____. _____________________________ Notary Public My Commission expires:____________ County: _________________ Prepared and submitted by: ___________________________________ Signature/Representative for Plaintiff ___________________________________ Title ___________________________________ Street Address ___________________________________ City/State/Zip ___________________________________ Telephone Number

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ADDENDUM VI

Form 102-OD KENTUCKY Revised 6/05 DEPARTMENT OF WORKERS’ CLAIMS Application for Resolution of Occupational Disease Claim Claim No. _____________________

_______________________ vs. _____________________________ Plaintiff Defendant/Employer _______________________ _____________________________ Social Security Number Street Address _______________________ _____________________________ Birth Date City/State/Zip Code _______________________ _____________________________ Street Address Insurance Carrier _______________________ _____________________________ City/State/Zip Code Street Address _______________________ _____________________________ County City/State/Zip Code _______________________ _____________________________ Phone Number Other Defendant _____________________________ Street Address _____________________________ City/State/Zip Code Reason for Joinder: _____________________________ _____________________________ _____________________________

_____________________________ Other Defendant

____________________________ Street Address ____________________________ City/State/Zip Code

Filed:

38

Reason for Joinder: _____________________________ _____________________________

I. Nature of Occupational Disease

1. Plaintiff states that on the _______ day of ________ 20____, he/she became

affected by reason of a disease arising out of and in the course of his/or her employment.

2. Identify the occupational disease(s) claimed:____________________________

3. State the date and means by which plaintiff gave notice of the injury to employer.

________________________________________________________________ ________________________________________________________________

4. Place of last exposure: ________________________________________________________________ (city) (county) (state) 5. Nature of the work in which the plaintiff was engaged at the time of exposure: ________________________________________________________________ ________________________________________________________________ 6. How did exposure to the disease occur? (Describe in detail) _______________ ________________________________________________________________

________________________________________________________________

II. Personal Data

7. Name and address of last school attended: ______________________________ ________________________________________________________________ 8. Highest grade completed in school: ____________________ 9. GED awarded _____yes ______no 10. Professional or vocational degrees, certificates, or licenses: ________________ ________________________________________________________________ 11. Dependents: Name Social Security Number Relationship

12. Has plaintiff previously filed for or received workers’ compensation benefits?

_____yes _____no;

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If yes, give dates, nature of injury or disease and any award of benefits received: _______________________________________________________________ _______________________________________________________________ 13. If applying for retraining incentive benefits, identify the name, address and phone

number of the training or education program in which the plaintiff is enrolled or plans to enroll. ____________________________________________________

________________________________________________________________ ________________________________________________________________ 14. Is plaintiff currently engaged in the severance or processing of coal? __yes __no

III. Employment Data

15. Type of work performed at date of occupational disease: ___________________ 16. Describe the physical requirements of plaintiff’s customary job: ______________ ________________________________________________________________ ________________________________________________________________ 17. Weekly wage at date of occupational disease: _________________. Attach

copy of any proof of wages, such as paycheck stub, W-2, etc. 18. Has plaintiff returned to work? _____yes _____no; if yes, name and address of

current employer and description of job currently being performed: ________________________________________________________________

________________________________________________________________ Is plaintiff still working in environment where he/she is exposed to the hazards of

the disease? _____yes _____no Number of years of exposure to hazards of occupational disease ____________ Has plaintiff been exposed to the disease while working for more than one

employer? _____yes _____no 19. Weekly wage currently earned:_____________ Attach copy of any proof of

current wages. 20. Are you alleging a violation of a safety rule/regulation pursuant to KRS 342.165?

_____yes _____no

Notice: Any person who knowingly and with intent to defraud any insurance company or other person files a statement or claim containing any materially false information or conceals, for the purpose of misleading, information concerning any fact material thereto commits a fraudulent insurance act, which is a crime.

Plaintiff herein being duly sworn, states that the statements in this application and in Form 104, 105, and 106 are true. This the _______ day of _________________ 20____.

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______________________________________ Plaintiff’s Signature Subscribed and sworn to before me this _____ day of _______________ 20____. ______________________________________ Notary Public My Commission expires:____________ County: _________________ Prepared and submitted by: ___________________________________ Signature/Representative for Plaintiff ___________________________________ Title ___________________________________ Street Address ___________________________________ City/State/Zip ___________________________________ Telephone Number

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ADDENDUM VII

Notice of Claim Denial or Acceptance Form 111-Injury and Hearing Loss Adopted 1/1/97

COMMONWEALTH OF KENTUCKY DEPARTMENT OF WORKERS CLAIMS Before Arbitrator__________________ Claim Number____________________

NOTICE OF CLAIM DENIAL OR ACCEPTANCE

__________________________ Plaintiff/Employee vs. __________________________ Defendant/Employer Comes the defendant, ______________________, as insured by _______________, and in response to the Application for Resolution of Claim, states as follows: _____ 1. This claim is accepted as compensable in its entirety. A settlement

agreement will be filed. (Note: if claim is accepted, do not complete paragraphs 2-7).

_____ 2. This claim is accepted as compensable, but there is a dispute concerning

the amount of compensation owed to the plaintiff. _____ 3. This claim is denied for the following reasons:

_____ (a) Plaintiff was not employed by defendant on the date of alleged injury.

Explain: _____ (b) The alleged injury did not arise out of and in the course of

employment. Explain:

_____ (c) The plaintiff did not give due and timely notice to employer of the

injury. Explain: _____ (d) The claim is barred by limitations. Explain: _____ Other reason for denial. Explain:

Filed: Do Not Write In This Space

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4. The plaintiff’s average weekly wage at the time of the alleged injury was $______.

Completed AWW-1 to support this calculation is attached, if amount is different from plaintiff’s application for resolution.

5. The following witnesses may present testimony relevant to denial of this claim. 1. 2. 3. 4.

6. The following are admitted by the employer: Yes No ___ ___ Plaintiff’s injury was covered under the Workers Compensation

Act. ___ ___ The injury occurred or became disabling on _________, 20____ Date ___ ___ Plaintiff gave due and timely notice of the injury. ___ ___ Plaintiff has returned to work for this employer and is earning

$_____ per week.

___ ___ Temporary total disability income benefits were paid as the result of the injury.

___ ___ All known medical expenses have been paid as the result of this injury.

7. Describe in detail the physical requirements of plaintiff’s job at the time of the alleged injury. If an official job description exists, a copy must be attached.

8. The following persons have gathered information for completion of this form. For the employer: _________________________________________________ Name Title _________________________________________________ Address: Street _________________________________________________ City State Zip Code (____)____________________________________________ Telephone Number

For the insurance carrier: _________________________________________________

Name Title _________________________________________________ Address: Street __________________________________________________ City State Zip Code ( ____)____________________________________________ Telephone Number

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Being duly sworn, the undersigned states that the statements in this form are true and correct to the best of my knowledge and belief. This the _______ day of _________, 20_____. _________________________________________ Signature Title _________________________________________ Address __________________________________________ Phone Number Subscribed and sworn to before me this _________ day of ____________, 20______ My commission expires:______________________ County:_________________________ _____________________________ Notary Public Prepared and submitted by: ______________________________________________________________________ Representative/Title Address Phone Number

44

45

ADDENDUM VIII

Notice of Claim Denial or Acceptance Form 111-Injury and Hearing Loss Adopted 1/1/97

COMMONWEALTH OF KENTUCKY DEPARTMENT OF WORKERS CLAIMS Before Arbitrator__________________ Claim Number____________________

NOTICE OF CLAIM DENIAL OR ACCEPTANCE

__________________________ Plaintiff/Employee vs. __________________________ Defendant/Employer Comes the defendant, ______________________, as insured by ___________________, and in response to the Application for Resolution of Claim, states as follows: _____ 1. This claim is accepted as compensable in its entirety. A settlement

agreement will be filed. (Note: if claim is accepted, do not complete paragraphs 2-7).

_____ 2. This claim is accepted as compensable, but there is a dispute concerning

the amount of compensation owed to the plaintiff. _____ 3. This claim is denied for the following reasons: _____ (a) Plaintiff was not employed by defendant on the date of alleged

injury. Explain: _____ (b) The alleged injury did not arise out of and in the course of

employment. Explain: _____ (c) The plaintiff did not give due and timely notice to employer of the

injury. Explain: _____ (d) The claim is barred by limitations. Explain: _____ Other reason for denial. Explain: 4. The plaintiff’s average weekly wage at the time of the alleged injury was

$_____________.

Filed: Do Not Write In This Space

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Completed AWW-1 to support this calculation is attached, if amount is different from plaintiff’s application for resolution.

5. The following witnesses may present testimony relevant to denial of this claim. 1. 2. 3. 4. 6. The following are admitted by the employer: Yes No

___ ___ Plaintiff’s injury was covered under the Workers Compensation Act.

___ ___ The injury occurred or became disabling on _______, ____ _____. Date ___ ___ Plaintiff gave due and timely notice of the injury. ___ ___ Plaintiff has returned to work for this employer and is earning

$_____ per week. ___ ___ Temporary total disability income benefits were paid as the result

of the injury. ___ ___ All known medical expenses have been paid as the result of this

injury. 7. Describe in detail the physical requirements of plaintiff’s job at the time of the

alleged injury. If an official job description exists, a copy must be attached. 8. The following persons have gathered information for completion of this form. For the employer: _________________________________________________ Name Title _________________________________________________ Address: Street _________________________________________________ City State Zip Code (____)____________________________________________ Telephone Number

For the insurance carrier: _________________________________________________

Name Title _________________________________________________ Address: Street __________________________________________________ City State Zip Code ( ____)____________________________________________ Telephone Number

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Being duly sworn, the undersigned states that the statements in this form are true and correct to the best of my knowledge and belief. This the _______ day of _________, 20_____. _________________________________________ Signature Title ________________________________________ Address ________________________________________ Phone Number Subscribed and sworn to before me this _________ day of ____________, 20_______ My commission expires:______________________ County:___________________________ _____________________________ Notary Public Prepared and submitted by: ______________________________________________________________________ Representative/Title Address Phone Number

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CALCULATION OF BENEFITS James G. Fogle, Esq.

This is a discussion of the calculation of income benefits for injuries occurring on or after July 14, 2000. We will focus primarily on the calculation of permanent partial disability (PPD) benefits. I. THE STATUTE

KRS 342.730(1)(b) provides in pertinent part as follows:

For permanent partial disability, sixty-six and two-thirds percent (66-2/3%) of the employee's average weekly wage but not more than seventy-five percent (75%) of the state average weekly wage, multiplied by the permanent impairment rating caused by the injury or occupational disease as determined by ‘Guides to the Evaluation of Permanent Impairment,’ American Medical Association, latest edition available, times the factor set forth in the table that follows: AMA Impairment Factor 0 to 5% 0.65 6 to 10% 0.85 11 to 15% 1.00 16 to 20% 1.00 21 to 25% 1.15 26 to 30% 1.35 31 to 35% 1.50 36% and above 1.70

The translation of permanent functional impairment to the body as a whole into permanent partial occupational disability is a relatively simple calculation, and is the first step in calculating PPD benefits. Always start with “impairment multiplied by factor equals disability.” The factor is sometimes referred to as the “statutory factor” or the “grid factor.” It is the PPD percentage that determines whether the compensable period is 425 weeks or 520 weeks. This determination is made prior to consideration of the 2x or 3x multipliers. If the PPD is 50 percent or less, the compensable period is limited to no more than 425 weeks. If the PPD exceeds 50 percent, then the compensable period is limited to no more than 520 weeks.

Is the compensable period 425 weeks or 520 weeks? With the grid factors from the 2000 amendments to the Act, the key impairment rating percentage is 34 percent to the body as a whole. 34 percent impairment multiplied by a factor of 1.5 equals 51 percent PPD, which would entitle the claimant to a maximum compensation period of 520 weeks. If the percentage of impairment is 33 percent to the body as a whole, or less, then the maximum compensable period is 425 weeks.

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The basic calculation of PPD benefits is: Average weekly wage multiplied by 66 2/3 percent reduced to 75 percent of the state average weekly wage for the year of the injury, multiplied by the percentage of PPD. An easy and mathematically accurate method for determining 66 2/3 percent of the average weekly wage is to divide the average weekly wage by “1.5.”

KRS 342.730(c) contains the multipliers that apply when the plaintiff has lost the physical capacity to return to the type of work he performed when he was injured, and when he has not returned to work at equal or greater wages:

1. If, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury, the benefit for permanent partial disability shall be multiplied by three (3) times the amount otherwise determined under paragraph (b) of this subsection, but this provision shall not be construed so as to extend the duration of payments; or 2. If an employee returns to work at a weekly wage equal to or greater than the average weekly wage at the time of injury, the weekly benefit for permanent partial disability shall be determined under paragraph (b) of this subsection for each week during which that employment is sustained. During any period of cessation of that employment, temporary or permanent, for any reason, with or without cause, payment of weekly benefits for permanent partial disability during the period of cessation shall be two (2) times the amount otherwise payable under paragraph (b) of this subsection. This provision shall not be construed so as to extend the duration of payments. 3. Recognizing that limited education and advancing age impact an employee's post-injury earning capacity, an education and age factor, when applicable, shall be added to the income benefit multiplier set forth in paragraph (c)1. of this subsection. If at the time of injury, the employee had less than eight (8) years of formal education, the multiplier shall be increased by four-tenths (0.4); if the employee had less than twelve (12) years of education or a high school General Educational Development diploma, the multiplier shall be increased by two-tenths (0.2); if the employee was age sixty (60) or older, the multiplier shall be increased by six-tenths (0.6); if the employee was age fifty-five (55) or older, the multiplier shall be increased by four-tenths (0.4); or if the employee was age fifty (50) or older, the multiplier shall be increased by two-tenths (0.2).

(d) For permanent partial disability, if an employee has a permanent disability rating of fifty percent (50%) or less as a result of a work-related injury, the compensable permanent partial disability period shall be four hundred twenty-five (425) weeks, and if the permanent disability rating is greater than fifty percent (50%), the compensable permanent partial disability period shall

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be five hundred twenty (520) weeks from the date the impairment or disability exceeding fifty percent (50%) arises. Benefits payable for permanent partial disability shall not exceed ninety-nine percent (99%) of sixty-six and two-thirds percent (66-2/3%) of the employee's average weekly wage as determined under KRS 342.740 and shall not exceed seventy-five percent (75%) of the state average weekly wage, except for benefits payable pursuant to paragraph (c)1. of this subsection, which shall not exceed one hundred percent (100%) of the state average weekly wage, nor shall benefits for permanent partial disability be payable for a period exceeding five hundred twenty (520) weeks, notwithstanding that multiplication of impairment times the factor set forth in paragraph (b) of this subsection would yield a greater percentage of disability.

II. SETTLEMENT OF PPD BENEFITS

All settlements must be submitted to the Department of Workers’ Claims on a Form 110, and must be approved by an Administrative Law Judge. There are multiple options for settlement of PPD benefits: (a) weekly payments over the compensable period; (b) lump sum payment based upon the present value of the compensable period. The discount rate changes annually, and applies to the year in which the settlement agreement is submitted to the DWC for approval. The discount rate for 2012 is 1.625 percent; the present value of 425 weeks is 397.9992 weeks; and the present value of 520 weeks is 479.9836 weeks.

III. LOSS OF PHYSICAL CAPACITY BUT RETURN TO WORK AT EQUAL OR

GREATER WAGES

Even if the Administrative Law Judge were to find that the plaintiff has lost the physical capacity to return to the type of work he performed on the date of injury, if the plaintiff has returned to work at equal or greater wages, the employer can still argue that the 3x multiplier is not properly applied based upon the appellate court decisions in Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003); Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky. 2003); and Adkins v. Pike County Board of Education, 141 S.W.3d 387 (Ky. App. 2004).

In Fawbush, the Kentucky Supreme Court ruled that when the ALJ finds that the claimant has lost the physical capacity to return to the type of work he performed prior to the injury, but has returned to other work at equal or greater wages, then the ALJ must determine whether the 2x or 3x analysis is more appropriate. The Supreme Court stated that the ALJ has broad discretion in making this determination, that the determination is based upon a “broad range of factors” (which it did not identify), and that the ALJ properly determines that the 2x analysis is appropriate when the ALJ finds that the claimant retains the physical ability to continue to earn equal or greater wages for the indefinite future.

IV. CESSATION OF EMPLOYMENT AT EQUAL OR GREATER WAGES

The Kentucky Supreme Court ruled in Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671 (Ky. 2009), that although subparagraph (c)2 appears at first blush to

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provide clearly and unambiguously for a double PPD benefit during a period of cessation of a claimant's post-injury employment at the same or a greater wage "for any reason, with or without cause," it must be read in the context of KRS 342.730(1), which is a statute authorizing income benefits for "disability" that results from a work-related injury. For that reason, when read in context, KRS 342.730(1)(c)(2) permits a double income benefit only where the cessation of employment at equal or greater wages is for a reason relating to the disabling injury.

Note: The Workers Compensation Board has recently held that the rationale behind Chrysalis House also applies to a Fawbush analysis, so that the analysis of whether a claimant is able to continue working at equal or greater wages for the indefinite future must focus on the effects of the disabling injury and not other, unrelated conditions (such as the economic climate).

V. TERMINATION OF INCOME BENEFITS

KRS 342.730(4) provides:

All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee qualifies for normal old-age Social Security retirement benefits under the United States Social Security Act, 42 U.S.C. secs. 301 to 1397f, or two (2) years after the employee's injury or last exposure, whichever last occurs.

Here is the most recent chart showing normal retirement dates:

SOCIAL SECURITY Retirement Benefits Publication No. 05-10035 February 1999 ICH 457500 Age to Receive Full Social Security Benefits Year of Birth Full Retirement Age 1937 or earlier 65 1938 65 and 2 months 1939 65 and 4 months 1940 65 and 6 months 1941 65 and 8 months 1942 65 and 10 months 1943-1954 66 1955 66 and 2 months 1956 66 and 4 months 1957 66 and 6 months 1958 66 and 8 months 1959 66 and 10 months 1960 and later 67

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VI. EXAMPLES OF COMMON CALCULATIONS (AND MISTAKES!)

A. Example 1

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $300.00 IMPAIRMENT TO BODY AS A WHOLE: 10% LOSS OF PHYSICAL CAPACITY: NO RETURN TO WORK AT EQUAL OR GREATER WAGES: YES

B. Example 2

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $300.00 IMPAIRMENT TO BODY AS A WHOLE: 10% LOSS OF PHYSICAL CAPACITY: NO RETURN TO WORK AT EQUAL OR GREATER WAGES: NO

C. Example 3

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $300.00 IMPAIRMENT TO BODY AS A WHOLE: 10% LOSS OF PHYSICAL CAPACITY: NO RETURN TO WORK AT EQUAL OR GREATER WAGES: INITIALLY YES, THEN NO

D. Example 4

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $300.00 IMPAIRMENT TO BODY AS A WHOLE: 10% LOSS OF PHYSICAL CAPACITY: YES RETURN TO WORK AT EQUAL OR GREATER WAGES: NO

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E. Example 5

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $300.00 IMPAIRMENT TO BODY AS A WHOLE: 10% LOSS OF PHYSICAL CAPACITY: YES RETURN TO WORK AT EQUAL OR GREATER WAGES: YES

F. Example 6

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $300.00 IMPAIRMENT TO BODY AS A WHOLE: 10% LOSS OF PHYSICAL CAPACITY: YES RETURN TO WORK AT EQUAL OR GREATER WAGES: YES, AND THEN NO.

G. Example 7

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: completed 8th grade – no GED AVERAGE WEEKLY WAGE: $300.00 IMPAIRMENT TO BODY AS A WHOLE: 10% LOSS OF PHYSICAL CAPACITY: YES RETURN TO WORK AT EQUAL OR GREATER WAGES: NO

H. Example 8

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: 5th grade AVERAGE WEEKLY WAGE: $300.00 IMPAIRMENT TO BODY AS A WHOLE: 10% LOSS OF PHYSICAL CAPACITY: NO RETURN TO WORK AT EQUAL OR GREATER WAGES: YES

I. Example 9

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1953 AGE ON DATE OF INJURY: 57 EDUCATION: 8th grade

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AVERAGE WEEKLY WAGE: $300.00 IMPAIRMENT TO BODY AS A WHOLE: 10% LOSS OF PHYSICAL CAPACITY: YES RETURN TO WORK AT EQUAL OR GREATER WAGES: NO

J. Example 10

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1943 AGE ON DATE OF INJURY: 67 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $300.00 IMPAIRMENT TO BODY AS A WHOLE: 10% LOSS OF PHYSICAL CAPACITY: NO RETURN TO WORK AT EQUAL OR GREATER WAGES: YES

K. Example 11

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $900.00 IMPAIRMENT TO BODY AS A WHOLE: 10% LOSS OF PHYSICAL CAPACITY: NO RETURN TO WORK AT EQUAL OR GREATER WAGES: YES

L. Example 12

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $900.00 IMPAIRMENT TO BODY AS A WHOLE: 10% LOSS OF PHYSICAL CAPACITY: NO RETURN TO WORK AT EQUAL OR GREATER WAGES: YES, AND THEN NO

M. Example 13

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $900.00 IMPAIRMENT TO BODY AS A WHOLE: 10% LOSS OF PHYSICAL CAPACITY: YES RETURN TO WORK AT EQUAL OR GREATER WAGES: NO

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N. Example 14

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $900.00 IMPAIRMENT TO BODY AS A WHOLE: 25% LOSS OF PHYSICAL CAPACITY: YES RETURN TO WORK AT EQUAL OR GREATER WAGES: NO

O. Example 15

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $900.00 IMPAIRMENT TO BODY AS A WHOLE: 30% LOSS OF PHYSICAL CAPACITY: YES RETURN TO WORK AT EQUAL OR GREATER WAGES: NO

P. Example 16

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $600.00 IMPAIRMENT TO BODY AS A WHOLE: 30% LOSS OF PHYSICAL CAPACITY: YES RETURN TO WORK AT EQUAL OR GREATER WAGES: NO

Q. Example 17

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $1,200.00 IMPAIRMENT TO BODY AS A WHOLE: 31% LOSS OF PHYSICAL CAPACITY: YES RETURN TO WORK AT EQUAL OR GREATER WAGES: NO

R. Example 18

DATE OF INJURY: 1/15/2011 DATE OF BIRTH: 6/15/1978 AGE ON DATE OF INJURY: 32 EDUCATION: high school graduate AVERAGE WEEKLY WAGE: $600.00

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IMPAIRMENT TO BODY AS A WHOLE: 34% LOSS OF PHYSICAL CAPACITY: YES RETURN TO WORK AT EQUAL OR GREATER WAGES: NO

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THE PERFECT APPEAL Hon. Michael Alvey

Chairman, Workers’ Compensation Board

I. FINAL AWARD, ORDER OR DECISION OF THE ADMINISTRATIVE LAW

JUDGE; REFERENCES: KRS 342.281; 803 KAR 25:010

A. Date of Filing

803 KAR 25:010, Section 1(4)(a)1 – ALJ’s opinion deemed “filed” three days after date set forth on award, order or decision; therefore, date for filing Petition for Reconsideration (PFR) or Notice of Appeal (NOA) runs from three days after date of issuance. The “three day rule” does not apply to appeals to the Court of Appeals which must be filed within thirty (30) days after the opinion from the Workers’ Compensation Board is entered.

B. Petition for Reconsideration: KRS 342.281

Within fourteen (14) days from the date of the award, order, or decision any party may file a petition for reconsideration of the award, order, or decision of the administrative law judge. The petition for reconsideration shall clearly set out the errors relied upon with the reasons and argument for reconsideration of the pending award, order, or decision. All other parties shall have ten (10) days thereafter to file a response to the petition. The administrative law judge shall be limited in the review to the correction of errors patently appearing upon the face of the award, order, or decision and shall overrule the petition for reconsideration or make any correction within ten (10) days after submission.

Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky. App 2000) – 1996 amendments were intended by legislature to return to the standard set out in Eaton Axle Corp. v. Nally, 688 S.W.2d 334, 338 (Ky. 1985), whereby PFR must be filed to preserve patent error for appellate review. The Eaton Axle court held:

It is our opinion that KRS 342.281 should be utilized as a statutory counterpart of CR 52.04 and that before beginning the appellate process which utilizes the court system, the claimant, employer or any other party involved in the case before the Workers' Compensation Board seeks an appeal on errors which are patent upon the face of the award, order or decision, he must first file a Petition for Reconsideration pursuant to KRS 342.281.

Id. Successive petitions for reconsideration have no tolling effect, unless to correct an error in the order on reconsideration. Messamore v.

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Peabody Coal Co., 569 S.W.2d 693 (Ky. App. 1978); Tube Turns Division of Chemetron v. Quiggins, 574 S.W.2d 901 (Ky. App. 1978); Stewart v. Kentucky Lottery Corp., 986 S.W.2d 918 (Ky. App. 1998).

II. APPEALS TO THE WORKERS’ COMPENSATION BOARD; REFERENCES:

KRS 342.285; 803 KAR 25:010; CR 7.02(4)

A. Time

1. NOA due thirty days from date opinion or order of ALJ is filed. 2. Brief due within thirty days from date NOA is filed. 3. Respondent’s brief due within thirty days from Petitioner’s brief. 4. Petitioner may file reply brief within ten days from date

Respondent’s brief was served or due. B. Cross-appeal: Notice of cross-appeal due within ten days of NOA

C. Parties

1. Appealing party is Petitioner; responding party is Respondent. 2. Must designate ALJ as Respondent. 3. Where medical bill is at issue, provider must be designated as

party. 4. Where attorney fee is at issue, attorney must be designated as

party -- Peabody Coal Co. v. Goforth, 857 S.W.2d 167 (Ky. 1993).

D. Briefs

1. Page limit: twenty pages for Petitioner and Respondent briefs;1 five pages for reply brief; twenty-five pages for combined brief on behalf of Respondent/Cross-Petitioner.

2. Copies: Original and two copies filed with DWC (ATTN: APPEALS

BRANCH). 3. Format: Must conform to CR 7.02(4) – twelve point font, double-

spaced, 1.5” margin left side.

1 The twenty (20) page limit applies to the entirety of the document, minus attachments. The

page limit does not apply solely beginning with the argument.

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4. Cover: certificate of service; captioned “Before Workers’ Compensation Board.”

5. Content.

a. Date of entry of final award, order or decision of the ALJ. b. Whether any matters remain in litigation between the

parties in any other forum or court. c. Statement of need for oral argument.* d. Statement of benefits pending review.*

6. Body of brief.

I. INTRODUCTION.*

II. STATEMENT OF POINTS AND AUTHORITIES.*

III. STATEMENT OF THE CASE.*

IV. ARGUMENT.*

V. CONCLUSION (name, address, phone # of attorney must follow).*

VI. APPENDIX.

a) Final award, order or decision from which review is sought.

b) All petitions for reconsideration and orders on

reconsideration. c) Copies of cases cited from federal courts or foreign

jurisdictions.* d) Copies of board opinions & non-final or

unpublished appellate opinions.*

*Also in Respondent’s brief (counter-statements)

III. PETITION FOR REVIEW TO COURT OF APPEALS; REFERENCES: CR 76.25, 76.12 (IF BRIEFS ARE ORDERED), 76.42

A. Time: Petition for Review due thirty days from date Board Opinion is

entered, as set forth on first page of opinion

Appellee’s response due within twenty days of Petition for Review

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B. Cross-appeal: Cross-petition due within twenty days of Petition for Review

Response to Cross-petition due in twenty days

C. Fee: CR 76.42 -- $150.00 for appeal, cross-appeal, petition for rehearing/ modification/extension

D. Parties: Appealing party is Appellant; responding party is Appellee

Designate ALJ and WCB as parties

E. Petition for Review

1. Page limit: Twenty pages for Petition & Response; five pages for Reply; twenty-five pages for combined Cross-Petition/Response.

2. Copies: Original and four copies filed with Clerk of the Court of

Appeals. 3. Cover: Certificate of Service; Petition – red; Response – blue. 4. Content:

a. Name of each Appellant and Appellee and their counsel. b. Date of entry of decision by Administrative Law Judge and

Workers' Compensation Board. c. Whether any matters remain in litigation between the

parties in any other state or federal court or administrative body.

5. Body of petition.*

I. TABLE OF POINTS & AUTHORITIES.

II. STATEMENT OF MATERIAL FACTS.

III. QUESTIONS OF LAW INVOLVED.

IV. SPECIFIC REASONS RELIEF SHOULD BE GRANTED.

V. APPENDIX.

a) Decision of the ALJ. b) Decision of the Board. c) Briefs filed by all parties before the Board.

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d) If Motion to Reopen, copies of Motion and Response.

*Also in Response (counter-statement)

F. Briefs: Court may order filing of briefs under CR 76.12 or submit appeal

on Petition/Response G. *N.B: It is rare that the Court of Appeals will direct briefs in a workers’

compensation claim, which is why it is all the more important that you make your strongest case in your Petition for Review

H. Rehearing: CR 76.32 – Party may file Petition for Rehearing or Petition

for Modification or Extension of the Opinion, or both, within twenty days of issuance of opinion

IV. APPEAL TO SUPREME COURT; REFERENCES: CR 76.25, 76.36(7), 76.12,

74.01, 76.42 Parties to a workers’ compensation claim may appeal to the Kentucky Supreme Court as a matter of right. Ky. Constitution §115; CR 76.25(12). However, not all of Kentucky’s Supreme Court justices agree with this interpretation of the state constitution and, at the very least, it should be noted that simply because you may take an appeal to the Supreme Court (or any other appellate body, for that matter), does not mean you always should. Practitioners both new and old would be well-advised to review on a regular basis the following admonition from the state high court:

The 1986 Act intended to streamline the workers' compensation process and expedite review, and we will not apply it in a way that works the opposite result. The WCB and the Kentucky Court of Appeals are not way stations, or rest stops, along the road to the Kentucky Supreme Court. The parties in cases such as the present one must accept that, notwithstanding their right to demand further appellate review, the body performing further review is there to address new problems, not to redecide the same evidentiary questions. The WCB is entitled to the same deference for its appellate decisions as we intend when we exercise discretionary review of Kentucky Court of Appeals decisions in cases that originate in circuit court. The function of further review of the WCB in the Court of Appeals is to correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice. The function of further review in our Court is to address new or novel questions of statutory construction, or to reconsider precedent when such appears necessary, or to review a question of constitutional magnitude. Our purpose in publishing this Opinion is to advise these parties, and everyone else involved in the workers'

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compensation process, that further review is so limited and they should proceed accordingly.

Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1992).

A. Time: Notice of appeal due thirty days from date of entry of Court of

Appeals decision B. Cross-appeal: Notice of cross-appeal due within ten days from last day

allowed for NOA C. Fee: CR 76.42: $150.00 for appeal, cross-appeal, petition for rehearing/

modification/extension D. Parties: Same as Court of Appeals, above E. Briefs

1. Timing: Within sixty days from notation on docket by Court of Appeals clerk, indicating record has been prepared and certified per CR 75.07.

a. Cross-appellant’s brief within thirty days from clerk’s notice

of docket entry or expiration of time allowed for appellant to perfect appeal.

b. Response briefs within sixty days of Appellant’s brief.

2. Page limit: Fifty pages for Appellant and Appellee briefs; ten for

Reply; sixty-five for Combined brief.

3. Copies: Original and nine copies filed with Clerk of the Court of Appeals.

4. Cover: Certificate of Service; Appellant – red; Appellee – blue;

Reply – yellow. 5. Content.

I. INTRODUCTION.

II. STATEMENT CONCERNING ORAL ARGUMENT*.

III. STATEMENT OF POINTS AND AUTHORITIES*.

IV. STATEMENT OF THE CASE*.

V. ARGUMENT*.

VI. CONCLUSION.

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VII. APPENDIX.

a) Index of documents in Appendix b) Court of Appeals Opinion c) Board decision d) ALJ’s Opinion, Order or Award e) Any pleadings or other documents to which ready

reference would be helpful to the court*

*Also in Appellee’s brief (counter-statements)

F. Rehearing: Same as Court of Appeals, above V. TIPS FOR PRACTITIONERS

A. Do not misquote either the law, or the decision from the ALJ. B. Always provide an analysis as to why the Workers’ Compensation Board

or appropriate appellate Court should grant the relief sought. C. Ensure all items required by 803 KAR 25:010 Section 21, or by Civil Rule

are included. D. Only ask for extensions of time when necessary. The Workers’

Compensation Board, the Department of Workers’ Claims Appeals section, and the clerks at the appellate courts are not personal calendars or tickler systems for any attorney.

E. When asking for an extension of time, provide a valid explanation, or

basis for the request. F. Thoroughly review the ALJ’s decision to determine the issue(s) which

may need to be appealed. G. File petitions for reconsideration with the ALJ where appropriate. H. Ensure the ALJ has provided the correct analysis in determining if any

enhancing multipliers may apply pursuant to KRS 342.730(1)(c)1 & 3. I. Check the ALJ’s opinion for mistakes. J. If an issue is raised, a corresponding argument should be made. K. Ensure all appropriate parties against whom the appeal is taken are listed

on the notice of appeal, and the brief. L. DO NOT appeal from interlocutory decisions of the ALJ.

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M. DO NOT take potshots at either the ALJ or opposing counsel. N. Be civil to opposing counsel. O. Neither the Workers’ Compensation Board, nor any other appellate court

may substitute its judgment for that of the ALJ, nor make findings of fact.

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