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  • 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

  • i

    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

  • ii

  • iii

    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.

  • iv

    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.

  • 1

    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)

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